Connop v Law Society Northern Territory
[2016] NTSC 38
•8 June 2016
Connop v Law Society Northern Territory [2016] NTSC 38
PARTIES:CONNOP, Wayne
v
LAW SOCIETY NORTHERN TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:LA 3 of 2016 (21610276)
DELIVERED: 8 June 2016
DATE PUBLISHED: 15 July 2016
HEARING DATES: 11, 12 April, 16 May, 1 June 2016
JUDGMENT OF: HILEY J
CATCHWORDS:
LEGAL PRACTITIONERS (NORTHERN TERRITORY) – Appeal – cancellation of unrestricted practising certificate – fit and proper person – suitability matters – duty to administration of justice –duty of full and frank disclosure – duty of candour – undertakings to the Court – duty to the client – obligation to be open and frank in dealings with the Law Society – failure to comply with special conditions of unrestricted practicing certificate – trust account irregularities and notification failures - lack of oversight of trust account and invoicing – failure to provide Continuing Professional Development declaration – failure to provide trust account statements or final accounting – trust monies not properly accounted for – misleading costs agreements – failure to comply with conditions on stay pending appeal – conduct falling short of reasonably competent legal practitioner – failure to disclose complaint when applying for unrestricted practicing certificate – misleading statements in affidavits and in court – unreliable witness.
Legal Profession Act 2006 (NT) s 4, s 6(a), s 11, (1)(a), (f)-(g), s 47, s 47(2)(a)-(f), s 54(2), s 56, s 57, (2), s 70(3), s 78, s 89(1), s 89(5), s 122(1), (5)-(6), s 123, s 125(3), s 247(1), (3), s 252, s 254, s 256, s 257, s 265(1), s 270, s 303, s 305, s 325, s 330, s 475, s 475(1), (6), s 476(2), s 488, s 540, s 621(1), (3), s 689-695.
Legal Profession Regulations 2007 (NT) r 7(1)-(3), r 47(2)(c), r 51, r 55(2)(b), r 63(1) and (5)-(6), r 68(3)-(4), r 72, r 73, r 77.
Rules of Professional Conduct and Practice 2005 (NT) r 17.6, .7, r 32, r 32.2, p 7, p 13.
Criminal Code (NT) s 96.
Briginshaw v Briginshaw (1938) 60 CLR 336; In re John Cameron Foster (1950) 50 SR (NSW) 149; Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655; Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 110; New South Wales Bar Association v Livesey [1982] 2 NSWLR 231; New South Wales Bar Association v Murphy (2002) 55 NSWLR 23; Re Deo (2005) 16 NTLR 102; Re Hampton [2002] QCA 129, applied.
Barakat v The Law Society of NSW [2014] NSWSC 773; Barlow v Law Society of the ACT [2013] ACTSC 68; Builders’ Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616; Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75; Copini [1994] NSWLST 25; D’Alessandro & D’ Angelo v Bouldas (1994) 10 WAR 191; Dennis v Law Society of New South Wales (Court of Appeal, 17 December 1979, unreported); Heydon v NRMA Ltd (2000) 51 NSWLR 1; In the matter of an application by Julian Valvo [2014] NTSC 27; In the matter of an application by Mariel Jessica Sutton [2016] NTSC 9; Law Society of NSW v Foreman (1991) 24 NSWLR 238; Melliphant v Attorney-General for the State of Queensland (1991) 173 CLR 289; NSW Bar Association v Cummins (2001) 52 NSWLR 279; Re Application by Saunders (2011) 29 NTLR 204; Re B [1981] 2 NSWLR 372; Re Gadd [2013] NTSC 13; Re OG (A Lawyer) (2007) 18 VR 164; Rogers v Whitaker (1992) 175 CLR 479; Sommer v Coates Hire Operators Pty Ltd [2015] NTMC 28 (11 December 2015); Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93; The Prothonotary Supreme Court of NSW v Darveniza (2001) 121 A Crim R 542; Thomas v Legal Practitioners Admission Board (2005) 1 Qd R 331; Truong v The Queen [2015] NTCCA 5; Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669; Wentworth v NSW Bar Association (1992) 176 CLR 239, referred to.
ABA-ALI Committee on Continuing Professional Education Model Peer Review System 11 (Discussion Draft, 15 April 1980).
G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013).
REPRESENTATION:
Counsel:
Appellant:D Baldry and P Hanlon
Respondent: S Brownhill SC and W Roper
Solicitors:
Respondent: Law Society Northern Territory
Judgment category classification: B
Judgment ID Number: Hil1603
Number of pages: 177
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWINConnop v Law Society Northern Territory [2016] NTSC 38
No. LA 3 of 2016 (21610276)
BETWEEN:
WAYNE CONNOP
Appellant
AND:
LAW SOCIETY NORTHERN TERRITORY
Respondent
CORAM: HILEY J
REASONS FOR JUDGMENT
(Delivered 15 July 2016)
Introduction
Summary of main contentions
Relevant legal principles
Nature of the appeal
Cancellation of a practicing certificate
Obligations of legal practitioners
Duties to the Court
Disclosure obligations and candour
Undertakings to the Court
Duties to the client
Dealings with the Law Society
Compliance with Special Conditions of UPC
SCs 3.2 and 3.3
SC 3.4
SC 3.7
Conclusions
Conduct in relation to clients
Unsatisfactory professional conduct re Williamson
Failure to pay the Williamson fine
Unresolved Complaints
Complaint by Dorothy Fox
Complaint by Anne-Louise Ray
Complaint by Brendan Loizou
Costs agreement, tax invoices and trust accounting
Reliance upon the bookkeeper.
Ceasing to act
Trust account statement not provided
Final accounting provided on 28 May 2016
Complaint by Pieter Bekkers
Costs agreements
Complaint by Craig Somer and Work Health Court orders
Misleading website
Complaint by Ms Hall
Representation of Joshua Hes
Written submissions to the Court
What the appellant told the judge about this mitigating factor
Pressed for time and late service of Crown’s submissions
Relevant comparative sentences
Expert evidence
Good outcome for his client
Conclusions
Trust account irregularities and notification failures
Trust account irregularities
Trust account statements 25 May 2016
Trust account drawings and overdrawings
Other notification failures
Conclusions
Disclosure Obligations - NAAFVLS
Affidavit of 8 March 2016
Application for UPC in June 2012
Reasons for not disclosing
Conclusions
Other matters
Failures to comply with time limits
Failure to provide CPD declaration
Failure to make ILP notification
Application for RBSPC as employed “ILP solicitor director” and the sale to Ms Gray
Appellant’s attempts to comply and improve his fitness to practice
Mr Hutton’s reports
Report of 7 April 2016
Report of 27 May 2016
Conclusions
Assistance of LeMessurier Harrington and Mr Maley
Attendance at Practice Management Course in NSW in May
Course on Costs Agreements and General Costs Communication
Conclusions
Conduct in these proceedings
Compliance with stay conditions
Order 1(c)
Order 1(e)
Order 1(h)
Orders 1(i) & (j)
Order 1(o)
Conclusions
Undertakings to the Court
The appellant’s performance as a witness
Inappropriate avoidance of responsibility
Findings and Conclusions
Other matters
Reference to DPP
UPC with special conditions
Orders
Introduction
This is an appeal against the decision by the Law Society Northern Territory (the Law Society) to cancel the appellant’s unrestricted practising certificate (UPC).[1]
On 8 June 2016 I dismissed the appeal and declared that Mr Connop is not a fit and proper person to hold an unrestricted practising certificate. These are my reasons.
The appellant obtained a Bachelor of Laws at the Australian National University in 2003 and was admitted as a legal practitioner later that year. He held a restricted practising certificate in the Northern Territory from 5 November 2004 until 1 July 2010 when he was first issued with a UPC. He was issued with UPCs each year thereafter including on 1 July 2015.[2]
His UPC issued with effect from 1 July 2015 (UCP 2015/16) was issued subject to certain special conditions (SCs) imposed pursuant to ss 54(2) and 70(3) of the Legal Profession Act 2006 (NT) (LPA).[3] The conditions related to the conduct of monthly reviews of the appellant’s management of his law practice (focussing on costs disclosure, billing and trust monies), and a quality practice review of the appellant’s law practice.[4] The Law Society’s reasons for imposing the SCs included a number of complaints made against him in the preceding 12 months, various overdue trust accounting notifications, and three trust account transactions made without any supporting evidence.[5] The Law Society concluded that the appellant was struggling to meet aspects of the regulatory requirements for operating his legal practice and that this presented as a serious risk to consumers of his legal services.
SCs 3.2 and 3.3 required the appellant to provide to his existing clients and any new clients written notification that a person may be reviewing his files and requesting written consent for their file to be so reviewed. He was to do that within seven days of the issue of the UCP 2015/16, that is, by 20 October 2015. SC 3.4 required the appellant to provide the appointed Reviewer with “a list of all client matters and all client matters closed within the preceding month” no later than 14 days after being notified of the Reviewer’s appointment.[6] The appellant’s failure to comply with these special conditions delayed the Reviewer undertaking his initial review of the appellant’s legal practice.[7]
On 17 December 2015, the Law Society decided to consider action to cancel the appellant’s UPC and directed that he be notified pursuant to s 57 of the LPA.[8] He was notified on 21 December 2015,[9] and responded on 13 January 2016.[10]
On 21 January 2016, the Reviewer provided a report to the Law Society following his initial review of the appellant’s legal practice.[11] The Reviewer noted that the appellant had still not complied with SCs 3.2 and 3.3[12] and that the main issue affecting the appellant’s management of his legal practice was the absence of administrative support, which the practice could not afford.
On 28 January 2016, the Law Society decided to cancel the appellant’s UPC with effect from 26 February 2016 (the decision to cancel).[13] The Law Society’s reasons for that decision were provided to the appellant on 1 February 2016.[14] By this proceeding, the appellant appeals to this Court from that decision.
On 24 February 2016 the appellant sought an order staying the decision to cancel, and sought and was granted abridgments of time so the application could be heard on 26 February 2016. I granted a stay and made orders on 29 February 2016 which contained a significant number of conditions upon which the appellant could continue to practice, until further order (the stay orders).
I set the matter down for hearing on 11 April 2016 and made orders for the filing and exchange of an amended notice of appeal and further affidavit material. Affidavits were filed on behalf of both the appellant[15] and the respondent[16], and detailed written submissions were provided by both parties.[17]
At the hearing on 11 and 12 April 2016 the appellant was cross-examined by senior counsel for the Law Society, Ms Brownhill SC. The matter was adjourned to enable the parties to provide supplementary written submissions.[18] Any additional oral submissions were to be made on 1 June 2016.
On 16 May 2016 the appellant sought and was granted leave to adduce further evidence and to be excused from an undertaking he had given to the Court to attend a Practice Management Course to be conducted by the Queensland Law Society in Brisbane on 2-4 June 2016.[19] On 1 June 2016, prior to the hearing of the oral submissions, the appellant was given leave to adduce further evidence in the form of another affidavit sworn by him on 27 May 2016 and he was further cross-examined by senior counsel for the Law Society.
Summary of main contentions
The appellant contended throughout that the Law Society was wrong to cancel his UPC, or alternatively that the Court should now find him to be a fit and proper person to hold a UPC and if thought appropriate, impose conditions upon his UPC.
The respondent, the Law Society, contended that the appellant is not a fit and proper person to hold a UPC, that the imposition of conditions upon his UPC is not open if the Court finds he is not a fit and proper person to hold a UPC and that imposition of the conditions proffered by the appellant[20] is not consistent with the provisions of the LPA or sustainable in the medium to long term, and that the appeal should be dismissed, with costs.
Prior to the hearing of the appeal in April 2016 the Law Society referred to the following matters as demonstrating that the appellant is not a fit and proper person to hold a UPC:
(a)the appellant’s failures to comply with the SCs of his UPC, and the Reviewer’s observations regarding the appellant’s legal practice;
(b)the Law Society’s finding on 13 August 2015 of unsatisfactory professional conduct in relation to a complaint by Monica Williamson;
(c)the appellant’s failure to pay the fine ordered in relation to that finding of unsatisfactory professional conduct;
(d)complaints by Dorothy Fox, Anne Louise Ray, Brendan Loizou and Pieter Bekkers, and the appellant’s responses thereto;
(e)a complaint by Craig Sommer, findings and orders of the Work Health Court, and the appellant’s responses thereto;
(f)a letter from Justice Kelly in relation to the appellant’s representation of Joshua Hes in the Supreme Court, and the appellant’s responses thereto;
(g)irregularities in respect of the appellant’s trust accounts, the appellant’s failures to comply with the regulatory requirements for notifications in respect of trust accounts and the appellant’s responses to the Law Society’s concerns about those matters;
(h)the appellant’s failure to notify the Law Society regarding his purported practice as an incorporated legal practice (ILP) as required by s 122 of the LPA;
(i)the appellant’s recent application for a restricted (barrister and solicitor) practising certificate[21] (RBSPC) which asserts that he would be employed as an “ILP solicitor director”;
(j)the appellant’s failure to comply to the letter with the conditions imposed by the Court upon the stay of the Law Society’s decision to cancel his UPC.
