Bar Association of NSW v Miller

[2010] NSWADT 300

CITATION:	Bar Association of NSW v Miller [2010] NSWADT 300 This decision has been amended. Please see the end of the decision for a list of the amendments.
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT James Mathew Miller
FILE NUMBER:	092031 and 092041
HEARING DATES:	3 and 4 June 2010
SUBMISSIONS CLOSED:	16 June 2010
DATE OF DECISION:	17 December 2010
BEFORE:	Robinson W QC -Judicial Member; Wright R, SC - Judical Member; Fitzgerald R - Non-Judicial Member
CATCHWORDS:	barrister – direct access client – fee disclosure regulations – competence – unsatisfactory professional conduct – investigation - professional misconduct
LEGISLATION CITED:	Legal Profession Act 2004 Legal Profession Regulation 2005
CASES CITED:	Heydon (2000) 51 NSWLR 1 Saferack Pty Ltd v Marketing Heads Australia Pty Ltd [2007] NSWSC 1143
REPRESENTATION:	APPLICANT M G Lynch, barrister RESPONDENT No Appearance
ORDERS:	1In matter 092031 the Tribunal declares that James Mathew Miller has engaged in unsatisfactory professional conduct 2 In matter 09241 the Tribunal declares that James Mathew Miller has engaged in professional misconduct 3Order for publication of these reasons 4Liberty to Apply

REASONS FOR DECISION

Summary

1 Two separate Applications have been filed by the New South Wales Bar Council concerning the conduct of James Matthew Miller (“the Respondent”). They were heard together pursuant to interlocutory orders made by the Tribunal. On and from 4 May 2007, the barrister was retained to act on a direct access basis for a client company, Marketing Heads Australia Pty Ltd (“Marketing Heads”) in connection with a disputed monetary claim in the District Court. By 18 December 2007 a solicitor, a Mr Berry, complained of the barrister’s conduct on behalf of the client company to the Office of the Legal Services Commissioner. In January 2008, the Commissioner in turn referred the matter to the Applicant Council, which made its own investigation under the hand of Ms Helen Barrett, Deputy Director, Professional Conduct.

2 The Bar Council’s complaint as elaborated by the first Application alleges the Respondent barrister engaged in unsatisfactory professional conduct in his dealings with and services rendered to a direct access client, in part as to failure to comply with various practice regulations in financial matters and in part as to competence in the conduct of litigation. The later Application deals not only with the barrister’s conduct in relation to his client but also with the barrister’s conduct during the course of the investigation by the Council of the matters pertinent to the first Application. It is alleged that in the course of that investigation he has engaged in professional misconduct. The Respondent was admitted to practice on 14 December 2001 and remains on the roll as a local lawyer. He has not held a practising certificate since May 2009.

Outline of the Proceedings

3 On 10 November 2009, pursuant to s.551 of the Legal Profession Act 2004 (“the Act”), the Bar Council filed Application for Original Decision No. 092031 and sought orders:

1.That James Mathew Miller has engaged in unsatisfactory professional conduct
2.Such further or other orders as are provided in s.562(2)(b)-(e) or s.562(4)(a)-(j) of the Legal Profession Act as the Tribunal thinks fit.
3.The respondent James Mathew Miller pay the applicant’s costs of the proceedings.
4.Liberty to apply.

The Application as filed contained 3 Grounds, each supported by particulars. The first two Grounds allege fundamental irregularities in dealing with a direct access client concerning the receipt of and accounting for funds by way of fees. The third ground was of a different character which went to the competence displayed by the respondent in the conduct of litigation on behalf of the same direct access client.

alleges that:

“The respondent failed to provide tax invoices to Marketing Heads Australia Pty Ltd (“the client”) in respect of barrister’s work undertaken by him for the client and for which he had received fees in advance and notwithstanding that requests had issued from the client that such invoices be provided.”

