Council of the Law Society of the ACT v Legal Practitioner “D2” - [2014] ACAT 6

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER “D2” (John Patrick Davey) (Occupational Discipline) [2014] ACAT 6

OR 13/14
Catchwords: OCCUPATIONAL REGULATION – LEGAL PRACTITIONER - conduct of legal practitioner as a self-represented party in continuous court proceedings – whether conduct amounted to professional misconduct, unsatisfactory professional conduct or that which would make the practitioner not a fit and proper person engage in practice - failure to respond to Society’s correspondence - breach of duty not to unduly increase time and cost of proceedings and duty to avoid cases that lack merit - absence of bad faith.
Legislation:ACT Civil and Administrative Tribunal Act 2008, s 45
Legal Profession Act 2006, ss 386, 387, 395, 419 and 425

Subordinate
Legislation:Legal Profession (Solicitors) Rules 2007, Rule 39.2
Cases:A Solicitor vCouncil of the NSW Law Society
2004] 216 CLR 253
Briginshaw v. Briginshaw (1938) 60 CLR 336
New South Wales Bar Association v Cummins
(2001) 52 NSWLR 279

Tribunal: Mr C. G. Chenoweth – Senior Member

Date of Orders: 12 February 2014
Date of Reasons for Decision: 12 February 2014

ACT CIVIL AND ADMINISTRATIVE TRIBUNAL OR 13/14
BETWEEN:
THE COUNCIL OF THE
LAW SOCIETY OF THE ACT
Applicant

AND:
THE LEGAL PRACTITIONER “D2”
Respondent

TRIBUNAL: Mr C.G. Chenoweth – Senior Member

DATE:12 February 2014

The application for a finding of professional misconduct or alternatively unsatisfactory professional conduct on grounds one and two of the application dated 21 May 2013 is dismissed.

The conduct of the practitioner set out in ground three of the application dated 21 May 2013 constitutes unsatisfactory professional conduct.

Any submission that either party wishes to make on the appropriate penalty as a consequence of the finding in paragraph 2 above is to be filed in the tribunal and served on the other party by 25 February 2014.

The Tribunal gives notice to the parties pursuant to section 54(1) of the ACT Civil and Administrative Tribunal Act 2008 that the Tribunal is minded to determine any penalty in this matter as a result of finding 2 above, without a further hearing. In view of the circumstances of this application the Tribunal gives notice that if the parties wish to make representations about the proposal that the matter should proceed without further hearing, those representations must be filed in the tribunal within fourteen days of the date of this order.

………………………………..
Mr C.G. Chenoweth – Senior Member

REASONS FOR DECISION

This case raises questions about the obligations of a legal practitioner not to persist with unmeritorious litigation where that litigation involves the practitioner as a party, rather than as a representative. It also involves the obligation of a practitioner to provide a response to the applicant Law Society of the A.C.T (“Society”) under the rules regulating the legal profession. The application was brought under section 419 of the Legal Profession Act 2006 (ACT) (“L.P. Act”). This confers jurisdiction on the tribunal. It is a statutory jurisdiction and does not extend to the inherent jurisdiction of the Supreme Court.[1]
[1] This decision was previously anonymised and cited as Council of the Law Society if the ACT v Legal Practitioner “D2” [2014] ACAT 6 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
The course of the litigation in this case, from the original hearing before the Registrar in the Magistrates Court to the application for special leave to the High Court of Australia, commenced in July 2004 with correspondence from solicitors, and concluded in March of 2013 with the refusal of the application for special leave to the High Court.

