VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
ADMINISTRaTIVE DIVISION 
LEGAL PRACTICE LIST	vcat reference No. J90/2021
	
CATCHWORDS	
Legal Practice List. Legal Profession Uniform Law (Vic) 2014 s 296 and s 297 – two charges of unsatisfactory professional conduct - two charges of professional misconduct at common law, Legal Practitioner failing to understand that a personal power of attorney could not be used to enable the legal practitioner attorney to sign an agreement on behalf of a company in which the donor of the power of attorney was sole director, Legal practitioner subsequently preparing a false company power of attorney and producing that document to the Supreme Court of Victoria and to parties in a Supreme Court proceeding in response to a subpoena - Facts admitted - Guilty plea to charges - Consideration of penalty- Consideration of whether an order recommending to the Supreme Court that the name of the Legal Practitioner be removed from the Supreme Court Roll of Legal Practitioners should be made.	

APPLICANT	Victorian Legal Services Commissioner	
RESPONDENT	Melissa Waduge also known as Melissa Seremelis	
WHERE HELD	Melbourne via Video conference	
BEFORE	Member J Sharkie	
HEARING TYPE	Plea hearing	
DATES OF HEARING	24 January 2023 and 17 February 2023	
DATE OF ORDER and reasons	4 August 2023	
CITATION	Victorian Legal Services Commissioner v Waduge (Legal Practice) [2023] VCAT 906	

FINDINGS
The respondent having admitted the allegations contained in the Amended Application for Order dated 24 January 2023 (‘the Amended Application’) and having pleaded guilty to charges 1, 2, 3 and 4 is found guilty of misconduct at common law in respect to charges 2 and 3, within the inclusive definition of professional misconduct contained in section 297(1) of the Legal Profession Uniform Law (Victoria) 2014 (‘Uniform Law’) and is found guilty of unsatisfactory professional conduct within the meaning of section 296 of the Uniform Law in respect to charges 1 and 4. The details of the charges are as follows: 
CHARGE 1
Unsatisfactory professional conduct, within the meaning of section 296 of the Uniform Law, namely conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, by relying on a personal power of attorney to execute an agreement on behalf of a company.
CHARGE 2
Professional misconduct, within the meaning of section 297(1) of the Uniform Law, namely misconduct at common law, for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable by causing and/or allowing the creation and execution of a false document, being a company power of attorney, and, in doing so, acting dishonestly, and so seriously as to cast doubt on the inherent fitness of Ms.Waduge to be held out to members of the public as a legal practitioner.
CHARGE 3
Professional misconduct, within the meaning of section 297(1) of the Uniform Law, namely misconduct at common law, for engaging in conduct which would reasonably be regarded by legal practitioners of good repute and competence as disgraceful and dishonourable by producing a company power of attorney (being a false document) to the Supreme Court in answer to the Subpoena, and, in doing so, acting dishonestly, and so seriously as to cast doubt on the inherent fitness of Ms.Waduge to be held out to members of the public as a legal practitioner.
CHARGE 4
Unsatisfactory professional conduct, within the meaning of section 296 of the Uniform Law, namely conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, by failing to record file notes of oral instructions purportedly received from her clients.

Orders
1	The respondent is reprimanded.
2	The respondent is prohibited from applying for a practising certificate until 1 July 2027.
3	Any practising certificate obtained by the respondent on or after 1 July 2027 will be subject to a condition that the respondent practice as an employee only for a period of at least two years and that such practising certificate be subject to supervision for the first two years.
4	At the time of applying for a practising certificate to practice at any time on or after 1 July 2027 the respondent must provide the Victorian Legal Services Board with proof that in the twelve months (or such longer period as may be agreed by the Victorian Legal Services Board) immediately preceding her application that she has completed six units of continuing professional development in the areas of ethics and professional responsibilities, two units of continuing professional development in the area of substantive law relating to powers of attorney and one unit in the area of substantive law in the area of execution of company documents (or such appropriate unit regarding the execution of company documents as may be determined to be appropriate by the applicant) . This obligation is in addition to any mandatory continuing professional development requirements.
5	The applicant’s application for an order recommending to the Supreme Court that the respondent’s name be removed from the Roll of Legal Practitioners is dismissed.
6	The respondent must pay the applicant’s costs of the proceeding in the sum of $26,000.00, such payment is to be made within 30 days of the date of this order.

J Sharkie
Member

APPEARANCES:		
For the Applicant	Mr D Bruno – of Counsel	
For the Respondent	Mr T Scotter – of Counsel 

Reasons
Overview
1	Ms Waduge was admitted to practice in Victoria on 7 October 2002.
2	Ms Waduge has pleaded guilty to four charges being, two charges of unsatisfactory professional conduct and two charges of misconduct at common law. The charges relate to the improper use of a general power of attorney to purportedly execute a document on behalf of a company, failure to record file notes, preparing a false company power of attorney and producing such false company power of attorney to the Supreme Court of Victoria in response to a subpoena.
3	These are serious charges. The following decision considers whether the charges are established, the penalty which ought to apply and whether an order ought to be made recommending to the Supreme Court that Ms Waduge’s name be removed from the Roll of Legal Practitioners kept by the Supreme Court of Victoria (‘the Roll’)
4	Ms Waduge was unaware that a personal general power of attorney of a sole company director was not able to be used to execute an agreement on behalf of a company. Subsequently she received advice that the general power of attorney could not be used in such a manner. In the course of Supreme Court proceedings initiated by the company concerning and/or arising out of the subject matter of the agreement, Ms Waduge prepared a false company power of attorney in an attempt to cover up her error and lack of understanding. Ms Waduge then produced the false company power of attorney to the Supreme Court in response to a subpoena served on her.
Relevant Background Facts 
5	Although admitted to practice on 7 October 2002 Ms Waduge did not obtain a practising certificate until 4 December 2013.
6	At all relevant times of the conduct set out in the Amended Application for Order, Ms Waduge was an Australian legal practitioner within the meaning of section 6 of the Uniform Law (or its predecessor, section 1.2.3(a) of the Legal Profession Act 2004 (Vic)).
7	On or about 3 December 2014, Ms.Waduge commenced employment as the legal director of Shield Partners Pty Ltd (‘Law Practice’), an incorporated legal practice.
8	Since about March 2014, Ms.Waduge had acted for her client, Mr Luke Stokie. She also acted for various companies in which he was involved. Meyfield Developments Pty Ltd (‘Meyfield’) was one of these companies.
9	Mr Stokie was the sole director and shareholder of Meyfield.
10	On or about 27 April 2015, Ms Waduge prepared a general power of attorney for Mr Stokie which appointed Ms Waduge as Mr Stokie’s attorney (‘Stokie POA’) This document conferred on the attorney the power to do anything on Mr Stokie’s behalf that Mr Stokie might lawfully authorise an attorney to do. It did not, and could not, authorise the attorney to do anything on behalf of Meyfield.
