Council of the Law Society of the Act v LP082024 (Archie Tsirimokos) (Occupational Discipline)
[2025] ACAT 58
•16 July 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE ACT v LP082024 (Archie Tsirimokos) (Occupational Discipline) [2025] ACAT 58
OR 8/2024
Catchwords: Disciplinary proceedings involving four related charges – detailed statement of agreed facts – formal admissions by Respondent regarding three charges relating to professional misconduct but denial of charge 4 involving alleged dishonesty – Tribunal’s view that there was no relevant dishonesty and that there was no evidence to support it – the view of the Tribunal that the dishonesty charge should not have been laid – consideration of factors relating to prosecutorial over-reach – parties generally agreed regarding penalty – considerations regarding penalty – Orders to be made as agreed regarding the first three charges and refinement of the agreed charge 4 but without reference to alleged dishonesty – parties to file submissions regarding costs.
Legislation cited: Legal Profession Act 2006 s 386, 387, 413, 417, 419
Powers of Attorney Act 2006 s 42
Subordinate
Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 rule 4.1, 43
ACT Bar Rules rule 42
Cases cited:A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253
Berger v Council of the Law Society (NSW) [2019] NSWCA 119
Briginshaw v Briginshaw (1938) 60 CLR 336
Council of the Law Society of the ACT v ACAT [2025] ACTSC 251
Derry v Peek (1889) 14 App Cas 337
King v The Queen (1986) 161 CLR 423
Kumar v Legal Services Commission of NSW [2016] NSWCA 161
Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19
Law Society of New South Wales v Foreman (1994) NSWLR 408
Macleod v The Queen (2003) 214 CLR 230
Metaxis v Legal Profession Complaints Committee [2020] WASCA 27
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
Nocton v Lord Ashburton [1914] AC 932
Peters v The Queen (1998) 192 CLR 493
Pollard v Director of Public Prosecutions (1992) 28 NSWLR 659
Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66
Smith v New South Wales Bar Association (1992) 176 CLR 256
The Council of the Law Society of the ACT v ACT Civil and Administrative Tribunal [2025] ACTSC 25Weaver v Law Society of New South Wales (1979) 142 CLR 201
Wentworth v New South Wales Bar Association (1992) 176 CLR 239
Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279
List of
Texts/Papers cited: G. E. Dal Pont, Lawyers’ Professional Responsibility (8th edition) (Sydney: Thomson Reuters/Lawbook Co. 2025)
Tribunal:Senior Member Dr W J Neville
Date of Orders: 16 July 2025
Date of Reasons for Decision: 16 July 2025
Date of Publication: 4 September 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 8/2024
BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE ACT
Applicant
AND:
LP082024
Archie Tsirimokos
Respondent
TRIBUNAL:Senior Member Dr W J Neville
DATE:16 July 2025
ORDER
The Tribunal orders that:
Within 14 days, the parties are to provide the Tribunal with Orders that reflect (a) the Tribunal’s reasons, and (b) the admissions in the Statement of Agreed Facts regarding Charges 1-3, and the Tribunal’s findings in relation to Charge 4.
By 12 noon on Friday 18th July 2025, the parties are to provide the Tribunal with a timetable in relation to submissions regarding costs. The submissions are not to exceed 5 pages.
Notation:
A.Counsel for the Respondent indicated that he may wish to provide some limited further evidence (e.g. correspondence) in relation to costs. An agreed bundle may be able to be agreed. Counsel also inquired whether oral submissions might also be made after the written submissions are filed. No decision was made in this regard.
B.The Tribunal indicated that an informal approach may be made to the Tribunal by email regarding the matters set out in the Notation to the Orders.
………… …………
Senior Member Dr W J Neville
REASONS FOR DECISION
These are disciplinary proceedings against the Respondent, who is a senior legal practitioner in the ACT who has a “long and unblemished record”, in the words of the Applicant’s Counsel.[1] Four charges have been laid against him.[2] As explained and detailed further in the Statement of Agreed Facts set out as an Appendix to these reasons, the claims brought against the Respondent arise out of, among other things, two certifications given by him regarding the provision of advice and the execution of certain guarantees and loan documents.
[1] See T 73. In the same place, the further comment was made that … “it is not contended that this practitioner is unfit [to continue to practise].” Curiously, notwithstanding these appropriate comments, as set out in the Statement of Agreed Facts (at pars.75-77), the Applicant pressed for the Respondent to be found to be in breach of s.387(1)(b) of the Legal Profession Act 2006, which refers specifically to “professional misconduct” which would, if established, “justify a finding that the practitioner is not a fit and proper person to engage in legal practice.” More is said throughout these reasons on this regularly appearing incongruity.
[2] Throughout these reasons, while there will be regular reference either to “Charge …”, or, from time to time, the parlance shifts to “count …”. Nothing turns on any change in language in this regard.
The first three charges in relation to what can and should be described, in general terms, as negligence, have been accepted and admitted by the Respondent. The fourth charge, which alleges dishonest conduct against him, is a cornerstone of the Applicant’s case. The intense focus of the Applicant regarding this charge is reflected in the document styled “Statement of Real Issues in Dispute”, filed 17 March 2025, which is set out below.
The Respondent accepts that his professional conduct that gives rise to the fourth charge was seriously lacking, and which involved carelessness or gross negligence. However, he disputes that his conduct was dishonest, and in turn, that (as sought by the Applicant) it warrants his suspension from legal practice. After noting that the Applicant’s primary case was that the Respondent actually read par.5 of the acknowledgment regarding the provision of legal advice,[3] the Applicant’s Counsel commented (emphasis added):[4]
I am very anxious to emphasise that what the Applicant has to establish on the Briginshaw standard is that [the Respondent] subjectively knew that what he was certifying was untrue. There are two ways to do it … One, that he knew, he had actual knowledge that what he was certifying was untrue, or alternatively that he was recklessly indifferent to the truth or falsity of what he was certifying.
…
MR MOUJALLI: And I’m sorry to be belabouring this, but I have just read a lot of cases where the tribunal has fallen into error by making a finding along the lines of what the practitioner should have known.
…
MR MOUJALLI: That is why I want to emphasise, it’s the burden that the applicant carries, and if there is to be a finding of dishonesty, it has to involve findings as to the practitioner’s state of mind.
[3] T 68.
[4] See T 66, 67 & 70 respectively.
Subject to what is noted later in these reasons, Counsel did not accept that there was any “third option” between the two positions he posited.[5]
[5] T 68 & 69.
Likewise, the contest regarding the Tribunal’s findings in relation to Charge 4 is directly relevant to the question of penalty – suspension or not. Other matters regarding penalty in relation to the other charges (e.g. undertaking a course in legal ethics, public reprimand, and a fine) are, by and large, and with some modest tweaking, agreed.
In short, especially because the parties have now prepared a Statement of Agreed Facts (with very few areas of contest), and because of the significant areas of agreement regarding penalty, the scope of the contest is quite narrow which, as already indicated, concern characterisation of the facts and circumstances that give rise to Charge 4, and the relevant penalty regarding that Charge.
As significant and serious as Charge 4 is, and the facts surrounding it are likewise, no less significant is the fact that the charges before the Tribunal are the first and only ones faced personally by the Respondent in a legal career that spans 39 years, having been admitted to practice in 1986. The factual details regarding each charge are set out below in the Statement of Agreed Facts.