In short, by the particulars of this Ground it was asserted that the respondent was at all material times an Australian legal practitioner carrying on practice as a barrister who had been retained to act on behalf of the client on a direct access basis from 4 May 2007 and that following requests by him, on 7 May 2007 the sum of $3,850.00 was transferred by the client to a nominated NAB account held in the name of the barrister, followed by a further sum of $3,000.00 on 29 August 2007 paid into the Respondent’s Westpac account in advance of the provision of further legal services by the Respondent and prior to the issue of a bill to the client. It was further asserted that, despite specific requests by Mr John Wakeling and Ms Kaye McIntyre, directors of the client company and the commencement of investigation of the matter by the Deputy Director of the Applicant Council, no such tax invoices (fee notes) were provided up to 4 March 2008.

alleges that:

“The respondent, in the course of practicing as a barrister, received trust money from Marketing Heads Pty. Ltd. (“the client”) contrary to s. 252 of the Legal Profession Act 2004, in circumstances where the said money did not remain deposited in an account maintained with an authorised deposit-taking institution (“ADI”) in connection with the respondent’s law practice until a bill was given to the client; nor until the money was refunded to the client; nor until the money was paid to a solicitor who was later engaged by the client in the matter (pursuant to clause 106A of the Legal Profession Regulation 2005).”

The essence of the particulars filed in support of this ground asserted that the $3,000.00 deposited by the client as an advance towards the provision of legal services by the respondent into the respondent’s Westpac account on 29 August 2007 was “trust money” within the definition in s.243 of the Legal Profession Act 2004, and that it was withdrawn contrary to s. 252 by the Respondent on 31 August 2007 without the issue of a bill (fee note) to the client prior to the withdrawal nor was a sum of $3,000.00 deposited into any other ADI account.

Ground 3 is of an altogether different character and raises issues of the competence of the Respondent in providing legal services to his client. It alleges:

“The respondent acted for Marketing Heads Pty. Ltd. (“the client”) and advised it to issue a creditor’s statutory demand against SafeRack Pty. Ltd. (“SafeRack”) and to pursue the said demand in circumstances where:-

a) there was a genuine dispute concerning the existence and amount of the debt allegedly owing by SafeRack to the client;
b) in an affidavit drafted by the respondent on behalf of the client’s director, John Wakeling, the respondent neglected to include crucial evidence that there was a debt due and payable to the client and in respect of which the director was of the opinion that there was no genuine dispute as to the liability of SafeRack for payment of the alleged debt;
c) the respondent knew or ought to have known that the client’s statutory demand was a process which had no merit and/or no real prospect of success for the client;
d) after SafeRack initiated an application to set aside the creditor’s statutory demand, the respondent advised the client to resist the said application when it was bound to succeed;
e) the respondent’s client was ordered to pay SafeRack’s costs of successfully applying to set aside the creditor’s statutory demand on an indemnity basis

The particulars filed in elaboration of this ground allege that the respondent was briefed on a direct access basis in May 2007 to act in respect of a monetary dispute with SafeRack in relation to which proceedings had already been commenced in the District Court. In advising the client to proceed by issuing a creditor’s statutory demand, the Respondent materially ignored SafeRack’s defence and denial of liability in the District Court proceedings, and further in drawing the statutory demand and supporting affidavit he omitted essential evidence. SafeRack commenced proceedings in the Supreme Court to have the demand set aside. Not only did the Supreme Court set aside the demand, but in addition, an indemnity costs order was made against Marketing Heads in the sum of $32,226.00.

4 On 17 December 2009 a second Application for Original Decision pursuant to s.551 of the Legal Profession Act was filed by the Applicant Council and is numbered 092041. By this application the following orders are sought:

1)That James Mathew Miller has engaged in professional misconduct.
2)In the alterative that James Mathew Miller has engaged in unsatisfactory professional conduct.
3)These proceedings be heard at the same time as proceedings No 092031 on the grounds that they arise out of the same facts matters and circumstances.
4)The evidence in each proceeding be evidence in the other proceedings.
5)Such orders as are provided in s.562 (2)(a)-(e) or s.563 (4)(a)-(j) of the Legal Profession Act 2004 (the “Act”) as the Tribunal thinks fit.
6)The respondent James Mathew Miller pay the applicant’s costs of the proceedings.
7)Liberty to apply.

This application sets out Grounds in the form of 4 complaints followed by particulars which are common to all complaints, as follows:

“The respondent, in breach of Rule 80 of The New South Wales Barristers’ Rules, failed to provide the required disclosures to his direct access client, Marketing Heads Australia Pty Ltd (the “client”).”

“The respondent , in breach of s.309 and s.311 of the Act, failed to provide satisfactory and complying costs disclosures to the client, at the time of , or as soon as practicable after, accepting instructions to act on its behalf on 4 May 2007.”

