1. The Tribunal finds the following charges proven and finds the respondent guilty of:

Charge 1

Unsatisfactory professional conduct within the meaning of section 296 of the Legal Profession Uniform Law (Victoria) (Uniform Law), in that in the period from in or about 21 February 2019 to 15 April 2019, the respondent failed to take proper steps to draw the papers for the Proposed Appeal as he had been briefed to do and thereby engaged in conduct which involved a failure to reach or maintain a reasonable standard of competence and diligence.

Charge 3

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law, in that from on or about 15 April 2019 to 27 May 2019, in making the Representations, the respondent made false or misleading statements to Lennon Lawyers and the Complainant as to the status of the Proposed Appeal and thereby engaged in conduct which involved a substantial and/or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. Leave is granted for the applicant to amend the application in accordance with the amended application for order, filed 19 December 2024.
2. With respect to Charge 1 the respondent is reprimanded pursuant to section 302(1) and 299(1)(b) of the Uniform Law.
3. With respect to Charge 3 the respondent is prohibited from applying for an Australian practising certificate before the expiration of one year from the date of this Order pursuant to section 302(1)(j) of the Uniform Law.
4. The respondent is to pay the costs of the proceeding including reserved costs to be assessed by the Costs Court in default of agreement on the standard basis at 80 % of the Supreme Court scale.

1. This decision concerns a disciplinary proceeding brought by the Victorian Legal Services Commissioner (VLSC) against Mr Alan Walter Sandbach, barrister.
2. The VLSC has brought one charge of unsatisfactory professional conduct and one charge of professional misconduct under the Legal Profession Uniform Law (Victoria) (Uniform Law) against Mr Sandbach. He admits the characterisation of the conduct alleged and agrees with the VLSC about determination and penalty.
3. On 21 February 2019, Lennon Lawyers provided Mr Sandbach with formal instructions to commence preparing a proposed appeal for the complainant. The brief facts are that between 21 February and 15 April 2019 Mr Sandbach failed to draw appeal papers as he had been briefed to do. From 15 April to 27 May 2019, Mr Sandbach was not entitled to practice, and he made false and misleading statements to Lennon Lawyers that he would perform legal work he was barred from doing.
4. The proceeding was listed for hearing on 18 - 20 February 2025. On 19 December 2024, the VLSC filed an amended application for order, an affidavit of Emily Pompetti, Senior Lawyer and Investigator within the Discipline and Suitability Team, and the correspondence between the parties regarding settlement, together with proposed consent orders and an Undertaking signed by Mr Sandbach. The parties requested the matter be completed on the papers. Submissions were filed on penalty by the VLSC dated 21 January 2025 and by Mr Sandbach dated 14 February 2025.
5. The issues for consideration were firstly, whether the charges as characterised were proven. Secondly, what are the appropriate penalties. I am satisfied the characterisation and proposed penalties are appropriate. I have considered the matter on the papers and now make orders and provide my reasons.

1. Mr Sandbach was admitted to practice in Victoria on 1 May 1981 and signed the Bar Roll on 17 May 1984.[1]
2. Mr Sandbach does not currently have a practicing certificate and has not held one since 15 April 2019 when the Tribunal ordered that the Board's determination that he would not be eligible to apply for a practising certificate for four years would come into operation.[2] His disciplinary history is relevant to Charge 3, that of professional misconduct, in that Mr Sandbach represented he could act as a lawyer when he was disqualified from doing so. His prior history is also relevant to penalty.
3. Mr Sandbach was the subject of previous disciplinary proceedings when, on 28 June 2018, the VLSC filed charges against him for misconduct at common law and professional misconduct under the Uniform Law (June 2018 disciplinary proceedings). The charges arose from his alleged conduct in the Costs Court where he made an allegation of fraud with respect to an invoice in issue in the proceeding, allegedly in breach of rule 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (Barristers Rules).
4. In unrelated proceedings, on 13 November 2018 the Victorian Bar Council[3] determined under sections 89 and 94 of the Uniform Law that Mr Sandbach was not a fit and proper person to hold a practising certificate following its investigation of a show cause event concerning Mr Sandbach's taxes (Victorian Bar decision).[4] His practising certificate was to be cancelled from 31 December 2018, and he was to be disqualified for four years.
5. Mr Sandbach applied to the Tribunal for review of the Victorian Bar decision (review proceeding) and on 21 December 2018 he obtained a stay of the decision, subject to certain conditions.[5]
6. In the course of the review proceeding, as a result of summons issued to persons associated with Mr Sandbach, more potential wrongdoing was identified against him. In March 2019 he filed for leave to withdraw his application to review.
7. On 27 March 2019, Judge Hampel made orders by consent granting Mr Sandbach leave to withdraw from the review proceeding. Judge Hampel's orders gave effect to the withdrawal and reset the period of disqualification imposed by the Victorian Bar decision, namely the four-year period, making Mr Sandbach ineligible to apply for or hold a practising certificate commencing at 11pm on 15 April 2019.[6]
8. Significantly, Judge Hampel's orders record that on 27 March 2019 Mr Sandbach made an undertaking through his solicitors that:

