Having found Mr Waters guilty of two charges of professional misconduct, the Tribunal orders as follows:

1. In relation to charge 1, professional misconduct under section 4.4.4(1)(a) of the Legal Profession Act 2004 for breaching rule 12.2 of the Professional Conduct and Practice Rules 2005, Mr Waters is reprimanded, and fined $1,500.
2. In relation to charge 3, misconduct at common law under section 4.4.3(1) of the Legal Profession Act 2004, Mr Waters is reprimanded and fined $7,500.
3. The fines in orders 1 and 2 are to be paid by the following instalments:

$3,000 by 28 October 2016

$3,000 by 9 January 2017

$3,000 by 28 April 2017.

1. Mr Waters is to pay the VLSC's costs in the agreed sum of $11,000. This is to be paid in the following instalments:

$3,666.66 by 28 October 2016

$3,666.67 by 9 January 2017

$3,666.67 by 28 April 2017.

1. Mr Waters is a 72 year old solicitor, who has been in practice for 27 years. There are no prior disciplinary findings against him. He is the principal of a firm which employs two other solicitors.
2. In July 2014, in circumstances where one solicitor had recently gone on maternity leave, and he himself was experiencing health problems, Mr Waters failed to advise a client in a family law proceeding of a time limited Calderbank offer made by the opposing party, prior to its expiry.
3. More seriously from a disciplinary perspective, when the applicant (VLSC) made enquiries following a complaint by the client, he falsely stated in a letter ten months after the event, that the client had been notified of the Calderbank offer. However it was not alleged that this false statement was made dishonestly.
4. The VLSC brought five disciplinary charges against Mr Waters under the Legal Profession Act 2004 (the Act).[1] Charges 4 and 5 were withdrawn and charge 2 falls away, as it is an alternative to charge 1, to which Mr Waters has pleaded guilty. Mr Waters has also pleaded guilty to charge 3. Those two charges are as follows:

The Respondent is guilty of professional misconduct within the meaning of section 4.4.4(a) of the Act in that he failed to communicate, or cause to be communicated, the existence and/or effect of the Calderbank Offer to his client prior to the expiry of that Calderbank Offer and thereby breached Rule 12.2 of the Professional Conduct and Practice Rules 2005.

The Respondent is guilty of professional misconduct as defined at common law for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable in that during the course of an investigation into his professional conduct by the Applicant, the Respondent provided the Applicant with a letter dated 1 June 2015 which contained representations (at paragraph 15(a), (d) and (e) above) by the Respondent to the Applicant that were false and/or misleading.

1. The parties provided a 'Joint Statement of Agreed Facts' as follows:
   1. Mr Waters was admitted to practice on 30 March 1989 and has been the Principal of Waters & Co Lawyers (Waters & Co) since 14 April 1997.
   2. On or about 15 January 2013 Waters & Co was engaged by [the wife] to act for her including in proceedings relating to family issues arising from the breakdown of her marriage to [the husband].
   3. Between 15 January 2014 to 4 July 2014, Ms Maria Pejoski-Aleksovski was the legal practitioner at Waters & Co who had the care and conduct of [the wife's] matter.
   4. On 4 July 2014, Ms Maria Pejoski-Aleksovski commenced maternity leave and Mr Waters took over the care and conduct of [the wife's] matter as the legal practitioner for Waters & Co and he had the care and conduct of the matter at all relevant times after 4 July 2014.
   5. By a letter dated 21 July 2014, [the husband's] solicitors, Morrison & Sawyers Solicitors, made an offer on behalf of [the husband] to [the wife] to settle the respective party's matrimonial property issues. In respect of the offer:

(a) a true copy of the letter from Morrison & Sawyers Solicitors dated 21 July 2014 is annexure 2 to the application;

(b) the offer was expressed as being an offer in accordance with the principles of Calderbank v Calderbank (1975) 3 all ER 333;

(c) the offer was open to be accepted until midday on 30 July 2014.

(herein after referred to as the Calderbank offer).

1. The Calderbank offer was received by Waters & Co by no later than 23 July 2014.
2. Mr Waters:

(a) did not communicate or cause to be communicated the existence and/or the effect of the Calderbank offer to [the wife] on or before midday on 30 July 2014 (being the date that the Calderbank offer expired);

(b) had a professional responsibility to have communicated or caused to be communicated the existence and/or effect of the Calderbank offer to [the wife] on or before midday on 30 July 2014.