11	On or about 9 June 2015, Mr Stokie instructed Ms.Waduge by telephone to prepare an agreement between Meyfield and Altus Development Pty Ltd (‘Altus’), by which Meyfield agreed to provide project development services in respect of the purchase by Altus of a property in City Road, Southbank (‘the City Road Property’) (‘Services Agreement’).
12	MsWaduge prepared a draft Services Agreement in accordance with Mr Stokie’s instructions.
13	Pursuant to instructions received from Mr Stokie, Ms.Waduge purported to execute the Services Agreement on behalf of Meyfield on 1 July 2015, by signing it with the following handwritten notation by the execution clause:
SIGNED HEREIN UNDER MY CAPACITY AS AN ATTORNEY FOR LUKE MICHAEL STOKIE IN ACCORDANCE WITH THE GENERAL POWER OF ATTORNEY DATED 27 APRIL 2015.
14	Later that day, Ms Waduge received the Services Agreement executed on behalf of Altus .
15	Under the Services Agreement, Altus agreed to pay a service fee of $900,000 within three days after Altus, or an associate of Altus, entered into a contract of sale to purchase the City Road Property and, a completion fee of $8,100,000 upon settlement of the purchase of the City Road Property. The contract of sale for the purchase of the City Road Property was executed by Altus.
16	On or about 20 June 2016, Meyfield issued proceedings in the Supreme Court in proceeding seeking to recover a debt due under the Services Agreement (‘the Proceedings’). Meyfield’s claim initiated against Altus and two of Altus’ directors being the Second and Third Defendants in the Proceedings.
17	Mills Oakley acted for Meyfield in the Proceedings. Kalus Kenny Intelex acted for all Defendants.
18	In its Statement of Claim filed in the Proceedings, Meyfield claimed that the amounts of $900,000 and $8,100,000 were owing under the Services Agreement. It claimed the total amount of $9,000,000 as a debt or, alternatively, damages, together with interest and costs.
19	On or about 20 September 2016, Altus caused a subpoena to be issued to Ms.Waduge seeking production of, among other things,
“A copy or the original of the general power of attorney dated 27 April 2015 granted to you by Luke Michael Stokie” (‘Subpoena’)
20	On 22 September 2016, Ms Waduge was served with the Subpoena.
21	On or about 23 September 2016, Ms Waduge attended a meeting with Mr Stokie and Mr Andrew Brown of Mills Oakley at the offices of Mills Oakley (‘23 September meeting’). During the 23 September meeting:
23.1	Mr Brown informed Ms.Waduge that he would have expected there to be a power of attorney for Meyfield as it was the company that was to execute the Services Agreement; and
23.2	Ms.Waduge, consequently became aware that the Stokie POA may not have been appropriate, or effective, to enable Ms.Waduge to execute company documents on behalf of Mr Stokie.
22	On or about 5 October 2016, Ms.Waduge gave notice to the Prothonotary of the Supreme Court of Victoria that Ms.Waduge objected to producing the documents referred to in the Subpoena pursuant to rule 42A.07 of the Supreme Court (General Civil Procedure) Rules 2015 (Victoria). The grounds for objection were:
1.	The issuing of the subpoena is premature at this stage of the proceeding, whereby the plaintiff has issued an application to strike out the Defendant’s Amended Defence;
2.	the Subpoena seeks production of privileged material;
3.	the request of certain categories of documents listed in the Subpoena constitute a fishing expedition, upon which the Defendants seek to establish the basis of potential claims; and
4.	the request of certain categories of documents in the Subpoena are irrelevant to the issues in the Proceeding as defined by the current pleadings.
23	At a directions hearing on 21 October 2016, Kennedy J ordered Meyfield to provide the defendants with a copy of the Stokie POA by 28 October 2016 (‘the Orders’).
24	Following the 23 September meeting, Ms.Waduge sought and received instructions from Mr Stokie to prepare a power of attorney from Meyfield to MsWaduge.
25	The power of attorney for Meyfield was created on the Law Practice’s computer system on 21 October 2016.
26	On or about 24 October 2016, Ms Waduge signed and executed the Meyfield power of attorney (‘the Meyfield POA’). She handwrote the date “27 April 2015” on the Meyfield POA.
27	Mr Stokie subsequently executed the Meyfield POA.
28	The Meyfield POA appointed Ms Waduge as Meyfield’s attorney. The authority conferred on Ms Waduge with respect to Meyfield is set out in clause 3 as follows:
3. The Attorney is authorised by this Deed:
(a)	to make, sign, seal or otherwise execute, alter, correct, or otherwise complete documents which the Attorney may deem necessary or proper in relation to the affairs of the Company;
(b)	to make, sign, seal or otherwise execute, alter, correct, or otherwise complete any document that is incidental to, any of the documents as per sub-clause (a); and
(c)	to do anything that in the reasonable opinion of the Attorney is necessary to give effect to, or otherwise ensure proper execution of, any documents as per sub-clauses (a) and/or (b).
29	On 25 October 2016, Mr Stokie emailed certified copies of the Stokie POA and the Meyfield POA to Mills Oakley. 
30	On 27 October 2016, Mills Oakley emailed Kalus Kenny Intelex attaching a copy of the certified Meyfield POA.
31	In its Further Amended Defence filed on 9 November 2016, Altus raised a number of defences including that, by reason of defects in the execution of the Services Agreement, Meyfield was not a party to the Services Agreement as alleged by Meyfield.
32	On 24 November 2016, Ms.Waduge sent a letter to the Prothonotary enclosing a copy of the Meyfield POA in response to the Subpoena. Ms.Waduge did not produce the Stokie POA at that time.
33	By orders made on 24 March 2017, the Law Practice and Ms.Waduge were joined as third parties to the Proceedings (‘the third parties’). Obst Legal acted for Ms.Waduge in the Proceedings.
34	On 8 May 2017, Ms.Waduge made discovery. However, she did not make discovery of either the Stokie POA or the Meyfield POA.
35	On 15 May 2017,Kalus Kenny Intelex wrote to Obst Legal asking for discovery of  the Stokie power of attorney.
36	On that same date, Kalus Kenny Intelex wrote to Mills Oakley, asking for Meyfield to discover, among other things, “documents relating to the power of attorney dated 27 April 2015 including instructions for its preparation, emails or other written communications from [Ms Waduge] to your client, and the Invoice”.
37	On or about 18 May 2017, Mills Oakley wrote to Kalus Kenny Intelex challenging the relevance of the requested documents to the Proceedings.
38	On or about 29 June 2017, Obst Legal wrote to Kalus Kenny Intelex, indicating, “We are instructed that there are no further documents in our clients’ possession, custody or power, to be discovered”.
39	On 13 July 2017, Kalus Kenny Intelex, wrote to Obst Legal, requesting discovery of the Meyfield POA dated 27 April 2015 in its native Word format, in electronic form, along with the metadata of that document.
40	On 3 August 2017, Obst Legal, sent Mr Kenny an email, attaching the Meyfield POA in its native Word format in electronic form.
41	On 15 August 2017, Ms.Waduge affirmed a Supplementary Affidavit of Documents for the purposes of the Proceedings. At that time she made discovery of two documents both dated 27 April 2015 and described as “General Power of Attorney”.
