Boland v Boxall - [2018] TASFC 11

[2018] TASFC 11

COURT: SUPREME COURT OF TASMANIA (FULL COURT)

CITATION: Boland v Boxall [2018] TASFC 11

PARTIES:  BOLAND, Chris
  v
  BOXALL, Andrea
  LEGAL PROFESSION BOARD

FILE NOS: 51/2017

2594/2018

JUDGMENTS

APPEALED FROM: Boland v Legal Profession Board of Tasmania [2016] TASSC 63; Boland v Boxall [2016] TASSC 30

DELIVERED ON:  29 November 2018
DELIVERED AT:  Hobart
HEARING DATE:  11 October 2018
JUDGMENT OF:  Estcourt J, Brett J, Martin AJ

CATCHWORDS:

Professions and Trades – Lawyers – Complaints and discipline – Tasmania – Legal Profession Board finding of unsatisfactory professional conduct following complaint – Appeal from a re-determination of complaint by Supreme Court by way of re-hearing – Primary judge's findings and orders reprimanding the appellant and ordering the payment of costs confirmed – Appeal dismissed.

Legal Profession Act 2007(Tas), ss 422 and 454.
Stirling v Legal Services Commissioner [2013] VSCA 374, referred to.
Aust Dig Professions and Trades [1274]

REPRESENTATION:

Counsel:
             Appellant:  A C Wood
             Respondent:  K Cuthbertson
Solicitors:
             Appellant:  Chris Boland Lawyers
             Respondent:  Tremayne Fay Rheinberger Lawyers

Judgment Number: [2018] TASFC 11
Number of paragraphs: 131

Serial No 11/2018
File Nos 51/2017
2594/2018

CHRIS BOLAND v ANDREA BOXALL
and LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J (Dissenting)
BRETT J
MARTIN AJ
29 November 2018

Order of the Court:

Appeal dismissed.

Serial No 11/2018
File Nos 51/2017
2594/2018

CHRIS BOLAND v ANDREA BOXALL
and LEGAL PROFESSION BOARD OF TASMANIA

REASONS FOR JUDGMENT FULL COURT

ESTCOURT J
29 November 2018

The appeal

Appeal number 51 of 2017 is an appeal from Tennent J (Boland v Legal Profession Board of Tasmania [2016] TASSC 63).
The first named respondent who is alternately referred to as "the complainant" in these reasons, and those below, did not take part in this appeal.
The second named respondent is alternately referred to in these reasons, and those below, as "the Board".
There is no real disagreement between the parties about the legal principles that are to my mind relevant. They are compendiously set out in the reasons below.
There is little if any significant disagreement between the parties as to the relevant facts, although the construction of some relevant documents is problematic.

The background

The background to the appeal is, as to relevant issues, the same as the background to the rehearing before Tennent J. That was an application "involving a re-determination" (Blow CJ: Boland v Boxall [2016] TASSC 30 at [9]). The learned primary judge set out that background in her reasons for judgment as follows at [1]):
"[1] The applicant, Christopher John Boland, is a legal practitioner. The applicant acted for the complainant, Andrea Boxall, between 2006 and 2010. On 11 August 2010, the complainant lodged a written complaint in respect of the applicant with the Legal Profession Board of Tasmania (the Board). The complaint was investigated, and a determination made to refer it for a hearing. The Board conducted a hearing in respect of 12 particulars, and, on 26 September 2014, delivered its decision and reasons for decision. In its decision, the Board dealt individually with the particulars of complaint. It found the factual basis for particulars 1, 2, 3, 4, 8, 9, 10 and 11 was established. It did not so find in relation to particulars 5, 6 and 7. As to particular 12, the Board determined this to be a 'catch-all' allegation based on the conduct particularised in particulars 1, 2 and 3, and determined that no disciplinary issues beyond those already dealt with arose. Under the heading 'Decision', the Board said the following:
'Having completed the Hearing of the complaint, the Board is required to decide whether it is, or it is not, satisfied that the Practitioner is guilty of unsatisfactory professional conduct. In reaching its decision, the Board has considered the Practitioner's established conduct as a whole, rather than considering whether or not, standing alone, the Practitioner's established conduct under each particular, amounted to unsatisfactory professional conduct.
In preparing and authorising the filing of Consent Orders which did not require the Complainant's husband to make a cash payment to the Complainant should the sale of the matrimonial assets not allow for the agreed apportionment of net assets; in advising the Complainant not to sign the contracts for the sale of the matrimonial home in the face of a Court Order requiring the Complainant to do so; by so doing, causing the Complainant to pay legal costs associated with an application to enforce the Court Orders; by failing to obtain instructions to, or an authority to engage Counsel, and in failing to provide a statement as to the estimated costs of engaging Counsel; by failing to advise the Complainant of increases in fees and costs to be charged; by charging for his work in retaining Counsel and overcharging the Complainant as so found; the Board is satisfied that the Practitioner's conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.
Accordingly, the Board is satisfied that the Practitioner is guilty of unsatisfactory professional conduct within the meaning of s420 of the Act.
The Board invites and calls upon the parties to make submissions as to what, if any, Determinations it should make under s454 (2) of the Act, and adjourns the further Hearing of the complaint to a date to be fixed'."
On 19 November 2014, those further submissions were made. On 30 March 2015, the Board delivered its determination. It then gave notice of that as follows:
"Take Notice that, having completed a hearing under Part 4.5 of the Legal Profession Act 2007 ('the Act') of the Complainant's complaint against the Legal Practitioner and being satisfied that the Practitioner, an Australian legal practitioner, is guilty of unsatisfactory professional conduct, the Board makes the following determinations under s454 (2) of the Act:
Determinations
1 A Determination under s454 (2) (a) of the Act that the Practitioner be reprimanded.
2 A Determination under s454 (2) (e) of the Act that the Practitioner repay fees paid by the Complainant in the sum of $11,300.00 within 30 days from the date of this notice.
3 A Determination under s454 (2) (m) of the Act that the Practitioner pay to the Board the fixed sum of $30,000.00 of the costs incurred by the Board in investigating and hearing the complaint within 30 days from the date of this notice."
On 20 April 2015, the applicant filed an originating application by which he sought the following orders:
"1Determination, by way of rehearing by the Supreme Court (or in such other manner as the Supreme Court may direct) under section 458 of the Legal Profession Act 2007, of the matter to which the determination of the Second Respondent made against the Applicant and dated 30 March 2015, relates – such rehearing to be limited to paragraphs 1, 2, 3, 4, 8, 10, and 11 of the First Respondent's amended particulars of complaint dated 8 March 2013 or as to such part of the matter as the Court may direct;
2A stay, until further order, of the determination of the Second Respondent made against the Applicant on the complaint of the First Respondent and dated 30 March 2015;
3Costs."
As will be readily observed, in his originating application the applicant did not challenge the Board's finding in respect of particular 9. That particular was as follows:
"9 Breached paragraph 3.1 of the Retainer Agreement dated 17 November 2006 and section 143D of the Legal Profession Act 1993 or section 299 of the Legal Profession Act 2007 by failing to advise the Complainant of increases in the fees and costs to be charged.

Particulars
(a) Paragraph 3.1 of the Retainer Agreement between the Practitioner and the Complainant, relating to fees and charges, provides '... The firm will give the client prior notice of any increase.'
(b) The costs agreement dated 17 November 2006 between the Practitioner and the Complainant provided that:
(i)the Practitioner's hourly rate was $220 an hour (including GST);
(ii)an employed solicitor's hourly rate was $176 an hour (including GST); and
(iii)a clerk's hourly rate was $77 an hour (including GST).

(c) The Practitioner increased his fees on 13 January 2009, as follows:
(iv)the Practitioner's hourly rate became $275 an hour (including GST);
(v)an employed solicitor's hourly rate became $220 an hour (including GST); and
(vi)a clerk's hourly rate became $125 an hour (including GST).

(d) The Practitioner failed to notify the Complainant of the increase in his fees and notwithstanding that, charged the Complainant the increased fees."

The conclusions reached by the Board in relation to particular 9 therefore remain, and were, as follows:
"In evidence before the Board the Practitioner admitted that he did not give prior notice of a change in his hourly rate. It was submitted on his behalf however that notice of the increase in rate was given by sending the itemised invoices to the Complainant which indicated changes in the hourly rate. It was common ground that the only way the Complainant could have had notice of the increase from the invoices was if she had undertaken a calculation requiring division of the fee charged for an item by the time spent on that item.
The Board accepts the submissions made on behalf of the Complainant that the giving of notice necessarily requires the giving of knowledge or bringing of fact to attention.
The Practitioner concedes that the manner in which the notice was given to the Complainant may have been less than ideal but submits nonetheless that notice was given.
The Board does not accept the submissions made on behalf of the Practitioner and is satisfied that the Practitioner failed to give prior notice of any increase in his fees in breach of his retainer. In evidence, the Practitioner accepted that he had a contractual obligation to give prior notice of any fee increases and went on to say that unfortunately in some cases he did not.
The Board finds the factual basis of this Particular established."
On the rehearing the learned primary judge found that the factual basis for all of the matters of complaint with which she was dealing had been made out. Her Honour considered the conduct complained of in light of the whole of the appellant's conduct found proved in her reasons. She held that "in that context", "all complaints found proved" gave rise to a conclusion that the appellant's conduct amounted to unsatisfactory professional conduct.
On 19 September 2017 the learned primary judge made orders consequent upon her findings (Boland v Legal Profession Board of Tasmania (No 2) [2017] TASSC 57). Those orders were, relevantly, precisely the same as those originally made by the Board. They are the subject of the second appeal numbered 2594 of 2018 in these proceedings.
In her 2016 reasons for judgment the learned primary judge adopted the nomenclature of counsel for the Board, in referring to the particulars of the complaint against the appellant, nominating them as:
·     The Consent Order allegations (particulars 1, 2 and 11.1).
·     The House Contract allegations (particulars 3 and 4).
·     The Counsel allegations (particulars 8 and 10).
·     The Overcharging allegations (particulars 11.2 and 11.3).
I agree with her Honour that this is a useful method of classification, and I have adopted it for the purposes of these reasons.