“The Respondent misled the New South Wales Bar Association, in the course of its investigation of the complaint made against him by Mr Berry on behalf of Marketing Heads Pty Ltd and Mr J Wakeling (the client’s complaint) by letter dated 18 December 2007 by:

a)providing to the applicant, on 4 March 2008, a copy of tax invoices dated 30 June 2007 and 8 October 2007 together with an explanation that such documents had been provided by him to the client on or about the dates that they bear when, in fact, such documents had not been provided to the client at any time prior to the date (being 4 March 2008) of his representation to the Association to that effect; and

b)providing to the applicant on 4 March 2008, a copy of a document dated 4 May 2007 and entitled “Direct Access Disclosure,” together with an explanation that such document had been provided by him to the client on 4 May 2007, when, in fact, such document had not been provided to the client at any time prior to the date (being 4 March 2008) of his representation to the applicant to that effect.”

Complaint 4

“The respondent, in breach of

a)s.671(1) of the Act, failed to comply with a Notice, which was dated 12 September 2008 and served on or about the same date upon him pursuant to s.660 of the Act, such notice requiring a response by him to the Council of the New South Wales Bar Association by no later than 4.00pm on 29 September 2008; or, alternatively
b)s.676(3) of the Act, failed to comply with a Notice, which was dated 12 September 2008 and served on or about the same date upon him pursuant to s.660 of the Act, such notice requiring a response by him to the Council of the New South Wales Bar Association by no later than 4.00pm on 29 September 2008”

Once again, the common particulars chart the course of the professional relationship between the Respondent and his client, the asserted failure to provide to the client appropriate direct access disclosure documents as required by Rule 80 of the Barristers Rules and costs disclosures consistent with s.309 and 3011 of the Act.

Of an entirely different character, however, is the allegation in connection with Complaint 3 that on 4 March 2008 the Respondent forwarded to the Bar Council copy invoices dated 30 June 2007 for $3850.00 (incl GST) and 8 October 2007 for $4,950.00 (incl GST) addressed to Marketing Heads together with a document bearing the date 4 May 2007 entitled ‘Direct Access Disclosure.’ It is asserted no such documents were in fact provided to the lay client on or about the date that they bear. Subsequently it is asserted he failed to respond to the further Notice pursuant to s.660(1) of the Act which required production of information in relation to the time of creation or modification of those purported documents.

5 No Reply has been filed by the Respondent to either of these Applications. In that regard, it may be that the contents of an email of 7 May 2009 to Ms Barrett, apologising for failing to respond to her enquiries are of significance. In it the Respondent said:

“…I have, since about early 2007, been affected by a depressive illness. As at the end of 2008 I recognised that I was not well enough to continue practice at the Bar….”

We are cognisant of this and other material indicative that the Respondent has been served with all relevant documents and is aware of but does not wish, at least at this point, to contest these matters. On Thursday 3 June 2010 at the commencement of the hearing of these matters, Mr Miller (not unexpectedly) failed to appear and the Tribunal adjourned to enable the Registrar to seek to make contact with Mr Miller and the following message was sent by email:

“The matter of Bar Association of NSW v James Miller is listed for hearing today at the Administrative Decisions Tribunal. Please indicate as a matter of urgency your position regarding this matter and if you will be attending the hearing today. The Tribunal has adjourned until 12 noon today, 3 June 200 pending your advice.
Please contact the Registry as a matter of urgency.”

This communication was answered by an email in the following terms:

“Dear Regitrar (sic),
I am unable to attend. As I have advised the Bar Association in previous correspondence, I am mediclal (sic) unwell and undergoing treatment for serious depression.
My apologies to the Tribunal and the Bar Association.
Kind Regards,
James Milelr (sic)”

Finally, at 12.35 the Registrar forwarded the following email message:

“Dear Mr Miller
Thankyou for responding. We note you have not applied for an adjournment. In the absence of a reply to this email the Tribunal will take it that you are content for the matter to proceed in your absence. If so the Tribunal will proceed at 2pm today.

If you wish to apply for an adjournment can you please advise the Tribunal prior to 2pm today and indicate for how long and advise the name and contact details of any Medical Practitioner on whose evidence you rely in support of any application for an adjournment.”

This communication remains unanswered.