History of the Litigation

The practitioner conducted a legal practice in Canberra. In addition to this, he and another person ("E") conducted a separate and unrelated business through the structure of a company. A third person ("A") worked in that business, and became a director and shareholder. The parents of A advanced a substantial sum of money to the company. A also made a separate loan to it for the purposes of paying a creditor.
Disputes arose between the practitioner, E and A. The practitioner claimed that A assaulted him and took proceedings against A in the Magistrates Court for a personal protection order. Relations between the practitioner, E, A and the parents of A, deteriorated thereafter. The mother of A is referred to in these reasons as V and the father of A is referred to as P.
There was extensive correspondence commencing in 2004 between the solicitors for the respective parties. These were the solicitors for A and the parents of A on the one hand, and the solicitors for the practitioner and E on the other. The dispute concerned the terms of the two loans and their repayment.
It was ultimately agreed by a document of 2 January 2005 (“the Deed”) that the practitioner and E would become responsible for repayment of the monies that had been advanced by the parents of A to the company. Monies to be repaid were agreed in the Deed as $123,995.04. Whether the liability accepted by the practitioner and E under the Deed was by novation or assignment was not clear from the document, and was the subject of some critical comments in subsequent proceedings. However, the practitioner and E undertook by a document that was described and took effect as a Deed, to make repayments of the advance made by V and P, by weekly payments of $578.99. In addition, the practitioner and E agreed to repay the amount of $17,566.14 advanced by A to the company on the date of the Deed. A agreed to resign as a director and to transfer his share in the company as directed by the practitioner and E.
Between January 2005 and June 2008, the practitioner and E made 166 repayments of the larger sum, leaving $39,247.44 outstanding. The advance to A was repaid.
On 9 April 2008, proceedings were instituted by the solicitors for A, V and P against the practitioner and E claiming repayment of $39,247.44 outstanding under the Deed, together with interest and costs. An amended originating claim was filed by the solicitors for A, V and P on 9 April 2009.
P died on 30 May 2007. At some stage during those proceedings, the practitioner became aware that P had died before the proceedings started.
On 14 May 2009, the practitioner and E filed a third-party notice for contribution against A. This document noted that P was no longer a plaintiff, he having died prior to the institution of proceedings. The third-party notice was based on claims by the practitioner and E that A had assaulted the practitioner, that the correspondence from the solicitors for P, V and A constituted intimidation and coercion, and that the Deed had been entered into under duress.
The third-party notice also alleged that there was no valuable consideration for the Deed, that the practitioner and E had not been lent any sums of money personally, and that the Deed was voidable at law due to duress and coercion. The payments that had been made were alleged to be an unjust enrichment. The third-party notice claimed damages from A.
On 12 July 2009, the practitioner and E filed an amended defence and counterclaim in the Magistrates Court alleging malicious prosecution on the part of A because at the time of institution of the proceedings P was dead and no debt could be owed to him by the practitioner and E. The defence and counterclaim also maintained that the actions of A amounted to the tort of intimidation against the practitioner and E. It was pleaded that the proceedings were motivated by malice and a desire to injure the practitioner and E. The legal practitioner and E maintained that the payments of $96,104.34, which they made to the plaintiffs, constituted unjust enrichment.
The matter was heard before Registrar Jorgensen of the Magistrates Court. Prior to the hearing, the legal practitioner and E applied for and were granted default judgement on the third-party notices. The Registrar agreed to set that judgement aside. In his written reasons for decision handed down on 14 December 2009, the Registrar indicated that "there is nothing before me suggesting that the actions of the third-party during this negotiation period were anything other than attempts to recover legitimately – owed funds in a proper manner.”
The Registrar indicated that he was satisfied that the defendants did not have an arguable defence to the claim and entered summary judgement for the plaintiffs for the amount sought.
On 15 December 2009, the legal practitioner and E appealed this decision to a magistrate. The legal practitioner appeared in person in this hearing. E was represented by Ms Arley. On 19 April 2010, the defendants filed an application seeking the removal of the solicitors representing the plaintiff and third-party from the record. The defendants also issued subpoenas to three solicitors within that firm requiring their attendance at the hearing, so that they could be called as witnesses by the defendants, who alleged, amongst other things, coercion and duress on the part of the solicitors against the defendants. This application was refused by Magistrate Doogan who heard the appeal.
Magistrate Doogan delivered her reasons for the decision on 4 May 2010. She dismissed the appeal and confirmed the orders of the Registrar made on