The consent order allegations (particulars 1, 2 and 11.1)

The learned primary judge set out the evidence relating to these allegations at [24]-[48] of her reasons as follows:
"[24]   These particulars were as follows:
'1    Failed to competently prepare Consent Orders filed on 11 September 2008 ("the Consent Orders").
Particulars
The Practitioner failed to include a provision in the Consent Orders that if the net proceeds of sale of the former matrimonial home when paid to the Complainant would be inadequate to provide her with 62.5% of the net assets, then the Husband was required to make a cash payment within fourteen (14) days of the settlement of the sale of the former matrimonial home to achieve such % outcome in the Complainant's favour.
2    Was negligent in respect of the filing of the Consent Orders.
Particulars
Upon becoming aware there was disagreement between the parties as to whether a cash payment was required to be made to the Complainant when:
(a) it was agreed that the Complainant should receive 62.5% of the net assets; and
(b) that the value of all assets and liabilities of the marriage had been agreed;
the Practitioner permitted and/or authorised (by letter to Dobson Mitchell & Allport ("DMA") dated 18 August 2008) the filing of the incompetently drafted Consent Orders as alleged in paragraph 1 which he had previously advised the Complainant to sign.
11   Overcharged the Complainant:
11.1by charging an estimated $16,616.53 for fees directly relating to setting aside the Consent Orders,
Particulars
The Practitioner issued invoices on the matrimonial file (Matter No 06166) as shown in the table that follows, which also identifies the value of the items of work relating to seeking to persuade DMA to agree his interpretation of the drafted Consent Orders and/or setting aside the Orders.

Invoice Date Total Value of work to set aside/persuade DMA to agree with him Item No of work

3759 19.9.08 $18,585.78 $770.000¹ All work completed subsequent to 11.8.08

3912 18.2.09 $8,778.88 $8,778.88² All work on the invoice.

4088 12.8.09 $3,932.65 $3,932.65 All work on the invoice

11.8.09 $3,025.00 $3,025.00³ Mr Gunson's invoice

4333 18.5.10 $16,940.79 $110.00⁴ Costs incurred on 12.8.09 & 13.8.09

Total $51,263.10 $16,616.53
[Footnotes:
1    Including GST and 4.1% of disbursements of $559.27 (including GST)
2    Including GST and disbursements
3    Including GST, paid from money held on trust on behalf of the Complainant on 12.8.09
4    Including GST but not disbursements which totalled $3,152.90 + $37.89 GST.]'

[25]   The complainant instructed the applicant in November 2006 in relation to resolving matters with her estranged husband consequent upon their separation. Negotiations in relation to a financial settlement began between the applicant and the husband's solicitors in about February 2007. The major assets of the complainant and her husband were their home at 13 Karambi Street, Chigwell, subject to a mortgage, and their interest in a family business known as J & R Trashpacks. Significant issues in the negotiations were the value of these two assets and, in particular, how the business interest should be dealt with.
[26]   Some time, I infer, early in the second half of 2007, an application for property settlement was filed with the Federal Magistrates Court. Correspondence passed between the applicant and the husband's solicitors in an attempt to negotiate a settlement. In August 2007, the applicant drafted some proposed orders to settle the proceedings, and sent them to the complainant for her approval. In substance, the orders provided for the transfer of the former matrimonial home to the complainant subject to the existing mortgage, and for the sale of the parties' interest in the family business and a division of the net proceeds of sale as to 65% to the complainant and 35% to the husband. I infer that proposal was put to the husband's solicitors some time in September 2007.
[27]   On 31 March 2008, the complainant and her husband and their respective solicitors attended a conciliation conference in the context of the proceedings in the Federal Magistrates Court. No agreement was reached. The applicant recorded the complainant's rejected proposal to settle apparently made at that conference in a letter to her dated 1 April 2008. In effect, the settlement proposed was that the complainant keep the family home subject to its mortgage, she relinquish her interest in the family business and the husband pay her $25,000. By letter dated 3 April 2008 from the applicant to the husband's solicitors, that offer was withdrawn. On 4 April 2008, the applicant put a further settlement proposal, effectively in the same terms as that withdrawn the day before, but with a cash adjustment in favour of the complainant of $30,000.
[28]   By letter dated 9 April 2008, the husband's solicitors put a proposal effectively in the same terms as that put by the applicant, but with the cash adjustment figure being $20,000. By letter dated 15 April 2008, the applicant rejected that proposal, but sought a cash adjustment of $27,000. The husband's solicitors responded noting a rejection of their client's offer, and indicating that a valuation of the former matrimonial home needed to be organised.
[29]   By letter dated 8 May 2008, the applicant put a further settlement proposal to the husband's solicitors on behalf of the complainant. The proposal sought a cash adjustment of $25,000, and it was noted that, if the former matrimonial home had to be sold, then the complainant would not relinquish her interest in the family business.
[30]   Until that point, all the settlement proposals which had passed between the parties involved assets being allocated between the parties, with varying cash payments to be made by the husband. None were framed in terms of an overall percentage split of net assets as between the parties.
[31]   On 24 June 2008, the husband's solicitors put a further proposal to settle. It provided for the sale of the matrimonial home, and a division of the net assets of the parties as to 57.5% to the complainant and 42.5% to the husband. The net assets to be the subject of that percentage division included the net proceeds of sale of the home, and the family business interest at a specified value. Paragraph 6 of the proposal then provided that, to give effect to the percentage division proposed, 'the following assets will be allocated, or transferred, as appropriate' to each party. There were then two headings under which various assets and resources were listed, one for the complainant and one for the husband, and the last item in each was said to be 'such share of the net sale proceeds as is necessary to give effect to the Division'.
[32]   While the applicant's ledgers indicate dealings between him and the complainant, and between him and the husband's solicitors between 24 June and late July 2008, the actual correspondence and emails do not appear to have been before the Board. A letter dated 22 July 2008 from the applicant to the complainant noted that the proceedings in the Federal Magistrates Court were listed for hearing in the sittings to commence 4 August 2008. The applicant had clearly not prepared any affidavit for the complainant for the purpose of those proceedings as at that date, and sought from her a chronology of events for the purpose of preparing one.
[33]   On 29 July 2008, the applicant wrote to the complainant again enquiring when he was to receive her instructions. He also sent to her a draft letter and an 'Offer of Settlement' which he proposed sending to the husband's solicitors subject to her approval. The applicant discussed this material with the complainant and a number of amendments were made. Ultimately, on 31 July, a revised settlement offer was put by the applicant to the husband's solicitors. The proposal was essentially in the same format as that put by the husband's solicitors in June 2008, subject to changes to the percentage division proposed, and values of assets being allocated. By a further letter of 4 August to the husband's solicitors, the applicant corrected one of the figures in the proposed orders.
[34]   On 7 August 2008 at 12.26pm, the husband's solicitor sent an email to the applicant indicating he was seeing the husband at 3pm that day, and anticipated receiving instructions to accept the complainant's offer. The solicitor also said:

'… as we are both already in breach of the filing deadline, we should try to conclude this ASAP. Could you have your offer put into the form of Minutes of Consent Orders, sign it and forward it to me by fax or email before 3.00pm?'

[35] The applicant spoke to the complainant, and she gave instructions to proceed subject to one caveat. As a consequence, the applicant prepared a Minute of Orders, and sent it unsigned to the husband's solicitors. The covering letter advised that the orders 'remain subject to Mr Byrne's further advice and/or Mrs Boxall's decision to have the Jackson Street property formally valued'. Mr Byrne was the accountant who had valued the family business, and the Jackson Street property was the premises from which the business then operated or was about to move to.
[36] The husband's solicitors responded the same day. They answered some queries raised by the applicant in a letter of 31 July 2008, and said that their client was prepared to conclude the proceedings on the terms of the proposed minutes. They also said:
'To ensure that there are no further delays or unsubstantiated claims from your client's end, we will await delivery of Minutes of Consent Orders signed by your client and/or your office on her behalf for Mr Boxall to sign and forward to the Court.'

[37]   The applicant had the complainant sign the minute of orders he had prepared, and, on 11 August 2008, the applicant sent that to the husband's solicitors. In the covering letter the applicant said:
'The same are forwarded on the basis that;
1   settlement remains subject to any amendment to the valuation of J & R Trashpacks by Mr Byrnes, and
2   dividends being declared and equalised between the parties in J & R Trashpacks.
Finally, as your client will be required to pay Mrs Boxall a cash payment of about $40,000 we are instructed to advise that a Contract of Sale cannot be entered into until your client can provide proof that the additional funds will be available at or prior to signing a contract. The fund can naturally be retained and paid on settlement.'

The minute of orders signed by the complainant contained no requirement that the husband make any cash payment to the complainant over and above any share of the house sale proceeds. The minute also made no reference to any equalisation of dividends.
[38] At 10.04am on 12 August 2008, the husband's solicitors advised the applicant that:
'I don't agree with your interpretation of the proposed Orders. As long as that is understood, I am content to file the document with the Court.'

The next day at 1.14pm the applicant responded saying:
'Please particularize what you don't agree with.
I see no purpose in filing Orders only to have a future dispute.'

At 3.58pm the husband's solicitors replied saying:
'The proposed Orders require no payment from Mr Boxall. Can I file the document?'

[39] On 18 August, the applicant wrote to the husband's solicitors in the following terms:
'In reply to your email of 13 August 2008 and with all due respect, I cannot see how you draw your conclusion.
Firstly, I note there has been a typographical error in the counter-offer and consent orders. The percentage split was intended to be 62.5% to Mrs Boxall and 37.5% (not 38.5%) to Mr Boxall.
Secondly, once a value is attributed to the home (albeit estimated) on the basis of the discussion, if Mr Boxall is to retain items and cash attributed to him he must pay Mrs Boxall, on my calculations allowing for the sale price of the home at $260,000 about $74,000-$75,000 after all liabilities are paid. Please refer to our draft reconciliation enclosed.
I cannot see any circumstance where your suggestion "no Money" will be payable to prevail.
If you are content to amend 38.5% to 37.5% I am content for you to proceed to file the Consent Orders.'

[40] On 25 August, the applicant wrote to the husband's solicitors again. He said:
'It appears the writer misunderstood Mrs Boxall's recent instructions as to the current balance of the mortgage registered against 13 Karambi Street, Chigwell in Tasmania.
She has today instructed it is about $170,000 not $137,000.
We therefore forward amended reconciliation (draft) 25/8/08.
Whatever the case it is clear to us that Mr Boxall will be required to make to Mrs Boxall a considerable cash payment. He could, of course, re finance his motor vehicle or arrange a release for or of Mrs Boxall in respect of the same. If the $8,000 cash from the sale of the motor cycle remains available the cash to be raised by him would reduce correspondingly that is, about $42,000.'

