Abdul-Karim v Council of the New South Wales Bar Association

[2005] NSWCA 93

CITATION:	ABDUL-KARIM v THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION [2005] NSWCA 93
HEARING DATE(S):	21 February 2005
JUDGMENT DATE:	21 February 2005
JUDGMENT OF:	Mason P at 1; Ipp JA at 54; Hunt AJA at 55
DECISION:	Appeal dismissed with costs.

CATCHWORDS:	ADMINISTRATIVE LAW - professional misconduct - unsatisfactory professional conduct- question of law - legal error - leave to review the merits - Administrative Decisions Tribunal Act 1997 s113(2)(b). (D)
PARTIES:	Michael Saadey ABDUL-KARIM THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION
FILE NUMBER(S):	CA 40177/04
COUNSEL:	Appellant: R D Wilson Respondent: P G Mahony SC/ G Young
SOLICITORS:	Appellant: McKells Respondent: Eakin McCaffery Cox

LOWER COURT JURISDICTION:	Administrative Appeals Tribunal (Legal Services Division)
LOWER COURT FILE NUMBER(S):	ADT 12009/01; 122033/01; 39051/03

CA 40177/04

MASON P
IPP JA
HUNT AJA

Monday 21 February 2005

Michael Saadey ABDUL-KARIM v THE COUNCIL OF THE NEW SOUTH WALES BAR ASSOCIATION

JUDGMENT

1 MASON P: This is one of those cases where pleading and procedural difficulties reveal problems of substance. Had the jurisdictional parameters of the appeal to the Appeal Panel of the ADT and of the appeal to this Court been given closer attention in the documents that were framed then I am sure a lot of the time spent today would have been avoided.

2 At the outset of today’s hearing the Court drew attention to serious objections to the form of the grounds of appeal. We examined one issue in detail, namely the issue globally encompassed in the original ground one concerning the affidavit sworn for the proceedings before Young J. That examination exposed the substance of the technical deficits in the appellant’s case.

3 It prompted the appellant to accede to the suggestion from the Court that there be an attempt to reframe the issues in a proper way. A proposed amended set of grounds went through two revisions in the course of the afternoon but the examination that ensued has really only confirmed in my mind that this appeal is either incompetent or untenable.

4 The appellant was admitted to practice as a barrister in 1991. Commencing in October 1996 he acted in various matters for Mr Hamod. Mr Hamod was a bankrupt who was defending charges of obtaining benefit by deception and possessing a false instrument. A costs agreement was entered into on 17 October 1996 between the appellant and Mr Hamod’s company, Hamock Investments Pty Limited.

5 The lawyer-client relationship was an unsettled one and it was terminated and later restored at one stage. The retainer was terminated finally in June 1997. Thereafter there were major disputes about fees and other matters. One such dispute was heard in the Equity Division by Young J when the appellant unsuccessfully applied to have a fund of money owing to Mr Hamod frozen on the basis of a lien for costs.

6 On 24 April and 14 November 2001 the respondent filed informations in the Administrative Decisions Tribunal, Legal Services Division, charging the appellant with several counts of professional misconduct and/or unsatisfactory professional conduct. There were eight grounds in the first information and five in the second. The Tribunal, constituted by D Officer QC, Judicial Member, J Catanzariti, Judicial Member and R Geitzelt, Member, heard the two informations over several days in September 2002 and February 2003. The Bar Association was represented by counsel, the appellant represented himself. The Tribunal made detailed findings of professional misconduct in many respects (see New South Wales Bar Association v Abdul-Karim [2003] NSWADT 152). Its reasons note that the resolution of the issues turned upon close assessment of the credit of the two principal witnesses who gave evidence before it, namely Mr Hamod and the appellant.

7 For reasons set out in some detail at pars [51] to [56] of the Tribunal’s statement of reasons Mr Hamod emerged reasonably unscathed and the appellant’s credibility as a witness was significantly damaged. The reasons of the Tribunal then proceed to detailed findings as to the evidence and the Tribunal’s conclusions on the thirteen grounds of the two informations.