14 December 2009. She also dismissed counterclaims by the legal practitioner and E. She considered the arguments about alleged intimidation and whether the money that had been advanced by V and P, and A was money lent to the company and remained the debt of the company rather than a debt of the legal practitioner and E. Her Honour rejected that argument, based on the terms of the Deed. She referred to a number of authorities on the question of what constituted duress to force a party to enter into an agreement and ruled against the practitioner and E.
The legal practitioner and E then applied for leave to appeal to the Supreme Court. Leave was granted by the Master on the 1 July 2010. The matter was heard before Gray J and a decision was handed down on 20 July 2011.
In the hearing before Gray J, the practitioner and E were represented by counsel. V and A were also represented by counsel. There were a number of grounds of appeal raised before the court. Prior to the hearing, the initial grounds of appeal were extensively amended. At the conclusion of the first day of the hearing, an application was made to further amend those grounds but this was not pursued. His Honour dealt with the matter on the grounds set out in the amended notice of appeal.
The judge noted that the written and oral submissions put by counsel for the practitioner and E on the appeal "differed from the particulars cited as supporting the grounds of appeal." After reviewing all of the grounds of appeal, his Honour rejected them and dismissed the appeal. His Honour also noted it was clearly open to the magistrate to find that the appellants had no defence to the claim and to find that there was no basis for the appellants’ pleading which raised those issues.
The consequence of the failure of the appeal was that the practitioner was liable to pay a substantial amount by way of damages and costs. Bankruptcy was threatened. The practitioner wished to appeal the decision of Gray J and filed a notice of appeal. E did not appeal and was joined by the practitioner as third respondent in the appeal.
In order to stave off the bankruptcy, the practitioner applied to his Honour Justice Burns for a stay order against the enforcement of the judgement and the costs orders referred to above. The practitioner was represented by counsel. The decision by Burns J was handed down on 23 December 2011. His Honour gave a prompt decision to ensure that the parties were aware of his decision before the Christmas break. His Honour also noted "I am not currently hearing the appeal and as such my main concern is to determine whether the grounds raised by the appellant are arguable.”
After reviewing the relevant law and the details of the amendments, his Honour formed the view that the appellant did not have strong prospects of success in opposing the late amendment to the statement of claim, nor in relation to the grounds of appeal, claiming that the Deed had been executed under duress.
A further ground of appeal both before Gray J. and in the Court of Appeal was that one of the plaintiffs, P, had died before proceedings were commenced and there had been a failure to regularise the proceedings. After considering a number of authorities, and the provisions of the Civil Law (Property) Act 2006, Burns J made the comment that "it appears to me that this ground of appeal is arguable and has reasonable prospects of success." His Honour went on to reject a ground of appeal based on the construction of the Deed and a ground related to the application of the rules for summary judgement.
In considering all of the grounds of appeal, his Honour determined that the application for the stay should not be granted.
The practitioner, who was by then the only appellant with E joined as the third respondent, sought to clarify the grounds of appeal from the decision of Gray J by filing an amended notice of appeal in the Court of Appeal dated

6 February 2012. The practitioner lodged lengthy submissions relating to the various grounds on which he sought to overturn the previous decisions.
An application for security for costs was made by the respondents to the Court of Appeal and was considered by his Honour Justice Refshauge. On