Following the hearing of the appeal on 11-12 April 2016 and the re-opening of the appeal on 1 June 2016, the Law Society identified further matters which it submitted also demonstrate that the appellant is not a fit and proper person to hold a UPC. Many of these further matters arose out of cross-examination of the appellant.
Relevant legal principles
Nature of the appeal
Despite some of the grounds and the form of the relief sought in the Amended Notice of Appeal filed on 4 March 2016, the parties agreed[22] that the appeal from the Law Society’s decision pursuant to s 89(1)(c) of the LPA is an appeal de novo.[23] Essentially, the Court stands in the shoes of the Law Society, exercising original jurisdiction, and determines whether the appellant’s UPC should be cancelled.[24] Following the hearing of the appeal the Court may make the order it considers appropriate (s 89(5) LPA). Since s 57(2)(c) of the LPA permits the Law Society to cancel, suspend or amend the UPC, it would be open to the Court on the appeal to take any or none of those actions, as it considers appropriate.
While much of the focus was on the various concerns expressed by the Law Society when it made its decision, I need to take into account other matters, especially events that have, or have not, occurred since the decision to cancel made by the Law Society on 28 January 2016. This includes matters arising out of the cross-examination of the appellant on 11-12 April 2016 and 1 June 2016, and the submissions made on his behalf.
The respondent accepts that it bears the onus of proof of the ultimate issue in the proceedings, namely that the appellant is not a fit and proper person to continue to hold a UPC, but there is the usual shifting evidentiary onus.[25] The Law Society also accepts, and I agree, that the standard of proof is on the balance of probabilities, and that the Briginshaw test[26] is applicable to allegations made regarding the appellant’s conduct (and his explanations therefor).
Cancellation of a practicing certificate
The grounds for cancelling a local practising certificate[27] are (relevantly) that the holder is no longer a fit and proper person to hold the certificate (s 56(a) LPA). Various matters may be taken into account in considering whether a person is a fit and proper person to hold a local practising certificate (s 47 LPA). They include:
(a)any “suitability matter” relating to the person (defined by reference to s 11 LPA);
(b)whether the person obtained an Australian practising certificate because of incorrect or misleading information (s 47(2)(a) LPA);
(c)whether the person has contravened a condition of an Australian practising certificate held by the person (s 47(2)(b) LPA);
(d)whether the person has contravened the LPA or the Legal Profession Regulations 2007 (NT) (LPRs) (s 47(2)(c) LPA);
(e)whether the person has failed to pay a required contribution or levy to the Fidelity Fund or other costs or expenses for which the person is liable under the LPA (s 47(2)(e)(i) LPA); and
(f)other matters the Law Society considers appropriate (s 47(2)(f) LPA).
Section 11 identifies “suitability matters” and includes the following:
(1) Each of the following is a suitability matter in relation to an individual:
(a) whether the person is currently of good fame and character;
…
(f) whether the person is currently subject to an unresolved complaint, investigation, charge or order under any of the following:
(i) this Act or a previous law of this jurisdiction that corresponds to this Act;
(ii) …
(g) whether the person:
(i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country; or
(ii) has been the subject of disciplinary action, however expressed, relating to another profession or occupation that involved a finding of guilt.
Although many of the allegations and legal principles relevant to this matter would also be relevant if a court or other relevant body was considering allegations of professional misconduct or unprofessional conduct in the context of other disciplinary action and/or a person’s admission as a legal practitioner, there is a difference between unfitness to hold a practising certificate (or a particular class thereof) and unfitness to be a legal practitioner.[28] The question for this Court is whether the appellant is no longer a fit and proper person to hold a UPC, taking into account relevant matters in s 47 of the LPA, which include the suitability matters in s 11 of the LPA. Whether the appellant is a fit and proper person to hold a RBSPC is not a matter which this Court is required to determine in this appeal.
It is clear from the terms of the LPA, and the distinction in the LPRs between UPCs and RBSPCs, that the holder of a UPC must be a person who is suitable to conduct a law practice as a principal and be qualified to engage in unsupervised legal practice.[29] It is also implicit in the overall scheme that the holder of a UPC should be capable of supervising other practitioners such as holders of RBSPCs.[30]
In Murphy, Giles JA held (at [113]:
Refusal, cancellation or suspension of a practising certificate upon determination of unfitness to hold a practising certificate is not punitive of the legal practitioner. It is protective of the public in the same manner as removal from the roll. Fitness to hold a practising certificate is to be assessed having in mind the high standards required of legal practitioners in the practice of their profession. The standards are required because the relationship between legal practitioner and client, between legal practitioners, and between legal practitioner and court is one of trust in the performance of professional functions, and because there must be confidence in the public and those engaged in the administration of justice that legal practitioners will properly perform those functions.
To be a fit and proper person to hold a practising certificate requires demonstrated honesty and competence in dealing with clients, other practitioners and the Court. It also extends to the assessment of a practitioner’s “character” in order to maintain the continuing confidence of the public in the performance of the duties of legal practitioners, given the central role the profession plays in the administration of justice.[31]
Obligations of legal practitioners
There are numerous textbooks which conveniently summarise the various obligations of practising lawyers, many of which would have been readily available to the appellant. A fundamental starting point for a lawyer practising in the Northern Territory is the Rules of Professional Conduct and Practice made by the Law Society pursuant to its rule making powers in ss 689-695 of the LPA (NTPCRs).[32]
Duties to the Administration of Justice
The NTPCRs contain the following statement of general principle regarding practitioners’ duties to the Court:
Practitioners, in all their dealings with the courts, whether those dealings involve the obtaining and presentation of evidence, the preparation and filing of documents, instructing an advocate or appearing as an advocate, should act with competence, honesty and candour. Practitioners should be frank in their responses and disclosures to the Court, and diligent in their observance of undertakings which they give to the Court or their opponents.[33]
A practitioner is expected to deal with the Court openly and honestly and not “…knowingly make a misleading statement to the Court on any matter”.[34] If a practitioner becomes aware that a misleading statement has been made to the Court, he or she must rectify this error as soon as practicable after becoming aware that such a statement is misleading.[35]
These rules are based upon well-established principles including that a member of the legal profession is required to be:
…honest and frank in his relations with the court and otherwise in his professional conduct and in evidence given by him before the court so that the court and other members of the profession can deal with him with confidence relying on his integrity.[36]
In In re John Cameron Foster[37] the Court was faced with a barrister who the Court was satisfied:
…would not hesitate to depart from the truth whenever he thought he could thereby derive some personal advantage from so doing.
Street CJ said at p 152:
It would be an evil day for this community if Judges were not able to accept, unreservedly and without question, any statements made by counsel to them in court or any answers given by counsel to questions by the court, and every judge expects, and is entitled to expect, to be able to place complete confidence in counsel’s honour and integrity.
Disclosure obligations and candour
The fundamental importance of candour expected of a legal practitioner was emphasised by the High Court over a hundred years ago in Incorporated Law Institute of New South Wales v Meagher,[38] at p 681:
The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading or reckless laxity of attention to necessary principles of honesty on the part of those the courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure. There is therefore a serious responsibility on the court – a duty to itself, to the rest of the profession, to its suitors, and to the whole of the community to be careful not to credit any person as worthy of public confidence who cannot satisfactorily establish his right to that credential. It is not a question of what he has suffered in the past; it is a question of his worthiness and reliability for the future.
(my emphasis)
This passage has been quoted and followed in numerous subsequent authorities relating to the requirement of proper disclosure of matters which may relate to the fitness of a legal practitioner to practice.[39] A recent example is the decision of this Court in In the matter of an application by Mariel Jessica Sutton.[40]
Whilst many of those authorities relate to people seeking admission, most of the underlying principles apply equally in circumstances such as these where suitably matters like those in s 11(1) of the LPA apply, in particular the “good fame and character” requirement in s 11(1)(a) LPA.[41] The position of an applicant for a practicing certificate is no different to that of an applicant for admission, as regards ethical obligations and obligations of candour.
A practitioner’s duty of candour necessarily requires that an applicant for admission comprehensively discloses “any matter which may reasonably be taken to bear on an assessment of fitness for practice”[42] and satisfies the Court that he or she is currently of good fame and character and a fit and proper person to be admitted.[43] Per Riley CJ in Saunders, at [6]:
The obligation is upon the applicant to make candid and comprehensive disclosure regarding anything which may reflect adversely on the fitness and propriety of the applicant to be admitted to practise. The obligation of candour does not permit deliberate or reckless misrepresentation pretending to be disclosure.[44] The applicant must be frank with the Board and, through it, the Court. Full and accurate information must be provided to the Board by the applicant. It is not sufficient if such information is incomplete, or if the whole of the relevant information only emerges in response to enquiries from the Board.[45]
A practitioner is not excused from his or her obligations of disclosure and candour merely because the information that should have been disclosed is ultimately determined by the relevant tribunal not to be such as to render the person unfit to practice. That is a matter for the tribunal to determine, having been provided with all relevant information.
The significance of an applicant’s intention, or lack thereof, to mislead the Court by omitting to disclose certain information was discussed by Martin (BR) CJ in Deo, at [68] – [69]:
In some circumstances, the failure of an applicant to disclose relevant material might be excused on the basis of an erroneous but understandable error of judgment. In other circumstances it may be assessed that, strictly speaking, disclosure of the particular information was not required. In all of those situations, however, of particular importance is the applicant’s motivation for not making the disclosure. In the circumstances under consideration, I am satisfied that the applicant omitted the draft application from his affidavit… in a continuation of his attempt to minimise the adverse material disclosed to the court.
Finally, irrespective of the view taken as to whether it was, strictly speaking, necessary to disclose the draft application, the significance of the unsatisfactory evidence given by the applicant in this regard remains. In his evidence on this aspect the applicant demonstrated a continuing and disturbing lack of candour.
And, as the Court said in Sutton, at [100]:
The candour of an applicant in the disclosure process is important not only to ensure that all relevant material is before the Court but also to demonstrate that the applicant has a proper perception of his or her ethical obligations and is a fit and proper person to practice as a lawyer.
Undertakings to the Court
An “undertaking” is a promise made by a legal practitioner “to do or refrain from doing something”.[46] The importance of undertakings is conveniently summarised in Dal Pont at [22.05]:
Fidelity to undertakings in the course of professional practice is an important component of a lawyer’s professional responsibility, and directly relevant to the court’s continuing accreditation of her or his fitness to practise. Because of this, and the fact that lawyers may give undertakings to a court, another lawyer or a third party (including a regulatory body), the topic merits separate treatment. It has been noted, to this end, that:[47]
Undertakings are given by legal practitioners for the specific purpose of enabling legal activities to be carried out. Other persons rely on those undertakings. The undertakings are personal to the legal practitioner and bind that practitioner… as a matter of professional conduct and comity, and will be enforced by the Courts because legal practitioners are officers of the Court and because without enforcement undertakings would be worthless, persons and Courts would be unable to rely on the word of the legal practitioner and this aspect of legal practice, that demands compliance for legal efficiency, would collapse.
Because the courts, other lawyers and third parties must rely on the representations and assurances of lawyers in the course of their practice, the law expects strict compliance with lawyers’ undertakings. It is ordinarily no defence that the undertaking required by a third part to do an act, that its performance would place the lawyer in breach of duty to a client, or that it is inconvenient for a lawyer to fulfil its terms.
It is self-evident that a legal practitioner should not give an undertaking that he or she is not confident of being able to fulfil.
