Council of the Law Society of the Act v Legal Practitioner LP 202012 (Occupational Discipline)
[2024] ACAT 11
•8 November 2021
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v LEGAL PRACTITIONER LP 202012 (Occupational Discipline) [2024] ACAT 11
OR 12/2020
OR 13/2020
OR 14/2020
OR 15/2020
Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – whether solicitor breached rules 4.1.1, 4.1.2, 4.1.3, 5.1.1, 5.1.2, 19.1, 19.2, 43.1 and 43.2 of the Legal Professions (Solicitors) Conduct Rules 2015 – whether solicitor breached common law duty of honesty and candour to the court – whether solicitor breached common law duty to assist and inform inquiry into solicitor’s conduct – breaches established – findings that solicitor engaged in professional misconduct – findings that solicitor permanently unfit to engage in legal practice – recommendation that solicitor’s name be removed from the roll
Legislation cited: Evidence Act 2011 ss 91, 190
Legal Profession Act 2006 ss 56, 222, 269, 386, 387, 389, 423A, 425, 433
Migration Act 1958 (Cth) ss 412, 477, 486I
Subordinate
Legislation cited: Federal Circuit Court Rules 2001 rr 1.06, 4.01, 4.03, 4.05
Legal Professions (Solicitors) Conduct Rules 2015 rr 4.1.1, 4.1.2, 4.1.3, 5.1.1, 5.1.2, 19.1, 19.2, 32.1, 43.1, 43.2
Migration Regulation 1994 (Cth) s 4.31
Cases cited:Angus v Clifford [1891] 2 Ch 463
Attorney General of New South Wales v Martin [2015] NSWSC 1372
AQF17 v Minister for Immigration and Border Protection [2018] FCA 966
AXY17 v Minister for Immigration & Anor [2017] FCCA 2006
Brereton v Legal Service Commissioner [2010] VSC 378Briginshaw v Briginshaw (1938) 60 CLR 336
C7A/2017 v Minister for Immigration [2018] FCCA 458
Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1
Council of the Law Society of the Australian Captial Territory v Giles [2020] ACTSCFC 1
Council of the Law Society of the ACT v LP201809 [2019] ACAT 11
Council of the Law Society of NSW v Yoon [2020] NSWCA 141 Davidson v Legal Profession Admission Board [2019] NSWSC 959
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Hilton v Legal Profession Admission Board [2017] NSWCA 232
Horrocks v Lowe [1975] AC 135
King v Muriniti [2018] NSWCA 98
Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115
Law Society of the ACT v Stubbs [2017] ACTSCFC 3
Law Society (NSW) v Foreman (1994) 34 NSWLR 408
Law Society of NSW v Jones (NSW Court of Appeal, unreported, 27 July 1978)
Minister for Immigration and Multicultural and Indigenous Affairs vSGLB [2004] HCA 32
MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177
NSW Bar Association v Cummins [2001] NSWCA 28
Prothonotary v Comesky [2018] NSWCA 18
Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78
Singh v Minister for Immigration [2018] FCCA 1081
SZRVA v Minister for Immigration and Border Protection [2019] FCA 630
SZUSH v Minister for Immigration and Border Protection & Ors [2016] HCATrans 112
The Council of the Law Society of the ACT v LP 12 [2018] ACTCA 60
The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20
Tribunal: Senior Member M Orlov (Presiding)
Senior Member M Brennan
Date of Orders: 8 November 2021
Date of Reasons for Decision: 8 November 2021
Date of Publication: 2 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 12/2020
OR 13/2020
OR 14/2020
OR 15/2020
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
LEGAL PRACTITIONER LP 202012
Respondent
TRIBUNAL:Senior Member M Orlov (Presiding)
Senior Member M Brennan
DATE:8 November 2021
ORDER
1.Pursuant to section 423A of the Legal Profession Act 2006 (the LP Act), no party may disclose, and there shall be no publication of, the orders and reasons for decision in applications OR 12/2020, OR 13/2020, OR 14/2020 and OR 15/2020 until the later of the ending of the appeal period or the final determination of any appeal.
2.Pursuant to section 425(1) of the LP Act the respondent is guilty of professional misconduct in respect of:
(a)charge 1 in OR 15/2020;
(b)charge 18 in OR 13/2020, charge 2 in OR 15/2020, charge 2 in OR 12/2020 and charge 1 in OR 14/2020;
(c)charge 2 in OR 13/2020, charge 3 in OR 14/2020, charge 3 in OR 15/2020, charge 3 in OR 13/2020 and charge 3 in OR 12/2020;
(d)charges 14, 15 and 17 of OR 13/2020;
(e)charge 19 in OR 13/2020;
(f)charges 4 to 13 in OR 13/2020.
3.Pursuant to section 425(1) of the Act, the respondent is guilty of unsatisfactory professional conduct in respect of:
(a)charge 2 in OR 14/2020;
(b)charge 16 in OR 13/2020;
4.Pursuant to section 425(3)(a) the Tribunal recommends that the respondent’s name be removed from the roll of legal practitioners kept by the Supreme Court of the Australian Capital Territory.
5.The parties are to confer with a view to reaching agreement in relation to the terms of any order or orders for costs to be made pursuant to section 433(1) of the Act. Failing agreement, within 14 days of the date of these orders, the parties must file and serve written submissions in relation to costs limited to two pages and indicating whether the parties consent to the Tribunal deciding the issue of costs on the papers.
………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal
Table of Contents
ORDER
REASONS FOR DECISION
Overview of the applications
Procedural and evidentiary issues
Reliance on statements in earlier judgments to prove facts in issue
Witnesses and credit
Disputed facts
OR 12/2020
The facts
SGLB proceeding
SZUSH proceeding
MZAHH proceeding
C7 proceeding
C7 transfer application
AQF17 proceeding
Consideration
Charge 1
Charge 2
Charge 3
OR 13/2020
The facts
Ms Ramos’ dealings with Mr D
What were Ms Ramos’ instructions to the respondent?
Failure to provide disclosure as to costs and receipt of funds on account of future costs into the respondent’s office account
Preparation for hearing
The hearing before Judge Neville
Communications with Ms Ramos after judgment was delivered
Failure to repay costs
Mr D’s complaint to the Law Society
The respondent’s conduct in relation to the Law Society’s investigation
The respondent’s letter to the Chief Judge of the Federal Circuit Court
Consideration
Charges 1 and 2
Charge 3
Charges 4, 5, 6, 8, 9, 10, 11, 12 and 13
Charge 7
Charge 14
Charge 15
Charge 16
Charge 17
Charge 18
Charge 19
OR 14/2020
The facts
The CFMMEU proceeding
The Singh proceeding
Consideration
Charge 1
Charge 2
Charge 3
OR 15/2020
The facts
The AAT proceeding
The BNJ17 proceeding
Consideration
Charge 1
Charge 2
Charge 3
Characterisation of conduct
Penalty
Order for costs
Restrictions on publication
REASONS FOR DECISION
Overview of the applications
1.By four separate Applications for Disciplinary Action dated 1 July 2020, the Council of the Law Society of the ACT (Law Society) seeks findings pursuant to section 425(1) of the Legal Profession Act 2006 (LP Act) that the respondent, Mr Hugh Ford, is guilty of professional misconduct, or alternatively, unsatisfactory professional conduct and an order that the respondent pay the applicant’s costs of each application pursuant to section 433(1) of the LP Act.
2.The respondent was admitted as a barrister and solicitor of the Supreme Court of the ACT on 20 October 1995. He held a barrister practising certificate from 9 January 2007 to 30 June 2008 and a restricted practising certificate issued by the ACT Law Society from 3 December 2009 to 30 June 2011. Between 1 July 2011 and 21 June 2018 he held an unrestricted practising certificate issued by the ACT Law Society and was the principal of Hugh Ford & Associates. At all material times he held himself out as an experienced migration lawyer and was registered as a migration agent under the Migration Act 1958 (Cth). He appeared regularly as a solicitor advocate, particularly in proceedings in the Federal Circuit Court of Australia.
3.On 26 September 2017, a practitioner, to whom we will refer as Mr D, made a complaint about the respondent’s conduct to the Law Society (first complaint). The Law Society notified the respondent of the complaint on 16 October 2017 and commenced an investigation. The conduct to which the complaint relates and the respondent’s conduct in relation the Law Society’s investigation, is the subject of application OR 13/2020 and is alleged to have occurred between about 14 February 2017 and 15 March 2018.
4.On 16 April 2018, the Law Society raised a complaint against the respondent following the receipt of correspondence from the Registrar of the Federal Circuit Court dated 28 March 2018 sent at the request of Judge Neville (second complaint). The Law Society notified the respondent of the complaint on 23 April 2018 and commenced an investigation. The conduct to which the complaint relates and the respondent’s conduct in relation the Law Society’s investigation, is the subject of application OR 12/2020 and is alleged to have occurred between about 18 May 2017 and 4 June 2018.
5.On 21 May 2018, the Law Society raised a further complaint against the respondent following the receipt of correspondence from an Acting Assistant Secretary of the Department of Home Affairs dated 11 May 2018 (third complaint). The Law Society notified the respondent of the third complaint on 22 May 2018. The conduct to which the complaint relates is the subject of application OR 15/2020 and is alleged to have occurred between about 1 September 2016 and 27 April 2018.
6.On 18 June 2018, the Council raised a further complaint against the respondent following receipt of correspondence from the Registrar of the Federal Circuit Court dated 1 June 2018 sent at the request of Judge Neville (fourth complaint). The Council notified the respondent of the fourth complaint on 26 June 2018. The conduct to which the complaint relates is the subject of application OR 14/2020 and is alleged to have occurred between about 15 September 2015 and 3 October 2017.
7.On 18 June 2018, the Law Society cancelled the respondent’s practising certificate pursuant to section 56 of the LP Act with effect from 21 June 2018.
8.The charges of professional misconduct arise from the respondent’s alleged conduct in relation to the following proceedings (grouped by ACAT application number):
(a)OR 12/2020 (arising from the second complaint)
(i) High Court of Australia file number C6 of 2015 (SZUSH v Minister for Immigration and Border Protection & Ors) (SZUSHproceeding);
(ii) High Court of Australia file number C2 of 2016 (MZAHH v Federal Circuit Court of Australia & Ors) (MZAHH proceeding);
(iii) High Court of Australia file number C7 of 2017 (Plaintiff C7A & Ors v Minister for Immigration and Border Protection & Ors) (C7 proceeding);
(iv) Federal Circuit Court of Australia file number CAG 77 of 2017 (C7A/2017 & Ors v Minister for Immigration & Anor) (C7 transfer proceeding);
(v) Federal Court of Australia file number NSD 1965 of 2017 (AQF17 v Minister for Immigration and Border Protection) (AQF17proceeding);
(b)OR 13/2020 (arising from the first complaint)
(i) Federal Circuit Court of Australia file number CAG 13 of 2017 (AXY17 v Minister for Immigration & Anor) (AXY17 proceeding);
(c)OR 14/2020 (arising from the fourth complaint)
(i) Federal Circuit Court file number CAG 18 of 2017 (Construction, Forestry, Maritime, Mining and Energy Union v Precision Painting Contractors Pty Ltd) (CFMMEU proceeding);
(ii) Federal Circuit Court file number CAG 19 of 2017 (Singh v Minister for Immigration and Border Protection & Anor) (Singh proceeding);
(d)application OR 15/2020 (arising from the third complaint)
(i) Administrative Appeals Tribunal case number 1605099 (AAT proceeding);
(ii) Federal Circuit Court of Australia file number MLG 708 of 2017 (BNJ17 v Minister for Immigration) (BNJ17 proceeding).