Reasons

6 Much of the evidence in support of each Application is necessarily entwined. The Council has filed and tendered affidavits by its solicitor, Ms Rosemary McDougal and affidavits by Mr John Wakeling and Ms Kaye McIntyre. Ms McDougal’s affidavits are uncontroversial and concentrate on documenting the detail of the initial client complaints and the course of investigation followed by the Bar Council in response to those complaints. From that material it is apparent that in Ms Barrett’s first letter to the Respondent, dated 8 January 2008, Mr Miller was told formally of the terms of the complaints made against him by Mr Berry on behalf of his former client and in particular, he was requested in the covering letter to “please provide a copy of the written disclosure which you made to the client pursuant to New South Wales Barristers’ Rules 80 (copy enclosed.)” The initial response of 10 January 2008 dealt largely with difficulties encountered by the Respondent as a consequence of not having retained a complete copy of the brief, and so it was not until a letter dated 4 March 2008 that a substantive response from Mr Miller was received. This letter gave an account of his relationship with Marketing Heads and notably asserted in paragraph 2:

“Annexure A is a copy of a document that I handed to Mr Wakeling on 4 May 2007 making disclosure pursuant to Bar Rule 80.”

Enclosed was a document on the letterhead of the Respondent dated 4 May 2007, addressed to Marketing Heads and headed “Direct Access Disclosure” setting out various matters required pursuant to rules 74,75 and 80. This document appears at pages 216 and 217 of the bundle exhibited to Mr Wakeling and tendered at hearing. A further two documents of enduring significance appear at pages 218 and 219 of the same bundle and are also on the Respondent’s letterhead and addressed to Marketing Heads, the first dated 30 June and purporting to be a Memorandum of Fees in the matter for the period 4 May to 30 June 2007 shown as $3,500 with GST of $350.00 erroneously totalled as $3,800.00 rather than $3,850.00. The second Memorandum is dated 8 October 2007 and purports to render fees from 1 July to 30 September for a total of $4,950.00 inclusive of GST. Of these documents the Respondent wrote:

“17. Annexed and marked B copies of memoranda of fees that I provided to Mr Wakeling or (sic) about the dates that they bear. In that connection I note the entry ‘Miller - $3,850.00’ in Mr Wakeling’s email to me dated 20 July 2007, which confirms Mr Wakeling had a copy of my fee note as at 20 July 2007.”

7 Following these assertions, the investigation of the complaint proceeded by way of issue of a series of Notices pursuant to s.660(1) of the Legal Profession Act 2004 requiring the production of documents and information. The first Notice was issued on 23 May 2008, and led to the production by the Respondent of records demonstrating his ownership of the bank accounts referred to in the particulars above, together with copy bank records demonstrating the deposit and withdrawal referred to in Ground 2 of the first Application. A second Notice was dated 4 July 2008 and was responded to by a Statutory Declaration (page 66 in RM1 exhibited by Ms McDougal in connection with her affidavit of 10 November 2009) and confirms the withdrawal of $3,000 in favour of the Respondent’s personal use, rather than in accordance with the trust account provisions of s.252 of the Act.

A third such Notice dated 12 September 2008 was served on the Respondent, on this occasion requiring the production by 4pm Monday 29 September of

“Any record as to the date of creation and/or modification of the document headed ‘Direct Access Disclosure’ dated 4 May 2007……’

This is a reference to the document earlier asserted by the Respondent to have been given to Wakelings. No response was received and on 15 October the Bar Association wrote to the Respondent noting the lack of response and requiring a response by noon on Friday 17 October, 2008. Again compliance was not forthcoming within the time specified, nor has it been since.

8 As to Grounds 1 and 2 of the first Application, the further evidence adduced before us was from both Mr John Wakeling and his wife Ms Kaye McIntyre. This largely took the form of sworn affidavits by each of them in similar terms detailing the course of their dealings with the Respondent. Each affidavit had earlier been filed in the proceedings and served on the Respondent. Having been required for cross examination, both supplemented their affidavits with short oral testimony before us, Ms McIntyre making some minor correction to her affidavit. The substance of that evidence was that each is and was a director of Marketing Heads Australia Pty Ltd, that there was a history of commercial conduct between 1 December 2005 and 9August 2006 whereby Marketing Heads provided market research services to Safe Rack, but was not paid a sum calculated by Mr Wakeling at $57,102.35. As a consequence in December 2006 he commenced proceedings by way of Statement of Claim in the District Court for recovery of same. By May of 2007 Mr Wakeling had realised he was out of his depth in conducting the proceedings on behalf of his company and on 4 May Mr Wakeling and his wife met and engaged the Respondent. At their initial meeting the Respondent asked for an advance of $3,500.00 and said he would invoice the company as the work progressed.

