Fenral Nominees Pty Ltd v Legal Practice Board

SUPREME COURT OF VICTORIA
COMMON LAW DIVISION	Not Restricted

No. 5783 of 2000

FENRAL NOMINEES PTY LTD (TRADING AS RESIDENTIAL & COMMERCIAL PROPERTY TRANSFER CO)	Appellant
v
LEGAL PRACTICE BOARD	Respondent

---

JUDGE:	Hansen J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 October; 21, 24 & 29 November; 12 December 2000
DATE OF JUDGMENT:	22 December 2000
CASE MAY BE CITED AS:	Fenral Nominees Pty Ltd v Legal Practice Board
MEDIUM NEUTRAL CITATION:	[2000] VSC 489

---

Conveyancer – Former legal practitioner convicted of offences and struck off the roll – Prohibition against being employed as a conveyancer – Application to authorise employment as a conveyancer – Refusal by Legal Practice Board – Appeal – Legal Practice Act 1996, Part 13.

---

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr M Rozenes QC with Miss G Grigoriou	McGrath Carey Katz
For the Respondent	Dr J F Bleechmore	Joseph A Barravecchio

HIS HONOUR:

1. Introduction

Fenral Nominees Pty Ltd carries on the business of a conveyancing practice under the name Residential & Commercial Property Transfer Co ("Residential & Commercial") at 92 High Street, Northcote. In Part 13 of the Legal Practice Act 1996 ("the Act" or "the new Act") there is a provision which prohibits, except with the authority of the Legal Practice Board, a person whose name has been struck off the roll of practitioners of the Supreme Court from being employed in connection with the performance of conveyancing work (unless the person has been re-admitted). Peter Petsinis is such a person. His name was struck off the roll in 1984 and he has not been re-admitted.

Petsinis was employed in Fenral's conveyancing practice between mid-1985 and 23 May 2000. It is the wish of Fenral and Petsinis that Petsinis continue to be employed by Fenral to perform conveyancing work in the practice. For this purpose, by a letter dated 30 March 2000, Fenral applied to the Legal Practice Board for authority to employ Petsinis as a conveyancer. On 22 May the Board resolved not to authorise Fenral to employ Petsinis. The Board's letter of notification advised that Petsinis must immediately cease work as a conveyancer. As a result he ceased his employment on 23 May. The Board provided reasons for its decision on 30 May. By a notice dated 16 June Fenral appealed from the Board's refusal pursuant to s. 328(2) of the Act.

It is common ground that the appeal is a hearing de novo.

I initially heard the appeal on 5 October 2000. On 21 November when I proposed to give judgment and came into court to do so, counsel for the Board asked me not to deliver judgment as he wished to apply to re-open its case in light of new evidence relating to Petsinis' involvement in work performed for Kellie Jean Rose. Counsel was not then in a position to call Rose or indeed to make the application. He had only an affidavit from a solicitor whom Rose had engaged. The affidavit was insufficient for a hearing of the application but it suggested that Petsinis may have been involved in conveyancing work since 23 May, contrary to his evidence on the appeal. Further, and very seriously, it suggested that Petsinis had engaged in legal work. Counsel sought a long adjournment to enable the Board to investigate the allegations, but in the circumstances I stood the proceeding over to 24 November. On that day I was informed that a subpoena was in the process of being served on Rose; in the circumstances, and having regard to the fundamental nature of the foreshadowed point, I further stood the matter over to 29 November. On 29 November I heard evidence from Rose, who was cross-examined, and allowed the Board's application on the basis that Rose's evidence be the further evidence relied on by the Board. I then adjourned the further hearing of the appeal to 12 December to enable the appellant to consider its response to the new evidence. In the result, Petsinis and his wife swore affidavits and they were cross-examined at the further hearing on 12 December. In this judgment I treat all the evidence as one body, without necessarily specifying the stages at which it was given.

2. The Statutory Context

Until the Act came into force on 1 January 1997, the legislation which regulated the legal profession in Victoria was the Legal Profession Practice Act 1958 ("the old Act"). Sections 90–97 contained provisions which concerned unqualified persons acting or practising as legal practitioners. Relevantly to this appeal, persons not admitted as legal practitioners were prohibited from acting or practising or holding themselves out as such (s. 90); it was an offence for an unqualified person to pretend to be qualified (s. 92), or to prepare any instrument creating or regulating rights between parties or relating to real or personal property or any legal proceedings unless the act was not done for or in the expectation of fee gain or reward (s. 93).

In substance, although not in the same terms, these provisions were incorporated in Part 12 (Unqualified Practice) of the new Act. Part 13 (Conveyancing Businesses) of the Act introduced a new set of provisions concerning conveyancing work and permitting persons who were not legal practitioners to conduct business as a conveyancer and be employed in that area of work.

Part 13 covers only a few pages in the Act. It has only a few sections: 326–330A. Contrary to the position concerning legal practitioners, Part 13 does not prescribe a standard of education, qualification or training or impose a testing or certifying requirement as a condition of being engaged in conveyancing work, whether as a principal or employee. The field is open, as it were, subject to some negative provisions as to who may not carry on business as a conveyancer or be employed in connection with the performance of conveyancing work.

The definitions are important. Section 326 provides:

' "conveyancer" means a person, other than a current practitioner or interstate practitioner, who carries on a business in the course of which conveyancing work is carried out directly or indirectly for fee or reward;
"conveyancing work" means work, other than legal work, carried out in connection with the transfer or conveyance of a freehold or leasehold interest in land;
"legal work" means—
(a)the preparation of any document that creates, varies, transfers or extinguishes an interest in land; or
(b)the giving of legal advice.'

Section 327, headed "Employment or engagement in conveyancing business", is central to this case and I set it out in full.

"(1)This section applies to a person—
(a)whose name has been struck off the roll of practitioners of the Supreme Court (unless he or she has been re-admitted); or
(b)who is suspended, disqualified or otherwise prohibited from engaging in legal practice in Victoria or in any place outside Victoria (whether in or outside Australia); or
(c)who is subject to an order under section 321: or
(d)who is an insolvent under administration; or
(e)who is prohibited under the Corporations Law from managing a corporation; or
(f)who has been convicted in Victoria or elsewhere within the last 10 years of an offence involving fraud, dishonesty, drug trafficking or violence.

(2)A person to whom this section applies must not—
(a)carry on business as a conveyancer; or
(b)subject to section 328, accept employment or engagement with a conveyancer in connection with the performance of conveyancing work; or
(c)have any pecuniary interest in the business of a conveyancer.
Penalty:100 penalty units.

(3)Subject to section 328, a conveyancer must not knowingly employ or engage a person to whom this section applies in connection with the performance of conveyancing work.
Penalty:100 penalty units."

Section 328 provides that:

"(1)On application by a conveyancer, the Board may authorise the conveyancer to employ or engage a person to whom section 327 applies for the period and subject to the conditions (if any) specified by the Board."

There is a right of appeal to this Court from a refusal or against any conditions.[1] The Court may refuse, grant or confirm an authorisation, imposing any conditions it thinks fit.[2] A conveyancer must comply with any conditions imposed by the Board or the Court.[3]

[1]Subsection (2).

[2]Subsection (4).

[3]Subsection (5).

Section 330 requires a conveyancer to disclose certain matters. Subsection (1) requires a conveyancer to state in its "public documents"[4] and in a conspicuous position at its place of business, in a form approved by the Board, whether the conveyancer holds insurance against civil liability in connection with conveyancing work carried on in the course of the business. It also requires that:
[4]Defined in subs. (3) to include a business letter, statement of account, invoice, receipt and offer or agreement to supply services.

"(2)A conveyancer must give a written notice to a prospective client—
(a)indicating—
(i)whether or not the conveyancer holds insurance that covers the conveyancer against civil liability in connection with conveyancing work carried on in the course of their business; and
(ii)if the conveyancer holds insurance, the amount of cover and any relevant exclusions or limitations on the cover; and

(b)if the conveyancer intends to retain a legal practitioner or firm to perform legal work in connection with the transaction, indicating the name and address of that practitioner or firm; and
(c)if not, indicating that the conveyancer is not authorised to perform legal work.
Penalty: 100 penalty units."

The final section in Part 13 is s. 330A under which, on pain of penalty:

"(1)The Board may, by written notice, require a conveyancer to give the Board any information or documents reasonably required by the Board to determine whether or not the conveyancer has complied with section 330."

I should also refer to s. 321 of the Act. It takes its place in Part 12 of the Act and provides:

"(1)An RPA, the Board or the Legal Ombudsman may apply to the Full Tribunal for an order that a person (other than a legal practitioner) who—
(a)has been convicted in Australia or elsewhere of an offence involving fraud, dishonesty, drug trafficking or violence; or
(b)in the opinion of the RPA, Board or Legal Ombudsman has been a party to an act or omission that, if the person had been a legal practitioner or firm, may have resulted in a charge being brought in the Tribunal—

not be employed or engaged in connection with legal practice or conveyancing work within the meaning of Part 13.
(2)The Full Tribunal may order that the person is not to be employed, for a specified period or indefinitely, in connection with legal practice or conveyancing work within the meaning of Part 13.
(3)If an order under this section specifies that a person not be employed indefinitely, the person may apply to the Full Tribunal to have the order revoked.
(4)The Full Tribunal, on application under section (3) [sic], may revoke an order if it considers it appropriate to do so."

Section 322 (1) provides that a person against whom an order is made under s. 321 may appeal to the Court of Appeal on a question of law. No application has been made to the Full Tribunal concerning Petsinis.

To summarise, Part 13 reflects a policy decision that the business of conveyancing be open to all persons, subject only to the limitations in s. 327 or an order under s. 321. The powers granted to the Board are limited: see ss. 328(1), 330(1) and 330A. These are not the powers of a general overseeing regulator. By way of example, the power in s. 330A to require a conveyancer to provide information or documents is not as extensive as the power in s. 149 to require information or documents from a legal practitioner.

3. The Factual Context

Peter Petsinis is aged 45, having been born on 14 September 1955 in Greece. His family migrated to Australia when he was aged 4. He attended Melbourne University and obtained the LL.B. degree. He undertook articles in 1978 with a firm in Fitzroy which had a general practice. He was admitted to practise as a barrister and solicitor of this Court on 2 April 1979. He held an employee practising certificate from 11 April to 3 September 1979. Then, for the purpose of commencing his own practice, he obtained a full practising certificate on 4 September 1979. He commenced practice on his own account under the name Peter Petsinis and Co.

Striking off the roll of practitioners

Before long he was stealing clients' money. Inevitably this became known. On 27 August 1981, on the application of the Law Institute, McInerney J appointed a receiver to the practice. A little later the practice was acquired by another firm. Petsinis' practising certificate was cancelled by the secretary of the Law Institute on 16 October 1981.

On 29 June 1984 Petsinis pleaded guilty before Hampel J to 29 counts of theft and one count of having a deficiency in his trust account. According to his Honour's sentencing remarks the offences were committed between January 1980 and August 1981. Petsinis had withheld for himself amounts out of funds received from insurers in the settlement of clients' personal injury claims. His Honour stated that the amount represented in the 29 counts added up to some $38,000 and that on the general deficiency count the total amount was some $45,000 consisting mainly of the amounts in relation to the specific theft charges. He sentenced Petsinis to a term of imprisonment of nine months on each of the 29 counts and to 12 months on the general deficiency count, all sentences to be served concurrently at the Eastern Suburbs Attendance Centre at Blackburn. By another order made on 29 June 1984, his Honour ordered that Petsinis' name be struck off the roll of practitioners of the Supreme Court of Victoria.

Although in the past Petsinis has indicated his intention to apply to the Court to be re-admitted as a legal practitioner, he has not done so.[5]
[5]See [21] and [29–33] below.