There are numerous consequences that may flow from a failure to comply with an undertaking. This may include orders enforcing the undertaking, orders to compensate a person who has suffered loss as a result of the non-compliance, proceedings for contempt of court, and disciplinary proceedings. A failure to honour a personal undertaking given in a lawyer’s professional capacity will often amount to misconduct.[48]
Duties to the client
The NTPCRs includes the following statement of general principle regarding a practitioners’ duties to the client:
Practitioners should serve their clients competently and diligently.[49]
A practitioner must do his or her utmost to ensure that work undertaken on behalf of a client is done competently and as soon as practicable. If this is not possible, a practitioner must “inform the client immediately”.[50]
The standard of competence that can be expected from a legal practitioner “is that of the ordinary skilled person exercising and professing to have that special skill”. Although this standard is adopted from the general law it also applies to the legal profession.[51]
“Competence” may also be viewed in the following broad terms:
Legal competence is measured by the extent to which an attorney (1) is specifically knowledgeable about the fields of law in which he or she practices, (2) performs the techniques of such practice with skill, (3) manages such practices efficiently, (4) identifies issues beyond his or her competence relevant to the matter undertaken, bringing these to the client’s attention, (5) properly prepares and carries through the matter undertaken, and (6) is intellectually, emotionally, and physically capable.[52]
A lawyer’s duty to the client also extends to dealings in relation to fees and trust monies. The LPA contains extensive provisions regarding financial matters including costs agreements and trust accounts.[53]
Dealings with the Law Society
The NTPCRs require a practitioner to be “open and frank in his or her dealings with the Law Society” and to “respond within a reasonable time and in any event within 14 days (or such extended time as the Law Society may allow) to any requirement of the Law Society for comments or information in relation to the practitioner’s conduct or professional behaviour and in doing so the practitioner should furnish in writing a full and accurate account of his or her conduct in relation to the matter.”[54]
Compliance with Special Conditions of UPC
The appellant’s UPC 2015/16, issued on 13 October 2015, was subject to 10 special conditions, seven of which were directed to monthly reviews of the appellant’s files by a Law Society appointed Reviewer.[55]
SC 3.2 required the appellant to provide to existing clients within seven days of issue of the UPC written notification that “a Reviewer may be reviewing Mr Connop’s files from time to time” and that client confidentiality and legal professional privilege would be strictly maintained. Such a notification was also to be provided to new clients “at the commencement of any new Retainer during the currency of this practising certificate”. SC 3.3 required the appellant to “request each client referred to at special condition 3.2 to provide their written consent for their file to be reviewed, solely for the purpose of oversight, by the Reviewer.” I shall refer to these as SC 3.2 letters.
SC 3.4 required the appellant to provide to the Reviewer, within 14 days after being notified of the Reviewer’s appointment, “a list of all client matters and all client matters closed within the preceding month”. The list was to include “the name of the client, Mr Connop’s file reference, a brief description of the matter and the area of law for the matter.” The appellant was required to update the list by the 14th day of each month.
The special conditions contemplated that the Reviewer undertake monthly reviews of a selection of the appellant’s files (SC 3.5) with such information as the Reviewer reasonably required (SC 3.6), and report to the Law Society at three monthly intervals regarding the appellant’s level of cooperation, the Reviewer’s opinion of the appellant’s law practice, and in respect of reviewed files, the appellant’s costs disclosure, billing and trust money issues (SC 3.7). The first report was to be provided by 31 December 2015 (SC 3.7).
SCs 3.8 to 3.10 required the appellant to engage the services of LeMessurier Harrington Consulting (LHC) no later than 30 October 2015 to undertake a quality practice review of his law practice and to provide a written report of any identified issues and recommendations for corrective action. Within 3 months of receiving such a report the appellant was to undertake any corrective actions recommended by LHC.
On 2 December 2015 the Law Society appointed Mr Eric Hutton as the Reviewer and notified the appellant of that appointment.[56]
SCs 3.2 and 3.3
The appellant was required to provide SC 3.2 letters to his existing clients within seven days of the issue of the UPC 2015/16, namely by 20 October 2015. He failed to comply with this requirement until about 2 February 2016. His non-compliance with the requirements of SC 3.2 gave rise to a number of matters of concern during the hearing of this appeal.
First, in his affidavit of 24 February 2016, in support of his application for a stay of the Law Society’s decision to cancel, the appellant said:
[7] In the period between 19 January 2016 and 2 February 2016 I sent approximately five hundred (500) letters to all of my clients in compliance with condition 3.2 of my current practicing certificate. …
[8] Since then I have received about twenty (20) copies of those letters from my clients indicating their consent for my files to be reviewed. (my emphasis).
[9] On 23 February 2016 I telephoned Eric Hutton and told him that that was the case … He told me he would come to my office on Monday 29 February 2016 to continue the review process.
What the appellant said in [8] was false. In his affidavit of 5 April 2016 the appellant referred to those paragraphs and said in relation to [8]:
I made that statement in error. I did receive about twenty (20) of those letters back, but they were received back from Australia Post marked ‘return to sender’. I only received back about two (2) or three (3) of those letters signed by clients indicating their consent to the files being reviewed by Eric Hutton.[57]
It is of concern that the appellant did not correct this “error” until 5 April 2016, notwithstanding that he had corrected a number of other “errors and omissions” in his affidavit of 24 February 2016 by swearing a further affidavit on 25 February 2016.
It is also of concern that he told the Reviewer that he had received about 20 letters back but did not disclose that only two or three of them contained consents. This was reckless and misleading. It would have been very clear to the appellant simply by looking at the envelopes marked “return to sender” that they would not contain signed consents. His explanation in his affidavit of 5 April 2016 that: “I did not appreciate that he wanted to know how many of such letters had been received back from clients signed by them by way of authorisation for him to review their files”,[58] is absurd.
Second, in his affidavit sworn 5 April 2016 the appellant said that he sent 10 letters of the kind required by SC 3.2 to existing clients for whom he still had to perform legal work on 2 and 3 March 2016.[59] Compliance with SC 3.2 required that such letters be sent on or before 20 October 2015.
I agree with the Law Society’s submission that the failure to send these letters to existing clients (including those for whom he had further work to perform) some three, four or more months late was a significant breach of SC 3.2. As it involved obtaining his clients’ consent to providing confidential and privileged information to the Reviewer, SCs 3.2 and 3.3 were fundamental to the process of legal practice review contemplated by the SCs.
Counsel for the appellant submitted that the delay from 20 October 2015 to 2 February 2016 to despatch the SC 3.2 letters did not disadvantage Mr Hutton in the performance of his review function, inter alia because Mr Hutton was not appointed until 2 December 2015.[60] This misses the point. The fact is that he breached SC 3.2. It is no excuse to say, in effect, that he could ignore SC 3.2 because he considered strict compliance unnecessary. Moreover a meaningful review could only begin when the letters were responded to and the necessary consents given.
Third, although the appellant agreed that his client’s files were confidential and subject to privilege and that the client’s consent was required before their files could be provided to Mr Hutton,[61] it appears that he nevertheless provided Mr Hutton with access to all of his client files and that Mr Hutton selected 10 files to review.[62]
Fourth, when asked why he did not send the SC 3.2 letters earlier than he did, the appellant referred to the fact that he was a sole practitioner and did not have sufficient administrative support and required software to generate a report.[63] But it transpired that he only had a very small number of existing clients. (As at 8 March 2016 he only had “fourteen open files for clients”.[64]) It was not an onerous obligation.
Fifth, it seems that he misunderstood the requirements in SC 3.2 and thought that he was required to send such letters to every client that he had ever had, notwithstanding that only about 14 of his files were current. Rather than admit that he had misunderstood the requirement that he (only) send SC 3.2 letters to existing and future clients, he provided two explanations, both of which I consider most unsatisfactory.
One explanation was that he had not “closed” any of his files and that all of his files were “open” and therefore “existing”, albeit that only fourteen were active.[65] However in [142] of his affidavit of 8 March 2016, where he said that he had only “fourteen open files for clients”, he appeared to refer to “open files” as those (14) files which were active.
The second explanation was that he sent the letters to all 465 people, not just his 14 existing clients, because the Reviewer, “Mr Hutton said I had to and he came in and said I had to send them out to everybody, and I said: ‘Oh. I thought it was only the 14.’”[66] After he said that the following exchange occurred:
Ms BROWNHILL SC: Mr Connop, have you got any written note of Mr Hutton saying that to you? --- Not on me in court here, no.
You have it back at your practice?--- I’m not sure.
Did you make a record of Mr Hutton saying that to you?--- I just assumed that he was saying I had to write to everybody regardless.
So he didn’t actually say those words---?No.
--- and you’ve assumed?--- Well, I did assume that, because I didn’t want to get in trouble. [67]
This is one of many examples of the appellant proffering an answer which deflected blame or responsibility onto someone else but was exposed to be incorrect and misleading only after further probing by counsel.
Clearly his reason for sending out those 465 letters was that he misunderstood the requirement in SC 3.2, not that Mr Hutton required him to do that.
A further reason why this explanation was misleading was that Mr Hutton did not attend the appellant’s office until 4 December 2015 at the earliest, having only been appointed as Reviewer two days before. By then the time for compliance with SC 3.2 had passed by some six weeks.
Sixth, the appellant’s assertion in his affidavit of 24 February 2016 that he “sent approximately 500 letters to all of my clients in compliance with condition 3.2 of my current practicing certificate” gave the false impression that he did in fact have such a large number of existing clients. Consequently there were potentially a large number of people who might be prejudiced unless the appellant’s application for the stay was granted. Although he was present in Court when the stay application was heard, he did nothing to correct this impression until 26 February 2016 when his counsel properly informed the Court that this was an error on his part, which I accept.
The Law Society submitted that the factual inaccuracies in paragraphs [7] and [8] of his affidavit of 24 February 2016 were deliberately contrived by the appellant to further his prospects in his urgent application for a stay of the decision to cancel. Even if they were not deliberately contrived no reasonably competent legal practitioner could have sworn such an affidavit which contained such misleading statements.
Seventh, it seems to me that the appellant either ignored his obligations under SC 3.2 and 3.4, or misunderstood the meaning of the words “existing clients”. If he was unsure of what those words meant, or if he honestly believed that he was required to send SC 3.2 letters to every client he had ever had but would not be able to comply in the time required, he should have sought clarification from the Law Society and/or an extension of time within which to comply. As I pointed out in [61] above, the fact that the Reviewer was not appointed until 2 December 2015 is irrelevant.
Counsel for the appellant submitted that even if the appellant misconstrued whatever he may have discussed with Mr Hutton about what letters should be despatched “that … does not matter because the appellant merely acted in a cautious manner by sending letters to all clients whose files were still open.”[68] I disagree. It seems that the appellant wasted much valuable time and resources in performing this unnecessary exercise, in circumstances where he had other serious deadlines to meet.
SC 3.4
The Law Society’s letter of 2 December reminded the appellant that he was to provide to the Reviewer within 14 days of 2 December 2015 “a list of all current client matters and all client matters closed during November 2015”.[69] Hence, the last date for compliance with SC 3.4 was 16 December 2015.
The appellant did not provide the Reviewer with any list of clients on or before the due date, 16 December 2015. The next day the Reviewer informed the Law Society that the appellant had just provided him with a list of names of clients for whom he had opened files in October and November 2015, but not of all current files, and he sought an extension of time for submitting his first report as he would be unable to commence his review until January 2016.[70] Later that day the appellant provided the Reviewer with a list identifying 465 clients and files, which comprised all files opened in the practice since 2012.[71]
The Reviewer’s first report was provided to the Law Society on 21 January 2016. It recorded that SC 3.2, and consequently SC 3.3, had not been complied with as at that date, with the underlying cause of non-compliance being lack of administrative assistance. It also recorded that SC 3.4 was complied with on 17 December 2015.[72]
The appellant has admitted to failures to comply with the requirement of SC 3.4 to provide updated client lists to the Reviewer monthly, for the months of January, February and March 2016.[73]
SC 3.7
As to the matters to be reported on in SC 3.7, the Reviewer noted in his first report that the level of cooperation was satisfactory, that the main issue in respect of the appellant’s management of the law practice was lack of administrative assistance, that the files reviewed did not involve billing, and that the trust account had not been examined. The Reviewer stated that:
the appellant is hampered in his practice by not having administrative support…The reality is that there is insufficient revenue generated by the practice at this stage to contemplate employing someone to undertake reception and/or clerical assistance duties.[74]
Conclusions
The special conditions in his UPC 2015/16 were conditions upon the appellant’s right to engage in legal practice.[75] It is an offence to contravene a condition to which a practising certificate is subject (s 78 LPA). The appellant had indicated to the Law Society that he was willing to accept the imposition of special conditions upon his UPC broadly in the terms of the SCs.[76] However, he failed to comply with SCs 3.2, 3.3 and 3.4 in their terms, and has not offered any satisfactory explanation for these failures.
