VCAT found that Mr Antippa had failed to ensure the complainant, who fluently spoke Tamil but struggled with English, had understood the contents of a retainer or failed to ensure that these contents were explained by an appropriate interpreter.

In addition to these breaches, VCAT heard Mr Antippa had also failed to provide advice to the complainant in a timely manner. As a result, the complainant appeared for himself in a hearing where final orders were made dismissing his appeal.

These breaches took place during the complainant’s second engagement with Mr Antippa, during which he sought assistance to challenge the visa application in the courts. When the complainant asked Mr Antippa about an interpreter, he was advised to bring along an “English and Tamil speaking friend for that purpose”, as most of Mr Antippa’s clients do as an alternative to a commercial interpreter.

In one conference, Mr Antippa advised the complainant that there was little chance of success at the Federal Circuit Court and that he would not assist him except to obtain advice of counsel as to the prospects of the judicial review. Following this, the retainer subject to the disciplinary review was issued to the complainant.

Despite writing in his notes several times that the complainant had “poor English”, Mr Antippa told VCAT that he believed the complainant understood him.

In response to a request for an address for service, Mr Antippa later told a migration agent that he would only enter the case and become the solicitor on record if the “legal opinion was favourable”. Until then, he advised that the “client will be running the show in his own name” and all documents were to be sent to the complainant.

In June 2018, the complainant appeared for himself at a directions hearing where the court fixed a date for a show case hearing in September and a date by which any amended appeal documents and supplementary court books were to be filed. This amounted to 28 days prior to the date of the show case hearing.

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Given that Mr Antippa was not the solicitor on record and the minister’s solicitors were unaware of their engagement, neither the court nor the minister’s solicitors provided a copy of the orders to Mr Antippa, and neither did the complainant. While he later learnt of the new hearing date, he was ignorant of the other orders.

On the eve of the show case hearing – and a month past the deadline for submissions – Mr Antippa was informed by counsel that there were no arguable grounds for appeal and that he would only charge if he was briefed to appear.

When he was unsuccessful in contacting the complainant via phone, Mr Antippa emailed in the late afternoon that the “barrister believes you will not win tomorrow” and that he would not be attending either because “I do not want you to pay any more money for legal fees as a result”. Instead, he advised the client to appear by himself “if you want to” and negotiate costs with the government’s lawyers.

Just five minutes later, Mr Antippa then emailed the barrister to inform him that he had no further instructions and to return the brief. Subsequently, when the complainant called, Mr Antippa explained the counsel’s advice about the prospects of success but did not make it clear the barrister was available to appear.

As a result, the complainant appeared for himself, and final orders were made dismissing the appeal. Later, the complainant engaged a Gold Coast barrister who spoke Tamil and, with his assistance, successfully sought leave to appeal to the Federal Court on the grounds that he has “little or limited understanding of court proceedings” and his lawyer advised him he would not attend “just the previous day”.

VCAT found that Mr Antippa did not take “adequate steps” to procure timely advice from counsel in respect of the show cause hearing, including withdrawing the brief from counsel. It also found that, at all relevant times, Mr Antippa was aware that the complainant would have difficulty understanding the second retainer.

In these circumstances, Mr Antippa “did not take adequate steps to have the full content of the second retainer explained to the c complainant” and did not ensure that the documents had been explained to the complainant in his first language.

Accordingly, the firm breached its obligations to take all reasonable steps to satisfy itself that the client had understood and given consent to the costs proposed by the second retainer, and Mr Antippa was the person involved in that breach.

The entire judgement can be read on AustLII or JADE: Victorian Legal Services Commissioner v Antippa (Legal Practice) [2022] VCAT 74 (21 January 2022).