Establishment and operation of Fenral

Fenral was incorporated on 26 May 1981 when Petsinis was still in practice as a solicitor. He was a director at the time of its incorporation. Mary Petsinis, who he married on 1 January 1983, became a director and the secretary on 7 August 1983. Mrs Petsinis continues to hold those offices and one of the two issued shares in the company.[6] It is apparent that Fenral was formed as a family company of Mr and Mrs Petsinis and remains so.
[6]The other share is held by Joanne Failla.

In his affidavit Petsinis said that in 1985 he and his wife, who had experience as a legal secretary, decided to start a secretarial business of providing a conveyancing service to the public in respect of residential and small commercial properties. For this purpose they registered the Residential & Commercial name. A search of the business name discloses that:

1.the business commenced on 1 July 1989;
2.the name was registered on 14 July 1989;[7]
3.from 14 July 1989 the place of business was 92 High Street, Northcote;
4.from 14 July 1989 to 9 November 1990, the business was carried on by Fenral;
5.from 9 November 1990 to 1 January 1991, the business was carried on by Mr and Mrs Petsinis;
6.from 1 January 1991, the business was carried on again by Fenral.

I note that 92 High Street, Northcote is still the place of business.

[7]The evidence, for instance correspondence in 1988, suggested that Petsinis was using the Residential & Commercial name before July 1989. It might be thought that the records of the Business Names Office are a reliable indicator, not only because they are contemporaneous but also because, as I would infer, they are based on advice of Petsinis. Counsel for the respondent made no point of this; neither do I.

In 1990 Petsinis resigned as a director of Fenral.[8] This followed advice from counsel, given in relation to a possible application to be re-admitted to the roll, that, as Petsinis put it, "they thought it would be better if I left my directorship". The possibility of Petsinis applying to be re-admitted was advised to the Law Institute in a letter from his solicitors dated 31 October 1990. He was re-appointed as a director on 5 October 1998[9] because it was considered that a sufficient time had elapsed since his offences. In addition, he needed to be a director for borrowing purposes. Petsinis resigned as a director again on or soon after 22 March 2000[10] following receipt of a letter dated 20 March from Victorian Lawyers RPA Ltd in which Petsinis was informed that under s. 327 of the Act he was not permitted to be employed in or operate a conveyancing company without authorisation from the Board. Petsinis described his resignation as one of the first steps he took to start the process of setting the record straight.
[8]Failla was appointed in his place.
[9]I infer that Failla ceased to be a director at this time.
[10]Mrs Petsinis remained as the sole director.

As for employees of the business, between mid-1985 and 23 May 2000 Fenral employed Petsinis as a conveyancing consultant. He started with Joanne Failla as receptionist/secretary. She now works part time. For many years up to April 2000, Mrs Petsinis worked in the business one to 1½ days a week. Because of the concern that Petsinis may not be able to continue in the business, in mid-April Mrs Petsinis began to work on a more regular basis to become acquainted with the business and the files. Since the Board's decision on 22 May 2000 she has worked full time managing and conducting the business. The business has grown to the stage that by May 2000 it had approximately 200 files and employed two full-time secretaries and two part-time secretaries.

Petsinis said he had handled in excess of 5,000 conveyancing transactions, both residential and commercial. His duties included attending to title searches, obtaining all certificates, checking vendor's statements and contracts of sale, arranging settlements, preparing adjustment statements, attending settlement, liaising with financial institutions, filing notices of acquisition and disposal and reporting to clients. In each transaction he had handled cheques on behalf of clients. In his affidavit he said that these cheques were always drawn by a client in favour of another party, generally as a deposit or the amount due on settlement. The average amount would be in excess of $100,000. Fenral does not operate a trust account. He said that he had acted honestly and never had a transaction queried nor received a complaint in respect of fees charged. He has many repeat clients.

Conformity with the legislation

In his affidavit Petsinis said, in reference to the time when it was decided to start a conveyancing service, that he made inquiries about the possibility of a non-qualified person conducting such a business. He made preliminary inquiries as to how such a business was to be operated and on what conditions. He made himself familiar with the provisions of the "Legal Practice Act 1958", by which he must have meant the old Act. He said that he familiarised himself with the general restrictions imposed by that Act and ss. 90–93 in particular. Having regard to his legal background and the knowledge which he must have had of the legislative restrictions on unqualified persons performing legal work, this evidence of Petsinis accords with the probability as to how he would have acted when he considered the establishment of a conveyancing service. I infer too that his recent offending put him on his guard to act within the law. In the result, he concluded that it was lawful for him to act essentially as a secretarial service specialising in conveyancing so long as he avoided giving legal advice and did not hold himself out as a qualified solicitor.

According to Petsinis, he received a letter from the secretary of the Law Institute a month or so after the business commenced operating. He no longer has a copy of the letter. The secretary was concerned that the letters LL.B. which appeared on the letterhead after Petsinis' name might mislead members of the public into believing that Petsinis was a qualified solicitor. Petsinis conceded the point and had the LL.B. removed.

On or about 17 May 1988, Petsinis received a letter of that date from the Law Institute dated 17 May 1988. This letter was addressed to Residential & Commercial and sought an explanation for it acting as a solicitor in a conveyancing transaction concerning the sale and lease of a property. It was stated that the conduct could constitute a breach of ss. 90, 92 and 93 of the old Act. By a letter dated 23 May, Residential & Commercial advised that its function was a secretarial service specialising in conveyancing and it had not acted or held itself out as being a solicitor. Petsinis instructed solicitors who also wrote to the Law Institute and requested details of the allegations. Nothing further was heard.

Moving on, by a letter dated 9 February 1993 the Law Institute wrote to Residential & Commercial advising that a complaint had been received concerning a document called a notice of default and notice of rescission. The letter stated that the notice was a document which created or regulated rights between parties and as such could only be drawn by a qualified person. The letter drew attention to the definition of a qualified person in s. 90 of the old Act. It stated that the conduct of Residential & Commercial might constitute a breach of s. 90 and/or s. 93 of the Act, copies of which were enclosed. The Law Institute sought advice as to the circumstances in which the notice was prepared, whether legal work had been carried out in respect of the sale transaction, the nature of the work carried out by Residential & Commercial, whether legal work had been carried out for other members of the public, and other matters including the receipt of remuneration in respect of the notice and legal work.

Petsinis replied by letter dated 23 March 1993. The letterhead bore his name with the word "Consultant"; hence, Petsinis says, the Law Institute knew or could readily have established that he had been struck off the roll of practitioners. The letter was in their file and they only had to check. The letter stated that Residential & Commercial had acted for the vendor on the sale of the property and that a notice of recision was served and the transaction settled. The letter stated that the notice "was approved by our supervising solicitor" and that no fee was paid for the notice by the vendor or purchaser. It was stressed that the firm carried out conveyancing transactions and did not hold itself out to be qualified solicitors. No answer was received from the Law Institute. In his affidavit on the present appeal, Petsinis said that he had signed the notice.

Applications for re-admission

In about 1988 or 1989, Petsinis inquired through his solicitor whether he could be re-admitted to the roll. He was advised the Law Institute would oppose such an application and to leave it in abeyance, which he did. He was also advised that the Law Institute claimed he owed an amount in excess of $33,000 in respect of the defalcation. That is, that he remained liable to reimburse the Solicitors' Guarantee Fund.

On 7 July 1993, Petsinis' solicitor wrote to the Law Institute at his request advising that he intended to apply to be re-admitted to the roll. The letter noted that some time after being sentenced Petsinis had sought details of the amount owed to the Law Institute but nothing had been heard and details were now requested of any amount owed.

The Law Institute responded by a letter dated 9 July 1993. The letter advised that the files were being obtained from storage. It noted that Petsinis had first raised the matter of re-admission in October 1990, at which time the writer had reviewed the receiver's file. The amount then owed by Petsinis was $33,046.39. Further advice would be given when the files had been obtained from storage. The letter concluded by referring Petsinis' solicitors to the decisions at trial and on appeal in Re S (a Solicitor)[11] and stating that service would be accepted of an application to re-admit.
[11][1985] VR 343 and [1986] VR 743.

The Law Institute wrote again to Petsinis' solicitors on 19 July 1993. The letter enclosed a statement obtained from the receiver's file which set out the amounts owed by Petsinis ($80,091.85) and the amounts repaid ($47,045.46). This left a balance owing of $33,046.39. The amount owed was made up of: $62,142.35 being the amount of the claims paid by the Solicitors' Guarantee Fund including interest, costs and disbursements; $16,449.50 being costs of the receivership to 24 December 1982; and an additional $1,500 being receivership costs since then. The letter also enclosed a schedule of the amounts paid by the Solicitors' Guarantee Fund in respect of each claimant. The amounts repaid comprised payments by the receiver of $17,795.46, a payment by Petsinis on 11 May 1984 of $28,000 and eight payments by Petsinis between 23 May 1984 and 26 November 1984 which totalled $1,250.00. All that produced the balance of $33,046.39. The Law Institute's letter stated that full restitution had not been made on the face of the files, and that no evidence could be found of Petsinis having made any payment since 26 November 1984.[12] The letter went on to set out the items which made up the receivership costs of $16,449.50. One item was $9,840 as a cost of investigating claims on the Fund; the writer of the letter deducted this item since she had not seen it before, leaving a balance owing of $23,206.39. The letter concluded by referring to "much correspondence back and forth between Mr Petsinis and the Law Institute as to repayment of this amount and it appears that Mr Petsinis continued to dispute the amount due to the Law Institute". At least $23,206.39 was claimed as due to the Solicitors' Guarantee Fund.
[12]The fact is that Petsinis had not made any payment after that date.

In his affidavit Petsinis said that at this time he asked his solicitor to seek advice from counsel as to the chances of success of an application for re-admission. Counsel considered the task difficult to accomplish. As a result Petsinis deferred the idea. There he left the matter of re-admission and of the amount owing to the Fund.

Inquiries of the Board

On 3 March 2000, John Thomas Mazaris, a solicitor employed by Victorian Lawyers RPA Ltd, received a letter of that date from a legal practitioner. The letter informed him of a With Compliments slip and a cheque received from Residential & Commercial in the course of a transaction in which Residential & Commercial acted for the purchaser Wattle Laboratories Pty Ltd. Mazaris noticed they did not contain a statement as to insurance. He considered there may have been a breach of s. 330. He obtained a copy of the letterhead of Residential & Commercial to verify whether there was a breach. The letterhead contained no reference to insurance. It did however refer to Peter Petsinis as Consultant. Mazaris checked the records of Victorian Lawyers RPA Ltd and found that Petsinis was a former solicitor whose name had been struck off the roll in June 1984. He spoke again to the legal practitioner who had provided the information and was told by him that he had dealt only with Petsinis.

On 8 March 2000, Mazaris obtained a company search of Fenral and a business name search of Residential & Commercial. On the same day, he wrote to Residential & Commercial. The letter, headed "Section 330 and 314 of the Legal Practice Act 1996", enclosed a copy of the With Compliments slip and stated the belief of the writer that the slip did not comply with s. 330 in that it did not bear a notation as to the holding of professional indemnity insurance. A copy of s. 330 was enclosed for information, and confirmation of compliance with "all aspects of" s. 330 was requested within 14 days. The letter then requested advice within 14 days whether Residential & Commercial had "a legal practitioner performing the legal work for each conveyance, and if so, details of that legal practitioner". If the information was not provided the matter would be referred to the Legal Practice Board.

In his affidavit Petsinis said that on receiving the letter he telephoned Mazaris and said that he would attend to the matters raised in the letter. He said that Mazaris advised him of a form of words to use on public documents to indicate that insurance was held. He also said that he arranged for the endorsement of an appropriate notation. In his affidavit Mazaris did not mention this conversation, and nothing was put to Petsinis when he was cross-examined as to the conversation. I accept there was a conversation as recounted by Petsinis.

