1. The Tribunal finds the respondent guilty of professional misconduct in respect of the conduct the subject of charge 1.

1. The Tribunal finds the respondent guilty of professional misconduct in respect of the conduct the subject of charge 2.

(a) the respondent has materially breached order 2(c) of the Orders of the Court of Appeal in Matthew James Stirling v Legal Services Commissioner (S APCI 2012 0076) (the Court Orders) because during the suspended order period he has engaged in or committed acts of professional misconduct namely:

1. professional misconduct in respect of the conduct the subject of charge 1; and

1. professional misconduct in respect of the conduct the subject of charge 2;

(b) therefore the suspended order period as defined in order 2(a) of the Court Orders is revoked.

(a) the respondent's practising certificate is cancelled on 1 June 2018;

(b) in respect of finding 3 and in accordance with order 2(f) of the Court Orders, the respondent not be granted a practising certificate for 2 years from the date it was cancelled;

(c) in respect of the matters in findings 1 and 2, the respondent not be granted a practising certificate for a further 4 months after the conclusion of the period referred to in sub-paragraph (b) of this order.

1. The respondent is to pay the applicant's costs of this proceeding, as agreed in the amount of $13,927.06.

1. Matthew Stirling, a barrister, pleaded guilty to two charges of professional misconduct. These are the reasons for the penalty that the Tribunal imposed upon him by an order made on 7 March 2018.

1. Mr Stirling is a skilful barrister whose career has been blighted by a long-term gambling problem. In 2012 his failure to file income tax returns and to fulfil other taxation obligations led the Victorian Legal Services Commissioner to take a disciplinary proceeding against him. The outcome of that proceeding was the background to one of the charges which were the subject of this 2017 proceeding.

1. The hearing of the 2012 proceeding resulted in the Tribunal suspending Mr Stirling from practising for three years. Mr Stirling appealed. On 2 October 2013 the Court of Appeal allowed his appeal, set aside the Tribunal's order for suspension, and instead imposed a head suspension period of 30 months, but suspended 24 months of that head sentence for a period of five years, and imposed conditions upon his local practising certificate during the suspended order period. One of those conditions required him to instruct his clerk to pay at least 50% of his gross fee receipts into a separate bank account and prohibited him from disbursing the funds in that account otherwise than to the Australian Taxation Office. Another was that he must not, during the five year suspended order period, engage in or commit any act of professional misconduct or unsatisfactory professional conduct.

1. So far as they are relevant to the charges laid in this 2017 proceeding, the Court of Appeal's orders were:

1. Orders 4 and 5 made by the Victorian Civil and Administrative Tribunal ("the Tribunal") on 28 March 2012 be set aside and lieu thereof:

1. On Charge 1, pursuant to s 4.4.17(b) of the Legal Profession Act (2004) ("the Act") the local practising certificate of the Appellant be suspended for a period of 30 months to commence on 1 December 2013 ("the head suspension period").

1. 24 months of the head sentence be wholly suspended for a period of 5 years ("suspended order period"). During the suspended order period, a local practising certificate may be granted to the Appellant.

1. During the suspended order period, the Appellant shall not engage in or commit any act of professional misconduct or unsatisfactory professional conduct.

1. Pursuant to s 4.4.17(d) and 4.4.19 of the Act the following conditions

("conditions") be imposed from the date of this order and on each of the Appellant's local practising certificates during the suspended order period:

1. The Appellant must set up and maintain a separate bank account and instruct his clerk when banking any fees received on his behalf to remit not less than 50% of his gross fee receipts, after clerk's fees and practice deductions made directly by his clerk, into that account. The creation of the account is to be done within 7 days of this order. Without limiting the Appellant's obligation to pay moneys to the Australian Taxation Office, the practitioner must not disburse funds from this account other than to the Australian Taxation Office or as it directs, save with the consent of the Legal Services Commissioner.

1. Pursuant to s 4.4.17(d) and 4.4.19 of the Act the following further conditions ("conditions") be imposed from the date of this order and on the first of the Appellant's local practising certificates to be issued during the suspended order period.