1. The conduct of Mr Waters, referred to in paragraph 7, breached Rule 12.2 of the Professional Conduct and Practice Rules 2005.
2. [The wife] made a complaint about Mr Waters to the applicant about Mr Waters not having communicated the existence of the Calderbank offer to her until the trial of her matrimonial property issues in August 2014 at a time after the Calderbank offer had expired. The applicant characterised the complaint as a disciplinary complaint within the meaning of s. 4.2.3 of the Legal Profession Act 2004 and commenced an investigation of Mr Waters pursuant to Part 4.4.
3. The applicant sent Mr Waters a letter dated 13 April 2015 seeking an explanation [for] him not having communicated the Calderbank offer. The applicant's letter was sent to Mr Waters pursuant to section 4.4.11 (1)(a) and (b) of the Legal Profession Act 2004 a true copy of which is annexure 5 to the application.
4. By letter dated 1 June 2015 Mr Waters replied to the applicant's l3 April 2015 letter. The letter attached, among other things an email which Mr Waters purported to have sent to [the wife] on 26 July 2014. A true copy of Mr Waters' letter dated 1 June 2015 is annexure 6 to the application.
5. In his 1 June 2015 letter Mr Waters made the following statements which were false and misleading in that they were not correct:

(a) "It is denied that the offer was not communicated to [the wife] until the 18th August 2014. The Calder Bank [sic] offer was first raised in a telephone call on the 23rd July 2014 and followed up with an email on the 26th July 2014." [paragraph 15(a) of the application];

(b) "It would appear that the email was not charged for as the accounts staff were informed it was not received and was of a minimal amount.') [paragraph 15(d) of the application]

(c) "With regards to the telephone call [sic] the 23rd July 2014 this was not recorded in a file note. It is believed as the call of the 4th August 2014 was not charged for, the accounts clerk assumed the file note of the 4th August 2014 being undated was that of the 23rd July 2014 and charged for this accordingly." [paragraph 15( e) of the application]

(a) did not communicate or cause to be communicated the existence and/or effect of the Calderbank offer to [the wife] on or before midday on 30 July 2014;

(b) did not discuss the Calderbank offer with [the wife] by telephone on 23 July 2014;

(c) did not send [the wife] an email on 26 July 2014 about the Calderbank offer.

1. The parties admit that the annexures to the application are true copies of the documents they purport to be, and in and doing so make no representation about the truth of the matters in the documents.

CHARGE 1 - FAILING TO ADVISE CLIENT OF CALDERBANK OFFER

1. The husband's Calderbank offer provided a clear opportunity for Mr Waters' client to settle the matrimonial property issues approximately three weeks prior to the trial. Mr Waters' failure to inform her that the offer had been made deprived her of the opportunity to accept it while it was still open. It deprived her of the ability to understand the legal consequences of not accepting the offer.
2. The matter proceeded to a trial which commenced on 18 August 2014, and settled the following day. It was not said that the failure by Mr Waters to notify his client of the Calderbank offer definitely caused the matter not to settle earlier. Rather, she lost an opportunity to settle the matter at that time.
3. Mr Waters' client sought monetary compensation from him. He referred this to his professional indemnity insurer and a financial resolution was reached with his client at an early stage prior to the VLSC instituting this proceeding.
4. The failure to inform his client of the offer was clearly a breach of rule 12.2 of the Professional Conduct and Practise Rules 2005, which provides:

A practitioner must seek to assist the client to understand the issues in the case and the client's possible rights and obligations if the practitioner is instructed to give advice on any such matter, sufficiently to permit the client to give proper instructions, particularly in connection with any compromise of the case.

1. A contravention of this rule is capable of constituting unsatisfactory professional conduct or professional misconduct under section 4.4.4 of the Act. In this instance, it clearly comprises a substantial failure to reach a reasonable standard of competence and diligence, and hence is of sufficient seriousness to amount to professional misconduct, as that term is (inclusively) defined in section 4.4.3(1)(a).
2. Accordingly, charge 1 is proved. Mr Waters is guilty of professional misconduct.