[41] The applicant wrote again to the husband's solicitors on 1 September. He said:
'Dear Sirs
RE: MATRIMONIAL PROPERTY SETTLEMENT – BOXALL
We refer to our recent correspondence to you culminating in our letter of 25 August 2008.
Do you remain content to file the Proposed Consent Orders on the basis of the 62.5%:37.5% split in favour of Mrs Boxall? If not may we please receive your detailed reasons?
Should we not hear from you by 5.00pm Friday 5 September 2008 the only option is to have the matter relisted.
With all due respect Mr Boxall cannot retain all the assets he desires without borrowings. A suitable solution, as initially put to you at the Conciliation Conference, is for all the "remaining" partners to contribute proportionately to their current equity holdings and purchase Mrs Boxalls interest in the partnership. This would provide available cash and at the same time maintain "equities" within the partnership.
We await your earliest return.'

The husband's solicitors replied by email the next day as follows:
'Chris,
Thank you for your letter dated 1 September 2008.
We are still agreeing to disagree, I think. The final point I need to clarify about the proposed Orders is what you consider to be a "dividend" under Paragraph 7(a)(v) in circumstances where Mr Boxall is working in the partnership, his drawings have been used to maintain the mortgage payments and to pay child support and your client does not want to pay taxation in relation to her involvement in the partnership?'

On 2 September, the applicant then said:
'Dear Mr Trezise
With all due respect we cannot see what there is in disagreement.
The dividend refers to the "J & R Trashpacks" partnership which currently continues and not that between our respective clients which has dissolved.
The partnerships are separate and distinct.
We await your further return.'

Emails continued between the applicant and the husband's solicitors about dividends and the family partnership. There was nothing in the email exchange which indicated that the complainant would not agree to the orders being submitted to the court or that the applicant no longer agreed to the minute being lodged with the court.
[42] On 8 September 2008, the husband's solicitors sent the signed minute of consent orders to the Federal Magistrates Court with a request that orders be made in terms of it. On 10 September 2008, the applicant wrote to the court and said:
'We were given to understand that Consent Orders were to be entered into.
As they have not been proceeded with to date we respectfully request that the matter be relisted, at the earliest opportunity, for directions.'

The letter was copied to the husband's solicitors. On 11 September, a staff member from the husband's solicitors' office rang the applicant's office and left a message to the effect the consent orders had been sent to the court. On 12 September, the applicant telephoned the court and was told the orders had been made the day before. He is noted as saying, 'Disregard my letter'.
[43] On 16 September, the applicant wrote to the complainant saying he was pleased to advise that the orders were made on 11 September.
[44] Nothing seems to have happened for some weeks after the orders were actually made. Then, on 14 October 2008, the applicant wrote to the husband's solicitors. He said:
'Dear colleagues
RE: MATRIMONIAL PROPERTY SETTLEMENT – BOXALL
We refer to our previous correspondence and continue to await your confirmation that your client has sufficient funds available to meet his liability to Mrs Boxall upon the settlement of a sale of 13 Karambi Street, Chigwell.
We have provided you with our draft reconciliation and in light thereof fail to see how you can choose to "agree to disagree".
What is required is clear and unequivocal advice from you and undertaking that Mr Boxall has sufficient funds.
As explained, while we understand the property has been listed for sale, no contract can be entered into until we receive your advice in the terms hereof.
We await your earliest return.'

The husband's solicitors replied as follows:
'Dear Sir,
Boxall
I refer to your letter dated 14 October 2008.
We will achieve nothing by going over old ground. The Order has been made, in the terms of the document which you drew, and the parties are obliged to comply with it. Paragraph 1 prescribes arrangements for the sale of 13 Karambi Street. If your client impedes the sale, Mr Boxall will not hesitate to exercise the liberty to apply for further Orders in relation to the marketing and sale of the property. In that event, he will also be seeking an Order that your client pay his costs of that exercise on an indemnity basis.'

[45] About the end of October 2008, a contract of sale in respect of the family home was presented to the complainant to sign. She refused to sign it on the advice of the applicant. As a consequence, on 28 October 2008, the husband's solicitors, having warned the applicant they intended to do so, applied to the Federal Magistrates Court for orders to oblige the complainant to sign the contract as the court orders made 11 September required her to.
[46] The applicant then, on 29 October, wrote to the husband's solicitors. It was a lengthy letter and canvassed the same matters previously raised about the complainant requiring a cash payment from her husband. On 31 October, the husband's application went before Federal Magistrate Baker. The applicant indicated to her Honour that the complainant would sign the contract of sale if there was a declaration made by the court in the following terms:
'The court declares that upon the said contract of sale becoming unconditional. The respondent shall be entitled to retain the full net proceeds of sale and further, that each party shall retain their respective interest in the partnership J and R Trashpacks.'

That clearly represented a substantive variation to the orders already made, and her Honour declined to make that order. She did order the complainant to sign the Jensen contract.
[47] On 6 November 2008, the applicant sought advice from counsel about what he should do to resolve what he saw as an impasse. In his letter seeking advice, the applicant told counsel that his letters to the husband's solicitors dated 18 and 25 August 2008 and 1 September 2008, had gone unanswered. That was not correct. On 10 December, counsel advised the applicant there was a problem with the orders and advised that the only way to correct the 'anomaly' was an application to vary the consent orders.
[48] An application was made to the Federal Magistrates Court on 15 April 2009. That application was listed before the court in May but did not proceed because of the way it had been drafted. A fresh date was given for August. Ultimately on 11 August 2009, the orders were set aside by consent. That left the proceedings for property settlement on foot and they proceeded to hearing. A federal magistrate ultimately ordered the parties' assets be divided as to 62.5% to the complainant and 37.55% to the husband, and required the husband to pay the complainant $47,699 to achieve that result."

Before turning to the approach taken to the appellant's conduct by the learned primary judge it is appropriate to set out the terms of the consent orders. They were as follows:
"1That the Husband and the Wife do all such things and sign all such documents as are necessary to effect the sale of the property known and 13 Karambi Street, Chigwell and comprised in Certificate of Title Volume 55822 Folio 35 (the Property'), on such terms as the parties may agree or, failing agreement, as may be ordered by the Court.
2     That pending completion of the sale of the Property in Paragraph 1 above:-
(a) the Wife will have sole use and occupation of the Property;
(b) neither party will further encumber the Property without the written consent of the other party;
(c) liberty will be reserved to each party to apply for further Orders in relation to the marketing and sale of the Property;
3    That upon completion of the sale of the Property, the gross sale proceeds will be applied as follows:-
(a) in payment of the real estate agents commission and costs of the sale;
(b) in payment of the legal costs of acting on the sale and the usual disbursements incurred in completing the conveyancing of the sale;
(c) in payment of the amounts secured under the mortgage No C535405 together with payment of any costs referable to the discharge of that mortgage;
(d) the balance then remaining ('the net sale proceeds') to be applied as set out below.
4That the Husband continue to pay mortgage re payments (principal and interest) and all rates and taxes for the Property to the date of settlement.
5That the net assets of the parties be divided between them so that the Wife receives 62.5% of the assets and the Husband receives 38.5% of the assets ('the Division').
6That for the purposes of the calculation of the Division under Paragraph 4 above, the net assets shall be and are limited to:-
(a) the net sale proceeds;
(b) the Husband's Subaru car with a value of $37,000.00;
(c) the proceeds of sale attributed to Husband's Suzuki motor cycle with a value of $8,000.00;
(d) the Wife's Toyota car with a value of $12,000.00;
(e) the parties' interest in the partnership known as 'J & R Trashpacks' ABN 19 122 140 064 ('the partnership') with a value of $95,000.00 (or such value as may be increased by Mr Ross Byrne);
(f) the Husband's superannuation interest with a value of $26,000.00
(g) the Wife's superannuation interest with a value of $4,060.00;
(h) the Wife's furniture and household items with a value of $5,000.00
(i) the Husband's chattels and sports memorabilia with a value of $4,200.00;
Less
(j) the Husband's Subaru finance liability to $37,000.00 (or lesser amount as at settlement date)
(k) the Wife's finance liability of $12,000.00 (or lesser amount as at settlement date)
7That to give effect to the Division:-
(a) the following assets will be allocated, or transferred, as appropriate to the Wife;
(i)the Wife's car;
(ii)the Wife's furniture and household items;
(iii)the Wife's superannuation interest;
(iv)such share of the net sale proceeds as is necessary to give effect to the Division;
(v)any dividend declared or to be declared in the partnership for the parties interest therein at 30 June 2008;
(b) the following assets and liabilities will be allocated, or transferred, as appropriate to the Husband;
(i)the Husband's Subaru car;
(ii)the parties interest in the partnership;
(iii)the Husband's superannuation interest;
(iv)the Husband's chattels and sports memorabilia;
(v)such share of the net sale proceeds as is necessary to give effect to the Division;
8    That the Husband be solely responsible for and indemnify the Wife against any liability arising from her involvement in the partnership, including taxation liabilities;
9    That unless otherwise specified in this Offer:-
(a)each party will be solely entitled to the exclusion of the other to all property in the possession of such party as at this date;
(b)each party will be solely liable for and indemnify the other against any liability encumbering any form of property to which that party is entitled pursuant to this Offer; and
(c)each party will be solely liable for their respective debts.
10 That all extant applications be otherwise dismissed with no Order as to costs."
As to particular 1 of the complaint, which related to the preparation of the consent orders, the learned primary judge took the view that the appellant's own correspondence indicated that he knew, having regard to the estimated value of the home, the amount owing under the mortgage, the likely sale costs relating to the home, and the values attributed to other assets, that a cash payment would be required from the husband to the complainant to give effect to the settlement contained in the document he drafted. Her honour noted that against that background, the appellant did not include a provision for such a payment in the orders he prepared and, initially, sent unsigned to the husband's solicitors.
Her Honour was of the view that notwithstanding clear statements from the husband's solicitor that, in his view, the proposed orders did not lend themselves to an interpretation that the orders implied a cash payment, the appellant nonetheless had the complainant sign the minute of proposed orders, and then sent that signed document to the husband's solicitors.
Her Honour noted that by the very words of the document, the proposed orders drafted by the appellant were intended to be an end to the parties' dispute, and that the document was not expressed to be a draft only, was not expressed to be a draft subject to the inclusion of further necessary terms as and when they were agreed by further negotiations, and was not expressed to reflect any form of interim agreement, or partial settlement.
In those circumstances the learned primary judge rejected as "nonsense" the appellant's case that the communications between him and the husband's solicitors were negotiations, and not concluded negotiations. She found that it could be clearly inferred from the exchange between them that the appellant made a conscious decision not to put a specific provision in the document he sent which provided for the husband to make a cash payment, because he knew from his correspondence with the husband's solicitors that the husband would not agree to that.
Her Honour found that the appellant was, at the time, in the position that there was a looming court hearing date, that he was not prepared for such a hearing, and that he was engaged in last minute negotiations to settle the proceedings.
The learned primary judge was satisfied that the factual basis for particular 1 had been made out, and she held that, having taken into account the relevant legal principles, she was satisfied that the appellant's conduct in preparing the consent orders in the form he did, absent a provision for a cash payment, was conduct which fell so far short of that which would be required of a competent practitioner as to amount to unsatisfactory professional conduct and was not "mere negligence".
As to particular 2 of the complaint, which related to the filing of the consent orders, the learned primary judge noted that counsel for the appellant made further submissions, in effect blaming the making of the consent orders on the behaviour of the husband's solicitors, and also submitted that the appellant did not permit or authorise the making of the consent orders on any basis other than that the husband's solicitors accepted that a cash payment to the complainant from her husband would be necessary. It was submitted to her Honour that that was the "true contextual reading" of the appellant's letter of 18 August 2008.
At [59] of the learned primary judge's reasons her Honour said:
"[59] The applicant prepared a set of proposed orders which could not give effect to the settlement he envisaged or the complainant expected to receive. He then had the complainant sign them. By his letter to the husband's solicitors, he then clearly authorised the filing of that document with the court. He did not say 'you cannot file that document until such time as we have resolved what is clearly a dispute between us'. It may be that the husband's solicitors took advantage of a situation which presented itself. However, that does not detract from the fact that the applicant clearly authorised the husband's solicitors to lodge the memo of consent orders with the court. I am satisfied, in the circumstances, that the factual basis for particular 2 has been made out by the Board and that the conduct, as found, is conduct that fell so far short of that which would be required of a competent practitioner as to amount to unsatisfactory professional conduct." (My emphasis.)

