Council of the Law Society of the ACT v Bandarage
[2019] ACTSCFC 1
•18 March 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
FULL COURT
Case Title: | Council of the Law Society of the ACT v Bandarage |
Citation: | [2019] ACTSCFC 1 |
Hearing Date(s): | 11 February 2019 |
DecisionDate: | 18 March 2019 |
Before: | Murrell CJ, Loukas-Karlsson J and Walmsley AJ |
Decision: | Pursuant to s 431(3) of the Legal Profession Act 2006 (ACT), the Respondent Chanaka Nihal Bandarage’s name is removed from the roll of people admitted to the legal profession maintained by the Supreme Court pursuant to s 27 of the said Act. The order made by Mossop J on 12 July 2017 anonymising the Respondent’s name is vacated. |
Catchwords: | LEGAL PRACTITIONERS – DISCIPLINARY PROCEEDING – Application for removal from the roll of legal practitioners – When ACAT recommended that the practitioner’s name be removed from the roll – Where the practitioner was subject to multiple disciplinary proceedings – Whether the practitioner is a fit and proper person to practise law |
Legislation Cited: | Human Rights Act 2004 (ACT) ss 24, 31(1) Legal Practitioners Act 1970 (ACT) Legal Profession Act 2006 (ACT) ss 6, 148, 384, 386, 387, 389, 423A, 425(3)(a), 431, 462 |
Cases Cited: | A Solicitor v Law Society of New South Wales [2004] HCA 1; 216 CLR 253 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Ziems v Prothonotary of the Supreme Court (NSW) (1957) 97 CLR 279 |
Texts Cited: | General Comment No. 32 – Article 14: Rights to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (23 August 2007). International Covenant on Civil and Political Rights |
Parties: | Council of the Law Society of the ACT (Applicant) Chanaka Nihal Bandarage (Respondent) |
Representation: | Counsel Mr N Beaumont SC (Applicant) Self-represented (Respondent) |
| Solicitors Phelps Reid Lawyers (Applicant) Self-represented (Respondent) | |
File Number(s): | SC 44 of 2017 |
THE COURT
Introduction
Relying on s 431(3) of the Legal Profession Act 2006 (ACT) (LPA), the Council of the Law Society of the Australian Capital Territory (the Council) asked the Full Court to order that the practitioner’s name be removed from the local roll of practitioners.
In 1996, the practitioner was admitted to practice in the ACT and NSW. From 1998, he held an unrestricted practising certificate. Apart from a 12-month period when he practised in NSW, the practitioner held an unrestricted practising certificate in the ACT from 1998 until 30 June 2012, when it was not renewed.
Between 2006 and 2013, the practitioner was the subject of four ACT disciplinary proceedings relating to conduct that had occurred between 2005 and 2009 (and, on one occasion, in 2011).
At the conclusion of the fourth disciplinary proceedings in February 2013, under s 425(3)(a) of the LPA, the ACT Civil and Administrative Tribunal (the Tribunal) recommended that the practitioner’s name be removed from the local roll of practitioners.
The Council commenced the present proceedings on 10 April 2017, but the hearing of the proceedings was delayed by appeals against the Tribunal’s decisions in the third and fourth disciplinary proceedings, and by interlocutory applications.
Interlocutory application in the removal proceedings
In interlocutory proceedings relating to this application, the practitioner sought a variety of orders, including an order that the removal application be heard by a bench consisting only of “interstate judges”: Legal Practitioner v Law Society of the Australian Capital Territory [2018] ACTSC 351 (Recusal Decision). The practitioner argued that particular judges (especially Burns, Mossop and Elkaim JJ, but also Murrell CJ) had displayed actual or apprehended bias towards him: see Recusal Decision at [23]–[25]. In relation to Murrell CJ, the practitioner relied upon 2017 correspondence between himself and the Registrar, and contended that her Honour’s role in appointing Admissions Board members gave rise to apprehended bias: at [29]. Further, the practitioner canvassed a concept of “institutional bias”, contending that all judges of the Court were biased towards him, or a fair-minded lay observer might reasonably apprehend that they might not bring an impartial and unprejudiced mind to the resolution of matters involving him.
Murrell CJ decided that a fair-minded lay observer would not conclude that, as head of jurisdiction, she would not afford him fairness and impartiality: Recusal Decision at [37]. Her Honour refused the application that the Full Court application be heard by “interstate judges”, inter alia because the evidence disclosed no basis for reasonable concern about “institutional bias”, even if “institutional bias” could legitimately found a complaint of bias: at [43]–[51]. Her Honour observed that the practitioner’s distrust of resident judges of the Court seemed to arise primarily from the fact that some had made decisions adverse to him, and the practitioner’s perception that they may do so in the future: at [48].
Basis of removal application
Section 425(3) of the LPA provides:
(3)The ACAT may make the following orders in relation to the Australian legal practitioner:
(a) an order recommending that the name of the practitioner be removed from the local roll;
…
Section 431(3) of the LPA provides:
(3)If the ACAT makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll—
(a) a copy of the order may be filed in the Supreme Court; and
(b) the Supreme Court may order the removal of the name from the roll.
The Council sought an order that:
Pursuant to section 431(3) of the Legal Profession Act 2006, the [practitioner’s] name be removed from the roll of people admitted to the legal profession maintained by the Supreme Court pursuant to section 27 of the said Act.
The grounds of the original application referred to the Court’s inherent jurisdiction to discipline local lawyers, which is expressly preserved by s 462 of the LPA:
462Jurisdiction of Supreme Court not affected
The inherent jurisdiction and powers of the Supreme Court in relation to the control and discipline of local lawyers are not affected by anything in this chapter, and extend to—
(a)local legal practitioners; …
However, at the hearing, the Council sought to rely on an Amended Originating Application filed on 11 January 2019 that omitted the reference to the Court’s inherent jurisdiction from the grounds and substituted a reference to s 431 of the LPA. The Council had been granted leave to file the amended application by the Deputy Registrar on 20 December 2018, after the Recusal Decision was handed down.
The practitioner objected, saying that it was too late for the Council to seek to amend the original application. He did not advance any substantive reason why the Court should refuse the amendment, merely asserting that the Council had failed to lodge the amended application within the period for filing.
The question of whether the amended application was filed out of time was left unanswered at the hearing.
The court record indicates that the Deputy Registrar granted leave for the Council to file the amended application without specifying a time within which it must be filed. Consequently, the amended application was not filed out of time. Further, the court record indicates that the order granting leave to file the amended application was made by consent. There was every reason for the practitioner to have given consent. From the outset, the removal order had been sought “pursuant to section 431(3) of the Legal Profession Act 2006”; the amendment merely brought the grounds into line with the order sought.
Under the Court’s inherent jurisdiction, and under s 431 of the LPA, the ultimate question is the same. It is whether the practitioner is a fit and proper person to be a legal practitioner of the Court; whether the Court should hold out the practitioner as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner: A Solicitor v Law Society of New South Wales [2004] HCA 1; 216 CLR 253 at [15].
On the other hand, there is an important procedural distinction between an application under s 431 of the LPA and an application that invokes the Court’s inherent jurisdiction. On an application under the statute, the Court decides the issue on the basis of the Tribunal’s findings of fact. Where proceedings rely on the Court’s inherent jurisdiction, the Court decides the background facts for itself.
In the course of the hearing, there was a discussion concerning this distinction, but the practitioner did not seek to rely on it, and did not contend that the Council should call the background evidence afresh. Had he done so, in the context of the numerous appeals questioning critical findings of fact that have been made by the Tribunal, it is most unlikely that the Court would have favoured the argument.