Petsinis had not further responded by the time Mazaris sent a second letter on 20 March. I note that the 14 day period had not expired, but the fact is that Petsinis had not provided advice as to whether a legal practitioner performed the legal work for each conveyance. The letter, headed in the same way as the first, commenced by referring to the letter of 8 March and enclosed a copy of ss. 326, 327 and 328 of the Act. The letter noted that Petsinis was a legal practitioner until struck off the roll on 29 June 1984. It stated that having regard to s. 327 he was "not permitted to be employed or operate a conveyance company without authorisation from the Board". He was requested to confirm that he "will cease operation as a conveyance company failing which the matter will be referred to the Legal Practice Board for action". If confirmation of such action was not received, "further action will be taken given the clear preclusion under Section 327". The letter concluded by inviting representations as to why an order should not be obtained under s. 321 prohibiting Petsinis from being engaged or employed in connection with any legal practice or conveyancing work within the meaning of Part 13 of the Act.

On 21 March, on receiving the letter, Petsinis telephoned Mazaris. They each deposed to the conversation in their affidavits and Petsinis was cross-examined on it. There is a difference between them.

Mazaris, who was not cross-examined, said that he informed Petsinis that he must cease operations immediately if he was to be associated with the conveyancing company and that Petsinis indicated he could not do this and that the business would continue as it had. He said that Petsinis said that he intended to have his name placed back on the roll of barristers and solicitors.

Petsinis said that he expressed surprise and shock at the information that he was not able to practise as a conveyancer and that he was not aware the Act prohibited him from doing so. According to Petsinis he told Mazaris he was responsible for many current files which required his attention and he could not cease practising as a conveyancer as that would cause major problems for clients, many of whom, he said, were of old standing. He had a sense of responsibility to them and could not let them down.

Mazaris had no recollection of Petsinis saying these things. Nor did Mazaris recall saying, as Petsinis said he did, that Petsinis should do what he had to do and that he recommended he make an application as soon as possible. As far as Mazaris was concerned, the tenor of the conversation was that Petsinis was required to cease his employment with the conveyancing company and that Petsinis refused to do so. I have no hesitation in accepting the evidence of Mazaris. Not only does it accord with the probability of the situation, namely that in fact Petsinis was acting in contravention of the law and that Mazaris was pursuing him in that respect, but the fact is that notwithstanding the clear terms of the advice in the letter of 20 March, and his discussion with Mazaris, Petsinis did not cease his employment until later in May. The overt fact is, and it accords with Mazaris' account, that Petsinis refused to cease employment. It may be that in the conversation Petsinis made reference to current files and his sense of responsibility to clients, but the substance of what he said was that he would not cease practising as a conveyancer.

Petsinis said that there was further discussion as to how to make an application to the Board, that Mazaris said he was not sure, that there was no form and he imagined it would be by letter supported by references. Such a discussion, including that Mazaris advised Petsinis to apply as soon as possible, sounds likely but does not excuse Petsinis from not otherwise complying with s. 327. The same comment applies to the balance of the discussion as to Mazaris giving Petsinis the name and telephone number of Kerryn Riseley as a person to contact at the Board.

Petsinis referred to one further matter as having been raised in their conversation. He said that Mazaris told him that legal documents such as transfers of land and contracts of sale in conveyancing transactions could only be prepared by a solicitor. Mazaris asked whether the company had a legal practitioner performing its legal work. Petsinis said that he responded yes and that Mazaris said he did not need the name of the legal practitioner.

In his evidence Petsinis said that while he did not keep a copy of the Act in the office, he obtained a copy by the time he spoke to Mazaris. I accept that he did have the Act by the time of this conversation: but see [127–131] below.

Petsinis then telephoned Riseley who was employed by the Board as a research and legal policy officer. She swore an affidavit. In the course of her duties she received several inquiries a week concerning conveyancers, mostly from conveyancers seeking clarification about the requirements of the Act but also from clients complaining about a conveyancer. In answering inquiries she endeavoured to ensure that the requirements of the Act were complied with. She was not cross-examined.

Petsinis said that he made a general inquiry as to what conveyancing businesses needed to do to be authorised to conduct conveyancing work. He said that Riseley told him that the Board did not regulate or administer conveyancers other than ensure they disclosed whether they held insurance in a form approved by the Board. Later that day he received a facsimile from Riseley which confirmed the substance of the conversation and attached a copy of Part 13 of the Act and a statement advising of insurance approved by the Board. The facsimile itself was concerned only with the matter of advice of the holding of insurance for the purpose of complying with that requirement of s. 330.

In her evidence Riseley said that initially the caller did not state his name. He asked in very general terms about the regulation of conveyancers in Victoria. She gave him the advice she ordinarily gave to conveyancers about what they must do to comply with the Act. Then, after ascertaining his name, she sent him the facsimile which was in a standard form in response to a general inquiry. Bearing in mind that Petsinis did not advise her that he was a struck-off solicitor or inform her of Mazaris' correspondence and his advice as to the effect of the Act upon him, her response to Petsinis was reasonable and appropriate.

After sending the facsimile Riseley received a telephone call from Mazaris who inquired if Petsinis had contacted her about obtaining the Board's permission to work as a conveyancer. Riseley was surprised to hear this, as Petsinis had not mentioned the circumstances or his contact with Mazaris. Once fully appraised of Petsinis' situation she was of the view that he needed to obtain authorisation from the Board under s. 328(1). Mazaris informed her that he had already sent a letter to Petsinis along these lines, that being the letter dated 20 March.

Petsinis said in his affidavit that after speaking to Riseley he telephoned Mazaris. He told him he had received Riseley's facsimile which stated that the Board "does not regulate conveyancers". He said to Mazaris, in effect: if the Board did not regulate conveyancers, why did Fenral need to apply to employ him as a conveyancer? According to Petsinis, Mazaris said he would contact Riseley and tell her she was incorrect in stating that the Board did not regulate conveyancers, and that due to his circumstances the company would have to apply to the Board to employ him. Petsinis said that this was a relatively short conversation. Mazaris did not refer to this conversation in his affidavit. In view of the fact that Petsinis had a copy of the Act and the clear advice which he had received, and having regard to the fact he had not advised Riseley of the relevant circumstances and asked her whether an application was necessary, it seemed strange that he would have contacted Mazaris and queried him as to the need for an application. In the end however this conversation can be passed by as Mazaris repeated to Petsinis that an application to employ him was necessary.

As mentioned earlier, on or about 23 March Petsinis resigned as a director of Fenral. It is obvious that he did this in an attempt to lessen the extent of the breach of s. 327. But he continued working in the conveyancing business.

Application under s. 328 of the Act

Mr and Mrs Petsinis decided to consult their lawyers McGrath Carey Katz. On 29 March they conferred with Jake Kawecki, a solicitor and partner in that firm. Petsinis was cross-examined as to the delay in seeking advice. He explained that he was getting the referee material together. He was also questioned as to why he had not ceased working when he became aware of the prohibition against his employment in s. 327. He referred to the difficulty of ceasing when there were current files which required attention. Then, and this is important, I was informed by counsel for Petsinis, and counsel for the respondent accepted it as being the fact, that on 29 March Mr and Mrs Petsinis attended upon Kawecki and that he then advised them that once their appeal papers[13] were filed Petsinis could continue to practise until the Board determined the matter. Counsel further stated, and it was accepted as being the fact, that on 30 March Kawecki had a facsimile on his file which was a draft of a letter that Mrs Petsinis sent to the Board on 12 April.
[13]This is plainly a reference to an application to the Board under s. 328(1).

This letter, in its final form, was not on the letterhead of Fenral or Residential & Commercial. It was a letter from Mrs Petsinis from her residential address in Ivanhoe. It was headed as an application to employ a person under s. 328 of the Act and stated:

' I wish to advise that I am the sole Director of Fenral Nominees Pty. Ltd. … which owns and operates the conveyancing business "Residential & Commercial Property Transfer Co.," of 92 High Street, Northcote.
The business has been conducted since 1985 and during that time I have employed my Husband, Peter Petsinis in his capacity as Conveyancer.
It has now come to my attention that pursuant to Section 327 of the Legal Practice Act 1996 Mr. Petsinis may be precluded from being employed as a Conveyancer. In 1984 he was struck off from the Role [sic] of Barrister and Solicitor of the Supreme Court of Victoria. It is on this basis that I now make application under Section 328 of the said Act to the Board for the Company to employ Mr. Petsinis on an ongoing basis as a Conveyancer.
Since 1984 Mr. Petsinis has worked in the conveyancing field without complaint or problem. He has many referees who support his ability, honesty and integrity. Copies of these references which are to hand are enclosed for your perusal and consideration.

The business has had, in the course of its operation, Solicitor supervision by Mr. Roger K. Stevenson, who no longer practices [sic] in the State of Victoria, and currently we are supervised by Mr. Malcolm Buxton, Solicitor.
We have complied with the Statutory requirements in respect of Professional Indemnity Insurance.
At this point in time I would also like to inform the Board that Mr. Petsinis has instructed his Solicitors, McGrath Carey Katz to initiate an application for him to be re-admitted on the Role [sic] of Barristers and Solicitors of the Supreme Court of Victoria.
In the meantime I would be grateful if the Board could now consider this application on its merits and advise our Office as soon as possible of its attitude.'

A few things may be noted about this letter. The first is the statement that s. 327 "may" preclude Petsinis from acting as a conveyancer. On the plain meaning of the words in s. 327 there could not have been a reasonable doubt that he was so precluded. The second is the reference to employing Mr Petsinis "on an ongoing basis". Was this a subtle way of indicating that Petsinis was continuing to work in the conveyancing business despite the preclusion in s. 327? Surely, if Mrs Petsinis was intending to inform the Board that her husband was continuing to work in the business and that it was considered open to him to do so because (for some reason) s. 327 did not operate as an automatic preclusion, she should have said so to ensure that the Board properly understood the circumstances of the application being made to it. After all, Mrs Petsinis was seeking an authorisation to be able to do something which was otherwise precluded by the Act. The third is that the letter did not mention the advice of their solicitor that Mr Petsinis could work in the business once the application was filed (which occurred on 12 April). That advice would not have justified a view that Mr Petsinis was entitled to work in the business prior to that time. The fourth concerns the opening statements of Mrs Petsinis that she was the sole director of Fenral and that since 1985 she had employed her husband as a conveyancer. The truth was that Mr Petsinis had always had a central role in the business and he had been a director of Fenral until as recently as about 23 March 2000. The purpose would seem to have been to distance Petsinis from Fenral and by the later references in the letter to Petsinis having worked in the conveyancing field since 1984 without complaint or problem and to his ability, honesty and integrity, to present a strong case for himself, and Fenral, not being deprived of his employment. In referring to these matters I do not overlook the fact that the Petsinis' solicitor had a draft of the letter (and it is to be inferred, I think, on the basis of counsel's statement, that the draft was in the same terms as the letter provided to the Board) on 30 March. Whether or not the solicitor drafted the letter in the first place he had the opportunity to comment upon it and to make or seek to have made changes which he considered appropriate. Although in the end it is Mrs Petsinis' letter, and I infer that Mr Petsinis knew and approved of the contents, they are entitled to rely on the fact that their solicitor was involved, and on the advice he gave that Petsinis could be employed once the application was filed. I should observe that Kawecki did not give evidence. I should also add that the points noted above do not mean that the Board was under any false understanding of the facts when it considered the application. Indeed the Board's statement of reasons dated 30 May[14] indicate that it was not. The points I have made are reflections on the extent to which the letter of application was frank and accurate.
[14]See [60] below.