16 April 2012, his Honour rejected the application for security for costs after a lengthy and careful decision which reviewed a number of authorities on the question.
A substantive issue before Refshauge J was the capacity of V to sue for the whole of the outstanding money owing under the Deed. It is not necessary to set out the arguments in detail, but they involve consideration of the question of whether the loan, having been made jointly, was then capable of being treated as an asset of V. V was not the executor but was the beneficiary of the estate of P and under his will, V was entitled to the benefit of that asset.
There was some argument as to whether this point had been dealt with before Magistrate Doogan in a manner which prevented it being raised in subsequent proceedings. Counsel for V and A stressed that this was the proper interpretation of an exchange before her Honour. Refshauge J. clearly considered that the capacity issue had been resolved.
In relation to this point, his Honour stated "thus, while there is some prospect that the proceedings were regular or could be regularised, such as by adding the executor of the estate as a defendant, that does not mean that the appellant enjoys no prospect of success on this ground.”
Refshauge J further said as follows.
Whilst the appellant cannot be said to have good prospects of success on the appeal, at least not in having the summary judgement completely set aside, I consider that there are certainly arguable grounds of appeal, even though on my assessment, he may at best have the judgement as to half of the judgement set aside.
The appeal cannot be said, therefore, to be frivolous or vexatious. I do not however rate the appeal as more than arguable. It is almost certain it seems to me that some part of the judgement will not be upset.
On the question of security for costs, his Honour said that, "[g]iven that I have not found the appellant impecunious and unable to meet any costs order, that he has some prospects of success on the appeal and that he has not had a stay of the judgement sum which has now been paid, or of the assessed costs ordered in the Magistrates Court, which I think I am entitled to accept must now have been paid, I do not consider that security should be ordered.”
His Honour also made the following comment.
I cannot forbear making one other important comment. These proceedings must trouble all those concerned with the administration of justice. They have occupied the time of three courts over a number of days and are to be heard by a fourth. The assessed costs, which are by no means all the costs payable in the proceedings, have exceeded the amount claimed by more than three times. There is no reasonable proportion between these two amounts and that is very concerning. Whatever the fate of the appeal, it is very great concern.
Justice Refshauge also gave further directions for the hearing of the appeal.
The matter came before a full bench of the Court of Appeal on 8 May 2012. His Honour Justice Rares gave the leading decision of the court, with which the Chief Justice and Justice Penfold concurred.
At the hearing an ex-tempore judgement was delivered. The judgement rejected all of the grounds of appeal and was critical of the practitioner. Rares J. commented as follows:
It is entirely appropriate that this appeal should be dismissed with ...(first respondent’s) costs payable on an indemnity basis.
..the appeal has no substance..
This claim was an abuse of the process of the Court because it was foredoomed to fail..
Points that have been abandoned in litigation cannot, and ought not, be resurrected, particularly when those points are meretricious and could easily have rectified at the time of the proceedings in the Magistrates Court had any serious issue been taken with them.
Subsequently, written reasons for the decision were prepared by the Court of Appeal, and were issued on 4 July 2012. In those reasons the court confirmed that the appeal had no merit and was an abuse of the process of the court, being doomed to fail. The court noted that the appellant was himself a lawyer and was critical about the way in which the appellant had conducted the appeal.
It should be noted that the practitioner disputes whether the comments concerning the need for the parties to appear on the appeal were a fair summation of the process of the appeal. He said that previous directions that the parties did not need to appear but that the appeal could be dealt with by written submissions, should have been considered by the Court of Appeal. It is not necessary to elaborate further on this point.
Having lost before the Court of Appeal, with the comments in its ex-tempore judgement and written reasons for decision that were severely critical of him, the practitioner then sought leave to appeal to the High Court. The application for special leave to appeal was dated 30 May 2012.
On 13 March 2013, the application was heard before their Honours Kiefel and Gageler. They rejected the application for special leave, describing it as "without merit". The Court ordered that the costs of the application for special leave should be paid by the practitioner on an indemnity basis.
A complaint was made to the Society by the solicitors for V and A, alleging that the practitioner had conducted himself in these proceedings in a manner which was in breach of his professional obligations. That complaint was by letter of

8 March 2012. In accordance with the usual practice, the matter was referred to the practitioner for comment. Following this, the matter was considered by the Society and a decision to institute proceedings in the tribunal was made.

The Application.

The application is dated 21 May 2013. It alleges three breaches of the practitioner's obligations: firstly, a breach of duty to avoid unduly increasing time and cost in the conduct of proceedings; secondly, a breach of the duty not to pursue cases that lack merit; and thirdly, a breach of rule 39.2 of the Legal Profession (Solicitors) Rules 2007. This is the rule which provides that a legal practitioner must, when required, give the Society a full explanation of matters relating to his conduct.

While the summary sheet attached to the application indicated that the final orders sought were "findings of professional misconduct or unsatisfactory professional conduct", in the body of the document the applicant indicated that it sought an order "that the respondent is guilty of professional misconduct." No application was made to amend the application to provide for the alternative, namely, a finding that the legal practitioner was guilty of "unsatisfactory professional conduct".
It is open to the Tribunal under section 425 (2) of the L.P. Act to find an Australian legal practitioner guilty of unsatisfactory professional conduct even though the complaint alleged professional misconduct.

Statutory definitions

The definitions of unsatisfactory professional conduct and professional misconduct are set out in sections 386 and 387 of the L.P. Act. They are as follows:
386What is unsatisfactory professional conduct?
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.
NoteSee also s 389 (Conduct capable of being unsatisfactory professional conduct or professional misconduct).
387What is professional misconduct?
(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.
(2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
NoteSee also s 389.

Neither definition purports to cover the field of the conduct defined: each refers to the particulars set out in the definition as conduct that is "included" within the relevant definition. It is necessary to have regard to the decisions of courts in the exercise of their original jurisdiction when regulating the conduct of practitioners, to understand the full breadth of conduct that warrants a disciplinary response. This is particularly so in relation to section 387(1)(b), with its reference to a finding that a practitioner is not “a fit and proper person to engage in legal practice.”
In the outline submissions of the Society dated 15 October 2013, the Society acknowledges that grounds one and two (namely, breach of duty not to unduly increase the time and cost of proceedings, and to avoid pursuing cases that lacked merit) may be considered together as they depend on the same underlying facts. At paragraph 28 of those submissions, the Society submitted that grounds one and two, when considered together would amount to unsatisfactory professional conduct at general law.