42	After receipt of the email referred to in paragraph 40, Mr Kenny engaged an expert forensic technologist who concluded that the Meyfield POA was created or first saved on 21 October 2016.
43	On or about 15 September 2017, Altus made application for summary judgment relying on the opinion of the expert forensic technologist.
44	On 14 November 2017, Meyfield resolved to ratify Ms Waduge’s execution of the Services Agreement. The ratification was in the following terms:
I, LUKE MICHAEL STOKIE, being the sole Director of MEYFIELD DEVELOPMENTS PTY LTD (the Company):
1.	NOTE that on or about 1 July 2015, MELISSA ANN WADUGE executed a Services Agreement between the Company and Altus Development Pty Ltd (ACN 163 362 990) on behalf of the Company; and
2.	RESOLVE that the Company hereby ratifies, approves and adopts said execution on its behalf as from the date of said execution (emphasis added).
45	On 16 November 2017, the application for summary judgment came before Kennedy J. Meyfield sought, and was granted, leave to amend its pleadings to withdraw the pleading that the Services Agreement was executed on 27 April 2015 pursuant to a power of attorney from Meyfield.
46	Meyfield’s Reply to Fourth Further Amended Defence filed 11 August 2017 at paragraph 4 read:
by general power of attorney donated by Meyfield to Melissa Ann Waduge on 27 April 2015, Ms Waduge was duly authorised to, and did, execute the Services Agreement on Meyfield’s behalf(emphasis added). (Annexure 25)
47	Meyfield’s Amended Reply to Fourth Further Amended Defence filed 16 November 2017 at paragraph 4a read:
by general power of attorney donated by Luke Stokie to Melissa Ann Waduge on 27 April 2015, Ms Waduge was duly authorised to, and did, execute the Services Agreement on behalf of Meyfield, by signing as attorney for Meyfield’s sole director Luke Stokie(emphasis added). (Annexure 26)
48	The Proceedings were settled before trial.
49	Whilst acting for Mr Stokie and Meyfield, Ms.Waduge failed to record file notes of oral instructions purportedly received from Mr Stokie and/or Meyfield.
History of The Proceeding
50	Prior to the first scheduled hearing day on 24 October 2022 the parties had achieved an agreed position on the facts and penalty.
51	On 20 October 2022, Ms Waduge filed and served a document explaining her inability to attend the hearing and contained a submission regarding her remorse (‘the October statement’). The October statement is annexed to these reasons as appendix A. 
52	When the applicant considered the October statement it interpreted the contents as displaying a lack of remorse or insight and changed its position on an agreed penalty. On 24 October 2023, the applicant advised the Tribunal that it would be seeking an order from the Tribunal for a recommendation to the Supreme Court to strike the name of Ms Waduge from the Roll.
53	The agreed position on penalty evaporated. The agreed position as to the “core facts” remained.
54	An adjournment was granted due the late change of position of the applicant regarding an agreed penalty.
55	When application returned for hearing on 24 January 2023, discussion between the parties occurred. The outcome of the discussion was that an amended application was filed and served. The amended application added the words, “and so seriously as to cast doubt on the inherent fitness of Ms Waduge to be held out to members of the public as a legal practitioner.” to Charges 2 and 3.
56	Ms Waduge did not attend the hearing. A medical report was tendered for each hearing day. Each medical report advised that her mental health would be adversely affected if she attended the hearing. In addition to the medical reports Ms Waduge provided further amplification of her mental health condition in an affidavit affirmed on 15 December 2022 (‘the December affidavit’).
57	Mr Scotter represented Ms Waduge on each hearing day.
58	No adjournment was sought by reason of her medical condition. Moreover, Mr Scotter requested that the hearing proceed. In the circumstances I saw no impediment in proceeding in the absence of Ms Waduge.
Plea
59	Through her Counsel, Mr Scotter, Ms Waduge pleaded guilty to the four charges in the Amended Application. The hearing proceeded as a plea. 
Applicable legislation
Section 296 (1) of the Uniform Law
60	Section 296 of the Uniform Law provides:
296 	Unsatisfactory professional conduct
For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.”
Section 297(1) of the Uniform Law
61	Section 297(1) of the Uniform Law provides:
297		Professional misconduct 
(1)		For the purposes of this Law, professional misconduct includes— 
(a)		unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and 
(b)		conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 
(2)		For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
62	In addition to the inclusionary definitions in Section 297(1) of the Uniform Law professional misconduct includes behaviour on the part of the legal practitioner which “would reasonably be regarded as disgraceful or dishonourable by legal practitioners of good repute and competency”. Such a notion has been widely accepted by the courts.
63		Whether conduct amounts to professional misconduct or unsatisfactory professional conduct depends on the seriousness of the conduct.
Does the conduct warrant a finding of guilt?
64	Ms Waduge has admitted that her conduct in using the Stokie POA to execute the Services Agreement on behalf of Meyfield was conduct in her practice as a lawyer which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 
65	The Stokie POA was a personal power of attorney. It was directed to Mr Stokie’s personal affairs. It is a fairly basic principle that a company is a separate entity from its directors. A company’s affairs are separate and distinct from the personal affairs of the company’s directors. The Stokie POA could never have been used by Ms Waduge to execute a document on behalf of Meyfield. Its attempted use to execute the Services Agreement displays a lack of understanding of this basic principle and falls well short of the expected standard of competence and diligence that a member of public is entitled to expect from a reasonably competent lawyer.
66	Ms Waduge made no file notes of any instructions or conversations with Mr Stokie regarding these matters. In the context of the Proceedings, the circumstances surrounding the execution of the Services Agreement, the preparation and execution of the Stokie POA and the preparation and execution of the Meyfield POA become paramount. Given the matrix of the these matters the contents of the discussion at the 23 September meeting may also have been of relevance. 
67	A reasonably competent lawyer ought to keep file notes regarding the preparation of a power of attorney. Those notes may assist a later stage if an irregularity such as lack of capacity or lack of authority becomes an issue. It is reasonable for a client as a member of the public, to expect notes relating to preparation of powers of attorney and instructions and authorisation to use the same to be made by the lawyer. A lawyer can never know in advance whether the execution of a document will become an issue. A file note ought to have been prepared. The 23 September meeting was a meeting with Meyfield’s lawyer. If, at that meeting, Mr Stokie provided Ms Waduge with instructions then she should have recorded those instructions. 
68	Whilst the preparation of file notes is always important, if not prudent, not every failure to prepare notes will necessarily constitute a failure to reach the appropriate standard. The absence of file notes in this matter does fall well short of the standard given the significance of the execution of the Services Agreement preceded by the execution of the Stokie POA some six weeks previously. Ms Waduge has pleaded guilty to this failure to meet the requisite standard.
69	Ms Waduge has admitted Charges 2 and 3. She has agreed that she acted dishonestly in causing and/or allowing the creation and execution of a false document namely the Meyfield POA and by producing the Meyfield POA to the Supreme Court in answer to the Subpoena. 