Moreover, it became apparent, early in the course of his cross-examination, that he did not understand the importance of complying with the special conditions that the Law Society had imposed when issuing his UCP for 2015/16. He seemed unaware that the Law Society had real concerns about his conduct of his practice and that he was at risk of having his practising certificate cancelled.[77]
Conduct in relation to clients
Unsatisfactory professional conduct re Williamson
On 13 August 2015, in response to a complaint by Ms Monica Williamson (the Williamson complaint), the Law Society found that:
(a)the appellant had failed to provide adequate and timely costs disclosure to Ms Williamson as required by ss 303 and 305 of the LPA, which conduct fell below the standard of a diligent and competent solicitor; and
(b)the appellant’s conduct in issuing his invoice dated 11 September 2014 to Ms Williamson fell below the standard of a diligent and competent solicitor;
both of which constituted unsatisfactory professional conduct. He was fined $1,530.[78]
In his response to the complaint, the appellant ascribed the blame for the failure to properly invoice and record a client payment to his employed bookkeeper.[79] I interrupt to note that he has also blamed his employed bookkeeper for a number of other serious errors and omissions that have been ventilated in the course of this appeal.[80] The Law Society took the view that the appellant is the person with ultimate responsibility for the billing undertaken by his legal practice, and his failure to properly supervise his staff in billing and informing clients about trust account transactions was reckless or careless.
On 24 August 2015, the appellant was informed of the Law Society’s decision regarding the Williamson complaint, and required to pay the fine to the Legal Practitioners Fidelity Fund within 30 days,[81] i.e. by 23 September 2015.
In October 2015, the Statutory Supervisor, Michael Grant QC, undertook a mediation of a costs dispute pursuant to s 330 of the LPA in respect of the costs the subject of the appellant’s invoice to Ms Williamson.[82] The costs dispute consisted of whether Ms Williamson was required to pay to the appellant the costs claimed by the invoice. The outcome of that mediation was that the appellant withdrew his invoice.[83]
In his affidavit of 24 February 2016, the appellant swore that as a result of the mediation, the Williamson complaint was negotiated and settled on a without admission basis and that Ms Williamson withdrew her complaint.[84] In his later affidavit of 8 March 2016, the appellant admitted that this was a misstatement made in error.[85]
That he could make such an error given the Law Society’s findings and penalty discloses a serious lack of understanding about the requirement for legal practitioners to act with absolute candour and to ascertain the true facts before swearing an affidavit that is likely to mislead the reader, particularly where the reader is likely to be a court or other tribunal who is considering the fitness of that person to hold a UPC.
Failure to pay the Williamson fine
By 5 January 2016, the appellant had not paid the fine or otherwise sought to have his obligation to pay it deferred, and he was sent a reminder letter on that date.[86] The appellant paid the fine on 8 February 2016.[87]
The appellant’s explanation for not paying the fine was that he forgot, and it was an oversight.[88] He said that he paid it “soon after” receiving the Law Society’s reminder. In fact his payment was made more than a month after the reminder, which required him to pay within seven days or to contact the Law Society if there were any difficulties in payment.[89] The appellant has still not explained that further delay despite being put on notice of this point in [35] of the LSNT Submissions.
Unresolved Complaints
The Law Society’s reasons for cancelling the appellant’s UPC[90] also referred to a number of complaints that had been made about the appellant’s conduct which had not yet been finalised. The appellant submitted that the Law Society “has failed to prove [those complaints] to the requisite standard”,[91] or that the complaints have not sufficiently progressed,[92] such that they should not be taken into account in determining whether the appellant is a fit and proper person to hold a UPC.
This submission is inconsistent with the express terms of ss 47(2) and 11(1)(f) of the LPA, which specifies that a suitability matter includes whether the person is currently subject to an unresolved complaint, investigation, charge or order under (relevantly) the LPA. It is not within the function of the Court on this appeal to hear and determine the complaints. However, their existence, nature and content, and the appellant’s responses thereto, are clearly relevant matters for the Court to take into account. This is particularly so if they comprise or contain grounds which have a consistent theme which is relevant to fitness to hold a UPC (including costs disclosure, billing, trust account issues, and competence).
The fact that the appellant has taken such technical and pedantic points both in this regard and also in response to many other issues raised by the Law Society is itself a matter of concern. A legal practitioner should be prepared to provide full disclosure and to answer all allegations made against him.
Complaint by Dorothy Fox
The complaint by Ms Dorothy Fox comprises serious allegations made by Ms Fox about the appellant’s conduct while waiting in Court to appear as a witness in a criminal matter involving Ms Fox’s niece.[93] The complaint is currently being investigated pursuant to s 488 of the LPA. Essentially, Ms Fox has alleged that the appellant acted in a threatening way and spoke some abusive words directed to her or her niece. The appellant denies the allegations and proffers a motive for the “false complaint”.[94] There is presently no independent evidence to corroborate or refute that complaint.
Complaint by Anne-Louise Ray
Ms Ray was a client of the appellant’s in respect of a residential tenancy dispute in the Local Court. She made a complaint on 2 July 2014, which was modified by the Law Society to add further grounds on 2 December 2014.[95] The grounds of the complaint are:[96]
(a)lack of costs disclosure;
(b)making inappropriate comments and irresponsible conduct;
(c)seeking payment for amounts already paid;
(d)failing to provide an itemised bill when requested;
(e)making a false and misleading misrepresentation to Ms Ray that the appellant’s hourly rate was the same as the Northern Territory Legal Aid Commission’s (NTLAC’s) rate; and
(f)that the appellant’s representation and advice in relation to the tenancy dispute was lacking in competence and diligence, the particulars of which are:[97]
(i) failure to provide advice or providing inadequate advice as to Ms Ray’s legal position, her prospects, the potential costs of pursuing the appeal, and the risks and costs of litigation;
(ii) poorly or inadequately drafted affidavit material; and
(iii) potential lack of knowledge or understanding of the Residential Tenancies Act 1999 (NT).
The documents prepared by the appellant and filed in the Local Court comprised an application under the Small Claims Act 1974 (NT) for an order to be set aside and re-hearing,[98] and an affidavit.[99] There was also a notice of appeal (Form 37A).[100] These documents disclose significant procedural deficiencies including use of the wrong form, failure to make references to the sections of the Residential Tenancies Act under which relief was being sought, failure to address the nature of the appeal under s 150 of that Act, and failure to address the relevant matters for an order suspending the operation of an order for possession under s 105 of that Act. In addition, the affidavit was flawed in that it purported to be made by both the appellant and Ms Ray. The appellant acknowledged that he made errors in the affidavit, and attributed his making of those errors to it being necessary for him to prepare the affidavit urgently on a Saturday when Ms Ray first came into his office.[101]
On 31 January 2014, the appellant invoiced Ms Ray for the sum of $110 for work done on that day described as “legal advice in relation to tenancy matters, option to appeal”.[102] The appellant said that Ms Ray paid him $110 for the work he did on that day, namely taking instructions and preparing the tenancy appeal documents.[103] On 5 March 2014, the appellant invoiced Ms Ray for the sum of $1,188 less $600 paid by her in March and April 2014, leaving an outstanding amount of $588. The invoice purported to be for “tenancy legal advice, court representation, preparation of interlocutory application and appeal application”, but did not refer to the sum of $110 paid on 31 January 2014. On 16 April 2014, the appellant sent a “revised”[104] tax invoice to Ms Ray (on its face stating “Draft - Unapproved”) identifying fees of $330 for the work done on 31 January 2014, and making no reference to any payments made by Ms Ray.[105] His covering email of that date stated that she had paid $500 against the invoiced amount of $1,188.[106] On 18 June 2014, the appellant and Territory Debt Recovery sought payment of $698 from Ms Ray for outstanding fees.[107] When asked to explain the discrepancy between the sum allegedly owing ($588) and the sum demanded ($698), the appellant’s response was that his bookkeeper had sent the demand because Ms Ray owed the practice money.[108]
In the email he sent to Ms Ray on 16 April 2014, the appellant stated:[109]
I charge $300 dollars per hour plus GST…
… the fees I charge per hour is the same as NT legal aid, what they pay lawyers for providing legal services to their clients, so I have not over charged you at all as legal aid has very low rates.
As at 1 October 2014, the Northern Territory Legal Aid Commission (NTLAC) paid solicitors rates ranging from $100 per hour for criminal matters to 80% of the Supreme Court scale for civil (non-family) law matters.[110] This was generally consistent with the appellant’s experience. He acknowledged that NTLAC paid rates from $100 per hour up to $300 per hour depending upon the complexity of the matter and the court in which the work is to be performed. The appellant said his intention was to “emphasis [sic] to the client that my hourly rate was a modest hourly rate”.[111]
Given that NTLAC paid a range of hourly rates, starting at $100 per hour, his statement that his charge of $300 per hour is “the same as” the NTLAC rate was objectively false (as not stating the whole truth) and likely to mislead, regardless of his subjective intention in making it.
Complaint by Brendan Loizou
Mr Loizou was a client of the appellant’s in respect of a family law matter in the Federal Circuit Court. He made a complaint about the appellant’s conduct on 10 February 2015.[112]
In his final submissions counsel for the appellant requested the Court to bear in mind that “the respondent has still not formally notified the appellant about this complaint or called upon the appellant to respond to it”, the respondent first provided the appellant with a copy of Mr Loizou’s complaint when the respondent served the two (2) volume affidavit sworn by Kellie Ann Grainger on 15 March 2016 on the appellant, and that the Court indicated at the commencement of this proceeding that it did not want the appellant to place complete copies of all of his files for each client complaint into evidence.[113]
Costs agreement, tax invoices and trust accounting
Mr Loizou had contacted the Law Society on 30 July 2014 seeking assistance in recovering from the appellant the balance of his money held in trust (which the appellant had told him was about $2,750) and the release of his file in order to pursue his family law matter with different legal representation.[114] Mr Loizou had contacted the appellant twice in the preceding 11 days regarding the matters and had not had any response from the appellant. When the appellant was contacted by the Law Society, his explanation was that he needed to “go through LEAP” before he could settle the matter, and he said he had told Mr Loizou it would take two weeks. The Law Society suggested the appellant send Mr Loizou an email informing him of his proposed actions.[115] On 1 August 2014 the appellant sent an email to Mr Loizou apologising for not responding earlier and advising that he was currently in the process of finalising Mr Loizou’s files and invoices. He said that once this has been done he would forward any left-over funds to Mr Loizou, or “if you owe any funds to us after finalising everything I will be putting a Lien on your files until all payments are finalised before releasing your files to you”.[116] That was the last Mr Loizou heard from the appellant.[117]
Mr Loizou also complained that he was not provided with a costs agreement, any invoices for fees, or any receipt for funds deposited in trust.[118] It appears that Mr Loizou first saw the appellant on 25 November 2013 and he then signed a retainer (“terms of engagement”).[119] He did not sign a costs agreement until 2 January 2014.[120]
The signed costs agreement comprised an agreement produced for the purposes of the Legal Profession Act 2004 (NSW). Amongst other things it provides that the applicable law is the law of New South Wales. The document also contains most of the defects identified in the Law Society’s decision on costs disclosure in the Williamson complaint.[121] In addition, it stated that total fees and disbursements are likely to be “in the order of $16,000 … plus GST” “or” “in the range of $200 to $400”. It also stated that: “Those members of the firm that work on your matter will record the time they spend and charge according to” hourly rates ranging from $380 for work done by a Partner, $330 for work done by a Senior Associate or Lawyer, to $165 for work done by a Clerk.[122]
The appellant was the only legal practitioner working in the practice. By stating this he implied that there were other people within his employ such as a senior associate, lawyer and clerk and that some of the client’s work would be done by such person at the lower rate. I consider such an implication to be misleading and improper.[123]
As was the case in relation to the costs disclosure in the Williamson matter, the costs disclosure encompassed by provision of this costs agreement did not comply with the requirements of ss 303 and 305 of the LPA and falls below the standard expected of a competent and diligent practitioner.