On 12 April Mazaris received a letter of that date from Residential & Commercial which enclosed a copy of the letter to the Board. The letterhead still referred to Peter Petsinis as "Consultant". Added to the letterhead were the words "Professional Indemnity Insured for Civil Liability". On the following day Mazaris received another letter dated 13 April from Residential & Commercial. It noted the letterhead "now being used by this Office". The change to the letterhead was that "Peter Petsinis Consultant" had been removed. Neither of these letters stated that Petsinis was continuing in his employment.

In his cross-examination Petsinis said that the reason for the delay in sending the application to the Board was the need to get the references together. In the meantime he continued to work although, as is agreed, he had been advised that he could do so once the application had been filed. That did not occur until 12 April.

There was then correspondence concerning the application. On 19 April the Board wrote to Mrs Petsinis. The letter stated that the application would be considered at a meeting on 22 May and requested information on the progress of the application to have Petsinis re-admitted. On 5 May the Board wrote to Mr Petsinis and requested: the name and address of the legal practitioner who performed the legal work associated with Residential & Commercial; confirmation that he owed $23,206.39 in relation to the claims against the Solicitors' Guarantee Fund; and advice of developments in relation to his application to be re-admitted to the roll. On advice from Kawecki, Petsinis replied on 15 May that: Malcolm Buxton supervised the conveyancing practice; he was aware that $23,206.39 was allegedly owed but there had been a dispute over the exact amount, the issue had not been pursued and he would make further contact; his solicitor had contacted the Law Institute concerning re-admission and he believed some progress was being made.

On 16 May Petsinis' solicitor wrote to the Board following an earlier conversation that day. The letter was mainly concerned with the amount owed by Petsinis. The solicitor stated that any claim was now barred by s. 5(4) of the Limitation of Actions Act 1958, but that Petsinis wished to resolve the issue. On the matter of re-admission the letter stated that the matter would be put before the Council of the Law Institute and for that purpose a submission was being prepared.

On 22 May the Board resolved not to grant the application. A letter was sent to Mrs Petsinis informing her of the decision. The letter stated that:

" As the Board has not authorised Mr Petsinis [sic] employment in connection with your conveyancing business, he must immediately cease working as a conveyancer. I remind you that the Legal Practice Act prohibits the engagement of a struck off practitioner in connection with conveyancing work: s327(2)[.] The Act also provides that a person struck off the Roll must not accept employment or engagement with a conveyancer: s327(3)[.] There is a $10,000 penalty for breach of each of these provisions."

On 23 May, following receipt of that letter, Petsinis ceased to be employed by Fenral as a conveyancer or to attend at the company's premises. He also consulted Kawecki who on 23 May spoke to Riseley and on 24 May wrote to the Board after receiving a facsimile from Riseley which clarified their discussion to the effect that Petsinis must not act as a conveyancer without the prior authority of the Board or the Court. In his letter Kawecki requested reasons for the Board's decision. He stated that an appeal would be brought and he requested that Petsinis be permitted to be employed in the business as a conveyancer until the outcome of the appeal process. In support of the request for interim permission the letter stated that the employment of Petsinis was fundamental to the operation of the business, and further referred to "the background of the case" and a general common law principle that the status quo remained pending the outcome of an appeal.

By letter to Kawecki dated 30 May the Board stated reasons for its decision, as follows:

"1.Mr Petsinis failed to persuade the Board that his previous acts of dishonesty are no longer relevant and that he is an appropriate person to be permitted to work as a conveyancer.
2.Mr Petsinis and Residential & Commercial Property Transfer Co have been in breach of the Legal Practice Act since 1 January 1997. The Legal Practice Act brought in a number of changes to the operation of conveyancing businesses which were widely publicized. Residential & Commercial Property Transfer Co and Mr Petsinis should have been aware of those changes and complied with the Act from that time.
3.Mr Petsinis declined to cease working as a conveyancer when informed by the Victorian Lawyers RPA by letter dated 20 March 2000 that he was working in breach of the Legal Practice Act.
4.Mr Petsinis has failed to repay monies owing to the Solicitors' Guarantee Fund in relation to defalcations committed while working as a legal practitioner."

The letter continued:
" In relation to your request that Residential & Commercial Property Transfer Co be permitted to employ Mr Petsinis pending the outcome of the proposed Supreme Court appeal, I again advise that as the Board declined to grant an authorisation under s328(1), Mr Petsinis and Residential & Commercial Property Transfer Co will be in breach of s327 of the Act if Mr Petsinis continues to act as a conveyancer."

On 16 June a notice of appeal from the decision of the Board was filed. The decision in this respect was stated to be the refusal to authorise employment under s. 328(1) and the refusal to permit the employment of Petsinis pending the determination of the appeal. As it turned out, no application was made to the Court to permit employment pending the determination of the appeal.

Also on 16 June two cheques in the total amount of $23,206.39 were hand delivered to the Board by Kawecki. It is accepted that that amount was the balance which Petsinis owed to the Solicitors' Guarantee Fund. Hence the payment satisfied his debt to the Fund.

The Kellie Rose transactions

I now refer to the work performed for Rose which I mentioned at [4] above. Her family has had a long-standing friendship with Petsinis who, as a result, has known Rose since she was a small child. Residential & Commercial has performed conveyancing work for the family and Rose.

In about March 2000, Rose and her mother consulted Petsinis at Residential & Commercial's office in relation to two matters. The first concerned a sum of $5,000 which Rose owed to her mother in connection with the purchase of a property. Her mother wanted Petsinis to prepare a "formal paper" to record that Rose owed her the $5,000. Petsinis advised them they should resolve the matter between themselves and refused to draw a document. He did not provide legal advice.

Secondly, Rose wished to make a will. She gave evidence that Petsinis took instructions on that day and drew the will, that on 30 March she attended on Petsinis and signed it, and that he charged her $120 for the service provided. The account addressed to Rose is dated 4 May 2000, is on Residential & Commercial letterhead, and bears Petsinis' initials as the reference. It states:

" – In Account With –
Residential & Commercial
Property Transfer Co.,
92 High Street,
Northcote 3070

re: Your Will

TO: Our costs in relation to attending upon you taking instructions; preparation of Will and attending you on signing thereof.
Total due and payable: $120.00"

In his further affidavit sworn on 7 December 2000, Petsinis, who had heard Rose give her evidence, acknowledged that she had advised she wished to make a will and provided him with instructions. He stated:

" I believe I handed those instructions to Mr Malcolm Buxton who is the supervising solicitor of [Residential & Commercial]".[15]

The issue raised by this evidence is whether Petsinis and Residential & Commercial engaged in legal practice when not qualified to do so, contrary to s. 314 of the Act. Petsinis was cross-examined on this point, in particular as to the roles of himself and Buxton in the drawing of the will. He said that Residential & Commercial did not have a file, and he had been unable to find a copy of the will or the written instructions which he said he took from Rose. He knew the preparation of a will was a legal matter and that he was not supposed to do legal work. Legal work would be referred to a solicitor. In this instance he did not think of saying to Rose that as a will was a legal matter he would have nothing to do with it or that he could refer her to a solicitor. He did not advise Rose he was not permitted to draw a will. So, he believed and recollected that, having taken instructions, he referred the matter by handing the instructions to Buxton. He said that Buxton would then have advised it was okay to go ahead and draw the will and have it signed. He had no recollection of Buxton preparing any draft clauses or discussing them with him. Petsinis then drew the will. He would not have drawn the will without Buxton's okay. At one point he said that Buxton vetted the will. Whether considering that answer alone or in context, I did not understand it to mean that Buxton saw and approved the will after it had been drawn by Petsinis.

[15]I refer below at [80–81] to Buxton and the role of supervising solicitor, which remained unclarified in this case.

Speaking at a more general level, Petsinis said that this was the only time he recollected Buxton had performed a supervisory function in relation to a will. There had been other occasions in the past when "a will situation" had been referred to supervising solicitors. That course was followed because:

" wills were legal documents and we needed those legal documents vetted by our then supervising solicitor".

He said that in the early 1990s a supervising solicitor had approved this practice:
' as long as he perused the instruction and he would send us back a note saying that "On those instructions it's okay for you to go ahead and draw up the will" '.

He named a particular supervisory solicitor in this respect. The practice, it seems, continued with Buxton. Once the solicitor gave permission, he would draw the will without further input from the solicitor. That, I find, is what happened in the case of Rose's will.

Petsinis said he had a file on these "will situations" but had not brought it into Court. Counsel for the Board did not call for production of the file of instances. I refer at [81] below to the fact that Buxton was not cross-examined at the trial on 5 October; nor did counsel for the Board seek to cross-examine him in relation to his role in the Rose will, or wills generally.

There was a third matter on which Rose sought assistance from Petsinis. She raised this with him on 30 March when she signed her will. It concerned the estate of her late grandfather. She understood she was a beneficiary under the will but had not received formal notification from the executor or a copy of the will. She lacked trust in the other side of the family involved. She was anxious to learn the true position and was concerned to be protected to ensure her right, and she sought Petsinis' assistance. After speaking to Petsinis she ascertained the name of the solicitor acting for the executor and contacted Residential & Commercial and spoke to Mrs Petsinis. She was wanting the matter to be progressed, and in particular seeking that a property to which she was entitled under the will be transferred to her. As I have said, Rose was anxious and it often happens that, unless in such circumstances the relevant steps are carefully explained, a client's anxiety can become greater. That happened as time passed. It should be said that whenever Rose rang Residential & Commercial after 23 May she never spoke to Petsinis: it was Mrs Petsinis or a secretary, but never Petsinis. I accept his and his wife's evidence that he has not worked in the office since 23 May.

I do not propose to trace through every step in the chronology of dates and times and set out all that was said in attendances and correspondence between Rose and Residential & Commercial in the events that followed. I merely set out the following outline for the period June to October.

In June an authority was prepared and signed by which Rose requested the executor's solicitors to forward papers, titles and a copy of the probate to Residential & Commercial. Mrs Petsinis sent this to the executor's solicitors on 21 June. On 29 June copies of the titles were provided. On 3 July a copy of the will was received and forwarded to Rose. A transfer of land was prepared under Buxton's supervision. Mrs Petsinis said, and I accept her evidence, that Buxton approved the transfer before it was sent; that accorded with her practice under which Buxton visited the office twice a week and checked the files and approved documents. The same practice applied to leases and notices of rescission. Mrs Petsinis said: "that's the way we do it".

She sent the transfer to Rose on 6 July for execution and return. On 14 July Mrs Petsinis sent the executed transfer to the executor's solicitors and requested a copy of the probate. On 20 July the executor's solicitors sent an account for the costs of the transfer payable by Rose; when payment was received they would send the executed transfer and a copy of the probate. Mrs Petsinis forwarded the letter to Rose on 16 July and requested a cheque in payment of the costs. Throughout these times Rose was anxious and would call Residential & Commercial wishing to speak to Petsinis. At one stage she said she would see a solicitor in the area in which she lived. I accept that Mrs Petsinis became concerned about her. Rose paid the costs direct to the executor's solicitors on 14 September and on that day the solicitors sent to Residential & Commercial the executed transfer, copy probate and receipts for the payment, and advised that insurance on the property was due for renewal. Mrs Petsinis believed she spoke to Rose towards the end of September and advised of the receipt of the documents. Rose said that it was Petsinis who gave her this advice. While I was impressed by Rose as a witness and as an honest person, on balance I am not satisfied that her conversation was with him rather than Mrs Petsinis. On 27 September Mrs Petsinis sent the renewal to Rose.