9.In OR 12/2020, the Law Society alleges the respondent:
(a)breached rules 4.1.1, 4.1.3 and/or 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules) by:
(i) repeatedly making an argument without merit in the SZUSH, MZAHH, C7, C7 transfer and AQF17 proceedings [charge 1]; and
(ii) failing to comply with orders of the Court for the filing and service of documents in the C7 transfer proceeding [charge 2];
(b)breached rules 19.1 and/or 19.2 of the Rules and his common law duty of honesty and candour to the Court in the C7 transfer proceeding, by making a statement to the Court dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity, or if the statement was made mistakenly, failing to take steps to correct the misleading statement [charge 3].
10.In OR 13/2020, the Law Society alleges the respondent:
(a)breached rules 19.1 and/or 19.2 of the Rules and his common law duty of honesty and candour to the Court in the AXY17 proceeding by:
(i) making a statement to the Court dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity, or if the statement was made mistakenly, failing to take steps to correct the misleading statement [charges 1 and 2]; and
(ii) making a statement to the Court dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity [charge 3];
(b)breached rules 43.1 and 43.2 of the Rules and his common law duty to inform and assist the Law Society by:
(i) making a statement to the Law Society in connection with its investigation of the complaint against him, knowing the statement to be false or recklessly indifferent to its truth or falsity [charges 4, 5, 6, 8, 9, 10, 11, 12 and 13]; and
(ii) failing to be open and frank with the Law Society and failing to provide a full and accurate account to the Law Society of his involvement in a matter that was material to the Law Society’s investigation of the complaint against him [charge 7];
(c)breached section 222(1) of the LP Act by failing to deposit trust money received on account of legal costs in a trust account [charge 14];
(d)misappropriated trust moneys in breach of the common law by causing trust moneys received on account of legal costs to be deposited in an office account [charge 15];
(e)breached section 269 of the LP Act by failing to give the required costs disclosure to the client [charge 16];
(f)breached rule 5 of the Rules by failing to comply with an order of the Court requiring him to repay costs to the client [charge 17];
(g)breached rule 4.1.3 of the Rules by failing to deliver legal services competently and diligently in circumstances where he knew, or should have known, that the application on behalf of the client had no reasonable prospects of success [charge 18];
(h)breached rules 4.1.2, 5.1.1 and 5.1.2 of the Rules by making allegations of serious improper conduct against a judge of the Federal Circuit Court of Australia in a letter to the Chief Judge of the Court, without particularising, justifying, or substantiating the allegations [charge 19].
11.In OR 14/2020, the Law Society alleges the respondent:
(a)breached rule 4.1.1, 4.1.3 and/or 5 of the Rules by:
(i) filing a defence in the CFMMEU proceeding that he knew, or should have known, exposed his client to the risk of default judgment and which resulted in that outcome [charge 1 – paragraphs 49, 50]; and
(ii) failing to file a Notice of Appointment in the Singh proceeding [charge 2 – paragraph 51];
(b)breached rules 5 and 19.1 of the Rules by making a misleading statement in an affidavit filed in the Singh proceeding without taking any steps, or any reasonable steps, to ascertain the true facts [charge 3 – paragraphs 52 and 53].
12.In OR 15/2020, the Law Society alleges the respondent:
(a)breached rules 4.1.1, 4.1.2, 4.1.3 and/or 5 of the Rules by his conduct during the AAT proceeding in talking over the Tribunal Member, directing his client not to answer questions asked by the Tribunal Member, commanding the Tribunal Member to recuse himself, leaving the hearing with his client before the Tribunal Member had concluded the hearing and accusing the Tribunal Member of disgraceful conduct [charge 1];
(b)breached rules 4.1.1, 4.1.3 and/or 5 of the Rules in providing legal services connected with an application filed on 10 April 2017 in the BNJ17 proceeding, which had no reasonable prospects of success [charge 2];
(c)breached rules 19.1 and/or 19.2 and his common law duty of honesty and candour to the Court by filing an application on 10 April 2017 in the BNJ17 proceeding, knowing that the application contained false information or with reckless indifference as to the truth or falsity of its contents [charge 3].
Procedural and evidentiary issues
Reliance on statements in earlier judgments to prove facts in issue
13.The applications quote extensively from judgments in matters where the respondent appeared. The extracts include statements criticising the respondent’s competence and conduct generally and in specific matters.[1] Typically, the asserted fact appears as: “At [x] of the judgement, his Honour said”, followed by an often-lengthy extract.
[1] OR 12/2020 application for disciplinary action filed 2 July 2021 at [12], [13], [23]-[25], [29]; OR 13/2020 application for disciplinary action filed 2 July 2021 at [53]-[58]; OR 14/2020 application for disciplinary action filed 2 July 2021 at [16]-[20], [37]-[39]; OR 15/2020 application for disciplinary action filed 2 July 2021 at [21], [46]-[48]
14.The rules of pleading do not apply to proceedings in the Tribunal. Nevertheless, it is a fundamental requirement of procedural fairness that an application for disciplinary action must give a respondent adequate notice of the case against them. A respondent is entitled to know the material facts on which a charge of professional misconduct is based and be given adequate particulars of the facts. Where the Law Society intends to rely on a prior decision or finding of fact by a court or tribunal, a respondent should not be left to speculate about what facts the Law Society seeks to prove by that means.
15.Section 91 of the Evidence Act 2011 states:
(1) Evidence of the decision, or of a finding of fact, in an Australian or overseas proceeding is not admissible to prove the existence of a fact that was in issue in the proceeding.
(2) Evidence that, under this part, is not admissible to prove the existence of a fact may not be used to prove the fact even if it is relevant for another purpose.
16.In Attorney General of New South Wales v Martin [2015] NSWSC 1372, Simpson J said at [13] that whether this provision operates to exclude the use of decisions or judgments:
…will depend upon an analysis of three things – (i) what facts were in issue in those proceedings; (ii) what facts were found in the decisions; and (iii) the use to which the [party adducing the evidence] seeks to put those judgements – that is, what facts [the party] seeks to prove by the use.
17.There has been some judicial consideration of how section 91 may apply in a disciplinary proceeding.[2] Although the decisions turn on their own facts, nothing said there casts doubt on the proposition that the onus is on the party seeking to rely on a previous decision or finding of fact to identify the fact in issue it seeks to prove by that means, and how the previous decision or finding of fact is relevant and admissible as evidence of the fact in issue.
[2] See for example Hilton v Legal Profession Admission Board at [54]-[58]; Prothonotary v Comesky at [48]; King v Muriniti at [34]-[36]; Davidson v Legal Profession Admission Board at [21]-[24]; Council of the Law Society of NSW v Yoon at [24], [25] and [32]
18.At the start of the hearing the Tribunal drew the parties’ attention to section 91 and requested submissions at the appropriate time about the permissible use that could be made of the judgments on which the Law Society proposed to rely.[3]
[3] Transcript of proceedings 16 March 2020, page 40, lines 30-35
19.At the close of the evidence the Tribunal made directions for the Law Society to provide a statement of the findings it sought (Statement of Facts) and for the respondent to provide a response indicating whether he agreed or disagreed with the findings (Amended Facts Response).[4]
[4] Amended Respondent’s Reply to Applicant’s Statement of Facts, dated 22 April 2021
20.The Statement of Facts included facts expressed in the form: “At [x] of the judgement, his Honour said” followed by extracts from the judgment.[5] The Amended Facts Response admitted the ‘facts’ in that form. Neither the Statement of Facts, nor the Law Society’s written submissions, explained what use the Law Society considered the Tribunal could or should make of those ‘facts’.[6]
[5] Statement of Facts at [25], [26], [36]-[38], [42], [97]-[101], [164]-[167], [185]-[186], [203], [230]-[231]
[6] Applicant’s Submissions on Breach, Characterisation and Penalty dated 16 April 2021
21.The Tribunal raised the issue at the start of the Law Society’s oral submissions[7] and again before lunch, where it was impressed on the Law Society that the Tribunal wanted “to know what use, if any, the tribunal can make of the multiple passages from the judgments upon which the applicant relies”.[8]
[7] Transcript of proceedings 6 May 2021, page 3 line 37 to page 4 line 22
[8] Transcript of proceedings 6 May 2021, page 39 line 35 to page 40 line 1
22.After lunch the Law Society submitted:[9]
…in relation to the judgements which are referred to, there are no instances where a finding of fact has been made in a judgement and the applicant relies on that finding of fact. The evidence establishing the facts set out in the fact statement are based on either the contemporaneous documents, the evidence of witnesses or admissions made by the respondent. So, I don’t rely on any findings of fact in the judgements to establish the facts for which the applicant contends, and for that reason in my submission section 91 of the Evidence Act does not arise.
[9] Transcript of proceedings 6 May 2021, page 41, lines 20-29
23.The Tribunal considers the Law Society is bound by that concession and has made its decision on that basis. To do otherwise would be to deny procedural fairness to the respondent.
Witnesses and credit
24.The Law Society’s evidence was primarily documentary, although it relied also on an affidavit by Mr D, who was not required for cross-examination, and on an affidavit and oral evidence by Melanie Ramos in OR 13/2020. Ms Ramos was cross-examined briefly. Although her evidence was not seriously challenged, we have not taken up the Law Society’s invitation to accept Ms Ramos’ evidence in its entirety notwithstanding the respondent’s concession that her evidence “was truthful and an honest recollection of what transpired”.[10] There are aspects of her account of the events that we question and do not think were explained satisfactorily. We refer to these later. However, our decision in OR 13/2020 does not depend on any findings about Ms Ramos’ credit.
[10] Amended Facts Response at [12]
25.The respondent initially served two affidavits, both affirmed on 25 November 2020.[11] These did little more than annex documents. With the hearing scheduled to commence on 15 March 2021, the respondent served a further affidavit affirmed on 5 March 2021,[12] two affidavits affirmed on 11 March 2021,[13] an affidavit affirmed on 12 March 2021,[14] and a seventh affidavit affirmed on 13 March 2021.[15] The affidavits are brief, lack essential detail and appear to have been prepared hastily, without due care. They demonstrate a lack of insight about the factual issues the respondent had to address and the respondent’s duty to provide reasonable assistance in the conduct of the Tribunal’s enquiry and a full and frank account of his involvement in relevant matters. Although the Tribunal gave limited leave for the respondent to give supplementary oral evidence, the respondent did not take up the opportunity.
