Council of the Law Society of the Australian Capital Territory v LP 201920 - [2021] ACAT 16

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v LP 201920 (David Chen) (Appeal) [2021] ACAT 16

AA 15/2020 (OR 20/2019)
Catchwords: APPEAL – occupational discipline – legal practitioner – professional misconduct found – solicitor lied to a tribunal that he was not available for a hearing – solicitor lied to client and Law Society – Original Tribunal ordered public reprimand and practising certificate not to be issued before 30 June 2025 except if conditions are met – whether Original Tribunal made material errors of fact or law in making discretionary orders – whether Original Tribunal made a proper assessment of the seriousness of the conduct – whether the Original Tribunal erred in the application of the psychological evidence – whether Original Tribunal erred in the characterisation of the practitioner’s disciplinary history – whether Original Tribunal properly assessed character evidence – appropriateness of orders – whether legal practitioner’s name should be removed from the roll of legal practitioners
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82
Legal Profession Act 2006 ss 6, 387, 419, 425
Mental Health Act 2015

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 rr 19.1, 43.2

Cases cited:Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621
Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1
Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52
Council of the Law Society of the ACT v LP 12 [2019] ACAT 68
Council of the Law Society of the ACT v LP 12 (No.2) [2019] ACAT 121
Council of the Law Society of the ACT v Legal Practitioner 201920 [2020] ACAT 31
Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2
Council of the Law Society of New South Wales v Zhulovska [2020] NSWCA 163
House v The King (1936) 55 CLR 499
Law Society of the ACT v Powrie [2017] ACTSCFC 4
Legal Profession Complaints Committee v Bower [2019] WASC 281
LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27
The Council of the Law Society of the Australian Capital Territory v LP12 [2018] ACTCA 60
Norbis v Norbis [1986] HCA 17
Wentworth v New South Wales Bar Association (1992) 176 CLR 239

List of

Texts/Papers cited: Gino E Dal Pont, Solicitor’s Manual, Lexis Nexis Australia online, version last updated 2019

Appeal Tribunal: President G Neate AM
Senior Member R Orr QC

Date of Orders:  11 March 2021
Date of Reasons for Decision:         11 March 2021
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 15/2020

BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Appellant

AND:
LP 201920
Respondent

APPEAL TRIBUNAL: President G Neate AM
Senior Member R Orr QC

DATE:11 March 2021

ORDER

The Tribunal orders that:

The appeal be dismissed.
The parties may within 14 days make submissions in writing as to whether any other orders, including orders as to costs, should be made.

………………………………..
President G Neate AM
For and on behalf of the Tribunal

REASONS FOR DECISION

Introduction

The Council of the Law Society of the ACT (Council, Law Society or appellant) has appealed against part of the decision (Original Decision)[1] of a senior member of the ACT Civil and Administrative Tribunal (Original Tribunal) made in relation to the legal practitioner who is the respondent in these proceedings (practitioner or respondent).[2]
[1] Council of the Law Society of the ACT v Legal Practitioner 201920 [2020] ACAT 31 (Original Decision)
[2] This decision was previously anonymised and cited as Council of The Law Society of The Australian Capital Territory v LP 201920 (Appeal) [2021] ACAT 16pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.
In summary the practitioner admitted, and the Original Tribunal found, that the practitioner had engaged in professional misconduct,[3] comprised of:
(a)knowingly misleading the Administrative Appeals Tribunal (AAT) and causing the AAT to be misled as to his availability to conduct a hearing and the availability of a doctor for the hearing in the context of an adjournment application;
(b)knowingly misleading his client; and
(c)not furnishing an accurate record of his conduct in relation to the matter to the Law Society.
[3] The definition of ‘professional misconduct’ in section 387 of the Legal Profession Act 2006 is set out at paragraph [69] below
Therefore the primary question for the Original Tribunal to answer was, on the basis of this professional misconduct, what orders should be made in relation to the practitioner, including whether the practitioner’s name should be removed from the roll of legal practitioners. The Original Tribunal described the “real issue” in the case as whether the practitioner “has fundamental dishonest qualities.”[4]
[4] Original Decision at [128]
The parties were divided on whether the practitioner’s conduct demonstrated, in light of his disciplinary history, that he was no longer fit and proper to remain on the roll. More specifically, the issue was whether the practitioner was at the time of the hearing unfit to practise and was likely to be unfit to practise in the indefinite future.[5]
[5] See the Respondents speaking notes paragraph 3; the Council’s submissions paragraphs 2-5. See Original Decision at [123], [140], [174]
The Original Tribunal ordered, in summary, that:
(a)the practitioner be publicly reprimanded (Order 1);
(b)the practitioner pay the Council’s legal costs at the rate of 90% of solicitor-client costs and disbursements in full with such costs to be agreed or assessed (Order 2);
(c)a local practising certificate not be granted to the practitioner before 30 June 2025 unless certain specified conditions (including consultation with and compliance with any treatment proposed by a mental health practitioner, attendance at certain courses, and acceptance by the practitioner that a condition of the restricted practising certificate be that he be supervised and mentored by a senior practitioner in any legal work he undertakes) were satisfied (Order 5); and
(d)the parties had liberty to apply within 14 days of receipt of the orders in respect of the drafting of Order 5, otherwise the orders took effect from 19 May 2020 (Order 6).
The Original Tribunal also made non-disclosure and other orders in relation to the respondent, documents and transcript of the proceedings before the Original Tribunal, and public access to the Tribunal’s file (Orders 3 and 4).
The appeal is from the orders on sanction only. The Council seeks orders to the effect that:
(a)Orders 5 and 6 be set aside and the following orders be substituted:
(i) 5. Pursuant to section 425(3)(a) of the Legal Profession Act 2006 (ACT), the Tribunal recommend that the name of the respondent be removed from the roll of legal practitioners; and
(ii) the respondent pay the Council’s costs of the appeal.
In this appeal the Council contended in essence that the Original Tribunal erred in failing to find that the practitioner was probably permanently unfit to practise. In oral submissions, counsel for the practitioner stated that there was “present unfitness” but submitted there was not “indefinite unfitness” and hence the Council could not succeed on appeal.[6] The practitioner contended that the sanction ordered by the Original Tribunal was within a given range and was a legitimate and reasonable answer to the question asked of the Original Tribunal.[7]