New evidence on the strike off application
The practitioner sought to rely upon a bundle of materials lodged shortly before the hearing. The bundle included a letter of support from the complainants in the fourth disciplinary proceedings, character references, and media reports concerning high profile cases in which the practitioner had achieved success for disadvantaged clients. The bundle also contained pictures of the practitioner with various politicians and photocopies of the practitioner’s testamur. A June 2012 letter from a medical practitioner indicated that disciplinary proceedings had caused the practitioner to feel “depressed and anxious”, and that he experienced “fear and anxiety” in relation to his future.
Apart from the letter of support from the complainants and a letter from Ms Cook, who described herself as “Branch Manager, Australian Government (retired)”, most of the character references were at least two decades old.
One may question the relevance of some of the materials to the issue of whether the practitioner is currently a fit and proper person, but the material was admitted without objection as Exhibit 1.
Further, the practitioner was allowed to read an affidavit dated 29 January 2019, in which he argued that the Recusal Decision was erroneous in a number of respects. The affidavit also annexed correspondence between the practitioner and the Court (concerning vacation of the Full Court hearing, alleged errors in the Recusal Decision and the need to anonymise the practitioner’s identity), and elaborated on allegations of bias and apprehended bias on the part of the Tribunal and the Court.
At the conclusion of the Full Court hearing, the practitioner was permitted to file further short written submissions addressing matters that had been raised during the hearing. Further submissions were filed on 25 February 2019. While they do not constitute evidence, the submissions do imply a somewhat greater willingness by the practitioner to address the real issues founding the application for removal.
History of disciplinary proceedings
First disciplinary proceedings (Barrister Complaint)
In 2006, a barrister made a complaint under the Legal Practitioners Act 1970 (ACT) (the 1970 Act) that, when filing an affidavit and an amended application in the Federal Magistrates Court on behalf of a client in an immigration matter, the practitioner had indicated that the client was filing in person, i.e. that the practitioner was not involved in the matter. He had then justified his action to the barrister by saying that:
Migration matters have poor prospects. If the client had filed the document, it is harder for the Minister to get costs order against the Solicitor …
The practitioner informed the Professional Conduct Board of the Law Society of the ACT (the Board), being the relevant disciplinary body under the 1970 Act, that he had not intended to mislead the Federal Magistrates Court about whether there was a solicitor on the record but understood that he may have done so.
In the disciplinary proceedings, the practitioner was represented by counsel. He did not contest the fact that the conversation as recorded above at [24] was accurate, although he “had no recollection of what had been said in that telephone conversation”: In re a Complaint (Unreported, Professional Conduct Board of the ACT Law Society, 21 December 2006) (Barrister Decision) at [11].
The Board was “comfortably satisfied” of the material facts founding the complaint, most of which had been agreed between the parties: at [15]. It found that the practitioner’s conduct was unsatisfactory professional conduct that was “at the more serious end of the scale”: at [20].
Although the practitioner’s conduct during the first disciplinary proceedings was not itself the subject of a complaint, in its decision the Board criticised the practitioner for repeatedly seeking an extension of time (Barrister Decision at [24]–[25]), suggesting that the complainant had acted in a blameworthy or even fraudulent manner (at [28], [30]–[32]) and lacking candour towards the ACT Law Society (the Society) (at [34]). Regarding the allegation of fraud by the complainant, the Board observed that:
29. … the Practitioner sought to blame someone else for his misconduct even up until the hearing, illustrates … that he (still) does not fully appreciate his ethical responsibilities as a legal practitioner.
…
32. These assertions by the Practitioner were outrageous, all the more so in light of the fact that no evidence was put forward on the Practitioner’s behalf to support any of his assertions.
After these matters were brought to his attention, the practitioner instructed counsel to unreservedly withdraw the allegations of fraud against the complainant: Barrister Decision at [31].
The Board reprimanded the practitioner and required him to undertake an ethics course: at [36]. We assume that he did so.
We note that the Board’s findings were accepted into evidence and treated as relevant by the Tribunal in deciding the penalty in the second disciplinary proceedings: see below at [40]–[41].
Second disciplinary proceedings (E/T Complaint)
In 2008, former conveyancing clients of the practitioner (purchasers) complained that he had deliberately reconstructed a duplicate letter on their conveyancing file, so that the terms of the original letter would be seen neither by them nor by the solicitors whom they subsequently instructed on the conveyance.
In response to a courteous suggestion from the vendors’ solicitors that, as the practitioner was unfamiliar with Queensland conveyancing practice, he might care to engage Queensland agents to assist him, on 8 January 2008 the practitioner had written:
We regret the [suggestion to engage an agent of] your letter. Exposition of such arrogance is quite unnecessary.
When the clients directed the practitioner to forward their conveyancing file to new solicitors, he removed the copy letter containing this sentence from the file and replaced it with a copy letter in which the offending sentence did not appear. Other minor changes were also made: The Law Society of the Australian Capital Territory v The Legal Practitioner (Occupational Discipline) [2010] ACAT 69 (E/T Liability Decision) at [42].
The Tribunal observed that, during the proceedings, the practitioner’s “answers to questions were often non-responsive and tangential” and, at times, “argumentative”, even taking into account the practitioner’s understandable stress and anxiety caused in relation to the proceedings: E/T Liability Decision at [27] and [29]. The Tribunal observed that the practitioner obfuscated and that his evidence “[had often been] confused and confusing”: at [32]–[33].
Nevertheless, in general, the material facts had been agreed between the parties: at [34].
The practitioner admitted that he had changed the letter because he had not wanted the clients’ new solicitors to see it in its original form: E/T Liability Decision at [90]. He said that he had been motivated by desire to calm tensions rather than a desire to mislead: at [51].
The Tribunal rejected the practitioner’s submission that he had been entitled to do what he wanted with the letter, because it had been his property and his clients had terminated his retainer. The Tribunal was “concerned that this submission suggests that the Respondent does not understand that his actions involved deceit”: E/T Liability Decision at [95].
The Tribunal found that the practitioner’s conduct had been both misleading and deceptive, and that the practitioner had breached his duty to be open and frank in his dealings with the Law Society: E/T Liability Decision at [97]. The Tribunal characterised the practitioner’s conduct “as being at the higher end of unsatisfactory professional conduct” due to the “element of deception of both the client and the Law Society”: at [98].
In its decision on penalty (The Law Society of the Australian Capital Territory v The Legal Practitioner (Occupational Discipline) [2011] ACAT 51 (E/T Penalty Decision)), the Tribunal recalled its concern that the practitioner did not appreciate that his behaviour had involved deceit: E/T Penalty Decision at [45]. It was also concerned that the practitioner had not learned from the first disciplinary proceedings: at [46].
Having regard to the seriousness of the matter, the practitioner’s lack of insight, and the context of the first disciplinary proceedings, the Tribunal imposed a public reprimand and a fine of $3000, and ordered the practitioner to pay the Society’s costs: E/T Penalty Decision at [47], [49] and [51].
On appeal, Penfold J set aside the finding that the practitioner’s conduct had misled the Society, but otherwise upheld the Tribunal’s determination of unsatisfactory professional conduct and the penalties imposed.
Third disciplinary proceedings (SD/MG Complaint)
The third disciplinary proceedings revolved around a conveyancing transaction in which the practitioner had acted for a couple, SD and MG.
Because SD’s middle name appeared on the mortgage, but not the transfer delivered to the couple’s mortgagee, the mortgagee could not register the transfer. The Tribunal found that, on 21 February 2008, the mortgagee’s lawyers had asked the practitioner for an amended transfer that included SD’s middle name, as well as the original contract for sale. On 28 April 2008, the practitioner had responded by providing the incorrect contract for sale (one that related to another property), further delaying the stamping and transfer of title to SD and MG: Council of the Law Society of the ACT v The Legal Practitioner ‘X’ (Occupational Discipline) [2012] ACAT 34 (SD/MG Liability Decision) at [6]–[9].
On 20 November 2008, the practitioner informed his clients that he had not received the mortgagee’s February request for the original contract for sale. He said that he had first been asked for the original contract of sale on 28 April 2008, but that the mortgagee’s lawyers had given no reason for the request: SD/MG Liability Decision at [19].