a) from 26 March 2019 to 15 April 2019 he will not accept or undertake any legal work other than matters in which he holds a brief on 26 March 2019; and > > b) he will by 4pm on 27 March 2019 advise all clients (or their relevant instructing solicitors) for whom he proposes to undertake legal work prior to 15 April 2019 that he will cease practice at the end of 15 April 2019.[7]

Pursuant to s.100 of the Legal Profession Uniform Law (Victoria) the four-year period for which the applicant is ineligible to apply for or hold a practising certificate imposed in the Decision, commences at 11pm on 15 April 2019.

The applicant is at 11pm on 15 April 2019 released from the undertaking he gave the Tribunal recorded in Other Matters in the Tribunal's Order made 21 December 2018.[8]

1. With respect to the June 2018 disciplinary proceeding, on 22 December 2022, Quigley J found Mr Sandbach guilty of professional misconduct under section 297(1)(a) and 298(b) of the Uniform Law.[9] On 23 February 2023, following a hearing on penalty held on 14 February 2023, Mr Sandbach was reprimanded and prohibited from applying for a practising certificate for 12 months commencing 16 April 2023.
2. Mr Sandbach appealed Quigley J's decisions on liability and penalty to the Court of Appeal on twelve grounds. On 27 June 2024, the Court of Appeal granted leave in respect of grounds 2, 3 and 6 but dismissed the appeal and refused leave on all other grounds.[10]
3. Mr Sandbach does not have a current practising certificate. He has not held one since 15 April 2019. From 15 April 2019 he was disqualified for four years and not entitled to engage in legal practice. From 16 April 2023 he was disqualified from applying for a practising certificate for twelve months.
4. On 19 June 2023, the VLSC commenced these proceedings.[11]
5. On 12 December 2024, Mr Sandbach signed an Undertaking with the VLSC that he would not apply for a practicing certificate in future in any Australian State or Territory.
6. The Undertaking was made in consideration for the Board not making an application to the Supreme Court for the removal of his name from the Roll of Practitioners other than:

(a) if the Tribunal makes a referral to the Supreme Court recommending that Mr Sandbach be removed from the roll of Practitioners in [this proceeding];

(b) in relation to matters not known to the Board or the Commissioner: or

(c) if a future contravention of the Uniform Law is identified.[12]

1. As referred to above, on 19 December 2024, the VLSC filed the amended application and proposed consent orders dated 18 December 2024 and sought for the matter to be dealt with on the papers.
2. The VLSC filed submissions in support of the agreement and submissions on penalty dated 21 January 2025.
3. On 29 January 2025, having considered the parties correspondence and VLSC's submissions dated 21 January 2025, the Tribunal made orders to determine the application on the papers without a hearing. Mr Sandbach was invited to file any further submissions by 14 February 2025.
4. On 14 February 2025, Mr Sandbach filed submissions on penalty.

For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer.

(1) For the purposes of this Law, professional misconduct includes -

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice.

(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

1. In accordance with section 300, in this case the VLSC, as designated local regulatory authority, has initiated and prosecuted proceedings against Mr Sandbach in VCAT as the designated tribunal.
2. Section 301 of the Uniform Law provides:

(1) Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal.

(2) Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing but is bound by the rules of procedural fairness.

(3) It is intended that jurisdictional legislation may determine whether the designated tribunal is bound by the rules of evidence in conducting a hearing in relation to an allegation of professional misconduct, but the designated tribunal is otherwise not bound by those rules in relation to matters arising under this Chapter.

(1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal[13] 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).

(3) The designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.

(4) If the designated tribunal makes an order that a lawyer pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court.

(5) To avoid doubt, the power of the designated tribunal under subsection (1) to make any of the orders that the designated local regulatory authority can make under section 299 extends to making orders of that kind in relation to a lawyer whom the tribunal finds is guilty of professional misconduct.