[11] Exhibit 1, 2
[12] Exhibit 3
[13] Exhibit 4, 5
[14] Exhibit 6
[15] Exhibit 7
26.The Law Society submitted the respondent’s evidence should not be accepted except where his evidence was inherently probable, corroborated by documents or objective facts, or involved admissions.[16] The Law Society gave five reasons with examples from the evidence:
(a)First, the respondent’s evidence on important issues often emerged only during the cross-examination.[17]
(b)Second, the respondent failed to give evidence with the level of care warranted by the nature of the proceedings, to the point that his evidence was given recklessly.[18]
(c)Third, aspects of the respondent’s evidence were inconsistent and contradictory.[19]
(d)Fourth, the respondent refused to make concessions which reasonably he ought to have made.[20]
(e)Fifth, many aspects of the respondent’s evidence were manifestly implausible, often to the point of being startling.[21]
[16] Statement of Facts at [11]
[17] Statement of Facts at [2], [3]
[18] Statement of Facts at [7]
[19] Statement of Facts at [8]
[20] Statement of Facts at [9]
[21] Statement of Facts at [10]
27.The respondent submitted:
(a)in answer to the first point, the respondent gave truthful answers in response to additional issues raised in cross-examination;
(b)in answer to the second point, although the respondent may have been defensive, his evidence was not given recklessly;
(c)in answer to the third point, the respondent’s conduct may be described broadly as defensive;
(d)in answer to the fourth point, the respondent accepted he had refused to make concessions which reasonably he ought to have made; and
(e)in answer to the fifth point, although aspects of the respondent’s evidence were unsatisfactory and his conduct under cross-examination was alternately defensive, combative, or uncooperative, the matters upon which the Law Society relied did not establish that “in giving his evidence he was being dishonest, manifestly implausible or startling”.[22]
[22] Amended Facts Response at [3], [6], [7], [8], [9], [11]
28.While the respondent’s characterisation of his conduct under cross-examination as alternately defensive, combative, or uncooperative is appropriate and the concession that aspects of his evidence was unsatisfactory is well justified, we consider the problems with the respondent’s evidence are more serious. We accept the Law Society’s submission that the respondent’s evidence should not be accepted except where his evidence is inherently probable, corroborated by documents or objective facts, or involves admissions.
29.We are satisfied that in important respects the respondent’s oral evidence to the Tribunal was unreliable, often untruthful, and generally, that his belated attempt to explain and justify his conduct lacked credibility and in some cases was dishonest. We make findings about this later in these reasons.
Disputed facts
30.Although initially the scope of the factual dispute appeared large, in the end most of the facts on which the Law Society relied were admitted except where it alleged that statements the respondent admitted making were made knowing the statements were false, or with reckless indifference as to their truth or falsity.
OR 12/2020
The facts
SGLB proceeding
31.The application alleges the respondent “repeatedly [made] the argument based on the comments of Kirby J in SGLB that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa”.[23]
[23] Application in OR 12/2020 at [36]
32.The issue in Minister for Immigration and Multicultural and Indigenous Affairs vSGLB [2004] HCA 32 was whether the Administrative Appeals Tribunal (AAT) denied procedural fairness to an applicant for refugee status. The relevant passage from the judgment of Kirby J (who dissented in the result) is at [73] where his Honour drew together the points he considered should be accepted as common ground in the appeal. The seventh point is relevant:
7. Remembering the purpose of credibility: Credibility is often seen as the crucial issue in Tribunal determinations of refugee status. The references in the Refugees Convention to the existence of “fear”, enter the grounds of that emotion, necessarily imply that those deciding refugee claims will have to make highly personal evaluations of the subjective feelings and motivations of applicants. As I said in Minister for Immigration and Multicultural Affairs v Rajamanikkam, “[m]any, perhaps most, claims to refugee status involve examination of the truthfulness of the factual assertions of the applicant. Many turn on the assessment of credibility”. There was some suggestion during the hearing of this appeal that inconsistent statements by asylum seekers might suggest fabrication of evidence, and might justifiably lead to negative conclusions as to credibility. While such a conclusion is sometimes justified, refugee cases involve special considerations where credibility is an issue. There is no necessary correlation between consistency and credibility in such cases. Many factors may explain why applicants present with the appearance of poor credibility. These include: mistrust of authority; defects in perception and memory; cultural differences; the effects of fear; the effects of physical and psychological trauma; communication and translation deficiencies; poor experience elsewhere with governmental officials; and a belief that the interests of the applicant’s or their children may be advanced by saying what they believe officials want to hear. The Tribunal must be firmly told – if necessary by this Court – that the process is one for arriving at the best possible understanding of the facts in an inherently imperfect environment. It is not to punish or disadvantage vulnerable people because they have made false inconsistent statements, or are believed to have done so.
SZUSH proceeding
33.On 13 May 2016, the respondent appeared before Nettle J in the SZUSH proceeding in the High Court. According to the respondent’s evidence, the Application for an Order to Show Cause filed with Court included the following grounds:
5. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 (17 June 2004) The majority of the Court warned against the drawing of adverse inferences due to the existence of inconsistent statements which may have been made by the plaintiff. The Court stated that individuals should not be punished for the making of an inconsistent statement.
6. In this case, the Refugee Review Tribunal used the existence of an inconsistent statement about one matter to form the basis for the denial of all of the plaintiff’s claims. The fact that the plaintiff may have made an inconsistent claim about one matter does not mean that the plaintiff is making an inconsistent claim about another matter.
7. The Refugee Review Tribunal has taken account of an irrelevant consideration, that is, the existence of an inconsistent statement when rejecting the claims of the plaintiff.
8. The credibility of the plaintiff is an irrelevant consideration. When the tribunal engages in a process of the assessment of the plaintiff’s credibility, this is an unlawful practice.[24]
[24] Exhibit 7 at [3]-[7] and page 8, Annexure ‘A’
34.The respondent’s outline of submissions filed with the Court included the following submissions:
7. The decision of the Refugee Review Tribunal in this matter contains a number of jurisdictional errors. The jurisdictional errors are those errors as enunciated by his Honour Justice Kirby in the SGLB case. That is, the Tribunal has drawn adverse inferences from the inconsistent statements made by the plaintiff at the Tribunal hearing. The fact that the plaintiff may have made an inconsistent statement does not mean that the applicant was not the subject of persecution. The plaintiff should not in the words of his Honour Justice Kirby be ‘punished’ for making an inconsistent statement.
8. The Refugee Review Tribunal regularly ignores the rulings of the High Court in this regard. The Tribunal appears to be of the opinion that it can make findings about the plaintiff’s credibility. The credibility of the plaintiff is however an irrelevant consideration and is also further evidence of a jurisdictional error.[25]
[25] Exhibit 7 pages 11-12, Annexure ‘A’
35.At the hearing before Nettle J on 13 May 2016, the respondent submitted:
Essentially, every decision of the Administrative Appeals Tribunal in the Refugee Review Division infringes the principles stated by his Honour Justice Kirby in SGLB. There is a consistent, constant assessment of credibility, there is never any assessment of the particular claims of the applicant and, as such, all decisions of the Refugee Review Tribunal – sorry, the Refugee Review Division in the Administrative Appeals Tribunal is now open to question.[26]
[26] Exhibit A, page 64 lines 85-91
36.Considering that evidence, the Tribunal is satisfied the respondent made a submission to the Court that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa.
37.Nettle J rejected the respondent’s argument and gave the following reasons in SZUSH v Minister for Immigration and Border Protection & Ors [2016] HCATrans 112 at pages 9 to 10, lines 313 to 340:
The complaint that the RRT committed jurisdictional error by deciding SZUSH’s application for review on the basis of an assessment of SZUSH’s credibility was dealt with at length in the Federal Circuit Court’s reasons for judgment and nothing which has been said today casts any doubt on the correctness of the Federal Circuit Court’s rejection of the complaint.
Contrary to SZUSH’s contentions, it is not the law that the credit and reliability of an applicant’s evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 (“MIMIA”) at 21-22 [42] – [44] per Gummow and Hayne JJ).
No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent). As Kirby J observed in MIMIA, “There is no necessary correlation between inconsistency and credibility in such cases”. It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant’s version of events; and where, as here, there were many reasons to disbelieve an applicant’s version of events it is not in error to reject it.
MZAHH proceeding
38.On 2 August 2016, the respondent appeared before Justice Bell in the MZAHH proceeding in the High Court. In his evidence to the Tribunal, the respondent tendered a document he said was his written outline of submissions in MZAHH but in fact appears to be an early draft. It makes no reference to credibility.[27] However, the respondent admitted that her Honour “rejected the [r]espondent’s submission that the credibility of an applicant for review before the AAT is an irrelevant consideration”.[28] On that basis we are satisfied that the respondent made a submission to the Court that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa.
[27] Exhibit 7 at [14] and page 19, Annexure C
[28] Amended Facts Response at [26]
39.Bell J rejected the respondent’s argument and gave the following reasons in MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177 at page 27:
The contention that the credibility of an applicant for review before the Tribunal is irrelevant to its determination appears to be based on a misreading of this Court’s decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB. To the contrary, as Justice Nettle held in SZUSH v Minister for Immigration and Border Protection, where the establishment of facts depends on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment.
C7 proceeding
40.On 24 August 2017, the respondent appeared before Bell J in the C7 proceeding in the High Court. According to the respondent’s evidence to the Tribunal, his written Outline of Submissions filed with the Court commenced as follows:
At the heart of this matter are the comments of the majority of the Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB… In particular the comments of His Honour Justice Kirby. The comments of the Court are not as commonly misconceived the comments of the minority Court. The comments of His Honour represent the views of the majority of the Court. Further, the High Court has not derogated in any way from the comments of the majority in the SGLB case.[29]
[29] Exhibit 7 at [8]-[13] and page 15, Annexure B
41.After setting out the passage from Kirby J’s dissenting judgment in SGLB, the submissions continued:
This is not a matter that should be remitted. The lower courts have consistently made errors of law in the course of reviewing the decisions of the Minister. His Honour Justice Kirby is of the view that the lower courts must be firmly told of the correct legal position. The lower courts have consistently ignored the comments of the High Court.
…
After an examination of many many such decisions, it is clear that the Minister and the Tribunal have adopted an overly formulaic approach to the jurisdiction. It would appear that the decision-maker has been instructed to examine the papers, find an inconsistency in the papers, and use such an inconsistency as a basis to refuse the visa…
42.In relation to assessment of credibility, the respondent submitted at paragraph 7:
Just to be clear, the visa applicant does not assert that the decisionmaker cannot engage in a process of credibility assessment. It is the visa applicant’s contention that the process of credibility assessment must be a lawful process. That is, the decisionmaker cannot take irrelevant considerations into account when making a finding about the credibility of the applicant. The decisionmaker must have some evidence in order to base a finding about the credibility of the applicant. There is no necessary correlation between inconsistency and credibility.