1. In the event that the Appellant fails to comply with any condition set out in order 2(c), 2(d) or 2(e) during the suspended order period, the Legal Services Commissioner may make an application to the Tribunal to revoke the suspended order period. In the event that the Tribunal is satisfied that a material breach of this order has occurred during the suspended order period, order 2(b) is vacated and the Appellant's practising certificate shall be cancelled and a local practising certificate shall not be granted to the Appellant before the expiry of the head suspension period or that period and any further period from the date of the Tribunal's finding of breach of this order that the Tribunal may determine, having regard to the circumstances of the breach of this order.

1. A consequence of the Tribunal being satisfied that a material breach of those orders had occurred would be, pursuant to order 2(f), that there was to be no longer a suspension of the head sentence and that there must be a cancellation of Mr Stirling's practising certificate.

1. As well as pleading guilty to the two charges of professional misconduct laid in this proceeding, Mr Stirling has admitted that by engaging in professional misconduct as described in those two charges he has materially breached order 2(c) of the Court of Appeal's orders. I was satisfied that there has been a material breach of those orders.

1. The Legal Profession Uniform Law 2014 ("the Uniform Law"), pursuant to which the Victorian Legal Services Commissioner had brought this proceeding, defines "professional misconduct" in s 297 as follows:

(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 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 in 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 the Amended Application for Orders in this proceeding the Legal Services Commissioner, before setting out the charges, set out 35 numbered paragraphs of alleged facts which included particulars of the charges. The Legal Services Commissioner and Mr Stirling, through their respective Counsel, had agreed in writing that they sought that the Tribunal should determine the proceeding on the basis that the matters set out in those 35 paragraphs are proved. I acted accordingly and regarded the allegations made in those paragraphs as having been proved.

1. I propose to deal with Charge 2 first, because it was, to my mind, by far the more serious of the charges and it related directly to the Court of Appeal's orders.

1. I summarise the facts, as set out in paragraphs in the Amended Application for Orders, that gave rise to Charge 2 and have been proved as stated above.

1. In 2014 and 2015 a client, Craig Stewart, retained Mr Stirling to represent him in a Supreme Court commercial civil proceeding.

1. Mr Stirling rendered to Mr Stewart an account for the legal services he had provided. He did not render the account through his clerk. He rendered it directly to Mr Stewart. He requested Mr Stewart to pay the account by making payment to an account that Mr Stirling had with Tabcorp Wagering (Vic) Pty Ltd ("the Tabcorp account") for funding his gambling or by paying him in cash. In accordance with that request, Mr Stewart made payments totalling about $45,000.00 either to the Tabcorp account or in cash. Mr Stirling did not deliver the payments to his clerk.

1. Rule 188 of the Victorian Bar Rules of Conduct ("the Bar Rules"), so far as it is relevant to Charge 2, provides:

(a) This Rules applies to all barristers who employ or engage a clerk approved under section 177 of the Legal Practice Act 1998.

(b) A barrister must render all accounts for his or her fees through the clerk.

(d) Subject to sub-rule (e) below, a barrister must not request or receive any payment for fees (by cash, cheque, electronically or otherwise) unless:

(i) The clerk has rendered a tax invoice for the fees; and

(ii) The payment for the fees is made to the barrister by the clerk.

(e) A barrister may receive a payment offered for or on account of his or her fees (by cash, cheque, electronically or otherwise) but he or she must forthwith deliver such payment to the clerk to be deposited into the clerk's appropriate account, after which it may be paid to the barrister only after the clerk has rendered a tax invoice for the fees in accordance with the sub rule (d) above.

1. At all material times Mr Stirling engaged an approved clerk. The clerk did not render a tax invoice for the fees claimed in the account that Mr Stirling sent to Mr Stewart.

1. Mr Stirling was aware of rule 188. He knew, when he received payments from Mr Stewart, that he was required to deliver them to his clerk. He did not. He knew that by his conduct in rendering his account directly to the client, by receiving the client's payment and by not delivering the payment to his clerk, he would evade the effect of order 2(d)(iv) of the Court of Appeal's orders for the setting up and maintenance of a separate bank account into which his clerk was to remit at least 50% of his gross fees received, appropriated for disbursement to the Australian Taxation Office.

