BRJ v Council of the New South Wales Bar Association

[2016] NSWSC 146

Supreme Court

New South Wales

Medium Neutral Citation:	BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146
Hearing dates:	24 February 2016
Decision date:	29 February 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	(1) Dismiss the summons. (2) Subject to an application for a different order being made to my Associate in writing within seven days hereof, order the plaintiff to pay the first defendant’s costs of the proceedings.
Catchwords:	LEGAL PRACTITIONERS – unsatisfactory professional conduct – no disciplinary action taken - whether Tribunal erred in finding unsatisfactory professional conduct where conduct arose out of psychiatric disorder – mental element did not alter characterisation of unsatisfactory professional conduct – no error in Tribunal’s approach
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Children and Young Persons (Care and Protection) Act 1998 (NSW) Civil and Administrative Tribunal Act 2013 (NSW), s64, Sch 1, cll 2, 6, 7, 21, Sch 5, cll 4, 29 Interpretation Act 1987 (NSW), s33 Legal Practitioners Act 1981 (SA), s5 Legal Profession Act 1898 (NSW), ss 75, 76, 77, 79 Legal Profession Act 1987 (NSW), s127 Legal Profession Act 2004 (NSW), ss 171M, 255, 494, 496, 497, 498, 503(1), 525(1), 537(1)(a), 551, 553, 562, 564, 576, 577, 581, 702(1), 729A Legal Profession Uniform Law Application Act 2014 (NSW), s167 Legal Profession Uniform Law (NSW), NSW Barristers Rules, rr 16, 95 Supreme Court Act 1970 (NSW), s75A
Cases Cited:	Allinson v General Council of Medical Education and Registration [1892] 1 QB 750 Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56 Council of the New South Wales Bar Association v Ghabrial [2010] NSWADT 306 Council of the New South Wales Bar Association v Kay [2009] NSWADT 139 Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 NSW Bar Association v Butland [2008] NSWADT 120 Prothonotary of the Supreme Court (NSW) v McCaffery [2004] NSWCA 470 Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977) Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Category:	Principal judgment
Parties:	BRJ (Plaintiff) Council of the New South Wales Bar Association (First Defendant) New South Wales Civil and Administrative Tribunal (Second Defendant)
Representation:	Counsel: Plaintiff in person KJ Williams (First Defendant)   Solicitors: Eakin McCaffrey Cox (First Defendant)
File Number(s):	2015/237282
Decision under appeal	Court or tribunal: New South Wales Civil and Administrative Tribunal Jurisdiction: Occupational Division Date of Decision: 16 July 2015 Before: L Robberds QC, Senior MemberP Wass SC, Senior Member E Hayes, General Member File Number(s): 132028

Judgment

Introduction

1. The plaintiff appeals, by summons filed on 24 August 2015, against the decision of the Civil and Administrative Tribunal (the Tribunal) made on 16 July 2015. The plaintiff does not challenge any of the orders made by the Tribunal (which did not include disciplinary action within the meaning of s 576 of the Legal Profession Act 2004 (NSW) (the 2004 Act)). However, she challenges the Tribunal’s findings that she engaged in unsatisfactory professional conduct in three respects that are set out in more detail below.

2. The first defendant, the Council of the NSW Bar Association (the Bar Council), is the only active contradictor, the second defendant (the Tribunal) having filed a submitting appearance.

Statutory framework

Legal Profession Act 2004 (NSW)

3. The 2004 Act was repealed by s 167 of the Legal Profession Uniform Law Application Act 2014 and replaced by that Act and the Legal Profession Uniform Law (NSW) with effect from 1 July 2015. However, its provisions largely applied at times relevant to the facts with which this appeal is concerned.

4. Section 494(1) of the 2004 Act, identifies as one of the purposes of Ch 4 (which is entitled “Complaints and Discipline”):

“(a) to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of clients of law practices and the public generally,”

5. Section 496 defines “unsatisfactory professional conduct” 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.”

6. Section 497(1) defines “unsatisfactory professional misconduct” in the following terms:

“497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice.”

7. Section 498 relevantly provides:

“Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

. . .

(2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.”

8. Part 4.2 deals with complaints about Australian legal practitioners. A complaint may be made about the conduct of an Australian legal practitioner: s 503(1). It may be made by any person: s 503(1)(d). Each complaint must be investigated under Pt 4.4: s 525(1). After completion of an investigation the Bar Council must do one of three things, including commencing proceedings in the Tribunal under Ch 4: s 537(1)(a). Part 4.8 provides for hearings in the Tribunal. The Tribunal is obliged, by s 553, to conduct a hearing into each allegation particularised in the application.

9. Section 562(1) provides that:

“(1) Orders generally

If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.”

10. Section 562(2)(e) identifies an order reprimanding the practitioner as one of the orders that can be made by the Tribunal. If the Tribunal makes such an order, it must publish the order and a statement of its reasons for making the order: s 562(8).

11. Section 564(1) provides:

“The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint.”

12. Part 4.10, entitled “Publicising disciplinary action” defines “disciplinary action” in the following terms in s 576 as follows:

“In this Division:

disciplinary action against an Australian legal practitioner means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under this Chapter or under provisions of a corresponding law that correspond to this Chapter:

(a) the suspension or cancellation of the Australian practising certificate of the practitioner,

(b) the refusal to grant or renew an Australian practising certificate applied for by the practitioner (other than a refusal on the ground that the practitioner is not eligible to apply for the grant or renewal),

(c) the removal of the name of the practitioner from an Australian roll,

(d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the practitioner, other than an order cautioning the practitioner,

(e) the reprimanding of the practitioner, or the making of a compensation order against the practitioner, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct,

(f) the appointment of a manager or receiver for a legal practice of which the practitioner is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice.”

13. Section 577 provides for a Register of disciplinary action, which is to include details such as the full name of the practitioner and particulars of the disciplinary action taken. However, under s 581(1) certain disciplinary action is not to be recorded in the Register if “the action was taken because of the person’s inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness”.

14. Section 702(1) of the 2004 Act conferred power on the Bar Council to make rules for or with respect to engaging in legal practice as a barrister. Pursuant to s 702(1), the Bar Council made rules which are referred to as the NSW Barristers Rules.

15. Section 729A relevantly provided, until its repeal on 1 January 2014:

“729A Appeals against orders and decisions of Tribunal

(1) An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made.

(2) Section 75A of the Supreme Court Act 1970 accordingly applies to an appeal under this section, and the appeal is to be:

(a) by way of rehearing, and

(b) not by way of a new hearing (a de novo hearing).