With respect I find myself unable to agree with her Honour's reasoning or with her findings in relation to particulars 1 and 2. Unlike her Honour I do in fact regard the exchanges between the appellant and the husband's solicitors as being in the nature of negotiations, and I do accept that the appellant did not permit or authorise the making of the consent orders on any basis other than that the husband's solicitors accepted that a cash payment to the complainant from her husband would be necessary. I regard such a construction as the "true contextual reading" of the appellant's letter of 18 August 2008. Moreover the appellant's letter of 1 September 2008 makes it clear that the appellant expected agreement to the proposition that the effect of the consent orders was that the husband could not retain all of the assets he desired and as was envisaged by par 7(b) of the consent orders, without borrowings to permit the split of assets set out in par 4 of those orders, as the central tenet of the settlement. Whilst the consent orders were unhappily drafted, the appellant's construction of the document cannot, in my view, be said to be to be wholly untenable.
In my view the husband's solicitors can be said to have taken advantage of the situation that presented itself by filing the orders in the face of the letters from the appellant of 18 August and 1 September 2008. In my assessment the appellant ought not to be held to have been guilty of unsatisfactory professional conduct in relying in all of the circumstances on the husband's solicitors not filing the consent orders without acknowledging the correctness of the appellant's contention. That being that the orders were to be construed as carrying an implied obligation on the part of the husband to make a cash payment to facilitate the core division of assets. Given the anticipated shortfall in the net sale proceeds of the house property, and the desire on the husband's part to be allocated or transferred the parties' interest in the partnership business, such reliance was not unreasonable.
The learned primary judge concluded from the appellant's evidence that the appellant made a conscious decision not to put a specific provision in the consent orders for the husband to make a cash payment, because he knew that the husband would not agree to that. Given the two letters to which I have referred, however, and given that the appellant had on 18 and 25 August 2008 provided draft reconciliations estimating the amount the husband would be required to pay the complainant if he was to retain the "items and cash attributed to him", it is nonetheless clear that, foolishly or not, he was pursuing a course of brinkmanship as to the effect of the consent orders, and without accepting the construction he contended for the husband's solicitors filed the document.
It is not without significance, in my view, that the consent orders were set aside by consent when the husband's solicitors were challenged on what I would regard as the unconscionable filing of the orders.
As a consequence of the view that I have taken as to particulars 1 and 2 of the complaint, I also find myself in respectful disagreement with the learned primary judge as to her reasoning and findings as to particular 11.1 thereof.
At [66]-[67] her Honour said:
"[66] Leaving aside the issue of quantum, with respect, the submissions of counsel for the applicant reveal a complete lack of insight by the applicant into the behaviour expected of a competent practitioner. In blunt terms, the applicant had prepared a memo of consent orders which did not achieve its aim. He then facilitated its conversion into actual court orders, knowing at the time there was going to be a problem because the orders did not provide for a cash payment his client wanted, and which he knew her husband would not agree to pay. Having created that situation, I agree it was inevitable that the orders would need to be set aside. However, had the applicant acted competently in the first place and prepared orders which gave effect to what his client wanted, steps to persuade the husband's solicitors to accept the applicant's interpretation of the orders and to set the orders aside would not have been required. The actions the applicant undertook after the orders were actually made, and for which he charged the complainant, would not have been required but for the applicant's conduct. Common sense, let alone the standards of a competent practitioner, with respect, dictated the applicant should not have charged the complainant to correct a situation he largely created by his own lack of competence.
[67] It follows that, not only am I satisfied that the factual basis for this complaint has been made out by the Board, I am also satisfied that the applicant's conduct fell so far short of the standard required of a competent practitioner that it amounted to unsatisfactory professional conduct."
I accept the submission made to the learned primary judge on behalf of the appellant that, regardless of how much sympathy one might have for the complainant in circumstances where her expectations were disappointed, the need to apply to have the consent orders set aside arose from the circumstances in which they were obtained. The communications had with the husband's solicitor as to the effect of the orders when filed were reasonable, and when they were filed, notwithstanding the appellant's unresolved contention as to their meaning, they were challenged and they were set aside by consent.
It is indeed most unfortunate that the complainant was put to the expense involved in the unsuccessful negotiations and the need to set the consent orders aside, but to my mind it cannot be said, as was concluded by the learned primary judge, that "[c]ommon sense, let alone the standards of a competent practitioner … dictated the [appellant] should not have charged the complainant to correct a situation he largely created by his own lack of competence" and that to have done so "fell so far short of the standard required of a competent practitioner that it amounted to unsatisfactory professional conduct".
This Court is entitled to decide on the proper inference to be drawn from the facts, giving respect and weight to the conclusions of the trial judge. Her Honour's findings relevant to these allegations are to my mind contrary to the compelling inference of a lack of skill and care (and perhaps unwarranted confidence in his own drafting), on the part of the appellant, falling short of unsatisfactory professional conduct, which was taken advantage of inappropriately by the appellant's opponent in the negotiations. The complainant may well have had a civil remedy against the appellant, but to my mind his conduct was not unsatisfactory professional conduct.
In so saying, I do not lose sight of the fact that in a different statutory context Crawford J (as he then was) said in Law Society of Tasmania v Turner and Kench [2001] TASSC 129 at [51]:
"In my view par (a) should be given its literal meaning and that professional conduct that falls short of a standard of conduct that a member of the public is entitled to expect of a practitioner of good repute and competency amounts to unprofessional conduct under the Act. I am mindful that the literal meaning of the words may mean that all manner of human errors, mistakes and shortcomings on the part of practitioners in the course of their professional work may render them liable to disciplinary proceedings. However, if complaints are made alleging unprofessional conduct of a relatively trivial or minor character so far as gravity is concerned, then the consequence may only be one of admonishment or reprimand by the Council under s61(2)(a), or reprimand, caution or determination that the practitioner should apologise by the Council under s65B(2)(a), (b) or (f), dismissal of the complaint, admonishment or reprimand by the Disciplinary Tribunal under s76(1)(a) or (b), or dismissal of the complaint … "
In that passage his Honour noted that all manner of human errors in the course of a practitioner's professional work might render him or her liable to disciplinary proceedings but he did not deny that such allegations of unprofessional conduct may nonetheless result in the dismissal of a complaint if the character of the mistake fell short of that description. There remains a distinction to be drawn in cases such as the present between a lack of care and skill and unsatisfactory professional conduct.
I would allow grounds 1, 2, 3 and 4 of the notice of appeal against the learned primary judge's findings and orders as they relate to particulars 1, 2 and 11.1 of the complaint.

The house contract allegations (particulars 3 and 4)

