The charges relate to a complaint about Mr Sandbach’s conduct in a 2016 matter in the Costs Court, when he alleged that opposing counsel’s evidence — an invoice — was “false and fraudulent” numerous times without any evidence and “absolutely contrary to the bar rules”.

In July 2016, the client of that opposing counsel lodged a complaint with the VLSC about Mr Sandbach’s conduct in court — and in October 2017, the ethics committee informed him of their “tentative decision” that Mr Sandbach had engaged in professional misconduct.

In June 2017, the judge in the Costs Court matter handed down his judgment and found that Mr Sandbach’s “allegations of improper billing practices ... had no foundation and should not have been made”.

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“[Mr Sandbach] must have known that raising allegations about a false invoice would do nothing more than delay the taxation of the bill of costs and incur further costs,” the judgment stated.

Then, in June 2018, the VLSC filed two charges against Mr Sandbach for professional misconduct: for alleging fraud or serious misconduct and for making these claims without the permission or instruction of his client.

Following these proceedings, Mr Sandbach asked the court to summon the complainant to hand over a number of documents, including emails, tax invoices, bills and office ledgers. However, in an affidavit, the complainant attested that Mr Sandbach sought “documents that are not relevant to the issues to be determined in this proceeding and are the subject of legal professional privilege, and I believe it is oppressive and/or a fishing expedition”, resulting in the summons being set aside in November last year.

In its submissions, the VLSC drew the tribunal’s attention to “several authorities concerning the making of allegations that cannot be substantiated by evidence, and that such behaviour constitutes an abuse of court process and is inconsistent with a legal practitioner’s role as an officer of the court”, according to the judgment.

The commissioner also contended that Mr Sandbach had been “evasive and unhelpful” throughout the investigation and acted inappropriately in court by not discussing the fraud allegations with his client and failing his duty to provide cautionary advice.

“[The VLSC] submitted that the evidence suggested the invoice was genuine, particularly given that all of the parties to the costs proceeding including [Mr Sandbach] were aware that a great deal of legal work had been completed on the matter and [Mr Sandbach] was aware of the costs agreement … [The VLSC] called the complainant who gave evidence including that the invoice was genuine and that it was drawn according to the Supreme Court scale of costs,” Quigley J said in her judgment.

“Further, [the VLSC] contended that there was no realistic way that [Mr Sandbach] could have been instructed as to matters which could suggest the invoice was fraudulent, given the issue pertained to the behaviour and choices of the opposing party and not of his client.”

Subsequently, Mr Sandbach claimed that the amount of the invoice “was a round sum, that the invoice did not make reference to the Supreme Court scale of costs” and that it was, therefore, “justifiably reasonable to allege that the 15 Feb invoice was falsified that this higher standard was discharged”.

However, Quigley J stated that legal practitioners must be “honest, independent, able to judge what ethical conduct is required of them”.

“The two primary responsibilities of the office of a legal practitioner are their duty to the court and their duty to the client. Barristers and solicitors are officers of the court and this duty is paramount; if a conflict arises between these two duties, the responsibility to the court must be respected above all else. The charge alleged against [Mr Sandbach] exemplifies this conflict, and what can occur if the wrong choice is made,” the judgement states.

“That this behaviour constitutes professional misconduct (or unsatisfactory professional conduct) has been a feature of the statutes and other legislative instruments pertaining to the regulation of the legal profession, in the various iterations which have existed over time in this jurisdiction.”

Quigley J was also “not satisfied” that the invoice was falsified and said that it was “reasonable, given the unconditional nature of the costs agreement, that the complainant had not created the invoice at an earlier stage, as it is natural that additional fees would accrue due to the ongoing nature of the relevant proceedings”.

“In my view, [Mr Sandbach], in alleging that the invoice was falsified for purposes relating to the indemnity principle, was grasping at straws … He put his client’s desires before his dignity as a legal practitioner and before his paramount duty to the court,” she said in her judgment.

“The conduct was substantial and consistent and amounts to professional misconduct.”

Costs were reserved for a further hearing, wherein a penalty would be issued. 

As reported by Lawyerly last week, Mr Sandbach plans to appeal the decision — something which he has already informed the VLSC and VCAT of. 

“Proposed grounds of appeal already identified include failure to include findings on material questions of fact in the published Reasons, contrary to s117(5) of the VCAT Act 1998, Wednesbury unreasonableness, improper restriction of cross-examination of the complainant Sizenko, and erroneous construction of Rule 65 of the Legal Profession Uniform Conduct (Barristers) Rules 2015,” he told Lawyerly. 

“The preliminary response of the VLSC to my solicitors’ notification of my intention to appeal is to contend that the order purportedly made by president Quigley on 22 December 2022 is not an order pursuant to s148 of the VCAT Act 1998.”