(3) Subsection (2) does not affect the provisions of section 75A of the Supreme Court Act 1970 relating to the receipt of evidence by the Supreme Court.”

16. After the repeal of s 729A of the 2004 Act on 1 January 2014, provision for appeals against decisions of the Tribunal was made by the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), which is addressed below.

Civil and Administrative Tribunal Act 2013 (NSW)

17. Clause 2 of Sch 1 of the CAT Act defines “existing tribunal” as including the Administrative Decisions Tribunal (the ADT) established under the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act).

18. Clause 6 of Sch 1 of the CAT Act defines “unheard proceedings” as meaning, relevantly, pending proceedings that had not been heard by the ADT before 1 January 2014. Clause 7 of Sch 1 provides as follows:

“(1) Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT.

(2) In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings:

(a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and

(b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and

(c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal.

(3) For the purposes of subclauses (1) and (2):

(a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and

(b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply.”

19. Section 64 of the CAT Act relevantly provides:

“Tribunal may restrict disclosures concerning proceedings

(1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:

(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal),

(b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal,

(c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal,

(d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.

(2) The Tribunal cannot make an order under this section that is inconsistent with section 65.

(3) The Tribunal may from time to time vary or revoke an order made under subsection (1).

(4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.”

20. Part 4 of Sch 1 of the CAT Act provides, by cl 21, that a reference to the Legal Profession Uniform Law includes a reference to the 2004 Act and a provision of that law includes a reference to the corresponding provision of the 2004 Act.

21. Schedule 5 of the CAT Act, headed “Occupation Division”, provides, by cl 4, that the functions of the Tribunal under the Legal Profession Uniform Law are allocated to the Occupation Division. Division 4 of Sch 5 relevantly applies to lawyers. Part 6 of Sch 5 relevantly provides that a decision for the purposes of the Legal Profession Uniform Law is a “profession decision”. As such, it is not appealable internally within the Tribunal. A party to a profession decision has a right of appeal to this Court: cl 29(2), Sch 5. Leave, however, is required to appeal against an interlocutory decision of the Tribunal, a consent decision or a decision as to costs: cl 29(6), Sch 5.

22. Clause 29(4) of Sch 5 relevantly provides:

“Basis or grounds for appeal

An appeal to a court under this clause:

(a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW)—is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and”

NSW Barristers Rules

23. As referred to above the Bar Council made rules for barristers in the exercise of its power under s 702(1) of the 2004 Act.

24. Rule 16 of the NSW Barristers Rules is contained within “ADVOCACY RULES” under the heading “Duty to client”. At the relevant time (31 May 2011) it provided:

“A barrister must seek to advance and protect the client’s interests to the best of the barrister’s skill and diligence, uninfluenced by the barrister’s personal view of the client or the client’s activities, and notwithstanding any threatened unpopularity or criticism of the barrister or any other person, and always in accordance with the law including these Rules.”

25. Rule 95 of the NSW Barristers Rules is contained within the section entitled “BRIEFS” under the heading, “Briefs which must be refused or must be returned”. It relevantly provided:

“95.   A barrister must refuse to accept or retain a brief or instructions to appear before a court if:

…

(b)   the client’s interest in the matter is or would be in conflict with the barrister’s own interest or the interest of an associate.”

The proceedings in the Tribunal

26. On 12 December 2013 the Bar Council commenced proceedings against the plaintiff in the ADT pursuant to s 551 of the 2004 Act by filing an application in which it sought an order that the plaintiff (the respondent in the Tribunal) had engaged in unsatisfactory professional conduct; orders pursuant to s 562; and costs. The grounds for the complaint were pleaded as follows:

A. During the period from about 14 July 2010 until about 21 December 2011, the respondent failed on numerous occasions to attend Court promptly for rostered duty as a Specialist Domestic Violence Panel Practitioner appointed by Legal Aid NSW.

B. On or about 31 May 2011, the respondent (as landlord) entered into a residential tenancy agreement with her client (as tenant), in respect of [certain] premises (the Premises) in breach of the respondent’s fiduciary duties owed to her client and in breach of rule 16 of the New South Wales Barristers’ Rules (as then applicable).

C. From at least 5 October 2011 until 22 November 2011, the respondent acted for [that client] in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Proceedings) in circumstances where the client’s interest in the matter was in conflict with the respondent’s interest in regaining possession of the Premises. The respondent’s conduct in acting for [the client] in these circumstances was in breach of her fiduciary duties owed to her client and in breach of rule 95 of the New South Wales Barristers’ Rules.

27. The application contained extensive particulars of each of these three grounds.

28. By her amended reply filed on 29 May 2014 (which dealt in detail with the particulars in the application), the plaintiff admitted in respect of each of the three grounds, that she engaged in unsatisfactory professional conduct.

29. The application was heard by the Tribunal over three days: 12 and 13 February and 10 March 2015. The plaintiff was represented by Mr Craddock SC of counsel on the first day. An instrument of consent pursuant to s 564 of the 2004 Act was tendered. It included the plaintiff’s admission that she had engaged in unsatisfactory professional conduct as alleged. The instrument of consent also contained various proposed consent orders.

30. The evidence and the submissions at the hearing of the s 564 application were completed on 12 February 2015. The Tribunal reserved its decision and stood the matter over to 2pm the following day, at which time it expected to make orders and give reasons.

31. When the matter resumed on 13 February 2015 Mr Craddock announced that the plaintiff wished to make an application to the Tribunal in which he did not join. The plaintiff (on her own behalf) applied for an adjournment of the proceedings so that she could obtain further medical evidence in support of the submissions as follows:

1. at the time of the conduct set out in the three grounds she was not in control of her actions as she was suffering from anorexia nervosa; and

2. although she admitted the facts in the instrument of consent, no finding of unsatisfactory professional conduct ought be made because of (1).

32. The plaintiff relied on two decisions: NSW Bar Association v Butland [2008] NSWADT 120 at [32] (Butland) and Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich). The Bar Council opposed the adjournment and contended that the matter ought proceed in the usual way on the basis of the facts in the instrument of consent. Ms Williams, who appeared on behalf of the Bar Council both in these proceedings and in the Tribunal, submitted that the plaintiff had misapprehended the effect of Butland and Ardalich. The Tribunal made directions as to the further conduct of the proceedings, including for written submissions and adjourned the proceedings for further hearing on 10 March 2015 at 2pm.