The learned primary judge set out the relevant particulars and the evidence relating to these allegations at [69]-[78] of her reasons as follows:
"[69]   These allegations are contained in particulars 3 and 4 which are as follows:
'3    Provided negligent and/or incompetent advice to the Complainant.
Particulars
Advised the Complainant not to sign a contract with respect to the sale of the former matrimonial home to Jensen and/or Hardwicke and Allen ("the Contract") when the Court had made an order on 11 September 2008 that the Complainant "do all such things and sign all such documents as are necessary to effect the sale of the former matrimonial home".
(a) By telephone on 22 October 2008 the Practitioner advised the Complainant "not to sign anything …";
(b) The Practitioner's employed solicitor during a telephone conversation with the Complainant on 27 October 2008 advised her, "not to sign anything until Chris has spoken with her …";
(c) By a letter dated 1 December 2008, in relation to the sale of the matrimonial home to Jensen, the Practitioner advised the Complainant, "in our view you should not do anything until Counsel's advice is received".
4    Caused the Complainant to pay the Husband's legal costs with respect to an application filed with the Federal Magistrates Court on 30 October 2008
Particulars
(a) the Practitioner gave erroneous and poor advice to the Complainant not to sign the Contract; and
(b) the Practitioner failed to advise the Complainant to sign the Contract, before DMA made application for her to do so on the 30 October 2008.'
[70]     The orders made by the Federal Magistrates Court on 11 September 2008 provided specifically that the complainant do all such things and sign all such documents as were necessary to effect the sale of the former matrimonial home. After the court orders were made, the former matrimonial home was put up for sale. On or about 22 October 2008, an offer was made by Jensen to buy it for $261,000. The complainant spoke to the applicant about the offer on 22 October. At the time she did so, the complainant did not know the price offered, and had been asked to see the agent after her husband had signed the contract. The applicant's file note records that the applicant advised her not to sign anything, but to have the agent fax him a copy of the contract. The contract was faxed by the agent to the applicant later that day. A subsequent file note of the applicant indicates that he spoke to the agent some time thereafter, and advised that the complainant would not be signing the contract until issues relating to the property settlement were resolved. The applicant noted he said, 'won't have a partial settlement'.
[71]     On 27 October, the complainant spoke to an employed solicitor in the applicant's office. The file note then made records that the complainant told the solicitor that her husband had rung her and said 'she had better sign the contract or else". It also records that the solicitor advised her not to sign the contract until the applicant had spoken to her.
[72]     Prior to the contract of sale being presented, there had been ongoing correspondence between the applicant and the husband's solicitors in which the applicant reiterated that the complainant would not sign a contract until such time as the husband confirmed he had sufficient funds to make an adjusting cash payment. On 15 October, the husband's solicitors wrote to the applicant in the following terms:
'We will achieve nothing by going over old ground. The Order has been made, in the terms of the documents which you drew, and the parties are obliged to comply with it. Paragraph 1. prescribes arrangements for the sale of 13 Karambi Street. If your client impedes the sale, Mr Boxall will not hesitate to exercise the liberty to apply for further Orders in relation to the marketing and sale of the property. In that event, he will also be seeking an Order that your client pay his costs of that exercise on an indemnity basis.'
[73]     The applicant responded by letter dated 21 October. He went over the same dispute and ultimately said:
'Unless you have the courtesy to respond in an appropriate way then I suggest you take the application as foreshadowed by you. Delay can only be detrimental to any sale. In any application for costs I will present the chronology of correspondence sent to you including this letter putting Mrs Boxall's concerns and position.'
[74]     By letter dated 29 October, the applicant confirmed the complainant was not in a position to sign any contract until the husband's solicitors confirmed that the husband had funds available to achieve full settlement. He further said that, unless cash was raised by the husband, the complainant was entitled to retain her interest in the family business.
[75]     On 30 October 2008, the husband's solicitors filed an urgent application with the Federal Magistrates Court by which the husband sought an order that the complainant sign the Jensen contract. It was so ordered the next day at which time the issue of costs was reserved. That issue could not be resolved by agreement, and at the request of the husband's solicitors was relisted before the court for argument. The day before the hearing, the applicant wrote to the husband's solicitors indicating the complainant agreed to pay the costs in the amount sought.
[76]     The contract of sale was signed by the complainant on 14 November 2008. On or about 24 November 2008, a second offer to purchase was made by Hardwicke and Allen. It was sent to the applicant by the real estate agent at the complainant's request on 27 November 2008. At that point in time, the Jensen contract remained on foot but was not unconditional. The applicant advised the complainant in a letter dated 1 December not to do anything until counsel's advice was received and, in any event, suggested that she negotiate further to get an increased offer.
[77]     At that point in time, the applicant had sought advice from Mr Theobold of counsel about the difficulties with the court orders, and was waiting for his advice.
[78]     On 2 December 2008, the husband's solicitors wrote to the applicant pointing out that this was a more advantageous offer, and again threatened an application to the Federal Magistrates Court. On 17 December 2008, the husband's solicitors filed an application with the Family Court of Australia seeking an order, inter alia, that the complainant sign the second contract. The matter was listed for the next day. After the applicant received notice of that application and an accompanying affidavit, the applicant consented to an order that the complainant sign the contract."
The appellant's contention before the learned primary judge in relation to particular 3 of the complaint was that it was incumbent upon the appellant to give advice to the complainant concerning any defect there may have been with the orders, at least to the extent of advising her what action she might take to have the orders which provided for the sale of the home varied or set aside, and that there was no negligence or incompetence in advising the complainant to adopt a precautionary approach to the extent that she not sign the contract. The appellant also submitted that, in any event, the complaint was limited by the particulars and, on the first occasion, the appellant had not seen the contract, on the second occasion the advice was given by an employed solicitor, and on the third occasion the appellant was waiting for advice from counsel.
As to particular 4 of the complaint the appellant's contention was that there was no negligence or incompetence because ultimately the original orders were set aside, proving the advice given by the appellant was sound.
In my view, leaving to one side the first and second occasions particularised in particulars 3(a) and (b) of the complaint, the appellant's contentions as to the house contract allegations are a conflated and erroneous oversimplification of the course of events up to and including the impugned advice not to sign the contract that was given personally by the appellant to the complainant.
Whilst the appellant might be said to have been justified in advising the complainant not to sign the contract until he had sought urgent telephone advice from counsel, or had made an immediate application to the Federal Magistrates Court to stay the operative order until counsel's advice was received, to simply advise the complainant not to sign the contract while he waited for counsel's advice cannot be countenanced as proper professional advice in the circumstances. The orders were in force and demanded obedience.
I respectfully agree with and adopt the observations and findings of the learned primary judge, as well as her Honour's characterisation of the appellant's conduct as to this matter of complaint. At [87] of her Honour's reasons she said:
"[87] By his entrenched position, the applicant put the complainant at risk of an enforcement application which was ultimately successfully made, and also put her at risk of being ordered to pay the costs of that application. It was as a result of the applicant failing to advise the complainant to sign the Jensen contract at all, and then failing to advise her to do so in light of threatened enforcement proceedings, that the complainant was ordered to pay the costs of such an application. In that regard the applicant clearly caused the complainant to have to pay those costs. I am not only satisfied the factual basis for this complaint has been made out, but also that the conduct amounted to unsatisfactory professional conduct."
Whatever criticism might be levelled at the husband's solicitors for the way in which the consent orders were perfected in the face of the extant debate between them and the appellant as to the construction or effect of those orders, the fact remains that they were in force and there was no legal basis for non-compliance with them without a court ordered stay. The appellant must be taken to have known that.
I would dismiss ground 5 of the notice of appeal against the learned primary judge's findings and orders as it relates to particulars 3 and 4 of the complaint.

The counsel allegations (particulars 8 and 10)

Ground 5 of the notice of appeal challenges the method by which the learned primary judge characterised the appellant's conduct as found under these two particulars as unsatisfactory professional conduct. The conduct embraced "the counsel allegations" (particulars 8 and 10). Her Honour made no individual specific finding categorising that conduct but said at [131] of her 2016 reasons:
"131 I have in relation to most of the particulars I have dealt with made specific findings that the conduct of the applicant amounts to unsatisfactory professional conduct. As to others where that specific finding has not been made, but I have concluded that the factual basis for the complaint has been made out, I have considered the conduct complained of in light of the whole of the applicant's conduct found proved in these reasons. I am satisfied that, in that context, all complaints found proved give rise to a conclusion that the applicant's conduct amounted to unsatisfactory professional conduct."

In order to understand the effect of her Honour's characterisation of the conduct embraced by particulars 8 and 10, it is first necessary to examine her Honour's unchallenged findings as to those particulars, and then to consider whether she was justified in her satisfaction that such conduct "in the light of the whole of the applicant's conduct found proved" amounted to unsatisfactory professional conduct.
The learned primary judge made the following observations and findings as to these allegations at [88]-[113] of her reasons:
[88]     These allegations are contained in particulars 8 and 10 which are as follows:
'8    Breached section 143B of the Legal Profession Act 1993 or alternatively section 293(1) of the Legal Profession Act 2007.
Particulars
The practitioner:
(a) failed to obtain instructions and/or authority to engage Counsel, Mr Theobald and/or Mr Gunson; and
(b) did not make a statement as to the estimated costs of engaging Counsel, contrary to section 143B of the Legal Profession Act 1993 or section 293(1) of the Legal Profession Act 2007.
10   Charged the Complainant legal fees in relation to engaging counsel when not entitled to do so.
Particulars
(a) The Retainer Agreement between the Practitioner and Complainant provided at paragraph 5.1.5 except in circumstances of urgency or where it is otherwise impracticable, the firm is to discuss with and take into account the clients wishes when briefing Counsel;
(b) Contrary to the terms of the Retainer Agreement identified in subparagraph (a), the Practitioner undertook work in conjunction with retaining Mr Theobald prior to consulting with the Complainant and when there were no circumstances of urgency or impracticability.'
[89]     Particulars 8(a) and (b) related to breaches of legislative requirements, while particular 10 arises from an asserted breach of a retainer agreement.
[90] As to particulars 8(a) and (b), the relevant legislative requirements referred to are the Old Act, s 143B, and the Act, s 293(1). Section 143B provided that:
'143B Information if another legal practitioner retained
(1)   If a legal practitioner intends to retain another legal practitioner on behalf of a client, the first legal practitioner must give the client a written statement before retaining the legal practitioner setting out the details specified in section 143A(1)(b), (3)(c) and (d) in relation to the other legal practitioner, in addition to any information required to be given to the client under section 143A.
(2)   A legal practitioner retained or to be retained on behalf of a client by another legal practitioner is not required to give a statement to the client under section 143A, but must disclose to the first legal practitioner on request the information necessary for the first legal practitioner to comply with this section.
(3)   In urgent circumstances, the statement may be given orally before the legal practitioner is retained and is to be confirmed in writing as soon as practicable afterwards.'
The Act, s 293(1), provides:
'293     Disclosure if another law practice is to be retained
(1)   If a law practice intends to retain another law practice on behalf of the client, the first law practice must disclose to the client the details specified in section 291(1)(a), (c) and (d) in relation to the other law practice, in addition to any information required to be disclosed to the client under section 291.
(2)   A law practice retained or to be retained on behalf of a client by another law practice is not required to make disclosure to the client under section 291, but must disclose to the other law practice the information necessary for the other law practice to comply with subsection (1).
(3)   This section does not apply if the first law practice ceases to act for the client in the matter when the other law practice is retained.

Note. An example of the operation of this section is where a barrister is retained by a firm of solicitors on behalf of a client of the firm. The barrister must disclose to the firm details of the barrister's legal costs and billing arrangements, and the firm must disclose those details to the client. The barrister is not required to make a disclosure directly to the client.'