Responding to the practitioner’s communication of 20 November 2008, by an email of the same date, SD informed the practitioner that if he did not address the complainants’ grievance, they would ask the Society to review the matter: SD/MG Liability Decision at [22], [121].
In a letter of 21 November 2008, the practitioner admitted to the complainants that he had made mistakes and offered to compensate. The offer was repeated in a letter dated 23 November 2008: SD/MG Liability Decision at [20]–[21], [122]. The complainants responded with a particularised claim for compensation on 30 November 2008, noting that they had already met with the Society: SD/MG Liability Decision at [22]–[23], [124].
In a letter dated 9 December 2008, the practitioner offered to settle the claim on a compromise basis (by paying about 10 per cent of the compensation claimed), but his offer was not accepted by the complainants: SD/MG Liability Decision at [24], [125].
On 10 December 2008, the complainants formally complained to the Society. The Society wrote to the practitioner on 12 December 2008 notifying him of the complaint: SD/MG Liability Decision at [27]–[28].
Prior to the practitioner learning of the complaint, on 12 December 2008 he wrote to the complainants, reiterating his offer and stating that he was giving consideration to communicating with SD’s employer to ask whether SD had been paid wages for the times that SD claimed to have been working on the conveyancing problem. The complainants forwarded that letter to the Society: SD/MG Liability Decision at [29]–[30].
The Society’s complaint to the Tribunal proceeded on three main grounds. First, that the practitioner had failed to properly and promptly discharge the retainer from his clients, in that he had been negligent (in the sense of failing to meet the requisite standard of competence and diligence). Second, that he had engaged in misleading conduct (by making deliberate or reckless misrepresentations to SD, MG and the Society). And third, that the practitioner had engaged in threatening and intimidating conduct (in threatening to contact SD’s employer).
The Tribunal found that the conveyancing mistakes were “more than human error of a busy practitioner that would be reasonable to excuse”, amounting to unsatisfactory professional conduct: SD/MG Liability Decision at [88].
The Tribunal found that the statements blaming the mortgagee were deliberate (or, at the very least, that they were reckless) misrepresentations, amounting to professional misconduct: SD/MG Liability Decision at [94], [96] and [116].
The Tribunal found that the practitioner’s 12 December letter to the complainants was an attempt to dissuade them from pursuing a complaint against him by suggesting that their conduct was “perhaps improper, or in some way fraudulent”, and threatening to contact SD’s employer if a complaint was made: SD/MG Liability Decision at [128], [134]. At [137], the Tribunal said:
The threat was made by the [practitioner] on only one occasional and was not carried out. However, it must be viewed seriously since it was an attempt to coerce and manipulate his clients to avoid a complaint. The Tribunal takes the view that this conduct constitutes professional misconduct.
The Tribunal handed down its penalty decision on 31 August 2012: Council of the Law Society of the ACT v The Legal Practitioner X (Occupational Discipline) [2012] ACAT 60 (SD/MG Penalty Decision). The Tribunal questioned the extent to which the practitioner was remorseful (at [12]) and noted the two prior disciplinary proceedings.
The Tribunal observed that adverse findings had been made against the practitioner in the fourth disciplinary proceedings (discussed below), but there had not yet been a decision on penalty. In those circumstances, the Tribunal decided to disregard the fourth disciplinary proceedings: SD/MG Penalty Decision at [18]–[19].
The Tribunal ordered that the practitioner not be granted a local practising certificate for three months. In making that order, the Tribunal said (at [33]):
The loss of a practising certificate would have a profound effect on a practitioner’s capacity to resume his or her practise, depending on the period of suspension. A period of three months could be seen as a watershed period after which successful resumption of practise would … become increasingly difficult.
The Tribunal noted that, at the conclusion of the suspension period, the practitioner would have to reapply for a practising certificate and would not necessarily be granted one: SD/MG Penalty Decision at [34].
The practitioner appealed against both the finding of liability and imposition of penalty by the Tribunal. The details of the appeal are set out below at [80]–[88].
Fourth disciplinary proceedings (O/U Complaint)
In 2010, the fourth set of disciplinary proceedings was instigated following a complaint by former clients of the practitioner, a husband and wife, who had retained the practitioner to undertake two conveyancing transactions during 2009.
The first transaction involved the conveyance of a Lyneham property from the husband’s name into the joint names of the husband and wife. The practitioner had to ensure that the couple was charged only nominal stamp duty on the transaction. The transaction had to be undertaken promptly so that the Lyneham property became available as security for the couple’s purchase of a Kaleen property, the second transaction in which the practitioner was instructed.
The statutory declaration that the practitioner lodged to support the stamp duty exemption on transfer of the Lyneham property was deficient; it included unnecessary material and omitted essential material. In particular, the Tribunal found that the practitioner should have included a copy of the couple’s marriage certificate. As a consequence, the discharge of the mortgage over the Lyneham property was delayed, delaying the settlement of the Kaleen property, and the complainants had to pay penalty interest and vendor costs totalling $1428.77: Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupational Discipline) [2012] ACAT 40 (O/U Liability Decision) at [22]–[26].
In a discussion with the complainants on 23 June 2009, the practitioner blamed the ACT Revenue Office for the delay: O/U Liability Decision at [135].
By a letter dated 3 July 2009, the practitioner provided an inaccurate and incomplete report to the complainants; among other things, the report misstated the fees and disbursements, and failed to mention that the complainants were required to pay penalty interest and associated vendor costs: O/U Liability Decision at [26].
On 20 July 2009, the complainants complained to the Society: O/U Liability Decision at [27].
On 18 August 2009, the practitioner wrote to the Society, stating that he was “not in the country” on 3 July 2009, and sought to blame banks and the ACT Revenue Office for the errors. The letter was attached to an affidavit filed in the Tribunal on 2 February 2011. In fact, on 3 July 2009, the practitioner had been working in his office; he did not travel overseas until some days later: O/U Liability Decision at [138]–[157].
On 4 September 2009, the practitioner wrote to the complainants purporting to correct earlier errors and omissions. The Tribunal observed that some errors remained in the later letters: O/U Liability Decision at [29], [121]–[122].
Before the Tribunal, the Council relied on four grounds. First, that the practitioner had failed to act with competence and diligence (by failing to competently undertake the conveyances and properly report to the complainants). Second, that he had failed to administer a practice efficiently and properly (relying on the same matters). Third, that he had failed to act honestly and fairly (by falsely telling the complainants that others were responsible for the delay). And fourth, that he had failed to be open and frank in his dealings with the Society (letter of 18 August 2009), and engaged misleading and deceptive conduct towards the Tribunal (affidavit of 2 February 2011).
The Tribunal criticised both the content of the practitioner’s evidence and the manner in which he had given it.
In relation to the manner in which the practitioner had given evidence, the Tribunal observed in O/U Liability Decision at [43]:
the behaviour of the Practitioner throughout the proceedings was very often inconsistent with his professional duty to cooperate reasonably in the process and avoid an unduly combative approach.
At [75], the Tribunal observed:
the Practitioner contumaciously ignored and or declaimed the Tribunal’s directions, comments, advice and rulings. Regrettably, throughout the hearing, his demeanour and conduct appeared to the Tribunal to be recalcitrant at times and often combative at other times.
And, at [82]:
The Tribunal’s assessment of the Practitioner’s evidence and oral submissions was that for much of it, it consisted of inadmissible and sometimes evasive evidence, unhelpful submissions and irrelevant and occasionally offensive comments. The Tribunal found that some of the evidence that he gave was, at best given with scant regard for its truth or accuracy and, at worst with reckless disregard to the truth of what he was saying…
At [74], the Tribunal described the manner in which the practitioner had put his case to the Tribunal as follows:
Put at its highest, the tenor of his case was that he was a very busy sole practitioner, who had really done nothing wrong, but if he had, then what he had done or failed to do amounted to simple, but honest mistakes for which others, in the main, were responsible and that the charges brought by the Society were indicative of a well orchestrated and an unwarranted persecution of him.