In the course of a directions hearing prior to the substantive hearing, and during it, I inquired of Counsel for the Applicant how he proposed making “good”, or otherwise providing the evidentiary bridge whereby the claim for “professional negligence” relevantly moved to “dishonesty” in relation to Charge 4. I was assured that, while it was something of a “task”, it would be accomplished. Even after the Respondent gave his oral evidence, and after again highlighting my concerns, again I made a similar inquiry. The Applicant not only persisted in prosecuting Charge 4 as pleaded but also submitted that the Respondent’s oral evidence showed, or warranted, a finding that it was false and that he was a dishonest witness. Respectfully, these were very grave submissions but which, as I note below, in my firm view were never made out.
Although it is “early” in these reasons, so to speak, it is apposite to deal with the Respondent’s evidence (with more detail to come) in the light of the Applicant’s submissions regarding the low, or alleged poor, credibility of his evidence. My view of it accords with the Full Federal Court of Australia’s recent assessment of that of Mr McKenzie in the increasingly fabled litigation of Roberts-Smith v Fairfax Publications Pty Ltd. In one of the multiple recent judgements in that matter (the failed Application to re-open), the Full Court said of Mr McKenzie’s evidence, which (like the Respondent here) was very strongly attacked by the Appellant:[6]
… Mr McKenzie was cross-examined extensively on the contents of his affidavit and on several other issues. We reject the submission that he should be treated as a witness of no credit and generally accept his evidence. He acknowledged his limited recollection of events and conversations and answered the questions put to him with care. We did not perceive any significant contradictions or implausibilities in his evidence.
[6] Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 at [71]. See also [74].
To confirm, the description by the Federal Court of Mr McKenzie’s evidence, with relevant adjustments, in my view accords with my assessment of the Respondent’s evidence here.
In general terms, and in addition to the Tribunal’s reasons below, and without in any way ameliorating [or lessening] the gravity and very serious lapses of judgment of the Respondent detailed and accepted by him as set out in the Statement of Agreed Facts, I prefer and accept the submissions on behalf of the Respondent in relation to Charge 4 on the issues of both liability and, with some tweaking, also in relation to penalty.
Statement of [Real - sic] Issues in Dispute
This Statement of Issues was filed on 17 March 2025. As earlier indicated, it will be immediately apparent that the focus was and remained pre-eminently upon Charge 4.[7] The Statement was as follows:
[7] Formally, I should note that an Amended Application under s.419 of the Legal Profession Act 2006 (ACT) was filed by the Applicant on 20 March 2025. The amendments noted in this Amended Application all relate to matters concerning charge 4. A Further Amended Response was filed by the Respondent on 21 March 2025.
…
2. There are four remaining issues in dispute, with the first, second and fourth issues being significantly related.
3. First, whether the conduct the subject of charge 4 of the Application dated 7 May 2024 (Application) involved:
(a)carelessness in the sense of gross negligence and breached rule 4.1.3 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules), as contended by the Respondent; or
(b)dishonesty and breached rules 4.1.2, 4.1.5 and 5.1 of the Rules in addition to rule 4.1.3, as contended by the Applicant.
4. Second, whether the conduct the subject of charge 4 of the Application should be characterised as:
(a)professional misconduct within the meaning of subsection 387(1)(a) of the Legal Profession Act 2006 (ACT) (Act) only, as contended by the Respondent; or
(b)professional misconduct within the meaning of both subsections 387(1)(a) and 387(1)(b) of the Act, as contended by the Applicant.
5. Third, whether the conduct the subject of charges 1, 2 and 3 of the Application should be characterised as:
(a)unsatisfactory professional conduct within the meaning of s.386 of the Act, as contended by the Respondent; or
(b)professional misconduct within the meaning of s.387 of the Act, as contended by the Applicant.
6. Fourth, the appropriate sanction to be imposed under s.425 of the Act depending on the Tribunal’s determination as to breach and characterisation of the Respondent’s conduct.
The Statement of Agreed Facts
A Statement of Agreed Facts (Statement or SOAF) was filed with the Tribunal on 9 April 2025. It is Appendix A to these reasons.
The Respondent’s affidavit evidence
Given (a) the narrow scope of the matters in contest, (b) the detail in the Statement of Agreed Facts, (c) the detail in the written submissions, and (d) the detail in the Amended Application under s.419 of the Legal Profession Act 2006 (ACT), the cross examination of the Respondent was relatively brief. That is summarised after dealing with the Respondent’s Affidavit evidence.
From the Respondent’s Affidavit, filed 7 February 2025, I note the following.
Par.8 referred to the Respondent’s legal practice, which focussed initially on “general litigation” before expanding “to include property related work (commercial conveyancing, leasing, and general property work), and general commercial work (drafting agreements, transaction relating to businesses, and general corporate advisory).”
Pars.13-17 outlined the Respondent’s close connections to the Greek community in Canberra, which I need not recount save than to note that the Respondent knew Mr and Mrs X and their family through this community.
Pars.18-27 detailed the Respondent’s preparation of the wills and enduring powers of attorney (POA) for Mr and Mrs X.
Pars.28-51 set out the loan (including mortgage and guarantee) arrangements on behalf of Mr N.X (N). The SOAF sets out the most crucial detail regarding these matters, which form the foundations for the charges against the Respondent. As already noted, the SOAF is Appendix A to these reasons.
Pars.52-53 recorded the Respondent’s acknowledgment of his “mistake(s)” regarding N’s entitlement to use the POA, while pars.54-69 outlined the Respondent’s recognition and acceptance of his negligent mistakes regarding the two formal acknowledgments concerning the omission to provide legal advice [directly] to Mr and Mrs X in their capacities as guarantors of a loan to their son, N, who used their family home as security for that loan. More particularly, after deposing (pars.59-62) that he did not read carefully the terms of the acknowledgments, the Respondent deposed (par.63):
… when I signed the First and Second Acknowledgments, I believed that, by advising N (as attorney for Mr and Mrs X) as to the legal effect of the guarantee, I had thereby provided advice on the guarantees as required by those Acknowledgments. That was based on my incorrect understandings and assumptions about what the Acknowledgments required, and my not having read paragraph 5 of the Acknowledgments.
As already noted, pars.54-69 detailed the Respondent’s account of his “mistake” regarding the two acknowledgments. Relevantly, and in more detail, he stated, at par.54:
I did not speak with Mr and Mrs X about the loan transaction or about the loan Documents, because I believed:
(a) As at 18 March 2019, based on my telephone discussions with Mr N.X (see paragraph 38 above), I understood that their departure overseas was imminent and they were busy preparing to travel overseas;
(b) The lender knew that the attorney would be executing the documents;
(c) Mistakenly, it was not necessary to do so because Mr N.X was authorised under the EPAs to execute the Loan Documents; and
(d) Mistakenly, that by me advising N as their attorney, that amounted to me advising Mr and Mrs X.
The Respondent never wavered in his evidence (including his oral evidence) in relation to these four basal matters, particularly those set out in sub-paragraphs (c) and (d).
Pars.55 and 56 outlined the Respondent’s usual practice regarding witnessing and advising clients with respect to the execution of documents, although he noted that he could not recall ever having been required to assist with documents requiring “an attorney to sign for and on behalf of guarantors under a loan agreement.”
The Respondent’s comments in par.57 are of some moment, not least because of the “timeline” and the matters he understood he was facing in August 2022. The timeline and the charges he faced are canvassed below in more detail. He deposed:
When preparing my response to the Law Society dated 30 August 2022, I provided a comprehensive response to the terms of Mrs X’s complaint. As I perceived the complaint, the correspondence from the ACT Law Society, the substantive area of concern with my actions was the issue of “conflict” arising out of acting on the loan transaction in which N benefitted personally. As to the conflict issue, I explained that I had proceeded on an honest (but mistaken) belief that the EPAs authorised N to execute the documents notwithstanding that he was receiving a personal benefit.