[91]     The applicant briefed two counsel, Mr Theobold and Mr C Gunson, to deal with aspects of the complainant's matter. Mr Theobold was briefed by letter dated 6 November 2008. The applicant's ledger records record a long attendance on the file on 5 November 2008 to consider issues and the proposed letter of instruction to Mr Theobold. The complainant, in par 88 of her affidavit sworn 12 March 2013, said that the applicant telephoned her on 10 December 2008 to say he had decided to engage Mr Theobold. She said he did not ask her opinion and she just went along with him. In her written submissions, counsel for the Board said this date was 10 November. Having regard to the ledger records, it is clear the complainant made an error in her affidavit and that the date was meant to be 10 November. The applicant disputed that he told the complainant about Mr Theobold on 10 November, or indeed any date after that.
[92]     The complainant also said in her affidavit that:
-     The applicant did not ever ask her whether she wanted to engage counsel.
-     An application was made to the Federal Magistrates Court after the applicant sought Mr Theobold's advice and that was listed for 18 May 2009.
-     It did not proceed.
-     A hearing was then listed in the Federal Magistrates Court on 10 August 2009.
-     After the applicant was told in May 2009 of the possibility Mr Theobold might not be available on the August date, he wrote to the court asking if the date could be changed.
-     On 4 June 2009, the court advised the applicant he should consider engaging other counsel.
-     She did not know of Mr Gunson's involvement until she saw his August 2009 invoice.
[93]     In the applicant's affidavit sworn 27 March 2013, he said, at par 131, that he raised the need to obtain counsel's opinion with the complainant 'prior to 5 November 2008' when discussing with the complainant the outcome of the court hearing on 31 October when orders were made directing her to sign the Jensen contract. The applicant did not identify precisely when this discussion occurred. In his evidence before the Board, the applicant said he had a telephone discussion with the complainant on 7 November during which he discussed the husband's costs application following the successful enforcement proceedings.
[94]     The applicant's ledger records are attached to the complainant's affidavit. There is no attendance by the applicant on the complainant recorded between 31 October and 5 November 2008. There is a record of a short telephone call on 7 November, and one noted at 20 minutes on 10 November.
[95]     At par 132 of his affidavit, the applicant said that, when he first briefed Mr Theobold on 6 November he did so on his own behalf, and undertook to pay for his initial advice. That statement is obviously inconsistent with the applicant's ledger records which record as a charge to the complainant the long attendance on the file on 5 November.
[96]     As to briefing Mr Gunson, the applicant said at par 138 of his affidavit that Mr Theobold did not confirm his unavailability to be counsel at a hearing to commence on or about 10 August 2009 until 21 July 2009. Mr Theobold had previously indicated that he may not be available, that indication having been given at the end of May 2009. The applicant spoke to Mr Gunson on 21 July. While the applicant's ledger records show the applicant telephoned Mr Gunson on 21 July, the account he subsequently rendered to the complainant suggests the applicant's first contact with Mr Gunson was on 31 July (see annexure 43 to the complainant's affidavit).
[97]     At par 140 of his affidavit, the applicant said about briefing Mr Gunson:
'It is my regular practice always to tell my clients about my selections of Counsel. It was necessary in this case to prepare affidavit material for Andrea on the advice of Counsel and it is inconceivable to me that I would not have told her of Mr Gunson's involvement in her matter.'

[98] The ledger records of the applicant record his telephone attendances on both Mr Theobold and Mr Gunson on 21 July 2009. Those records also show two telephone attendances on Mr Gunson on 31 July, and one on the complainant on 5 August. There is nothing prior to 21 July or between then and 5 August, to indicate any attendance on the complainant to obtain her instructions to engage Mr Gunson. The preparation of documents for court on 10 August appears to have been done on 5 August.
[99] The complaint in particular 8(a) is that the applicant failed to obtain instructions and/or authority to engage Mr Theobold and/or Mr Gunson. The complaint is said to be a breach of either s 143B or s 293(1). Both sections require a practitioner to disclose information to a client when a barrister is to be engaged. Section 143B(1) requires that the relevant information be given before any barrister is retained, although s 143B(3) provides for oral advice in urgent circumstances. The Act, s 294(2), provides that advice under s 293 is to be given before, or as soon as is practicable thereafter, the barrister is retained.
[100] Particular 8(b) relates to an assertion that the applicant did not provide an estimate of costs of engaging counsel. In his affidavit sworn 27 March 2013, the applicant said at par 133 that on 18 November 2008, he sent to the complainant a copy of his letter to Mr Theobold dated 6 November, and also forwarded to her Mr Theobold's costs agreement of 12 November. The applicant then said at pars 134-136:
'134 Neither Mr Theobald nor Mr Gunson ever provided to me an estimate of their likely costs. Nevertheless, I provided to Andrea an estimate of the anticipated future costs of applying to have the Consent Orders varied or set aside on 23 February 2009, by which time I had had a chance to consider Mr Theobald's advice and what may need to be done and again 18 March 2009. Those estimates, which were in the sum of $5,500, were inclusive of Counsel's costs.
135 Money was retained in trust from the sale of the matrimonial home for that purpose and with Andrea's consent.
136 I wrote back my own costs to ensure that the combined costs of Counsel and of myself did not exceed the estimate I had given.'

[101] In his written submissions under the heading relating to this particular, counsel for the applicant referred to this material, and then submitted that, in relation to the complainant, she had admitted she was aware that the applicant had said it would be necessary to brief counsel, that she had no recollection of receiving the letter of 18 November from the applicant, and that she understood the estimate of fees was $5,500. Counsel referred to specific passages in the cross-examination of the complainant where it was said these admissions were made. Those "admissions" need to be put in context. The exchange between the complainant and counsel for the applicant was as follows:
'MR WOOD: Yes, all right. (Resuming): Mrs Boxall, would you turn to paragraph 87 of your affidavit please? Now you say in paragraph 87 that Mr Boland didn't ever ask you whether you wanted to engage counsel?.....No.
But after your husband's application to have you sign the contract was successful you had a discussion with Mr Boland about - …..He rang me up.
- what you should do next…..And he told me he'd have to engage counsel and he said about Mr Theobald because my husband had got counsel and he couldn't compete with that and he had to get counsel as well.
All right, so he said it was necessary to brief counsel?.....Yes.
All right, so Mr Boland wrote to you on the 18^th of November and he sent you a copy of his letter to Mr Theobald on the 6^th of November?.....I don't recall.
You don't recall?.....What year was this sir?
This is 2009?.....Yeah -
I'm sorry, 2008.……It's five years ago.
CHAIRMAN: This is annexure '27' of Mr Boland's affidavit?
MR WOOD: Yes it would be. Might Mrs Boxall be shown a copy of annexure '31' to Mr Boland's affidavit, page six?
MR CHAIRMAN: 687?
MR WOOD: 687. (Resuming): Mrs Boxall would you have a look at that letter please.……Mhm.
Do you recall receiving that letter?.....No I don't recall most letters, it's 2008, that was several years ago.
If I put it to you that you knew that Mr Theobald was to be briefed?.....He rang me and told me that he had to engage counsel is what he said to me.
All right, and that there would be further costs from that time if some action was taken?.....I understood the five thousand five hundred to be for that.
All right. And Mr Boland wrote to you and provided you with an estimate of those costs on the 23^rd of February, the five thousand five hundred dollars?.....No I don't recall that.'

[102]    It is clear that the complainant's evidence about her awareness of the need to engage counsel arose from the applicant ringing her up about it. The evidence established, in my view, that that telephone call did not occur until after the applicant had briefed Mr Theobold. It is also clear the complainant did not recall receiving the applicant's letter of 18 November, although she did not deny she had received it. A copy of that letter appeared as annexure 31 to the applicant's affidavit. Annexure 32 to the same affidavit is the costs agreement between Mr Theobold and the applicant dated 12 November. In the letter, the applicant speaks of proposing to retain Mr Theobold. The applicant asks in his letter to the complainant to sign the costs agreement 'with a view to obtaining counsel's advice at the earliest date'. The applicant had already sought that advice. Neither the applicant's letter to the complainant of 18 November nor Mr Theobold's costs agreement contained any estimate of actual costs or fees to be charged.
[102]    As to the estimate of $5,500 for fees, the applicant said in his affidavit at par 134 that he wrote to the complainant on 23 February 2009 providing a fee estimate of $5,500 and then again on 18 March 2009, and that that estimate included counsel's fees. I have already extracted at [100] pars 134-136 of the applicant's affidavit about this issue. The complainant said she did not recall receiving a letter of 23 February although she had earlier said she understood the $5,500 to refer to 'further costs from time to time if some action was taken'. The applicant's ledger records do not include any reference to a letter sent to the complainant on 23 February or in the few days before or after that date. There is also no record of any letter to the complainant of 18 March or any attendance upon her on that date. No copy of either letter to which the applicant referred was annexed to his affidavit.
[103]    As to particular 8(b), I have already referred to the requirements in ss 143B(1) and 294 as to when estimates of costs and other information are to be given to a client. Any estimate the applicant may have given to the complainant about Mr Theobold was not, even accepting the applicant's evidence about advice on 23 February and 18 March, given until nearly three months after Mr Theobold was briefed. There was no suggestion that for some reason it was impracticable for it to have been done in compliance with the legislative requirements. There is of course no evidence it was ever done in relation to Mr Gunson, because as at February/March 2009 there was no suggestion he might be engaged as counsel.
[104]    I am not satisfied in the circumstances that the applicant provided to the complainant any information about briefing either counsel prior to doing so, or that he provided to the complainant in accordance with the requirements of either ss 143B or 293(1) an estimate of the costs which would be incurred relative to the involvement of counsel. I am satisfied therefore that the factual basis for both particulars 8(a) and (b) is made out by the Board.
[105]    As to particular 10, that refers to the applicant's retainer. The applicant had a written agreement with the complainant which outlined the basis of his retainer. That agreement at par 5 provided:
'BRIEFING COUNSEL
5.1   The firm is authorised as agent for the client to brief counsel to appear, confer, advise and draw and/or settle documents provided that:
5.11   Except in circumstances of urgency or where it is impracticable, the firm is to discuss with and take into account the client's wishes when briefing counsel; and
5.12   Wherever practicable the firm is not to, without the client's prior approval, brief counsel at a rate higher than fixed under the Family Law Rules.