In relation to the first and second grounds, the Tribunal concluded that, considered as a whole, the practitioner’s conduct of the conveyances was unsatisfactory professional conduct because it fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent practitioner: O/U Liability Decision at [129]–[130].
In relation to the third ground, the Tribunal rejected the practitioner’s suggestion that the ACT Revenue Office had lost the documents. It also rejected the practitioner’s proposition that the incoming mortgagee for the Lyneham property had been responsible for securing the discharge of the earlier mortgage and that, by failing to do so, it had caused delay. The Tribunal found that, in blaming others for the delay in settlement when it was his fault, the practitioner had failed to act honestly and fairly towards his clients. The Tribunal characterised the conduct as unsatisfactory professional conduct “of a fairly high order”: O/U Liability Decision at [137].
In relation to the fourth ground, the Tribunal said:
146. It beggars belief that the Practitioner could possibly have forgotten that he was still in the office as of [3 July 2009], and indeed that he did not arrive at his destination until five days later on 8 July 2009.
…
156. The Practitioner’s oral evidence and his tone, demeanour, and characteristic evasiveness, reinforces the conclusion that arises from the surrounding circumstances outlined above, namely that he engaged in a deliberate act of dishonesty, or, in the alternative, at the very least was reckless in making on his affirmation a false statement to the Tribunal.
…
158. To attempt to mislead the Society, and then this Tribunal in affirmed evidence is, in each case, professional misconduct of a high order. The same is true recklessly making so false a statement to the Society, and of recklessly giving false evidence in disciplinary proceedings, concerning the Practitioner and as to a material matter.
159. Either alternative (deliberate or reckless), each charge would justify a finding that the Practitioner is not fit and proper to engage in legal practise.
160. Further, under the common law definition which section 387 encompasses, each charge (4.1 and 4.2) on either alternative of deliberate must or recklessness would reasonably be regarded as disgraceful and dishonourable conduct by practitioners of good repute and competency.
The Tribunal found the practitioner guilty of unsatisfactory professional conduct in relation to the first three grounds, and professional misconduct in relation to the fourth ground.
On 8 February 2013, the Tribunal delivered its decision on penalty: The Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupation Regulation) [2013] ACAT 8 (O/U Penalty Decision), concluding that the practitioner was not a fit and proper person to remain on the roll of practitioners. At [50], the Tribunal said:
The critical feature of the significant disciplinary history and a common characteristic of the offences is that of misleading and deceptive conduct. That conduct is dishonest conduct.
At [58]–[60], the Tribunal observed:
58. The respondent’s significant disciplinary history, the apparent failure of the impact of earlier disciplinary proceedings and the penalties imposed on him to alter his professional conduct, the essentially dishonest nature of many of the charges proven and the subject of adverse findings in respect of them further suggest to the Tribunal that the respondent has no insight into his misconduct.
59. The Tribunal therefore cannot be confident that the respondent appreciates the nature of his wrongdoing. The Tribunal regards his expressions of remorse as hollow. …
60. The degree to which a lawyer appreciates the seriousness of the misconduct is a relevant factor in the extent to which the Tribunal, exercising a protective jurisdiction, might choose between the alternatives of suspension or removal from the roll…
At [71], the Tribunal acknowledged that not every finding of professional misconduct will lead to an order that the lawyer’s name be removed from the roll, but observed that removal should be considered where conduct had demonstrated unfitness to practise and the defect had not been addressed. In that context, the Tribunal observed that:
74. None of [the previous] penalties and sanctions appears to have had the least impact or deterrent effect on the respondent. He appears unreformed. It is improbable, in the circumstances, that such a penalty as suggested by the respondent [suspension, reprimand and a costs order] would have any effect on him, despite his protestations to the contrary.
75. On the other hand, such a penalty as suggested by him… would pose a great risk to the community because it necessarily contemplates a return to practise.
The Tribunal concluded that the appropriate sanction was an order recommending that the practitioner’s name be removed from the roll: O/U Penalty Decision at [77].
Appeals against the third and fourth disciplinary proceedings
The practitioner appealed against the findings of liability and the penalties imposed by the Tribunal in the third and the fourth disciplinary proceedings.
On 5 November 2015, Burns J dismissed both appeals: Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316; 303 FLR 17 (SD/MG Burns J Appeal), in relation to the third matter, and Legal Practitioner v Council of the Law Society of the ACT (No 2) [2015] ACTSC 317 (O/U Burns J Appeal), in relation to the fourth matter.
The practitioner appealed to the Court of Appeal against the decisions of Burns J in both proceedings. In connexion with the appeals, the Council obtained a security for costs order from Robinson AJ: Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46. After an unsuccessful application to stay that order, the practitioner failed to comply with it: Legal Practitioner v Council of the Law Society of the ACT (No 2) [2016] ACTCA 67.
Meanwhile, the practitioner had sought special leave to appeal to the High Court against a variety of interlocutory orders affecting the appeals. On 2 February 2017, the application was refused: Legal Practitioner v The Council of the ACT Law Society [2017] HCASL 2.
On 25 May 2017, Robinson AJ allowed the practitioner’s application to extend the time to lodge the security sum: Legal Practitioner v Council of the Law Society of the ACT (No 3) [2017] ACTCA 25. Ultimately, the practitioner complied with the security for costs order.
On 29 June 2018, the Court of Appeal (Mossop and Collier JJ, Robinson AJ) dismissed the appeals against the decisions of Burns J: Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 26 (SD/MG CoA Appeal) and Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19 (O/U CoA Appeal).
In SD/MG CoA Appeal, the Court of Appeal discussed the distinction between statutory unsatisfactory professional conduct and statutory professional misconduct. It noted that the definition of unsatisfactory professional conduct in s 386 of the LPA and the s 387 definition of professional misconduct were each an inclusive definition, and that, as recognised by s 389 of the LPA, unsatisfactory professional conduct could be elevated to “professional misconduct”: at [60]–[63] and [75]. At [77], the Court of Appeal observed:
Third, conduct which would otherwise be “unsatisfactory professional conduct” is elevated by subs (a) to professional misconduct where it involves a substantial or consistent failure to reach and maintain a reasonable standard of competence and diligence. …
The Court of Appeal was satisfied that the Tribunal’s findings (which had been examined and accepted by Burns J) were consistent with the conclusion that the practitioner’s conduct demonstrated a substantial failure to maintain a reasonable standard of competence and diligence, as contemplated by s 387(1)(a).
At [82] of SD/MG CoA Appeal, the Court observed that the common law test for professional misconduct as set out in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 (conduct that would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency) remained relevant to an assessment of statutory professional misconduct, and stated:
Indeed, to the extent that ACAT was satisfied that [the practitioner] had deliberately sought to threaten or intimidate his clients it would be curious if such conduct could not fall within the definition of “professional misconduct”…
In O/U CoA Appeal, the Court of Appeal examined the manner in which Burns J had dealt with the fourth ground relied upon in the fourth disciplinary proceedings (deliberately or recklessly misleading the Society and misleading and deceptive conduct towards the Tribunal). In O/U Burns J Appeal at [108], Burns J had said that:
… [The practitioner] submitted that there is a significant difference between deliberately misleading and recklessly misleading the Society. In my opinion, there is no merit in this submission. It is apparent from the reasons of the ACAT, at [156], that the primary finding was that the practitioner deliberately misled the Society. The ACAT then went on to say that, in the alternative, he was reckless “at the very least”. Whilst there is a difference between recklessly and deliberately misleading, the Tribunal was correct, in these circumstances, to conclude that recklessly misleading the Society, and recklessly giving false evidence in an attempt to mislead the Tribunal, would nonetheless justify a finding of professional misconduct.