Still being concerned to ascertain her legal rights against the estate, in early October Rose saw a solicitor, Gregory Russo of Featherby's, who wrote to Residential & Commercial and the executor's solicitors on 9 October with a request for a copy of the will and the probate. They also asked the former for a copy valuation of the property in question, and the latter where the title was. On 10 October Mrs Petsinis replied and enclosed a copy of the will and the probate. On 27 October Featherby's sent Residential & Commercial an authority from Rose to produce her file including the title and transfer. Mrs Petsinis complied with that request on 24 October without first requiring payment of any fees; in fact, Residential & Commercial has not charged Rose any fees at all and she has made no payment for their services. On 30 October Featherby's wrote to Residential & Commercial and advised of two respects in which the transfer required amendment: it omitted to refer to one of the titles and the witness had signed in the wrong place. The letter threatened that they would look to recover any costs lost as a result from Residential & Commercial. That has not happened.

I referred at [4] to the affidavit on which the Board relied on 21 November when I was asked not to deliver judgment. The affidavit was sworn by Russo. He stated that Rose had instructed him to make a complaint to Victorian Lawyers RPA Ltd in relation to her dealings with Petsinis concerning, inter alia, the preparation of a will and conveyancing. Accordingly he sent a letter of complaint on 13 November. Since then, Rose has advised him she did not wish to proceed with the complaint.

I have referred to the relationship between Petsinis and Rose, the absence of Petsinis from the office from 23 May and Rose's concern and anxiety as to her position in the matter of her grandfather's estate. It is apparent, and I so find, that Mrs Petsinis was not able to provide Rose with the degree of assurance that would have made her feel comfortable in the circumstances. That could well have been contributed to by the fact that it was an estate matter with legal issues wider than a mere conveyancing transaction. It is not surprising that in seeking to handle the matter Mrs Petsinis spoke to her husband initially to be informed about the matter and subsequently when she was concerned about Rose's conduct. She suggested that he ring her to try to calm her down and in August he called her from home. I accept his evidence that he did so out of friendship and concern for her. I accept too that he did not consider this to be acting as a conveyancer contrary to his evidence that he had not worked as such since 23 May. I accept that, as submitted by counsel for the Board, what he said to Rose subsequent to 23 May had the effect of being in furtherance of the estate matter on which Residential & Commercial was engaged. In my view, though, these were unusual circumstances and, although to avoid the risk of adverse inference Petsinis should not have involved himself at all, I accept that he had removed himself from working in the business and that his involvement resulted from his wife's request and was an attempt to assuage a deeply concerned and anxious daughter of long-standing friends.

4. The Testimonials

Before dealing with the submissions I should say something about the testimonials concerning Petsinis' reputation.

Fenral's letter of application to the Board included testimonials from nine people who knew Petsinis in a range of social and business settings. Those testimonials are before me and I have read them. On this appeal the affidavits of eight deponents as to Petsinis' reputation and character were filed. Two of those deponents had written testimonials provided to the Board. The others were new. None were cross-examined.

The deponents knew Petsinis in a variety of circumstances. They included a priest, barristers, a magistrate, and some clients. Those who knew him socially said he was likeable, courteous and reliable. Those who knew him professionally said he was trustworthy and reliable in his work and that they had heard no complaints about the quality of his work. They made their testimonials with knowledge of his convictions and striking off.

Counsel for the respondent submitted the testimonials gave evidence of reputation rather than character, which was the actual issue. I merely say that I have not had cause to rely on the testimonials in relation to character.

I mention specifically only the affidavit of Malcolm Walter Buxton, which contains some relevant material. He practises as a solicitor under the name MW Buxton and Associates at Dandenong. He was aware of the convictions and that Petsinis' name had been struck off the roll. He was "engaged to act as Supervising Solicitor" for the appellant. He did not state in his affidavit what he actually did as supervising solicitor. I interpolate that the expression "Supervising Solicitor" is neither used nor defined in the new or old Acts. He said that "in this capacity" he had the opportunity to observe the nature and quality of Petsinis' conveyancing work. He regarded Petsinis as a person of integrity and as an excellent conveyancer who deserved the confidence and trust of clients.

In a second affidavit Buxton stated that he could recall only minimal publicity in relation to the commencement and operation of the Act as it applies to conveyancers. This evidence of personal recollection was designed to lend some credence to the evidence of Petsinis that he had not been aware of the changes introduced by the relevant provisions of the Act. It was also directed to the reference to publicity of the changes in ground 2 of the Board's reasons.[16] Buxton did not state that he was not aware of the changes. As a solicitor practising in Dandenong and presumably performing conveyancing work it would seem strange if he was not aware of the legislation, particularly as it so radically re-wrote the former legislation and introduced a new regulatory and disciplinary regime. One could hardly conduct practice as a solicitor without being familiar with the Act. Further, if he was not aware of the changes including the new Part 13, it is hard to understand what state of awareness of the Act he brought to the task of supervising solicitor, the nature and scope of which task he did not explain. Nor did he refer to any discussions with Mr or Mrs Petsinis as to the lawful activity of a conveyancer let alone to any advice he might have given in that respect, the commencing point in any such discussions or advice being, of course, the applicable provisions of the old and new Acts. Nevertheless, Buxton was not cross-examined and his evidence stands as it is.
[16]See [60] above.

5. Is the standard under s. 328(1) the same as for re-admission?

Each counsel sought to identify the approach which should be taken on an application for an authorisation under s. 328(1). In doing so, each referred to the approach taken by the Court to the determination of an application to be re-admitted to practise. I was referred in this respect to Incorporated Law Institute of New South Wales v Meagher,[17] Re a Solicitor,[18] and Re S (a Solicitor).[19] In addition counsel for the appellant referred to In the matter of TS.[20] That was an appeal from a refusal to grant the applicant an employee's practising certificate. At an earlier time the applicant's practising certificate had been cancelled by the Law Institute following the discovery of irregularities in his trust account.
[17](1909) 9 CLR 655 at 681 and 688 per Isaacs J and 692 per Higgins J.
[18][1952] VLR 385 at 387 and 389 per the Full Court.
[19][1985] VR 343 at 346–347 per Kaye J and on appeal [1986] VR 743 at 750 per Brooking and Nathan JJ.
[20][1981] VR 577 at 580–582 per Starke J.

The principle on which the Court will act on an application to strike off or re-admit is well established. The question is whether the person concerned is a fit and proper person to be on the roll or admitted to practise, as the case may be. In Meagher, Griffith CJ stated that before re-admitting the Court should be "justified upon solid and substantial grounds" that a former solicitor is a fit and proper person to be trusted to assist people in the conduct and management of their affairs.[21] In Re a Solicitor the Full Court stated "that it is open to such a solicitor to seek re-admission if he can show that his personal character is such that, notwithstanding his past offences, he can safely be trusted hereafter to demean himself with honesty and propriety".[22] In the well-known judgement of Lord Esher MR in Re Weare,[23] it was observed that the Court had the power to restore a person to the profession if, following striking off, "he continues a career of honourable life for so long a time as to convince the Court that there has been a complete repentance, and a determination to persevere in honourable conduct".[24] That passage was referred to with approval in Meagher[25] and Re a Solicitor.[26]
[21](1909) 9 CLR 655 at 664. See too Re S (a Solicitor) [1985] VR 343 at 346 per Kaye J.
[22][1952] VLR 385 at 389.
[23][1893] 2 QB 439.
[24][1893] 2 QB 439 at 447.
[25](1909) 9 CLR 655 at 681 per Isaacs J.
[26][1952] VLR 385 at 387 per the Full Court.

In striking a name off the roll or in refusing to re-admit, the Court acts in a protective way of the public, being careful, as Isaacs J put it in Meagher, "not to accredit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential".[27] The matter is not one of punishment, although there is an element of that in an order striking off, but of fitness to be on the roll and to be held out by the Court as worthy of public confidence. Then, as Isaacs J immediately went on to say, in speaking of an applicant for re-admission: "It is not a question of what he has suffered in the past, it is a question of his worthiness and reliability for the future". Hence, as Higgins J stated in Meagher: "It is not his reputation that is in question, but his intrinsic character".[28]
[27](1909) 9 CLR 655 at 681.
[28](1909) 9 CLR 655 at 692. See too the reference to this point in Re S (a Solicitor) [1985] VR 343 at 347 per Kaye J.

Counsel for the appellant sought to distinguish the case of an application for re-admission to practise on the one hand, and on the other hand an application by a conveyancer under s. 328(1) for authority to employ such a person to perform conveyancing work. These were different applications to which different considerations were applicable. On the application under s. 328(1) the applicant is Fenral and not Petsinis, the former solicitor. But even if Petsinis was regarded as the applicant, as in reality he is, the issue is not whether he is a fit and proper person to be admitted to legal practice and as such be a barrister and solicitor and an officer of the Court under ss. 6(1) and 8(1) of the Act. The issue is whether authority should go under s. 328(1) to enable him to perform conveyancing work in the employ of Fenral. He submitted that on such an application "the same rigid rules … as are applied to striking off cases"[29] should not be applied. He submitted that a lesser test should be applied to a conveyancer than would be applied to a former practitioner on an application for re-admission.
[29]See In the matter of TS [1981] VR 577 at 581 per Starke J.

Counsel for the respondent submitted that the Act provided no guidance as to the standard or test to be applied. I think that what he meant by this was that the Act did not expressly state the standard or test to be applied. He submitted that considering the terms and purpose of the Act, the question which was required to be considered was whether an applicant had demonstrated that he or she was a fit and proper person to carry on the profession of a conveyancer. If that was the issue, there may not have been much if any difference between counsel. But counsel for the respondent proceeded to submit that in answering this question the Court should apply the principles applicable on an application to re-admit to the roll. Specifically, in his written submission counsel referred to a statement by Kaye J in Re S (a Solicitor) that the applicant for re-admission bore a "heavy onus to satisfy me on solid and substantial grounds that he is now a fit and proper person to have reposed in him the trust of members of the public who might seek from him professional services as a barrister and solicitor".[30] Counsel said the statement was appropriate to be adapted by substituting for the words "as a barrister and solicitor" the words "as a conveyancer". It is true that counsel went on in his written submission to state that this required consideration of the duties and ethical standards of a conveyancer, which must be correct. But in his oral submissions counsel developed his submission by referring to and relying on statements from the cases mentioned above as indicating the high standard or rigour of the test to be applied in this case. In other words, counsel submitted that statements in cases concerned with striking off or re-admission to practise were equally applicable in setting the standard to be met by an applicant under s. 328(1).
[30][1985] VR 343 at 346.

I do not accept this submission. The fact that Part 13 was included in the Act does not require the conclusion that the test applied on an application to re-admit is applicable to and must be applied in the determination of an application under s. 328(1). It is to be remembered that Part 13 deals with conveyancers who do not perform legal work as defined in s. 326, and not with the qualifications for or conduct of legal practice. The responsibilities and public position of a solicitor are much different from those of a conveyancer, especially an employee conveyancer. Further, there is no indication in the legislation, whether expressly or by necessary intendment, that the test applied to a former lawyer on an application to re-admit is to be applied in the case of an application by a person described in s. 327(1)(a) or (b), or for that matter s. 327(1)(c)–(f). Nor is there any indication that the test differs according to the category in which a person falls: if there is no reason in logic or under the Act that the test applied on an application to re-admit should be applied to an applicant who falls within s. 327(1)(c)–(f), it hardly seems logical that the test should be applied to an applicant who falls within s. 327(1)(a) or (b). I expand on the internal logic of the categories in s. 327(1) in the next part of the judgment.