43.Later, the respondent submitted at paragraph 10 that:
At no stage did the decisionmaker ask the applicant about the acts of persecution. When did this occur, what time did it occur, did anyone see you, did you go to the hospital, did you tell any of your friends about it. Instead the decisionmaker simply finds an inconsistency and uses the inconsistency as a basis to refuse the visa. This is an entirely unreasonable process.
44.The Law Society did not refer to the respondent’s written Outline of Submissions but relied on the following exchange between the respondent and Bell J at the hearing:
MR FORD:…Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby - in the SGLB Case - who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.
HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put – I note on occasions amongst others in an application dealt with by his Honour Justice Nettle – just bear with me one moment.
MS WONG: SZUSH, your Honour.
HER HONOUR: Yes, that is the matter - in May of last year.
MR FORD: That is right, your Honour.
HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB - the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?
MR FORD: That is right, your Honour…[30]
[30] Statement of Facts at [24]
45.The respondent continued:
I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters – the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.
Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour’s comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.
So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant’s claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection… of the claims.[31] [Emphasis in original]
[31] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) page 13; Exhibit A, page 18
46.It must be remembered that the issue the Tribunal must decide is not whether the respondent’s submission to the Court about the process the AAT and Federal Circuit Court followed in assessing credibility of an applicant was sound, or whether the respondent’s reliance on the comments of Kirby J in SGLB was well founded. The issue the Tribunal must decide is whether, as the Law Society has alleged, the respondent made a submission to the Court in the C7 proceeding that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. We are not satisfied that the respondent made such a submission. It is clear from paragraph 7 of the respondent’s written Outline of Submission that the respondent was objecting to the way the decision-maker assessed the applicant’s credibility and not to the fact that such an assessment was made.
C7 transfer application
47.On 24 August 2017, Bell J remitted the C7 proceeding to the Federal Circuit Court.
48.There the matter came before Judge Neville on 26 September 2017. The respondent appeared for the applicants, where he made an oral application to transfer the proceedings to Darwin. He informed the Court he had received instructions to make the application “about two days ago”. In response to his Honour’s question “How long has your client been living in Darwin?” the respondent answered, “Approximately six months”. The respondent acknowledged that a formal transfer application was necessary. His Honour proposed the transfer application should be decided on the papers and ordered the applicants to file and serve a transfer application and written submissions by 10 October 2017.[32]
[32] Statement of Facts at [26]-[32]
49.The respondent continued to act for the applicants at least for some time, but failed to file a transfer application or written submissions. He claimed in evidence to the Tribunal that this was because he was no longer instructed in the matter, although there is no evidence as to the date on which he says his instructions were withdrawn. He claimed he attempted to obtain his client’s instructions, but his client did not return his calls. He also claimed he was telephoned by another unidentified solicitor who “had carriage of the matter and who advised that he would be able to lodge the necessary documents with the Court”. The Tribunal does not accept the respondent’s explanation. Inconsistently with his version of events, on 10 October 2017 the respondent filed an affidavit by the first applicant in support of the (oral) transfer application, in which the first applicant said he had lived in Darwin for four years. The respondent did not offer any explanation to the Tribunal why he was not constrained from filing an affidavit, but was constrained from complying with the Court’s directions for filing a transfer application and written submissions. In fact, the respondent stated in written submissions to show cause why a copy of Judge Neville’s reasons for judgment should not be referred to the Law Society, that the written submissions, in his view, were “otiose”.[33] We find that the respondent failed to file submissions in compliance with the orders of the Court because he decided they were not necessary. His evidence that there were other reasons for his failure to file submissions is rejected.
[33] Exhibit A, page 36
50.The respondent failed to explain the discrepancy between the first applicant’s evidence that he had lived in Darwin for a period of four years and the respondent’s earlier statement to the Court that the period was approximately six months. In his show cause submissions to the Court, the respondent stated:
I note the assertion that there is some dispute as to the length of time the Applicant was said to have lived in Darwin.
My instructions were clear and the client informed me and I also informed the Court that it was 4 years in the Affidavit.
I have no personal knowledge of any lesser period but do agree that in error I said “6 months” when my instructions were that she had resided in Darwin for 4 years.[34]
[34] Exhibit A, page 36
51.On 2 March 2018, Judge Neville dismissed the C7 transfer application: C7A/2017 & Ors v Minister for Immigration & Anor [2018] FCCA 458. Some 19 paragraphs of his Honour’s judgment, in a section headed ‘Other Matters: the Conduct of the Applicant’s Solicitor’ were devoted to criticising the respondent’s “conduct in the current matter, and in other matters before this Court”,[35] including “his continued insistence on using as precedent a dissenting judgment of the High Court” (referring to Kirby J’s comments in SGLB).[36] His Honour prepared that part of the Reasons for Judgment with a view to referring them to the Law Society.[37] Subsequently, the Registrar of the Court did so at his Honour’s request.
[35] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) at [19]
[36] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) at [20]; Statement of Facts at [36], [37], [38]
[37] See [3] of the orders made by Neville J on 2 March 2018; Exhibit A, page 33
52.The Law Society failed to explain what use the Tribunal could or should make of his Honour’s comments or the respondent’s admission that the comments were made. Ultimately, under pressure from the Tribunal to show its hand, the Law Society submitted that “the evidence establishing the facts set out in the facts statement are based on either the contemporaneous documents, the evidence of witnesses or admissions made by the respondent” and that it did not “rely on any findings of fact in the judgements [sic] to establish the facts for which the applicant contends”.[38] The reasons for judgment in the C7 transfer application do not attribute to the respondent a submission made on that occasion that the credibility of an applicant is an irrelevant consideration. Although the Law Society’s closing submissions asserted that the respondent had made such a submission, it referred to no evidence that he had done so.[39] It is difficult to understand why the allegation was made in the first place, considering the Law Society alleged the respondent failed to comply with orders requiring the filing of written submissions, and the transfer application was decided on the papers without oral submission.
AQF17 proceeding
[38] See [22] above
[39] Applicant’s submissions on Breach, Characterisation and Penalty at [3.2]
53.On 4 June 2018, the respondent appeared before Farrell J in the AQF17 proceeding in the Federal Court. According to the respondent’s evidence in the Tribunal, the Amended Application for Relief filed with the Court relied on the following ground (among others):
6. The IAA has drawn adverse inferences from a number of inconsistencies. The High Court in the SGLB case criticised any attempt by the IAA to punish visa applicants for making inconsistent statements. Here the applicant is being punished for the making of an inconsistent statement. Even if an inconsistent statement exists, this does not of itself mean that the Applicant was not the subject of persecution. It is unreasonable for the IAA to draw adverse inferences from the making of an inconsistent.[40] [sic]
[40] Exhibit 7 at [15] and Annexure D
54.There is nothing in the Amended Application to suggest the respondent was continuing to maintain that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. To the contrary, the focus of ground 6 appears to be whether it was reasonable and logical for the IAA to disbelieve the applicant’s claims of persecution based on identified inconsistencies in the applicant’s evidence.
55.Farrell J referred to ground 6 in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 as follows:
45. Without particulars, ground 6 of the notice of appeal takes issue with the Authority’s reliance on inconsistency in AQF17’s evidence to draw inferences adverse to AQF17’s claims, characterising the inferences as “punishment” for the inconsistencies. He relies on the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB… As may be inferred from Mr Ford’s written submissions to the Federal Circuit Court, he relies in particular on what was said by Kirby J at [73(7)] in his dissenting judgement as follows…
46. Mr Ford has raised this argument in a number of matters without success…
47. It is true that credibility findings are not beyond scrutiny and jurisdictional error may occur where such findings are unreasonable or without a logical, rational or probative basis or founded on an objectively minor matter…
48. In their essentials, the Authority accepted AQF17’s claims made in his entry interview concerning the incidents in 2007 and 2010. The differences between AQF17’s entry interview account of the 2007 incident… and his subsequent accounts vary in significant ways which support the Authority’s findings that AQF17’s claims made after the entry interview were an “embellishment”…
49. In my view, the FCC Judge did not err when he found that the inconsistencies identified by the Authority… cannot properly be characterised as minor or insubstantial in most instances…
50. In his submissions, Mr Ford reiterated a number of times the argument that it is neither reasonable nor logical for the Authority to conclude from the identified inconsistencies in AQF17’s evidence that he was not persecuted. That submission cannot be accepted: the inconsistencies in the evidence went to the basis of his claims to fear persecution.
56.In his response to the Statement of Facts, the respondent admitted the Law Society’s allegation that in the AQF17 proceeding “the Respondent made an argument based on Kirby J’s comments in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 to the same effect as the argument referred to by Judge Neville in the C7 Judgment”.[41] Exactly what that means is unclear. It is true the respondent’s submissions referred to Kirby J’s comments in SGLB as appears from what Farrell J said in AQF17, but it was not in the context of a submission that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. We are not satisfied that the respondent made such a submission on that occasion.
[41] Amended Facts Response at [42]
Consideration
Charge 1
57.The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 of the Rules by repeatedly making an argument without merit.
58.The Law Society alleged the respondent raised an argument to the effect that the credibility of an applicant is an irrelevant consideration, based on comments by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32 at [73], in five proceedings spanning a two-year period from May 2016 to June 2018.
59.The respondent’s closing submissions stated:
The respondent[‘]s conduct is admitted and reflects his dogmatic, albeit unsubstantiated certainty, regarding the legal principles underpinning the cases he presented however it is noteworthy that multiple other grounds were relied upon in the cases referred to.[42]
[42] Respondent’s Submissions on Breach, Characterisation and Penalty at [3.4]
60.The evidence, however, is to the contrary. The evidence establishes that the respondent did so twice only: on 13 May 2016 in the SZUSH proceeding before Nettle J and on 2 August 2016 in the MZAHH proceeding before Bell J. It is clear the respondent’s submissions in the SZUSH and MZAHH proceedings reflected his misunderstanding of the effect Kirby J’s comments in SGLB.[43] However, the allegation that the respondent made the same submission in the C7 transfer application was unfounded.[44]
[43] Findings above at [36], [38]
[44] Findings above at [52]
61.The respondent’s submissions in the C7 proceeding before Bell J and the AQF17 proceeding before Farrell J relied on SGLB in support of the proposition that the process of credibility assessment was flawed because it relied unreasonably on inconsistencies in an applicant’s account as a basis for disbelieving claims of persecution. This is not the same as saying that credibility is irrelevant.[45]
[45] Findings above at [46], [54], [56]
62.The Tribunal notes that Justice Kirby’s comments in SGLB continue to be cited in support of the proposition that perceived inconsistencies or embellishments in particular aspects of an applicant’s evidence should not be transformed impermissibly into a finding that the applicant’s claims of persecution are either wholly or partly untrue.[46]
[46] See e.g. SZRVA v Minister for Immigration and Border Protection [2019] FCA 630 (Flick J) at [20]
63.Rule 4.1.1 requires a solicitor to act in the best interests of the client in any matter in which the solicitor represents the client.