The Hearing

The matter was heard on 15 October 2013. Mr Beaumont SC appeared for the applicant Society, and the practitioner represented himself. He applied to have the matter heard by telephone because of his medical condition and the fact that he was impecunious and could not afford to come to Canberra. I agreed to this, although it is less than satisfactory in a hearing of this nature. I considered the potential hardship to the practitioner as against the difficulties in conducting the hearing. I determined, pursuant to section 45 of the ACT Civil and Administrative Tribunal Act 2008, that the hearing should proceed with the practitioner taking part by telephone. No objection was taken to this course.
The practitioner sought an adjournment of the hearing on the basis that he had only recently been supplied with documents by the Society. I was satisfied that the practitioner would have either prepared, or been aware of, those documents prior to the hearing. The documents related to the litigation in which he was not only a party, but in which he had prepared documents and appeared in hearings. I was satisfied that there was no injustice that would give an appropriate basis for adjourning the hearing.

The Age of the Matter

The applicant also contended that the hearing should not proceed because the complaint was more than three years old.
Section 395 of the L.P. Act provides as follows:
395Complaints made more than 3 years after conduct
(1)A complaint may be made about conduct to which this chapter applies irrespective of when the conduct is alleged to have happened.
(2)However, the complaint cannot be dealt with (otherwise than to dismiss it or refer it to mediation) if the complaint is made more than 3 years after the conduct is alleged to have happened, unless the relevant council for the person about whom the complaint is made decides that—
(a)it is just and fair to deal with the complaint having regard to the delay and the reasons for the delay; or
(b)the complaint involves an allegation of professional misconduct and it is in the public interest to deal with the complaint.
The original complaint was made to the Society by the letter from

Messrs Williams Love & Nicol of 8 March 2012. The practitioner argued that the section should be interpreted so that if the conduct the subject of the complaint took place earlier than three years before the application to the tribunal, then it could not be dealt with. I rejected that argument. Subsection (1) of section 395 makes it clear that the complaint may be dealt with irrespective of when the conduct the subject of the complaint occurred.
While the original proceedings before the Registrar and the Magistrate on appeal took place more than three years before the complaint was laid, it is the letter which is the crucial date for calculating the three-year period. Accordingly, subsection (2) does not bar the Tribunal from hearing the application.

Evidence before the Tribunal.

The evidence before the Tribunal consisted of the Society’s Tender Bundle of documents with a summary at the start. The Application Book lodged by the practitioner in his application for special leave to the High Court was admitted as an exhibit, together with affidavits by Mr Robert Reis and Mr Michael Phelps, on behalf of the Society. The affidavits by Mr Reis and Mr Phelps annexed the correspondence between the Society and the practitioner, the failure to respond to which constitutes the basis for the third complaint.
The Society’s Tender Bundle of documents included the correspondence between the solicitors referred to in paragraphs 5-6, and then followed the court documents and reasons for decision for all of the decisions referred to above. Those documents have given a complete picture of the facts in the matter, the legal principles that were argued by the parties and (in particular) the arguments of the practitioner.
The practitioner did not file any evidence although in another application, medical reports dated 25 August and 7 September 2013 relating to the practitioner had been admitted. I allowed these to be placed before the Tribunal for this application, as they concerned the practitioner’s medical condition. It was on these documents that I made the decision to allow the practitioner to take part by telephone.