32. The plaintiff filed an outline of submissions dated 19 February 2015 in which she admitted (in [16]) that “the conduct complained of satisfies the objective definition of UPC [unsatisfactory professional conduct]” but submitted that the Tribunal ought not make findings to that effect because the conduct was wholly or principally caused by her mental illness. Her admission, in substance, reiterated earlier admissions she had made that her conduct, in respect of each ground in the application, amounted to unsatisfactory professional conduct.

33. At the adjourned hearing on 10 March 2015 the principal issue for the Tribunal was whether it ought make a finding of unsatisfactory professional conduct (as contended for by the Bar Council) or whether it ought refuse to make such a finding and dismiss the application pursuant to s 562(1) (as contended for by the plaintiff) by reason of her mental condition at the relevant time.

34. The Bar Council tendered the agreed facts (which were marked Exhibit AA). The agreed facts contained statements that the plaintiff admitted that she had engaged in unsatisfactory professional conduct as alleged in the three grounds in the application.

35. The relevant agreed fact regarding the plaintiff’s mental state (from which she did not resile and on which she relied) was, as expressed in Exhibit AA:

“During the period relevant to this proceeding, the Respondent [the plaintiff] was suffering from anorexia nervosa and Dr Skinner found in paragraph 93(l) of her report dated 31 October 2014 at page 17 that it is likely that her cognitive functioning was impaired by this condition. In addition, the physical symptoms of the condition caused or contributed to the Respondent’s lateness on the occasions referred to in paragraphs 6 and 7 above.”

The reasons of the Tribunal

37. At the conclusion of the hearing on 10 March 2015, the Tribunal reserved its decision. It made orders and published its reasons on 16 July 2015.

38. Having addressed the submissions of the parties, the Tribunal made findings to record its satisfaction pursuant to s 562 of the 2004 Act, as follows:

The statement of agreed facts

[51]   The Tribunal is of the view that the facts recorded in paragraphs 1 – 9 of the statement of agreed facts for ground A, show that the respondent’s conduct in presenting late for rostered duty during the relevant period fell 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. The Tribunal is of the view that the admissions made in paragraph 9 of the statement of agreed facts were properly made. Paragraph 9 is in the following terms:

The Respondent admits that her conduct in presenting late for rostered duty during the relevant period fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. The Respondent therefore admits that she engaged in unsatisfactory professional conduct.

[52]   The Tribunal is of the view that the facts recorded in paragraphs 10 – 19 of the statement of agreed facts for ground B, show that the respondent’s conduct in entering into the lease notwithstanding the conflict of interest, breached her fiduciary duties owed to her client; breached rule 16 of the NSW Barristers’ Rules (as applicable as at 31 May 2011) and thus fell 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. The Tribunal is of the view that the admission made in paragraph 19 of the statement of agreed facts for ground B was properly made. Paragraph 19 is in the following terms:

The Respondent admits that she engaged in unsatisfactory professional conduct by entering into the Lease in breach of her fiduciary duties and in breach of Rule 16.

[53]   The Tribunal is of the view that the facts recorded in paragraphs 21 – 34 of the statement of agreed facts for ground C show that the respondent’s conduct in continuing to act for her client notwithstanding the conflict of interest during the period from 5 October to 22 November 2011 breached her fiduciary duties owed to her client; breached rule 95 (b) of the New South Wales Barristers’ Rules (as then applicable) and thus fell 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. The Tribunal is of the view that the admission made in paragraph 34 of the statement of agreed facts for ground C was properly made. Paragraph 34 is in the following terms:

By acting for [her client] during that period in breach of her fiduciary duties and in breach of Rule 95 (b), the Respondent admits that she engaged in unsatisfactory professional conduct.”

39. The Tribunal found, in respect of Part A of the complaint, that the plaintiff’s psychiatric disorder “caused her lateness for court” ([80]).

40. The Tribunal then addressed the question whether, if it took “disciplinary action” against the plaintiff, s 581(1) would prevent its being recorded in the Register. This required a determination whether the action was taken because of the plaintiff’s inability, which arose wholly or partially from “infirmity, injury or mental or physical illness”. After summarising the medical evidence, the Tribunal expressed its conclusions, which included its reasons for not making a reprimand, as follows:

“[83]   The Tribunal concludes from this evidence that the respondent’s judgment was affected so that she did not appreciate that her physical disabilities were causing her to be late for court. In those circumstances the Tribunal is of the view that it is not appropriate that the respondent be reprimanded in respect of her conduct the subject of Part A of the complaint detailed in the application for original decision.

[84]   The Tribunal concludes from the medical evidence that the respondent’s judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct. In those circumstances the Tribunal is of the view that it would not be appropriate that she be reprimanded for her conduct set out in Part B or Part C of the complaint detailed in the application for original decision.

[85]   If the respondent’s judgment and cognition had not been affected, a reprimand would be an appropriate order to make.”

41. The Tribunal decided that, as no disciplinary action was being taken (within the meaning of s 576 of the 2004 Act), it was not necessary to make a declaration that the plaintiff was guilty of unsatisfactory professional conduct. It decided to make an order under s 64 of the CAT Act “having regard to the respondents’ [plaintiff’s] physical and mental conditions”.

42. The reasons of the Tribunal concluded with the following findings and orders:

Findings

[100]   Having considered all of the evidence and submissions, the Tribunal makes the following findings:

(1)   The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by arriving late for rostered duty as a member of the Specialist Domestic Violence Practitioner Panel on 13 occasions during the period 14 July 2010 to 21 December 2011, as set out in paragraphs 1 to 9 of the statement of agreed facts.

(2) The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by entering into a lease on 31 May 2011 with her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in breach of the Respondent’s fiduciary duty and Rule 16 of the New South Wales Barristers’ Rules (as then applicable) as set out in paragraphs 10 to 20 of the statement of agreed facts.

(3) The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by acting for her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) during the period 5 October 2011 to 22 November 2011 notwithstanding a conflict between the interests of her client and the interests of the Respondent, in breach of the Respondent’s fiduciary duty and Rule 95 of the New South Wales Barristers’ Rules (as then applicable) as set out in paragraphs 21 to 34 of the statement of agreed facts.

Orders

[101]   The Tribunal orders that:

(1)   For the purposes of these proceedings the name of the respondent is anonymised as BRJ;

(2)   The disclosure of the respondent’s name is prohibited;

(3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives; and

(4)   The proceedings be listed before the Registrar so that evidence and submissions can be placed before the Tribunal so that it can determine whether an order should be made that the respondent pay the costs of the Council of the New South Wales Bar Association.

(5)   The application is otherwise dismissed.”