8 The adverse findings of professional misconduct include findings that the appellant entered into an illegal costs agreement in contravention of s 186(3) of the Legal Profession Act 1987, that he made a false and misleading affidavit in the Supreme Court proceedings before Young J, that he made false and misleading statements to a costs assessor, that he claimed a lien for costs without any justification, that despite the terms of the costs agreement he demanded a cash payment for representing Mr Hamod in a particular application - conduct which the Tribunal described as “disgraceful” -, that he refused to respond to a subpoena in circumstances also attracting the description of “disgraceful”, and that he made false and misleading representations to the client as an inducement to plead guilty to criminal charges which the client disputed and of which he was ultimately acquitted.

9 There were additional adverse findings of professional misconduct and of unsatisfactory professional conduct, including a finding of unsatisfactory professional conduct with reference to some misleading correspondence with the Attorney General’s Department and a Mr Walsh.

10 Submissions as to orders were made on the papers. On 3 September 2003 the Tribunal ordered that the name of Michael Saadey Abdul-Karim be removed from the Roll of Legal Practitioners in New South Wales, that the practising certificate of Michael Saadey Abdul-Karim be cancelled and that Michael Saadey Abdul-Karim pay the costs of the Bar Association in the sum of $98,792 (see New South Wales Bar Association v Abdul-Karim [2003] NSWADT205).

11 At para 16 of its reasons the Tribunal said:

The findings made against the Barrister involve conduct of grave impropriety which strike at the core of the relationship that ought to exist between a barrister on the one hand, the Court and the client. This is not one incident, but nine separate incidents of disgraceful or dishonourable conduct. It has extended over a considerable period of time. The Barrister has demonstrated a total failure to understand, practice or appreciate the required standard of conduct expected of a barrister. He has demonstrated, in the Tribunal’s opinion, that he will in future if he thinks it appropriate engage in conduct which knowingly breaches the Legal Profession Act 1987 . The public requires to be protected against such conduct. The Barrister ought to be deterred from repeating such misconduct and other legal practitioners likewise ought to be deterred from falling far short of the high standards required of them. In this Tribunal’s opinion, neither the courts nor the public nor other legal practitioners could repose confidence in the Barrister to adhere to the high standards expected of him. In this Tribunal’s opinion he is not a fit and proper person to remain on the roll of legal practitioners. The Tribunal orders his name be removed from such roll.

12 Section 113(2) of the Administrative Decisions Tribunal Act 1997 conferred on the present appellant the right to appeal to the Tribunal constituted by an Appeal Panel. However subs (2) states that an appeal under this Part (a) may be made on any question of law, and (b) that the leave of the Appeal Panel may extend to a review of the merits of the appealable decision. The appellant purported to exercise his appeal rights by a notice of appeal which when amended raised the following grounds:

1. The Tribunal erred in finding that the appellant swore a false and misleading affidavit to the Supreme Court (J67-8).

2. The learned Tribunal erred in finding that the appellant ought not have commenced proceedings on 9 December 1998 for recovery of his fees and ought not have rendered any memorandum of fees to the client.

3. The Tribunal erred in finding that the making of the following false and misleading representations to the costs assessor, Mr Brewster, amounted to professional misconduct:

(a) The statement that “the costs which are the subject of this application would include in my bill of costs dated July 1997, a copy of which is attached, the bill was given to the client on 20 June 1997 in the following manner …”;
(b) the statement to the costs assessor that “there is a costs agreement between myself and the first respondent relating specifically to the criminal charges”;
(c) the statement to the costs assessor that “at the time I accepted the brief verbal disclosures regarding the hourly and daily rates were made”.


4. The learned Tribunal erred in finding (J73) that the application for assessment of costs ought never to have been made.

5. The learned Tribunal erred in finding that the appellant unlawfully claims a lien over documents in respect of his outstanding costs (J75-7).