70	Mr Scotter submitted that the Meyfield POA was “falsely dated” and was not a “false document.” Given the fact that the Meyfield POA was prepared in the course of the Proceeding following the 23 September meeting, I do not accept Mr Scotter’s submission 
71	Back dating the Meyfield POA renders it “false.” It was not executed on the date it bears. It was produced to the parties and the Supreme Court as a document executed on 27 April 2015. Furthermore, the sequence execution by the signatories to this document whereby Ms Waduge signed before Mr Stokie underlines her dishonesty. Adopting the normal meaning of “false,” the Meyfield POA bearing the date of execution of 27 April 2015 renders it untrue. It is a false document.
72	There is no doubt that the conduct in relation to the Meyfild POA was conduct which ‘would reasonably be regarded as disgraceful and dishonourable by legal practitioners of good repute and competency’ and thereby was behaviour or conduct which was serious. 
73	Each of the charges are proven and Ms Waduge is guilty.
74	I will now with the question of penalty, including the referral request.
Applicant’s submissions regarding penalty
75	The applicant submitted that because Ms Waduge’s conduct involved dishonesty with the intention to mislead parties to the Proceeding and the Supreme Court, she should be excluded from practise for a significant period.
76	The applicant asserted that there is a clear need for general deterrence (as indeed is always the case in matters of his nature) and there is also a need for specific deterrence in this instance because there are doubts regarding Ms Waduge’s insight and remorse. In particular, her explanation of’ lack of experience’ was not accepted by the applicant as an indication that she accepts that she had committed any wrongdoing.
77	The applicant submitted it was Ms Waduge’s responsibility to produce the Stokie POA to the Supreme Court. Instead, she initially produced the  Meyfield POA. The Stokie POA was produced at a later stage. The applicant suggested that Ms Waduge’s explanation of relying on the assistance from others when responding to the subpoena was an attempt by Ms Waduge to distance herself from the wrongfulness of her conduct. The subpoena was issued to Ms.Waduge personally, therefore, according to the applicant, compliance was her responsibility.
78	In relation to general deterrence the applicant contended that the public and the profession need to understand that adverse consequences will follow conduct of this nature.
79	Mr Bruno, for the applicant, submitted that on the basis of the October statement and the 15 December affidavit there is a doubt whether she is remorseful and accepts responsibility. The suggestion by Ms Waduge that she did not create the Meyfield POA to “mislead” but rather “to regularise” what she understood the position to be, and that she relied upon the advice of others deflects the position. The December affidavit the applicant said takes the matter no further.
80	The applicant said that Ms Waduge’s non-attendance at the hearing denied the applicant the opportunity to obtain responses concerning her insight and remorse. 
81	Mr Bruno suggested that little weight should be attached to the medical reports explaining Ms Waduge’s inability to attend the hearing. He observed that the hearing was “on-line.” In the absence of her attendance that applicant questioned how the Tribunal would be able to assess the issue of remorse.
82	The applicant submitted that the October statement underlines the lack of remorse of Ms Waduge. In that document, the applicant submits, she continues to put forward explanations for her conduct rather than accepting responsibility. 
83	The applicant acknowledged that Ms Waduge held a practising certificate for approximately two years at the time the conduct first occurred. In that sense she was a relatively junior practitioner. 
84	The applicant advised that Ms Waduge has no prior disciplinary history. No complaint regarding Ms Waduge has been made since the investigation was commenced. The applicant conceded that Ms Waduge cooperated during the applicant's investigation. The applicant acknowledged that there was an early guilty plea. 
85	The applicant submitted that there are some statements of remorse contained in the October statement and that her guilty plea does demonstrate a level of remorse. Nevertheless, the words used need to be read having regard to her conduct. The October statement, it is suggested, is directed ‘precisely as to conduct’ rather than acceptance of wrongdoing. The statement describes what she thinks she has done wrong. Thus, it is contended, that she does not accept fault.
86	The applicant asserted that Ms Waduge could have surrendered her practising certificate at an earlier stage and could have undertaken Compulsory Professional Development (‘CPD’) to educate herself. An apology could have been given to the Supreme Court and to the other parties in the Proceeding.
87	The applicant acknowledged that there has been delay in prosecuting this matter which has taken “longer than desirable.” However, the applicant adds that Ms Waduge contributed to the delay by her lack of timely response in relation to certain matters.
88	The applicant changed its previous position in relation to penalty after the filing and service of the October Statement. The applicant contended that the December affidavit does not alter the sentiments expressed in the October statement. The applicant considered that Ms Waduge lacks insight and has displayed no genuine remorse. The applicant submitted that there is no positive evidence that Ms Waduge may become a fit and proper person in the future.
89	The applicant submitted that the October statement demonstrates that Ms Waduge fails to have insight into her wrongdoing which involves serious dishonest conduct. The October statement minimises the conduct. She has misled the Supreme Court. Consequently, she poses a threat to the public. The applicant is of the opinion that Ms Waduge is likely to remain unfit. Removal of Ms Waduge’s name from the Roll, according to the applicant, protects the public.
90	The applicant further submitted that it would make no difference if Ms Waduge were subject to supervision.
91	In reply to the case analysis put by Mr Scotter the applicant suggested that of decisions analysed most are not similar. Only the decision of Law Society of New South Wales v Foreman (‘Foreman’) according to Mr Bruno, which concerned the falsification of a document referred to in an affidavit of documents, is of some relevance because the case involved a false document being put forward in a court proceeding.
92	In relation to the appropriate penalty the applicant's position was that the Ms.Waduge should be reprimanded, prohibited from obtaining a practising certificate for a period of five years.
93	The applicant proposed that any practising certificate which is granted after the period of disqualification be  subject to a condition that Ms Waduge practises as an employee only for a period of two years and thereafter subject to a further condition on any subsequent practising certificate obtained that she be supervised for a period of two years.
94	Additionally, the applicant submitted that prior to applying for a practising certificate Ms Waduge must demonstrate to the Victorian Legal Services Board that she has completed during the twelve months immediately preceding five points of continuing professional development in the area of ethics and responsibility and two points of continuing professional development in the area of substantive law specifically related to powers of attorney.
95	Critically, the applicant seeks an order recommending to the Supreme Court that the name of Ms Waduge be removed from the Roll.
96	The applicant also seeks in order that Ms Waduge pay the applicants costs which, by agreement of the parties, has been set  at $26,000  to be paid within 30 days of the date of the order. 
Respondent’s submissions regarding penalty
97	Mr Scotter submitted that Ms Wadgue was remorseful.
98	Mr Scotter submitted that the October statement should be considered in its entirety. Extracts therefrom ought not be considered in isolation to suggest lack of insight. He asserted that the October statement contains expressions of remorse.
99	He postulated that the offending conduct was that of a junior practitioner.
100	He said it was clear that Ms Waduge made a mistake regarding the execution of the Services Agreement using the Stokie POA. Her conduct thereafter involved attempts to cover up the mistake. 