The obligations of a practitioner

Consideration of the whole course of the litigation gave a necessary background to the conduct of the practitioner, but not all of that conduct was the subject of complaint by the Society. The Society's counsel conceded that there was no complaint in relation to the appeal to the Magistrate from the decision of the Registrar, nor in relation to the appeal to Gray J from the decision of the Magistrate. The complaint in relation to grounds one and two was that at that stage, the practitioner should have realised that there were no valid grounds for going further and that to do so would be a breach of the ordinary rule that a practitioner should not run unmeritorious cases and thereby waste the courts’ time.
It should be noted that the Society's counsel conceded that that there was no allegation of bad faith in the practitioner continuing with his applications to the Court of Appeal and the High Court. While those proceedings had the effect of increasing the costs of the respondents, it was not suggested that these procedures were undertaken for the specific purpose of damaging them. In essence, the complaint of the Society was that the practitioner displayed such poor judgement in proceeding with his appeal and application for special leave after the comments made by Gray J and Magistrate Doogan that his actions amounted to a breach of his professional obligations to the courts and could amount to professional misconduct.
It should also be noted that in none of the judgements was there any comment by a judicial officer to the effect that in conducting himself in this way, the practitioner was in breach of his professional obligations under the L.P.Act.
There is no doubt that a practitioner in the course of his legal practice has an obligation not to persist with unmeritorious litigation, or litigation that is undertaken for an ulterior purpose. This rule is generally thought to have been developed to address circumstances in which legal practitioners continue to run cases or appeals on behalf of clients and derive financial benefit from those cases, where there is no reasonable prospect of success. To act in this way also breaches a practitioner's obligation to act in the best interests of his or her client, and may expose the client to continuing and pointless litigation where he or she may not only accrue costs from his or her own practitioner but face an adverse costs order for unsuccessful appeals. Further, it is a breach of a practitioner’s legal obligations to the courts to carry on such cases because of the waste of court time and resources that this involves.
Deciding when a case has reached such a point that a practitioner should advise a client not to go further, and if the client insists on doing so, then deciding to withdraw from the case on the basis that to continue may involve a breach of professional obligation to the court, is not an easy decision to make. There are cases where matters have gone through the courts and appeal processes and a party has lost right up to a reversal in the High Court itself.
It should also be said that where a practitioner is appearing in court for himself personally, the court is entitled to expect the same standard of honesty and frankness that would apply if the practitioner was acting for a third party. A practitioner is an officer of the court, whether or not he or she is acting personally or for another.
The complaint by the Society on the first two grounds essentially is that the practitioner, in acting personally in his own case, did not exercise the judgement and restraint that a practitioner is expected to exercise when acting for a client, in the circumstances of the obligations referred to above. I was not referred to any case where disciplinary proceedings had been taken against a practitioner in these circumstances.
Had this been a situation where the practitioner was acting for a client, then the comments made by the Magistrate and Gray J would have served as a warning not to take the matter any further. As indicated above, the complaint of the Society is limited to the appeal launched against the decision of Gray J and the application for special leave. This means that the point of time that the Society identifies as the time when the conduct took place was in the decision to institute an appeal to the Court of Appeal and then at the time of instituting an application for special leave to the High Court.

Consideration: Unsatisfactory Professional Conduct

Proceedings against a practitioner for unsatisfactory professional conduct or professional misconduct are serious matters and can have a significant effect on the practitioner. It is for this reason that in making any adverse finding against a practitioner it is appropriate to apply the standard of proof as set out in the matter of Briginshaw v. Briginshaw (1938) 60 CLR 336 and the many cases that have applied the principles set out there.
That case, and those following it, require that a tribunal exercising judgement in relation to allegations of unsatisfactory professional conduct or professional misconduct be comfortably satisfied having regard to the gravity of the matter, that the case has been made out by the applicant.
Courts and tribunals should approach very cautiously the proposition that a person acting on his own behalf, even though a legal practitioner, should be barred from exercising the rights available to all citizens to appeal the decision of a court, where an appeal process is available. Courts have ways of indicating their displeasure at hopeless cases, such as by the award of indemnity costs that was made in this case. The idea that a rule should be imposed on legal practitioners that has the effect of restricting them from exercising personal rights available to others simply because (as in this case) it is said that they are misguided, lack judgement and have no ability to stand back and make the sort of sensible judgements that one would make acting for a client, is a novel proposition. Included in that sensible judgement expected of a practitioner is the effect that the continuation of proceedings has on the other side and, as Refshauge J indicated, the sum in dispute.
The practitioner was acting on his own behalf and not on behalf of a client. There is no suggestion that he undertook the appeal for personal benefit – indeed the whole process has been extremely costly to the practitioner both financially and in personal terms. It has also no doubt been very costly to the respondents to the appeal and the application, notwithstanding that indemnity costs were awarded against the practitioner in those unsuccessful proceedings.
While the continuation of the appeals was a matter of considerable inconvenience and cost to the other side, it is no part of the Society’s case that the continuation of the appeals was undertaken for any malevolent or improper purpose.
There can be no doubt that Gray J, the Court of Appeal and the two judges of the High Court considered the appeal to be without merit and indeed in the case of the Court of Appeal, an abuse of process of the court. In the High Court, the judges noted that "[t]he claim of illegitimate pressure was doomed to fail and was tantamount to an abuse of the process of the Court." However, before coming to a conclusion that this amounts to professional misconduct or unsatisfactory professional conduct, several matters need to be considered.
It follows that in acting personally in these cases, the practitioner was exercising his own legal skills in the preparation of documents and the arguing of cases. Indeed, he could not have divorced himself from those skills.
The definition of “unsatisfactory professional conduct” includes a necessary condition that the conduct is "in connection with the practice of law". That necessary condition also applies under paragraph 387 (1) (a) of the definition of “professional misconduct”, because it refers to unsatisfactory professional conduct of a high or substantial standard. This necessarily requires the Tribunal to determine whether the instigation of the appeals to the Court of Appeal and to the High Court was conduct "in connection with the practice of law."
The second arm of the definition of professional misconduct in section 387 (1) (b) of the L.P. Act does not require that the conduct under consideration happens in connection with the practice of law or happens otherwise than in connection with the practice of law. The criterion is whether there has been conduct of whatever nature that justifies a finding that the practitioner is not a fit and proper person to engage in legal practice.
In the present case, I cannot be satisfied to the required degree that in launching the appeal from the decision of Gray J and then a further appeal from the decision of the Court of Appeal to the High Court, the practitioner was acting "in connection with the practice of law." The use of the word "practice" to my mind requires more than a person acting in his own personal interest while using legal skills: it has elements of the conduct forming part of a legal practice, as generally understood – that is, acting for clients on their behalf in proceedings in the courts.
If the definition had intended to cover all forms of personal conduct and behaviour, whether or not related to the practice of law but being assisted by legal skills used in the practitioner’s personal interest, then it would appear that those words would not have been included.
I do not regard the fact that a legal practitioner has legal skills and knowledge as bringing what may otherwise be regarded as personal conduct, within this definition. To do so would impose an obligation on legal practitioners in the conduct of their own affairs that does not benefit or protect the public. It would also lead to a tribunal making judgements about practitioners’ personal affairs rather than about the proper standards of practice in relation to clients. In saying this, I do not limit the obligation of a practitioner, whether acting personally or in the course of legal activity, to discharge his or her duties honestly and with frankness in relation to the courts and indeed the Society.
Having regard to these matters, I am not satisfied that the conduct of the practitioner in this matter constitutes unsatisfactory professional conduct in relation to grounds one and two.