Summary of the Tribunal’s approach in the present case

43. The Tribunal found that the plaintiff’s mental condition (and associated physical symptoms) caused her lateness for Court (Ground A) and that her judgment and cognition were affected by her mental condition such that she did not sufficiently understand her conduct and was not able to properly reason in relation to it. However, the Tribunal found that the conduct alleged in Grounds A, B and C in the application amounted to unsatisfactory professional conduct. It took into account the plaintiff’s mental condition in deciding: not to reprimand her; that the conduct would not appear on the Register; that her name ought be anonymised; and that the material ought not be published.

The appeal

44. In the “Statement of the Grounds Relied on” filed in support of the summons, the plaintiff stated that she appealed “against the findings in the decision of unsatisfactory professional conduct”. She set out the following grounds:

The medical evidence proved the plaintiff’s psychiatric condition caused the conduct leading to the complaint [paras 80, 83, 84 of judgment]. The Tribunal erred in law in regarding this evidence as irrelevant as to whether a finding of unsatisfactory professional conduct should be made [paras 17 and 42 of judgment].

The Tribunal erred in law in finding that the plaintiff engaged in unsatisfactory professional conduct where the conduct arose wholly or principally from the plaintiff’s psychiatric disorder [para 38 of judgment].

The Tribunal erred in law in its interpretation of NSW Bar Association v Butland [2008] NSWADT 120 [paras 17 and 42 of judgment].

The Tribunal erred in law in its application of Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 to this matter.

The Tribunal erred in law in failing to apply The Council of the Law Society of NSW v Kay [2009] NSWADT 139 and Council of the NSW Bar Association v Fitzgibbon [2012] NSWADT 56.

The Tribunal erred in law in admitting into evidence the affidavit of Alastair McConnachie where no issue was taken with the Tribunal’s jurisdiction to hear the Application for Determination and no issue was taken with the investigation carried out by the Council [para 50 of judgment].

45. At the hearing of the summons the plaintiff no longer pressed the sixth ground. The first five grounds are related, in that each turns on the meaning of “unsatisfactory professional conduct” and whether, and to what extent, a psychiatric condition is relevant to the question whether conduct amounts to unsatisfactory professional conduct.

The plaintiff’s arguments on appeal

46. The plaintiff ultimately submitted in this Court that:

1. the conduct in Grounds A, B and C of the application did not amount to unsatisfactory professional conduct irrespective of her mental condition;

2. in the alternative, the conduct in Grounds A, B and C of the application did not amount to unsatisfactory professional conduct because her mental condition deprived it of that characterisation; and

3. further and in the alternative, the Tribunal’s findings as to the connection between her mental condition and the conduct ought to have led it not to make findings of unsatisfactory professional conduct and, accordingly, its findings ought be set aside by this Court.

47. I propose to address the question whether it is open to the plaintiff to argue on this appeal that her conduct did not amount to unsatisfactory professional conduct before addressing the substance of the submissions.

Whether the plaintiff is entitled to argue that her conduct did not amount to unsatisfactory professional misconduct

48. The plaintiff accepted in the Tribunal that her conduct amounted to unsatisfactory professional conduct but resisted the making of findings to that effect. The plaintiff made the new submission for the first time in a written document entitled “Further Plaintiff Submissions” which was served on the Bar Council late on the evening before the hearing in this Court and which she handed up at the outset of the hearing. She said, in the written submission:

“Plaintiff does not admit that the conduct is even objectively UPC [unsatisfactory professional conduct] and only did so previously as the result of poor advice from a legal team that she terminated.”

49. The plaintiff contended that the characterisation of her conduct was a matter of law (the underlying facts being largely agreed) or a matter which could be considered on an appeal pursuant to s 75A of the Supreme Court Act. She submitted that, in those circumstances, she ought be permitted to withdraw her admissions in the Tribunal.

50. Ms Williams accepted, in the Tribunal, and in this Court, that, notwithstanding the plaintiff’s admissions recorded in the agreed facts, the Tribunal was obliged to satisfy itself that it was appropriate to make findings of unsatisfactory professional conduct: Prothonotary of the Supreme Court (NSW) v McCaffery [2004] NSWCA 470 at [12]; Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at [9]-[12] per Hodgson JA (Beazley and McColl JJA agreeing). This obligation applies even where the parties have agreed on the orders to be made by the Tribunal (which did not occur in the present case) if the Tribunal “considers it to be in the public interest” to complete a hearing in relation to the complaint: s 564(10).

51. On this basis, Ms Williams accepted that the admissions the plaintiff had made in the Tribunal were pieces of evidence which could be reviewed by this Court on this appeal, since the appeal was to be conducted in accordance with s 75A of the Supreme Court Act. Accordingly, although Ms Williams noted the plaintiff’s change in position, she acknowledged that, this matter having been raised by the plaintiff, this Court ought determine, as a matter of fact and law, whether the Tribunal was in error in finding that her conduct in Grounds A, B and C of the complaint amounted to unsatisfactory professional conduct.

52. In these circumstances, I am satisfied that it is necessary to address the substantive question: whether the plaintiff was guilty of unsatisfactory professional conduct. In this respect I am not at a disadvantage relative to the Tribunal in hearing the appeal since no oral evidence was called in the Tribunal. Although the plaintiff’s affidavits were read, she was not cross-examined.

53. As referred to above, the plaintiff also put the submission on appeal that, even if her mental condition was irrelevant to the characterisation of her conduct, it still did not amount to unsatisfactory professional conduct. She relied, in support of this submission on Council of the New South Wales Bar Association v Ghabrial [2010] NSWADT 306 (Ghabrial) and contended that her conduct was not as bad as the conduct in Ghabrial, which had not been found to be unsatisfactory professional conduct.

Whether the plaintiff was guilty of unsatisfactory professional conduct

54. I propose to address first the plaintiff’s primary argument that her conduct, even taken objectively, and excluding consideration of her mental condition, did not amount to unsatisfactory professional conduct.

Consideration of the grounds in the application

Ground A: lateness to court on several occasions

55. A single instance of lateness for court could be regarded as unfortunate and would not necessarily bespeak unsatisfactory professional conduct, particularly where it could be explained by an isolated or unforeseen event such as an accident or vehicle breakdown. In the present case, the sheer number of occasions on which the plaintiff arrived for court late required explanation.

56. The plaintiff’s failure to attend Court punctually had the effect of depriving her clients of the opportunity of giving her instructions and obtaining advice in a timely way in advance of their matters being called (and deprived the court of the assistance that such time might have afforded). It also meant that those who arranged the Women’s Domestic Violence Court Advocacy Service (which was funded by Legal Aid) were left in a position where the scheme was not operating as intended on the days when the plaintiff arrived late.