6. The learned Tribunal erred in finding that the appellant engaged in misleading correspondence between 20 August 1998 and 8 December 1998 with NSW Attorney-General’s Department and Mr Greg Walsh, solicitor, seeking to obtain his legal fees (J85-91).

7. The Tribunal erred in law in deciding specific information on overall preference of the evidence of Hamod over the evidence of the appellant on the question of credit.

8. Given the fact that the Tribunal’s findings is based on the central issue of creditability of Hamod as a witness the Tribunal erred in law in not allowing into evidence affidavit material tendered by the appellant that went to the credibility and the motives of Hamod in making the complaint against the appellant.

9. The Tribunal erred in law in failing to take into consideration the totality of the appellant’s brief and other matters which the appellant handled for Hamod at the relevant time of the subject matters of the complaint.

10. The learned Tribunal erred in finding that the appellant engaged in professional misconduct by failing to respond to a subpoena.

13 It may be observed that several of these grounds do not even purport to raise any question of law. The notice of appeal sought to have the Tribunal’s decision and findings of 3 September 2003 set aside and an order that the appellant be granted leave to adduce further evidence on the merits.

14 Written submissions were directed by the Appeal Panel and they have been placed before us. The submissions were mainly a detailed attack on Mr Hamod’s credibility as a witness before the Tribunal, interspersed with assertions the particular paragraphs of the informations were wrong. The facts as the Tribunal should have accepted were put forward by the appellant. I do not overlook that some of the Tribunal’s putative errors according to these submissions were said to be errors of law. I doubt that any of them were, even as formulated, but not all of the errors were even formulated as legal errors. Indeed, a number of the Tribunal’s findings of professional conduct were not challenged at all. In this regard I include the findings about the demand for cash and the holding out of a false inducement to Hamod to plead guilty.

15 The notice of appeal filed in aid of the appeal to the Appeal Panel has a section calling on the appellant to state the reasons for asking the Tribunal to extend the appeal to the merits. The reasons stated by the appellant were as follows (Red 91):

The appellant has numerous matters where he has been briefed to appear:
For example, he has a six(6) day hearing from 3rd November 2003 in the Supreme Court and litigants for whom the appellant acts will otherwise be personally and financially prejudiced where counsel has been involved for some many months.
A list will be provided on the appellant’s return from overseas next week.

16 The Appeal Panel constituted by Acting Judge Nader QC, Deputy President, R B S Macfarlan QC, Judicial Member and L Bubniuk, Member dismissed the appeal with costs (see Abdul-Karim v New South Wales Bar Association [2004] NSWADTAP 5). The Appeal Panel addressed each of the grounds of appeal before it. Its conclusions were stated compendiously at pars [42] and [43] as follows:

For the reasons we have given above we do not consider that any error of law on the part of the Tribunal has been shown. Furthermore, having considered the written and oral submissions made on behalf of the barrister we are not persuaded that this is a case in which leave should be granted for the appeal to extend to a review of the merits of the Tribunal’s decision.

17 The Act confers a right of further appeal to the Supreme Court which, having regard to the status of the Senior Judicial Member of the Appeal Panel, comes before this Court. Section 119(1) of the Act states that:

A party to proceedings before an Appeal Panel of the Tribunal may appeal to the Supreme Court on a question of law against any decision of the Appeal Panel in those proceedings.

18 It is also appropriate to record that for an appellant to succeed in an appeal based upon a question or error of law he or she must establish an error which vitiated the decision of the body from which the appeal lies, (see generally Miller v The Commissioner of Police [2004] NSWCA 356 at [26]-[30]). In other words, academic questions do not properly attract this Court’s appellate jurisdiction stemming from error of law.

19 The notice of appeal filed in this Court contains seven grounds, six of which it was indicated at the beginning of today would be pressed. Those six grounds are as follows.

1. The Appeal Panel should have found the Tribunal erred in finding that the appellant swore a false and misleading affidavit in the Supreme Court.