Consideration: Professional Misconduct

In a number of cases a practitioner has been found guilty of professional misconduct in relation to conduct occurring outside of the practice of law that indicated an unfitness to be part of the professional body that has as its basis the standards of integrity and close communication and working relationships with other practitioners and the bench. Section 387 (2) of the L.P. Act requires the tribunal to consider whether the conduct taken as a whole, justifies a finding that the practitioner is not a fit and proper person to engage in legal practice. In this matter that necessarily involves considering whether the decisions to institute the appeal in the Court of Appeal and the application for special leave can be conduct to be so classified.
It is relevant to note that having launched the appeal to the Court of Appeal, the practitioner found some comfort in the interlocutory judgements of Burns J and Refshauge J. While neither judge was hearing the whole appeal and were, therefore, limited to the specific matters before them, each made comments indicating that there was something in the grounds of appeal on a particular point. This understandably would have encouraged the practitioner to believe that there was hope for his appeal, however faint. Those comments cannot be divorced from an analysis of the decision of the practitioner to appeal to the Court of Appeal, although following after that point in time.
One of the best known of the cases is where a practitioner was found to not be a fit and proper person is that of Mr J D Cummins QC, whose failure over many years to lodge tax returns disclosing his income as a barrister and to pay tax in accordance with the statutory obligation that falls upon all citizens, was held to be conduct of such a heinous nature that it fell within this general definition of professional misconduct. (See New South Wales Bar Association v Cummins(2001) 52 NSWLR 279.)