6. Comment on s. 327(1)

It is useful to compare the category of struck-off practitioners in s. 327(1)(a) ("category (a) persons") with that of convicted persons in s. 327(1)(f) ("category (f) persons").[31] In the latter case the preclusion under s. 328(2) only operates for a period of 10 years after conviction and only if the conviction was of an offence involving fraud, dishonesty, drug trafficking or violence.[32] This means that no matter how heinous the offence was, the policy decision of Parliament reflected in s. 327 is that after 10 years, on the mere effluxion of time, such a person should be free to carry on, and have a pecuniary interest in, a conveyancing business or be employed by a conveyancer in connection with the performance of conveyancing work. The starting point, and the legislative policy, is that after 10 years a category (f) person is not subject to s. 327(2). And while an application might be made under s. 321(1) in respect of such a person, it does not follow that an application will be made or that, if made, it will result in a preclusionary order, and specifically an order which equates to the preclusion of a category (a) person.
[31]The categories can overlap, for example if a lawyer is convicted of a relevant offence and is consequently struck off, although I note that there have been instances where solicitors have been convicted of misappropriation of trust funds and no application has been brought to strike them off the roll: see Law Institute of Victoria v Gough (10 February 1995, Hansen J, unreported) at 25. A person who fell within both categories would continue to be permanently precluded as a category (a) person, subject to authorisation under s. 328(1), even upon the expiration of 10 years. Thus, my references to category (f) persons should be taken to mean "category (f) persons who are not also category (a) persons".
[32]The same category of offences is stipulated in s. 321(1)(a).

By contrast, a lawyer whose name has been struck off the roll is permanently precluded subject only to the grant of an authorisation under s. 328(1). Several points should be noted about this.

First, the preclusion is for life. There is no time limit after which it expires.

Secondly, the onus is placed on the former lawyer or the intended employer to apply for an authorisation, whereas under s. 321(1) the application is brought by the Board (or the RPA or Legal Ombudsman) who bears the onus as applicant.

Thirdly, an authorisation under s. 328(1) is limited to permitting the applicant conveyancer to engage or employ the precluded person. The preclusions in s. 327(2)(a) and (c) continue as permanent restrictions. The Board is not given power to vary them. The only way a category (a) person may be rid of those restrictions is to be re-admitted to practise as a barrister and solicitor. Yet a category (f) person is freed of these preclusions on the expiry of the 10 year period.

Fourthly, a lawyer's name is struck off the roll because he or she is adjudged not to be a fit and proper person to be on the roll. That is why a name is struck off the roll. The circumstances are infinite in which a person might be adjudged not to be a fit and proper person. Conviction for an offence, including offences of the type referred to in s. 327(1)(f), is not a necessary pre-condition of a finding of a lack of fitness to be on the roll. Further, the relevant facts and circumstances may not have occurred in the course of the person's practice as a lawyer. All this is obvious and it is unnecessary to go to the books to find examples to illustrate the point. But let us take a simple example to indicate the extraordinary—and, it might be considered, discriminatory—operation of this legislation. A category (f) person may have committed offences such as forgery, embezzlement, obtaining by false pretences or armed robbery (to name a few) involving millions of dollars and the most aggravated circumstances. After 10 years, assuming the person does not remain imprisoned, that person is scot free to move into the conveyancing industry. Why should that be so as against a former lawyer who at one time has been adjudged not to be a fit and proper person to be on the roll, let us say 20 years or so previously, but who has not committed an offence of the type referred to in s. 327(1)(f), or any criminal offence at all, but whose conduct at the earlier time otherwise established that he or she was not a fit and proper person to be on the roll? The logic and due sense of proportion in this is not readily discernible.

Fifthly, it is not a sufficient explanation of the differential treatment of category (a) and category (f) persons to say that a category (a) person can apply for re-admission whereas a category (f) person cannot apply to expunge the conviction. I was not referred to anything to indicate that that was the true reason for releasing the category (f) person from all restrictions after 10 years while the category (a) person continues to be limited by ss. 327 and 328.

In my view, the question that arose on this application was whether Petsinis was a fit and proper person to be employed by Fenral in connection with the performance of conveyancing work. In other words, is he an appropriate person?

7. The Code of Conduct

The respondent submitted that the code of conduct prepared by the Conveyancers' Association indicated the duties and ethical standards of a conveyancer. In her affidavit the vice-president of the Association stated it was formed in 1989 by a small group of independent conveyancers in Victoria. It was incorporated in 1991 with a charter to promote and monitor high standards of professional service and ethics among independent non-lawyer conveyancers. In 1997 the Association became the Victorian Division of the Australian Institute of Conveyancers. In February 1998 the Association launched a Diploma of Business in Conveyancing Practice course with RMIT University. This is part of a wide range of education and training programs to improve the conveyancing and business skills of conveyancers. In March 1998 the Association launched a program to set professional and ethical standards for the "industry" in Victoria. The code of conduct was annexed to the written program.

The Association maintains close links with the Legal Practice Board and professional bodies such as the Law Institute.

It is immediately apparent that the Association was concerned to fill the gap constituted by the absence of legislative or regulatory prescription of a qualification for conveyancers.

The code of conduct is extensive. Counsel for the respondents submitted that it disclosed that a conveyancer was subject to duties of the nature of those which are applicable to a solicitor, including a duty to observe client confidentiality, to avoid a conflict of interest, to act in the client's best interest, to properly inform the client of relevant matters and to observe standards of propriety in relation to matters such as advertising and business names. Of course, it is not only solicitors who are subject to duties of that nature. Persons who act as an agent for another may also be subject to such duties, the actual nature and extent of any such duty depending on the circumstances of the agency and its terms.

Ignorance of the law

I have referred to the fact that when Petsinis decided to start the conveyancing service he familiarised himself with the restrictions imposed by the old Act, and ss. 90–93 in particular.[37] The effect of these provisions was plain and I find that Petsinis understood them according to their terms. He did not suggest otherwise. The concept of acting or practising as a solicitor referred to in those sections was very wide. The cases had long before established that a person acted as a solicitor if he or she did a thing usually done by a solicitor and did it in such a way as to lead to the reasonable inference that he or she was a solicitor.[38] I do not know whether Petsinis' inquiries led him to the cases. He made the inquiries referred to and said that he concluded that he could act as a secretarial service specialising in conveyancing as long as he did not give legal advice and did not hold himself out as being a qualified solicitor. In his evidence on 12 December Petsinis acknowledged an awareness that drawing a will was legal work which was required to be done by a solicitor. That reflected an appreciation of the prohibition on an unqualified person undertaking legal work, although he thought he could draw a will if his supervising solicitor approved him doing so.
[37]See [24] above.
[38]In re Sanderson; ex parte the Law Institute of Victoria [1927] VLR 394 at 395; In re Berry and Gulliver; ex parte Law Institute of Victoria [1929] VLR 224 at 225–226; and see Cornall v Superannuation Systems (Aust) Pty Ltd [1989] VR 43.

I have referred to communications from the Law Institute.[39] These could only have served to remind Petsinis of the restrictions on unqualified persons in the old Act. As early as May 1988 the Law Institute raised the matter of Residential & Commercial acting as a solicitor and suggested there was a breach of ss. 90, 92 and 93. The same point arose in 1993 in relation to a notice of default and notice of recision which the Law Institute claimed could only be drawn by a qualified person.
[39]See [25–27] above.

These circumstances reveal, and I find it to be the fact, that up to the time when Parts 12 and 13 of the new Act commenced operation on 1 January 1997, Petsinis was familiar with the provisions of ss. 90–97 of the old Act which prohibited unqualified persons from acting as therein proscribed.

In the time until March 2000 when Mazaris wrote to Residential & Commercial, Petsinis must have acted on the basis that these provisions were applicable. That is because, according to him, he was ignorant of the changes concerning conveyancers introduced by the new Act. To be ignorant of those changes must mean that he was ignorant of the Act itself; at least there is nothing in the evidence to establish the contrary. On Petsinis' account, that ignorance was displaced in March 2000 when Mazaris contacted him. Each letter from Mazaris referred to ss. 330 and 314 of the Act. [40] That was sufficient for a person of reasonable sense to have gone to the Act. On reading s. 314, Petsinis would immediately have been aware that the Act continued the old prohibition against an unqualified person engaging in legal practice or, in the old terminology, acting or practising as a solicitor. On reading s. 330, it would immediately have become apparent to Petsinis that it was a new provision in a new Part.
[40]See [35] and [37] above.

It seems a most surprising thing that Petsinis did not have a copy of the Act in his office. It indicates a lack of awareness of the need to be up to date with legislation which he knew was relevant to the conduct of the conveyancing practice including restrictions on the manner of conduct of the practice. It also seems surprising that none of the "supervising solicitors" had alerted Petsinis to the provisions in the new Part 13 or suggested that he obtain a copy of the new Act. However that may be, I accept the evidence of Petsinis[41] that he did not have a copy of the Act but had obtained one before speaking to Mazaris after receiving the letter of 20 March.
[41]See [44] above.

Then, according to Petsinis, he did not know until made aware by Mazaris that he was not able to practise as a conveyancer. This, of course, was put in relation to the prohibition contained in s. 327.

This plea of ignorance did not meet another point which arose in the evidence that concerned the former prohibition against an unqualified person acting or practising as a solicitor and drawing up an instrument affecting rights (ss. 90 and 93 of the old Act) and the present prohibition of an unqualified person engaging in legal practice (s. 314 of the new Act). Further, s. 326 excludes from conveyancing work the giving of legal advice and the preparation of any document that affects an interest in land. In substance, although not in precise expression, these latter provisions continue the former provisions. The differences in terminology in the present Act are not material to this discussion because, according to Petsinis, he was not aware of them until March 2000. In those circumstances Petsinis must be taken to have conducted himself on the basis of the old Act up to the time when he read the new Act in March 2000. Further, as noted earlier, his evidence on 12 December revealed that he was aware of restrictions on unqualified persons performing legal work.

The significance of that is found in certain evidence he gave in cross-examination on 5 October. The starting point was the Law Institute's letter to Residential & Commercial dated 9 February 1993 in which the issue was raised as to whether Residential & Commercial had drawn a notice of default and notice of rescission in breach of s. 90 or s. 93 of the old Act.[42] Petsinis was asked about his supervising solicitor. He gave the name of a solicitor who at that time "was backing our service". He said he had numerous solicitors he could call on for assistance "with these sorts of matters". He said "we've had two [supervising solicitors] recently … I can call on a couple of fellows to give clients legal assistance if need be, which is rare". He was asked if a solicitor was meant to draft a conveyance and he replied:

" The conveyancing industry is an industry that's not heavily regulated and the code of practice in the conveyancing industry is that not every document that is prepared is vetted by a solicitor".

He then stated that that applied to a transfer. He said:
" The transfer is a document that now requires just filling in of blank spaces, as you would with a rate inquiry form."

[42]See [27] above.

Hence, when acting for a purchaser he would prepare the instrument of transfer. He agreed with a suggestion in cross-examination that that was the convention in the industry. He said it was "an unwritten code of practice" that he as conveyancer would prepare the transfer. He would not consult a solicitor unless there was a problem with the transfer. It was the same with a lease. He was then asked about notices of rescission which he described as "pretty standard sort of documents" and said that Residential & Commercial's notice had been vetted by their solicitor and that it was an appropriate document to be sent out in the appropriate circumstances. The vetting by the solicitor meant that he had approved the form of it, that is to say, that he had approved it as a precedent. But it was Petsinis who decided if it should be used and who prepared it. That had been the case with the notice referred to in the Law Institute's letter dated 9 February 1993.

Petsinis was then taken to the definition of legal work in s. 326 and asked whether he had considered that prohibition in determining whether he should prepare transfers, leases and notices of rescission. He said:

" I've given that consideration but I weigh that up with the convention that's used in the conveyancing industry as is the case to this very day."

It may be surprising that a person so apparently aware of practice in the conveyancing industry and aware that the industry was not heavily regulated, and being aware to have a supervising solicitor (whatever role that person was meant to and did perform), was not also aware of the relevant provisions of the Act from the time of their commencement. But that is another matter and I have found that he was not so aware; I decide the case on that basis.