Each witness refers to an email dated 4 May 2007 apparently forwarded by the Respondent shortly after that first conference setting out the terms upon which he was prepared to act which included a statement as to the intended daily rate of $2,500 per day exclusive of GST, and an estimate of overall fees in the matter of $7-10,000.00. The document is exhibited at pages 71 and 72 in the bundle to Mr Wakeling’s affidavit of 10 November 2009. Each witness says this was the only communication received from the Respondent which set out the terms on which he was prepared to act. Further, Ms McIntyre says that she attended all but 2 meetings with the Respondent and “there was never a tax invoice received by email or mail or personally handed to either John or myself” and further indicates as part of her duties she had a particular interest in this issue and actively sought invoices for the payments forwarded. Mr Wakeling draws attention to an email of 7 November 2007 he sent to the Respondent, which by its terms provides some independent support for the Wakeling’s evidence in respect of tax invoices.

9 It suffices to say that the email document is not a tax invoice, nor does it contain the information required by Rules 74, 75or 80 of the Bar Rules (which is relevant for Complaints 1 and 2 of the second Application) . Each witness swears no tax invoice was ever received from the Respondent and Ms McIntyre recounts in her affidavit asking for tax invoices on a number of occasions including in June 2007 and November 2007. Given that this evidence is wholly unchallenged by the Respondent, except for his assertions in his response to the Bar Association and each of the lay witnesses substantially corroborates the other, the Tribunal accepts this evidence. In the light of the documentary and other evidence concerning the payment by the client of amounts on account of fees to the Respondent, the withdrawal of some or all of those amounts from the Respondent’s account and the use to which they were put, we find Grounds 1 and 2 of the first Application have been established to the requisite standard.

10. Further, we accept in respect of Ground 1 of the first Application that failure to provide tax invoices to the client in respect of barrister’s work undertaken by the Respondent for the client and for which the Respondent had received fees in advance, despite requests from the client for such invoices, falls short of the standard of competence and diligence that the public is entitled to expect of a reasonably competent legal practitioner in connection with the practice of law. Accordingly, it amounts to unsatisfactory professional conduct.

10 In respect of Ground 2 of the first Application, we find that the Respondent received trust money as defined in s 243 of the Legal Profession Act in that he was a law practice (see s 4 definition) and in the course of or in connection with the provision of legal services by him he received money on account of legal costs in advance of providing the services. Subject to certain exceptions established by regulation under s 246(3), s. 252 of the Legal Profession Act prohibits a barrister, such as the Respondent, from receiving trust money. Relevantly, reg 106A of the Legal Profession Regulations 2005 provides:

“106A Receipt of trust money by barrister (section 252 of the Act)-exclusion under section 246 (3) of the Act
Part 3.1 of the Act does not apply to trust money received and held by a barrister if the money is received by the barrister on account of legal costs for legal services in advance of the provision by the barrister of the legal services, in the following circumstances:
(a) the barrister is practising as a sole practitioner and the money is received in connection with instructions accepted by the barrister directly from a person who is not a solicitor,
(b) the money is deposited, within a reasonable time, after the barrister receives the money, in an account maintained with an ADI in connection with the barrister’s law practice,
(c) the money remains deposited in that or another account maintained with an ADI in connection with the barrister’s law practice until:
(i) a bill is given to the client, or
(ii) the money is refunded to the client, or
(iii) the money is paid to a solicitor who is later engaged by the client in the matter.”

11 Accepting as we do the evidence of the Wakelings that they at no time received tax invoices or any other form of bill from the Respondent in respect of work done for the client and noting from the information provided by the Respondent that he does not suggest that the money was dealt with in any other way so as to bring him within the operation of reg 106A, we find that he contravened of s 252 of the Legal Profession Act. Further, this conduct in contravention of the Legal Profession Act was capable of being (by operation of s 498(1)(a) of that Act) and was, in our view, unsatisfactory professional conduct.