2. The Appeal Panel should have found the Tribunal erred in finding the appellant made a false and misleading statement to the costs assessor Mr Brewster.

3. The Appeal Panel should have found the Tribunal erred in finding the appellant engaged in misleading correspondence between 20 August 1998 and 8 December 1998 with the NSW Attorney-General’s Department and Mr Greg Walsh, solicitor, seeking to obtain his legal fees.

4. The Appeal Panel should have found the Tribunal erred in making the following findings (the credit findings):

(a) that the appellant demanded a cash payment of $15,000.00 on 4 March 1997 in order to continue representing Mr Hamod;
(b) that on 3, 4 June 1998 the appellant held out to Mr Hamod a false inducement that the Attorney-General would pay civil damages of between $2m and $3m if he pleased guilty;
(c) that the holding out of this false inducement to Mr Hamod amounted to a conflict of interest having regard to the costs agreement which provided that the appellant would recovery 20% of any civil damages.


5. The Appeal Panel erred in declining to proceed to a review of the merits pursuant to s113(2)(b) of the Administrative Decisions Tribunal Act .

6. The Appeal Panel erred in declining to admit the evidence of Mr Gross QC (sic), the appellant (affidavit sworn 13 October 2003) and Mr Naef (10 October 2003).

20 As I will indicate shortly, not all of these grounds are pressed, at least in their present form. But it is necessary to say something about them if only to lay the groundwork for the decision with respect to the application for leave to amend.

21 Grounds 1-4 of the original grounds do not complain of errors of law made by the Appeal Panel. Indeed, they do not attempt to formulate any question of law. These grounds merely assert that the Appeal Panel should have made particular findings different from the credit-based findings that were made as to matters of fact or the character that the conduct was found to bear (ie whether it represented professional misconduct or unsatisfactory professional conduct).

22 This characterisation that I have placed on grounds 1-4 was confirmed by the form of the grounds and the submissions that were filed in their support (see Orange 9-20). There is no attempt to grapple with the fact that the Appeal Panel’s own powers were limited legally by the terms of s 113(2) and practically by the circumstance that the Appeal Panel did not see the witnesses whose credit was strongly assailed at first instance in the appeal.

23 Ground 4 of the original grounds suffers from an additional defect that lies at the centre of Grounds 5 and 6. The nub of the complaint in ground four concerns the Appeal Panel’s failure to find that the Tribunal below had made key “credit findings”. Since however the Appeal Panel did not grant leave to extend the appeal to a review of the merits of the appealable decision, no occasion arose in the final analysis for such credit findings to be examined conclusively by the panel. Absent the grant of leave the challenges raised questions of fact, not questions of law.

24 Ground 5 of the original grounds endeavoured to grapple with this last-mentioned impediment, but it goes no further than blandly asserting that the Appeal Panel erred in declining to proceed to a review of the merits pursuant to s113(2)(b). No basis of error of law was assigned in the grounds or the submissions originally filed in this Court.

25 The original submissions in support of Ground 5 are limited to two:

(i) on the assumption that Ground 4 has been made out, the Appeal Panel ought to have proceeded to reconsider the credit findings of the Tribunal (par 38); and

(ii) on the assumption that Grounds 1-3 have been made out, the Appeal Panel should have proceeded to a review of the merits (par 39).

26 Both these submissions are circular. In the first place, Grounds 1-4 are defective, as indicated above. Secondly, the Appeal Panel’s occasion to embark on the issues said to be involved in those Grounds was itself dependent on its first deciding to grant leave under s113(2)(b).

27 In supplementary Written Submissions filed by the Appellant on 18 February 2005 (apparently without leave), the appellant sought to construct an error of law out of the Appeal Panel’s refusal to grant leave. In this written submission the appellant hypothesised that the true reason for the refusal may have been the Appeal Panel interpreting s113(2)(b) as if leave to question the merits may not be given unless and until an arguable question of law has been identified.