(6) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision.

(1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders -

(a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice;

(b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice;

(c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice;

(d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work;

(e) an order requiring -

(i) the respondent lawyer; or

(ii) the respondent law practice to arrange for a legal practitioner associate of the law practice - to undertake training, education or counselling or be supervised;

(f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456;

(g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice

1. Section 100(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (VCAT Act) provides:

The Tribunal may conduct all or part of a proceeding entirely on the basis of documents, without the appearance of the parties or their representatives or witnesses, unless a party objects to all or part of the proceeding being conducted in this manner.

1. The applicable test of proof is the balance of probabilities, bearing in mind that the more serious the allegations Briginshaw provides that the fact in issue should be proved to the reasonable satisfaction of the Tribunal.[14]

1. The amended application for order (undated), filed 19 December 2024, listed two charges against Mr Sandbach:

CHARGE 1

Unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law, in that in the period from in or about 21 February 2019 to 15 April 2019, the Respondent failed to take proper steps to draw the papers for the Proposed Appeal as he had been briefed to do and thereby engaged in conduct which involved a failure to reach or maintain a reasonable standard of competence and diligence.

CHARGE 3

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law, in that from on or about 15 April 2019 to 27 May 2019, in making the Representations, the Respondent made false or misleading statements to Lennon Lawyers and the Complainant as to the status of the Proposed Appeal and thereby engaged in conduct which involved a substantial and/or consistent failure to reach or maintain a reasonable standard of competence and diligence.

1. Mr Sandbach has pleaded guilty to Charge 1 and Charge 3.
2. The parties have agreed the conduct in Charge 1 is characterised as unsatisfactory professional conduct under section 296 of the Uniform Law and that Charge 3 is characterised as professional misconduct under section 297(1)(a) of the Uniform Law.
3. The Tribunal's duty is to determine whether the allegations are proven, consider the characterisation of the allegations and impose the relevant sanction. This duty cannot be supplanted by an agreement between the parties.[15]

1. Section 296 of the Uniform Law provides unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer.[16]
2. The VLSC submits on 21 February 2019 Mr Sandbach was briefed to draw appeal papers and because he was not entitled to practise from 15 April 2019, the task had to be completed by then. Despite a number of reminders and offers of assistance, he did not draw the appeal papers by 15 April 2019.[17]
3. The submissions contend the failure to draw the appeal papers in the nearly two months available constitutes a failure of diligence.
4. A summary of the factual context is as follows.
5. The complainant owned and operated a restaurant and leased premises from Schiavello Pty Ltd under a sublease. In April 2018, Schiavello sought to terminate the sublease for the non-payment of rent. The complainant filed an application for injunctive relief with the Tribunal to prevent Schiavello re-entering the premises. A Terms of Settlement was entered into, under which the sub lease was terminated, and the complainant was given a licence to occupy the premises for a further 4-month period and granted an option to acquire Shiavello's interest as lessee. The complainant did not exercise the option before the expiry date. The complainant filed an application seeking relief at the Tribunal and Schiavello sought to have the proceeding dismissed under section 75 of the VCAT Act. On 30 November 2018, the application was dismissed pursuant to section 75(1) of the VCAT Act and the complainant was ordered to vacate the premises. The complainant sought leave to appeal to the Supreme Court. The appeal was heard before Sifris J on 9 January 2019, who on 10 January 2019 made orders dismissing the appeal and delivered written reasons on 1 February 2019.
6. The complainant sought advice from Lennon Lawyers regarding an appeal against Sifris J's orders and on 7 February 2019 Mr Sandbach was requested to provide initial advice about a proposed appeal. On 21 February 2019, Lennon Lawyers formally instructed Mr Sandbach to prepare the proposed appeal.
7. Between 28 February 2019 and 8 May 2019 Lennon Lawyers sought updates from Mr Sandbach as follows:

On 28 February 2019 Ms Tuzon of Lennon Lawyers sought a further update from the Respondent:

Hi Alan, in the event that it does not appear that we will be in a position to lodge the Appeal documentation by, say, 4:00 pm today, can you please let us know....

The Respondent responded to Ms Tuzon's email that same day, stating that:

I can say with certainty that the documents will not be completed by today. I expect to finish on Fri but that will turn on how long I am tied up in court tomorrow...