64.Rule 4.1.3 requires a solicitor to deliver legal services competently, diligently, and as promptly as reasonably possible.
65.Rule 5 provides that a solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute.
66.We find the charge that the respondent breached all or any of these rules is not proved.
Charge 2
67.The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 of the Rules by failing to comply with orders of the Court for the filing and service of a transfer application and written submissions in the C7 transfer application.
68.We find the charge that the respondent breached rules 4.1.1 and 4.1.3 proved.[47]
Charge 3
[47] Findings above at [49]
69.The issue is whether the respondent breached rules 19.1 and/or 19.2 of the Rules and his common law duty of honesty and candour to the Court in the C7 transfer proceeding, by making a statement to the Court dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity, or if the statement was made mistakenly, failing to take steps to correct the misleading statement.
70.Rule 19.1 states that a solicitor must not deceive or knowingly or recklessly mislead the court.
71.Rule 19.2 states that a solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
72.The Law Society did not establish that the respondent knew, when he told the Court that the applicant had lived in Darwin for six months, that the statement was false or that he was recklessly indifferent to its truth or falsity. However, the evidence supports a finding that the statement was made carelessly. Although the first applicant’s affidavit deposed to the true facts, in the Tribunal’s view it neither explained nor corrected the respondent’s earlier misleading statement. Rather it exposed an apparent inconsistency in the first applicant’s position that remained unexplained.[48]
[48] Findings above at [48], [50]
73.We find the charge that the respondent beached rule 19.2 and his common law duty of honesty and candour to the Court proved.
OR 13/2020
The facts
74.In March 2015, Ms O consulted a migration agent, Ms Melany Ramos, in relation to an application for a protection visa. In early April 2015, Ms O applied to the Minister of Immigration and Border Protection (the Minister) for a protection visa. On 10 November 2016, a delegate of the Minister refused the application. Ms O was notified of the decision by email the same day. Pursuant to section 412(1)(b) of the Migration Act 1958 (Cth) and regulation 4.31 of the Migration Regulations 1994 (Cth), an application for review of the decision had to be made to the AAT within 28 days after Ms O was notified of the decision. The period within which to do so ended on 8 December 2016.
75.Ms Ramos claimed she completed an online application for review of the decision late in the evening on 7 December 2016 and lodged it with the AAT by pressing the ‘Enter’ button on the screen. On 9 December 2016 – i.e., the day after the time limit to lodge the application expired – she realised a problem with her IT system had prevented the application from being uploaded. She immediately prepared and lodged another application online. On 12 December 2016, the AAT acknowledged receipt of the application lodged on 9 December 2016.
76.On 23 January 2017, the AAT determined it did not have jurisdiction to hear the application for review of the decision because it was filed out of time. Ms Ramos received notice of the AAT decision on 25 January 2017.
Ms Ramos’ dealings with Mr D
77.The evidence is not clear as to what happened next. According to an affidavit Ms Ramos swore on 10 July 2017 (which we discuss in detail later):
On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn’t able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assist in the case of [Ms O]. Unfortunately a Migration Lawyer said yes to represent [Ms O] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who said that he will represent to [Ms O] but he took so much time and he did not lodge the application to the Court.[49] [All errors in the original]
[49] Exhibit B, page 258 at [17]
78.Ms Ramos said, in evidence to the Tribunal, that the first migration lawyer, whom she claimed initially agreed to represent Ms O but later said ‘no’, was a Mr P.[50]
[50] Transcript of proceedings 16 March 2021, page 44, lines 14-37
79.Ms Ramos identified the “second Migration Lawyer” as Mr D in correspondence to the Law Society.[51]
[51] Exhibit B, pages 211, 223
80.Her first contact with Mr D was by email on 14 February 2017. After introducing herself, she described Ms O’s circumstances briefly, including that her bridging visa was due to expire on 20 February 2017 and that this was the last day to file an application in the Federal Circuit Court (which apparently was a pre-requisite for Ms O to be eligible to apply for a further bridging visa). Ms Ramos asked whether Mr D would represent Ms O, noting that Ms Ramos would be his client and would be responsible for payment of his fees. She requested him to forward his fee agreement and bank account details.
81.There were various telephone and email communications between Mr D and Ms Ramos in the following fortnight. It appears Ms Ramos contacted her professional indemnity insurer because she forwarded an email from the insurance broker to Mr D on 22 February 2017.[52] On 23 February 2017, Ms Ramos wrote to Mr D that “I am a bit worry (sic) because tomorrow her [Ms O’s] BVE [bridging visa class E] would be due and she does not have any more argument to get another BVE” and sought advice “if her application will be lodge (sic) tomorrow?” Mr D responded by asking “Will the insurer agree to cover your exposure to High Court costs? You need to find out”. Ms Ramos replied that she would enquire tomorrow and asked for an estimate of the costs and, “on which grounds will I request for another BVE?”[53]
[52] Exhibit 1, Annexure 7
[53] Exhibit 1, Annexure 8
82.In the early afternoon on 27 February 2017, the insurance broker notified Ms Ramos of the insurer’s response:
We have not been notified of any claim for compensation having being [sic] made by the insured’s client as a result of the insured’s failure to lodge the application with [sic] the specified time period. The potential claim, if made, is one for a loss of opportunity to have had the original decision (by the delegate of the Minister for Immigration and Border Protection) reviewed by AAT.
At this stage the insuring clause has not been triggered as we are not aware that a Claim has been made against the insured by [Ms O]. To improve her client’s position the insured has already instructed a solicitor from [Mr D’s visa agency] to take her client’s case to the Federal Circuit Court.
We will at this stage treat this matter as a notification of a circumstance which may give rise to a claim against the insured. Please keep us advised of all developments.[54]
[54] Exhibit B, page 27
83.Later that afternoon, Ms Ramos forwarded the email to Mr D and said:
Please find below about the response from the insurance company, please let me know what I would do next; please remember [Ms O] Visa is only until this Friday otherwise she would be in high risk to be in detention because she does not have a case in process nor a ticket to departure from Australia. I will highly appreciate your opinion about this situation.[55] [All errors in the original]
[55] Exhibit B, page 27
84.Mr D replied:
We will represent your client–but note our contract for services will be with you, and your client will need to be aware that the costs awarded to the Minister can be very high if the case is referred to a court of three, five or 7 judges (as opposed to one judge). Will the insurance company cover those costs–does your client need to put in a claim first–and then the insurance company sees how the negligence can be cured (by way, for example, of a court case).[56]
[56] Exhibit B, page 26
85.Later in the evening on 27 February 2017, Ms Ramos wrote to Mr D:
1. I am accepting the contract will be with me/services, (as we are responsible for miss the AAT date) and my client will aware of the costs, and the costs for the Minister.
2. Could you provide me a draft how my client put in the claims (normal letter or statutory declaration) and what information from [Mr D’s firm] must be sent to the Insurance company?
3. Do you have any idea how much will be cost of your representation and/or if I have to give your representation cost to the insurance company?[57] [All errors in the original]
[57] Exhibit B, page 26
86.On 28 February 2017, Ms O lodged a claim under Ms Ramos’ professional indemnity insurance policy:
Ms Melanie Ramos missed to lodge my application to the Administrative Appeals Tribunal (AAT), on my behalf therefore I am in a disadvantage position, and I seek for advice with a solicitor to represent me at the Federal Circuit Court. Mr [D] from [Mr D’s firm] he had accepted to represent my case at the FCC.
…
Due to I am in a Bridging Visa E, we are urged to get your response as soon as possible, and my BVE is due on this Friday, 3 March 2017.[58] [All errors in the original]
[58] Exhibit 1, Annexure 10
87.Although this and earlier communications from Ms Ramos referred to commencing proceedings in the Federal Circuit Court, it appears Mr D considered that only the High Court had jurisdiction to review the delegate’s decision to refuse Ms O’s application for a protection visa.[59]
[59] Exhibit B, page 17 at [6]
88.In the morning on 1 March 2017, Mr D advised Ms Ramos:
We would charge set professional fees $20,000 plus GST for the High Court case, if it is heard by a single judge. You must also pay for all extras, at cost (High Court application fee, hearing fee, hotel for one night and economy airfare return). Note if the case loses, the Minister’s costs could be higher than our costs, especially if a Senior Counsel/Queen’s Counsel is appointed to act for the Minister. Your client needs to be aware of that and she has to agree that we can act for her in the High Court, being aware of her exposure to costs. I presume you would have some agreement with her to cover her costs.[60]
[60] Exhibit B, page 25
89.Ms Ramos replied by email sent shortly before 5 pm on 1 March 2017:
[Ms O] had tried to talk to you but it was not possible.
She in her concerns about this situation went to see a solicitor in Canberra; he rang me, Hugh Ford, I did explain to him what happened and amongst other things that we talked, he suggested to lodge the Ministerial Intervention, which we know the it may not be successful due to the circumstances, and then applied to the circuit court??, also he said that is better to withdrawn Matilda’s Insurance complaint against me because the Insurance company will report me to MARA and most possible I will lose my license that I have since 1998. I worry about because this in my only income and I am a sole parent. I am trying to be justice, and honest with Matilda.
Could you give your opinion about it, please.[61] [All errors in the original]
[61] Exhibit B, page 25
90.Mr D replied later on 1 March 2017:
I am not prepared to discuss what Hugh Ford says. I have informed you of what I think should be done.[62]
[62] Exhibit B, page 24
91.In the afternoon on 2 March 2017, Ms Ramos wrote to Mr D:
Due to the Matilda is so worry about her BVE, and she is not sure that you will represent her, she has decided to give her case to another solicitor who will represent her tomorrow at court initial process.
I personally highly appreciate all your instructions and communication provided to me.[63] [All errors in the original]
What were Ms Ramos’ instructions to the respondent?
[63] Exhibit B, page 24
92.Ms O went to see the respondent in Canberra on 1 March 2017 and Ms Ramos (who lived in Sydney) spoke with him by telephone the same day. The next day Ms Ramos forwarded copies of her email correspondence with Mr D to the respondent, including the initial email sent on 14 February 2017.
93.Whatever instructions Ms Ramos gave the respondent, they did not include instructions that Mr D had been assisting her in relation to the AAT matter before the AAT made its decision.[64] Clearly, Mr D was not involved at that time.