Then followed, in pars.58-63, a series of “reflections” (my word) regarding his conduct that ultimately gave rise to the current charges. In particular, he noted the following regarding the two acknowledgments he signed. Relevantly, he said (emphases added):
(a)“I did not carefully read all terms of the First Acknowledgment when I signed it. I checked the first page of the First Acknowledgment which included the specific details of the parties and the documents, and then I glanced at the second page.” (par.59)
(b)In par.60, he stated that, in the course of his legal practice, he had provided advice to guarantors, which required him signing a certificate or acknowledgment regarding that advice. He further deposed that he had seen such certificates and acknowledgments in various other matters.
(c)In par.61, he said that when “I signed the First Acknowledgment during my conference with N and Mrs I.X and [sic] on 20 March 2019, I assumed that I was signing a “standard” form, the effect of which was that I had advised the guarantors (in this case, Mr N.X and Mr and Mrs X) to the legal effect of the guarantees. By “standard” I mean the sort of forms which I refer to in paragraph 60 above. I recall thinking that the First Acknowledgement appeared to be in the nature of similar forms/certificates, which I describe in paragraph 60 above.”
(d)Par.62 dealt with the Second Acknowledgement. The Respondent stated here that when he signed it “on 22 March 2019 after receiving the legal representative of the Trust’s (the Law Firm) email of 22 March 2019, I likewise did not carefully read that document as it appeared to be in the same terms as the First Acknowledgment. I made the same assumptions referred to above.” (emphasis added)
(e)Par.63, in many respects, summarised the Respondent’s [mis]understanding and incorrect knowledge and belief regarding the two acknowledgments. He stated: “… when I signed the First and Second Acknowledgments, I believed that, by advising N (as attorney for Mr and Mrs X) as to the legal effect of the guarantee, I had thereby provided advice on the guarantees as required by those Acknowledgments. That was based on my incorrect understandings and assumptions about what the Acknowledgments required, and my not having read paragraph 5 of the Acknowledgments.”
(f)By way of preliminary comment at this juncture: on the face of his Affidavit and the outline of it provided here, there is a basic inconsistency between the Respondent’s evidence in pars.59 and 62 (and pars.65 and 67 discussed below), where he deposed to not reading the two acknowledgments “carefully”, and par.63, where he deposed of “not having read paragraph 5 of the Acknowledgments.” The problematic oscillation between “not having read carefully”, on the one hand, and on the other hand, “not having read [at all]” is plain and something of a difficulty.
After noting (par.64) that he relied (my words) on the fact that the “loan documents” were prepared by the lender’s lawyers, and in turn that he did not anticipate any further acknowledgment being required, at pars.65 and 67 he said (emphasis added):
[65] For these reasons, I failed to notice or properly read paragraph 5. Had I read paragraph 5, I would have realised that I could not sign that First/Second Acknowledgment without me having directly advised Mr and Mrs X about their guarantees.
…
[67] Had I carefully read the terms of the First/Second Acknowledgment, I would have realised that clause 5 of the First Acknowledgment could only have been accurate had I directly advised Mr and Mrs X about the Loan Documents including their guarantees. I accept that I negligently did not read the entire First Acknowledgment carefully, particularly by failing to read paragraph 5.
Pars.68 and 69 confirmed the Respondent’s denial of any dishonesty in his conduct regarding the transactions here; he noted that he had made a number of assumptions regarding the documentation, which proved to be “incorrect”. Had he read them and appreciated their significance, he said that he would not have signed the acknowledgements. He also noted a range of various personal and professional stressors that were going on in his life around these times. These were elaborated in some detail at pars.82-84, while pars.85-110 outlined (a) events subsequent to the “fraud” committed by N upon his parents being discovered, (b) the Respondent’s “reflections” in the light of the events the subject of the current charges, and (c) the impact upon him, personally and professionally, of the charges and the events that gave rise to them. The Respondent readily and openly noted his professional errors, his embarrassment, and importantly, his concern for Mrs X in relation to the matters detailed here. Mr X senior had died in approximately April 2021.
Pars.70-77 set out the expanded range of charges the Respondent faced, having originally being advised in June and August 2022 by the Applicant that there were [only] issues (my words) arising out of a complaint that had been lodged by Mrs X. These related to matters concerning a conflict of interest, and others relating to alleged negligence concerning his actions under the Powers of Attorney Act. However, it was only in January 2024 that allegations concerning “dishonesty” (as opposed to negligence) were first raised. Why it had taken approximately 18 months or thereabouts to expand the charges against the Respondent, notably to include the very serious charge of dishonesty, was never explained. In my view, particularly as the relevant regulatory body, some basic explanation should have been provided. Other matters relating to the significantly delayed notification in January 2024 are canvassed later in these reasons.
I should note that, at par.73, the Respondent confirmed that when the Applicant first contacted him in 2022, he thought that he had signed only one acknowledgment, and in consequence, he could not recall signing a second such document. He confirmed that there was no second document on his file that contained the Second Acknowledgment. It was only in consequence of the research for materials for the preparation of his Affidavit (including his firm’s IT team) that he became aware of the Second Acknowledgment.
To state the obvious: persons charged with serious “offences”, here obviously in disciplinary proceedings, are entitled to know what those charges are, and at an appropriately early stage. Similarly, if there is to be any change in them, particularly if they are to include more serious charges, even more alacrity is required. The time-frame identified here, without explanation, does not suggest, without more (I do not put it any higher), that due or reasonable attention to either detail, or expedition, was undertaken. More is said on this matter later in these reasons.
Moreover, the 18 month “gap” between the first iteration of the charges in mid-2022, and the later iteration of them in 2024, which included charge 4 in relation to “dishonesty” for the first time, takes on some piquancy if not significance given that, during the Respondent’s cross examination, as noted below, he was challenged if not criticised for the alleged dilatoriness in responding to the dishonesty charge, especially in his response to the Law Society in 2022. To state the obvious: it is rather difficult to respond to a charge approximately two years before it was formulated and notified to the Respondent. As already noted, such matters are canvassed further below.
Pars.77-81 are of particular procedural, and other, significance.
Par.77 noted the consequences that arose in the Respondent’s thinking after a preliminary conference held at the Tribunal on 9th October 2024. In my words, this conference seemed to have crystallised certain things for the Respondent. For example, he said that he “reflected on” why he had signed the first acknowledgment. He said that initially he had worked on or formulated his response (my words) on the basis of the giving of the certificates was a “relatively standard process.” He said that he had not “fully articulated that in my responses.” He continued: “That is why, on 15 October 2024, I instructed my solicitors to write to the Applicant providing a Respondent’s Admissions document which in paragraph 67(b) I explained that, in signing the First Acknowledgment, I thought I was signing a “standard” document.”
Then followed, according to par.78, instructions to his lawyers to file an Amended Response, which included “Respondent’s Admissions.” Paragraph 23A of that Amended Response and paragraph 67(d) of the Respondent’s Admissions admitted that, in signing the Acknowledgement, he had breached Rule 4.1.2 of the Rules.
The Respondent went on to say (par.79) that his admissions (and in consequence, pleadings) were based upon legal advice he had received from his former Senior Counsel regarding the legal meaning of the word “honest” in Rule 4.1.2. He continued: “I made the admission on the basis that my actions in failing to read the words in paragraphs 3, 4 and 5 of the Acknowledgement amounted to reckless indifference to the truth of the Acknowledgement which I signed, and that this recklessness amounted to a form of dishonesty for the purposes of Rule 4.1.2 of the Rules.”
Rather emphatically, at par.80, the Respondent stated: “I do not believe that, in signing the Acknowledgement in the circumstances, I was dishonest.”