The appellant’s affidavit of 8 March 2016 includes copies of numerous tax invoices all addressed to Mr Loizou at 525 Lonsdale Street, Melbourne, as follows:[124]
Invoice No Date Amount/s charged Description Amount/s deducted Balance due 299 5.12.2013 $10,000 Legal Representation in Family Law proceedings $5,000
EFT 5.12.13$5,000 299 5.12.2013 $10,000 Legal Representation in Family Law proceedings $5,000
EFT 5.12.13
$10,000
EFT 21.2.14-$5,000 299 5.12.2013 $10,000 Legal Representation in Family Law proceedings $5,000
EFT 5.12.13
$10,000
EFT 21.2.14
$5,500
EFT 11.4.14-$10,500 425 30.12.2013 $2,000 Legal fees for Mr Loizou’s Family Law Matter $2,000
EFT to business account 13.1.14$0 426 8.02.2014 $1,000 Legal fees for Mr Loizou’s family law matter $1,000
EFT to business account 22.2.14$0 299 20.02.2014 $10,000
$2,403.06
$5,483.06
Legal Representation in Family Law proceedings
Hanlon Barrister fees 26.3.14
Hanlon Barrister fees 16.4.14$5,000
EFT 5.12.13
$10,000
EFT 21.2.14
$5,500
EFT 11.4.14-$2,613.88 299 20.02.2014 $10,000 Legal Representation in Family Law proceedings $10,000 427 1.03.2014 $1,000 Legal fees for Mr Loizou’s family law matter $1,000
EFT to business account 15.3.14$0 428 12.03.2014 $2,403.06 Legal fees for Mr Loizou’s family matter $2,403.06
EFT to Peter Hanlon 26.3.14$0 431 2.04.2014 $5,483.06 Legal fees for Mr Loizou’s family matter $5,483.06
EFT to Peter Hanlon 16.4.14$0 428 7.05.2014 $1,000 Legal fees for Mr Loizou’s family law matter $1,000
EFT to business account 21.5.14$0 429 8.05.2014 $1,000 Legal fees for Mr Loizou’s family law matter $1,000
EFT to business account 22.5.14$0 432 31.05.2014 $1,000 Legal fees for Mr Loizou’s family law matter $1,000
EFT to business account 15.6.14$0
The content of these invoices is confusing.
Further, it is not clear whether Mr Loizou received these invoices, there being some confusion about his correct mailing address.[125] It appears that none of the invoices were sent by the appellant until more than six weeks after 15 April 2014, despite him having commenced work for Mr Loizou in November 2013, and having made numerous deductions from Mr Loizou’s trust account funds from 13 January 2014. Similarly, although the appellant’s affidavit includes three trust account receipts for money transferred by Mr Loizou,[126] it is not apparent whether they were received by Mr Loizou.
The appellant was cross-examined on a number of matters concerning his dealings with Mr Loizou.
Reliance upon the bookkeeper.
He conceded that he sent some thirteen tax invoices to Mr Loizou, without having looked over them himself, relevantly stating: “…I basically relied on my bookkeeper.”[127]
The appellant was not able to explain irregularities in his trust account receipts or how an amount of some $5,613.88 had been accounted for or disbursed, other than to say that the irregularities arose as a “consequence of inadequate or inappropriate bookkeeping”.[128]
I agree with the Law Society that the fact that any fault for the subject irregularities may rest with others does not mitigate in the appellant’s favour. He was ultimately responsible for what occurred in his practice and for oversight of the management of its financial affairs. The Courts have long recognised that a principal can be found guilty of professional misconduct for the actions of his or her underlings and/or for a failure to properly supervise.[129]
I agree with the LSNT submission that, in effectively delegating responsibility for the management of his firm’s and clients’ accounts to his bookkeeper and in exercising little or no oversight of that bookkeeper’s actions in relation to the billing of clients and the recording of transactions,[130] the appellant’s conduct fell a long way short of what is reasonably expected of a fit and proper person operating as a legal practitioner under a UPC.
In his final submissions the appellant acknowledges that allowing his bookkeeper to prepare and send the 13 tax invoices to Mr Loizou without firstly reading them for correctness was “an unwise practice, because he accepts that he, as the director of the practice holding a UPC, is ultimately responsible for the correctness or otherwise of any tax invoices sent to clients.”[131] He says that he now “prepares a narrative of the work performed, provides it to his current bookkeeper so she can prepare a draft tax invoice and he checks the drafts of them, and if thought necessary, corrects them and then they are sent to clients.”[132]
Ceasing to act
The appellant was questioned as to the circumstances in which he had ceased to act for Mr Loizou and as to the accuracy of the explanation that he gave in paragraph 64 of his affidavit of 8 March 2016.[133] The email from Mr Loizou to the appellant of 27 June 2014 (the Loizou email)[134] suggests the retainer was brought to an end for reasons very different to those given by the appellant.
The Loizou email comprised some 13 paragraphs. It referred to the fact that the Family Court had made orders on 25 June 2014 listing his matter for hearing on 16 July 2014. It then stated:
You have stated that you will not act any further without further funds being made [sic] into your Trust Account.
In relation to that, can you please provide me with:
1.detailed Statement of my Account;
2.copy of my Trust Account.
I believe I have provided you with either $20,000 or $25,000 in relation to my matter to date.
I have become concerned that there might not be much done to date.
After expressing concerns about the fact that the appellant had not contacted a particular person in sufficient time to obtain a medical report that the Family Court had previously ordered the email stated: “Clearly, you are too busy to deal with my matter.” Following another paragraph in which Mr Loizou expressed frustration about another aspect, the email concluded: “I look forward to receiving a detailed account.”
In [64] of his Affidavit of 8 March 2016 the appellant swore:
I ceased acting for Mr Loizou in about August 2014, because he was not providing clear instructions or responding to my emails.
However:
(a)the appellant failed to adduce into evidence any such emails, or telephone attendance records or file notes in support of this contention;
(b)the Loizou email suggests:
(i) that the appellant had communicated an intention to cease to act unless and until further funds were deposited into trust;
(ii) concern that not much had been done by the appellant up to the date of the email, in furtherance of Mr Loizou’s interests (which concern is inconsistent with the appellant’s professed reasons for ceasing to act); and
(iii) that Mr Loizou was concerned that the appellant was too busy to deal with his matter; and
(c)The appellant’s email to Mr Loizou of 27 June 2016[135] suggests that a failure to provide instructions was raised in the context of an attempt to explain delays at the appellant’s end.
When questioned by Senior Counsel for the Law Society as to whether he had communicated to Mr Loizou that he was ceasing to act because monies were not being paid into trust, the appellant emphatically denied any such suggestion, relevantly stating: “I didn’t say that to him” and “No, he wrote that himself.” When questioned by the Court about this, the appellant initially maintained his denial, saying: “I never said that to him”. He then changed his position to one of not being able to recall, one way or the other, and he ended up by qualifying that supposed lack of recall with the statement: “Unless I did send something in writing to him saying: ‘I’m easing back’.”[136]
Trust account statement not provided
The appellant was then queried as to why he had not provided Mr Loizou with a trust account statement.[137] The appellant started by saying that he was unsure as to what it was that Mr Loizou was seeking in the Loizou email. He said that he had a trust account statement ready for Mr Loizou. When he was asked whether any trust account statement had been sent to Mr Loizou, he was initially unable to give a definitive answer. When further pressed about this he admitted that no trust account statement had been provided and he sought to explain that failure by saying he had not yet closed Mr Loizou’s file (although the work had been completed by August 2014).
He admitted that he had not refunded any monies from trust to Mr Loizou, apparently because of his ongoing investigations, in conjunction with his accountant, into the operation of his trust account. He was asked when he would ordinarily provide a trust account statement to a client and he responded: “Only if they ask for them, I give them”. He was also asked why the provision of a trust account statement may need to await the closure of a client’s file, and he said: “Well, I want to find out if he actually owes me any money, because we did a lot of work on this matter.” The appellant said that he expected to be in a position to close the file within “the next couple of weeks”. He acknowledged that he had been in the process of finalising Mr Loizou’s file for in excess of a year and a half, and disagreed with the suggestion that it was unacceptable for a client to wait over a year and a half for the provision of a trust account statement, stating: “I don’t think so, because I never closed the file off.” He also suggested that it was unclear to him whether Mr Loizou would be requiring him to undertake further work on the files because he still had the files. He considered that it was Mr Loizou’s responsibility to attend his offices in order to collect the trust account statement, but later said that Mr Loizou could not collect any trust account statement until he, the appellant, was satisfied that it was “above board”.[138]
Section 247(3) of the LPA relevantly provides that a law practice must account for monies held in trust in the manner provided for in the LPRs. A failure to comply with s 247(3) is an offence.[139]
LPR 63 relevantly requires that:
(a)a law practice furnish a trust account statement to each client on whose behalf trust money is held;[140]
(b)a trust account statement contain:[141]
(i) the information required to be kept under Part 3.1 of the Regulations, which relevantly includes, inter alia, a client specific trust ledger account recording all receipts and payments in that account;[142] and
(ii) details of the balance held (if any);
(c)such statements be furnished:[143]
(i)
as soon as practicable after completion of the matter to which the ledger account or record relates; or
(ii)
as soon as practicable after the person for whom or on whose behalf the money is held or controlled makes a reasonable request for the statement during the course of the matter; or
(iii)
except as provided by sub-regulation (7),[144] as soon as practicable after 30 June each year.
It is apparent that, contrary to the requirements of s 247(3) of the LPA:
(a)no trust account statement was provided to Mr Loizou at any time following the appellant ceasing to act in June or August 2014, or following Mr Loizou’s requests in his email of 27 June 2014 for a detailed statement of his account and a copy of his trust account[145] and in July 2014 that his trust account ledger be closed and the balance remitted;[146] and
(b)no trust account statements were provided to Mr Loizou, as soon as practicable or at all, following 30 June 2014 or 30 June 2015.
Notwithstanding Mr Loizou’s requests in July 2014 for the return of his file in the context of ongoing litigation and for the refund of monies owed to him which he told the appellant were “really need[ed]…to pay rent and living expenses”,[147] and the intervention of the Law Society on 30 July 2014 following which the appellant said that he was in the process of preparing a final invoice which expected to issue within two weeks and he would thereafter return the file and remit any balance of trust monies to Mr Loizou, the appellant failed and continued to fail to offer to return the file or finalise Mr Loizou’s trust account until 28 May 2016. The appellant has provided no acceptable justification for this very poor conduct on his part.
Even when he gave evidence in these proceedings in April 2016, the appellant could not say that he was in fact owed any money by Mr Loizou; his evidence did not rise any higher than that he might be owed something.[148] On the basis of that mere suspicion he had withheld files that Mr Loizou may have required for the conduct of his family law litigation and refused to refund any amount to Mr Loizou for more than eighteen (18) months.
When he sought leave to reopen his case on 16 May 2016, the appellant swore that he was still trying to finalise preparation of trust account statements to all clients for whom the firm was holding any monies in its trust account.[149] According to the trust account ledger in evidence prepared on 12 April 2016 the current balance of Mr Loizou’s trust account was $113.88.[150]
Final accounting provided on 28 May 2016[151]
By letter dated 28 May 2016 addressed to Mr Loizou the appellant provided copies of three trust account receipts (acknowledging receipt of a total of $20,500), various tax invoices including one dated 26 May 2016 itemising all work done (between 26 June 2013 and 18 August 2014) and charges therefor, a trust account statement prepared 26 May 2016 (the Loizou trust account statement) showing the amount of $113.88 held on Mr Loizou’s behalf and a cheque for $113.88. He said that he had checked the letter and had it reviewed by counsel.
The letter explained that an amount of $5500 had been banked into the appellant’s office bank account by electronic funds transfer rather than into his trust account, and that explains why the trust account statement does not include a record of that payment. The letter then provided a brief summary showing the client owing the appellant $9,413.12, being the balance due after deducting from the amount shown on the tax invoice of 26 May 2016 the total amount of $25,500 “received from you paid into our office account or our trust account”. The appellant advised that “in the circumstances” he would not be requiring Mr Loizou to repay that balance, and instead was enclosing the cheque for the $113.88.[152]
During cross-examination he agreed that he had made an error in adding up the four amounts received from his client, namely the $20,500 recorded on the trust account receipts and the $5500 banked into his office account, as a consequence of which he had been paid $26,000 not $25,500.[153] However he later changed his evidence and said that the $5500 banked into his office account was in fact the same payment that was recorded in one of the three trust account receipts. Consequently he had only in fact received $20,500, not the $25,500 stated in the letter, nor the $26,000 previously acknowledged during his evidence.[154] If this is correct, the client would owe him $14,413.12, namely $5000 more than stated in the letter.
When it was put to him that he could easily have ascertained when and whether the $5,500 was paid into his office account by checking his bank statements he admitted that he did not do that. When asked how the client could have paid the money into his office account he surmised that his bookkeeper must have provided the client with the wrong account information.