The point exposed by the evidence at the hearing on 5 October is that, whether in preparing transfers, leases and notices of rescission, Petsinis acted in contravention of ss. 90 and 93 of the old Act and, since its commencement, of s. 314 of the new Act. It is sufficient to observe that the preparation of an instrument of transfer or a lease would seem readily to fall within the definition of legal work in s. 326. It is evident that Petsinis performed such work in the years prior to and after the commencement of the new Act until he ceased his employment in May 2000. I should say that it is no answer to observe, as Fenral's counsel did, that all that one does in preparing a transfer is to fill in gaps. That has always been the case with a transfer of Torrens land under which an instrument must be in an appropriate approved form, to use the current expression in the Transfer of Land Act 1958. One obtains the form and completes it as is appropriate in the circumstances. So also might it be that in speaking to a client as to giving a notice of rescission Petsinis might have given legal advice.

Thus far in the present discussion I have been referring to the evidence of Petsinis as it was at the hearing on 5 October. At the subsequent hearing on 12 December I had affidavits sworn by Mr and Mrs Petsinis and cross examination which further exposed the position in this area in several respects. As far as Mrs Petsinis was concerned, in her running of the business she saw Buxton once or twice a week and spoke to him by telephone regularly each week and often in the evening for advice and guidance. She referred all legal matters to Buxton. She said that transfers of land are prepared and when Buxton attends the office he vets the documents. If he requires an amendment, then that is done and it is then sent out. She said this was the invariable practice and that it happened in the case of the transfer prepared for the Rose matter. She said this also applied to leases and notices of rescission. Mrs Petsinis impressed me as an honest witness. She also impressed me as being more direct in answering questions that her husband. I was in fact left with the feeling that at times he did himself a disservice by a tendency to indirectness or a lack of immediate responsiveness to questions. To a further question in cross examination Mrs Petsinis said that the procedure she described had "always been the procedure" that the transfer is prepared and then checked by Buxton, and if in order then sent out. I accept that she described what has happened in her management of the business since 23 May. The earlier evidence of Petsinis referred to above indicated the contrary as the case, in that his evidence indicated that he worked off precedents previously vetted by the supervising solicitor.

As far as Petsinis is concerned, his evidence on 12 December was on the present point important in relation to the drawing of a will and his statement of the role of Buxton. Whatever the role of Buxton or any prior supervising solicitor has been in this area, the fact is that Petsinis and Residential & Commercial were unqualified and it seems undeniable that in drawing a will they contravened s. 314(1) of the Act and, it may be, s. 314(2) also. It is difficult to understand how Petsinis could have considered he was permitted to draw a will even with the approval of a supervising solicitor. A difficulty that I have in arriving at a conclusion on this aspect is that Buxton was not cross-examined.

Basing himself on Petsinis' evidence as to practice in the industry, on 5 October counsel for Fenral submitted that if I were to reach the conclusion just expressed, conveyancers would have to change their practices and might not be able to compete with solicitors. As to that I make the following observations. First, s. 326 is clear in its terms. So, too, for that matter is s. 314. The application of each section will depend on the facts of the particular case. Secondly, this judgment merely deals with whether Fenral should have an authorisation to employ a particular person in its conveyancing business. The appeal is not, and has not been conducted as, the occasion for an inquiry into what in some respect or other might constitute good practice in the performance of conveyancing work.

Continuing to work

That brings me to the point that Petsinis continued to work as a conveyancer after Mazaris' correspondence in March 2000, in particular the letter dated 20 March and their conversation on 21 March. I have already accepted that Mazaris told Petsinis he was required to cease his employment and that Petsinis refused to do so.[43]
[43]See [39–41] above.

Counsel for the respondent did not submit that, prior to being informed by Mazaris, Petsinis had been aware of the prohibition upon him in s. 327. I have dealt with the fact that he did not have a copy of the Act, and I accept that, while he should have known of its provisions, he did not. The submission of counsel for the respondent focused on the knowledge that Petsinis received by the letter dated 20 March 2000. That was confirmed the following day. That was sufficient time for Petsinis to have been in no doubt that he was not entitled to work. He should have observed the restraint upon him and stopped work. If his wife was incapable of filling the gap, they should have implemented measures to cover the situation. Instead he took a risk and kept working.

Then on 29 March he and Mrs Petsinis were advised by Kawecki that he could keep working once the application was filed and until the Board gave its decision. But the application was not filed until 12 April and in the meantime Petsinis kept working. He and Mrs Petsinis, I find, knew that this was against the law. The legal advice itself flew in the face of s. 327 which contained nothing that could have authorised it. Nor was the Board queried on that issue or its agreement sought to Petsinis working in the meantime. It must however be accepted that, even though it is plainly incorrect, Kawecki gave the advice and Petsinis and Residential & Commercial acted upon it.

In the result, the relevant period in which Petsinis worked with knowledge it was unlawful to do so was from, say, 21 March to 12 April, a period of three weeks. That is not a long time and there is no suggestion that any client suffered as a result of his employment in that time. There is also the fact, which Petsinis made much of in explanation, that there were ongoing matters and he did not want to let clients down. He was confronted with a difficult situation and, regrettably, acted in the wrong way. Without informing the Board or having an arrangement with it, he worked in breach of s. 327. This conduct was not what one would expect of an honourable conveyancer conscientiously seeking to work in conformity with the law as it affected him or her in practice.

Conversation with Mazaris on 13 April

The next point is the failure of Petsinis, when he advised Mazaris on 13 April that his name as Consultant had been removed from the letterhead, to also advise that he had decided to and was continuing to perform conveyancing work in the business. Counsel for the Board submitted that in this way Petsinis gave the appearance of acting lawfully when the reality was the contrary. In my view the same comment is applicable in relation to the provision of the letter to Mazaris on the previous day. There was no advice as to the true position. I refer also to my discussion concerning Mrs Petsinis' letter to the Board dated 30 March.[44]
[44]See [52–53] above.

Counsel for the appellant submitted that there was no deception in the sense that Petsinis did anything that was designed to deceive, because the truth as to him working was forthcoming. In other words, it was no secret that Petsinis was continuing to work. If the Board was aware that Petsinis was continuing to work right up to when it made its decision on 22 May, and it seems from ground 3 of its reasons[45] that it may have been, I would have to infer that awareness because neither Petsinis nor Kawecki nor Mrs Petsinis in her letter dated 30 March so informed the Board in clear and unequivocal terms. That is not to overlook the earlier remarks of Petsinis in his conversations in March. Nor, it should be added, was the Board informed of the legal advice of Kawecki on the basis of which Petsinis worked after the application was provided to it. It should also be noted that Petsinis did not refer to his letter dated 13 April in his affidavit, let alone exhibit it.
[45]See [60] above.

I accept the criticism of the letter of 13 April. It demonstrated a tendency for deflection. The reason for removing Petsinis' name from the letterhead was that he was prohibited from performing conveyancing work. Hence in the circumstances the removal of his name could reasonably be taken as representing that Petsinis had withdrawn from his role in conformity with s. 327, when the contrary was the fact. At the same time, the fact is that earlier in March Petsinis had told Mazaris he was going to continue to work and any doubt as to whether he was working could readily have been clarified.

Payment to the Solicitors' Guarantee Fund

The next point concerns the belated payment of the amount owing to the Solicitors' Guarantee Fund. I find that Petsinis made the payment out of self interest to aid his chances on the application to authorise his employment. Petsinis was open about this. Naturally enough the delay in payment, and the reason why the payment was ultimately made, reflects unfavourably on Petsinis. It might be observed, however it has been achieved, that Petsinis managed to retain the 92 High Street property in respect of the acquisition of which the original thefts went to lessen the financial burden caused by the purchase. To the extent of any nexus between the thefts and the payment of the costs of acquisition of that property, which one assumes has increased in value since 1979, the recent payment and discharge of the debt to the fund was belated indeed. To say this is merely to note the context and in no way to re-trace let alone re-enter old ground that was covered in the sentencing and punishment process in 1984.

I accept Petsinis' evidence that the last payment prior to the recent payment which cleared the debt was a payment of $100 on 26 November 1984. Between then and 16 June 2000 he made no payment. At an earlier time Petsinis had raised an issue as to the amount of the balance owing. There was correspondence and in the letter from the Law Institute dated 19 July 1993[46] Petsinis' solicitors were advised that the amount owing was $23,206.39. It was suggested in cross-examination that a further letter had been sent demanding payment of this amount. If there was, no payment was made and the years rolled by. It seems clear that, to the extent the matter of payment was pressed, it was done lightly and certainly ineffectually. In such circumstances a debtor may go to sleep. Of course it is a matter of honourable conduct to meet such a liability, but on the creditor's side there were two factors. The amount owing was subject to dispute and was not clarified until July 1993, 12 years after the last offence and almost nine years after sentence. That was followed by what seems virtual inactivity of the creditor. These cannot be overlooked as factors which contributed to the delay in payment.
[46]See [32] above.

Mixing funds

The next point concerns the transaction I have mentioned at [34] above. In that transaction, funds which belonged to the vendor were placed in the bank account of Residential & Commercial. The criticism of Petsinis was that in mixing funds of Residential & Commercial with funds of another party he did something which if he was a solicitor would have constituted a defalcation as understood under the Act. The short answer to this submission is that neither Residential & Commercial nor Petsinis is a solicitor, and as such subject to the provisions of the Act concerning the holding of trust money. Further, I am satisfied on the evidence that there was no lack of honesty or propriety on Petsinis' part in the matter in question. I do not regard this point as one that would warrant the refusal of the application.

I merely add the following. A person who engages in work as a conveyancer within the meaning of s. 326 is not subject to any requirement in the Act as to the manner of holding an amount which is subject to a trust for another person. However, long experience and an understanding of the frailty of human nature has indicated that it is an unwise thing to mix funds held on a trust for another person with one's own funds. Indeed the wiser course is, if practicable, not to hold trust money at all.

The Kellie Rose transactions

I have already discussed two issues arising from the Rose matters: the drawing of a will and Petsinis' involvement in the estate matter after 23 May. There is a further area of evidence which was considered at the hearing on 12 December. That concerned Petsinis being a means of communication between clients of Residential & Commercial and Mrs Petsinis after 23 May. This evidence is relevant to the issue of the involvement of Petsinis in the business after 23 May.

These issues fall into two areas: the engaging in legal work contrary to s. 314, and working as a conveyancer, not merely contrary to the preclusion in s. 327, but contrary to his earlier evidence. I consider each issue in turn.

Turning first to the matter of the will, there is little to add to the earlier discussion.[47] I have mentioned that in drawing a will there was a seeming contravention of s. 314. It was submitted that Petsinis' approach and his attitude was sloppy in that he failed to draw the line between what he was and was not permitted to do and that his relevant evidence was unsatisfactory. The evidence in this respect included his evidence concerning the dispute between Rose and her mother in which, counsel in effect submitted, Petsinis indicated that he would have drawn a document if he had not thought it appropriate to refuse to do so. I take that into account but the fact that he refused outright to do something because he considered that a mother-daughter dispute over money should be settled amicably does not establish a contravention of the law or an intention in his mind to be prepared to contravene the law.
[47]See [65–68] and [140] above.

The evidence of Petsinis as to proceeding to draw the will only after obtaining approval of the supervising solicitor, and of acting in the same way in the past under other supervising solicitors raises a difficulty. While Petsinis was cross-examined, Buxton was not. He was not cross-examined at the hearing on 5 October. He might have been cross-examined on matters such as what he did and how he acted as supervising solicitor for Residential & Commercial. It would have thrown light on the accuracy of evidence of Petsinis. It might have shown that in relevant respects Petsinis acted in a manner approved by Buxton, that is to say, in accordance with legal advice. His evidence could have been of material assistance in assessing the evidence of Petsinis and his character. I have referred earlier to aspects in which Petsinis was not a good witness. That is not to say that he was dishonest; an honest witness may not be a good witness.