Par.81 set out the consequence, from a “pleading” perspective, of what had gone before; the Respondent stated:
I have accordingly instructed my solicitor to lodge a Further Amended Response affirming the matters stated in the Amended Response paragraphs 21 and 22(a)-(i) but withdrawing my admission in the Amended Response paragraph 23A that I breached rule 4.1.2 of the Rules. I similarly withdraw that admission from paragraph 67(d) of the Respondent’s Admissions.
I do not need to set out the not insignificant professional and personal matters that were, at the time, impacting upon the Respondent. They were sufficiently outlined in pars.82-84(a)-(d).
Pars.85-96 detailed the Respondent’s engagements with Mrs X, including at her Husband’s funeral, a number of discussions with Mr G.X (brother of N and son of Mr and Mrs X) (G) which included comments by him to the Respondent of not knowing anything about a “mortgage” from his parents in N’s favour.
After the Respondent received notice from the Law Society of the complaint by Mrs X, at pars.90-96, the Respondent set out various further conversations with N (albeit somewhat brief) and G. At par.96 he concluded:
I accept what G and Mrs X say about the matter. Based on what they have said, I believe I was misled by N about several matters, including that Mr and Mrs X knew of the loan and mortgage, that the Company was set up for, and with the knowledge of, Mr and Mrs X, and that G knew of the loan. Furthermore, after I met with N in August 2022, he did not get back to me to confirm the dates his parents went overseas, and now I doubt whether they went overseas.
Pars.99-110 outlined, in my view, thoughtfully and in some detail the significant, cautionary and sobering impact the claim raised by Mrs X has had on the Respondent, personally and professionally. Again, I do not need to summarise it, save that in par.110, the Respondent stated: “Notwithstanding my errors and the explanation of what took place, I remain upset and embarrassed that I have placed Mrs X, and the lender, in a difficult position. I have not acted dishonestly. I had nothing to gain from this transaction.”
The Respondent’s oral evidence
The Respondent’s oral evidence, summarised, was as follows.
In chief, the Respondent confirmed that he had nothing to gain (i.e. in the sense of no personal gain) from making a false statement in par.5 of the acknowledgements.[8] He also confirmed that he made no “file note” of his initial discussion with N regarding the proposed loan and guarantee. He said this was because he regarded the transaction(s) proposed to be “straightforward.”[9] He acknowledged that par.5 of the acknowledgment was false.
[9] T 12.
The Respondent confirmed that, to the best of his knowledge, N was still in Canberra and that he had instructed lawyers in relation to the repayment of the loan secured by the mortgage taken out over his parents’ home.[10]
[10] Documents regarding these matters were at Tab 8 of the Respondent’s Tender Bundle. The relevant document is an Affidavit of a lawyer who was instructed by Mr N. X to arrange a discharge of mortgage for the loan there specified; the loan was secured by a mortgage over the family home of the X family in Watson ACT, and in relation to which Mr and Mrs X were guarantors.
In cross examination, the Respondent’s evidence was as follows.
The Respondent agreed with a series of general propositions regarding his complete acceptance of N’s instructions concerning the loan/mortgage and guarantee arrangement he was proposing; likewise that the Respondent had no reason at all not to trust (and accept) instructions from N’s and that N’s parents were supportive of the loan/mortgage/ guarantee arrangement proposed.[11] In particular, he confirmed that:[12]
MR MOUJALLI: You understood from what he told you that his parents knew about the loan and were in favour of it, correct?
WITNESS: Yes, I did.
MR MOUJALLI: You did not consider that you needed to do anything to satisfy yourself that the parents knew about the guarantee. Correct?
WITNESS: That's right, yes.
MR MOUJALLI: And you didn't consider that need because of the form which you – because of the view which you had formed about the X family, correct?
WITNESS: Because of that view. Because of the position that he was appointed as attorney and because of the fact that the loan was to a company in which they were shareholders.
MR MOUJALLI: But, yes, all of those factors were at play, and those factors included your view that the X family was a close-knit family where all members trusted each other.
WITNESS: That's absolutely right.
[11] T 15-16.
[12] T 16.
The Respondent was taken through the documents that he listed at par.43(a) of his Affidavit, which included the relevant mortgage, and deeds of guarantees from Mr and Mrs X, and N. Sub-paragraph (b) of the same paragraph outlined the terms of the attestation clause in the Deed of Guarantee. Then the witness was taken through each of the relevant documents which he signed and which, the witness confirmed, he read in advance of explaining them to N.[13] There followed this exchange with Counsel for the Applicant (emphasis added):[14]
Would it be fair, [witness], to say that you read these documents because, in addition to other things, you wanted to satisfy yourself whether there was something unusual or unduly onerous in them from the point of view of the borrower and the guarantor?
WITNESS: That wasn't the specific purpose. The purpose was to understand what the documents contemplated and to be able to explain those documents to the client.
MR MOUJALLI: And presumably I – you’re a solicitor of considerable experience, that is undisputed here. When you’re acting for a borrower or a guarantor with documents which have been prepared by the lender, as a diligent solicitor you would want to know whether there is something unusual in them that you should bring to the attention of the borrower and guarantor. Do you accept that?
WITNESS: I think that’s fair, yes.
MR MOUJALLI: And I take it that you – the documents that I have taken you to, I take it that you read them carefully so that you could discharge your duties as a solicitor to the borrower and guarantors. Do you accept that?
WITNESS: It’s hard for me to say today whether I read them carefully, Mr Moujalli. I certainly read the documents. Whether I read them carefully or not, as you know from my affidavit, I read – I did not read some things carefully and it’s quite possible I didn't read these documents carefully.
SENIOR MEMBER: Can I ask, just in that regard, did you have anyone else from your firm, for example, a junior or intermediate solicitor working with you who went through these documents with a fine toothcomb or not?
WITNESS: No, I did not.
[13] See T 18-22.
[14] T 23.
Next followed a series of questions (or propositions) which, in my view, were somewhat unfair. The highlighted question below from Counsel proceeds on a negative assumption. The exchanges were as follows (emphasis added):[15]
[15] T 24.
MR MOUJALLI: … So when I’m asking you whether you read the documents carefully, I’m asking you about the loan documents which I have taken you to which do not include the acknowledgement. So if you could just focus on those documents, you certainly don’t say in your affidavit that you did not read those documents carefully. Correct?
WITNESS: I don’t say that, that's true.
MR MOUJALLI: And can I take it from the fact that you don’t mention that in your affidavit, can I take it from that that you have no reason to think that you did not read them carefully?
MR STRICKLAND: I object. The line of questions is obviously quite permissible, but it’s really, because something is not in your affidavit - - -
SENIOR MEMBER: Must mean some particular - - -
MR STRICKLAND: Exactly.
SENIOR MEMBER: Yes. No, I understand. Perhaps if you rephrase it, Mr Moujalli.
MR MOUJALLI: I’m going to make submissions on it, Senior Member.
SENIOR MEMBER: Yes.
MR MOUJALLI: He has a duty to be forthcoming.
SENIOR MEMBER: Yes.
MR MOUJALLI: He hasn't mentioned it in the affidavit. I have given him the opportunity. I’m going to leave it there.
Accepting that Respondents in disciplinary proceedings have a duty of candour and co-operation, notably under Rule 43 of the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules), here, the questioning related to the care with which the Respondent read the relevant documents. Questions were then framed in terms of omissions from his Affidavit regarding “careful reading” and how those “omissions” can or should lead to an inference regarding (a) the quality or care of the reading, which the witness had already answered, and (b) a further but unarticulated complaint regarding the Respondent’s [alleged] lack of candour in having, somehow, omitted to include further matters in his Affidavit regarding the care (or lack of it) in reading the documents that gave rise to the current proceeding. Further comment is made later in these reasons which highlight that issues of candour in relation to the Respondent, in my view, were without foundation and should not have been made.