CHARGE 3 - PROVIDING FALSE AND/OR MISLEADING REPRESENTATIONS TO THE VLSC

1. The LSC wrote to Mr Waters on 13 April 2015, requesting a response following receipt of the complaint from the client. In his initial response on 1 June 2015, Mr Waters incorrectly stated that he had in fact advised the client of the Calderbank offer by telephone on 23 July 2014, and by email on 26 July 2014. That is, prior to the expiry of the offer on 30 July 2014. He also provided some further explanation as to the basis on which he understood this to be the position.

1. The accuracy of this response was queried by the LSC, in the light of the evidence generally, in a letter to Mr Waters dated 5 June 2015. On 22 June 2015, Mr Waters sent a response which indicated that the client had not in fact been advised of the offer by telephone on 23 July 2014, nor by email on 26 July 2014. This response left a number of queries about the circumstances unresolved. A more expansive response (although still not providing a complete explanation) was ultimately given by the Legal Practitioners Liability Committee on behalf of Mr Waters on 30 October 2015. Following a 'Murray' letter on 8 February 2015 (giving Mr Waters a final opportunity to respond) charges were filed at VCAT by the VLSC on 21 April 2016.
2. Part of what makes the legal system strong is that the legal regulator can ascertain the facts when a complaint is made about a practitioner. This is so it can investigate the complaint fully, promptly and cost effectively.
3. Any occasion where false or misleading information of any substance is provided to the regulator is likely to be a serious breach of a practitioner's professional responsibilities. Mr Waters' response was false and/or misleading, and although not alleged to have been done knowingly or dishonestly, is nevertheless in that serious category.
4. Accordingly, this conduct comprises misconduct at common law as it would be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable[2]. Charge 3 is proved.

1. The parties put a joint position to the Tribunal on findings and penalty. Although the Tribunal exercises an independent discretion, as the High Court said in Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; Construction, Forestry, Mining and Energy Union v Director, Fair Work Building Inspectorate 2015 (HCA) 46 at 5893 and 109, it is appropriate to take agreed positions reached between the parties into account. I accept that the penalties agreed between the parties here are appropriate in this case.
2. In doing so, I take into account the following matters:
   • There are no prior matters against Mr Waters, arising from his 27 years as a registered practitioner in Victoria. Also, Mr Waters intends to cease to be the proprietor of a practice within a period of months. He has suffered poor health, and that did appear to contribute to his initial error in this case
   • Mr Waters has pleaded guilty, and done so at a relatively early stage.
   • Mr Waters promptly provided information which corrected some of the statements he made in his letter of 1 June 2014 (although not fully explaining all the circumstances).
   • The penalty imposed is not inconsistent with other more or less comparable decisions. Of course, each case turns on its own particular facts.
   • Specific deterrence is not a major factor here, given the circumstances of the initial error the subject of charge 1, the absence of any prior matters, and Mr Waters' general co-operation in relation to charge 3.
   • General deterrence is of significance, however. As noted above, it is essential that practitioners respond with scrupulous accuracy to requests from the VLSC for information in the light of complaints received from clients. This is underlined by the knowledge that breaches of this requirement will attract strong penalties. On charge 3, Mr Waters is fined $7,500.
   • In relation to charge 1, the fine of $1,500 imposed relates to the disciplinary aspect of Mr Waters' error. It is quite separate to the civil aspect (referred to above).
   • In relation to both charges, in addition to the fines, it is appropriate that Mr Waters receive a reprimand. This is a formal statement of the community's denunciation of professional misconduct by a practitioner. As such it carries a sting for any practitioner who values their good name.
3. Finally, in accordance with clause 46D of Schedule 1 to the Victorian Civil and Administrative Tribunal Act 1998, Mr Waters is to pay the VLSC's costs, in the agreed amount of $11,000.

[1] From 1 July 2015 the functions of the Legal Services Commissioner (LSC) were taken over by the Victorian Legal Services Commissioner (VLSC) under the Legal Profession Uniform Law Application Act 2014 (Vic). Schedule 1 to that Act is the Legal Profession Uniform Law. References in this decision are to the LSC or VLSC as appropriate. The Legal Profession Act 2004 was repealed on 1 July 2015 and replaced by the Uniform Law. However, under the applicable transitional provisions, this matter falls to be determined according to the provisions of the 2004 Act.

[2] See Ellinson v General Council of Medical Education and Registration 1894 1 QB 750; Myers v Elman 1940 AC 282 and Re A Solicitor 1962 VR 617.