1. At the commencement of the hearing the applicant amended its charge against Mr Robson. The amended charge brought against Mr Robson was a charge of unsatisfactory professional conduct within the meaning of Section 4.4.2 of the Legal Profession Act 2004 (the Act) by failing to provide notification that the Estate of the late Elvira Montano had been distributed when he was given notice that Ms Margalit of Arnold Thomas & Becker Solicitors was going to file a Part IV Application in the Supreme Court on behalf of her client.
2. Section 4.4.2 of the Act provides as follows:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner."

1. The respondent was admitted to practice on 1st March 1999.
2. At all relevant times the respondent was an Australian Legal Practitioner within the meaning of the Act.
3. At all relevant times the respondent was a director of the Lantern Legal Group Pty Ltd which carries on a legal practice as Harwood Andrews.
4. Elvira Montano (the deceased) died on 19th July 2013. Under the deceased's Will made 11th April 2012 Mr John Joseph Montano (Mr John Montano) and Mrs Maria Angela Hodder (Mrs Maria Hodder) were appointed executors of the deceased's Will.
5. Mr John Montano and Mrs Maria Hodder obtained a Grant of Probate of the Will on 9th October 2013.
6. According to the Inventory of Assets and Liabilities filed in support of the Application for the Grant of Probate, the deceased's estate was valued at $311,331.47.
7. Mr Robson acted as solicitor on behalf of Mr John Montano and Mrs Maria Hodder in their capacity as executors. He also acted for them as beneficiaries under the Will of the deceased.
8. In accordance with his standard practice Mr Robson advised Mr John Montano and Mrs Maria Hodder, in their capacity as executors, that there was a six month claims period from the date of the Grant of Probate during which a claimant could commence proceedings pursuant to Part IV of the Administration & Probate Act 1958 for an order that provision be made out of the estate for the proper maintenance and support of such claimant. Mr Robson provided this advice to Mr John Montano and Mrs Maria Hodder on more than one occasion. Such advice was of particular significance in this estate due to the fact that on the face of the Will it seemed that inadequate provision may have been made for Mr Frank Montano having regard to the relatively modest bequest left to Mr Frank Montano. Consequently the prospect of a Part IV claim being made could perhaps be regarded as more than a realistic possibility.
9. Mr Robson further advised the executors not to distribute the estate within that six month claims period.
10. Notwithstanding his advice Mr Robson was instructed by the executors to proceed with the distribution to Mr John Montano and Mrs Maria Hodder the major beneficiaries under the estate.
11. An amount of $322.13 was retained by the respondent in his trust account being the entitlement of Mr Frank Montano under the Will of the deceased. There was no explanation provided as to why the sum of $322.13 being the entitlement of Mr Frank Montano was held in trust.
12. It is apparent from correspondence forwarded to Mr John Montano and Mrs Maria Hodder on 7th November 2013 that the amount of $322.13 being the amount due to Mr Frank Montano was to be retained by Mr Robson's firm until the six month claims period had expired, namely on 10th May 2014.
13. Mr Robson acted on the instructions of Mr John Montano and Mrs Maria Hodder and distributed the majority of the estate to those persons.
14. By letter dated 11th February 2014 Messrs. Arnold Thomas & Becker, solicitors acting on behalf of Mr Frank Montano, forwarded correspondence to Mr Robson's legal firm advising of their client's intention to commence a claim against the deceased estate pursuant to Part IV of the Administration and Probate Act 1958. The letter also sought confirmation that the estate would not be distributed until six months had expired from the date that Probate had been granted.
15. A similar letter to that forwarded to Mr Robson's firm of 11th February 2014 was sent individually to Mr John Montano and Mrs Maria Hodder. On 25th February 2014 Mr Robson forwarded an acknowledgement to the letter of 11th February 2014 with advice that he would provide a response once instructions had been received from his clients.
16. On 5th March 2014 Messrs. Arnold Thomas & Becker forwarded a letter to Mr Robson which provided an explanation for the purpose of the letter of 11th February 2014 namely to ensure that no action be taken to distribute the estate within six months of the date of the Grant of Probate.
17. On 14th March 2014 Mr Robson forwarded a response to Messrs. Arnold Thomas & Becker advising that his clients would vigorously defend any proceedings instituted, advising of his instructions to accept service and further asserting that the potential claim of Mr Frank Montano was without merit.
18. On 8th April 2014 an Originating Motion was filed in the Supreme Court of Victoria on behalf of Mr Frank Montano seeking an Order pursuant to Part IV of the Administration and Probate Act 1958 to make provision for the plaintiff's maintenance and support.
19. On 17th April 2014 a Summons was issued by the plaintiff's solicitor which was returnable on 27th May 2014. Draft Orders of Consent were issued as between the parties and as is the normal practice on the first return of the Directions Hearing Counsel appeared on behalf of both parties and Orders providing Directions were obtained.
20. On 28th July 2014 Mr Robson filed a Notice with the Supreme Court of Victoria that his firm had ceased to act on behalf of the defendants.
21. BJT Legal then commenced to act on behalf of Mrs Maria Hodder. A "without prejudice" letter dated 4th August 2014 was forwarded by that firm to Messrs. Arnold Thomas & Becker to the effect that, in practical terms, the estate had been distributed.
22. It was not until the letter of 4th August 2014 from BJT Legal had been received that Messrs. Arnold Thomas & Becker became aware that the estate had been essentially distributed. Sometime prior to 12th November 2014, being the date upon which the applicant first wrote to Mr Robson, Messrs. Arnold Thomas & Becker lodged a complaint relating to Mr Robson's conduct with the applicant.