In my view, the elision between (a) care in reading documents the subject of the proceedings, (b) alleging that the Respondent had not specifically referred to relevant careful reading, and (c) candour (or lack of it) in responding to the Applicant, was both a stretch and inappropriate. Although there was a general objection by the Respondent’s Senior Counsel, it was not in relation to any unfairness. However, in my view, the elision mentioned, particularly when there was no formal charge against the Respondent that he was not (or had not been) candid and forthcoming in response to inquiries from the Applicant, was akin to what the High Court in King v The Queen cautioned about regarding the duties of prosecutors being careful “not to use any tactical manoeuvre legally available in order to secure a conviction.”[16] Counsel for the Applicant is not, per se a prosecutor. However, as noted and discussed later in these reasons, disciplinary proceedings are quasi-prosecutorial. It must follow that a “prosecuting Counsel” for the Applicant Society, should reasonably be expected to generally follow the duties of a prosecutor, notably as set out in the ACT Bar Rules.[17] Indeed, as Dal Pont points out:[18]
While disciplinary proceedings are not criminal in nature, moreover, the position of the relevant regulatory body or officer is sufficiently similar to that of a prosecutor in criminal proceedings to justify a duty of fairness and behaviour as a model litigant.
[16] King v The Queen (1986) 161 CLR 423 at 426.
[17] For example, Rule 62 of the ACT Bar Rules states (emphasis added): “A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts.”
[18] See G. E. Dal Pont, Lawyers’ Professional Responsibility (8th edition) (Sydney: Thomson Reuters/Lawbook Co. 2025) at par.23.65, citing Legal Services Commissioner v Adamakis [2013] VCAT 1970 at [31].
Further still, the omission relied upon by Counsel here regarding the care with which certain documents were, or were not, read, or what was, and what was not, written into certain documents, must also be considered in the context of the consistent evidence of the Respondent in relation to what he read, how he read it, what he included and what he did not include in his Affidavit, and the various assumptions he operated under at the time. The bald proposition put to the witness regarding his care in reading specific documents, should have been qualified as indicated. It should not have been an instance where a further complaint was asserted orally against the Respondent when it had not formally been laid against him.
Regarding the actual signing of the respective acknowledgments, the beginning of the Respondent’s evidence on this matter went this way (emphasis added):[19]
[19] T 25 & 26.
MR MOUJALLI: And it was the lender’s solicitor who had inserted your name on page 2 of the document? Is that correct?
WITNESS: Yes.
MR MOUJALLI: And it was also the lender’s solicitor which had inserted your name at the very start of the document, correct?
WITNESS: Yes.
MR MOUJALLI: And you knew when you signed this document that you were certifying to the lender’s solicitor, and indeed the lender, that you had given advice to the guarantors. Correct?
WITNESS: That's right, yes.
MR MOUJALLI: You knew the importance of this document to the lender and its solicitor? Correct?
WITNESS: Of course, yes.
MR MOUJALLI: You knew that this document was intended to give the lender assurance that Mr and Mrs X had been given advice about the guarantee which they gave. You knew that?
WITNESS: I knew that and I believed I gave that advice to their attorney on their behalf.
MR MOUJALLI: And you knew when you signed this document on 20 March 2019, you knew that the lender and the lender’s solicitor should be able to trust your word as a solicitor.
WITNESS: Yes, for sure.
MR MOUJALLI: You say in your affidavit, [witness], that you – I think in the interests of efficiency, [witness] can we do this. You signed another version of this document on 22 March 2019, correct?
WITNESS: Yes, I – I did, correct.
MR MOUJALLI: Now, the answers which you have given to my questions about your knowledge of the importance of this document to the lender, I take it that you were still of that knowledge when you signed this document, or when you signed the second version of this document on 22 March 2019. Is that correct?
WITNESS: I agree.
The oral evidence continued on this topic as follows (emphasis added):[20]
[20] T 28.
MR MOUJALLI: You say in your affidavit that when you signed this document on 20 March 2019 you say that you did not read paragraph 5. Is that your evidence?
WITNESS: I did not read it carefully, yes.
MR MOUJALLI: Did you read it at all, witness?
WITNESS: I don't recall that specifically, Mr Moujalli.
MR STRICKLAND: Was that a question in relation to the first or the second acknowledgement? I’m sorry, I didn't - - -
SENIOR MEMBER: The first.
MR STRICKLAND: It’s the first. Thank you.
MR MOUJALLI: What you say in your evidence witness, is that you made an assumption that paragraph 5 contained standard wording.
WITNESS: That's right.
MR MOUJALLI: That's your evidence?
WITNESS: That is my evidence, yes.
MR MOUJALLI: Now, I just want to be clear what your evidence is as to whether or not you did read it in some form. Can I ask you to go to paragraph 67 of your affidavit, and just let me know when you have that in front of you.
WITNESS: Yes, I see that.
MR MOUJALLI: Now, in the last sentence of paragraph 67, you say, ‘I accepted that I negligently did not read the entire first acknowledgement carefully, particularly by failing to read paragraph 5’. Can you see that?
WITNESS: I see that.
MR MOUJALLI: Do I take it that in paragraph 67 you are saying that you – I withdraw that. Do I take it by saying in paragraph 67 that you failed to read paragraph 5, do I take it by that that you are saying you did not read paragraph 5?
WITNESS: I made an assumption about what was in paragraph 5, and I, on that basis I believe I did not read it.
Next followed a series of questions regarding the reading of the “acknowledgments”. This was in the context of what the Respondent’s lawyers did, or did not, say in response to the Applicant’s two letters of complaint (why two separate letters, dated 20 & 23 June 2022, was not explained). The Applicant’s Counsel persisted in questions to the Respondent (a) at least implicitly (later explicitly) doubting his candour in his response to the Law Society on 30 August 2022 because, (b) that response did not say that he had not read par.5 of the acknowledgment. The Respondent noted that he was answering the complaint, as then framed, regarding an allegation of a conflict of interest. He said that he was not focussing on the circumstances of him signing the acknowledgment. The relevant exchange was as follows (emphasis added):[21]
[21] T 29-30.
MR MOUJALLI: And you can see at page 125 a letter from the Law Society to you dated 20 June 2022?
WITNESS: Yes, I see that.
MR MOUJALLI: And you can see in the first paragraph of that letter that it refers to correspondence from Mrs X received on 18 May 2022 which made allegations about your conduct?
WITNESS: Yes.
MR MOUJALLI: And you understood this letter from the Law Society to be a serious matter. Correct?
WITNESS: Of course, yes.
MR MOUJALLI: And you understood that it engaged duties on your part to engage with the Law Society in a full and frank manner about your conduct. Correct?
WITNESS: Yes, I did understand that.
MR MOUJALLI: And you prepared a response to that letter, the start of which commences at page 130 of that bundle. Is that correct?
WITNESS: Yes, it is.
MR MOUJALLI: And when you prepared this response you were mindful of that duty to the Law Society which you have just referred to. Correct?
WITNESS: Yes.
MR MOUJALLI: Can I ask you to go to paragraph 16 of that letter which is at page 132. Can I just ask you just to take a moment to read paragraph 16 to yourself before I ask you a couple of questions about it.
WITNESS: Yes.
MR MOUJALLI: You don’t say in paragraph 16, [witness], that you did not read paragraph 5 of the acknowledgement. Correct?
WITNESS: That is correct. I was answering this complaint in relation to an allegation of conflict of interest. I volunteered the acknowledgement at the first opportunity and this was the opportunity. I wasn't focussed specifically on the circumstances arising to – to me signing that acknowledgement.