Summary of this decision

[6] Transcript of proceedings 14 September 2020 page 40-42
[7] Council’s submissions paragraph 5; Practitioner’s submissions paragraph 17

This is an appeal which involves a review of the Original Decision. As such there is a presumption in favour of the correctness of the Original Decision, which should be affirmed unless we are satisfied that the decision is clearly wrong because of material errors. It is not enough that we consider that we would have exercised the relevant discretion differently.
The practitioner admitted professional misconduct, so the operative parts of the Original Decision were only those as to the sanction. The Council raised four principal grounds of appeal, and sought a recommendation that the practitioner be removed from the roll. First it was said that the Original Tribunal failed to make a proper assessment of the nature and seriousness of the relevant conduct of the practitioner (Ground 1). The Original Tribunal in fact found that the practitioner’s conduct was so serious as to support a recommendation for his removal, but that the effects of his mental illness, which explained but did not excuse the misconduct, were not permanent. The issues raised by the Council in this area did not amount to material errors.
Second, it was said that the Original Tribunal erred in the application of the expert psychological evidence (Ground 2). In summary the Original Tribunal found on the basis of expert and other evidence that the practitioner did suffer from depression at the relevant time, that he had numerous stressors at that time, that this explained the conduct but did not excuse it, and that this mental illness could be treated.[8] On this basis, the Original Tribunal did not recommend removal from the roll, but did order a long suspension unless certain conditions were met. This Tribunal finds that there was evidence to support these conclusions, and that the issues raised by the Council did not amount to material errors.
[8] Original Decision at [104], [168]-[172], [180], [182]
Third, it was said that the Original Tribunal erred in the characterisation of the practitioner’s disciplinary history (Ground 3). There were two relevant prior matters, the most significant was the LP 12 matter where there was a disbursal in 2011 of settlement moneys to a client but the practitioner retained fees greater than the amount agreed. The Original Tribunal had regard to this history, but did not think that it, together with the more recent conduct, required a recommendation of removal from the roll. The issues raised by the Council did not amount to material errors.
Fourth it was said that the Original Tribunal gave too much weight to character evidence (Ground 4). We do not think this Ground was made out.
Therefore, we conclude that the appeal should be dismissed. We set out our detailed reasons below.

Background to the Original Decision

On 25 July 2019, the Council brought an application for disciplinary action against the practitioner pursuant to section 419 of the Legal Profession Act 2006 (the Act). The application was amended on 4 December 2019.
On 26 February 2020, the Original Tribunal heard the amended application.
In the course of the hearing, evidence was given orally and in writing by the practitioner (who was cross-examined on his affidavit)[9] and Professor Stevens (a psychologist who assessed the practitioner in January 2020 and diagnosed a major depressive disorder with moderate to severe symptoms (single episode))[10]. Written evidence in the form of affidavits or witness statements was provided by Robert Reis (the Council’s Professional Standards Manager),[11] Murray Maclean (a former diplomat, mentor of the practitioner and character witness),[12] NW,[13] SD,[14] ZA[15] and ZC (a colleague of the practitioner).[16] There was character evidence from local barristers, a Sydney barrister and a former principal of the practitioner’s firm.[17]
[9] Original Decision at [8], [62]-[90]
[10] Original Decision at [8], [103]-[119]; see also [87]-[90], [146], [165], [166], [168], [169]
[11] Original Decision at [1], [4]
[12] Original Decision at [7], [74]-[78], [159], [175]
[13] Original Decision at [7]
[14] Original Decision at [7]
[15] Original Decision at [121]
[16] Original Decision at [91]-[102]; see also [107]
[17] Original Decision at [120]
Significantly, the parties provided a detailed joint submission dated 17 December 2019, an anonymised copy of which was annexed to the Original Tribunal’s reasons for decision (Joint Submission). It included a detailed statement of facts, reference to the relevant legislation and rules in relation to the charges against the practitioner, details of each of the five charges and the characterisation of those charges. The Joint Submission noted that the parties would provide separate submissions to the Original Tribunal on the sanction to be determined.
The Original Tribunal made orders and gave reasons for its decision on 6 May 2020. The Original Tribunal noted specifically which parts of affidavits and other documents were not read and were excluded from the applicant’s or respondent’s evidence.[18] The Original Tribunal stated that the facts that it might consider were, for the most part, uncontested. Reference was made to some specific contests when explaining the respective submissions.[19] The decision and orders are summarised at paragraphs [2] to [6] above. We now set out a chronology of the relevant events and a summary of the reasons for the Original Decision.

