Legal Services Commissioner L.G. Yves Michel Melbourne Vice President Judge I J K Ross Hearing

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1 VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL CIVIL DIVISION LEGAL PRACTICE LIST VCAT REFERENCE NO. J33 & J57 OF 2009 CATCHWORDS Legal Profession Act 2004 s (1)(b) failure to provide documents and a full written explanation of conduct to the LIV professional misconduct fine and costs. APPLICANT RESPONDENT WHERE HELD BEFORE HEARING TYPE Legal Services Commissioner L.G. Yves Michel Melbourne Vice President Judge I J K Ross Hearing DATE OF HEARING 15 April 2009 DATE OF ORDER 15 April 2009 CITATION Legal Services Commissioner v Michel (Legal Practice) [2009] VCAT 717 ORDER 1 The Tribunal finds the Respondent guilty of two instances of professional misconduct as defined by s 4.4.3(1)(a) of the Legal Profession Act The Respondent is to respond to the Commissioner s requests for a full written explanation of his conduct in relation to the French-Wright complaint, by no later than 4pm on 1 May The Respondent is to respond to the Commissioner s requests to provide the Commissioner with the further documents regarding the Holt disciplinary complaint which are identified at items 4 and 5 of the Commissioner s letter of 20 October 2008, by no later than 4pm on 1 May The Respondent is to pay a fine of $2000 to the Legal Services Board by no later than 4pm on 15 June The Respondent is to pay the Commissioner s costs of $ by no later than 4pm on 15 June Judge I J K Ross, Vice President APPEARANCES: For Applicant For Respondent Ms Pakula In person

2 REASONS 1 Mr L G Yves Michel has practised as a legal practitioner since 2 November At all material times he practised as a sole practitioner, carrying on a practice as L. G. Yves Michel and Co at 11 Sandown Road, Springvale, in Victoria. 2 Two charges of professional misconduct have been brought against the Respondent by the Legal Services Commissioner (the Commissioner). Both charges allege that the Respondent has contravened s (1)(b) of the Legal Profession Act 2004 (the 2004 Act) by failing to comply with the Commissioner s requests to provide documents and a full written explanation of his conduct in respect of two disciplinary complaints. The relevant facts may be shortly stated. Charge 1 (J33/2009) 3 This charge relates to a disciplinary complaint by Mr David French-Wright regarding the Respondent s handling of a family law matter. 4 The Respondent was notified of the nature of the complaint by letter dated 2 July On 10 September 2008 the Commissioner wrote to the Respondent and sought a full written explanation of his conduct regarding the subject matter of the complaint. Such explanation was to be provided within 16 days. The Respondent subsequently contacted the Commissioner s office and was given an extension of time in which to provide his explanation. He was advised to provide his response by close of business on 6 October He failed to provide a response to the Commissioner s request within the specified time. 6 The Commissioner wrote to the Respondent on two further occasions (10 November and 8 December 2008) and advised him that: (a) no response had been received to the Commissioner s letter of 10 September 2008; (b) the failure to provide a full written explanation of his conduct may constitute a breach of the 2004 Act and may thereby amount to professional misconduct; and (c) he was to give the matter his immediate attention and provide a written explanation within 16 days. 7 The letter dated 8 December 2008 was sent by certified mail and required the Respondent to give the matter his urgent attention. An Australia Post Delivery Confirmation Advice Receipt shows that the Respondent received this letter on 8 December As at the date of the hearing the Respondent had failed to provide any written explanation of his conduct regarding the subject matter of the VCAT Reference No. J33/2009 & J57/2009 Page 2 of 5

3 complaint and had failed to respond to the Commissioner s letters of 2 July, 10 September, 16 November and 8 December Charge 2 (J57/2009) 9 This charge relates to a disciplinary complaint by Ms Mary Holt regarding the Respondent s handling of her loan agreement. 10 The Respondent was notified of the nature of the complaint by letter dated 4 July By letter dated 20 October 2008 the Commissioner required the Respondent to provide her with certain documents pursuant to s (1)(b) of the 2004 Act. The documents sought were to be provided within 16 days. 12 The documents sought were not provided within the time specified. 13 By letter dated 17 November 2008 (sent by registered mail) the Commissioner advised the Respondent that: (a) no response had been received to the Commissioner s letter of 17 November 2008; (b) the failure to provide the documents sought may constitute a breach of the 2004 Act and may thereby amount to professional misconduct; and (c) he was to give the matter his immediate attention and provide the documents sought within 16 days. 14 An Australia Post Delivery Confirmation Advice Receipt shows that the Respondent received this letter on 24 November On 30 January 2009 Mr Martin Watts rang the Respondent (on the Commissioner s behalf) and advised him that no response had been received to the Commissioner s letter of 17 November Mr Watts told the Respondent to provide his response within 14 days. A letter confirming the telephone conversation was sent to the Respondent on the same day. 16 By letter dated 3 February 2009 the Respondent provided documents which satisfied items 1-3 of the Commissioner s request of 20 October On 23 February 2009 Mr Watts again telephoned the Respondent s office and on this occasion he left a message for the Respondent to return his call urgently. The Respondent did not return Mr Watts call. 18 As at the date this application was made to the Tribunal the Respondent had failed to provide the Commissioner with the documents identified at items 4 and 5 in her correspondence of 20 October 2008 and had failed to respond to the letters of 20 October and 17 November 2008, and 30 January Findings and Disposition 19 The facts outlined above are admitted by the practitioner. VCAT Reference No. J33/2009 & J57/2009 Page 3 of 5