57. As emerged from the evidence before the Tribunal, the plaintiff was late because of physical consequences of her mental condition. I do not consider that the cause of her lateness (repeated as it was) deprived her conduct of its character as unsatisfactory professional conduct.

58. Members of the public are entitled to expect, as a base standard, that a legal practitioner will attend court at the appointed time. A repeated failure to do so falls short of the standard of diligence required. Although the plaintiff was not responsible for her mental condition, she was responsible for accepting the position as Duty Barrister for particular days and the corresponding obligation to arrive at court at the appointed time for the purpose of pre-hearing consultations. No error has been shown in the Tribunal’s finding.

Ground B: lease to the client

59. Ground B involved a breach of rule 16 of the New South Wales Barristers Rules. Conduct consisting of a breach of these rules is capable of being unsatisfactory professional conduct or professional misconduct: s 498(1)(a). In my view, no error has been shown in the Tribunal’s approach. Rules 16 and 95 are contained in the Barristers Rules for good reason: a barrister is required to be independent and to give independent, dispassionate advice to a client. The barrister must act in the interests of the client.

60. On 27 May 2011 the plaintiff was instructed by a client who was involved in proceedings under the Children and Young Persons (Care and Protection) Act in relation to the client’s child. Whether the client had stable accommodation was likely to be an issue in the proceedings. The client was endeavouring to demonstrate to the court that she had stable accommodation. On about 31 May 2011 the plaintiff, as landlord, granted to the client a six-month lease of premises at the rear of a residence which she owned. The premises did not have development consent for dual occupancy. Moreover, their use as a dual occupancy constituted a breach of an order made on about 29 December 2010 which required the plaintiff to stop using the room attached to her house for dual occupancy and to reinstate the room to its original state by 7 February 2011. The leased premises did not provide stable accommodation to the client.

61. There was in my view a clear conflict between the client’s interest in having stable accommodation and the plaintiff’s interest in earning income from the lease of the premises. I am satisfied that the plaintiff was in breach of rule 16. No error has been shown in the Tribunal’s approach to the question. Although the plaintiff’s medical condition may provide some explanation for her conduct (since it compromised her judgment), it did not deprive her conduct of its character as unsatisfactory professional conduct.

59. Members of the public are entitled to expect a barrister to act in the interests of their clients. They are also entitled to expect that a barrister will not exploit the client’s position (which in many cases, as here, is a relatively vulnerable one) for the barrister’s own advantage. The barrister’s conduct fell short of the standard of diligence required.

Ground C: continuing to appear for the client while taking steps to evict her

63. In the period from at least 5 October 2011 until 22 November 2011 the plaintiff continued to act for the client (to whom she had leased the premises) in the proceedings under the Children and Young Persons (Care and Protection) Act. At the same time she was seeking to terminate the lease and evict the client from the premises. The plaintiff was obliged by rule 95 to return the brief (which she ought not to have accepted or retained once the lease of the plaintiff’s premises to the client was proposed). Once again, the compromise of the plaintiff’s judgment by reason of her mental condition may explain her breach of the NSW Barristers Rules. However, her mental condition was not such as to render it any less a breach, or to deprive it of its character as unsatisfactory professional conduct.

Council of the New South Wales Bar Association v Ghabrial

64. As referred to above, the plaintiff relied on Ghabrial in support of the proposition that conduct arguably worse than hers was found not to amount to unsatisfactory professional conduct. In my view, comparisons between the facts of disciplinary cases tend not to be of assistance. The question in any case whether conduct amounts to unsatisfactory professional conduct (or, indeed, professional misconduct) turns on a consideration of the conduct by reference to the applicable statutory wording. Ghabrial involved facts very different from those alleged in Grounds A, B and C. That Ghabrial was found not to be guilty of unsatisfactory professional conduct provides no support for the plaintiff’s contention that her own conduct ought not be regarded as such.

Conclusion

65. In the present case, the plaintiff’s conduct as alleged in each of the three grounds plainly fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner. I am satisfied that no error has been shown in the Tribunal’s approach. Having conducted the matter as a rehearing, I am satisfied, on the basis of the primary facts set out in the agreed facts (and disregarding the plaintiff's admissions that her conduct constituted unsatisfactory professional conduct, which have been withdrawn), that the plaintiff was guilty of unsatisfactory professional conduct in the three respects alleged in Grounds A, B and C.

Whether the conduct in Grounds A, B and C of the application did not amount to unsatisfactory professional conduct because the plaintiff’s mental condition deprived it of that characterisation

66. The plaintiff submitted that her mental condition was relevant to the characterisation of her conduct as unsatisfactory professional conduct and that, by reason of the causal connection between her mental condition and the conduct, it did not amount to unsatisfactory professional conduct.

67. In support of this submission, she argued that, given that professional misconduct could be constituted by unsatisfactory professional conduct “where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence” (s 497(1)(a)), it would be both artificial and nonsensical to allow a mental condition to bear on whether conduct was professional misconduct, but exclude it from consideration on the question whether the conduct amounted to unsatisfactory professional conduct. The plaintiff relied on s 33 of the Interpretation Act 1987 (NSW) in support of the proposition that a construction ought be preferred that would promote the purpose. She submitted that such a distinction would not advance the purpose of the legislation.

68. Further, the plaintiff submitted that the Tribunal had not been referred to several authorities, which were in her favour, and which, properly analysed, had the effect that her mental condition deprived her conduct of the character of unsatisfactory professional conduct. She specifically relied on New South Wales Bar Association v Butland [2008] NSWADT 120 (Butland), Council of the Law Society of New South Wales v Kay [2009] NSWADT 139 (Kay) and Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56 (Fitzgibbon). Although the Tribunal had been referred to Butland, it had not been referred to either Kay or Fitzgibbon.

69. In order to address this submission it is necessary not only to review the authorities referred to in the submissions but also to consider the statutory background against which the decisions are to be read and the legislative history of the provisions in the 2004 Act which are germane to the appeal.

The legislative history of the definition of “unsatisfactory professional conduct” in the 2004 Act

70. The statutory predecessors of the 2004 Act are, relevantly, the Legal Profession Act 1898 (NSW) (the 1898 Act) and the Legal Profession Act 1987 (NSW) (the 1987 Act).