By emails dated 7 & 12 March 2019, Mr Lopez provided two further updates to...the Complainant, to the effect that Lennon Lawyers were still waiting on the Respondent to finalise the documents for the Proposed Appeal. The Respondent was copied into this correspondence...

On 27 March 2019, an email exchange occurred between Lennon Lawyers and the Respondent in relation to the Proposed Appeal...:

(a) Respondent to Lennon Lawyers (at 1:47 pm):

Dear Maria

I doubt that I will be able to complete the papers before Thursday. Given the proximity of that date to 31st March do our clients wish to proceed with the appeal?

(b) Lennon Lawyers to the Respondent (at 3:33 pm):

Hi Alan,

Thank you for the update, which we have passed on to the clients. Notwithstanding the proximity of 31 March 2019, I confirm the clients certainly do wish to proceed with the Appeal.

Kindly therefore do your upmost to proceed with finalising the Appeal documentation for filing and serving as soon as possible.

(c) Respondent to Lennon Lawyers (at 3:35 pm):

Thanks Maria. Will do.

Best wishes

Also on 27 March 2019, the Respondent emailed the Practice Manager at Lennon Lawyers in relation to a separate and unrelated matter. Mr Lennon, the principal of Lennon Lawyers, was copied into this email. The email advised the Practice Manager and Mr Lennon of his intention to cease legal practice on 15 April 2019. This correspondence:

(a) stated:

Dear Emma,

I must again apologise in progressing this matter. I am not able to give the commitment you seek in light of my obligations in [redacted] and (depending on Maria's response to my email of today Marc & Adam too).

I am able to commit to providing the St of Cl by Wednesday next week, but ought to mention that I intend to cease practice on 15 April 2019. You may wish to have someone else draw the St of Cl given that I will not be available for further steps.

(b) provided no reason as to why the Respondent intended to cease practising by that date; and

(c) did not notify Lennon Lawyers that the Respondent would be unable to perform work on the Proposed Appeal after 15 April 2019...

By email dated 11 April 2019, Lennon Lawyers forwarded the Respondent an email from [the Complainant] dated 10 April 2019, stating:

"Dear Alan

Please see below email received from the client which is self explanatory.

At the risk of repeating myself (ourselves), you must get the documents ready as a matter of urgency.

Regards,

Pat Lennon"

From 15 April 2019, Lennon Lawyers offered to set the Respondent up in a spare office and provide dictation services in order to finalise the material for the Proposed Appeal.

On 15 April 2019, Lennon Lawyers emailed the Respondent and stated (in part):

"Hi Alan,

I refer to your telephone call with Maria this morning in relation to the above matters.

Given that both the clients and Pat [Lennon] are at the point of having conniptions due to the respective statuses of these matters, if it would assist you in completing the documentation sooner, we can offer up our spare office and set you up with a dictaphone and typist...."

Later on 15 April 2019, Lennon Lawyers sent the Respondent a further email, as follows:

"I confirm, that the same offer applies for tomorrow (or indeed any business day next week) in respect of setting you up in our spare office with a dictaphone to also get the Marc & Adam Station Pier appeal documents transcribed."

At 4:42 pm on 15 April 2019, the Respondent emailed Lennon Lawyers as follows:

"Thanks Adam. I expect to finish Marc & Adam tonight and will call tomorrow to dictate it over the phone again."[18]

In the premises, there was sufficient time between 21 February 2019 and 15 April 2019 for the Respondent to draw the papers for the Proposed Appeal.

Notwithstanding the above, the Respondent did not do either of the following:

(a) complete the papers for the Proposed Appeal by 15 April 2019; or

(b) advise Lennon Lawyers that he was unable to prepare the papers for the Proposed Appeal and return the brief.

Briefing new Counsel for the Proposed Appeal would have presented considerable difficulties for Lennon Lawyers and the Complainant, given:

...

(b) the time sensitive nature of the Proposed Appeal; and

(c) the potential costs consequences of appointing new Counsel.

...

The delay and failure to finalise the materials for the Proposed Appeal caused the Complainant considerable distress. The Respondent did not, when he was retained on 21 February 2019 or at any other time, advise that he did not have the capacity to draw the materials for the Proposed Appeal, so that Lennon Lawyers could advise the Complainant and obtain further instructions in relation to the Proposed Appeal.