4 20 The Commissioner seeks two findings of professional misconduct on the basis of the practitioner s lengthy and extensive failure to respond to the Commissioner s correspondence and seeks the following orders: (i) The Respondent is to respond to the Commissioner s requests for a full written explanation of his conduct in relation to the French-Wright complaint, by no later than 4pm on 29 April (ii) The Respondent is to respond to the Commissioner s requests to provide the Commissioner with further documents regarding the Holt disciplinary complaint, by no later than 4pm on 29 April (iii) The Respondent is to pay a fine of $2000 to the Legal Services Board by no later than 4pm on 15 June (iv) The Respondent is to pay the Commissioner s costs of $ by no later than 4pm on 15 June The Respondent does not oppose the findings and orders sought but seeks an extension, until 4pm on 6 May 2009, in respect of orders (i) and (ii). 22 The facts advanced by the Commissioner in support of the two charges are not in dispute. It is clear that the practitioner did not provide the explanation and documents sought within the time frame specified in the Commissioner s correspondence. Such conduct is in contravention of s of the Act and is conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct. 23 Whether the conduct of a practitioner amounts to misconduct or unsatisfactory conduct will usually be a matter of degree. 24 The practitioner has failed to respond to the Commissioner s repeated requests for information. The practitioner was also put on notice that the failure to provide the Commissioner with the information and documents requested may constitute a breach of the 2004 Act and hence amount to professional misconduct. Despite all this, and the institution of these proceedings, the practitioner has still failed to provide the Commissioner with all of the information requested. 25 The ability to undertake investigations into the conduct of legal practitioners is an important part of the regulatory regime established by the 2004 Act and hence an important means of protecting the public. By his conduct the Respondent has adversely affected the Commissioner s ability to comply with her statutory obligation to conduct an expeditious investigation of these complaints. 26 For these reasons I am satisfied that the Respondent s conduct amounts to professional misconduct. 27 Sections , , and of the 2004 Act provide that if the Tribunal finds a legal practitioner guilty of misconduct it may (relevantly in the context of this case) do one or more of the following: VCAT Reference No. J33/2009 & J57/2009 Page 4 of 5

5 make an order imposing a fine not exceeding $50,000; refer the practitioner to the Supreme Court with or without a recommendation that the practitioner s name be struck off the roll of practitioners; make an order suspending or cancelling the practitioner s practising certificate; make an order that the practitioner undertake and complete a specified course of further legal education; make an order specifying a period during which the practitioner may not apply for a practising certificate or for a practising certificate with particular conditions; and make any other order the Tribunal thinks fit. 28 In considering the question of penalty I have had regard to the nature of the misconduct; the previous disciplinary findings against Mr Michel 1 and the fact that he has made admissions in relation to the factual circumstances. 29 I am satisfied that the orders sought are appropriate in the circumstances of this matter and I will make orders in the terms sought. I will provide that the Respondent is to provide the explanation and further documents sought by no later than 4pm on 1 May In my view the extension sought by the Respondent (until 6 May 2009) is not warranted given that he has been aware of the Commissioner s requests for some time. 30 The Commissioner also seeks an order as to the payment of costs in the sum of $ The practitioner did not oppose the making of such an order. 31 In circumstances where the Tribunal has found a practitioner guilty of unsatisfactory professional conduct or professional misconduct it must make an order requiring the practitioner to pay the Commissioner s costs unless satisfied that exceptional circumstances exist 2. I am not satisfied that there are any exceptional circumstances in this case and I propose to make an order for the payment of costs in the sum sought by the Commissioner. Judge I J K Ross Vice President 1 See Exhibit A3 2 Clause 46D, Schedule 1, Victorian Civil & Administrative Tribunal Act 1998 VCAT Reference No. J33/2009 & J57/2009 Page 5 of 5