[64] Amended Facts Response at [58], [59]
94.On 6 March 2017, the respondent filed an application in the Federal Circuit Court on behalf of Ms O seeking judicial review of the AAT decision and an extension of time for filing the application in the Court. The respondent certified there were reasonable grounds for believing the application had a reasonable prospect of success pursuant to section 486I of the Migration Act 1958 (Cth). In support of the application the respondent filed an affidavit in which he deposed:[65]
1. That on 1 April 2015 the applicant lodged an application for a protection (subclass 866) visa.
2. The delegate of the Minister for Immigration made a decision to refuse the application on 10 November 2016.
3. The applicant had to submit her review application within 28 days from the date of the decision.
4. The Migration Agent of the applicant Ms. Ramos filed an online application on the applicant’s behalf with AAT.
5. Ms. Ramos prepared and filed the application but due to the malfunctioning of the IT system in her office, the application did not go through. Ms. Ramos was satisfied and confident that the AAT had received the application. But later it came to her notice that the application filed from her office was not received by AAT. She lodged another application but the AAT refused the application on the basis that it was out of time.
6. The AAT asked Ms. Ramos to show the evidence that the application was filed on time and that the IT system in her office had problems. Ms. Ramos provided the evidence but the AAT refused to accept Ms. Ramos’s evidence and did not accept the application. Just to be clear, the assistant pushed the button on the computer and the application was lodged.
7. The applicant’s Migration Agent tried her best to resolve the issue and requested another Solicitor [Mr D] from…Lawyers to file the application on the applicant’s behalf.
8. The decision of the AAT is attached at “Annexure A”. [Emphasis added]
[65] Statement of Facts at [61], [62]
95.The Law Society submitted that the respondent asserted in paragraph 7 that Ms Ramos had requested Mr D to file an application in the AAT on Ms O’s behalf (rather than in the Federal Circuit Court). The Law Society submitted the respondent made the statement in paragraph 7 knowing it to be false or alternatively with reckless indifference as to its truth or falsity.
96.The respondent accepted that the statement in paragraph 7 was incorrect, but for a different reason. He submitted that “the respondent had all of the material before him but for reasons that are not entirely clear reached the conclusion that Mr D was assisting Ms Ramos with an application at the FCC”.[66]
[66] Amended Facts Response at [63], [64]
97.The meaning of paragraph 7 is a matter to be determined objectively. We do not accept that it bears the meaning the Law Society seeks to give it. The beginning of the sentence says the applicant’s migration agent “tried her best to resolve the issue”. Plainly “the issue” refers to the late filing of the application in the AAT due to an IT malfunction described in paragraph 5. The migration agent’s attempts to resolve the issue are those described in paragraph 6. In that context the migration agent’s request for another solicitor “to file the application on the applicant’s behalf” can refer only to something done in furtherance of the migration agent’s attempts to resolve the issue after her attempts to persuade the AAT had failed. On a plain reading of paragraph 7, the “application” Mr D was asked to file refers to an application in the Federal Circuit Court and not an application to the AAT in November or December 2016 as the Law Society alleged.
98.This is consistent with Ms Ramos’ emails to Mr D copied to the respondent on 2 March 2017. It is consistent with the insurance broker’s email to Ms Ramos on 27 February 2017 which said, “To improve her client’s position the insured has already instructed a solicitor from [Mr D’s visa agency] to take her client’s case to the Federal Circuit Court”. It is consistent also with Ms O’s insurance claim on 28 February 2021 which said “I seek for advice with a solicitor to represent me at the Federal Circuit Court. Mr [D] from [Mr D’s firm] he had accepted to represent my case at the FCC”.
99.Against this is the respondent’s evidence in cross-examination where he said:
So, what you were – what you were intending to convey by paragraph seven is that Ms Ramos had requested the assistance of Mr [D] in making the AAT application on behalf of [Ms O]. Is that correct?--- Yes.
…
Do you now accept that Ms Ramos did not ask Mr [D] to file an application in the AAT on behalf of [Ms O]?--- Are you asking me today?
Yes?--- Yes, it would appear that that was the case. It would appear that Ms Ramos did not ask Mr [D] to help her with the AAT application.
So, do you accept now that what is stated in paragraph seven of your affidavit of 6 March 2017 is untrue?--- Well, at the time when I signed the affidavit on 6 March 2017, I believed it to be true, that was my honest belief, and that’s why I put it in there.
Can you answer my question, please, Mr Ford?--- The answer is no, I don’t accept that that’s incorrect.
Mr Ford, if you could please listen to my question, I made it very clear to you that I am asking you for your understanding now?--- Yes.
And what I am asking you is do you now accept that what is stated in paragraph 7 of your affidavit of 6 March 2017 is untrue?--- Yes.[67]
[67] Transcript of proceedings 16 March 2021, page 83 line 20 to page 84 line 11
100.We consider the respondent’s admission about the meaning he intended to convey by paragraph 7 is the product of reconstruction, rather than genuine recollection as to his state of belief or intention at the relevant time. We discuss the respondent’s evidence about his instructions in detail later in these reasons.
101.First it is necessary to refer to the submissions the respondent prepared on 30 March 2017 in support of the application. The submissions were filed the next day. We reproduce them in full (with immaterial exceptions):[68]
[68] Statement of Facts at [71], [72]
1. The applicant applied for a visa. The application was refused. The applicant had a right of review by the Administrative Appeals Tribunal provided the application was made within the prescribed period. The applicant did not however get her application to the Tribunal for the review of the decision within time. The applicant cannot now seek the review of that decision by the Tribunal because the applicant is out of time.
2. The Tribunal has made a decision that the applicant is out of time in which to seek the review of that decision. It is this decision, that is, the decision of the Tribunal that the application is out of time which is now the subject of an application to the Federal Circuit Court…
3. The applicant applied to the Federal Circuit Court for the review of the Tribunal decision…within time. The applicant sought the review of the Tribunal decision within the thirty-five-day period which is prescribed.
4. This means that Section 477 of the Migration Act does not raise itself in this case. Section 477 applies only to decisions of the Tribunal and not the primary decision. A decision was made by the Tribunal, and the applicant has applied to seek the review of that decision within time.
5. In this case, the applicant had a Migration Agent who was representing her at the time. Her name is Melany Ramos. Ms Ramos was well aware of the time period in which to seek the review of the decision by the Tribunal. The applicant was well aware of the time period in which an application for the review of the decision of the Tribunal must be made.
6. The agent was however sick. She had a severe back problem and was unable to process the Tribunal application within time. The agent contacted a well-respected Solicitor/Migration Agent who is known as [Mr D]. Mr [D] was well aware of the time period in which to seek the review of the decision by the Tribunal. Unfortunately, Mr [D] was unable to get the papers into the Tribunal within the prescribed period.
7. Given the above, Ms Ramos attempted once again to lodge the application on the last day for making an application to the Tribunal. Ms Ramos went online and attempted to lodge the application. She pushed the button which is called ‘enter’ and the application was apparently lodged.
8. Ms Ramos did not hear anything back from the Tribunal concerning the application. As far as she was concerned, she thought that the application had been lodged within time and there were no problems. Ms Ramos contacted the Tribunal in order to find out the status of the application, and the Tribunal advised her that no such application had been made, and that now the applicant was precluded from making an application because the applicant was statute barred.
9. The applicant is now seeking a Declaration from the Court that the application which was made to the Tribunal was a valid application, and further, that the Tribunal is now under a statutory obligation to assess that application.
10. If necessary, Both Ms Ramos and Mr [D] would be prepared to put on an affidavit attesting to the situation.
11. In the light of the above, it would not in my opinion be appropriate for this matter to be dealt with on the papers. [Emphasis added]
102.Paragraph 6 claimed that Mr D was “unable to get the papers into the Tribunal within the prescribed period”. This was a reference to filing an application in the AAT for review of the Minister’s decision to refuse Ms O’s visa application, the time for which expired on 8 December 2016. Paragraph 10 claimed that Mr D was prepared to give evidence attesting to those circumstances.
103.In early July 2017, the respondent prepared a draft affidavit for Ms Ramos, which said in part:
5. At the time [Ms O] came to see me, there was approximately 10 days in which to commence proceedings in the Administrative Appeals Tribunal.
6. Given that I was sick, I decided to enlist the support of another migration agent who is known as Mr [D]. I was hoping that Mr [D] could lodge the papers with the Administrative Appeals Tribunal within the prescribed period of time.
7. Unfortunately, Mr [D] was unable to lodge the papers within the prescribed time.
8. On the last day when the application was to be lodged with the Tribunal, even though I was sick, I lodged the application for the review of the decision with the Tribunal. The application was lodged electronically. That is, online.[69]
[69] Statement of Facts [81], [82]
104.Clearly, whatever the respondent meant by paragraph 7 of his 6 March 2017 affidavit, several weeks later when he prepared the submissions and several months later when he prepared Ms Ramos’ draft affidavit, he appeared to be operating under the mistaken belief that Mr D had some involvement in the failure to lodge the application in the AAT for review of the delegate’s decision to refuse Ms O’s visa application. We say ‘appeared to be operating’ because whether the respondent held that belief at relevant times, and if he did, what was the source of the belief and whether there were reasonable grounds for it, are important issues.
1. That the Applicant applied for a protection visa under the Migration Act 1958 (Cth).
2. The delegate to the Minister for Immigration refused to grant the visa to the applicant on 26 November 2014.
3. The applicant, through a migration agent, filed a review application with the Tribunal against the decision of the Minister.
4. The matter was set for hearing on 6 December 2016 at the Tribunal before a member.
5. The applicant was not made aware about the hearing date by her migration agent at the Tribunal and missed the opportunity to give evidence and to make arguments in favour of her case.
6. The authorised migration agent of the applicant, after receiving the decision, never disclosed outcome of the application to the applicant.
7. The Tribunal advised the migration agent about reinstatement option of the application and that the reinstatement could be sought within 14 days from the date of refusal.
8. The migration agent kept the applicant in dark and did not tell her about the given opportunity of the reinstatement and lost the opportunity to appear before the Tribunal. [177]
[177] Statement of Facts at [214]
311.Subsequently, the Minister’s legal representative informed the respondent by email that the AAT file contained no indication that a migration agent had been involved at any time prior to the AAT making its decision.
312.On 5 April 2018, the respondent prepared and filed an amended application in which the references to “migration agent” in the grounds of application were replaced by references to “a friend”. The respondent again certified that there were reasonable grounds for believing that the application had a reasonable prospect of success.
313.On 27 April 2018, the application for an extension of time was heard by Judge McNab. The respondent appeared for BNJ17. The respondent did not present any affidavit evidence from the applicant, or the applicant’s friend, deposing to the facts outlined in the grounds of application.
314.During the hearing the respondent submitted:
Now, it’s important to note here, your Honour, that even if the case is a hopeless case, an application can be extended – the time can be extended.[178]
[178] Statement of Facts at [221]
315.The respondent was unable to refer the Court to any authority for that proposition.
316.The following exchange related to the references to a migration agent in the original application:
HIS HONOUR: I’m telling you that you really ought to listen to what is being said. And I’m trying to impress on you the importance and the seriousness of this.
MR FORD: Well, your Honour, I’m simply - the applications that were lodged - - -
HIS HONOUR: It doesn’t stop - may not necessarily stop with a costs application.