The 1898 Act

71. The 1898 Act made provision, in Part X, for a “Solicitors’ Statutory Committee”: s 75. Section 76 provided that the Court or the council (of the Law Society) could refer to the Statutory Committee for enquiry “any question as to the professional misconduct of any solicitor”. Section 77 conferred jurisdiction on the Statutory Committee to hear the charge, and if made out, to make an order as to striking off the roll or suspending from practice, or imposing a fine or reprimand. The inherent jurisdiction of this Court over legal practitioners was preserved by s 79.

72. The 1898 Act made no provision for “unsatisfactory professional conduct” and did not define “professional misconduct”. Professional misconduct at common law was understood as connoting conduct that would reasonably be regarded as disgraceful or dishonourable by one’s peers. This definition derived from Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (Allinson), which concerned a statutory term that applied to the medical profession, but was adopted by the common law for professional misconduct in the legal profession: see the summary in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [36]-[51] per Spigelman CJ (Mason P and Handley JA agreeing).

The 1987 Act

73. The 1987 Act, which repealed and replaced the 1898 Act, introduced the concept of unsatisfactory professional conduct, being conduct that fell short of professional misconduct but which was nonetheless unsatisfactory and could give rise to disciplinary sanctions. Section 127 of the 1987 Act relevantly provided:

“127 Professional misconduct and unsatisfactory professional conduct

(1) For the purposes of this Part, professional misconduct includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

. . .

(2) For the purposes of this Part:

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) 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 legal practitioner.”

74. The 1987 Act expressly preserved the inherent jurisdiction of this Court over legal practitioners.

The 2004 Act

75. The 2004 Act, which repealed and replaced the 1987 Act, preserved the distinction created by the 1987 Act between professional misconduct and unsatisfactory professional conduct in the definitions (as set out above) in s 496 (unsatisfactory professional conduct) and s 497 (professional misconduct). It added s 498 which listed categories of conduct said to be capable of being either unsatisfactory professional conduct or professional misconduct.

76. Section 171M of the 2004 Act expressly preserved the inherent power or jurisdiction of the Supreme Court with respect to the discipline of legal practitioners.

Decisions referred to by the parties as bearing on the relevance of the practitioner’s subjective mental condition

77. It is convenient to address the decisions referred to by the parties and the Tribunal in chronological order.

Robinson v The Law Society of New South Wales

78. In Robinson v The Law Society of New South Wales (Supreme Court of New South Wales, Court of Appeal, unreported, 17 June 1977) (Robinson) the Court of Appeal heard an appeal under the 1898 Act from the Statutory Committee which had found Robinson guilty of professional misconduct. The Court held that, although it was entitled, in the exercise of its inherent jurisdiction, to consider fitness to practice even in the absence of professional misconduct, the Statutory Committee’s powers depended on its being satisfied that the practitioner was guilty of professional misconduct, by reason of the wording of the Act that conferred jurisdiction on the Committee (see s 76 of the 1898 Act, referred to above).

79. The Court of Appeal allowed Robinson’s appeal on the basis of his mental impairment (arising from alcohol intoxication). Chief Justice Street (Moffitt P and Glass JA agreeing) said:

“In the present case the medical evidence did establish a degree of impaired judgment to such an extent as, in my view, to preclude the appellant’s conduct being categorised as “professional misconduct” within the full import of those words (Re Hodgkiss 62 SR 340). His mental condition was such as to prevent it being held against him that his conduct was dishonourable and disgraceful.”

80. In Robinson the practitioner’s mental condition was relevant to whether conduct constituted professional misconduct since the definition depended on the view of others (in the profession) that the conduct was dishonourable or disgraceful. Robinson illustrates the relevance of subjective matters such as mental illness which are capable of preventing conduct that is objectively reprehensible from being classified as “professional misconduct” where the moral culpability of the proponent is thereby reduced.

Legal Practitioners Conduct Board v Ardalich

81. Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich) concerned an application by the Legal Practitioners Conduct Board (the Board) to the Full Court for an order that Ardalich’s name be removed from the roll. The Board had received reports from the Legal Practitioners Disciplinary Tribunal which had found the practitioner guilty of 27 counts, some of which involved misappropriation of client’s money. It was common ground that the practitioner had committed the acts said to constitute unprofessional conduct.

82. The Legal Practitioners Act 1981 (SA) (the SA Act) referred neither to professional misconduct nor to unsatisfactory professional conduct. Rather it referred to “unprofessional conduct” which was defined, by s 5(1) of the SA Act, to mean:

“(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or

(b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;”

83. The Full Court held as follows (per Perry ACJ, Duggan and Anderson JJ agreeing):

“[42] The admissions made by the practitioner as to his commission of the objective facts associated with each of the counts was sufficient to justify the finding of unprofessional conduct with respect to each count.

[43] The practitioner’s mental state, serious though it was, could not deflect the Tribunal from a finding that the charges of unprofessional conduct were made out once the objective facts were proved or admitted. What would otherwise amount to unprofessional conduct does not cease to be such, by reason of the existence of a mental illness on the part of the practitioner, which had the potential to establish a mental impairment defence under Pt 8A of the CLCA (Criminal Law Consolidation Act).

[44] The disciplinary provisions of the Act which come into play upon a finding of unprofessional conduct reflect the interests of the public in ensuring that legal practitioners answer to the high standards of probity and competence which must be observed if the integrity of the administration of justice is to be preserved.

[45] Mental illness of a practitioner which may cause or contribute towards his commission of acts constituting unprofessional conduct cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary orders should be made.”

84. The Full Court agreed to order that Ardalich’s name be struck from the roll.

New South Wales Bar Association v Butland

85. Butland concerned an application to the ADT by the Bar Association under the 2004 Act concerning complaints that were alleged to amount to professional misconduct or, in the alternative, unsatisfactory professional conduct. Butland accepted that the conduct amounted to unsatisfactory professional conduct but denied that it amounted to professional misconduct. Accordingly, the issue for the ADT was whether, as the Bar Council contended, the conduct amounted to professional misconduct, or whether, as Butland contended, the conduct amounted only to unsatisfactory professional conduct.

86. The barrister sought to excuse his conduct on the basis that it resulted, at least in part, from Borderline Personality Disorder which made him more inclined to act impulsively or carelessly and to react poorly to stress.

87. The ADT noted that the medical evidence did not go as far as to suggest that the barrister’s mental condition was such that he was not able to control his actions. The Bar Association submitted, on the basis of Ardalich, that the barrister’s mental condition was irrelevant to the question whether he was guilty of professional misconduct or unsatisfactory professional conduct. The ADT rejected this submission, commenting that it went too far, and referred to Allinson and considered that the judgment whether conduct would reasonably be regarded as disgraceful or dishonourable would need to take into account all relevant factors, including the mental state of the perpetrator.