MR MOUJALLI: Yes, but you knew when you wrote paragraph 16, you knew that you had a duty to be frank with the Law Society, correct?
WITNESS: Yes.
MR MOUJALLI: And you don’t say in that paragraph that you made any assumption that paragraph 5 of the acknowledgement contained standard wording when you signed it. That's the case, isn’t it?
WITNESS: That is the case, yes.
The same comments already made apply equally here. This is to say that the witness was being challenged about his alleged lack of candour in the Response, on his behalf, to the Applicant in mid-2022. At that time, there was no charge regarding the acknowledgements that, some 18 months or so later, would come to constitute Charge 4. At the time of the witness’s response in mid-2022, his understandable focus was upon the charges he faced then. To challenge his oral evidence in 2025 regarding his lack of candour in 2022 regarding matters that did not arise, from the Applicant’s perspective with all of its plenary powers of investigation and the like, until 2024, was, respectfully pushing the quasi-prosecutorial boat a long way out with little water beneath it.
To state again: in mid-2022, the Respondent had not been charged regarding anything to do with the acknowledgements. Why and how he should be challenged about lack of candour for what was something akin to part of what is now referred to as the “Rumsfeld Matrix” (after former US Defence Secretary, Donald Rumsfeld), which includes “known knowns; and known unknowns”, was unfortunate, and as noted below, questions in this regard, in my view, were improper. There are multiple other layers, which need not be set out here. It is sufficient to note that, in mid-2022, the Respondent knew what he was being charged with (known-knowns); and although he knew generally the documentation that gave rise to the charges, he did not know that he would be (or even might be) charged with what came to be in Charge 4 (unknown-unknowns). Yet the Respondent, not for the first time, was being challenged, indeed accused, of lack of candour regarding factual matters that were not, at the relevant time, a consideration for either the Applicant (because no charge regarding dishonesty had been laid), or the Respondent (for the same reason).
Because of the gravity of the proceeding, and the charge of dishonesty (which is the subject of a separate discussion below), I summarise (with some repetition) the following, which confirms my view that the challenge to the Respondent, set out above, regarding alleged lack of candour in dealing with the Applicant in relation to the acknowledgements, was improper, because:[22]
(a)On 23 June 2022, the Applicant Society wrote to the Respondent stating, “upon further consideration, the following additional allegation is made in relation to your conduct.” What this “further consideration” was unfortunately not explained. Then followed an outline of a charge only concerning “conflict of interest.”
(b)On 30 August 2022, the Respondent replied personally to the Applicant Society. That response, at par.16, included specific reference to the acknowledgment of legal advice in par.5 and the Respondent’s mis-reading of it.
(c)It follows that any suggestion of lack of candour by the Applicant is readily met by reference to the letter sent to it by the Respondent on 30 August 2022. If anything, the Respondent, effectively, “blew the whistle on himself” (to speak colloquially), in mid-2022.[23] Yet it was not until approximately 18 months later that the Applicant formally laid Charge 4 against the Respondent. Respectfully, celerity of prosecution, and therefore compliance with s.417 of the Legal Profession Act to ensure that complaints are dealt with “as efficiently and quickly as possible”, this was not.[24] Nor was there any explanation why it took the Applicant some 18 months or so, with no explanation for the remarkable delay, after the Respondent had alerted it to issues relating to the acknowledgments, to add an additional charge relating to those documents. Respectfully, it was hardly “model litigant” conduct, especially regarding such a serious charge from the profession’s legal regulator.
[22] The correspondence referred to below is at pp.129-138 of exhibit SWH1.
[23] The Respondent’s Senior Counsel noted this in his oral submissions; see T 85.
[24] See the comments by McCallum CJ quoting and confirming this responsibility in Council of the Law Society of the ACT v ACAT [2025] ACTSC 251 at [1].
The challenge to the Respondent’s frankness in correspondence with the Applicant Law Society continued. He acknowledged that his lawyer’s later letter of 14 February 2024 made no mention of what was in his Affidavit regarding what he did, and did not do, regarding the reading of par.5 of the acknowledgment
The testing of the Respondent’s evidence continued to focus on what the Applicant effectively contended was a disjuncture between the responses by his lawyers to the multiple allegations from the Applicant in its correspondence, on the one hand, and on the other, his formal Response once litigation had begun in the Tribunal. This part of the contest was again permeated with contentions of a lack of candour on the Respondent’s part, which he denied, while accepting that some things were not set out in the correspondence as they subsequently appeared in the “pleadings” before the Tribunal.[25]
[25] The lengthy entanglements between the witness and Counsel for the Applicant are at T 28-35.
Both in his Affidavit (as noted above) and in his oral evidence, the Respondent stated that his appreciation about the nature and detail of the claim only clarified in a number of respects during and after the “preliminary conference” held at the Tribunal in October 2024. The relevant exchange was as follows (emphasis added):[26]
[26] T 35-36.
MR MOUJALLI: And you can see that what is said as part of your case in subparagraph (iv), it is said that you glanced at paragraphs 3, 4 and 5, but did not read them, in the belief that they were standard paragraphs commonly appearing in a document of this kind. Can you see that?
WITNESS: I can see that, yes.
MR MOUJALLI: Witness, you now say – I withdraw that. What is stated there is reflected in your affidavit. Correct?
WITNESS: Yes, it is.
MR MOUJALLI: This version of events, witness, was put forward by you some two years after your first response to the Law Society. That's the case, isn’t it?
WITNESS: Yes, I accept that.
MR MOUJALLI: And witness, if what is stated there is the truth, you had the opportunity to put this version forward on multiple occasions before this document was prepared. That's the case, isn’t it?
WITNESS: The – the matter of the, what I call the standard document came about during the preliminary conference and some questions were asked directly of me in relation to that, and it occurred to me that that was the reason for me not paying attention to the document. I explained that, and immediately instructed my solicitors to write to your instructors to advise them accordingly.
MR MOUJALLI: When was that preliminary conference, witness?
WITNESS: That was – that was in October of 2024.
MR MOUJALLI: That is more than two years after your response to the Law Society of August 2022. That's the case, isn’t it?
WITNESS: And for almost two years we were dealing with essentially the question of the – the conflict of interest question and that’s the way in which I had prepared the matter, and the whole – the totality of my conduct, rather than the specifics of the acknowledgement itself.
…
SENIOR MEMBER: Sorry, but you say that it was only during this conference in October last year this prompted this recollection? Yes?
WITNESS: I had made an assumption that everybody understood the document was a standard document, and it was only when the Presidential Member asked me a question during the preliminary conference as to why I had not read a document which is such a short document, or not properly read a document such as this, that I responded by saying, ‘But it’s a standard document’, and that’s when it was produced to the Law Society.
MR MOUJALLI: Witness, you, yourself, said that in August 2022 you, yourself, volunteered information about the signing of the acknowledgement on 20 March 2019. That's the case, isn’t it?
WITNESS: Yes, I volunteered it at that time, yes.
MR MOUJALLI: And at all times you have known that you have to be frank in your dealings with the Law Society. Correct?
WITNESS: Yes, of course.
MR MOUJALLI: And if you were being frank with the Law Society, and if what you say in subparagraph (iv) is the truth, you had had many opportunities to bring this forward before the first time that you did. That’s the case, isn’t it?
WITNESS: Opportunities, but the light was shone on it in October 2024.