12 In support of Ground 3 the evidence is largely found in the bundle exhibited by Mr Wakeling and comprises the documents which trace the course of the District Court proceedings by Marketing Heads against SafeRack in pursuit of its monetary claim, together with the client’s proceeding by way of statutory demand on the advice of the Respondent and the defence of the proceedings initiated in the Equity Division of the Supreme Court to have the demand set aside. In particular at pages 124 and 125 appears an affidavit verifying a Creditor’s Statutory Demand, drawn by the Respondent and sworn by Mr Wakeling on 30 July 2007. As alleged in the particulars to Ground 3, that document fails to set out essential matters, for example that the debt the subject of the Marketing Heads demand was ‘due and payable,’ as required for such proceedings, nor does it set out any material as to the deponents belief as to the absence of genuine dispute about the existence and amount of the debt – perhaps because the continuation of the District Court proceedings stood in the way of a truthful statement thereon. The consequences for Marketing Heads are set out in the judgement of His Honour Justice Barrett in Saferack Pty Ltd v Marketing Heads Australia Pty Ltd [2007] NSWSC 1143 , which deals extensively with the shortcomings of the proceedings set in train and conducted by the Respondent, sets aside the statutory demand, and, consequentially, orders costs against Marketing Heads on an indemnity basis.

13 Whilst in correspondence with Ms Barrett, the Respondent made various statements concerning the unsatisfactory nature of his instructions in connection with those proceedings, however, there can be no doubt that proceeding by way of statutory demand and defending the Supreme Court proceedings were advised by the Respondent, and the relevant documents were prepared by him and he conducted the client’s defence. As is made patently clear by His Honour’s judgment this approach was entirely misconceived, and show both in conception and execution a significant want of judgment and performance by the barrister.

14 It therefore falls to the Tribunal to consider the appropriate characterisation and seriousness of the deficiency of the Respondent’s lack of apparent knowledge, skill and judgment in the conduct of the client’s matter. Looking first to the legislation, Section 496 of the Legal Profession Act 2004 provides an inclusive definition in the following terms:

“For the purposes of this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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 Australian legal practitioner.”

15 The definition of unsatisfactory professional conduct in section 496 of the Legal Profession Act 2004, is, for present purposes, the same as the definition of unsatisfactory professional conduct in section 123 of the Legal Profession Act 1987. Some idea of the nature and content of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner can be gained from a consideration of cases dealing with allegations of breaches of contractual or tortious duties by legal practitioners.

16 In Heydon v NRMA Limited (2000) 51 NSWLR 1 the New South Wales Court of Appeal considered the duty of care of legal practitioners and the standard of that care in the context of giving professional advice. At paragraphs 146 and 147, Malcolm AJA said:

“Both barristers and solicitors owe a duty of care to those whom they advise or for whom they act. In the present context, their duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of practitioners.
In this context the content of the duty of care and the liability is the same whether it is founded on contract in the case of a solicitor, or whether it is founded on a duty of care in tort in the case of a barrister. In each case the duty is to apply the relevant degree of skill and exercise reasonable care to carrying out the task. There is no implied undertaking that the advice is correct, but only that the requisite degree of professional skill and care has been exercised in the giving of the advice.”

17 Having regard to the whole of the Respondent’s deficiencies not only in respect of the advice given but also in relation to the preparation of documents and the decision to contest the proceedings to set aside the demand, the Tribunal is satisfied that the Respondent has failed in his duty to his client to exercise the required level of professional skill and care that might be expected by the public of a competent barrister. This failure involved a lack of competence and/or diligence which may properly be characterised as unsatisfactory professional conduct. Accordingly, we find that the Respondent’s conduct in advising the client to issue a statutory demand and to pursue that demand amounted in the circumstances to unsatisfactory professional conduct.

18 We turn now to the second Application. As to the matters set out in Complaints 1 and 2 of the second Application, the Tribunal has had regard to the specific assertion by the Respondent in his letter of 4 March that the Rule 80 document was “handed to Mr Wakeling on 4 May 2007.” Equally, there can be no doubt on the evidence of the conduct of the investigation that documents in the form of the “tax invoices” dated 30 June 2007 and 8 October 2007 were forwarded to the Bar Association by the Respondent as a response to the formal investigation he had been told was being undertaken. Similarly, there can be no doubt that on or about 4 March 2008 the Respondent forwarded a copy of the ‘Direct Access Disclosure’ document dated 4 May 2007 in response to Ms Barrett’s enquiries. Against this, however, must be weighed the sworn denials by Mr Wakeling and Ms McIntyre that they received any document from the Respondent other than the email dated 4 May 2007 which could satisfy the requirement for the disclosures under rule 80 of the New South Wales Barristers’ Rules. The 4 May 2007 email did not meet those requirements.