101	He suggested that whilst Ms Waduge devised a process to address the mistake, she now realises that her conduct was wrong. He asserted that her present understanding of her wrongdoing is the relevant factor. 
102	Moreover, Mr Scotter points to the lack of prior disciplinary history and after this matter.
103	A global penalty, he suggested, is appropriate because the conduct was “one off.”
104	Mr Scotter submitted that a delay occurred in the investigation and prosecution. Substantially Ms Waduge did not cause the delay. Delay, he said, is a factor which should be taken into account in mitigation. The applicant, he submitted, has a duty to prosecute efficiently. The complaint occurred in May 2018. The Tribunal process was not commenced until December 2021.
105	Mr Scotter accepted that a reprimand was appropriate. He also conceded that a period of disqualification of two or three years is warranted. He submitted that the two year employee only condition should be concurrent with a two year supervision restriction. The CPD requirement should be for a period of two year rather than one year as proposed, or as otherwise agreed by the Legal Services Board.
106	In relation to the request to refer the matter to the Supreme Court with a recommendation to remove the name of Ms Waduge from the Roll, Mr Scotter referred to a number of decisions and sought to distinguish them from the conduct of Ms Waduge.
107	A summary of the submissions and the submitted distinguishing characteristics of those decisions are as follows:
(i)	Bolitho v Banksia Securities Ltd (No.18) (Remitter) – involved widespread behaviour with components of outrageous behaviour;
(ii)	Foreman – concerned the deliberate creation of false documents on more than one occasion in the context of an affidavit of discovery with evidence of personal gain;
(iii)	Re Zita (a Solicitor) – involved extensive conduct over a lengthy period of time;
(iv)	Legal Profession Complaints Committee v Vanderfeen – involved conduct which mislead the Family Court which was over 7 years old;
(v)	Victorian Legal Services Commissioner v Williams (Legal Practice) – there was no insight or remorse, the was an element of self-interest and the conduct was over an extended period of time;
(vi)	 Victorian Legal Services Commissioner v Logan – involved gross dishonesty over a lengthy period of time;
(vii)	Victorian Legal Services Commissioner v Kotsifas – concerned widespread trust account deficiencies;
(viii)	Victorian Legal services Commissioner v Horak – involved widespread improper dealing with trust money;
(ix)	Legal Services Commissioner v Brott (Legal Practice) – involved a bad disciplinary record.
108	Mr Scotter submitted that on the basis of these decisions Ms Waduge’s conduct should not lead to a recommendation to the Supreme Court for a strike off. Extrapolating Mr Scotter’s submissions in relation to Ms Waduge’s conduct; there was no personal gain, the conduct was a “one-off” event, there has been insight and remorse, and there is no prior or subsequent disciplinary record or complaint.
Factors relevant to Penalty
109	Having found Ms Waduge guilty, the Tribunal may make any order it deems fit pursuant to s 302 of the Uniform Law including the orders specified in ss 299 and 302 of the Uniform Law. 
110		The oft quoted principle, that the primary aim of any sanction against a legal practitioner is to protect the public, maintain professional standards and maintain community confidence in the legal profession, the courts, and the justice system, applies in this matter.
111		The focus of the determination of sanction process is on protection rather than punishment. General and specific deterrence are both important. Any determination will invariably yield a punitive effect. The Tribunal may have regard to the effect which its order will have on the understanding, within the profession and amongst the public, of the standard of behaviour required of legal practitioners.
112	The range of factors relevant in any determination of penalty include:
(a)	the nature and seriousness of the conduct; 
(b)		any plea of guilty; 
(c)	the extent to which a legal practitioner displays insight and remorse;
(d)	evidence of character;
(e)	past disciplinary history;
(f)	the relative importance in the case of specific deterrence (deterring the legal practitioner from repeating such conduct) and general deterrence (deterring others in the legal profession from engaging in similar conduct); and 
(g)		other mitigating factors.
Nature of Ms Waduge’s conduct
113	Ms Waduge’s conduct in creating the false Meyfield POA document is serious. The seriousness of this conduct was compounded when she produced the false document to the Supreme Court in response to a subpoena. This act was misleading to the parties to the proceeding and the Supreme Court.
114	Failure to understand the nature of a personal power of attorney and, in the circumstances of this case, failing to record critical notes not only in relation to the preparation and execution of the power of attorney, but also the instructions to prepare the Stokie POA and the false Meyfield POA was conduct which was well below the requisite standard expected of a legal practitioner.
Remorse and Plea of guilty
115	Ms Waduge has pleaded guilty to the charge.
116	The applicant suggested that the October statement failed to indicate that Ms Waduge had insight into her wrongdoing or that she was remorseful or accepted responsibility. In particular the applicant drew the Tribunal’s attention to the comments in the October statement as follows:
(i)	the Meyfield POA was created not to ‘mislead’ but to regularise what she understood the position to be;
(ii)	the Meyfield POA was created after the 23 September meeting when she realised she had made a ‘mistake’;
(iii)	that she relied on others to advise her;
117	Mr Bruno submitted that the December affidavit does not assist, Ms Waduge.
118	Mr Scotter says that the October statement and the December affidavit contain expressions of remorse and apology.
119	Whilst it is true that the October statement attempts to provide an explanation of her conduct, importantly the document does contain expressions of remorse and apology. These words must be given their ordinary meaning.
120	Furthermore, the December affidavit contains additional expressions regarding Ms Waduge’s remorse and apology.
121	The sincerity of Ms Waduge is apparent.
122	The combined effect of Ms Waduge’s guilty plea, the October statement and the December affidavit leads me to the conclusion that Ms Waduge is remorseful and has insight into her conduct. The fact that she has not apologised to the parties in the Proceeding, or the Court does not, in my view, detract from her remorse. As Mr Scotter succinctly put during his submissions, ‘how many times does Ms Waduge need to say “sorry”.
123	I find that Ms Waduge is remorseful and has insight into the serious nature of these charges.
Character, non-attendance and factors personal to Ms Waduge
124	There are no prior disciplinary matters either before the Tribunal or the applicant, or its predecessors. There are no subsequent disciplinary matters.
125	Ms Waduge did not attend the hearing.
126	Medical certificates were produced on her behalf. Further explanation of her health condition was contained in the December affidavit.
127	Mr Bruno suggested that it was a matter for the Tribunal to determine the weight given to the medical material.
128	Mr Bruno submitted that Ms Waduge’s non-attendance denied the applicant of the opportunity of cross-examining Ms Waduge concerning her remorse and insight. He stated that the hearing was “on-line” which meant she could have attended remotely.
129	The mere fact a respondent is in attendance at a hearing does not necessarily mean that the respondent must give evidence or undergo cross-examination. The respondent can elect to remain silent. Ms Waduge was legally represented. The applicant’s contention that the applicant was denied the opportunity of cross examination is without merit.
130	Moreover, I accept the medical reports and the December affidavit as providing insight into Ms Waduge’s mental health condition. I therefore accept that her attendance on any day of the hearing may have been detrimental to her health.