Let me give an example of the sort of difficulty a judge may experience. It is provided by the advice of Kawecki that Petsinis could work in the business once Residential & Commercial had lodged its application under s. 328. I have been critical of that advice. It was plainly wrong. If that evidence had not been established by independent evidence some hesitation might reasonably have been experienced in accepting evidence of the receipt of that advice from Petsinis alone (or from his wife too). Without evidence from Kawecki it might have been suggested that Petsinis had made it up for the purpose of explaining his conduct, and it might have been suggested he should be disbelieved. And a judge might have accepted that submission. And there is exposed the possibility of the risk of an erroneous judicial assessment of a witness and his character. But no such submission was made and it could not have been. It was precluded by the acceptance of Kawecki's account.

A similar position arises on this matter of the will. I have the evidence of Petsinis. He knows, and counsel concedes he must be taken as being aware, of the prohibition on an unqualified person engaging in legal practice. He knows that drawing a will falls within that area. He draws a will. How does he explain it? He says that he had the approval of Buxton. Is that true? If it is true he is in effect saying that his supervising solicitor has given him the green light to draw a will. This is surprising because on any view Petsinis is prohibited from drawing a will, and it would be surprising if Buxton approved Petsinis proceeding to draw the will. But would it be any more or less surprising than Kawecki's advice that Petsinis was entitled to work? Counsel for the Board described Petsinis' attitude as sloppy but is that description altogether fair if his supervising solicitor has advised him he can proceed? Surely I am not to infer, and I have not been asked to do so, that Buxton was not aware of the provisions in Part 12 of the Act.

If Buxton had been cross-examined at the hearing on 5 October this matter may have been clarified. He was not and counsel did not seek to cross-examine him on this matter at the hearing on 12 December. In these circumstances there continues to be a risk, in my view an unacceptable risk, of an erroneous judicial assessment of Petsinis' evidence and character. If I reject Petsinis' evidence as to having approval from Buxton and yet the fact is that he did have that approval and Buxton would have said so if he had been cross-examined, and I concluded that Petsinis knowingly contravened s. 314(1)(a) without any reasonable explanation for doing so, he would have suffered a misjudgment and possibly severe and irreparable harm. Why should it be taken against Petsinis that his evidence on this issue is not the truth when the respondent has chosen not to cross-examine the witness to the fact and whose evidence would, one would suppose, readily establish the fact, just as Kawecki's did.

I accept Petsinis' evidence that he drew the will after having received the approval of Buxton that he could do so. I also accept Petsinis' evidence that he had received such approval in the past. It is clearly wrong for Petsinis and Residential & Commercial to perform such work or, indeed any work precluded by Part 12 and Part 13 of the Act. It should never happen again. The proper and only course is for Petsinis and any other employee of Residential & Commercial to advise a client that he is not able to perform the work in question and that it must be performed by a solicitor to whom the client should be referred or left to go to at his or her option.

The other issue concerns whether Petsinis has worked as a conveyancer since 23 May. In his affidavit sworn on 23 June 2000 he said that since 23 May he had ceased to be employed by Residential & Commercial as a conveyancer and had refrained from attending at the premises or carrying out any work for and on behalf of the company. The issue now raised is whether, in fact, since 23 May, Petsinis has engaged in work for the company. Counsel for the Board submitted that the evidence of Rose as to three telephone conversations with Petsinis subsequent to 23 May established that he had done such work because what he said in those conversations furthered the conduct of the matter in which Residential & Commercial was acting for Rose.

I have already made findings about this matter.[48] I do not repeat them. I only add the following. I am not persuaded on the balance of probabilities that more than one conversation occurred, as mentioned earlier. I do not find that Rose was not an honest witness. Rather, taking account of all the evidence, it is not established to my satisfaction that she spoke to him on as many occasions as she did. Secondly, I accept that he spoke to her for the reasons and in the way I have discussed earlier.
[48]See [69–75] above.

I accept that he has not worked in the office since 23 May and I find that he has not conducted conveyancing work at home. I accept that he has withdrawn from the business. I also accept that he did not regard himself as giving Rose conveyancing advice or understand that in speaking to her he was carrying out work as a conveyancer contrary to his evidence that he had ceased to do so on 23 May. Even assuming that what he said to Rose aided or facilitated her understanding of the matter and the working relationship with Residential & Commercial, and thereby furthered the carrying out of the engagement, I do not consider that in a real and substantial sense that means that in truth since 23 May Petsinis has acted as a conveyancer contrary to the intendment and spirit of his earlier evidence.

That is true also of the occasions when, as a result of friends who are clients of Residential & Commercial, asking him in social conversation about a matter being handled by the company, and although he usually tells them they should contact Mrs Petsinis, he has inquired of her and passed a message back as to progress. I accept that he informs such inquirers he is unable to assist them or perform their work and that he refers them to his wife. I accept the evidence of Petsinis that the messages he conveyed were insignificant. He also said that they were not conveyancing work. I understood his evidence, and that of Mrs Petinis, to mean that any messages were incidental in nature and not such as to constitute conduct of a matter in a real sense. I do not accept that the contact establishes that since 23 May Petinis has engaged in work as a conveyancer.

9. Conclusion

I turn to the resolution of the appeal in light of the above discussion. I should note that in the course of argument I queried whether the parties wished to raise for consideration any condition which might be considered appropriate to impose on an authorisation under s. 328(4). The preferred position of the appellant was that the appeal be allowed without the imposition of any condition. But should I determine to grant an authorisation subject to a condition, the appellant submitted that an appropriate condition would be one on the following lines, namely, that for a period of two years and for so long as Petsinis was engaged or employed by it, the appellant upon seven days' notice in that behalf:

(a)(i) produce to the Board for inspection any document relating to the conduct by the appellant of its conveyancing business including but not limited to any document contained in any file or pertaining to any bank account, and
(ii)provide to the Board any information relating to the conduct of the said business.

(b)permit the servants or agents of the Board and the solicitor for the Board to enter the office premises of the appellant at 92 High Street, Northcote for the purpose of inspecting any document or thing relating to the conduct of the appellant's conveyancing business and remove into their custody any such documents or things.

Counsel for the respondent advised its position as being that an authorisation should be refused in the interests of consumer protection and that if it was determined there should be an authorisation upon conditions the respondent would wish to be heard as to them. Of course I would hear counsel on the terms of any condition before imposing it. That stage has not been reached.

I turn then to the issue of whether an authorisation should be granted. I take account of the matters discussed without repeating them. There is no evidence or even suggestion of Petsinis having committed an act of dishonesty since 1980/1981, or of having otherwise caused financial harm to any person as a result of any failure or improper conduct whether in the course of his conveyancing business or otherwise. That is a period of some 20 years in which he has been working, for the last 15 or so as a conveyancer. In that time he has handled in excess of 5,000 conveyancing transactions. That has necessarily involved handling cheques on behalf of clients. It would also seem from the Wattle transaction[49] that he might at times have had to handle funds belonging to a client or the other party to a transaction. Nothing adverse has arisen over this period. All the indications are, and the contrary was not suggested, that Petsinis is a good conveyancer, trustworthy and reliable in that regard.
[49]See [34] above.

It is undoubtedly a significant mark against Petsinis that he worked as a conveyancer from 1 January 1997 until 23 May 2000 when he was precluded from doing so by the Act. He was aware of the restrictions in ss. 90–97 of the old Act and it would seem obvious that he should have kept up with changes to that legislation and been aware of Part 13 in the new Act. I accept that he was not aware of the new provisions. That lack of awareness also reflects adversely upon Petsinis. The fact is that he should have been aware. When in March 2000 he came to realise that he was precluded from work he was confronted with a dilemma. Was he to instantly stop work and thereby risk possible prejudice to his clients? As difficult as it might have been, he should have stopped work in accordance with the preclusion in s. 327.

Another factor in evaluating whether Petsinis is an appropriate person to be permitted to work as a conveyancer is the matter of the failure, until 16 June 2000, to pay the balance of the amount owing to the Solicitors' Guarantee Fund. The failure to repay what he owed left the Fund depleted to that extent. Both as a creditor and an honourable person making amends for his wrongs, he should have made repayment reasonably promptly after the amount due was clarified in July 1993. I make allowance for apparent uncertainties as to the amount due before then, although it seems difficult to understand how such uncertainty warranted the failure to make any payment at all after November 1984 until 16 June 2000. At the same time, an allowance should be made for the fact that little effort was made to have Petsinis pay what was owed.

The issues arising from the evidence concerning the Kellie Jean Rose matter have been sufficiently explored and it is not necessary to repeat any part of that discussion.

It should be emphasised that the question with which I am concerned is not whether Petsinis should be re-admitted to the roll. Indeed towards the conclusion of the hearing counsel for the appellant stated that "we wouldn't be here" if that was the application. The question with which I am concerned is whether Petsinis should be permitted to be engaged or employed by Fenral in connection with the performance of conveyancing work as defined in s. 326 and that requires me to consider whether he is an appropriate person (to use the Board's expression) or, to put in another way, a fit and proper person to be so engaged or employed. That is not the question which would arise if Petsinis applied to be re-admitted to the roll and the answer which I give on the present application for an authorisation under s. 328 does not indicate the answer which might be given on such an application if it ever came to be made. Not only is that not the question but a person employed to perform conveyancing work as defined undertakes work of a narrower and far more limited scope and responsibility than might be undertaken by a barrister and solicitor in legal practice.

Taking all the relevant matters into account including the scope of conveyancing work as defined in s. 326, and having had the benefit of observing Petsinis, I am of the view that it is appropriate to grant an authorisation to permit his employment but with the imposition of appropriate conditions. On balance I am not persuaded that "the interests of consumer protection" require that Petsinis not be permitted to be engaged or employed as a conveyancer by Fenral. I am satisfied in all the circumstances that he is an appropriate or fit and proper person to be engaged or employed as a conveyancer. I do not consider that the matters discussed in this judgment, whether singly or in combination, establish that the application should be refused. I am of the view that, chastened by the experience of this application and not having worked as a conveyancer since 23 May last, Petsinis and his wife will make all reasonable efforts to ensure that they keep up to date with the requirements of and comply with all relevant legislation concerning the business of a conveyancer, including by making inquiries of the Board, and not engage in work that Part 12 does not permit an unqualified person or corporation to engage in. I am also of the view that in future Petsinis, and Mrs Petsinis, will appreciate the need to be open and candid in answering a query from the Board or other regulatory authority, and, indeed, in all dealings generally. I note that Mrs Petsinis is seeking to join the Conveyancers' Association which is an obvious and sensible way of becoming better informed and aware of good practice. I anticipate that Petsinis himself would follow the same course. I am also impressed by the fact that in the years since 1980/1981, when he committed the offences for which he was sentenced in 1984, he has not offended again in connection with the money or property of others.

As mentioned, I consider that the authorisation should be subject to conditions. That is because of the matters discussed concerning observance or otherwise of the restriction on not performing legal work, and observance of the requirements of s. 330, and otherwise to enable a check to be made on the proper and lawful performance by Petsinis of conveyancing work in the employ of Fenral and, indeed, by Fenral itself. Conditions along the lines proposed by the appellant would seem appropriate, with such clarification and change as may be desirable in the light of counsel's submissions. Of course the Board may suggest a different form of condition. I recognise that the Board is not established as a general investigator or regulator of conveyancers and I would not wish to burden it unduly by the imposition of a condition, but it has a role in relation to conveyancers and has given no indication of any reason in principle why a condition along the lines of that proposed by the appellant is inappropriate or could not work. I will hear counsel on that matter.

---

[2000] VSC 489

22 December 2000