Accordingly, the conduct at paragraphs 25 to 46[19] constitutes unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law, being conduct that involves a failure to reach or maintain a reasonable standard of competence and diligence.[20]

1. In accordance with Mr Sandbach's plea and the summary I am comfortably satisfied to find the charge of unsatisfactory professional conduct proven. There are four instances of Mr Sandbach communicating his intention to finish the work by a particular date and not doing so. The conduct fell short of the standard of competence and diligence the public expects of a reasonably competent lawyer and constitutes unsatisfactory professional conduct.

1. Section 297(1)(a) of the Uniform Law provides professional misconduct includes unsatisfactory professional conduct of a lawyer where the conduct involves a substantial or consistent failure to maintain a reasonable standard of competence and diligence.[21]
2. This charge relates to Mr Sandbach's conduct from 15 April 2019 to 27 May 2019. From 11pm on 15 April 2019 Mr Sandbach was not entitled to engage in legal practice. Despite not being entitled to practice, Mr Sandbach repeatedly assured Lennon Lawyers that he was engaged in drawing the appeal papers. His communication with Lennon Lawyers was as follows:

On 23 April 2019, Lennon Lawyers emailed...the Complainant. The Respondent was copied into this email, which stated:

"Further to the below, I confirm Alan Sandbach has advised that the concluded draft appeal documents will be dictated tomorrow.

We will provide you with the draft once it is to hand."

• On 24 April 2019, the Respondent had a telephone discussion with Ms Tuzon of Lennon Lawyers. Ms Tuzon's file note...accurately records the conversation and states:

"File note: P/I - Alan Sandbach

(a) Received a call from Alan Sandbach - he thought I had rang him this morning and said that he was returning my call

(b) I confirmed that I hadn't and that I [sic] must have been an old voice message from last week

(c) I took the opportunity to confirm that he will call at 4:30pm today to dictate the Marc & Adam and he said that he is presently working on it but that 4:30pm now seems to be "a bit optimistic" but that he will let us know closer to the time."

• Later on 24 April 2019 the Respondent emailed Lennon Lawyers and stated:

"Dear Adam,

As I foreshadowed to Maria I'm not in a position to dictate this pm. My best estimate is mid-afternoon on Fri. Hope that you have a very good Anzac Day. Best wishes,

Alan"

There was a chain of emails between the Respondent and Lennon Lawyers spanning the period of 1 May 2019 to 8 May 2019 (subject line: Marc & Adam), whereby the Respondent stated:

(a) on 1 May 2019:

"Still going. Will be in touch tomorrow..."

(b) Then on 2 May 2019:

"....still going! Unfortunately tomorrow will be no good as I am attending a funeral out of town. Will call on Mon."

(c) Then on 6 May 2019:

"....Matters have arisen which make it likely that I will dictate the material mid- afternoon on Wednesday."

There was a chain of emails between the Respondent and Lennon Lawyers spanning the period of 16 May 2019 to 17 May 2019 (subject line: Marc & Adam) whereby the Respondent stated (on 16 May 2019):

"Dear Adam,

Now looks like Monday.

Best wishes"[22]

The Respondent did not draw any documents for the Proposed Appeal at any time.

The Proposed Appeal was never lodged on behalf of the Complainant by Lennon Lawyers.

The Complainant terminated its retainer with Lennon Lawyers on or about 27 May 2019.

Each of the communications alleged in paragraphs [50] to [53] above constituted representations by the Respondent that he was continuing to work on the papers for the Proposed Appeal (the Positive Representations).

At all material times, the Respondent was aware that he was not entitled to engage in legal practice from 11pm on 15 April 2019.

...

(the Positive Representations...are...referred to as the Representations).

The Representations, and each of them, when viewed objectively, created a reasonable expectation on the part of Lennon Lawyers (and the Complainant) that the Respondent was continuing to draw the documents for the Proposed Appeal and was advanced in the process.

Lennon Lawyers and the Complainant did in fact believe that from 15 April 2019 to about 27 May 2019, the Respondent was continuing to draw the documents for the Proposed Appeal and was advanced in the process.

In the premises, the Representations, and each of them:

(a) were false or misleading as to the true state of affairs; and

The conduct at paragraphs [48]-[62(a)][23] above constitutes professional misconduct within the meaning of section 297(1)(a) of the Uniform Law, being conduct that involves a substantial failure to reach or maintain a reasonable standard of competence and diligence.[24]

1. In acting as outlined above, it is alleged Mr Sandbach made false and misleading representations to his instructing solicitors which constituted a substantial and consistent failure to maintain a reasonable standard of competence and diligence.
2. Given Mr Sandbach's plea and the summary, I am comfortably satisfied the charge of professional misconduct is made out. Given the importance of full disclosure and scrupulousness with regards to the self-reporting of, and abiding by, any restriction on the ability to practice law, I am satisfied Mr Sandbach's failure to do so and the false and misleading representations he made constitute a substantial failure to maintain a reasonable standard of competence and diligence.