88. At [41] the ADT referred to the “primary function” of disciplinary proceedings as:

“the protection of the public and the administration of justice by ensuring that that practitioners live up to the high standards expected of them whatever their personal circumstances or difficulties.”

Council of the Law Society of New South Wales v Kay

89. In Kay the ADT heard an application by the Law Society under s 562 of the 2004 Act in which it was alleged that Kay, a solicitor, was guilty of professional misconduct in that he had misappropriated trust funds and wilfully breached s 255 of the 2004 Act (which makes provision for holding, disbursing and accounting for trust money).

90. The evidence established that, in 2003, Kay was the victim of a violent, life-threatening assault, as a result of which he suffered depression and other psychiatric injuries. The ADT expressed its conclusion on the medical issue relevantly as follows:

“[45] . . . The question is: did the Respondent, at the time of the impugned transactions, know what he was doing and understood the consequences of what he was doing?. . . However, it is plain to this Tribunal that the Respondent, in relation to the various impugned transactions, did in fact know the nature and quality of his acts, knew the consequences thereof and those conclusions seem to us to firstly, not require this Tribunal to send the matter off to the Supreme Court, and secondly, enable this Tribunal to deal with the whole of the application as placed before us, including the making of dispositive orders.

[46] In these circumstances it is clear that the Respondent has misappropriated the sum of $20,175.00 on the facts as set out above and has clearly breached Section 255. . .

[47] The Tribunal finds that the Respondent has misappropriated trust funds and breached Section 255. He is guilty of professional misconduct. He knew what he was doing and understood the consequences of what he was doing. The Tribunal also finds the Respondent guilty of unsatisfactory professional conduct in relation to the non-payment of counsel’s fees. The Tribunal also finds that the Respondent not fit to practice having regard to his current mental state and the psychiatric evidence that has been tendered. The Respondent is not a fit and proper person to remain on the roll.”

91. The ADT then addressed (in observations which can only be regarded as obiter) an argument by the Law Society that, if it was satisfied that the practitioner did not have the requisite intent, it could not find professional misconduct and would not have jurisdiction but would have to refer the matter to the Supreme Court (see [48]). The ADT, in [49]-[50], referred to s 562 and the circumstance that its jurisdiction to make orders depended on a finding of professional misconduct or unsatisfactory professional conduct. The ADT said, in conclusion, at [50]:

“The reason for this submission is simple: if the Respondent was found to have been not guilty of professional misconduct because he lacked the relevant mental intent, then this Tribunal was deprived of statutory jurisdiction and the only Court that could determine fitness to practice in the circumstances where no professional misconduct has been found could only be the Supreme Court exercising its inherent jurisdiction. The reason for this is also simple: Legal Profession Act Section 562 deprives the Tribunal of any sort of inherent jurisdiction simply because it is only able to make dispositive orders if the Tribunal is “satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct” and not otherwise. If the relevant mental intent is lacking because there was a “degree of impaired judgment” within Robinson then there must be a finding of no unsatisfactory professional conduct or professional misconduct.”

92. Paragraph [50] may be regarded as unexceptional, save for the final sentence, which I consider to be incorrect. As appears from the reasons given above, Robinson concerned only professional misconduct (unsatisfactory professional conduct not having been introduced until the 1987 Act commenced) in respect of which it was accepted that impaired judgment was relevant, since the common test for professional misconduct (which applied under the 1898 Act) depended on the views of one’s peers. In so far as the last sentence of [50] says, or suggests, that no finding of professional misconduct (as presently defined in the 2004 Act) or unsatisfactory professional conduct can be made if there is a “degree of permanent impairment” it is incorrect; inconsistent with authority and with the decision of the ADT in Butland; and ought not be followed.

Council of the New South Wales Bar Association v Fitzgibbon

93. Fitzgibbon concerned an application by the Bar Council in the ADT alleging that Fitzgibbon was guilty of unsatisfactory professional conduct in connection with preparation of submissions (ground 1) and an appearance in the Court of Criminal Appeal (ground 2).

94. Fitzgibbon relied, in part, on evidence from his treating psychiatrist to the effect that at the time of the oral hearing he suffered a temporary impairment of brain function due to the rebound effect of Ritalin, a drug which he was prescribed for Attention Deficit Hyperactivity Disorder (ADHD).

93. The ADT found that the barrister was guilty of unsatisfactory professional conduct with respect to the first ground but otherwise dismissed the application.

94. When considering the first ground, the ADT said, of present relevance:

“[56]   We acknowledge that from May to November 2007 the barrister faced a great number of stresses including physical and mental ill health both of himself and members of his family. Such matters can be relevant to whether a finding of unsatisfactory professional conduct should be made (New South Wales Bar Association v Butland (2008) NSWADT 120 at [37]) but usually only if they are such as to render the practitioner incapable of controlling his or her conduct (see Butland at [39]). As noted in that case at [41], however, the primary function of disciplinary proceedings is the protection of the public and the administration of justice by ensuring that practitioners live up to high standards expected of them whatever their personal circumstances and difficulties.

. . .

[58]   We do not accept that the failure to meet the appropriate standard is excused by the barrister's distressing personal circumstances at the relevant time. We find that given the period of time the barrister had to reflect on and revise his written submissions they do fall short of the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. So much was conceded in the barrister's Further Amended Reply. This finding does not mean we do not accept that the barrister's personal circumstances hindered his ability to prepare written submissions which were of an appropriate standard.”

97. Although the ADT cited Butland as standing for the proposition that mental ill health could be relevant to whether a finding of professional misconduct ought be made, this question did not arise for consideration in Butland since the only question was whether the conduct amounted to professional misconduct, it being accepted that it amounted to unsatisfactory professional conduct. If the words “unsatisfactory professional conduct” in [56] were intended to read “professional misconduct”, then the sentence correctly reflects what was said by the ADT in Butland. If it stands as reported, it is incorrect.

Summary of principles

98. Each case must turn on its facts and the application of the statutory words. In endeavouring to draw some principles from these decisions, I am conscious of the warning given in New South Wales Bar Association v Cummins by Spigelman CJ (Mason P and Handley JA agreeing) who said:

“[50] It has not generally been useful or necessary to distinguish the terminology of “professional misconduct” from other phrases such as a “fit and proper person”, “good fame and character”, “unprofessional conduct”, “unsatisfactory professional conduct” etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology.

[51] The words “professional misconduct” are broad and general words. Theirmeaning may vary from one context to another.”