28 Differing views on this matter have been expressed by the Panel from time to time (compare Brandusoiu v Commissioner of Police [1999] NSWADTAP 8 at [4] and Lloyd v TCN Channel 9 Pty Limited & Anor [1999] NSWADTAP 3 at [71]. See generally MA Robinson, New South Wales Administrative Law at [16,4027]). Certain obiter dicta on the same topic were expressed in passing in this Court in Amory v State of New South Wales, Director General New South Wales Department of Education and Training [2004] NSWCA 404, but those dicta do not even purport to lay the issue at rest.

29 Whether s113(2)(b) is limited in the way suggested in Brandusoiu is certainly an issue that would generate a question of law attracting serious consideration in an appeal to this Court in a proper case. But this question was not part of ground 5 as framed, nor is it likely that these debates about the scope of s 113(2)(b) in earlier decisions of the Appeal Panel were the factors that operated in the present case and led to the refusal of leave.

30 There is nothing in the material before us to indicate that the Appeal Panel proceeded on this basis. Indeed the probabilities suggest otherwise because we have the appellant’s statement of the reasons why he invoked s113(2)(b) in the document to which reference has already been made.

31 In the reformulated grounds of appeal handed up today which the appellant seeks leave to file an entirely different question of law is raised about the scope of s113(2)(b) and its application to the present case. It is convenient that I address it straight away.

32 Proposed new ground 4 states that the Appeal Panel erred in declining to grant leave under s 113(2)(b) of the Administrative Decisions Tribunal Act to permit a review of the merits of the decisions the subject of grounds 1 – 4 in the (proposed new) notice of appeal in that there was reasonably available on the evidence in relation to each of the grounds an alternate finding of fact.

33 The way this point was developed in argument by Mr Wilson was as follows. He pointed to the written submissions filed before the Appeal Panel in which key findings of fact including key findings relating to credit were challenged. For the purpose of this argument he conceded that those challenges did not engage s113(2)(a). (I would add that concession was clearly correct, for all purposes.) He contended nevertheless that since the written material showed an arguable case for reconsidering the conclusions of the Tribunal at first instance, s113(2)(b) compelled, as a matter of law, the Appeal Panel to give the leave to extend the review of the merits of the appealable decision.

34 In my view, this is an entirely untenable reading of s 113(2)(b) and for that reason alone would refuse leave to insert the new proposed ground four. If Parliament had wanted to give an appeal as of right as on a rehearing it would have said so. It is a very well-worn path. But indeed Parliament said that the right to bring an appeal that extended to a review of the merits of the appealable decision depends on the leave of the Appeal Panel. I have already indicated that it is not necessary for this Court to exegete the words “may extend to review of the merits of the appealable decision”. But what is to my mind clear beyond argument is that a genuine discretion is conferred on the Appeal Panel and it does not turn upon the matter contended for. Merely to suggest that there is a bona fide challenge to a decision of fact is not enough to require the Appeal Panel to grant leave to appeal.

35 As I have already indicated there is an additional problem, to my mind an insurmountable one, with respect to any invocation of s113(2)(b) in the present matter. It is that nothing in the written submissions filed before the Appeal Panel indicates any invocation of s113(2)(b) other than on the basis stated at Red 91 (par 15 above). The fact that the appellant was a barrister who had been briefed to appear in numerous matters could not conceivably in itself generate a case for a grant of leave.

36 Ground 6 of the existing original grounds of appeal complains of the refusal of the Appeal Panel to admit additional evidence. Section 115(2) provides that if an appeal extends to a review of the merits of an appealable decision the Appeal Panel:

may exercise all the functions that are conferred or imposed by or under any relevant enactment or this Act on the Tribunal at first instance to make the appealable decision concerned.