Professional misconduct within the meaning of section 297(1)(b) of the Uniform Law for engaging in the following conduct that showed he was not a fit and proper person to engage in legal practice:

(a) in rendering the account to Craig Stewart; and

(b) deliberately or alternatively recklessly breaching rule 188(b) of the Rules;

The particulars relied upon are those set out in paragraphs 1 to 9, 11, and 17 to 20.

(c) in requesting and receiving from Craig Stewart payments of $45,000.00 for legal fees in cash and deposits to the Tabcorp account, which he did not forthwith deliver for deposit into his clerk's account; and

(d) deliberately or alternatively recklessly breaching rules 188(d) and (e) of the Rules:

The particulars relied upon are those set out in paragraphs 1 to 11 and 21 to 27.

(i) avoiding having fees received for legal services being paid to his clerk, Michael Green;

(ii) avoiding having part of those fees remitted to the account referred to in order 2(d)(iv) of the Orders in accordance with that order;

(iii) evading or alternatively avoiding the effect of order 2(d)(iv) of the Orders;

(iv) retaining the full amount of those fees for his personal benefit.

The particulars relied upon are those set out in paragraphs 1 to 11 and 21 to 29.

1. The Amended Application for Orders set out a third charge, Charge 3, as an alternative to Charge 2. Mr Stirling's plea of guilty to Charge 2 meant that Charge 3 was not pursued.

1. The admitted facts that gave rise to Charge 2 amply proved the charge of professional misconduct within the meaning of s 297(1)(b) of the Uniform Law. Mr Stirling deliberately undertook a ruse designed to evade the Court of Appeal's orders. Carrying out the ruse not only breached the Bar Rules, as Mr Stirling knew, but was a flagrant disregard of those orders. It may have been driven by financial desperation, but it was disgraceful. It showed that Mr Stirling was not a fit and proper person to engage in legal practice.

1. I also summarise the facts, as set out in paragraphs of the Amended Application for Orders, that give rise to Charge 1 and have been proved as stated above.

1. In or about January 2015, when Mr Stewart was his client, Mr Stirling told Mr Stewart that he was having trouble meeting his taxation obligations and asked Mr Stewart to lend him $23,000.00, saying that he would repay it in late February 2015.

1. In early February 2015 Mr Stewart gave to Mr Stirling a cheque for $23,000.00 drawn upon the account of a company of which Mr Stewart was a director. Mr Stirling then paid, or caused to be paid, $23,000.00 to the Australian Taxation Office.

1. Mr Stirling did not repay Mr Stewart or his company the $23,000.00 by late February 2015 and did not repay it until about 15 September 2016.

72(a) A barrister must not in any dealings with a client:

(i) allow the interests of the barrister or a member of the barrister's immediate family to conflict with those of the client;

1. Mr Stirling has admitted that by requesting the loan from Mr Stewart, receiving the loan and failing to repay the loan until 15 September 2016 he created a conflict between his interests and the interest of Mr Stewart, and breached rule 72(a)(i) of the Bar Rules, either deliberately or recklessly.

Professional misconduct within the meaning of section 297(1)(a) of the Uniform Law for engaging in the following conduct that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence:

(a) requesting, receiving, and failing to repay until about 15 September 2016 the loan;

(b) creating a conflict between his and Craig Stewart's interests;

(c) deliberately or recklessly breaching rule 72(a)(i) of the Rules.

The particulars relied upon are those set out in paragraphs 1 to 8 and 11 to 16.

1. Mr Stirling has pleaded guilty to Charge 1, thereby acknowledging that his conduct concerning the loan from Mr Stewart or from his company was professional misconduct within the meaning of the Uniform Law that involved a substantial failure to reach or maintain a reasonable standard of competence and diligence. On the scale of degrees of professional misconduct it was, in my view, low. The vice in it was Mr Stirling's failure to maintain an arms-length distance between himself and his client: a distance which, as every legal practitioner should know, should be kept so that the practitioner can advise and otherwise act objectively. Mr Stirling's failure created a potential, but not actual, conflict of interests. The Legal Services Commissioner did not allege that there was any actual conflict that adversely affected Mr Stewart's interests or affected Mr Stirling's discharge of his professional duties to Mr Stewart.