Again, I note the important fact that the Applicant did not raise a charge against the Respondent in relation to “dishonesty” until 2024 making it perfectly understandable, and (in my view) legally defensible, to focus in responses (in correspondence and otherwise) with the Applicant upon the actual charges then being faced. On this basis, the constant questioning of the Respondent regarding his candour and when “the light went on” regarding the acknowledgments during and after the preliminary conference in October 2024, was, at least, close to, if not actual, “over-reach.” This is even more the case, as earlier noted, that the Respondent had himself notified the Applicant Society in August 2022 of issues relating to the acknowledgments. It is difficult to know, or otherwise apprehend, in the absence of specifics from the Applicant (which were not forthcoming during the cross examination or in any other respect), how much more candid the Respondent could actually have been, notably given the state of the charges at relevant times. Moreover, to recall that it was the Applicant who bore the onus of proof; the Respondent did not have to establish his honesty or diligence. Both sides owed certain duties. Having regard to the state of the charges at relevant times, generalised complaints assisted no one.
Further, as already noted a number of times, there was never any formal charge against the Respondent regarding any purported lack of candour. Respectfully, in this regard, the constant attempts to impugn the Respondent’s credibility arising from his alleged lack of candour with the Applicant Law Society were, in my view, fruitless. Given the history and context, as described earlier at some length, it bordered on the improper especially given the duty on the Applicant to prove its case. The Respondent, in my view, provided everything he could at the relevant time in the light of the charges then in play. Even after providing the information he did in August 2022 regarding the acknowledgments, nothing happened regarding those matters by the Applicant regulator until 18 unexplained months later.
As noted later in these reasons, contrary to the Applicant’s submissions, I found the Respondent’s oral evidence to be consistent, credible and unwavering. It was also consistent with both his Affidavit evidence, and with correspondence with the Applicant Society. He readily gave concessions and consistently acknowledged (in writing and in his Affidavit) his failings in certain key aspects regarding the acknowledgments in issue and the circumstances surrounding them. Fairly, in my view, he also stood his ground when he considered it to be appropriate. In my firm view, he was an entirely credible witness.
In response to a question from the Tribunal the Respondent acknowledged that his usual practice was, surprisingly in my view, not to make file notes per se but rather his correspondence (e.g. by email) was effectively a summary of relevant conversations and acted (in my words) as a de facto file note.[27]
[27] T 44.
Again, regarding the execution of the acknowledgments, and accepting that he was not told by anyone that these used “standard wording”, the Respondent said (emphasis added):[28]
[28] T 45-46.
MR MOUJALLI: No one told you that it was based on wording for a form commonly used in New South Wales. That’s the case, isn’t it?
WITNESS: No, nobody told me that.
MR MOUJALLI: You say in your affidavit that you had not previously acted for guarantors where the guarantee was to be executed by their attorney. Correct?
WITNESS: Yes.
MR MOUJALLI: It follows from that, doesn't it, that from your point of view this transaction was not a standard transaction. Correct?
WITNESS: That was not my view at the time, no.
MR MOUJALLI: This was a transaction where the guarantee was being executed on behalf of guarantors by their attorney. Correct?
WITNESS: Yes
MR MOUJALLI: And did I understand you to agree with me that from – based on your experience, that was not a standard arrangement?
WITNESS: It wasn't a standard arrangement, but it did not seem to me to be anything unusual because the attorney was authorised under – on the face of the power of attorney to do exactly what he did.
MR MOUJALLI: But you hadn't previously acted for guarantors?
WITNESS: No, that's true.
MR MOUJALLI: In this type of scenario. Correct?
WITNESS: No, I agree with that. Yes.
MR MOUJALLI: When you signed the acknowledgement on 20 and 22 March, you knew that you could not be sure as to what you were certifying unless you read the document. Correct?
WITNESS: I don’t agree with that proposition, no.
MR MOUJALLI: Is that a serious answer, witness?
WITNESS: Yes.
MR MOUJALLI: Are you seriously saying that you could be sure what a document said without reading it?
WITNESS: Mr Moujalli, as I’ve said before, the document appeared to me to be in similar terms to the document that’s normally used in respect of guarantees in New South Wales. I have accepted that I did not read the document carefully and that – and I also accept that I should have read the document carefully.
MR MOUJALLI: Can I ask you to focus on my question, witness.
WITNESS: Yes.
MR MOUJALLI: And answer my question. My question was, you could not be sure as to what this document said unless you read it. That is my question.
WITNESS: I could not be certain, that's true.
MR MOUJALLI: You knew that if you didn't read it there was a risk that you could be certifying something which was not true. That's the case, isn’t it?
WITNESS: I didn't consider that, no.
MR MOUJALLI: Well, if you couldn't be sure as to what it said, witness, you knew that there was a risk that you could be certifying something which was untrue. That’s the case, isn’t it?
WITNESS: I believed I knew what was in the document, Mr Moujalli, at that time.
MR MOUJALLI: But you didn't know for certain. That’s the case, isn’t it?
WITNESS: I accept that now, yes.
The time sequence, and when the witness knew or understood certain matters, or recognised (or assumed) certain matters, was not always as clear as it should have been in the course of the cross examination. Indeed, the time periods were elided from time to time, which was unfortunate at the very least. As the above account makes plain, the Respondent was at pains, as he was throughout his cross examination, to make clear what he understood or assumed “at the relevant time”, and what he subsequently acknowledged as gross negligence. The questioning did not always, as it should have done, make this distinction regarding the relevant time of comprehension of the Respondent as clear as it should have been. Not infrequently, the benefit of “hindsight” seemed to inform some questions.
Questions continued, as did the same or similar answers, regarding the reading – carefully/not carefully – of the acknowledgements. While repetitive at the time, and equally so in the re-reading of the Transcript, I will set them out to highlight in extenso, among other things, the Respondent’s clear and patient evidence in which he noted, on more than one occasion, his errors regarding the acknowledgments. It was, and remains, somewhat perplexing what else could be gleaned from the Respondent’s evidence simply by persistent questioning that canvassed already well-tilled ground. Unfortunately, again, the relevant time-differences as to when the Respondent comprehended certain things (and assumed others) was not regularly, or sufficiently, clarified, which necessarily meant that, effectively with the benefit of hindsight, certain things from the Respondent’s perspective are clearer now than they were at the relevant time (emphasis added):[29]
[29] T 49. See also T 50 ff regarding (a) the Respondent’s belief, at the relevant time, that he was advising N as his parents’ attorney, (b) the signing of the second acknowledgment, (c) the distinction between “failing to read something and failing to read it properly”, and (d) the Respondent’s direct denial that in signing the acknowledgments he knew that what he was certifying was untrue (T 53).
MR MOUJALLI: … The fact is, witness, when you signed the acknowledgment on 20 and 22 March, the only way you could have been sure of what you were certifying was to read the documents. Correct?
WITNESS: I think I’ve answered that, Mr Moujalli.
MR MOUJALLI: They are not long documents, correct?
WITNESS: I accept that.
MR MOUJALLI: It would not have taken you long to read them, correct?
WITNESS: I accept that, too.
MR MOUJALLI: The fact is, being a diligent lawyer, you read these documents before – I withdraw that. Being a diligent lawyer, you read the entirety of the acknowledgement before you signed it on 20 March 2019. That’s the case, isn’t it?
WITNESS: I’ve already explained that I did not read the acknowledgement carefully.
SENIOR MEMBER: So did you read any of these documents before each of the times when you affixed your signature to the acknowledgement, or did you just – or did you read them at the time when you were speaking with N?
WITNESS: I’d seen the document previously and I had assumed that the document was in the same form as the New South Wales form, and I completed it and executed it during the – during Mr N and Mrs I. X’s presence. The second document, the second time the document came to me, I – it appeared to me to be in similar, almost identical terms, and I signed it as well without further consideration of what was in paragraph 5.
SENIOR MEMBER: So you didn't read it before any later meeting because were there – were there two meetings with N, each time?