I find all this most unsatisfactory. The last item of work for Mr Loizou was done in August 2014 and the final accounting in May 2016 was still wrong, by as much as $5000. Moreover, I find it extraordinary that he is now prepared to write off a significant amount of legal fees to which he now says he is entitled, and indeed send the client the cheque for $113.88.
I agree with the LSNT submission that the appellant’s conduct in relation to this client is demonstrative of a lack of fitness to practice. His conduct is not of the standard reasonably expected of a person holding a UPC.
Complaint by Pieter Bekkers
Mr Bekkers was a client of the appellant’s in respect of a dispute with a government authority in relation to banana farming. On 21 August 2014 Mr Bekkers requested the appellant to return any unused funds.[155] On 25 May 2015 he made a complaint to the Law Society. The Law Society sent the complaint together with other materials to the appellant on 8 October 2015 and sought his response within 14 days.[156] He replied on 30 December 2015.[157]
The complaint alleged failures on the part of the appellant to provide adequate costs disclosure as required by s 303 of the LPA, including failures to advise Mr Bekkers of his estimated legal fees and of his entitlement to a costs agreement and to respond to his request for a written costs agreement, failure to properly account for trust monies, failure to advise Mr Bekkers of his right to dispute costs as required by s 325 of the LPA, withdrawing money from trust for legal fees without authority and overcharging.
Mr Bekkers first consulted the appellant on 10 January 2014.[158] The appellant told the Law Society that he gave Mr Bekkers a cost estimate of $6,000, and provided him with a copy of a costs agreement that day.[159] The costs agreement is in essentially the same form as that the subject of the Williamson complaint and the Loizou complaint, and suffers from most of the same defects.[160] The costs agreement was never signed by Mr Bekkers.[161] It estimated fees and disbursements at $6,000, advised the same hourly rates as referred to in the Loizou costs agreement, estimated likely costs of $30,000 for counsel or other experts, and required an initial payment of $2,000.
Consistently with the Law Society’s decision in relation to the Williamson complaint, the costs disclosure encompassed by provision of this costs agreement (assuming it was provided as the appellant describes) would not comply with the requirements of ss 303 and 305 of the LPA.
In his reply to the Law Society on 30 December 2015, the appellant said he had issued and delivered to Mr Bekkers tax invoices for the work he had performed and disbursements incurred, and that he withdrew amounts from the trust account accordingly.[162] This assertion was made even though Mr Bekkers’ complaint clearly stated:
The address provided on each of those invoices is 3, 5 Manton Street, DARWIN. It is in fact that of Mr Connop’s own office, not my address. It is clear that the invoices never left his firm until I had terminated his services. In accordance with the above, I was never advised how much of my money was being used and deliberately misled when I did make enquiries.[163]
In his affidavit of 8 March 2016 the appellant acknowledged that he first became aware that a “trust account receipt and some of the tax invoices rendered to Mr Bekkers were incorrectly addressed with the practice’s address” when he read Mr Bekkers’ complaint.[164] He then acknowledged that “it may be the case that” Mr Bekkers did not receive those invoices or the trust account receipt until after he terminated his retainer, in August 2014.[165] He also acknowledged that a copy of the barrister’s tax invoice may not have been sent to Mr Bekkers. Again, the appellant sought to blame his bookkeepers for these failings.[166]
In his response of 30 December 2015 the appellant acknowledged that there remained in his trust account the sum of $1,000 belonging to Mr Bekkers and he undertook to deliver a cheque in that sum to Mr Bekkers within seven days of his letter.[167] Despite that undertaking, the appellant did not pay that money to Mr Bekkers until 7 March 2016, when he sent him a bank cheque for $1000.[168] He provided no explanation for that failure.
The appellant’s affidavit of 27 May 2016 included a letter of 26 May 2016 addressed to Mr Bekkers which attached a trust account statement as at 25 May 2016 (the Bekkers trust account statement) and a cheque for $900. That trust account statement shows transactions between January and March 2014 and a credit balance of $900 as at 18 March 2014. It does not refer to or otherwise acknowledge the payment of the $1000 (on 7 March 2016).
I disagree. I have found the appellant is not a fit and proper person to hold a UPC, and for reasons involving conduct which cannot be simply prevented or regulated by the imposition of conditions. It should go without saying that a person who is not a fit and proper person to hold a UPC should not be issued a UPC.
Orders
The respondent submitted that if the Court is satisfied that the appellant is not a fit and proper person to hold a UPC, it should confirm the Law Society’s decision to cancel his UPC and dismiss the appeal. This appeared to be the appellant’s position as well. [461]
Accordingly I have made the following declaration and order:
1.I declare that the appellant is not a fit and proper person to hold an unrestricted practising certificate.
2.I dismiss the appeal.
I see no reason why the appellant should not be required to pay the respondent’s costs of this appeal. Unless I hear otherwise within the next 14 days I shall make an order that the appellant pay the respondent’s costs of this appeal, such costs to be taxed if not agreed. I would certify the matter fit for senior counsel.
----------------------------
[1] An “unrestricted practising certificate” means an Australian practising certificate that is not subject to any condition under the Legal Profession Act 2006 (NT) (LPA) or a corresponding law requiring the holder to engage in supervised legal practise or restricting the holder to practise as or in the manner of a barrister: s 4 LPA. “Supervised legal practise” is defined by s 4 to mean legal practice as an employee of or working under supervision in a law practice where at least one partner, legal practitioner director or other employee holds an UPC and the person engages in legal practice under the supervision of that person; or legal practice as a partner in a law firm where at least one other partner holds an UPC and the person engages in legal practice under the supervision of that person.
[2] Affidavit of Kellie Anne Grainger made 15 March 2016 (Grainger 15/3/16) [8] & [9].
[3] Ibid [11] & [13] and Annexure KAG 6.
[4] Grainger 15/3/16 Annexure KAG 6.
[5] Ibid [12] Annexure KAG 5.
[6] Ibid 15/3/16 [15].
[7] Ibid [16] Annexure KAG 8.
[8] Grainger 15/3/16 [17].
[9] Ibid [18] Annexure KAG 9.
[10] Ibid [19] Annexure KAG 10.
[11] Ibid [20] Annexure KAG 11.
[12] Ibid.
[13] Ibid [21].
[14] Ibid [22] Annexure KAG 12.
[15] Affidavits of Wayne Connop made on 24/2/16 (Connop 24/2/16), 25/2/16 (Connop 25/2/16), 8/3/16 (Connop 8/3/16), 23/3/16 (Connop 23/4/16), 5/4/16 (Connop 5/4/16) and 27/5/16 (Connop 27/5/16).
[16] Affidavits of Kellie Anne Grainger made on 25/2/16 (Grainger 25/2/16), 8/4/16 (Grainger 8/4/16) and 11/4/16 (Grainger 11/4/16).
[17] See “Amended Appellant’s Submissions” dated 29 March filed 4 April 2016 (Appellant’s Submissions) and “Respondent’s Written Submissions” dated and filed 6 April 2016 (LSNT Submissions).
[18] See “Appellant’s Amended Closing Written Submissions” filed 31 May 2016 (Appellant’s Closing Submissions), “Appellant’s Supplementary Closing Written Submissions” filed 30 May 2016 (Appellant’s Supplementary Closing Submissions) and “Respondent’s Supplementary Written Submissions” dated and filed 4 May 2016 (LSNT Supplementary Submissions).
[19] Transcript 12/4/16 p 174. Exhibit A2.
[20] Appellant’s Submissions [87].
[21] A UPC entitles the holder to practise as a legal practitioner without restriction; a RBSPC entitles the holder to practise as a legal practitioner only when engaged in supervised legal practise: rr 7(1), (2), (3) of the LPRs.
[22] See Appellant’s Submissions [9].
[23] See Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 at 675 per Smart J, citing Dennis v Law Society of New South Wales (Court of Appeal, 17 December 1979, unreported) at 12-13 and applying the reasoning in Builders’ Licensing Board v Sperway Construction (Syd) Pty Ltd (1976) 135 CLR 616.
[24] See Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 110) at [21]-[27] per Penfold, North JJ and Mathews AJ.
[25] See Stanoevski v The Council of the Law Society of NSW [2008] NSWCA 93 at [58] - [64] per Campbell JA (Hodgson JA and Handley AJA agreeing). These observations were made in the context of an appeal on a question of law from a decision to remove a practitioner’s name from the roll, but they apply equally to an appeal from a decision to cancel a practising certificate.
[26] Briginshaw v Briginshaw (1938) 60 CLR 336 at 361-362.
[27] “Local practising certificate” means a practising certificate granted under s 4 of the LPA.
[28] See New South Wales Bar Association v Murphy (2002) 55 NSWLR 23 (Murphy) at [111] per Giles JA.
[29] Barlow v Law Society of the ACT [2013] ACTSC 68 (Barlow) at [73] per Refshauge, Burns and Marshall JJ. See also the responsibilities of a legal practitioner director of an ILP in s 125 of the LPA - see [313] below.
[30] Regulation 7(3) LPR entitles the holder of a RBSPC to practice only when engaged in “supervised legal practice”, defined in s 4 LPA to require supervision by the holder of a UPC.
[31] Barakat v The Law Society of NSW [2014] NSWSC 773 at [140] per Beech-Jones J, citing NSW Bar Association v Cummins (2001) 52 NSWLR 279 at [20] per Spigelman CJ. See too Murphy at [170].
[32] The NTPCRs are binding on the holder of a UPC such as that held by the appellant. See s 694 LPA.
[33] NTPCRs p 13 (under heading “Practitioners’ Duties to the Court”). The same statement of principle is also contained in the professional conduct rules in ACT, NSW and Victoria.
[34] NTPCR r 17.6.
[35] Ibid r 17.7.
[36] New South Wales Bar Association v Livesey [1982] 2 NSWLR 231 at 233, per Moffitt P citing Re B [1981] 2 NSWLR 372 at pp381-383 and 395.
[37] In re John Cameron Foster (1950) 50 SR (NSW) 149.
[38] Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 (Meagher).
[39] These include Wentworth v NSW Bar Association (1992) 176 CLR 239 at 251; Re Deo (2005) 16 NTLR 102 (Deo) at [6]; Saunders at [5]; Re Gadd [2013] NTSC 13 (Gadd) at [14].
[40] In the matter of an application by Mariel Jessica Sutton [2016] NTSC 9 (Sutton). See too the cases cited therein at [93] - [101] and In the matter of an application by Julian Valvo [2014] NTSC 27.
[41] See for example The Prothonotary Supreme Court of NSW v Darveniza (2001) 121 A Crim R 542 (Darveniza) where the applicant for a practising certificate failed to disclose a criminal conviction in another jurisdiction when his application required him to state whether he was aware of any facts or circumstances which might influence or affect his good fame and character or his fitness to remain a legal practitioner. See [5], [10], [14] and [17].
[42] Re Hampton [2002] QCA 129 at [26].
[43] Re Application by Saunders (2011) 29 NTLR 204 (Saunders) at [6] - [8].
[44] Re OG (A Lawyer) (2007) 18 VR 164.
[45] Thomas v Legal Practitioners Admission Board (2005) 1 Qd R 331.
[46] G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) (Dal Pont) p 723.
[47] Copini [1994] NSWLST 25 at 6.
[48] See summary in Dal Pont at [22.50].
[49] NTPCRs p 7 (under the heading “Relations with Clients”).
[50] G E Dal Pont, Lawyers’ Professional Responsibility (Thomson Reuters, 5th ed, 2013) [4.20].
[51] See Heydon v NRMA Ltd (2000) 51 NSWLR 1at [146] per Malcolm AJA. See also, Rogers v Whitaker (1992) 175 CLR 479 at 483, 487 per Mason CJ, Brennan, Dawson, Toohey and McHugh JJ. See further, Halsbury’s Laws of Australia “250— Legal Practitioners” (C) Standard of Care at [250-1430].
[52] ABA-ALI Committee on Continuing Professional Education Model Peer Review System 11 (Discussion Draft, 15 April 1980). See also Dal Pont [4.20].
[53] See Chapter 3 Part 3.1 concerning trust money and trust accounts and Part 3.3 concerning costs disclosure and assessment.
[54] NTPCRs r 32.
[55] Grainger 15/3/16 Annexure KAG 6 at pp 55-56.
[56] Grainger 15/3/16 Annexure KAG 7.
[57] Connop 5/4/16 [1].
[58] Ibid [2].
[59] Connop 5/3/16 [3].
[60] Appellant’s Closing Submissions [42] - [46].