1. Mr Gillies QC, who with Mr O'Bryan of Counsel appeared for Mr Stirling at the hearing, tendered five documents and I received them in evidence. Three were medical reports. The other two were evidence of Mr Stirling's professional reputation and personal qualities.

1. Mr Alain Rose, a general practitioner, reported that he had been consulted by Mr Stirling since 2013, was aware of his long term gambling problem which had led to the breakdown of his marriage, had treated him for depression and anxiety and had referred him to Dr Maloney, a psychiatrist. Dr Michael Maloney, the psychiatrist, reported that Mr Stirling had marked obsessive-compulsive traits which made it difficult for him to meet the needs of other people without losing sight of his own, and that regular therapy was desirable. Dr Mathew Barth, a psychologist, reported that Mr Stirling had attended him on seven occasions between May 2012 and June 2016, had been compliant with treatment interventions, was taking prescribed antidepressant medication which had assisted him, but required ongoing psychological treatment.

1. His Honour Judge O'Neill of the County Court of Victoria's written character reference dated 5 March 2018 stated that he had known Mr Stirling since they started the Victorian Bar Readers' Course together in 1991, had attended Mr Stirling's wedding and saw him socially every few months, and had experienced Mr Stirling as an advocate in cases before him. His Honour described Mr Stirling as a brilliant and powerful advocate and skilled cross-examiner, held in high regard by Judges of the County Court and by barristers of the commercial Bar. His Honour also reported that the breakdown of Mr Stirling's marriage in 2013 and its impact upon his two children had distressed him greatly.

1. Mr Michael Thomson QC's written character reference dated 2 March 2018 stated that he too had met Mr Stirling during the Bar Readers' Course and had been a friend of his ever since. He said that Mr Stirling enjoyed a reputation amongst his peers at the Bar as a sensible, highly competent and trustworthy opponent, and was a devoted father to his two children. He thought that Mr Stirling had come to accept that he had had an addiction to gambling and had psychiatric issues that needed to be dealt with.

1. Mr Stirling gave evidence at the hearing. He told me that Mr Maloney had referred him to a psychologist, Ms Hall, and he intended to act upon the referral by seeing Ms Hall. He had been able to stop gambling for several months in 2016 but had come to accept that it was an addiction which he had to confront. He accepted that his conduct that was the subject of the present charges had been dishonest and he was ashamed of it. He made a remark, during his evidence, which demonstrated to me that he had gained an insight into the consequences of his conduct. The remark was that a lawyer's best asset is his reputation.

1. Mr Stirling told me of ways in which he had assisted law students. He had had between 20 and 40 law students who had gained work experience in his chambers. He had been involved in law students' moots at universities.

1. As to the state of his practice, Mr Stirling told me that he had stopped accepting briefs in any new matters, but was still retained in 30 to 40 matters and in particular held a brief to appear in a County Court trial in early May of a proceeding in which he has long been involved. As for the future, he realises that he will not be able to practise for some time but intends to seek the advice of Legal Services Commissioner as to the extent to which he may be able to be employed as an in-house Counsel.

1. Because there has been a material breach of order 2(c) of the Court of Appeal's orders, in that Mr Stirling has committed acts of professional misconduct during the suspended order period that order 2(b) set, the Court of Appeal by order 2(f) has mandated two consequences. One is the cancellation of Mr Stirling's practising certificate. The other is that a practising certificate must not be granted before the expiration of two years (the original suspended order period) from the date of cancellation. I was required to, and did, make orders for the cancellation and for a prohibition for two years upon the granting of another practising certificate.

1. What remained to be determined was the date upon which the cancellation should occur and what additional penalty should be imposed.

1. Counsel for the Legal Services Commissioner and for Mr Stirling agreed in writing that the Tribunal should determine the proceeding on the basis that the matters set out in the 35 paragraphs of the Amended Application for Orders had been proved, and that they would jointly seek orders from the Tribunal as set out in the agreement while acknowledging that the question of what were appropriate orders was ultimately a matter for the Tribunal. The orders that they jointly proposed were for cancellation of the practising certificate, for the prohibition upon the granting of any further practising certificate for two years, for a prohibition upon the granting of the further practising certificate for "a further 3 to 6 months", and an order that Mr Stirling pay the Legal Services Commissioner's costs of the proceeding. They handed me a draft of proposed orders.