The Court of Appeal observed that his Honour had erroneously assumed a “primary finding” of deliberateness by the Tribunal, but that the Tribunal’s reasons had been ambiguous in that regard: O/U CoA Appeal at [60]. At [59], the Court of Appeal observed:
59. There are five matters to notice in [paragraph 108 of O/U Burns J Appeal]. First, the passage in [156] [of the Tribunal’s decision] is capable of ambiguity as to what finding was made by the Tribunal against the appellant to the requisite standard. Second, presumably the primary judge meant that the finding was that the appellant deliberately misled or was reckless both towards the Society and the Tribunal. Third, it is not accurate to say, and the appellant was not charged with, “recklessly giving false evidence in an attempt to mislead the Tribunal”. Fourth, primary judge has not, other than by an unvarnished conclusion, matched the conduct found to the standard of professional misconduct set out in the inclusionary definition under s 387 of the Legal Profession Act. Fifth, the appellant is entitled to a precise finding as to his conduct, for he faces being struck off the roll as a result of his conduct. A finding of “recklessness” as opposed to “deliberateness” may be of benefit to him in seeking to resist that application.
The Court of Appeal proceeded to consider the meaning of “recklessness” in the context of professional disciplinary matters where it was alleged that a practitioner had engaged in professional misconduct. The Court noted that a finding of recklessness as to falsity (as opposed to knowledge of falsity) may influence the severity of disciplinary action: O/U CoA Appeal at [67]. The Court approved the explanation of “recklessness” in Giudice v Legal Profession Complaints Committee [2016] WASCA 159 at [31]: that recklessness means subjective awareness that there is a risk that a statement is false and a conscious decision to disregard that risk.
At [69]–[72] of O/U CoA Appeal, the Court of Appeal said:
69. …Whether [the practitioner’s reckless making of a false statement to the Tribunal] amounts to professional misconduct requires an analysis of all the proved circumstances.
70. Those circumstances are that the appellant was answering a complaint made against him by client where his answer, he knew, would be material to the Law Society’s further actions and deliberations. It concerned a relevantly recent matter within his own knowledge and a matter that could easily be verified by documents in his possession. There was time to carefully consider the reply. The same comments apply with the necessary changes to the swearing of an affidavit to be used by the appellant in the Tribunal hearing. The false statement, that he was not in the country at the relevant time, was a statement made to the perceived advantage of the appellant himself.
71. Given that the finding of recklessness implies that the appellant was aware of the risk in each case, that the statement made by him may be untrue but that he disregarded that risk in those circumstances, then that conduct is correctly characterises professional misconduct.
72. … It is clear that the system for administration of justice relies heavily upon the integrity of the profession and the discharge of the duties falling upon members of the profession. Members must be able to command the confidence of all the participants in the administration of justice. Elements of that confidence are that the word of the member must be able to be trusted to be true and that the member will not make false statements or create misleading impressions.
73. The conduct engaged in by the appellant, justifies a finding that the appellant is not a fit and proper person to engage in legal practise. This is so whether the conduct is measured directly against the statute or the test derived from conduct which “would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency”. (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750).
The practitioner sought special leave to appeal in both the third and fourth disciplinary matters, but in November 2018 the High Court refused leave: Legal Practitioner v Council of the Law Society of the ACT [2018] HCASL 339 (dismissing appeal from [2018] ACTCA 26) and Legal Practitioner v Council of the Law Society of the ACT [2018] HCASL 340 (dismissing appeal from [2018] ACTCA 19).
The Council’s submissions on the application for removal from the roll
The Council contended that the practitioner is not a fit and proper person, principally because of repeated failure to display integrity and honesty in the conduct of his practice and in his dealings with disciplinary bodies. The Council argued that the practitioner has continued to demonstrate a lack of insight into his misconduct and to deny it, although all appeals from findings of misconduct have been exhausted.
The practitioner’s submissions on the application for removal from the roll
We hope that we have done no disservice to the practitioner by grouping his submissions in the following way.
1. Submissions about procedure in the Court
The practitioner said that he was disadvantaged in that the Court had not acceded to his written request to vacate the hearing date of 11 February 2019 and relist the matter nine days later, when he anticipated being in Australia and able to appear in person.
2. Submissions about the conduct that the Full Court can take into account
The practitioner submitted that, on the application for removal, the Full Court could only consider the conduct that had been the subject of the fourth disciplinary proceedings (the proceedings in which the removal recommendation had been made), and that the removal proceedings were not concerned with the conduct that was the subject of earlier disciplinary proceedings. He noted that he had identified this error in December 2018 correspondence to the Court.
The practitioner relied on s 24 of the Human Rights Act 2004 (ACT) (Human Rights Act), which enacts Art 14.7 of the International Covenant on Civil and Political Rights (ICCPR), arguing that the Tribunal’s reliance on its findings in earlier disciplinary proceedings contravened his right not to be tried or punished again for an offence for which he had already been finally convicted in accordance with law.
The practitioner submitted that, in proceedings under the LPA, the Court could not consider the proceedings relating to the first disciplinary proceedings as those proceedings had been conducted under the 1970 Act, which had been repealed by the LPA. In particular, the practitioner noted that, under s 148 of the LPA, the Law Society’s register of disciplinary action was restricted to disciplinary action taken under the LPA.
3. Submissions about errors made by the Tribunal
The practitioner argued that the Tribunal had erred in relying on his demeanour to support a finding that his evidence lacked credibility, particularly in the fourth disciplinary proceedings.
The practitioner submitted that the Tribunal had erred in relying upon his failure to show sufficient remorse for conduct; as he had not admitted deliberate lying, he could not offer remorse for doing so. He noted that he was remorseful concerning “the agony that the clients underwent due to the delay in the conveyance”.
4. Submissions about unfair treatment by the Tribunal, the Court and others
The practitioner repeated submissions made to the Tribunal, and on appeal in the third and fourth disciplinary proceedings, that he had not received fair, just and reasonable hearings. He submitted that the unfairness was greater in the fourth disciplinary proceedings. The practitioner’s past difficulties with the former ACT Attorney-General (Mr Corbell), the ACT Law Society, and the Tribunal and its Presidents (particularly former President Crebbin and Deputy President Donohue) were summarised in the practitioner’s written submissions to the Full Court of 31 January 2019.
The practitioner submitted that, in the past, he has not received justice from the Court: hearings have not been fair and just; the Court has rejected attempts to file documents electronically; the Court has made oppressive orders against him (including costs orders); judges have “avoided investigating the critical issue” of whether the practitioner deliberately misled the Society and the Tribunal, refusing to revisit the Tribunal’s credibility findings; the Court has been prejudiced in favour of the Law Society, and it has been “impossible to obtain decisions against the Law Society” because judges are seemingly beholden to the Law Society in relation to their appointment to the Court and “career advancement”.
5. Submissions based on Court’s inherent jurisdiction
The practitioner pointed out that the Court retained its inherent disciplinary jurisdiction in relation to the legal profession: s 462 of the LPA. He called upon the Court to use its inherent jurisdiction to “quash” the decision in the fourth disciplinary proceedings, and reject the Tribunal’s recommendation that he be removed from the roll of practitioners.
6. Submissions about whether the Court should order removal from the roll
The practitioner submitted that, in his case, removal from the roll was a disproportionate penalty for the conduct that was the subject of the fourth disciplinary proceedings.
The practitioner noted that, in the third disciplinary proceedings, the Tribunal had made two findings of professional misconduct and that, in the fourth disciplinary proceedings, it had made only one finding of professional misconduct. Contrasting the penalties that had been imposed, the practitioner argued that the Full Court should not impose a greater penalty (removal from the roll) for a lesser matter (only one finding of professional misconduct).
The practitioner submitted that the circumstances of the fourth disciplinary proceedings were significantly less serious than those in Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184 (Powrie) because, in his case, the incorrect representation was made to the Society “by way of a letter only” and the Tribunal was “unsure whether the misleading conduct amounts to deliberateness or recklessness”, whereas in Powrie the practitioner had deliberately misled a court.