131	Given that she was represented on each day of the hearing I draw no adverse inference against Ms Waduge regarding her failure to personally attend the hearing.
132	Ms Waduge has provided references. Whilst the references submitted depose as to her competence and contain an expression of appreciation, none of the references indicate that the author was aware of these charges. Further no comment appears that this conduct was out of character. Little weight is given to these testimonials.
Specific deterrence
133	The nature of these charges is serious. They connote elements of dishonesty, which Ms Waduge has admitted.
134	Notwithstanding the fact that Ms Waduge has demonstrated remorse and displays insight into her dishonest conduct, due to the serious nature of the charges which involve such conduct, specific deterrence is a factor which I consider to be of importance in this determination.
General deterrence
135	The applicant submitted that general deterrence must be an essential consideration in this proceeding. The applicant submitted that Ms Waduge’s conduct should be denounced by the Tribunal. According to the applicant, both the public and the profession must understand that the events giving rise to the charges are not consistent with the standard of behaviour expected of practitioners. I agree with this submission.
136	 From the perspective of general deterrence Ms Waduge’s conduct needs to be emphasised as conduct which is totally inconsistent with conduct expected of a legal practitioner. A message should be sent to both the profession and the public that this type of behaviour is totally unacceptable and will be punished.
Determination of Penalty
137	At the time she purported to execute the Services Agreement Ms Waduge was unaware that a general power of attorney of a sole company director could not be used to execute an agreement on behalf of a company. Once she was appraised of this fact during the Proceedings, Ms Waduge embarked on a course to cover up her error.
138	Her attempt to do so involved dishonesty. Furthermore, when confronted with a subpoena calling for the production of the Stokie POA she was evasive and objected to the production of the document on somewhat spurious grounds.
139	Ms Waduge then created the Meyfield POA. It was back dated. The Meyfield POA was a false document. She produced this document to the Supreme Court knowing it to be false.
140	Her lack of knowledge of how a personal power of attorney can be used and how the Services Agreement could be executed is inexcusable. If a legal practitioner provides advice relating to powers of attorney and proper execution of documents, a client is entitled to expect the legal practitioner to have such knowledge. 
141	Whilst the keeping of file notes is prudent practice, the absence of file notes may not always constitute unsatisfactory conduct. However, having regard to the matrix of this fact situation file notes were critical, not only in respect to instructions to prepare both powers of attorney and the execution thereof ,but also concerning the authorisation to execute the Services Agreement. The absence of any file notes in relation to these critical matters falls well below the required standard and is unsatisfactory.
142	The conduct of Ms Waduge is totally unsatisfactory and must be denounced. She is reprimanded.
143	By attempting to rectify her lack of knowledge and the error which arose as a consequence thereof, Ms Waduge acted dishonestly. She was dishonest to the parties to the Proceeding, to the Court, and dare I suggest to her client. What she should have done immediately following the 23 September meeting was admit and accept the responsibility for her error. It is never a matter of pride. If there has been a mistake, a legal practitioner ought to  admit it. She could have obtained advice of how to remedy this situation. There were solutions available which did not involve dishonesty.
144	There is no evidence that Ms Waduge received any financial benefit by reason of her actions, however, she may have been fearful of losing her only client, Mr Stokie, so, in a sense she perhaps there was a degree of self-interest present.
145	Ms Waduge may have been an inexperienced practitioner, however the error she made was fairly basic. She should have possessed the requisite knowledge regarding the execution of the Services Agreement whether by director’s signature, pursuant to a company power of attorney, as agent or otherwise.
146	The conduct of Ms Waduge was both wrong and ill-advised and being serious in nature a period of disqualification is necessary. From a specific deterrence viewpoint there must an appropriate period of time for her to reflect upon her conduct. 
147	Whilst it is important to take into account her mental health, a period of disqualification should come as no surprise, particularly when her Counsel accepted that a period of disqualification was warranted.
148	There has been an inordinate delay in bringing this prosecution forward. I do not accept that this delay was substantially caused by Ms Waduge’s lack of timely response. In the December affidavit Ms Waduge acknowledges that “a minor part of the delay during the investigation was because of (her) requests for additional time to respond.” She puts that the delays were only for a period of a few months and were primarily due to her mental health condition. I accept this explanation. I am firmly of the view that the applicant has a duty to bring these matters forward in an efficient manner. In this case it has not done so. The delay is a factor to be taken into account because Ms Waduge has been immersed in this process since the initial contact by the applicant in 2018.
149	I take into account her remorse and insight into the serious nature of these charges. Her lack of disciplinary history before and since this conduct is a factor which weighs in her favour. The character evidence put forward is only suggestive of her competence in unrelated matters with the referees failing to indicate knowledge of these charges. 
150	I must have regard to the message to be sent to both the members of the profession and the public. It is fair to say that no one is perfect. Even the most competent legal practitioner can make a mistake. However, having made an error, the legal practitioner must “own” the consequences and not attempt to cover up the error by resorting to dishonesty. From the perspective of general deterrence, a lengthy period of disqualification is warranted and must be imposed.
151	I turn now to the length of the disqualification period. The applicant argued that a period of 5 years disqualification would be  appropriate. Mr Scotter suggested that the period should be two to three years. I consider a period disqualification which prevents Ms Waduge from applying for a practising certificate until 1 July 2027 is appropriate both in terms of specific and general deterrence.
152	Although Ms Waduge has taken steps to educate herself as to the substantive area concerning powers of attorney there is an overwhelming requirement to protect the members of the community, and, accordingly, a period of supervision is warranted. Should she ever obtain a practising certificate after the disqualification period she must work as an employee for at least the first two years. Additionally, in the first two year period she must work under supervision. To clarify, for the first two years after she obtains a practising certificate she must work as an employee under supervision.
153	The facts surrounding the conduct demonstrates a gap in knowledge regarding the execution of documents by or on behalf of a company. A corporate power of attorney is one way of achieving execution but, there are other methods apparently not known to Ms Waduge. She will benefit from specialised education in the form of CPD regarding execution of company documents and use of powers of attorney. Ethical conduct also needs to be reinforced. The order sets out these additional CPD requirements which must be completed prior to applying for a practising certificate after 1 July 2027.
154	With the two year supervision/employee requirement coupled with the additional CPD requirements, the public and the profession can have confidence that, if she ever returns to the profession, she will do so as a practitioner who is aware of her duties and responsibilities, possesses requisite technical knowledge, and is subject to supervision. 
Request for a recommendation to the Supreme Court.
155	The Tribunal may make a recommendation that the Supreme Court exercise its inherent jurisdiction to remove that an offending practitioner from the Roll. This power is to be found in s 23(1) of the Uniform Law, which provides:
(1)	The Supreme Court may order the removal of the name and other particulars of a person from the Supreme Court Roll of Legal Practitioners, on—
(a)	its own motion; or
(b)	the recommendation of the designated local regulatory authority; or
(c)	the recommendation of the designated tribunal.