[61] Transcript 11/4/16 at pp 39-40.
[62] Grainger 15/3/16 Annexure KAG 11.
[63] Transcript 11/4/16 pp 40 and 43.
[64] Connop 8/3/16 [142].
[65] Transcript 11/4/16 pp 43-44.
[66] Ibid p 44.
[67] Ibid pp 44-5.
[68] Appellant’s Closing Submissions [49].
[69] Grainger 15/3/16 Annexure KAG 7 at p 60.
[70] Ibid Annexure KAG 8.
[71] Connop 5/4/16 Annexure WC 68.
[72] Grainger 15/3/16 Annexure KAG 11 at pp 75-6.
[73] Connop 5/4/16 [8] - [9].
[74] Grainger 15/3/16 Annexure KAG 11 at p 76.
[75] Subject to the LPA, an Australian legal practitioner is entitled to engage in legal practice in the Northern Territory (s 45). “Australian legal practitioner” means an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate (s 6(a)).
[76] Grainger 15/3/16 Annexure KAG 5 at pp 45, 49.
[77] Transcript 11/4/16 pp 35-9.
[78] Grainger 15/3/16 [123] - [133] and Annexure KAG 72.
[79] Ibid pp 391-392.
[80] See for example in Connop 8/3/16 [79] - [91], [108], [121] - [123]; Connop 23/3/16 [24(a)].
[81] Grainger 15/3/16 [136] - [137] Annexure KAG 73.
[82] Grainger 15/3/16 [134] - [135].
[83] Ibid Annexure KAG 75.
[84] Connop 24/2/16 [13].
[85] Connop 8/3/16 [42].
[86] Grainger 15/3/16 Annexure KAG 76.
[87] Ibid [137].
[88] Connop 8/3/16 [43].
[89] Grainger 15/3/16 Annexure KAG 76.
[90] Connop 24/2/16 Annexure WC 1.
[91] Appellant’s Submissions [51], [65], [70].
[92] Ibid [83] - [85].
[93] Grainger 15/3/16 [138] - [142].
[94] Connop 8/3/16 [46] - [51].
[95] Grainger 15/3/16 [143] - [152].
[96] Ibid Annexures KAG 82 and KAG 88.
[97] Grainger 15/3/16 Annexure KAG 88 at pp 541-542.
[98] Connop 8/3/16 Annexure WC 39.
[99] Grainger 15/3/16 Annexure KAG 84 at pp 479-481.
[100] Ibid Annexure KAG 84 at pp 475-476.
[101] Connop 8/3/16 [37] - [38].
[102] Grainger 15/3/16 Annexure KAG 86 at p 535.
[103] Ibid Annexure KAG 84 at p 451.
[104] Connop 8/3/16 [40] - [41].
[105] Grainger 15/3/16 Annexure KAG 86 at p 529.
[106] Ibid Annexure KAG 86 at p 530.
[107] Grainger 15/3/16 Annexure KAG 84 at pp 456-458.
[108] Ibid Annexure KAG 86 at p 526.
[109] Ibid Annexure KAG 86 at p 530.
[110] Ibid Annexure KAG 82 at p 444.
[111] Grainger 15/3/16 Annexure KAG 90 at p 547.
[112] Ibid [154] - [159].
[113] Appellant’s Closing Submissions [84].
[114] Grainger 15/3/16 Annexure KAG 92.
[115] Ibid [156].
[116] Ibid Annexure KAG 91 at p 576.
[117] Grainger 15/3/16 Annexure KAG 91 at p 573.
[118] Ibid Annexure KAG 91 at p 574.
[119] Connop 8/3/16 Annexure WC 48 at p 161.
[120] Ibid Annexure WC 48 at pp 149-154.
[121] Grainger 15/3/16 Annexure KAG 72 at pp 383-385.
[122] Connop 8/3/16 Annexure WC 48 at p 150.
[123] See further discussion about this at [144] - [153] below.
[124] Connop 8/3/16 Annexure WC 48 at pp 165-177.
[125] Connop 8/3/16 [63].
[126] Ibid Annexure WG 48 at pp 162-164.
[127] Transcript 11/04/16 at p 94. See also p 96.
[128] Ibid pp 94 to 96. The words in parenthesis are those of Senior Counsel for the Law Society which the appellant conceded were an accurate reflection of his reasons for the irregularities in his records.
[129] D’Alessandro & D’ Angelo v Bouldas (1994) 10 WAR 191(Bouldas) at 211 per Malcolm CJ with whom Rowland and Ipp JJ concurred at 221; Law Society of NSW v Foreman (1991) 24 NSWLR 238 (Foreman) per Mahoney JA at 252.
[130] Transcript 11/04/16 pp 94 and 95.
[131] Appellant’s Closing Submissions [85](a)(i).
[132] Ibid [85](a)(ii) referring to Connop 8/3/16 [135] to [137].
[133] Transcript 11/4/2016 pp 96 to 99.
[134] Grainger 15/3/16 p 588.
[135] Grainger 15/3/16 p 586.
[136] Transcript 11/04/16 pp 97-8.
[137] Ibid pp 98-102.
[138] Transcript 11/04/16 pp 100-102.
[139] LPA s 247(4).
[140] LPR r 63(1).
[141] Ibid r 63(5).
[142] Ibid r 51.
[143] Ibid r 63(6).
[144] Sub-regulation (7) provides exceptions to LPR 63(6)(c) which are not applicable on the facts before the Court.
[145] Grainger 15/3/16 Annexure KAG 91 at pp 585 and 588.
[146] Ibid Annexure KAG 92 at pp 593-4.
[147] Ibid Annexure KAG 92 at pp 593-4.
[148] Transcript 11/04/16 p 102.
[149] Connop 12/5/16.
[150]Exhibit A1.
[151] Connop 27/5/16 WC 84 at pp 7-9.
[152] Connop 27/5/16 WC 84 at p 9.
[153] Transcript 1/6/16 pp 7-8.
[154] Transcript 1/6/16 pp 48-49.
[155] Connop 8/3/16 Annexure WC 58 at p 403.
[156] Grainger 15/3/16 [162] - [168] and Annexures KAG 95 and KAG 96.
[157] Connop 8/3/16 Annexure WC 60.
[158] Ibid Annexure WC 60 at pp 408, 413.
[159] Connop 8/3/16 Annexure WC 60 at pp 408-409.
[160] Ibid pp 422-428.
[161] Ibid p 409.
[162] Ibid pp 410, 412.
[163] Grainger 15/3/16 Annexure KAG 95 at p 609. The underling was included in that passage.
[164] Connop 8/3/16 [128].
[165] Ibid.
[166] Connop 8/3/16 [122]-[123].
[167] Grainger 15/3/16 Annexure KAG 100 at p 645.
[168] Connop 8/3/16 [133] - [134].
[169] Grainger 15/3/16 Annexure KAG 95 at p 613.
[170] Ibid p 614.
[171] Transcript 1/6/16 pp 31-6.
[172] See above at [103] - [105] re Loizou & [137] - [138] re Bekkers.
[173] Transcript 11/04/16 at p 91. See too Transcript 12/04/16 at p 119 with respect to the continuation of this practice.
[174] See [103] - [104] above.
[175] Transcript 11/4/16 p 92.
[176] Ibid.
[177] Ibid.
[178] Ibid p 93.
[179] Appellant’s Closing Submissions [80].
[180] Appellant’s Closing Submissions [83].
[181] Grainger 15/3/16 [169] - [176].
[182] Ibid Annexure KAG at p 104.
[183] Sommer v Coates Hire Operators Pty Ltd [2015] NTMC 28 (11 December 2015) (Sommer Reasons) reproduced at Grainger 15/3/16 Annexure KAG 105 at pp 683-698.
[184] Grainger 15/3/16 Annexure KAG 105 at pp 681-2.
[185] Sommer Reasons [5] – [7].
[186] Grainger 15/3/16 Annexure KAG 105 at pp 684-698.
[187] Sommer Reasons [53].
[188] Connop 8/3/16 [68].
[189] Grainger 15/3/16 Annexure KAG 105 at p 682.
[190] Transcript 12/04/16 pp 149-150.
[191] Transcript 12/04/16 p 150.
[192] Ibid pp 150 to 151.
[193] See too s 96 Criminal Code.
[194] See [30] above.
[195] Grainger 8/4/16 [10] to [13] and Grainger 11/4/16.
[196] Connop 9/4/16 Annexure WC 73 at p 11.
[197] Ibid p 10.
[198] Ibid p 9.
[199] Transcript 12/04/16 p 144.
[200] Connop 9/4/16 Annexure WC 73at p 9.
[201] Ibid [8] - [9] and Annexure WC 74.
[202] Ibid [7].
[203] Transcript 12/04/16 pp 140 to 143.
[204] Transcript 12/05/16 p 143.
[205]Ibid p 145.
[206] LPR 63(6)(a).
[207] Connop 9/4/16 Annexure WC 74 at p 25.
[208] See the appellant’s concession in this regard at Transcript 12/04/16 p 145.
[209] LPR r 68(3).
[210] Ibid r 68(4).
[211] See the Trust Account Statement at pp 48 to 49.
[212] Transcript 12/04/16 p 145.
[213] Transcript 12/04/16 pp 137 to 139.
[214] Connop 5/4/16 Annexure WC 68.
[215] Grainger 15/3/16 Annexure KAG 717.
[216] Appellant’s Submissions, [84].
[217] Grainger 15/3/16 Annexure KAG 9 [180].
[218] Ibid Annexure KAG 109.
[219] Transcript 11/4/16 p 46.
[220] Ibid p 47.
[221] Ibid p 48.
[222] Connop 8/3/16 Annexure WC 52.
[223] Grainger 15/3/16 Annexure KAG 107 at p 767.
[224] Connop 8/3/16 Annexure WC 51.
[225] Transcript 11/04/16 p 50.
[226] Grainger 15/3/16 Annexure KAG 109 at pp 885 to 895.
[227] Transcript 11/04/16 p 50.
[228] Grainger 15/3/16 Annexure KAG 109 at p 888.
[229] Transcript 11/04/16 pp 50-2.
[230] Appellant’s Closing Submissions [61].
[231] Connop 8/3/16 Annexure WC 52 [9] cf WC 51 [9].
[232] Ibid [11] cf WC 51 [11].
[233] Ibid [17] cf WC 51 [17].
[234] Ibid [20] cf WC 51 [20].
[235] Ibid [21] cf WC 51 [21].
[236] Transcript 11/04/16 p 54.
[237] Ibid p 61.
[238] Ibid p 62.
[239] Transcript 11/04/16 p 52.
[240] Ibid p 55.
[241] Ibid.
[242] Transcript 11/04/16 p 60.
[243] Transcript 20/11/15 in Grainger 15/3/16 Annexure KAG 108 at p 720.
[244] Transcript 27/10/15 p 23 in Grainger 15/3/16 Annexure KAG 107 at p 747.
[245] Grainger 15/3/16 Annexure KAG 109 at pp 885 to 895.
[246] Transcript 11/04/16 p 82.
[247] Transcript 27/10/15 p 3 in Grainger 15/3/16 Annexure KAG 107 at p 720.
[248] Grainger 15/3/16 Annexure KAG 107 at p 863.
[249] Appellant’s Closing Submissions [60(c)].
[250] Transcript 27/10/15 p 3 in Grainger 15/3/16 Annexure KAG 107 at p 721.
[251] Transcript 11/04/16 pp 52-53.
[252] Grainger 15/3/16 Annexure KAG 107 at p 868.
[253] Transcript 11/04/16 p 59.
[254] Ibid p 77.
[255] Grainger 15/3/16 Annexure KAG 107 at p 860.
[256] Transcript 27/10/15 p 2 in Grainger 15/3/16 Annexure KAG 107 at p 719.
[257] Transcript 27/10/15 p 23 in Grainger 15/3/16 Annexure KAG 107 at p 740.
[258] Transcript 11/11/15 p 16 in Grainger 15/3/16 Annexure KAG 107 at p 759.
[259] Transcript 20/11/15 pp 1-8 in Grainger15/3/16 Annexure KAG 108 at pp 876-883.
[260] Transcript 11/11/15 p 7 in Grainger 15/3/16 Annexure KAG 107 at p 767.
[261] Transcript 11/4/16 p 66.
[262] Grainger 15/3/16 Annexure KAG 107 at p 751.
[263] Transcript 11/04/16 p 65.
[264] Appellant’s Closing Submissions [67].