The practitioner submitted that, when dealing with the third disciplinary proceeding, and especially at [33] of SD/MG Penalty Decision, the Tribunal had expressed a desire that the practitioner would return to practise after the three month suspension period that it imposed by way of penalty. Inferentially, the practitioner suggested that the Full Court should enable this aspiration to be realised.
The practitioner characterised removal from the roll as “an extraordinarily high punishment for a minor mishap”, that is, the mishap of making an innocent mistake (as opposed to a deliberate or reckless misstatement). Further, he argued that the “higher sentence” of removal should be reserved for deliberate (as opposed to reckless) conduct.
In relation to the finding of professional misconduct that the Tribunal had made in the fourth disciplinary proceedings, the practitioner submitted that his statement that he was out of the country on 3 July 2009 had been a negligent and “innocent” mistake, rather than a deliberate or reckless statement, and that the Tribunal had placed undue reliance on that small mistake.
The practitioner asked the Court to take into account that he had “lost everything” which was, itself, a punishment.
Consideration of practitioner’s submissions 1–5
Each of submission 1–5 raises a matter that is not properly raised in these proceedings, as the only issue is whether the practitioner is a fit and proper person to remain upon the local roll of practitioners. However, we will briefly address each of submissions 1–5.
1. Submissions about procedure in the Court
First, the practitioner said that he had been disadvantaged because the Court had not acceded to his written request to vacate the hearing date of 11 February 2019 and relist the matter nine days later, by which time he would have returned from overseas and would be able to appear in person.
The practitioner did not file an application to vacate the hearing date, despite having had ample notice of the hearing date; it had been tentatively allocated at the end of the hearing on 11 December 2018, and confirmed by the Deputy Registrar on 20 December 2018.
In any event, the practitioner was not disadvantaged by being overseas at the time of the hearing. The proceedings did not involve contested facts. The Court must consider whether, given the established facts, the practitioner is a fit and proper person to remain upon the local roll. In relation to the making of submissions, the practitioner was not disadvantaged. He filed written submissions. He was present throughout the hearing via an audio connection and he supplemented his written submissions with substantial oral submissions. At the end of the hearing, he was given an opportunity to file further written submissions addressing the principles espoused in the authorities contained in the Council’s list of authorities dated 8 February 2019. He filed those submissions on 25 February 2019.
2. Submissions about the conduct that can be taken into account
The practitioner submitted that, as the application for removal was based on the Tribunal’s recommendation in the fourth disciplinary proceedings, the Full Court could consider only the conduct that had been the subject of those disciplinary proceedings, and could not take into account the conduct that had been the subject of earlier disciplinary proceedings.
This submission proceeded on the mistaken premise that removal from the roll of local practitioners is a “penalty” visited upon a practitioner in relation to particular conduct and which must be proportionate to that conduct in the same way that, in criminal proceedings, a particular punishment must (inter alia) reflect the objective seriousness of a particular crime.
The primary purpose of any legal disciplinary proceedings is protective, not punitive; such proceedings are primarily designed to protect the public from misconduct by lawyers: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252. In Law Society of South Australia v Murphy [1999] SASC 83, Doyle CJ said:
The Court is concerned to protect the public, not to punish a practitioner who has done wrong, although of course the removal of the practitioner’s name from the Roll will operate as a punishment. The Court acts to protect the public and the administration of justice by preventing a person from acting as a legal practitioner, and by demonstrating that the person is, by reason of his or her conduct, not fit to remain a member of a profession that plays an important part in the administration of justice and in which the public is entitled to place a great trust.
The protective function of disciplinary proceedings finds statutory expression in s 6 of the LPA, which states that a purpose of the LPA is:
(a)to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and the protection of consumers of the services of the legal profession and the public generally
(b)…
That purpose is repeated in relation to Chapter 4 of the LPA, which concerns complaints and discipline. Within Chapter 4, s 384 provides:
The purposes of this chapter are as follows:
(a)to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b) …
Undoubtedly, disciplinary proceedings may have incidental punitive consequences, but they are not in the nature of criminal or quasi-criminal proceedings. This distinction was emphasised in the recent Court of Appeal decision in The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60 at [56] (Murrell CJ and Burns J).
As to the argument based on the Human Rights Act, s 24 (which imports art 14.7 of the ICCPR) provides that:
24 Right not to be tried or punished more than once
No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.
The jurisprudence of international courts and tribunals “may be considered in interpreting [a] human right”: Human Rights Act s 31(1). The Human Rights Committee, the independent treaty body established to supervise the application of the ICCPR, observed in its General Comment No. 32 – Article 14: Rights to equality before courts and tribunals and to a fair trial, UN Doc CCPR/C/GC/32 (23 August 2007) at [57] that:
[The guarantee under art 14.7] applies to criminal offences only and not to disciplinary measures that do not amount to a sanction for a criminal offence within the meaning of article 14 of the Covenant.
See also Strik v The Netherlands, Communication No. 1001/2001, UN Doc CCPR/C/76/D/1001/2001 (29 June 1999) at [7.3].
The use of the words “offence”, “convicted” and “acquitted” in s 24 of the Human Rights Act is consistent with that interpretation. As disciplinary proceedings are not concerned with “offences”, the human right recognised by s 24 has no bearing on the issues in this case.
In determining whether a practitioner is currently a fit and proper person, the Court must consider all relevant prior conduct as well as any evidence of change that might inform current fitness to practise. Findings of wrong conduct must be “viewed in the context of earlier findings of [wrong] conduct”, especially if the earlier findings relate to wrong conduct of a similar type: Legal Practitioners Conduct Board v Le Poidevin [2001] SASC 242; 83 SASR 443 at [18] (Doyle CJ). A history of wrong conduct predicts incapacity to change, as does a lack of remorse and insight into past wrong conduct. In Powrie, the Court relied upon previous reckless conduct, as well as later dishonest conduct and the failure to demonstrate remorse and insight into the wrongfulness of conduct in finding that the practitioner’s unfitness was not transient or amenable to correction, and it was appropriate to order that his name be removed from the roll: at [89]–[91].
Consequently, in these proceedings, it is irrelevant whether the practitioner’s conduct occurred during the currency of the LPA or at an earlier time.
3. Submissions about errors made by the Tribunal in assessing credit and remorse
The practitioner argued that the Tribunal had erred in relying on his demeanour to support a finding that his evidence lacked credibility (particularly in the fourth disciplinary proceedings). Further, he contended that the Tribunal had erred in relying upon the practitioner’s failure to show sufficient remorse for allegedly dishonest conduct; he said that, as he had not admitted deliberate lying, he could not offer remorse for doing so. However, he had expressed remorse in relation to “the agony that the clients underwent due to the delay in the conveyance”.
Under the statutory disciplinary scheme, it is the role of the Tribunal to make findings of fact and determine how the facts are to be characterised: Powrie at [79].
In exercising its statutory function under s 431(3), the Full Court must apply the Tribunal’s findings of fact, including any findings as to the practitioner’s state of mind or motive in relation to relevant conduct, and any findings that the conduct was unprofessional conduct or professional misconduct: Powrie at [83]–[84]. The Court cannot make findings inconsistent with those made by the Tribunal.
In relation to the Tribunal’s decisions, the legislature has provided a comprehensive regime of appeal, a regime of which the practitioner took full advantage. On appeal to Burns J, from his Honour to the Court of Appeal, and in the unsuccessful attempt to obtain special leave to appeal to the High Court, the practitioner fully ventilated his complaints about the Tribunal’s findings of fact (including its findings as to his state of mind) and, on this application for removal, those issues cannot be re-agitated.
4. Submissions about unfair treatment by the Tribunal, the Court and others
The practitioner repeated submissions made to the Tribunal, and on appeal in the third and fourth disciplinary proceedings, that he had not received fair, just and reasonable hearings.