MR FORD: Yes. I accept that, your Honour. But I’m simply trying to explain that I was simply acting on the instructions of my client, in terms of who was representing her at the —
HIS HONOUR: But if you’re instructing - if you were taking instructions and you were signing off, you would say, "Well, who was the migration agent; what’s their name and address?"
MR FORD: Well, with respect, your Honour, the status of the representative is, in the applicant’s submission, not relevant here, because at the end of the day it’s the applicant’s contention that that representative - - -
HIS HONOUR: Yes. But a paid representative - when a paid representative is in error, that is of a different species of error to a layperson attempting to help someone and then messing it up. But when you have a paid agent who is negligent, then that is a different species of error and is treated differently by courts. Do you appreciate that?
MR FORD: Well, I accept that, your Honour. But the evidence, as I understand it from my client, is that the person who helped the applicant was a friend. And that’s why I put it in the subsequent document. The issue that’s at stake here, your Honour, is that the applicant - the friend did not tell my client about any tribunal hearing and had no knowledge whatsoever of any tribunal hearing. And that’s why she didn’t attend. If she knew, she would have attended. Now, I wasn’t involved in this matter in any way, shape or form when all this happened. I came in after the event and I took instructions from my client.
HIS HONOUR: But why didn’t you then deal with the matter, once you had received notification by the email?
MR FORD: Well, because I don’t think the status of the applicant is relevant to the issue which is before the court. And the issue which is before the court is that there has been a failure to exercise the statutory duty.
HIS HONOUR: Yes. But you know that that’s not the case.[179]
[179] Statement of Facts at [224]
317.The following exchange concerned the failure to file any evidence:
HIS HONOUR: But it’s a jurisdiction which relies on evidence, if there is evidence to be given. And you can file affidavits, which haven’t been filed. There were orders made in relation to the filing of material; material hasn’t been filed. You’ve made statements from the bar table.
MR FORD: Well, it would appear, your Honour, that you’re simply placing great weight on an apparent inconsistency between the first application and the second application.
HIS HONOUR: No. I’m talking about the absence of any evidence from the friend.
MR FORD: Well, I -
HIS HONOUR: There’s no evidence from the applicant or the friend as to the circumstances of this delay.
MR FORD: Well, because the applicant and the friend don’t need to give evidence, your Honour, because the -
HIS HONOUR: Well, you can’t just give evidence from the bar table about things.[180]
[180] Statement of Facts at [223]
318.On 27 April 2018, Judge McNab delivered an ex-tempore judgment, which was later published, finding that the application had no reasonable prospects of success.[181] His Honour made orders dismissing the application, requiring the respondent to pay the Minister’s costs and repay to BNJ17 any costs paid to the respondent in connection with the proceedings, and precluding the respondent from recovering any costs he had incurred in commencing and continuing the proceedings.
[181] [2018] FCCA 1359
319.On 11 May 2018, Peter Dwyer of the Department of Home Affairs, provided a copy of the transcript of the proceedings before Judge McNab to the Law Society.
Consideration
Charge 1
320.The issue is whether the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and/or 5 by his conduct during the AAT proceeding in talking over the Tribunal Member, directing his client not to answer questions asked by the Tribunal Member, pressing the Tribunal Member to recuse himself, leaving the hearing with his client before the Tribunal Member had concluded the hearing and accusing the Tribunal Member of disgraceful conduct.
321.The Law Society submitted that in directing his client not to answer the Tribunal’s questions, the respondent revealed a lack of understanding of his client’s rights and obligations in relation to a tribunal hearing and his role as the client’s representative at the hearing. As such the respondent failed to act in the best interests of his client and failed to deliver legal services competently and diligently. The Law Society submitted also that the respondent breached his ethical obligations in alleging that the Tribunal Member’s conduct was disgraceful.
322.The respondent’s closing submissions conceded that the respondent’s conduct, particularly his comments to the Member, was grossly discourteous and without a proper basis and as such the respondent failed to act in the best interests of his client and failed to deliver legal services competently and diligently.
323.The respondent’s affidavit affirmed on 25 November 2020 dealt with this incident.[182] It is apparent that the respondent saw nothing wrong with his conduct. Rather, we surmise he sought to justify it by annexing an undated letter that he wrote to Tribunal Member Short in relation to a different matter in which he accused the Tribunal Member of bias and suggested that “you must now resign given that you are completely compromised.”[183] Also included as part of the annexure is a letter the respondent wrote to the Attorney-General, dated 5 September 2016, in which he made allegations of bias and improper conduct against the Tribunal Member, including that the Tribunal Member “engag[ed] in a rather crude form of intimidation” of the respondent’s client. The respondent requested that the Attorney-General investigate the matter and offered his opinion that the “member has clearly established a case of proven misbehaviour and his position at the Tribunal should be terminated”.[184]
[182] Exhibit 2
[183] Exhibit 2, Annexure 3
[184] Exhibit 2, Annexure 3
324.We refer to our findings at paragraphs 298 to 305. We find the allegation that the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and 5 proved. By his reliance on the abovementioned correspondence, we consider the respondent has demonstrated a complete absence of insight in relation to his failure to comply with acceptable standards of professional conduct and a lack of understanding of basic ethical rules governing practise as an advocate before a court or tribunal.
Charge 2
325.The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 by providing legal services connected with an application filed on 10 April 2017 in the BNJ17 proceeding, which had no reasonable prospects of success.
326.The respondent’s closing submissions conceded that the respondent had failed to conduct the proceeding in a manner reflecting a satisfactory degree of competence, in clear breach of rules 4.1.1 and 4.1.3. We agree.
327.We find the charge that the respondent breached rules 4.1.1 and 4.1.3 is proved. We refer to our findings at paragraphs 307 to 318.
Charge 3
328.The issue is whether the respondent breached rules 19.1 and/or 19.2 and his common law duty of honesty and candour to the Court by filing an application on 10 April 2017 in the BNJ17 proceeding, knowing that the application contained false information or with reckless indifference as to the truth or falsity of the contents.
329.The Law Society submitted that the respondent’s failure to provide any explanation as to why he stated inaccurately in the application that the client had engaged the assistance of a migration agent, and the lack of any evidence that the respondent had a proper basis for the statement allows the Tribunal to “more safely conclude” that the respondent made the statements “knowing them to be misleading ” or with reckless indifference as to their truth or falsity.
330.The respondent’s closing submissions admitted the breach but said it was due to the respondent’s failure to document and understand his instructions. Thus it was said that the “breach was driven by carelessness and was not a purposeful misleading of the Court nor was the conduct driven by reckless indifference to the truth”[185]
[185] Respondent’s Submissions on Breach, Characterisation and Penalty at [6.5]
331.The allegations that the respondent drafted detailing the involvement of the migration agent were quite elaborate. They included that the migration agent filed the review application but failed to inform the applicant of the hearing date, then concealed the outcome after receiving notice of the decision to reject the application and kept the applicant in the dark about the AAT’s advice that reinstatement could be sought provided the application was made within 14 days. How those allegations can be squared with the respondent’s subsequent statement to the Court that his client instructed him that a friend, rather than a migration agent, had been assisting with the application was not explained to the Court. Nor was it explained in the respondent’s evidence to the Tribunal. What is clear, however, is that the respondent failed to make even the most basic enquiries to confirm that there was a proper basis to make the allegations about the migration agent’s involvement. We consider that the respondent made the statements with reckless indifference as to their truth or falsity.
332.We find the charge that the respondent breached rules 19.1 and 19.2 and his common law duty of honesty and candour to the Court by recklessly misleading the court and failing to correct the misleading statements as soon as possible, is proved. We refer to our findings at paragraphs 307 to 318.
Characterisation of conduct
333.Section 386 of the LP Act states that ‘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.
334.Section 387 states that ‘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.
335.Section 389(a) provides that, without limiting sections 386 or 387, conduct consisting of a contravention of the LP Act can be unsatisfactory professional conduct or professional misconduct.
336.The Law Society submitted that there was little utility in characterising separately the conduct in relation to each charge and that there were compelling reasons for the Tribunal to characterise globally the respondent’s conduct in respect of each application. The Law Society gave five reasons.
(a)First, all the conduct underlying the 19 charges in OR 13/2020 had its genesis in legal services performed on behalf of Ms Ramos and the facts underlying the charges were inextricably interwoven.
(b)Second, while the other applications related to conduct in respect of different clients and matters, there was a unifying aspect in that they all involved breaches striking at the heart of qualities essential for a lawyer – i.e. honesty, integrity, reliability, and trustworthiness.
(c)Third, many of the breaches were of sufficient seriousness to be regarded of themselves as professional misconduct.
(d)Fourth, it was appropriate to have regard to a range of the respondent’s conduct to determine whether it involved a consistent failure to reach or maintain professional standards.
(e)Fifth, a global characterisation in respect of each application did not carry the risk of certain charges being used as an aggravating factor in respect of other charges, whether in respect of characterisation or penalty. This was a reference to the cautionary comments expressed in LP 201823 v Council of the Law Society of the ACT [2019] ACAT 97 at [215]-[221].
337.The respondent agreed, in closing submissions, that it was preferable for the Tribunal to consider the respondent’s conduct globally in respect of each application, rather than undertake a piecemeal assessment of individual acts.
338.The multiplicity of charges in separate applications involving different parties and proceedings and covering different but often overlapping time periods makes it difficult to obtain a chronological overview of the respondent’s conduct. We think such an overview is necessary to decide whether any kind of global assessment of the respondent’s conduct is appropriate, including where it is alleged that there has been a substantial or consistent failure to reach or maintain a reasonable standard of diligence and competence.
339.We have found the following charges proved.
(a)In September 2015, in the Singh proceeding, the respondent breached rule 4.1.1 by failing to complete and file a notice of appointment.[186]
[186] OR 14/2020, charge 2 – considered above at [292]-[294]
(b)In September 2016, in the AAT proceeding, the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and 5 by his conduct at the hearing before Tribunal Member Short.[187]
[187] OR 15/2020, charge 1 – considered above at [320]-[324]
(c)In March 2017, the respondent:
(i) in the AXY17 proceeding, breached rule 4.1.3 by failing to deliver legal services competently and diligently;[188]
[188] OR 13/2020, charge 18 – considered above at [254]-[257]
(ii) breached sections 222 and 269 of the LP Act and misappropriated trust moneys received in relation to the AXY17 proceeding;[189]
(iii) in the AXY17 proceeding[190] and Singh proceeding, breached rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[191]
(d)In April 2017, in the BNJ17 proceeding, the respondent breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently, and rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[192]
(e)In July 2017, in the AXY17 proceeding, the respondent breached rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[193]
(f)In September 2017, in the AXY17 proceeding, the respondent breached rule 5 by failing to comply with a Court order requiring him to repay costs to his client.[194]
(g)In October 2017, the respondent:
(i) in the C7A proceeding, breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently, and rule 19.2 and his duty of honesty and candour to the Court by failing to correct an earlier misleading statement made carelessly to the Court;[195]
(ii) in the CFFMEU proceeding, breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently;[196]
(iii) breached rules 5.1.1 and 5.1.2 by making unsubstantiated allegations of serious improper conduct against a judicial officer.[197]
(h)Between November 2017 and May 2018, the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry into his conduct by making statements to the Law Society that the respondent knew to be false and in failing to provide a full and accurate account of his involvement in the matter.[198]
[189] OR 13/2020, charges 14, 15 and 16 – considered above at [240]-[250]
[190] OR 13/2020, charge 2 – considered above at [215]-[218]
[191] OR 14/2020, charge 3 – considered above at [295]-[297]
[192] OR 15/2020, charges 2 and 3 – considered above at [325]-[332]
[193] OR 13/2020, charge 3 – considered above at [219]-[223]
[194] OR 13/2020, charge 17 – considered above at [251]-[253]
[195] OR 12/2020, charges 2 and 3 – considered above at [67]-[73]
[196] OR 14/2020, charge 1 – considered above at [288]-[291]
[197] OR 13/2020, charge 19 – considered above at [258]-[269]
[198] OR 13/2020, charges 4 to 13 – considered above at [224]-[239]
340.We agree that it is not appropriate to attempt to characterise the respondent’s conduct by reference to each individual charge. On the other hand, we see real practical difficulties in attempting to characterise the respondent’s conduct globally in relation to each application. We consider that where the categories of conduct and the times at which it occurred are closely related, even if relating to different matters, a hybrid approach is preferable.