1. The parties jointly sought the following penalties:
   • On Charge 1, the Tribunal on Mr Sandbach's plea of guilty to unsatisfactory professional conduct, reprimand Mr Sandbach.
   • On Charge 3, the Tribunal on Mr Sandbach's plea of guilty to professional misconduct, orders that Mr Sandbach is prohibited from applying for an Australian practising certificate before the expiration of one year from the date of the order.[25]
2. The Undertaking dated 12 December 2024 which Mr Sandbach signed provides:

Mr Sandbach undertakes to the Victorian Legal Services Board and the Victorian Legal Services Commissioner that he will, from the date of this Undertaking, not at any time apply for a [Practising Certificate] in any Australian State or Territory.[26]

1. The facts constituting Charge 1 and Charge 3 are interwoven and occurred during a time continuum from February to May 2019. The significance of 15 April 2019 is such that from that date the conduct was more serious in characterisation as Mr Sandbach did not have an entitlement to practice law.

1. The VLSC submitted the decision as to penalty is a matter for the Tribunal.[27] Referencing Victorian Legal Services Commission v Flynn,[28] it submitted the principles when there is an agreed position on penalty are:

a) The Tribunal's role is to decide the appropriate characterisation of the conduct and the penalties to be imposed. An agreement by the parties does not displace the Tribunal's duty. > > b) It is appropriate for parties to make agreed penalty submissions and there is a public policy benefit for such submissions to be accepted where appropriate. > > c) It is desirable for the Tribunal to adopt the agreed penalty submissions where it is an appropriate outcome.[29]

2. The VLSC submitted the purposes of penalty orders in disciplinary proceedings are well settled, and include protection of the public, protection of the reputation of the legal profession, and the maintenance of professional standards. General and specific deterrence are also relevant.[30]
3. The VLSC accepted Mr Sandbach had shown some insight by reason of his entry into the agreement and giving of the Undertaking. The VLSC submitted the Undertaking demonstrates Mr Sandbach's insight into the seriousness of his conduct, deals with the issue of protection of the public and substantially deals with the issue of specific deterrence.[31]
4. The VLSC submitted that Mr Sandbach's previous disciplinary and regulatory history is unattractive, but did not make the proposed orders, particularly given the Undertaking, inappropriate. The VLSC submitted that the charges in this matter were not of the character that required orders for his removal from the roll.[32]
5. In relation to the Charge 1, it was submitted a reprimand serves to effect general deterrence.
6. In relation to Charge 3, it was submitted a restriction from practice for a year, despite having no practical effect as Mr Sandbach had undertaken to not apply to practice again, meets the need for specific deterrence and takes into account Mr Sandbach's disciplinary history.[33]

1. In support of the agreement, Mr Sandbach drew the Tribunal's attention to the High Court decision of Commonwealth v Director, Fair Work Building Industry Inspectorate,[34] in which the majority held:

...Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to facts and consequences, and that the penalty which the parties propose is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding settlement or a scheme of arrangement.[35]

1. Mr Sandbach also drew the Tribunal's attention to his early acceptance of wrongdoing, initially at the level of unsatisfactory conduct, rather than the now accepted level of professional misconduct in relation to the period after 15 April 2019. Mr Sandbach referred to the letter from his solicitors, dated 16 March 2023, in which he accepted that '...by making representations that he was drafting or would draft appeal papers in this matter, he engaged in unsatisfactory conduct.'[36]

1. I note the summary indicates the delay and failure to finalise the grounds of appeal caused the complainant considerable distress. Mr Sandbach did not indicate he did not have the capacity to draw the appeal grounds so that Lennons Lawyers could re-brief.
2. As indicated, it is the Tribunal's role to determine the characterisation of allegations and the applicable penalty. This role cannot be supplanted by agreement of the parties. Judge Hampel noted it is appropriate for parties to put an agreed position and, if the Tribunal is satisfied the penalty is appropriate, it should not be lightly departed from.[37]
3. I accept Mr Sandbach's submission referencing the High Court case of Commonwealth v Director, Fair Work Building Industry Inspectorate.
4. I also note Mr Sandbach's indication, through his solicitors on 16 March 2023, of his plea of guilty to the charge of unsatisfactory professional conduct.
5. I note Mr Sandbach's prior disciplinary matters are of a different character to this conduct, which involves delay and failure to do the work he was briefed to do.
6. The applicable principles when considering penalties in legal professional disciplinary matters are set out in Victorian Legal Services Commissioner v OAG[38] and adopted in Victorian Legal Services Commissioner v Flynn[39] as follows:

The primary aim of any sanction is to protect the public and the reputation of the profession. The focus of the Tribunal is therefore protective and not punitive. However, specific deterrence and general deterrence, which serve to protect the public, depend upon sanctions having a punitive effect.

With that protective focus in mind, the Tribunal considers a range of factors in determining penalty including the nature and seriousness of the conduct, any plea of guilty, the relative importance in the case of specific deterrence and general deterrence, past disciplinary history, evidence of character, and other mitigating factors such as medical or psychological evidence.

Penalties imposed in other cases may be a useful guide to proportionality, and parity is important, but every case necessarily involves a different combination of factors. Each case is different.

1. I am sufficiently persuaded on the facts alleged that the proposed penalty of a reprimand is an appropriate penalty.
2. In my view, the purposes of specific and general deterrence are met through a reprimand.
3. A reprimand is a strong sanction. Judge Hampel stated it is '...a powerful statement to the practitioner of how far below the standard of their profession they have fallen by their misconduct. It is in that sense a more personal sanction...A reprimand goes to their personal integrity.'[41]
4. In Victorian Legal Services Commissioner v Defteros,[42] a reprimand was described as carrying '...a sting for any practitioner who values his or her good name, since it is a statement of denunciation which appears on his registration record, which is available for all to see.'[43]
5. I accept a reprimand is a substantial penalty and meets the purposes of specific and general deterrence.

1. The charge of professional misconduct is constituted by Mr Sandbach's positive representations to Lennon Lawyers that he was continuing to work on the appeal grounds, and representations he was advanced in the process. Lennon Lawyers and the complainant believed this was the case when in fact it was not, and Mr Sandbach was not entitled to engage in legal practice from 11pm on 15 April 2019. As noted above, the VLSC seeks, and Mr Sandbach consents to, an order that he is prohibited from applying for an Australian practising certificate before the expiration of one year from the date of any order.
2. An aggravating feature of the conduct is that it was in breach of Judge Hampel's order dated 27 March 2019 reinstating the period of four years disqualifying Mr Sandbach from practice. That Mr Sandbach continued to practice for a period of over a month following these orders coming into effect was in blatant disregard of them.[44] He had obtained a stay and appealed the decision of Justice Quigley and was well aware of the impending date. The summary of conduct in the amended application for order at [36] refers to Mr Sandbach stating in an email dated 27 March 2019 to the Practice Manager and cc'd to firm's Principal Mr Lennon he intends 'to cease practice on 15 April 2019'. He did not advise the reason or advise that he would be unable to perform legal work after that date.
3. Mr Sandbach never drew the grounds for the appeal as instructed. The consequence of this was that the proposed appeal was never lodged on behalf of the complainant by Lennon Lawyers.
4. I accept Mr Sandbach's submission referencing the High Court case of Commonwealth v Director, Fair Work Building Industry Inspectorate and I am sufficiently persuaded on the facts alleged that the proposed penalty of a period of 12 months disqualification for practice is an appropriate penalty.
5. As Maxwell P stated in Quinn v Law Institute of Victoria Ltd,[45] '...the Tribunal's disciplinary function is primarily protective...' and '...where there is a choice of sanctions, it is to be expected that the Tribunal will choose that sanction which maximises the protection of the public.'[46]
6. An unusual aspect of this case is that Mr Sandbach has signed an Undertaking not to apply for a practising certificate in future in any Australian state or territory. In submissions, the VLSC submit the restriction from practice for one year, despite it having no practical effect on Mr Sandbach due to the Undertaking, meets the need for specific deterrence and takes into account Mr Sandbach's previous disciplinary history.[47]
7. Mr Sandbach has not produced any materials to the Tribunal regarding his character or personal circumstances. I have detailed above his history of disciplinary matters.
8. I am satisfied his conduct was false and misleading. In disregard of orders that he was not entitled to practice, his conduct constituted a significant departure or substantial failure to maintain a reasonable standard of competence and diligence.
9. I am satisfied the protection of the community is achieved by the period of disqualification from practice, particularly in the context of the Undertaking Mr Sandbach has made not to apply for a practising certificate in the future.
10. In terms of specific deterrence, I take into account Mr Sandbach's plea of guilty to the charge and his ownership of his conduct as evidenced by his agreement to restriction from practice for a year and signing of the Undertaking.
11. In terms of general deterrence, any practitioner reading this decision will be deterred from similar conduct and appreciate the seriousness of practising when disqualified.