5.2 The client must pay all counsel fees which are billed to the firm.'

[107]    The applicant's retainer agreement provided that he was authorised as agent for the complainant to brief counsel to appear, confer, advise and draw and/or settle documents provided that, 'except in circumstances of urgency or where it is impracticable', he was to discuss with and take into account the complainant's wishes when briefing counsel. Counsel for the applicant submitted that, properly construed, the retainer agreement did not make consultation with the complainant in the circumstances of this case a precondition to the applicant's right to engage counsel.
[108]    Leaving aside initially the particular facts of this case and focusing on the terms of the retainer agreement, clearly the applicant was authorised by his retainer to brief counsel. However, that authorisation was qualified as to the circumstances in which he could do so without firstly discussing the question with, and taking into account the wishes of, the complainant about it. He could only brief counsel without reference to the complainant in circumstances of urgency, or where it was impracticable to do so. That is, the applicant did not have an unfettered right to brief counsel. Unless the circumstances were urgent or it was impracticable for him to obtain it, the applicant had no authority to engage counsel without firstly discussing it with the complainant. There is, in my view, no other way to construe that paragraph in the retainer. I reject the submissions of counsel for the applicant to the contrary.
[109]    Against that background, it is necessary to look at the facts of this case. The complainant says she was not told of Mr Theobold's engagement until 10 November 2008. The applicant disputes that. The applicant said he 'raised' with the complainant the need to obtain counsel's advice prior to 5 November. The applicant's evidence is equivocal as to when, prior to 5 November, that occurred. His ledger records do not disclose any attendance on the complainant between the attendance at court on 31 October, and when he spoke to her briefly on 7 November. Further, the applicant's evidence was that, when he briefed Mr Theobold by letter of 6 November 2008, he did so on his own behalf, and by implication, not on behalf of the complainant. That proposition is not supported by the applicant's ledger records.
[110]    There was no evidence to suggest that issues of urgency or impracticability impinged upon the ability of the applicant to discuss briefing counsel with the complainant. Therefore, the applicant had to discuss briefing Mr Theobold with the complainant before he did so. Absent that discussion, he did not have authority by reference to his retainer to brief Mr Theobold on the complainant's behalf. I am not satisfied the applicant had any such discussion with the complainant prior to briefing Mr Theobold by letter dated 6 November. In those circumstances, the applicant had no authority to brief Mr Theobold when he initially did so.
[111]    As to the briefing of Mr Gunson, there is again no suggestion that he was briefed in circumstances of urgency or impracticability, such as to override the need to discuss his being briefed with the complainant. Beyond saying it was inconceivable he would not have told the complainant about Mr Gunson's involvement, there is nothing in the applicant's ledger records to support any argument that the applicant did discuss briefing Mr Gunson before he actually did so. For the same reasons as before, absent that discussion, the applicant had no authority to brief. I am satisfied the applicant had no such discussion with the complainant and therefore, that he briefed Mr Gunson without authority.

Tennent J observed that in questioning to which she referred, the appellant "appeared to try to justify his actions on the basis that this was just all negotiations, they were not concluded negotiations, and the set of orders that he prepared did not represent his client's offer". Her Honour found that this suggestion was "a nonsense". I agree. In addition, her Honour found that it could be "clearly inferred" from the evidence that the appellant "made a conscious decision not to put a specific provision in the document he sent which provided for the husband to make a cash payment, because he knew from his correspondence with the husband's solicitors that the husband would not agree to that." Again, I agree. The additional evidence to which I have referred makes that position clear.
Like Tennent J, I am satisfied that the factual basis for the first particular was made out and that the appellant's conduct in preparing the Minutes without a provision for a cash payment amounted to unsatisfactory professional conduct. As to the second particular of complaint related to the filing of the Consent Orders, I agree with Tennent J that the appellant "clearly authorised" the filing of the Minutes. Particular 2 was made out.
In the totality of the circumstances, such conduct went beyond mere negligence. The totality of the conduct which culminated in the preparation and presentation of the signed Minutes, and authorising the filing of the Minutes, particularly in view of the knowledge of the appellant to which I have referred, puts the conduct in the more serious category beyond minor errors, mistakes or shortcomings of the type to which Crawford J (as he then was) referred in Law Society of Tasmania v Turner and Kench [2001] TASSC 129 at [51]. It amounted to unsatisfactory professional conduct which, considered in isolation from subsequent conduct, more than justified a reprimand.

Particular 11.1

Associated with the preparation and filing of the Minutes was particular 11.1 concerning the appellant charging fees directly relating to setting aside the Consent Orders. That particular is set out in par [15] of the reasons of Estcourt J.
In substance, this complaint asserted that in charging for work required to set aside the Consent Orders, the appellant's conduct amounted to unsatisfactory professional conduct because he knew that the requirement to set aside those Orders existed only because he had failed in his duty to his client by authorising the filing of defective Orders. Tennent J reached the following conclusion:
"[66] Leaving aside the issue of quantum, with respect, the submissions of counsel for the applicant reveal a complete lack of insight by the applicant into the behaviour expected of a competent practitioner. In blunt terms, the applicant had prepared a memo of consent orders which did not achieve its aim. He then facilitated its conversion into actual court orders, knowing at the time there was going to be a problem because the orders did not provide for a cash payment his client wanted, and which he knew her husband would not agree to pay. Having created that situation, I agree it was inevitable that the orders would need to be set aside. However, had the applicant acted competently in the first place and prepared orders which gave effect to what his client wanted, steps to persuade the husband's solicitors to accept the applicant's interpretation of the orders and to set the orders aside would not have been required. The actions the applicant undertook after the orders were actually made, and for which he charged the complainant, would not have been required but for the applicant's conduct. Common sense, let alone the standards of a competent practitioner, with respect, dictated the applicant should not have charged the complainant to correct a situation he largely created by his own lack of competence.
[67] It follows that, not only am I satisfied that the factual basis for this complaint has been made out by the Board, I am also satisfied that the applicant's conduct fell so far short of the standard required of a competent practitioner that it amounted to unsatisfactory professional conduct."
I agree with Tennent J.
For these reasons I would dismiss the appeal as it relates to particulars 1, 2 and 11.1 of the complaint, being grounds 1 – 4 of the notice of appeal filed 10 January 2017.

The house contract allegations (particulars 3 and 4)

I would dismiss ground 5 with respect to particulars 3 and 4 of the complaint for the reasons given by Estcourt J.

The counsel allegations (particulars 8 and 10)

Particulars 8 and 10 of the complaint concerned the conduct of the appellant in briefing to counsel. Those particulars were:
"8Breached section 143B of the Legal Profession Act 1993 or alternatively section 293(1) of the Legal Profession Act 2007.
Particulars
The practitioner:
(a)failed to obtain instructions and/or authority to engage Counsel, Mr Theobald and/or Mr Gunson; and
(b)did not make a statement as to the estimated costs of engaging Counsel, contrary to section 143B of the Legal Profession Act 1993 or section 293(1) of the Legal Profession Act 2007.
10Charged the Complainant legal fees in relation to engaging counsel when not entitled to do so.
Particulars
(a)The Retainer Agreement between the Practitioner and Complainant provided at paragraph 5.1.5 'except in circumstances of urgency or where it is otherwise impracticable, the firm is to discuss with and take into account the clients wishes when briefing Counsel;
(b)Contrary to the terms of the Retainer Agreement identified in subparagraph (a), the Practitioner undertook work in conjunction with retaining Mr Theobald prior to consulting with the Complainant and when there were no circumstances of urgency or impracticability."
Tennent J found that the facts asserted in particulars 8 and 10 had been proven. However, her Honour did not make a specific finding that the proven facts established that the conduct of the appellant in these respects, considered in isolation, amounted to unsatisfactory professional conduct. This conduct was part of the total course of conduct to which her Honour had regard in finding that the appellant's conduct amounted to unsatisfactory professional conduct.
Estcourt J has helpfully set out the relevant passages from the judgment of Tennent J concerning these particulars. The reasons of Tennent J demonstrate that there were no circumstances of urgency which would justify the failures of the appellant to comply with his obligations. There were no other circumstances which mitigated those failures.
In addition, the appellant's conduct occurred against the background of his earlier unsatisfactory professional conduct. This was part of the sequence of events directly connected with the conduct of the appellant with respect to the Consent Orders. In that context, in my view, Tennent J reached the correct conclusion.

The remaining overcharging allegations (particulars 11.2 and 11.3)

In respect of these particulars, I respectfully agree with Estcourt J.

Approach to determination

Ground 2 of the second notice of appeal dated 27 September 2018 complains that Tennent J erred in determining that the cumulative effect of the appellant's conduct gave rise to a need for a reprimand, rather than considering each of the specific findings under the particulars of the complaint. That ground of appeal is as follows:
"2That her Honour erred in law in failing to make her determination as to a reprimand by reference to specific findings about whether the factual basis of each particular of the complaint was made out and bore the character of unsatisfactory professional conduct such as to warrant a reprimand and instead determining, at par 25 of her judgment, that it was the cumulative effect of the appellant's conduct which gave rise to the need for a reprimand."
Tennent J found that the facts asserted in each particular of the complaint were proven. In respect of the conduct covered by particulars 1–4, 11.1 and 11.2, her Honour found that in each instance the conduct amounted to unsatisfactory professional conduct. However, with respect to the conduct covered by particulars 8, 10 and 11.3, her Honour did not find that, individually, the conduct amounted to unsatisfactory professional conduct. Her Honour had regard to the conduct covered by particulars 8, 10 and 11.3 as part of the total course of conduct which led to a conclusion that the appellant's overall conduct amounted to unsatisfactory professional conduct. That conclusion is set out in the following paragraph:
"[131] I have in relation to most of the particulars I have dealt with made specific findings that the conduct of the applicant amounts to unsatisfactory professional conduct. As to others where that specific finding has not been made, but I have concluded that the factual basis for the complaint has been made out, I have considered the conduct complained of in light of the whole of the applicant's conduct found proved in these reasons. I am satisfied that, in that context, all complaints found proved give rise to a conclusion that the applicant's conduct amounted to unsatisfactory professional conduct."
Subsequently Tennent J delivered further reasons explaining her approach to this issue:
"[19]     As to the applicant's conduct which gave rise to the adverse findings against him, the Court is not dealing with just one act. It is dealing with a course of conduct which encompassed different types of conduct over a period of time. That course of conduct, in my view, fell far short of the standard of competence and diligence that a member of the public would be entitled to expect from a reasonably competent practitioner.
[20]     In summary, the applicant's course of conduct began with the preparation of a set of proposed orders which he drafted for his client and intended would be converted into orders of the Federal Magistrates Court or Family Court of Australia. Those proposed orders were drafted in such a way that they could not give effect to what the applicant knew his client wanted. Knowing that to be the case, the applicant allowed the proposed orders to be converted into actual orders of a court. He did not thereby protect his client's interests.
[21]     The applicant, notwithstanding the proposed orders he drafted had been formalised as orders of a court, continued to argue for an interpretation of the orders which was inconsistent with the orders as made on their face, and which he knew the other party to them did not and would not accept. One order by which the applicant's client was bound required her to sign a contract to sell a family home. The applicant advised her not to do so, placing her in breach of an order of a court and leaving her subject to enforcement proceedings. The applicant engaged counsel when his retainer did not allow him to do so without consulting the client, and failed to advise the client of fees he was charging at increased rates. As a result of counsel's advice, further court proceedings were required to 'undo' the problem the applicant had created by the proposed orders he drafted. The applicant charged the client fees for that work.
[22]     The course of conduct the applicant engaged in revealed a lack of insight into the behaviour which should be expected of a reasonably competent practitioner. The process the client was involved in for the purpose of obtaining a property settlement was extended far beyond what it should have been as a result of the applicant's conduct.
[23]     In my view, it is not appropriate, because of the continuing course of conduct the applicant engaged in, to attempt to isolate those parts of the conduct complained of which might be considered more serious than others and thus might attract a particular determination. It is the cumulative effect of the applicant's conduct which gives rise to the need for a particular determination. A reprimand, in my view, is the only appropriate determination because it will demonstrate to the applicant the seriousness with which disciplinary authorities take the type of conduct he engaged in, and act as a warning to other practitioners."
In my opinion Tennent J adopted an appropriate and sensible approach to the determination that the appellant's conduct amounted to unsatisfactory professional conduct and that a reprimand should be issued: Stirling v Legal Services Commissioner [2013] VSCA 374 at [74] and [75]. The factual basis for the determination could only be found in considering the entire course of conduct in which the appellant engaged over the relevant period. It would have been artificial to have isolated each aspect of the appellant's conduct, although in certain respects the individual features were sufficiently serious examples of unsatisfactory professional conduct to have warranted a reprimand in themselves.
There is no substance in this complaint.