99. Having regard to the importance of context and the need to avoid pedantry (both of which are emphasised in the passage set out above), the following principles can be derived from the wording of the 2004 Act and the decisions referred to above.

100. The language of the definition of “unsatisfactory professional conduct” is apt to connote that the test is an objective one. In these circumstances the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct. However, where the conduct contains a mental element (such as in Kay where the allegation in the complaint was that he had “wilfully” breached s 255 of the 2004 Act), the test is not entirely objective, since a mental condition may affect the question whether conduct is “wilful”.

101. Where the question is whether certain conduct amounts to “professional misconduct”, the relevance of a mental condition will depend on the species of professional misconduct. For example, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner’s mental condition may not be relevant.

102. The mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question what orders ought be made as a consequence of a finding of professional misconduct or unsatisfactory professional conduct.

Whether the Tribunal ought to have made findings of unsatisfactory professional conduct (on the assumption that the conduct correctly bore that characterisation)

103. The plaintiff accepted that the primary purpose of disciplinary proceedings was to protect the public but argued that the making of findings in her case (by reason of her mental condition) did not advance that purpose. She submitted that, with respect to a practitioner who suffered from a mental condition, the appropriate way of dealing with conduct affected by the mental condition was at the stage of determining whether to issue a practising certificate, or suspending the right to practise or imposing conditions on the right to practise.

104. In my view, no error has been shown in the Tribunal’s approach. It was obliged to conduct a hearing in relation to the Bar Council’s complaints against the plaintiff and to determine, pursuant to s 562(1) of the 2004 Act, whether it was satisfied that the practitioner had engaged in unsatisfactory professional conduct, as alleged in the complaint. If satisfied, it was required to consider whether to make orders under s 562, which include, in s 562(6) making an alternative finding (professional misconduct when only unsatisfactory professional conduct alleged; or vice versa). Although the Act does not, in terms, oblige the Tribunal to express its determination in terms of a “finding” (or, indeed, to make a declaration, which the Tribunal was not disposed to do in the present case), the Act contemplates that it will do so, as a necessary step to invoke its power under s 562 to make other orders, consequent on its determination.

105. I do not accept the plaintiff’s submission that there was no purpose to be served by the Tribunal’s making of findings in accordance with its reasons. As referred to above, one of the purposes of the discipline of the legal profession, as expressly provided for in s 494(1) of the 2004 Act, is “for the protection of . . . the public generally”. The “protection of the public” is regarded as the principal purpose of disciplinary proceedings, which are sui generis: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251.

106. The protection of the public is advanced, not merely by regulating those who are entitled to practise and removing from practise those who are no longer fit, but also by educating the profession, and the public, as to the applicable standards of professional conduct (and personal conduct where it bears on the profession); and maintaining public confidence in the legal profession: New South Wales Bar Association v Cummins at [22]. The making of findings serves an important educative role, particularly where, as here, no disciplinary action is taken notwithstanding that a practitioner has been found guilty of unsatisfactory professional conduct.

107. I note for completeness (although it does not arise in the present case) that where a barrister’s name is removed from the roll the making of findings has additional importance since, if the barrister ever applies for readmission, the Court which considers that application will have available to it all relevant findings: see the authorities summarised in New South Wales Bar Association v Cummins at [24]-[26] and Council of the New South Wales Bar Association v Power at [9]-[12].

108. I am not persuaded that this Court should set aside the findings of the Tribunal. It was appropriate that they be made to record formally the Tribunal’s satisfaction that the plaintiff had engaged in unsatisfactory professional conduct as particularised in the application. Their making was consistent with, and advanced, the purposes of protection of the public in that the findings served to educate the public and the profession as to the appropriate standards, as well as to restore public confidence in the profession.

Summary of consideration of the grounds of appeal

109. Because I consider the grounds of appeal to overlap, I have dealt with them compendiously in the reasons set out above. However, I propose to set out, in summary form, my conclusions with respect to each ground, notwithstanding the inevitable repetition.

First ground of appeal: the Tribunal erroneously regarded the medical evidence as irrelevant to the question whether the complaint was made out

110. This ground has not been made out. In the circumstances of this case, the Tribunal was entitled to consider that the plaintiff’s mental condition was not such as to deprive the alleged conduct of the character of unsatisfactory professional conduct, since the statutory test is an objective one. The Tribunal made it clear in [38] that it was satisfied that the plaintiff’s conduct as alleged in the application fell short of the requisite standard “even if that conduct arose wholly or principally from the [plaintiff’s] psychiatric disorder”. To that extent, the Tribunal took into account the medical evidence.

Second ground of appeal: the Tribunal erred in finding unsatisfactory professional conduct when the conduct arose wholly or principally from her psychiatric disorder

111. The Tribunal considered that the conduct comprised in Ground A was caused by her psychiatric disorder ([80]). It considered that the conduct in Ground B and C resulted from her compromised judgment and cognition as a consequence of her psychiatric condition ([84]). These matters did not bring her conduct outside the definition of unsatisfactory professional conduct. This ground has not been made out.

Third ground of appeal: the Tribunal erred in interpretation of Butland

112. In my view the Tribunal’s interpretation of Butland was orthodox and correct. It was entitled to take the medical evidence into account in determining whether to make an order under s 562, but disregard it when determining whether the plaintiff was guilty of unsatisfactory professional conduct. In any event, as I have said with respect to the first ground of appeal, the Tribunal did have regard to it but did not consider that it affected the characterisation of the plaintiff’s conduct.

Fourth ground of appeal: the Tribunal erred in its application of Ardalich

113. For the reasons given above, Ardalich is of illustrative significance only because of the different wording of the relevant legislation in South Australia. To the extent to which the Court regarded mental condition as irrelevant, its approach was consistent with Butland. No error has been shown.

Fifth ground of appeal: alleged failure to apply Kay and Fitzgibbon

114. For the reasons given above, Kay and Fitzgibbon (to which the Tribunal was not referred) do not, properly analysed, support the proposition for which the plaintiff contended. In so far as the plaintiff relied on the final sentence of [50] in Kay, I have already explained why I consider that sentence not to state the law correctly. The reasons of the ADT in Fitzgibbon appears to contain an error, or misreading, with respect to Butland but this is sufficiently clear from a fair reading of Butland. No error in the Tribunal’s approach has been shown. This ground has not been made out.

Orders

115. I make the following orders:

1. Dismiss the summons.

2. Subject to an application for a different order being made to my Associate in writing within seven days hereof, order the plaintiff to pay the first defendant’s costs of the proceedings.

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Decision last updated: 29 February 2016