Counsel for the Society also referred to the case of A Solicitor vCouncil of the NSW Law Society [2004] 216 CLR 253 concerning a legal practitioner who was convicted of indecent assault of children. That criminal judgement was overturned on appeal, but the practitioner failed to disclose that there were further investigations in relation to the same sort of conduct when making an application to the Society. In that case, the deliberate lack of frankness was the essence of the complaint.
There have been no cases referred to me where a practitioner has been held guilty of unsatisfactory professional conduct or professional misconduct because they have pursued their own interests in a court cases in a wrongheaded, obstinate and misguided way, as appears here. This is not to say that the finding should not be made, but it indicates that the Tribunal should approach such an outcome with caution.
The comments of the judges in the Court of Appeal certainly left the practitioner with nothing from which he could draw comfort, and the next point of decision would be the decision to seek leave to appeal to the High Court. A dispassionate view of the matter at that stage, including the amount in dispute and the amount that it had cost him and the other party to pursue the matter, would have led him to desist. That view is reinforced by the decision of the judges on the special leave application.
While it might be said that from a dispassionate point of view this was a hopeless cause, no doubt the practitioner who had provided very lengthy submissions on the appeal in the Court of Appeal and in the Appeal Book to the High Court was persisting in the hope that the faint glow of success held out by the comments of Burns J and Refshauge J might finally be realised, at least in part.
While again it might be said that the decision to seek leave to appeal, and thereby put the other side to the expense and cost of dealing with the application, was a further example of the lack of judgement on the part of the practitioner, I am not satisfied that it can be classified as conduct which is so grave as to warrant the description that he is not a fit and proper person to engage in legal practice.
I am not satisfied to the required degree that the Society has made out its case for a finding of professional misconduct on grounds one and two in the application.

Failure to respond to the Society’s correspondence.

On 24 April 2013, the Society wrote to the practitioner drawing his attention to the provisions of rule 39.2 of the Legal Profession (Solicitors) Rules 2007. This is as follows:
39.2A practitioner should respond within a reasonable time and in any event within 14 days (or such extended time as the Society may allow) to any requirement of the 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.
The Supreme Court has previously made it clear that for the Society to succeed in a complaint of unsatisfactory professional conduct in relation to a failure to respond to its correspondence, the practitioner must be required to respond in accordance with the rule. I am satisfied that the letter of 24 April 2013 both draws the provisions of the rule to the attention of the practitioner and, when properly construed, is a requirement that he respond within 14 days.
The letter followed a number of letters from the Society and the solicitors for the Society over the previous year. The practitioner responded to an enquiry from the Society on 30 March 2012, pointing to the fact that Burns J had indicated that on one ground there were reasonable prospects of success in the appeal, and commenting on the proceedings before the Federal Magistrates Court Registrar on a bankruptcy application by the respondents. In subsequent correspondence, the respondents’ solicitors disputed the accuracy of this account. However, the practitioner had given a response in some form to the Society's earlier request for comment.
In the letter of 24 September 2012 and the emails of 25 September 2012, the Society’s solicitor referred in detail to the criticisms made of the practitioner, and invited his response. An invitation to respond is not sufficient to constitute a breach of the rule and unsatisfactory professional conduct if the invitation is declined. The practitioner responded by an e-mail of 24 September 2012 drawing attention to the fact that the matter was on appeal before the High Court and forwarding the application for leave to appeal and the applicants summary of argument. A further e-mail from the Society’s solicitors clarifying the question of whether the Society should be notified about final orders was sent on 25 September 2012.
A further request was made on 8 April 2013 but no reference was made to rule 39.2. This followed the refusal of the application for special leave in the High Court. This letter of 8 April 2013 again requested a response in terms of the letter of the 24 September 2012. That request was not complied with.
A further letter was sent on 24 April 2013. It is the failure to comply with this letter that supports the allegation in ground three of the Society's application.
The practitioner acknowledges that he did not reply to this letter. To that extent, the breach of the obligation under the rules is made out. The failure constitutes unsatisfactory professional conduct within the meaning of section 425 of the L.P. Act. In view of the previous response by the practitioner, it is at the lower end of the scale.
The practitioner points to his statements that he was under medical care at the time. While these are matters to be taken into account in the question of any penalty to be imposed by the Tribunal, they cannot of themselves excuse a failure to respond to the Society. Having said that, at least (as the practitioner points out) he had responded earlier about the same matter.
It is appropriate that before determining whether any or what action should be

taken under section 425, the parties be given the opportunity to make written submissions. I do not propose to reconvene the Tribunal for oral argument on the matter, having regard to these reasons for decision.

………………………………..
Mr C.G. Chenoweth – Senior Member

PUBLICATION DETAILS

FILE NUMBER:	OR 13/14
PARTIES, APPLICANT:	Council of the Law Society of the ACT
PARTIES, RESPONDENT:	The Legal Practitioner ‘D2’
COUNSEL APPEARING, APPLICANT	Mr N. Beaumont SC
SOLICITORS FOR APPLICANT	Mr M. Phelps, Phelps Reid Lawyers
TRIBUNAL MEMBERS:	Mr C.G Chenoweth – Senior Member
DATES OF HEARING:	14 & 15 October 2013
PLACE OF HEARING:	Canberra