Repayment of fees

Ground 3 of the second notice of appeal challenged the order of Tennent J that the appellant pay to the wife the amount of $11,300:
"3There was no basis for her Honour to make the determination at par [51] that the appellant repay the [wife] the sum of 11,300 because the evidence was incapable of satisfying the Court on the balance of probabilities that the sum of $11,300 has been overcharged."
Particulars 11.2 and 11.3 of the complaint allege that the appellant undertook work that was unreasonable and/or unnecessary and overcharged the wife. Included in the list of invoices was invoice number 4333. The appellant sued the wife for recovery of fees and disbursements charged in invoice 4333 and a compromise was reached which required the wife to pay $8000 for legal costs and a disbursement of $2750.
Tennent J noted that in those proceedings there were no counterclaims or set-offs raised, but some of the matters raised in the defences were matters which had been the subject of the wife's complaint to the Board.
Section 454(2)(e) empowered the Board to make a determination that the appellant "repay the whole or part of any fees paid by a specific person in respect of specified work". The written submissions of the appellant, which were not addressed in oral argument, advanced the following contentions:
"The substantive legal issue in Appeal No 2 concerning the extent to which the Court could be comfortably satisfied that there is a sufficient basis for imposing the orders made in Boland (No 2) also arises because there was evidence before the Court of a compromise of the Practitioner's claim for fees outstanding on invoice 4333.
It is not contended that any estoppel by compromise or res judicata arises in respect of a finding which the Board or the Court may make that a practitioner's conduct amounts to unsatisfactory professional conduct.
The submission goes only to whether monetary compensation should be ordered, where the matters of complaint which the Second Respondent pursued against the Practitioner were matters that she could properly have advanced in her defence of those proceedings and for the purpose of any counter-claim and any set off she may have had.
To that extent, the compromise reached, and formalized in the form of consent orders, ought to have been considered as extending to any claim that it was unreasonable not to advance in those proceedings and thus to the claim for compensation later pursued by the Second Respondent.
That is so notwithstanding that the scope of a compromise may be difficult to determine.
See: Derks v R&J Fibreglass Pty Ltd [2009] VSC 601 (paras 20 to 24 and 33).
It is no answer to say that evidence was not before the Board in the form of pleadings and correspondence. The Board knew that there had been a compromise. The consent order was attached to the Affidavit of Ms Malcolm.
See: Appeal Book (2.1-473).
The Board was charged with investigating a complaint in which it was necessary to prove the basis for imposition of a compensation order – if that was what was sought – and not as though in litigation inter partes the Complainant and Respondent; but in the due exercise of the Board's statutory function.
Without proper investigation of the compromise and what lay behind it, neither the Board nor the Court could have been comfortably satisfied of the need for a compensation order."
After rejecting an application to call fresh evidence and a submission that the compromise gave rise to an estoppel, neither of which rulings are challenged, Tennent J set out how she came to the figure of $11,300:
"In addition to his other submissions, counsel for the applicant submitted that there was no basis in any event for this Court to make a determination as sought because the evidence was incapable of satisfying the Court on the balance of probabilities that there was any basis for a repayment.
At [68] of the first decision, I concluded that the evidence before me enabled me to agree with and adopt the Board's position that in relation to particular 11.1 the amount of overcharging involved was at least $10,000. That decision was made after a consideration of the invoices attached to Ms Malcolm's affidavit and other evidence. With respect to counsel for the applicant, there was, in my view, evidence which could satisfy me on the balance of probabilities as to that figure at the very least.
At [126] I accepted the amount of overcharging was $4,043.13 in relation to particular 11.3(a). That finding does not however automatically lead to that amount being the subject of a determination pursuant to s 454(2)(e). There is no doubt, having regard to the table which appears at [114] of the first decision, that $2,750 of the overcharge amount related to invoice 4333. There can also be no doubt having regard to Ms Malcolm's affidavit that she was aware of the compromise of invoice 4333 by reference to the consent order by which the applicant agreed to accept by way of fees a figure less than his total claim.
I have already referred to excerpts from the transcript of proceedings before the Board to which counsel for the Board referred me. There is clearly an argument by reference to the material before the Board that any overcharging figure relevant to invoice 4333 should not be the subject of any s 454(2)(e) determination.
As to evidence about other amounts which might be the subject of s 454(2)(e) determinations, I found at [87] of the first decision that Ms Boxall became liable to pay costs to her husband as a result of the enforcement proceedings. This was the subject of particular 4. Those costs amounted to $957.50. There is evidence relating to that obligation in volume 2 at pages 112 and 171. The actual amount paid was adjusted by reference to arrears of rates down to $737.43. There is also an overcharging amount of $890 by reference to invoices 3450, 3539, 3911 and 3814. That information can be gleaned from Ms Malcolm's affidavit and the report of Mr Wood.
There is therefore evidence from which I can be satisfied on the balance of probabilities that a repayment amount of at least $11,847.50 is supported, made up of the $10,000, [47] of these reasons, $957.50, [50] of these reasons, and $890, [50] of these reasons. Given the claim by counsel for the Board that the determination amount to $11,300, that figure is amply justified."
In the written submissions to which I have referred, the appellant incorrectly categorised the order for repayment as a "compensation order". I agree with the following written submission of the respondent:
"Orders made pursuant to s 454(2)(e) of the Act are directed at making sure practitioners found guilty of unsatisfactory professional conduct are not financially rewarded for work that was unnecessary, incompetently done or not done at all. In that sense, they are not compensatory. They are part of the suite of orders available to be made by the [Board] and the Court to promote and enforce the professional standards and competence of legal professionals and protect consumers of their services and the public generally."

In my opinion there was ample evidence to justify the making of the order and to support the determination as to the amount that should be repaid by the appellant to the wife. The totality of the circumstances demanded nothing less. Both the Board and Tennent J were aware of the compromise, but were more than justified in determining that the compromise did not detract from the force of circumstances which provided a compelling case for the order that was made.

Ground 4 – second appeal

Ground 4 concerns the order that the appellant pay to the Board the amount of $30,000 in relation to the costs of the Board in investigating and hearing the complaint:
"4that there was no evidence before the Court, in any properly admissible form, as to:
a the nature of the costs claimed to have been incurred by the Board in investigating and hearing the complaint;
b the allocation of those costs to any grounds of complaint that were investigated and/or heard;
such as to provide a basis for her Honour to order that the Appellant pay to the Board the sum of $30,000 relating to the costs of the Board incurred to investigate and hear the complaint."
Tennent J dealt with this issue in her second judgment:
"[52] Counsel for the Board sought a determination that pursuant to s 454(2)(m) the applicant pay to the Board the sum of $30,000 in relation to the costs incurred by the Board in investigating and hearing the complaint against the applicant. A determination to that effect had been made by the Board. Counsel for the Board submitted that in fact costs far in excess of that amount had been incurred in relation to counsel's fees and costs assessments, but that the Board had agreed to compromise the total. In fact it was submitted that the costs exceed $70,000, and I was referred to a table which set out how that total was calculated, which I was told was provided to the Board.
[53] Counsel for the Board advised that the Board was prepared to still seek a determination in that amount. Counsel for the applicant opposed the making of any such determination. He submitted that this Court had no evidence in any properly admissible form as to the nature of the costs claimed. It is true that the Board did not seek to tender to the Court invoices from either its counsel or any costs assessor. However, the table to which counsel for the Board referred was before the Board, it is patently clear that costs of some significant description for counsel and costs assessments were incurred, and counsel for the applicant before the Board, and in this Court at the hearing which resulted in the first decision, made no submission whatsoever to the effect that costs of the nature claimed had not been incurred. It must be inferred that, while there was no formal consent to an order in the terms sought by the Board, counsel for the applicant did not challenge the quantum pursued were it sought."
In my view, there was ample material to support the determinations by the Board and Tennent J. There is no substance in this ground.

Conclusion

For these reasons, in my opinion, the appeal should be dismissed.

Invoice	Date	Total	Value of work to set aside/persuade DMA to agree with him	Item No of work
3759	19.9.08	$18,585.78	$770.000¹	All work completed subsequent to 11.8.08
3912	18.2.09	$8,778.88	$8,778.88²	All work on the invoice.
4088	12.8.09	$3,932.65	$3,932.65	All work on the invoice
11.8.09	$3,025.00	$3,025.00³	Mr Gunson's invoice
4333	18.5.10	$16,940.79	$110.00⁴	Costs incurred on 12.8.09 & 13.8.09
Total	$51,263.10	$16,616.53