1. In accordance with his plea, I find Mr Robson guilty of unsatisfactory professional conduct.

1. It was submitted by Mr Gronow for Mr Robson that the appropriate penalty was a reprimand. The Applicants' position in relation to penalty was not made clear to the Tribunal until the applicant's submissions were put to the Tribunal. In the course of her submissions on behalf of the applicant Ms Stanisich did not object to this penalty.
2. The Tribunal must, however, consider the question of penalty independently and arrive at its own decision.
3. The thrust of the applicant's charge revolves around the failure of Mr Robson to inform Messrs. Arnold Thomas & Becker that the estate of the deceased had been substantially distributed. The key pieces of correspondence are the letters from Messrs Arnold Thomas & Becker dated 11th February 2014 and 5th March 2014. The letter of 11th February 2014 sought confirmation that the estate would not be distributed until six months had expired from the date of Grant of Probate. The letter of 5th March 2014 provided further explanation for the basis of the letter of 11th February 2014 namely that Messrs. Arnold Thomas & Becker sought assurance that no action be taken to distribute the estate within six months from the Grant of Probate.
4. From 11th February 2014 both Mr Robson and his clients were on notice that an Application pursuant to Part IV of the Administration and Probate Act 1958 was imminent. In correspondence passing between Mr Robson and the applicant in the course of the applicant's investigation of the matter, the suggestion was made by Mr Robson that it was a matter for the solicitors acting for the plaintiff, Mr Frank Montano, to specifically ask whether or not the estate had been distributed. I agree that in the correspondence of 11th February and 5th March 2014 Messrs. Arnold Thomas & Becker did not ask specifically whether or not the estate had been distributed. However, what they were seeking in the correspondence was confirmation that the estate would not be distributed. In my opinion, the appropriate response by Mr Robson to the correspondence of 11th February and 5th March 2014 should have been that the estate had been distributed. In his evidence Mr Robson expressed regret and accepted that it was inappropriate for him not to have informed Mr Frank Montano's solicitors that the estate had been distributed at the first opportunity.
5. Mr Robson avers that it was an oversight not to have informed the solicitors for Mr Frank Montano. He offered no explanation as to why he did not do so.
6. In the submission on behalf of the applicant, Ms Stanisich suggested that Mr Robson did not express his remorse until he gave his evidence by way of explanation of his actions to the Tribunal. In the circumstances, I accept that Mr Robson does have regret for not informing the plaintiff's solicitors at the first opportunity and I am comfortable that he now has a full appreciation that the correspondence received by him dated 11th February and 5th March 2014 did provide him with that opportunity to respond that the estate had been distributed. Notwithstanding his late expression of regret, I consider the finding in this matter and the reprimand contained in the Orders will have a profound effect on Mr Robson in the future.
7. Mr Robson was admitted to practice in 1999. He is an accredited wills and estates specialist. Tendered on his behalf was an impressive array of character material. This material attested as to Mr. Robson's competency, standards of ethics in conducting his practice and his standing within the Ballarat area.
8. Mr Robson is active in a number of community organisations in the Ballarat area. He is to be commended for his community involvement.
9. Ms Stanisich also submitted that on the basis of a number of authorities there was a generally held view that it was "not a good idea" to distribute a deceased estate within the six month Part IV claims period. She readily agreed however, that it was not unlawful to do so. She further agreed that notwithstanding the six month claims period a solicitor would always be bound by his client's instructions. In this case it was clear that notwithstanding the advice provided by Mr Robson to his clients that he did receive instructions to distribute. It is the solicitor's obligation to advise the clients as to existence of the six month Part IV claims period and the dangers and risks involved for an executor in making a distribution within that period as the same may give rise to a personal liability for the executor. I am satisfied that Mr Robson provided appropriate advice to his clients' and acted accordingly upon receipt of his clients' instructions.
10. The error which he made was failing to advise the solicitors acting for Mr Frank Montano at the first available opportunity that the estate had been substantially distributed. It was an unfortunate consequence of his failure to advise that Mr Frank Montano was in a position of ignorance as to the true state of affairs, namely that the estate had been substantially distributed, for a period of six months. Mr Robson should receive a reprimand. Such a penalty is appropriate having regard to his conduct in this particular matter which would appear to have been isolated.
11. In conclusion, there appears to be no exceptional circumstances under Clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998 and consequently Mr Robson is ordered to pay the applicant's costs in the agreed sum of $11,563.63.