In relation to allegations of actual and apprehended bias by the Tribunal or this Court, it has been open to the practitioner to apply to the relevant Tribunal members and judicial officers to recuse themselves and, on occasion, he has done so.
In determining the question of fitness to practise, no question arises concerning the fairness of earlier, related proceedings. This Court must decide for itself whether the practitioner is fit to practise. The Court is not bound by a Tribunal recommendation that a practitioner’s name be removed from the roll; it must make its own determination of whether the relevant conduct warrants removal of the practitioner’s name from the roll: Powrie at [86].
5. Submissions based on Court’s inherent jurisdiction
Calling in aid s 462 of the LPA, the practitioner asked the Court to use its inherent jurisdiction to “quash” the decision in the fourth disciplinary proceedings and reject the Tribunal’s recommendation that he be removed from the roll of practitioners.
The Court does not accede to this request. First, the practitioner’s reliance upon the Court’s inherent jurisdiction was not the subject of an application; it was merely the subject of submission. Second, s 462 of the LPA preserves the Court’s inherent jurisdiction to discipline practitioners. It does not create a right to “quash” a Tribunal recommendation; rather, it creates a path by which practitioners may be disciplined that is independent of the statutory path that the Council has taken in this case.
General Principles to be applied in deciding a statutory application for removal
Section 431(3) of the LPA gives the Court statutory discretion to remove the name of a local lawyer from the local roll if the Tribunal has recommended that the practitioner’s name should be removed. Under s 425(3) of the LPA, if the Tribunal finds a practitioner guilty of unprofessional misconduct or professional misconduct, the Tribunal may recommend that the practitioner’s name be removed.
As stated above at [134] and below at [147], the Court is not bound by the Tribunal’s recommendation of removal and is required to form its own independent assessment of whether, given the conduct that has been proven, the practitioner is a fit and proper person to practise law: Ziems v Prothonotary of the Supreme Court(NSW) (1957) 97 CLR 279; Powrie at [87].
Although it is not our task to determine whether the practitioner’s conduct amounted to unprofessional conduct or professional misconduct within the meaning of the LPA, it is instructive to consider the range of conduct that may be so classified.
Under the LPA, unsatisfactory professional conduct is defined in s 386 as follows:
In this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Professional misconduct is defined in s 387 of the LPA as follows:
(1) In this Act:
professional misconduct includes –
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
As these definitions are inclusive, recourse may be had to the common law, both for the purpose of understanding the type of conduct that may amount to unsatisfactory professional conduct or professional misconduct and for the purpose of understanding what it means to be “not a fit and proper person” to practise law.
The personal attributes of a practitioner are integral to an assessment of whether the person is a fit and proper person to practise law. When discussing the importance of honesty and integrity to the practice of law, in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 (Cummins) at [20], Spigelman CJ said:
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
A willingness to engage in dishonest conduct often compels a finding of unfitness to practise: The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 (Sahade) at [58]. Even if it does not rise above recklessness or neglect, persistent misconduct will ordinarily justify a finding of unfitness to practise: Law Society of South Australia v Murphy [1999] SASC 83. A penalty of suspension is usually inappropriate if there is a finding of unfitness of practice: Attorney-General v Bax [1998] QCA 89; [1999] 2 Qd R 9, 22 (Pincus JA).
Insight into previous wrongdoing is another personal attribute that is important to an assessment of whether a person is a fit and proper person to practise law. A legal practitioner’s failure to appreciate the gravity of misconduct may be indicative of unfitness to practise: Southern Law Society v Westbrook (1910) 10 CLR 609, 626 (Isaacs J); New South Wales Bar Association v Evatt (1968) 117 CLR 177, 184; Re Maidment (1992) 23 ATR 629, 642 (Legoe J); Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, 472 (Giles AJA).
At common law, professional misconduct includes conduct in the pursuit of professional activities that is reasonably regarded by professional colleagues of good repute and competency as disgraceful or dishonourable: Sahade at [54]. In the context of professional disciplinary proceedings, reference may be made to “good fame” in the sense of good reputation. Reputation is relevant to the purposes of disciplinary powers, which include “to maintain public confidence in the integrity and honesty of the profession”: Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [12] (Basten and Meagher JJA) and [49] (Brereton JA).
A finding of professional misconduct does not, of itself, demand an order removing a practitioner’s name from the roll: A Solicitor v Council of Law Society (NSW) (2004) 216 CLR 253 at [21]; Powrie at [87].
Removal from the roll is reserved for the most serious cases of wrong conduct, where the character and conduct of the practitioner is assessed to be inconsistent with the privileges of further practice; suspension may be adequate in those cases where a legal practitioner has fallen below proper standards, but not to the extent that would indicate that the practitioner lacks the necessary attributes of a person entrusted with the responsibilities of legal practice: Barristers’ Board v Darveniza [2000] QCA 253.
In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration: Cummins at [25]–[27]; Parente at [33]. In Parente at [34], Basten and Meagher JJA indicated that, where a practitioner has manifested a serious character flaw that would justify removal, it is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.
Summary of conduct findings by the Board and Tribunal
We summarise the findings in relation to the practitioner.
The Board found:
(a)In 2006, the practitioner sought to inaccurately indicate on documents filed in the Federal Magistrates Court that his client was self-represented. This was unsatisfactory professional conduct.
(b)During the 2006 Board proceedings, the practitioner displayed a lack of candour, and alleged that the complainant had been at fault. Later, he withdrew the allegation.
The Tribunal found:
(a)When acting for purchasers on 8 January 2008, the practitioner wrote a letter to the vendor’s solicitor containing the words “Exposition of such arrogance is quite unnecessary”. On 10 January 2008, he created another version of the letter (removing the sentence) before handing the file to new solicitors. The Tribunal characterised this conduct as misleading and deceptive towards the client and other practitioners, and in breach of the practitioner’s duty to be open and frank in his dealings with the Law Society. The conduct was at the higher end of unsatisfactory professional conduct.
(b)In early 2008, the practitioner omitted a client’s middle name on a transfer document, and the mortgagee was unable to register the transfer. After being notified on 21 February 2008, the practitioner failed to remedy the error. In response to a request by the mortgagee’s solicitors, on 28 April 2008 the practitioner provided an incorrect contract for sale to the mortgagee. The error was not rectified until 31 October 2008. These actions were negligent, and amounted to unsatisfactory professional conduct.
(c)On 20 November 2008, the practitioner informed his clients that he had not received the mortgagee’s 21 February 2008 letter, and that the mortgagee’s lawyer had not given reasons for the request of 28 April 2008. The first misrepresentation was deliberate, and the second was reckless “at the very least”. The actions were professional misconduct.
(d)On 12 December 2008, the practitioner wrote to his clients threatening to contact the employer of one client. The conduct was an attempt “to coerce and manipulate his clients to avoid a complaint”, amounting to professional misconduct.
(e)In 2009, the practitioner drafted a deficient statutory declaration to support a stamp duty exemption, causing delay in settlement of a property sale and resulting in his clients incurring penalty interest. In a letter dated 3 July 2009, the practitioner provided an inaccurate report to the clients, and he omitted to mention the penalty interest. Some of the errors were repeated in a letter dated 4 September 2019. These actions were unsatisfactory professional conduct.
(f)In a discussion with his clients on 23 June 2009, the practitioner blamed the ACT Revenue Office for the delay in settlement. In a letter to the Law Society dated 18 August 2009, he blamed banks and the ACT Revenue Office. This was unsatisfactory professional conduct “of a fairly high order”.
(g)In the 18 August 2009 letter, the practitioner misrepresented to the Law Society that he had not been in the country on 3 July 2009. The same letter was attached in a sworn affidavit filed with the Tribunal on 2 February 2011. This conduct was “a deliberate act of dishonestly, or in the alternative, at the very least was reckless” (note that the Court of Appeal said that this was a finding of recklessness). The Tribunal (and the Court of Appeal) characterised the conduct as professional misconduct.