156	In Victorian Legal Services Commissioner v Williams (Legal Practice) (Williams), Quigley J stated that:
The starting point in relation to removing a practitioner from the Supreme Court Roll of Legal Practitioners (or recommending as such) is that members of the legal profession, when admitted to practise, must be found to be a ‘fit and proper’ person to practise law. Each year when a lawyer’s practising certificate is renewed, they must declare that they remain a fit and proper person. This concept is codified in several parts of the Uniform Law, including in the objectives of the legislation.
157	In Re: Zita, Dixon J summarised the principles relevant to striking off as follows:
(a)	Before ordering that a person be removed from the Roll of Legal Practitioners, the court must be satisfied that at the time of hearing, they are not a fit and proper person to be a legal practitioner and are likely to remain so for the indefinite future.
(b)	Removal of a practitioner from the Roll of Legal Practitioners is not a punitive measure. It operates to protect the public from misconduct by practitioners and to promote community confidence in the proper administration of justice.
(c)	In order for a person to be ‘fit and proper’ to become, or remain, a legal practitioner, they must be honest, independent, able to judge what ethical conduct is required of them, and then be capable of diligently discharging the responsibilities of their office. A legal practitioner must be ‘possessed of sufficient moral integrity and rectitude of character as to permit him to be safely accredited to the public, without further inquiry, as a person to be entrusted with the sort of work which the licence entails.’
(d)	Whether a practitioner fails to meet these criteria is a fact-sensitive inquiry. In making this evaluation, the court is required to do more than just consider the practitioner’s historical actions. It must also inquire into whether the practitioner has insight into, and fully appreciates, the gravity of his wrongdoing and has demonstrated effective rehabilitation. The court must also consider the connection of the conduct to the practitioner’s fitness, which is to say, to what extent the conduct is simply inconsistent with the privileges associated with further practice.
(e)	A practitioner will be found unfit to remain on the Roll of Legal Practitioners if:
[T]hey pose a direct risk to the public, to the legal fraternity, to the courts, to the system of professional co-operation and trust on which they both depend, and to the administration of justice ...
(f)	As Forbes J recently observed in Victorian Legal Services Board v Gobbo:
Reliance by a court on the integrity of those who are its officers is ... fundamental to the proper administration of justice. Repeated breaches in a number of proceedings over such a period of time as is demonstrated by the agreed facts is incapable of being overcome”
158	In Williams Quigley J was of the opinion that in deciding whether to recommend strike off to the Supreme Court the role of the Tribunal is to independently consider the principles enunciated by Dixon J.
159	It does not follow that simply because a legal practitioner has been found guilty of professional misconduct at common law, that a recommendation should be made to the Supreme Court for the name of legal practitioner be removed from the Roll. A separate process is necessary.
160	Adopting the views of Quigley J as enunciated above, the Tribunal must “independently consider” the principles relating to a strike off decision as if the Tribunal were making an order to strike the practitioner’s name from the Supreme Court Roll.
161	Before making an order recommending to the Supreme Court that the legal practitioner’s name be removed from the Roll, the Tribunal must be satisfied that at the time of hearing, that the legal practitioner is not a fit and proper person to be a legal practitioner and is likely to remain so for the indefinite future. 
162	The enquiry to be undertaken is a fact sensitive enquiry.
163	Whilst the decisions referred to by Mr Scotter provide some insight into how previous Courts and Tribunals have approached this process those decisions invariably turn on their own peculiar set of facts, thus emphasising the thesis that the determination process is a fact based enquiry.
162	I have accepted that Ms Waduge has a mental health issue which, at the time of the hearing, impacted on her ability to attend the hearing. Even if  Ms Waduge had attended the hearing it would not have necessarily followed that she would have been cross-examined about her actions or her insight and remorse. Where direct oral evidence of insight and remorse is not provided, the Tribunal can refer to other material if it is directed to do so. Mr Scotter referred me to the contents of the October statement and the December affidavit. Mr Scotter submitted that there is constant reference to remorse and apology throughout these documents.
163	For these reasons already given, I am satisfied that Ms Waduge has insight into her conduct and is remorseful. The fact that she may or may not have been available for “cross-examination” is a moot point given that even if she had attended, she might not have given evidence.
164	It is also clear that the conduct relates to an error which Ms Waduge dishonestly attempted to rectify. That attempt did involve falsification of a document and production of same to the Supreme Court in response to a subpoena. Her conduct was both dishonest and serious. It was however conduct which arose out of a single error caused by her lack of knowledge of the law. It was not a part of a sequence of behaviour concerning other breaches occurring over a lengthy period. I am satisfied it was a “one -off” event which spiralled into a series of dishonest steps designed to “rectify” a technical error which occurred due to her inexperience and lack of knowledge of the law. 
165	These events occurred some seven years ago. Ms Waduge had continued to practice up to 30 June 2022 without coming under the scrutiny of the applicant.
166	Can it be said that Ms Waduge is unfit at that date of this hearing? The answer is no. I must consider more than Ms Waduge’s historical actions. It is true that those historical actions did involve serious dishonesty. However, she now has insight. She is remorseful. This is conduct confined to a particular set of facts and was not “widespread” conduct nor was it conduct which occurred over a lengthy period of time.
167	A further factor to be considered is whether Ms Waduge has “demonstrated effective rehabilitation.” There is direct no evidence that she has undertaken additional CPD units. Mr Bruno submits that she could have undertaken CPD units but has not. The undertaking of additional CPD could have been an indication of a step taken towards rehabilitation, but no documentary evidence of relevant CPD attendances was provided in the course of the hearing. 
168	Rehabilitation is a process. Undertaking additional CPD units would be one way in which a legal practitioner could “rehabilitate” but in my view this is not the only way a practitioner can “rehabilitate.” To my mind the first step in the rehabilitation process is for the practitioner to have insight into the wrongdoing and have an understanding as to how the wrongdoing could have been avoided. I am satisfied that Ms Waduge has achieved this first step.
169	In the October statement Ms Waduge writes:
and in the circa six years following that error it is unquestionably the case I have dramatically improved my technical understanding in this area, and I have not made such an error again.
Later in the October statement, she writes:
In the six years practising as Shield Partners following being made aware of this error in preparing the original power of attorney, I have ensured a much deeper technical understanding of powers of attorney, as well as others matters referrable in particular to wills and estates. I have not awaited the Commissioner’s investigation nor the eventual outcome to make amends, I did this immediately of my own accord.
170	I am satisfied that, based on these statements, that Ms Waduge has taken steps to ensure a “deeper understanding” of the law in this area. The October statement does not address the question of her ethical understanding. However, as there was nothing brought to my attention by Mr Bruno regarding the completion of CPD units by Ms Waduge I assume therefore that she has in each CPD cycle since the commencement of the investigation undertaken appropriate CPD components in ethics.
171	The demonstration of effective rehabilitation is a factor which must be taken into account. Effective rehabilitation is a question of fact. In this instance, I am satisfied that Ms Waduge through her statements in the October statement and the presumed completion of compulsory CPD ethics components has taken adequate steps to achieve effective rehabilitation. Whilst the consideration of “fitness” must occur at the date of the hearing I am somewhat comforted by the additional CPD, and supervisory requirements referred to in the order I propose to make.