1. As the substantive outcome of the proceeding had largely been mandated by the Court of Appeal in its order 2(f), as s 303(1) of the Uniform Law required me to make the order for costs unless exceptional circumstances (but there were none) existed, and as Counsel did not agree upon the two remaining matters to be determined - that date of cancellation and the further period of granting of a

practising certificate - the extent to which the Tribunal may accept the parties' agreement as to facts and as to penalty is an issue of smaller importance in this proceeding than it would be in other disciplinary proceedings. Nevertheless, as the High Court has confirmed,[1] the Tribunal may properly accept the parties' proposals as to penalty if they are appropriate in the circumstances. In my view they were appropriate.

1. The primary aim of any order imposing a penalty upon a legal practitioner is protective: protection of members of the public against professional misconduct.[2] This proceeding is not one which reflects a need to protect the public from dishonest or incompetent practitioners. Rather, it reflects a need to protect the reputation of the legal profession and the public confidence in the integrity of the legal profession.[3]

1. Nevertheless, any such order also has a punitive effect, and should be directed towards deterring members of the professional generally from engaging in similar misconduct, where that general deterrence is called for, and towards deterring this particular practitioner from repeating the misconduct or from engaging in other misconduct. I did not think that any general deterrence was called for. Charge 2 involved a state of affairs that other practitioners are unlikely to experience: a Court of Appeal order regulating their appropriation of fees and an opportunity to evade the order. Charge 1 involved a potential, not actual, conflict of interests.

1. As to the specific deterrence of Mr Stirling, it is relevant that Mr Stirling has demonstrated some insight into his behaviour and contrition for what he has done. He has been undergoing, and has expressed a willingness to continue to undergo, medical treatment and counselling. He should be given credit for his pleas of guilty and for his preparedness to go into the witness box, to express personally his contrition and to be subject to cross-examination.

1. The first issue I had to determine was the date on which cancellation of Mr Stirling's practising certificate should occur. Mr Gillies submitted that I should fix a date that was three months from the date of the hearing. Mr Over submitted that the cancellation should be immediate, alternatively that it should be one month from the date of the hearing. Mr Over did not submit that it was not open to me, in view of the Court of Appeal's order 2(f) to fix a future date as the date

of cancellation, and I considered that it was open to me to do that. I fixed the date as 1 June 2018, a little less than three months from the date of hearing. The fixing of that date allowed Mr Stirling time to wind up his present practice and, in particular, would allow him to continue to represent his client in the proceeding which will be tried in May. It avoided unnecessary inconvenience to Mr Stirling's clients and did not create any significate risk to other members of the public during that period.

1. The second issue I had to determine was what additional period of disqualification of Mr Stirling I should impose on top of the two year period that the Court of Appeal's orders had mandated. The parties proposed that I should impose a global penalty in respect of the two charges and that it should be in a range of three to six months, with Mr Gillies submitting that it should be at the low end of that range and with Mr Over submitting that it should be at the high end. Even though there was no logical connection between the two charges I accepted that a global penalty was appropriate. The Court of Appeal had mandated a global penalty, in part, for any breach of its orders, by prescribing a cancellation of the suspended order period for any further act of professional misconduct.

1. I ordered that Mr Stirling not be granted a practising certificate for a further four months after the conclusion of the cancelled suspended order period of two years. He is 55 years old. Resumption of his career as a barrister is going to be difficult enough after two years without the imposition of a lengthy further period of disqualification. Yet the imposition of a further period of disqualification was required to signify condemnation of the conduct that gave rise to Charge 2, and a much less severe disapproval of the conduct that gave rise to Charge 1.

1. The parties agreed that Mr Stirling should pay the costs of the proceeding in an amount of $13,927.06, I made that order.

[1] Commonwealth of Australia v Director, Fair Works Building Industry Inspectorate [2015] HCA 46.

[2] Cf. Stirling v Legal Services Commissioner [2013] VSCA 374 at [161].

[3] Hannebery v Legal Ombudsman [1998] VSCA 142 at [22].