19 Bearing in mind the standard of proof required in matters such as the present and the considerations identified in Briginshaw v Briginshaw (1938) 60 CLR 336 that the matters should be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations made against the Barrister, the inherent unlikelihood of conduct of this nature occurring and the gravity of the consequences flowing from our findings, we nonetheless find that no document satisfying the requirements of rule 80 was given to the client by the Respondent in respect of the SafeRack matter in which he was retained. As a result we are satisfied that the Respondent breached rule 80 of the New South Wales Barristers’ Rules and thereby engaged in unsatisfactory professional conduct.

20 Similarly in respect of Complaint 2, there is little room on the evidence to be other than comfortably satisfied that the Wakefield’s sworn testimony establishes a failure by the Respondent to meet the requirements of ss 309 and 311 of the Act. As a result, we find that the Respondent has engaged in unsatisfactory professional conduct in this regard as well.

21 As to Complaint 3 the Tribunal is satisfied that the documents were provided by the Respondent to the New South Wales Bar Association in the context of a formal complaints procedure, specifically directing his attention to the need to produce documents of the kind. The passages quoted above from the accompanying letter of 4 March demonstrate to the Tribunal’s satisfaction, that the production of these documents was intended to form part of his answer to the matters raised by Ms Barrett’s letter. In light of the evidence discussed above, it is plain that such documents were not in fact provided to Marketing Heads. Although this may demonstrate a course of conduct likely to and perhaps intended to mislead those conducting the investigation given the ordinary consequence of providing these documents and giving them the context propounded by the Respondent, the difficulty remains that in the absence of clear evidence going to the question of when the documents were created, it is not possible to have a firm and settled view of the significance of that action. Whether the documents were created during the course of his relationship with the Wakelings but not provided, through inadvertence or otherwise, in accordance with the rules or the Act or, whether they were a fabrication of later date, created and forwarded to forestall the investigation has not yet been ascertained and proven. Given the form of the allegation, the need here is also to consider whether the Respondent in fact misled the Bar Association. Adopting the applicable aspects of the Macquarie Dictionary definition which suggests we need to consider whether the Bar Association was led astray, or led into error of conduct, thought or judgment, we look to the consequences of that exchange.

22 Certainly nothing in the evidence as we view it directly points to such an outcome, there is no witness who says they were misled and to the contrary, the response of the Bar Association was not to act upon those representations, but to issue a further notice seeking further information as to the time and manner of creation of those documents, which strongly suggests that these aspects of investigation were not yet complete. That being the case, for the reasons discussed above, we are unable to be comfortably satisfied that this complaint is made out to the degree required.

23 As to Complaint 4 that the Respondent failed to comply with the notice of 12 September 2008 on either of the bases alleged, we are satisfied on the Affidavit of Ms McDougal and the documents exhibited by her that there was such a Notice, that it was duly served and that the Respondent failed to give a substantive response within the time provided by the Notice, namely 4pm on 29 September 2008, in breach of s.671(1) of the Legal Profession Act. There has been no evidence placed before us by the Respondent which could constitute a reasonable excuse for this failure, and accordingly we find the first leg of this complaint is proved to the requisite standard. Further consideration of the second leg of the complaint is therefore unnecessary. Failure to comply with a Notice under the Legal Profession Act in such circumstances is a serious matter and we are of the view that it amounts to professional misconduct, having regard to the provisions of s 498(1)(a) of that Act.

24 In conclusion, the Tribunal observes that there is a plethora of authority to the effect that disciplinary proceedings are primarily protective of the public interest, so that proof of an illness or other cause that may assist in explaining the conduct of someone who has behaved in some inappropriate manner does not excuse that person of the consequences which flow from that behaviour. We note both the Respondent’s various assertions that he is and has been suffering illness, and his failure to provide any evidence in support of those assertions which were first made well after the Bar Council investigation had commenced. At present there is simply no evidence under consideration that could provide such an excuse.

25 Accordingly, in Application 092031 the Tribunal finds the allegations in all 3 Grounds proven. In Application 092041 the Tribunal finds Complaints 1, 2 and 4 of those allegations made out. The tribunal dismisses Complaint 3.

21/02/2011 - Typographical error in Complaint 3 - Paragraph(s) 3