1. With respect to costs, section 303(1) of the Uniform Law 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. The VLSC has made an application for costs and Mr Sandbach has consented. It appears no exceptional circumstances are applicable.
2. I make the order for costs as agreed by the parties that the Mr Sandbach pay the VLSC's costs of the proceeding, including reserved costs, to be assessed by the Costs Court in default of agreement on the standard basis at 80% of the Supreme Court scale.

[1] Affidavit of Emily Pompetti dated 18 December 2024 [6].

[2] The 'Board' refers to the Victorian Legal Services Board.

[3] As delegate of the Victorian Legal Services Board.

[4] Notification of Final Determination from the Victorian Bar Council to the Respondent dated 13 November 2016.

[5] Order of the Tribunal in proceeding J119/2018 dated 21 December 2018.

[6] Order of the Tribunal in proceeding J119/2018 dated 27 March 2019, Order '5'.

[7] Order of the Tribunal in proceeding J119/2018 dated 27 March 2019, Notation of the Tribunal 'a' - 'b'.

[8] Order of the Tribunal in proceeding J119/2018 dated 27 March 2019, Order 5 - 6.

[9] Victorian Legal Services Commissioner v Sandbach (Legal Practice) [2022] VCAT 1477.

[10] Sandbach v Victorian Legal Services Commissioner [2024] VSCA 143.

[11] Application to VCAT dated 19 June 2023.

[12] Undertaking from Alan Walter Sandbach in favour of Victorian Legal Services Board and the Victorian Legal Services Commissioner dated 12 December 2024.

[13] Section 6 of the Uniform Law defines designated tribunal as (a) a court or tribunal specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used; or (b) a member or officer so specified or described of such a court or Tribunal. Section 10(3) of the Legal Profession Uniform Law Application Act 2014 (Vic) provides that VCAT is the designated Tribunal.

[14] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[15] Pharmacy Board of Australia v Hopkinson (Review and Regulation) [2018] VCAT 982 [5].

[16] Applicant's submissions dated 21 January 2025 [21] (Applicant's submissions).

[17] Applicant's submissions [15] - [16].

[18] Amended Application for Order (undated) [32] - [41] (emphasis in original).

[19] From the Amended Application for Order (undated).

[20] Amended Application for Order (undated) [42] - [47] (emphasis in original).

[22] Amended Application for Order (undated) [49] - [53] (emphasis in original).

[23] From the Amended Application for Order (undated).

[24] Amended Application for Order (undated) [54] - [64] (emphasis in original).

[25] Proposed Consent Orders dated 18 December 2024 [2] - [3].

[26] Undertaking from Alan Walter Sandbach in favour of Victorian Legal Services Board and the Victorian Legal Services Commissioner dated 12 December 2024 [J].

[28] (Legal Practice) [2023] VCAT 253 (Flynn).

[31] Applicant's submissions [24] - [25].

[34] [2015] HCA 46; (2015) 258 CLR 482 (Commonwealth v Director, Fair Work Building Industry Inspectorate).

[35] Commonwealth v Director, Fair Work Building Industry Inspectorate [58].

[36] Annexure 40 to Amended Application for Order - Letter from Goldsmiths Lawyers to the Applicant dated 16 March 2023, TB 427.

[37] Victorian Legal Services Commissioner v Hyatt (Legal Practice) [2018] VCAT 1498 [25] (Hyatt).

[38] (Legal Practice) (Corrected) [2021] VCAT 549 ('VLSC v OAG').

[39] (Legal Practice) [2023] VCAT 253 ('Flynn').

[40] Flynn [42] citing VLSC v OAG [35] - [37].

[42] (Legal Practice) (Corrected) [2021] VCAT 906 (Defteros).

[44] The allegations cover the period until 27 May 2019. Judge Hampel's orders, whilst made in March, only came into effect on 15 April. So, the period from 15 April to 27 May is the relevant period of just over a month.

[45] [2007] VSCA 122 (Quinn).