37 The evidence in question was new, not fresh. It consisted of affidavits of two legal practitioners and of the appellant himself. The appellant accepts that these dealt with the issue of “penalty”, they went to testimonial matters and the standing which the appellant had in the eyes of the deponent. Since however this issue only would arise before the Appeal Panel in the present case if the Panel entered into a review of the merits and since no reason has been advanced as to why the Appeal Panel erred in law in refusing to review the merits, these affidavits did not go to issues before the Appeal Panel. It follows that ground six does not raise a dispositive issue in this Court.

38 The appellant does not abandon the existing grounds of appeal implicitly except for grounds 3, 4 and 6. He seeks leave to amend the notice of appeal by inserting the following eight grounds.

1. The Appeal Panel erred in finding that paragraph 8 of the affidavit of the Appellant sworn on 9 December 1998 before Justice Young (the said affidavit) was false and misleading in that there was no evidence to support the finding.
2. The Appeal Panel erred in finding that paragraph 9 of the Appellant’s said affidavit was false and misleading in what is said about the state of the committal proceedings at the close of the prosecution’s evidence in that it was no evidence to support that finding.
3. The Appeal Panel erred in finding that paragraph 15 of the appellant’s said affidavit was false and misleading in that it failed to state the capacity in which the appellant appeared on 15 June 1998 in that there was no evidence to support the finding.
4. The Appeal Panel erred in declining to grant leave under s113(2)(b) of the ADT Act to permit a review of the merits of the decisions the subject of grounds 1-4 of the Notice of Appeal in that there was reasonably available on the evidence in relation to each of the grounds an alternate finding of fact.
5. The Appeal Panel erred in failing to find that the said affidavit was substantially correct and that the swearing of it did not amount to professional misconduct.
6. The Appeal Panel erred in finding that the conduct of the appellant in engaging in false and misleading statements to the costs assessor amounted to professional misconduct.
7. The Appeal Panel erred in finding that the conduct of the defendant in demanding cash of $15,000 from Hamod amounted to professional misconduct.
8. The Appellant repeats grounds 3, 4, 6 of the Notice of Appeal filed 8 June 2004.

39 These grounds as formulated continue to suffer from several of the formal defects that were that were the vice of the earlier grounds. For example, they do not grapple with the limited grounds of appeal advanced in the notice of appeal to the Appeal Panel. They do not attempt to formulate some error of law touching the Appeal Panel’s refusal to grant leave under s 113(2)(b). They do not in grounds 5, 6 and 7 state a ground that even hints at a question of law. Proposed grounds 1, 2 and 3 do get over that last-mentioned defect but still have other problems.

40 With considerable indulgence, the Court nevertheless allowed counsel for the appellant to develop the substantive attack that was sought to be raised with respect to the decision of the Appeal Panel. A preparedness to do so in this case should not be taken as a green light that similar laxity will attend poorly-framed grounds of appeal in a similar case in the future.

41 When one turns to proposed grounds 1, 2 and 3 it emerges that they address the findings of the Appeal Panel referable to the ground three of the first Information, which charged professional misconduct in making a false and misleading affidavit in the Supreme Court in respect of proceedings for an injunction to prevent the client from dealing with funds for costs. Detailed particulars of this ground are set out at Red 15ff and are repeated in the reasons of the Tribunal at first instance.

42 At times, the submissions on behalf of the appellant today seemed to be addressing aspects of the appellant’s conduct that were not the gravamen of the charges particularised. At other times the appellant did not seem to be grappling with the particular findings of the Tribunal at first instance. Some of the arguments proceeded as if there were findings about an intent to deceive the Court that were not the nub of the matter found at pars [67] and [68] of the Tribunal’s decision. For convenience I set out those paragraphs:

67. In his final submissions, the Barrister did not dispute the accuracy of the particulars given in relation to this ground. He did however submit that all relevant documentation had been included in the affidavit and that he would not intentionally swear a false affidavit. He submitted that he could have been cross-examined in the Equity proceedings on any inconsistency or anything said to have been misleading or deceptive.
68. The Tribunal finds that the complaint as particularised has been established in all its respects. The Affidavit was, as alleged, false and misleading. It is no answer for the Barrister to say that there was correspondence annexed when the text of the affidavit, as particularised, had the false and misleading nature which it did. It is also no answer for the Barrister to say that he could have been cross-examined on the affidavit in those proceedings. The Courts and this Tribunal have said, on numerous occasions, that as Officers of the Court, legal practitioners must not in any manner put before the Court material which is false or misleading. The Court is entitled to expect, in its dealing with practitioners, the utmost candour and frankness and certainly for a barrister to put before a Court an affidavit which, in material aspects, is false and misleading is, in the Tribunal’s opinion, professional misconduct and the Tribunal so finds.

43 Taking a generous reading of proposed grounds 1, 2 and 3, the point sought to be raised is that there was no evidence before the Tribunal at first instance to support the findings it made as to the affidavit being false and misleading. In fact those three grounds concentrate on three particular paragraphs of the affidavit sworn before Young J and do not address in form or in substance the findings of the tribunal at first instance in par [68]. Nor do they recognise, as the Tribunal did, that in his final submissions before it the barrister did not dispute the accuracy of the particulars given in relation to that ground.

44 A further problem with proposed grounds 1, 2 and 3 (which I have indicated already) is that they do not endeavour to grapple with the fact that the case taken on appeal to the Appeal Panel did not raise questions of law in the form approximately stated in proposed grounds one, two and three. It is unfair to the Tribunal and wrong in principle for the Appeal Panel to be criticised in this Court for error of law when the legal issue was not one it was even asked to address.

45 The grounds set out in the amended notice of appeal to the Appeal Panel as developed in the written submissions before the Appeal Panel do not on my reading contend for a no evidence error of law on the part of the Tribunal at first instance.

46 Notwithstanding all of those criticisms I have looked at the complaints raised in this Court as to the Tribunal at first instance’s consideration of the issues touching the affidavit.

47 The submission that there was no evidence to support the primary findings or the secondary conclusion of professional misconduct is in my view quite untenable. It seems to proceed, at least in large part, from the fallacious premise that only intentional acts of misleading conduct are capable of amounting to professional misconduct. Another false premise seems to be that if a misleading statement in an affidavit is obvious, such that it is very likely that the maker of the statement will be caught out as having made it, then it could not be found to be professional misconduct. Both of those last propositions are untenable.

48 I am not saying that a finding of professional misconduct is bound to flow absent a finding of intentional attempt to mislead a court. But it was clearly open in my view for the Tribunal to be satisfied (as it clearly was) that the statements, half-truths and omissions of the affidavit constituted professional misconduct given that it was an affidavit sworn by a barrister in proceedings in this Court.

49 Proposed grounds five, six and seven contend for errors on the part of the Appeal Panel in failing to make particular findings and in finding that particular conduct found established amounted to professional misconduct. These related to the affidavit already referred to (proposed ground 5 ) the conduct of the appellant in engaging in false and misleading statements to a costs assessor (proposed ground 6) and a finding as to professional misconduct touching a demand of cash from Mr Hamod (proposed ground 7).

50 I have looked at the material to which we were taken and am entirely unpersuaded that there was any error of law on the part of the Tribunal at first instance, let alone the Appeal Panel. It was in my view well open to the Tribunal to find that the primary facts established in relation to those three aspects of conduct amounted to professional misconduct.

51 Proposed ground 8 repeats grounds 3, 4 and 6 of the original notice of appeal and I have already indicated the difficulties with those original grounds. They do not raise questions of law. And even when the material behind them upon which the appellant wishes to rely is examined that material does not disclose a question of law.

52 For those reasons it seems to me that it is futile to grant the leave to amend. The appeal both in its original form and proposed reformulated form is either incompetent as not raising questions of law in this Court and/or doomed to fail having regard to the various matters that I have already referred to.

53 I propose that the appeal be dismissed with costs.

54 IPP JA: I agree.

55 HUNT AJA: I also agree.

56 MASON P: That is the order of the Court.

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