341.The conduct in September 2015 involved a relatively minor and isolated instance of unsatisfactory professional conduct that might well be the result of mere oversight.[199] It is not appropriate to consider it in assessing whether there has been a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence where the other potentially relevant instances of unsatisfactory professional conduct occurred some 18 months to 2 years later, as we explain shortly.
[199] Charge 2 in OR 14/2020
342.The respondent’s conduct in connection with the hearing in the AAT proceeding in September 2016 was sufficiently serious to warrant consideration whether it amounts to professional misconduct.[200] The respondent’s conduct was grossly offensive, incompetent, and inexcusable. It was clearly prejudicial to the administration of justice, resulting as it did in the respondent’s client effectively being denied a real and meaningful opportunity to have his case heard and determined on its merits. It was conduct that in our view is likely, to a material degree, to bring the profession into disrepute. It demonstrates, clearly in our view, that the respondent is not a fit and proper person to practise law. His lack of insight into the gravity of his departure from required standards of professional conduct when appearing as an advocate, after having ample opportunity to reflect on his conduct, confirms our opinion that he is not fit to practise law. We consider the respondent’s conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
[200] Charge 1 in OR 15/2020
343.The respondent’s failure to act in the best interests of his clients and failure to deliver legal services competently and diligently at various times between March and October 2017 in the AXY17, BNJ17, C7A and CFFMEU proceedings, in our view should be characterised globally as involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.[201] We consider the respondent’s conduct meets the definition of professional misconduct in section 387(1)(a).
[201] Charge 18 in OR 13/2020, charge 2 in OR 15/2020, charge 2 in OR 12/2020 and charge 1 in OR 14/2020
344.The respondent’s conduct in recklessly misleading the Court at various times between March and July 2017 in the AXY17, Singh and BNJ17 proceedings and in failing, in October 2017, to correct an earlier misleading statement made carelessly in the C7A proceeding all involved serious breaches of the respondent’s duty of honesty and candour to the court.[202] The breaches in relation to the AXY17 proceeding were particularly egregious. The duty was described by Mahoney JA in Law Society of (NSW) v Foreman[203] as the “the first and primary obligation of a solicitor practising before the courts”. It has also been described as a duty that is “of fundamental importance in the due administration of justice”.[204] The respondent’s conduct reveals him to be a person lacking in the essential qualities of a solicitor practising before the courts – honesty, integrity, reliability, and trustworthiness. We consider the respondent’s conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
[202] Charge 2 in OR 13/2020, charge 3 in OR 14/2020, charge 3 in OR 15/2020, charge 3 in OR 13/2020 and charge 3 in OR 12/2020
[203] (1994) 34 NSWLR 408 page 447
[204] Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115 (Parker J) at [67]
345.We consider the respondent’s breach of his costs disclosure obligations under sections 269 to be unsatisfactory professional conduct.[205]
[205] Charge 16 in OR 13/2020
346.The breach of section 222 relating to his failure to deposit money paid on account of costs into a trust account, his misappropriation of trust moneys by retaining the funds paid into his office account to his use before becoming entitled to them, and his failure to repay costs to his client in compliance with the Court’s orders, are closely related and should be characterised collectively as conduct involving dishonesty.[206]
[206] Charges 14, 15 and 17 in OR 13/2020
347.In Law Society of NSW v Jones (NSW Court of Appeal, unreported, 27 July 1978) Street CJ said at page 10:
Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of the law, inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The court must ensure that this trust is not misplaced.
348.As the Full Court of the ACT Supreme Court said in Council of the Law Society of the Australian Captial Territory v Giles:
Honesty in relation to trust account funds is critical to the proper practise of law. A lawyer’s trust account has been described as “sacred”, and the importance of dealing strictly with trust monies has been emphasised repeatedly.[207] (Citations omitted)
[207] [2020] ACTSCFC 1 at [121]
349.We consider the respondent’s conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
350.The respondent’s conduct in making unsubstantiated allegations of serious improper conduct against a judicial officer in an improper attempt to damage the judge’s reputation and standing with the Federal Circuit Court and to procure his removal from hearing cases in which the respondent appeared,[208] meets the definition of professional misconduct in section 387(1)(b) of the LP Act: see Griffin v The Council of the Law Society of NSW [2016] NSWCA 364 at [108], [111]-[112] per Sackville AJA referred to earlier at paragraph 261.
[208] Charge 19 in OR 13/2020
351.The respondent’s conduct in making statements to the Law Society in connection with its investigation of the complaint arising out of the AXY17 proceeding, that the respondent knew to be false and in failing to provide a full and accurate account of his involvement in the matter,[209] in our view also meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
Penalty
[209] Charges 4 to 13 in OR 13/2020
352.It has been emphasised repeatedly that honesty, integrity, and reliability are essential qualities for the practise of law. In NSW Bar Association v Cummins [2001] NSWCA 284, in a passage that has been adopted by the Full Court of the ACT Supreme Court in Law Society of the ACT v Stubbs [2017] ACTSCFC 3 at [33] and Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [143], Spigelman CJ said at [20]:
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.
353.The Law Society submitted that the respondent’s conduct demonstrates that he cannot be trusted: by courts and tribunals to state legal and factual matters accurately; by fellow practitioners to state matters correctly and reliably in submissions, affidavits and court documents; by the Law Society to be open and frank in respect of his conduct; and by clients and the public in relation to the handling of client money, to provide legal services in a manner which will best protect their interests and to comply with mandatory costs disclosure obligations. It was profoundly disquieting that notwithstanding the respondent had prepared seven affidavits, he had not expressed any insight or understanding of the seriousness of his misconduct and neither had he expressed any remorse or contrition.
354.The Law Society submitted that the paramount consideration for the Tribunal is the protection of the public, the administration of justice and public confidence in the legal profession.[210] In discharging its protective jurisdiction, the only appropriate order the Tribunal should make is to recommend that the respondent’s name be removed from the Roll.
[210] Council of the Law Society of the Australian Captial Territory v Giles [2020] ACTSCFC 1 at [115]
355.The respondent’s closing submissions characterised the respondent’s conduct as unsatisfactory professional conduct that reflected poor organisation of work, a failure to understand and record his client’s instructions, impulsivity, and a general lack of competence. The submissions accepted the respondent had mislead the Court and the Law Society but claimed this was “not driven by malicious intent but rather carelessness, laziness and a dogmatic certainty that what he was saying to the Court was correct”.[211] The submissions also denied any misleading statements were made recklessly as to whether they were true or not. The submissions said the respondent’s conduct demonstrated a consistent failure to conduct his practice in accordance with the minimum standards expected of a solicitor with an unrestricted practising certificate driven by the respondent’s carelessness and laziness. It was submitted that those ‘habits’ could be broken by retraining and supervision.
[211] Respondent’s Submissions on Breach, Characterisation and Penalty at [7.3], [7.4]
356.The respondent submitted that protection of the public had been achieved by the cancellation of his practising certificate. The appropriate penalty, considering the totality of the respondent’s conduct, is to dispose of the charges by a modest fine and a requirement that prior to making an application for reinstatement of his practising certificate, the respondent should undertake retraining through the ANU College of Law and appropriate CPD. Any practising certificate issued to the respondent should be restricted to require the respondent to remain under the supervision of a solicitor with good standing for an appropriate period.
357.The respondent’s submissions cannot stand with our findings that the respondent is guilty of professional misconduct on multiple grounds. We accept the Law Society’s submission that the respondent’s conduct demonstrates that he cannot be trusted in respects that are essential to the practise of law and that he lacks any insight into, or understanding of, the seriousness of his misconduct. His conduct at the hearing, where we found his evidence lacked candour and in important respects was dishonest,[212] reinforces our opinion that the respondent is permanently unfit to engage in legal practice.
[212] Findings at [29], [49], [124], [125], [129], [136], [140], [141], [144], [150], [161], [246], [252]
358.We are satisfied that the appropriate order that should be made under section 425(3) of the LP Act is an order recommending that the respondent’s name be removed from the roll of legal practitioners kept by the Supreme Court of the Australian Capital Territory.
Order for costs
359.Section 433(1) of the LP Act provides that if the ACAT finds a legal practitioner guilty of unsatisfactory professional conduct or professional misconduct the ACAT must order the practitioner to pay costs unless the ACAT is satisfied that exceptional circumstances exist. Section 433(5) provides that an order for costs may be for a stated amount or, if for an unstated amount, must state the basis upon which the amount is to be decided.
360.Our preliminary view is that there are no exceptional circumstances that would justify not making an order for the respondent to pay the Law Society’s costs of each application. We propose to allow the parties time to confer with a view to reaching agreement on the terms of any costs order, failing which they will be required to file and serve submissions on costs within 14 days of the date of the final orders.
Restrictions on publication
361.Section 423A of the LP Act restricts publication of an account or report of a disciplinary application that allows the identity of the person concerned to be worked out. The identity of the person concerned may be disclosed if a final decision has been made that the person is guilty of the conduct complained of and either the appeal period has elapsed and no appeal has been made, or any appeal has been decided against the person involved.
362.The nature of the charges makes it impractical to anonymise the reasons for decision to preclude the name of the respondent to be worked out. Accordingly this decision will not be published until the later of the ending of the appeal period or the final determination of any appeal.
…….………………………………..
Senior Member M Orlov
For and on behalf of the Tribunal
Dates of hearing 15, 16, 17 March and 6 May 2021 Counsel for the Applicant: Mr D Moujali Solicitors for the Applicant: Ms K Binstock, McInnes Wilson Lawyers Solicitors for the Respondent: Mr C Levingston, Christopher Levingston & Associates
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