(h)As to the practitioner’s evidence in the second disciplinary proceeding in 2010, the Tribunal observed that the practitioner was “obfuscating”, and expressed concern that he “[did] not understand that his actions involved deceit”. The Tribunal found that he had not learned from the first disciplinary proceedings.
(i)In its third penalty decision dated 31 August 2012, in light of the practitioner’s disciplinary history, the Tribunal questioned the extent to which he was remorseful.
(j)In its fourth liability decision dated 28 June 2012, the Tribunal criticised the practitioner’s manner as being “inconsistent with his professional duty”, “recalcitrant” and “combative”, and said that the practitioner had displayed “scant regard” for the truth in his evidence. The Tribunal noted that, during the hearing, the practitioner had insisted that he had done nothing wrong or, if he had, that it had been an honest mistake.
(k)In its final decision on penalty dated 8 February 2013, the Tribunal found that the practitioner had shown “no insight into his misconduct”, that “his expressions of remorse [had been] hollow”, and that he “[had appeared to be] unreformed”.
It is arguable that, considered individually, none of these matters is sufficiently serious to warrant removal from the roll, particularly given the passage of time since the conduct occurred.
Considered collectively, the conduct establishes that, over three years (between January 2008 and February 2011), the practitioner engaged in negligent conduct (towards his clients), reckless and misleading conduct (towards his clients, other solicitors, the Law Society and the Federal Magistrates Court), attempted coercion of a former client, and dishonest conduct (towards his clients).
The Tribunal found that, as at February 2013, the practitioner continued to lack insight or show remorse in relation to his conduct, and that he had not learned from earlier disciplinary proceedings.
The practitioner has had ample opportunity to reflect on past wrongdoing and demonstrate a change of attitude. Because of the practitioner’s numerous appeals, six years have passed since the Tribunal recommended that he be removed from the roll, and eight years have passed since the most recent wrong conduct occurred in February 2011.
Regrettably, in connection with the December 2018 application, the practitioner continued to display a lack of insight and appreciation of wrongdoing. He did not grasp that the adverse findings of the Tribunal and judicial officers did not reflect unfairness; rather, they reflected the fact that his conduct warranted adverse findings.
The new material placed before the Full Court through Exhibit 1 and the practitioner’s affidavit of 29 January 2019 does not assist the practitioner; it does not demonstrate that he has developed insight since 2013.
During the Full Court hearing in February 2019, the practitioner continued to maintain that he was and is the victim of an orchestrated campaign against him, rather than the victim of his own lack of judgement about proper conduct. He obstinately continued to deny any wrongdoing. With regard to the third disciplinary proceedings, he said:
I made the alteration and I’m sorry for that, but I did not mislead the Law Society, that’s wrong finding and I’m not going to say sorry for something I did not do.
He maintained that the letter of 18 August 2009 was sent neither deliberately nor recklessly.
We reproduce a portion of the transcript of the hearing on 11 February 2019:
THE PRACTITIONER: … I've been dragged on and on and on and labelled that I have misled or lied to the tribunal, and actually, your Honour, the letter – it's a letter that I wrote on 18 August to [the Law Society], it's just a letter saying just one sentence, that on that day I was not in the country. So that's only the one semantic error. And then what happened when I was asked to respond to the – when I was asked to provide a response to the application in the tribunal, I just attached that letter to [the Law Society], I just attach to an affidavit and file it. So I didn't make any new representations, I didn't make any new, I just – at that time, even I didn't know this was not the case. When I filed it in the tribunal, I didn't even know at that time that I was still in the country. This came out about some several months after.
So now they are saying that you have lied to the Law Society, you have lied to the Tribunal. So they are trying to compare me – that's who he is, in the same line with Powrie – Powrie who went and deliberately lied to the magistrate and Mr Beaumont says, hey, you have done the same thing …
So this is the game they are playing and it's very difficult for me. I have been always doing it on my own from the very beginning. But I don't regret doing that, because I had some legal representations and that put me in further deep water. So I am happy that I have done it and my conscience is clear, your Honour. My conscience is clear. I have done the best I could. I know I'm going to go, but that's up to other people, but I – I can still be – put my head up, I can still walk straight, because my conscience is clear. I am honest, I am innocent – 100 per cent innocent.
The whole world may say that I am a liar and I got thrown out of the profession and people will pick up stones, throw stones at me, but I can look into anybody's eyes, because I have not committed this offence, and even I have lost the confidence and the trust in the society and everything, I can say that you guys are the crooks. You guys are the crooks, I am not the crook, and I am saying that all the time. You guys are the crooks, I am not the crook.
(Emphasis added)
Later, the practitioner said the following:
THE PRACTITIONER: No, no, I just want to clear and make it clear that I’m remorseful. I have been insightful about those three grounds and I’m not going to criticise that and I want to learn from them and given the chance, I will definitely improve and read what the tribunal and the courts have said so I have no qualms about those findings that I didn’t supervise the staff and there was delay and also there were other parties contributed a bit so I am not going to have a dog fight for that.
But I’ll continue to have a dog fight with ground four [the ground concerning the 18 August letter] and that nobody can change that. Nobody can change that, even my father comes and tells me I do not do that because that’s the gospel truth, your Honour, that’s the gospel truth. I’m 100 per cent honest…
… It’s not a criminal matter, I know it’s not criminal, but it’s more than a criminal matter. It’s like I have really paid a huge price …
(Emphasis added)
These extracts illustrate that, since 2013, there has been no real change in the practitioner’s understanding of the duty of candour owed by practitioners, or the fact that such candour is fundamental to public confidence in the profession. He still fails to appreciate that, whether it reflects dishonesty or recklessness, misleading conduct is antipathetic to the practice of law.
The Court accepts that the practitioner has talent and is generally well motivated, particularly in relation to helping the underprivileged. He is respected in Sri Lankan and Canberra communities. We also accept that, for cultural reasons, it may be more difficult for the practitioner to accept and learn from adverse findings than is the case for others.
However, acceptance and learning are critical to the practitioner’s fitness to practise. Although the practitioner has had six years to reflect on his conduct, we discern no significant engagement with the issues identified by the Board, the Tribunal and this Court. The most recent submissions filed by the practitioner do offer a glimmer of hope in that regard, but not more. Consequently, we are not satisfied that, if allowed to continue to practise, the practitioner would do so with the necessary honesty and candour, and we conclude that these deficiencies will be of indefinite duration.
Accordingly, we see no option but to order that the practitioner be removed from the roll.
The practitioner’s approach to the removal proceedings also raises questions about his appreciation of legal issues and procedures, but we merely note this concern.
Anonymising the name of the practitioner
On 12 July 2017, Mossop J ordered that, until further order, the practitioner be referred to as “the Legal Practitioner” in any document filed for the purposes of the proceedings before him and any listing notice given by the Registrar.
As all appeals from the Tribunal have been exhausted, and it has been finally decided that the practitioner is guilty of the relevant conduct, there is no statutory (or other) reason to maintain suppression of the practitioner’s name: see s 423A of the LPA and [54] of the Recusal Decision. We vacate the order affording anonymity.
Orders
The orders of the Court are:
(a)Pursuant to s 431(3) of the Legal Profession Act 2006 (ACT), the Respondent Chanaka Nihal Bandarage’s name is removed from the roll of people admitted to the legal profession maintained by the Supreme Court pursuant to s 27 of the said Act.
(b)The order made by Mossop J on 12 July 2017 anonymising the Respondent’s name is vacated.
| I certify that the preceding one hundred and seventy [170] numbered paragraphs are a true copy of the Reasons for Judgment of their Honours Chief Justice Murrell, Justice Loukas-Karlsson and Acting Justice Walmsley. Associate: Date: |
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