[265] Transcript 11/11/15 p 8 in Grainger 15/3/16 Annexure KAG 107 at p 751.
[266] Transcript 11/04/16 pp 64-6.
[267] Connop 8/3/16 Annexure WC 52 at p 272.
[268] Transcript 11/04/16 p 71.
[269] Transcript 11/4/16 pp 71 – 75.
[270] Ibid p 76.
[271] Appellant’s Closing Submissions [69] – [73].
[272] Transcript 11/04/16 p 48.
[273] Grainger 15/3/16 Annexure KAG 107 at p 769.
[274] Transcript 11/04/16 p 77.
[275] Ibid p 78.
[276] Ibid.
[277] Grainger 15/3/16 Annexure KAG 107 at p 863.
[278] Transcript 11/04/16 p 88.
[279] Ibid – see also p 79.
[280] Appellant’s Closing Submissions [60(b)].
[281] Letter to the Law Society at Grainger 15/3/16 Annexure KAG 109 at p 889.
[282] Transcript 11/04/16 at p 83.
[283] Letter to the Law Society at Grainger 15/3/15 Annexure KAG 109 at p 889 and Transcript 11/04/16 p 84.
[284] Transcript 20/11/15 p 6 in Grainger 15/3/16 Annexure KAG 107 at p 766.
[285] Transcript 11/04/16 p 86.
[286] Grainger 25/2/16 Annexure KAG 11.
[287] Connop 24/2/16 Annexures WC 23 and WC 24.
[288] Grainger 25/2/16 [19] and Annexure KAG 11.
[289] Grainger 15/3/16 [46] - [49]. The appellant admitted that trust accounts are not supposed to have bank charges deducted from them: Connop 8/4/16 [100].
[290] Grainger 15/3/16 [95].
[291] Ibid [109] and Annexure KAG 64.
[292] See [268] below.
[293] Connop 8/3/16 [99] – [101] and [107] – [110].
[294] Grainger 15/3/16 [49] and Annexure KAG 20.
[295] Connop 8/3/16 [108].
[296] Connop 8/3/16 [102] - [104].
[297] He did not provide the 2013-2014 external examiners report (EER) (which disclosed the three transactions) until 8 April 2015: Grainger 15/3/16 [95] and Annexure KAG 54. He did not provide the 2014-2015 Part B declaration (which disclosed the overdrawn trust account ledgers) until 12 October 2015: Grainger 15/3/16 [106] and Annexure KAG 62.
[298] Transcript 11/04/16 pp 104-8.
[299] Transcript 11/04/16 p 106.
[300] Exhibit A1.
[301] Connop 12/5/16 [14] – [15].
[302] Connop 8/3/16 [92].
[303] Connop 27/5/16 [1].
[304] Connop 27/5/16 [2] and Annexure WC 84.
[305] Transcript 1/6/16 p 4.5.
[306] Ibid p 4.
[307] Transcript 1/6/16 p 46.
[308] Ibid p 5.
[309] Ibid p 9.
[310] Connop 8/3/16 [112].
[311] Ibid [113].
[312] Grainger 15/3/16 [109] and Annexure KAG 64 from p 252.
[313] Connop 27/5/16 Annexure WC 84 at p 33.
[314] Ibid at p 42.
[315] Ibid at p 54.
[316] Transcript 1/6/16 p 25.
[317] Transcript 1/6/16 p 27.
[318] Grainger 15/3/16 [43] - [110].
[319] Connop 23/3/16 [22] - [23].
[320] Appellant’s Closing Submissions [109].
[321] Ibid [113].
[322] Connop 24/2/16 Annexure WC 24 at pp 253 and 300-363.
[323] The appellant agrees with what Ms Grainger has attested about her conversations with him: Connop 23/3/16 [23].
[324] Connop 23/3/16 [24].
[325] Connop 23/3/16 [25].
[326] Murphy at [113].
[327] At [10].
[328] Connop 8/3/16 [9] and Transcript 11/04/16 p 27.
[329] Transcript 11/04/16 p 27.
[330] Transcript 12/04/2016 p 115.
[331] Transcript 11/4/2016 p 27.
[332] Ibid pp 28 to 31.
[333] A copy of the appellant’s application appears in Grainger 15/3/16 Annexure KAG 14 at pp 99 to 104.
[334] LSNT Supplementary Submissions [208].
[335] See s 540 - the definition in this context is limited to the publication of disciplinary action taken against a legal practitioner under the LPA.
[336] Dr Peter Nygh and Peter Butt (eds), Butterworths Australian Legal Dictionary (Butterworths, 1997).
[337] Commission for Safety and Rehabilitation of Commonwealth Employees v Chenhall (1992) 37 FCR 75 at 83-84.
[338] Applicant’s Closing Submissions [36].
[339] Connop 8/03/16 [8] and [9].
[340] Appellant’s Closing Submissions [30] – [31].
[341] Transcript 12/4/16 p 116.
[342] Ibid p 119.
[343] Ibid.
[344] Transcript 12/4/16 p 117.
[345] See [286] above.
[346] Appellant’s Closing Submissions [38].
[347] Grainger 15/3/16, [124], [126], [139] - [141], [144], [146] - [148], [150] - [152], [163], [165] - [167], [170], [172] - [173].
[348] See [251] - [252] above.
[349] Appellant’s Submissions [34] - [40].
[350] Grainger 15/3/16 [125] - [127].
[351] Ibid [164] - [167].
[352] Ibid [171] - [175].
[353]Transcript 11/05/16 pp 106 to 107.
[354] Appellant’s Closing Submissions [106].
[355] Connop 23/3/16 [8] - [9] Annexure WC 67.
[356] Grainger 15/3/16 [26] Annexure KAG 15.
[357] Ibid [27].
[358] Connop 23/3/16 [9] Annexure WC 67.
[359] Connop 23/3/16 [8].
[360] Grainger 15/3/16 [29]. There is in fact no reference to the company on the appellant’s letters annexed to Grainger 15/3/16 Annexures KAG 80 and KAG 109.
[361] See Grainger 15/3/16 Annexure KAG 14, which is the appellant’s application for a UPC commencing on 1 July 2012. The section regarding ILPs is left blank; none of the supporting documentation required by the ILP form has been included.
[362] Connop 8/3/166 Annexure WC 35, esp at p 31.
[363] Connop 23/3/16 [10]. See also Grainger 15/3/16 [29].
[364] Grainger 15/3/16 [23] - [24] Annexure KAG 13, esp at pp 91, 93.
[365] Ibid Annexure KAG 13.
[366] Transcript 11/04/16 p 31.
[367] Exhibit A4.
[368] Transcript 11/04/16 p 32.
[369] Grainger 8/4/16 Annexure KAG 111.
[370] Connop 8/3/16 [148] - [151] and Annexures WC 64 and WC 65. See too Hutton reports 7 April and 27 May 2016 (Exhibit A5).
[371] Appellant's Closing Submissions [55].
[372] Connop 12/5/16 Annexure WC 77.
[373] Exhibit A5.
[374] See [378] below.
[375] Connop 12/5/16 [12] and Annexure WC 83.
[376] Ibid Annexure WC 80 at p 20.
[377] Appellant’s Closing Submissions [135].
[378] Connop 12/5/16 [11] and Annexure WC 82.
[379] Transcript 1/6/16 p 36.
[380] Connop 27/5/16 Annexure WC 86.
[381] Transcript 1/6/16 p 37.
[382] Connop 27/5/16 Annexure WC 86 at p 93.
[383] Transcript 1/6/16 p 41-2.
[384] Ibid p 41.
[385] Transcript 12/4/16 p 175. See Exhibit A2.
[386] Connop 8/3/16 [2] – [9].
[387] Connop 5/4/16 Annexure WC 67 at pp 23 - 24.
[388] Ibid pp 25 - 26.
[389] See Exhibit A3 and Transcript 12/04/16 pp 181-2.
[390] Transcript 12/04/16 p 183.
[391] Ibid p 184.7.
[392] Transcript 12/04/16 p 155.
[393] Ibid p 155.
[394] Transcript 12/4/16 pp 155-6.
[395] Ibid p 183.
[396] See Connop 5/4/16 [7] - [14]; Grainger 8/4/16 Annexure KAG 111 and [328] - [336] below.
[397] Connop 23/3/16, [152], Connop 5/4/16, Annexure WC 70.
[398] Connop 5/4/16 Annexure WC 70 at p 45.
[399] A copy of the spreadsheet (as completed by the appellant) appears at Connor 5/4/16 WC 70 pp 46 to 47.
[400] Connop 5/4/16 Annexure WC 70 [18].
[401] Transcript 12/04/2016 pp 120-130.
[402] Ibid pp 121-124.
[403] Ibid p 125.
[404] Transcript 12/04/2016 pp 129-130.
[405] Connop 24/2/16 [20(b)].
[406] Connop 12/5/16 [3] – [5] and Annexures WC 77 and WC 78.
[407] Connop 5/4/16 [15].
[408] Ibid Annexure WC 69 at p 43.
[409] Connop 5/4/16 Annexure WC 69 at p 43.
[410] LSNT Submissions [89].
[411] See [39] - [41] above.
[412] See [12] above and [349] above.
[413] Connop 27/5/16 [7].
[414] See [259] - [263] above.
[415] See [263] above.
[416] Transcript 1/6/16 p 47.1.
[417] Ibid p 47.
[418] Transcript 1/6/16 p 44.
[419] Ibid p 45.
[420] Transcript 12/4/16 p 177.
[421] Transcript 11/04/16 at pp 35, 36, 38, 58, 61 and 67.
[422] Transcript 11/04/16 at pp 41, 47, 54, 58, 59, 60, 71, 74, and 76; Transcript 12/04/16 pp 138, 139, 147 to 148, 154 and 177.
[423] Transcript 11/04/16 pp 37, 84, 92, and 93 Transcript 12/04/16 p 156.
[424] Transcript 11/04/16 pp 59, 71.7 and Transcript 12/04/16 at pp 150 to 151.
[425] See for example [56], [58], [65], [67], [69], [70], [85], [120], [122], [143] - [151], [165] - [167], [193], [209], [210], [211], [262] and [303] above.
[426] See for example the passages quoted in [234] & [365] above. See too Transcript 11/04/16 p 59.
[427] See [262] above.
[428] Transcript 1/6/16 p 33.
[429] See [343] above.
[430] See [390] - [397] above.
[431] Appellant’s Closing Submissions [13].
[432] Ibid [14].
[433] Appellant’s Closing Submissions [15].
[434] Ibid [18].
[435] cf Street CJ in Foster quoted in [31] above.
[436] Transcript 1/6/16 p 60.
[437] Appellant’s Closing Submissions [21].
[438] See too [169] above.
[439] See for example [82], [95], [110], [113], [132], [140], [254], [271] and [335] above.
[440] Transcript 11/04/16 p 96.
[441] Transcript 12/04/16 p 140.
[442] Grainger 15/3/16 Annexure KAG 90 at pp 548 to 549.
[443] Transcript 11/04/16 p 79. See too [243] above.
[444] See [66] - [69] above.
[445] See [206] - [210] above.
[446] See for example [94] (Ms Ray), [117] (Mr Loizou), [156] (Sommer complaint) and [204], [211], [218] and [236] (Hes) above.
[447] Appellant’s Supplementary Closing Submissions [9].
[448] See [348] - [352] above.
[449] LSNT Supplementary Submissions [242].
[450] See [104], [137] and [144] - [153] above.
[451] See [385] - [386] above.
[452] See conclusions at [248] - [249] above.
[453] See [302] - [305] above.
[454] See [165] - [169] above.
[455] See references footnoted under [399] above.
[456] See Connop 25/2/16, [2] - [14]; Connop 8/3/16 [42], [66]; Connop 23/3/16 [4] - [5], [7]; Connop 5/4/16 [1].
[457] See for example the June 2012 UPC application and the declaration in his recent application for a RBSPC.
[458] LSNT Supplementary Submissions [243].
[459] See too my discussion about this topic at [164] to [169] above.
[460] Appellant’s Closing Submissions [23] – [28].
[461] Appellant’s Submissions [2]-[6].
Key Legal Topics
Areas of Law
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Professional Conduct & Regulation
Legal Concepts
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Jurisdiction
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Standing
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Appeal
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Legal Privilege
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Admissibility of Evidence
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Expert Evidence
-
Unconscionable Conduct
-
Duty of Care
-
Negligence
-
Unjust Enrichment
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Fiduciary Duty
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Constructive Trust
-
Equitable Estoppel
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