WITNESS: No, there was only one.
SENIOR MEMBER: I see. Thank you.
MR MOUJALLI: Thank you, your Honour. Witness, I just need to put this question to you very clearly. When you signed the acknowledgement on 20 March 2019, you read paragraph 5 before you signed that document. That’s the case, isn’t it?
WITNESS: As I’ve said, I – I believe that I did not carefully read paragraph 5. I glanced at paragraph 5.
MR MOUJALLI: You read it and you knew what that paragraph was stating. That’s the case, isn’t it?
WITNESS: No, it’s not.
MR MOUJALLI: That is why you didn't tell the Law Society on 30 August 2020 that you did not read paragraph 5. That’s the case, isn’t it?
WITNESS: That's not true.
52 Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13, Refshauge J at [77].
53 Application for Disciplinary Action dated 6 May 2024, paragraph 51.
54 Application for Disciplinary Action dated 6 May 2024, paragraph 67.
55 Applicant’s submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 6.2.
56 Applicant’s submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 5.1.
57 Amended Response dated 22 November 2024, paragraph 68.
section 387(1)(b).58
In Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34, an experienced solicitor erroneously advised Mrs Smith (who held an EPA for her mother) that she and her husband could borrow $400,000 from Mrs Smith’s mother to temporarily reduce their mortgage, borrowed from surplus funds after Mrs Smith sold her mother’s house to pay a nursing home bond. The solicitor failed to advise Mrs Smith that the loan was impermissible per Powers of Attorney Act 2006 (ACT) (POAA) sections 34 and 42.
In Legal Practitioner 20215, the solicitor was charged with and conceded breaches of rules 1.1, 1.2 and 7.2 of the repealed Legal Profession (Solicitors) Rules 2007 (ACT) for:
(a)failing to treat Mrs Smith fairly and in good faith, having regard to her dependence upon him – rule 1.1;59
(b)failing to act with competence and diligence by failing to advise Mrs Smith, in her capacity as her mother’s attorney, that the loan was not permitted by the POAA – rule 1.2;60 and
(c)acting for more than one party to the transaction, namely Mr and Mrs Smith (in their personal capacity as borrowers), and Mrs Smith (in her capacity as her mother’s attorney i.e. the lender), where their interests were in conflict – rule 7.2.61
In Legal Practitioner 20215, the parties jointly submitted and the ACAT accepted that the solicitor’s conduct was properly characterised as unsatisfactory professional conduct.62
The Respondent’s conduct in relation to Charges 1-3 (inclusive) is broadly comparable to that in Legal Practitioner 20215 and should similarly be characterised as conduct falling 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, but not within the common law or statutory definitions of professional misconduct.
58 Amended Response dated 22 November 2024, paragraph 69.
59 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [25].
60 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [26].
61 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [27].
62 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34, at [29] and [44].
Sanctions
The Respondent adopts the Applicant’s submissions as regards the protective purpose of disciplinary proceedings.63
The Respondent submits that appropriate sanctions under LPA section 425 are:
(a)The Respondent is publicly reprimanded.
(b)The Respondent is to pay a fine in the order of $10,000.
(c)Within 12 months, the Respondent is to undertake a course in legal ethics approved by the Applicant.
(d)The Respondent further offers to participate in legal ethics or similar educational sessions to share with other members of the profession the lessons learnt from this matter particularly regarding the pitfalls of busy practice even for experienced practitioners.
Costs
The Respondent will seek to be heard as to the appropriate order as to costs to be made under LPA section 433.
Philip Strickland SC Athol Opas
Forbes Chambers Blackburn Chambers 21 March 2025
63 Applicant’s submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraphs
3.1 to 3.3 (inclusive).
Appendix C2: Respondents case outline – summary of issues for determination, relevant legislation, authorities and summary of argument, filed 26 March 2025
Australian Capital Territory Civil and Administrative Tribunal
OR 8/2024
Council of the Law Society of the Australian Capital Territory
Applicant and
Legal Practitioner 082024
Respondent
Respondent’s case outline – summary of issues for determination, relevant legislation, authorities and summary of argument
In accordance with Orders of Senior Member Neville made 20 March 2025, the Respondent provides the following case outline.
Summary of issues for determination at hearing
Matters to be determined at hearing are set out in the parties’ joint Statement of Real Issues in Dispute dated 17 March 2025.
Relevant legislation
Legislation directly relevant to the matter is:
(a)Legal Profession Act 2006 (ACT) (LPA), sections 386, 387(1)(a) and 387(1)(b) – definitions of ‘unsatisfactory professional conduct’ and ‘professional misconduct’;
(b)Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules), rules 4.1.1, 4.1.2, 4.1.3, 4.1.5, 5.1, 7.1 and 11;
(c)Powers of Attorney Act 2006 (ACT), sections 34 and 42.
Authorities
Pollard v Director of Public Prosecutions (1992) 28 NSWLR 659
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Giudice v Legal Profession Complaints Committee [2014] WASCA 115
Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Legal Services Commissioner v Brereton [2011] VSCA 241; (2011) 33 VR 126
Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13
Kumar v Legal Services Commissioner [2015] NSWCA 161
Guidice v Legal Profession Complaints Committee [2016] WASCA 159
Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19
Berger v Council of the Law Society of New South Wales [2019] NSWCA 119
Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34
G E Dal Pont, Solicitors Manual (LexisNexis Butterworths, 2005) at [35,035]
Summary of argument
The Applicant’s four charges and the Respondent’s position on those charges are summarised in paragraphs 12-15 of the Respondent’s written submissions filed 21 March 2025.
A key issue for the Tribunal to determine at hearing is, in relation to Charge 4, whether the Respondent was dishonest and thereby breached Rules 4.1.2,
4.1.5 and 5.1 of the Rules (as contended by the Applicant) when the Respondent signed the First and Second Acknowledgments (the Acknowledgments). The Respondent says that he was careless (and thus breached Rule 4.1.3) but that he was neither deliberately nor recklessly dishonest in signing the Acknowledgments and therefore he did not breach Rules 4.1.2, 4.1.5 and 5.1 by signing the Acknowledgments.
As the party asserting that the Respondent was dishonest, the Applicant bears the onus of proving dishonesty, to the requisite Briginshaw standard, and it does not fall to the Respondent to prove that he acted honestly in signing the Acknowledgments.
The Respondent refers to paragraphs 16-28 of his written submissions filed 21 March 2025 with respect to relevant principles and authorities.
As to why the Respondent was not dishonest in signing the Acknowledgments, the Respondent refers to paragraphs 29-39 of his written submissions of filed 21 March 2025.
As regards characterisation of his conduct:
(a)The Respondent contends that his conduct in relation to Charges 1, 2 and 3 constitutes ‘unsatisfactory professional conduct’ (LPA section 386) but not ‘professional misconduct’ as contended by the Applicant.
(b)The Respondent contends that his conduct in relation to Charge 4 constitutes ‘professional misconduct’ per LPA section 387(1)(a) (“a substantial or consistent failure to reach of maintain a reasonable standard of competence and diligence”) but not (as contended by the Applicant) per LPA section 387(1)(b) (“conduct…that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice”).
As regards sanctions, the Respondent submits that appropriate sanctions under LPA section 425 are:
(a)The Respondent is publicly reprimanded.
(b)The Respondent is to pay a fine in the order of $10,000.
(c)Within 12 months, the Respondent is to undertake a course in legal ethics approved by the Applicant.
(d)The Respondent further offers to participate in legal ethics or similar educational sessions to share with other members of the profession the lessons learnt from this matter particularly regarding the pitfalls of busy practice even for experienced practitioners.
25 March 2025
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