172	Given the circumstances of what I regard to be an isolated event, her remorse, her insight and the steps undertaken to rehabilitate herself of her own accord without waiting “the Commissioner’s investigation nor the eventual outcome to make amends” I am satisfied that although the charges involve dishonesty, Ms Waduge is a fit and proper person,(and is likely to continue to be so after the period of disqualification) to remain on the Roll. I consider that as at the date of the hearing Ms Waduge has demonstrated that she has the requisite knowledge of the duties and responsibilities devolving upon her as a legal practitioner. 
173	Consequently, the request for an order to recommend to the Supreme Court that Ms Waduge be removed from the Roll is dismissed.
Late filing of a joint memorandum.
174	After the hearing had concluded, Counsel filed a joint memorandum dated 27 April 2023 “in light of the recent decision in the Tribunal in Victorian Legal Services Commissioner v Rose (Legal Practice) (‘Rose’)
175	Whilst I have read the joint memorandum, I have not taken the contents into consideration because the joint memorandum was filed after the hearing had concluded. However, for completeness, I observe that the charges in Rose were different to the charges in this application.
Costs
176	In this matter the Tribunal has found Ms Waduge guilty of professional misconduct and unsatisfactory conduct. Having regard to Section 303(1) of the Uniform Law unless exceptional circumstances exist, a respondent who has been found guilty by the Tribunal can expect to pay the applicant’s legal costs. The parties have agreed that Ms Waduge should pay the applicant’s costs fixed at $26,000.00 with a stay of 30 days. I endorse such agreement. Consequently, an order will be made for Ms Waduge to pay the applicant’s costs of $26,000.00 with a stay of 30 days. 

J Sharkie 
Member			

APPENDIX A. 

“Darren A Bruno - Counsel for the Commissioner
CC: Member – Victorian Civil & Administrative Tribunal 
20 October 2022
Private & Confidential 
Dear Darren,
Unfortunately due to my mental health plan and supporting documentation from my psychologist (attached) coupled with the unexpected passing of my mother this month, I will be unable to attend the hearing on 24 October 2022. Whilst my mental health plan requires me not to work at all currently, I have endeavoured to prepare a short submission in response to your submissions of 3 October 2022 and the matters raised therein.
In your submissions of 3 October 2022 (and in several earlier submissions throughout this investigation) it has been suggested that I have shown a lack of remorse for my actions. The submissions of 3 October also purport that I have put on no material with respect to mitigating factors and general explanation as to my conduct subject of the charges.
I am perplexed by these ongoing suggestions as to my lack of remorse. During the time of this investigation (commencing 1 August 2018) I have responded to each and every request fully and with complete honesty and openness about all matters put to me and have tried to explain not just the events that transpired, but also the context in which they did and to the issues at hand. Although I have made submissions as to that context, this should not be interpretated as a lack of remorse – but if it has come across that way I apologise. I take full responsibility for my actions and apologise if it appeared that I lacked remorse in previous submissions, I most certainly am remorseful. The matters dealt with through this investigation have only required me to clarify factual and technical aspects rather than providing the forum to fully express my remorse.
In any event I don’t wish to traverse in detail the many submissions I have previously made, but to deal with the charges on foot, I contend that I take full ownership of my actions and:
□	I acknowledge and apologise unreservedly for my actions in preparing the Meyfield Developments Pty Ltd power of attorney (Meyfield POA). The original power of attorney prepared which erroneously only covered Luke Stokie in his personal capacity (Luke POA) and not as director of Meyfield Developments Pty Ltd (Meyfield) stemmed from my misunderstanding of powers of attorney at that time, and in the circa six years following that error it is unquestionably the case I have dramatically improved my technical understanding in this area and I have not made such an error again. In hindsight I should never have accepted this engagement as I was not sufficiently experienced in commercial matters of this magnitude, however given my longstanding relationship with the client and them being my only client at that time, I felt immense pressure to assist them.
□	Although I appreciate my technical error with the Meyfield POA, I would again note that which is supported by the file notes of Kimberly Anderton regarding conversations with Luke Stokie during the investigation, being his authority to act for Meyfield was unequivocally provided as and from 27 April 2015. It was this continuing authority which Luke provided which was the basis for the production of the Meyfield POA. It was not merely something created at a latter date which had no basis or authority and in my mind was appropriate given Luke’s unequivocal authority from 27 April 2015. It was not created with the intention to mislead anyone (including the Court) and only to reflect Luke’s intention which I had earlier documented incorrectly - but I again unreservedly apologise for my actions.
□	I acknowledge and apologise unreservedly for my actions in the provision of documentation to the Supreme Court in response to a subpoena. I had not ever then (and have not ever since) had to deal with a subpoena or any litigation proceedings for that matter and was not at all familiar with the process. As Meyfield had at that time engaged litigation experts Mills Oakley to assist, I sought their assistance and guidance on how to respond to the subpoena and relied on that in doing so. That said, I appreciate the response was my own and I must take full responsibility for it and its contents. Whilst I note that the provision of the Meyfield POA was also couched in my understanding that that document correctly supported the authority Luke provided on 27 April 2015, and not any intention to mislead the Court, I again unreservedly apologise for my actions.
□	I also note the final charge pertaining to file notes. As noted in previous submissions, at the time of the matter (April 2015) my firm Shield Partners had only been in existence for approximately four months and whilst appreciably no excuse, for context, as a newly formed business the sophistication of our processes and systems was certainly not at the level that it was subsequent to that time and throughout the seven years of operation following.
Notwithstanding this context, I again unreservedly apologise for my error in not having these systems and processes in place from the time of my firm opening.
Finally to clarify, I without question appreciate the gravity of the charges brought and the penalties proposed by the Commissioner. These will leave an indelible mark on not just my working career but also my life, especially as a lawyer who has apart from this instance always been recognised for my empathy and care for others. Taking away the opportunity to genuinely help people through the wills and estate processes I have largely focussed my business on in recent years, and which has become my niche, will leave a large hole which I will struggle to fill and taking this away from me will leave a deep scar. The embarrassment I will suffer and the regret that I have, which all essentially stem from my misunderstanding of the creation of a company power of attorney, will be with me forever.
In the six years practising as Shield Partners following being made aware of this error in preparing the original power of attorney, I have ensured a much deeper technical understanding of powers of attorney, as well as others matters referrable in particular to wills and estates. I have not awaited the Commissioner’s investigation nor the eventual outcome to make amends, I did this immediately of my own accord. It is not from today or 24 October 2022 that measurement of my insight into the error and remorse should be measured, but from 23 September 2016 when I first learnt of my drafting error and from which time that error has not only affected me but also served as a daily reminder when operating my practise. The remorse can also be measured from 1 August 2018 as it is since that time I have known that my otherwise unblemished record since being admitted to legal practice on 7 October 2002, would be impacted.
Again, I acknowledge and apologise for my mistakes and actions – I am incredibly sorry.
Melissa Seremelis”