Chronology of events

[18] Original Decision at [5], [6]; and the document titled Evidence of the Applicant not relied on and List of evidence of the respondent not read after objection annexed to the Original Decision
[19] Original Decision at [9]

The following chronology sets out the instances of the practitioner’s behaviour which gave rise to the proceedings, and other events (including separate disciplinary proceedings commenced against the practitioner in 2016 in relation to his conduct in 2011 (LP 12 proceedings)) over a period of more than two years which provide the context in which his behaviour occurred. The chronology is compiled from the Original Decision, primarily the Joint Submission annexed it. It is included here because it provides the basis for assessing the submissions made by the Council that some of the conclusions reached by the Original Tribunal were a result of the erroneous exercise of discretion in the sense described by the High Court in House v The King.[20]
[20] (1936) 55 CLR 499
At 9am on 14 March 2017, the practitioner’s client met with the practitioner, a junior solicitor employed by the practitioner’s firm, and counsel engaged to represent the client at the hearing of the client’s psychological injury claim against Comcare. The hearing of that claim was set down before the AAT for the following day, 15 March 2017.
At the 14 March 2017 meeting, counsel gave advice to the client about problems with his claim and the need to try to settle the matter. The client was upset by that advice, and counsel’s retainer was terminated. The client asked the practitioner to find another barrister to take over or have the hearing adjourned.
After the meeting, the practitioner arranged for the junior solicitor to notify a doctor who was scheduled to give evidence on 15 March 2017 that the matter might not be proceeding on that day. The practitioner understands that the junior solicitor notified the doctor accordingly.
The practitioner approached another barrister to act in the matter on short notice. That barrister wanted funds in trust prior to accepting instructions and as a result was not briefed.
The practitioner wrote to the AAT requesting that the matter be listed urgently for a directions hearing for the purpose of applying for an adjournment due to the absence of counsel. He wrote that, in the circumstances, “we have no option but to advise that we are unable to proceed with the hearing as scheduled and kindly ask for it to be vacated.”
The AAT convened a directions hearing at 2:23pm on 14 March 2017. The practitioner appeared by telephone and asked for the adjournment. During the directions hearing, the practitioner stated that he was not available to appear on 15 March 2017 because “my family and I need to take my daughter to a medical appointment and that’s been scheduled. So I’m personally not available.” The AAT Senior Member said that he was happy to consider whether there was a time on 15 March 2017 to allow the practitioner to take his daughter to the medical appointment and still be involved in the hearing. In response the practitioner stated “No, I’m not available at all tomorrow.” Later in the hearing, the practitioner stated that “we might have to sort of say that we’re sorry we have to perhaps resign as well from this matter.”
During the directions hearing, the practitioner stated “We have the doctors on stand-by.” Counsel for Comcare noted that concurrent evidence from two doctors was scheduled for 11:30am on 15 March 2017. The AAT rejected the adjournment application, stating that the absence of counsel alone is not a sufficient reason for proceedings to be adjourned.
The practitioner’s daughter did not have a medical appointment on 15 March 2017. He knew this to be the case when he made submissions to the AAT on 14 March 2017. The practitioner stated later that he advised the AAT that his daughter had a medical appointment because he thought that would gain more sympathy from the AAT. The only appointment entered into the practitioner’s diary for 15 March 2017 was the client’s hearing.
At 3:08pm, the practitioner emailed the client informing him that there was a directions hearing and the AAT refused to vacate the hearing on the basis that absence of counsel to conduct the hearing was not sufficient reason to vacate. Consequently, the hearing would have to proceed. The practitioner wrote “I am not available for personal reasons.” He stated that the doctor had been put “on stand-by.”
A little later the practitioner telephoned the client and told him that he could not appear because he had a long-awaited and prearranged medical appointment for his daughter. The respondent knew the statement was false. The practitioner advised that the junior solicitor could not appear because he was not experienced enough to run the hearing, and said that the client would have to appear alone to seek an adjournment. The practitioner asked the client to send an email to him terminating the firm’s retainer. He persuaded the client that he would be most likely to get an adjournment if the practitioner was not retained. The practitioner’s intention in saying these things was that the firm could be terminated for “strategic” reasons to facilitate the adjournment application. He advised his client that the client could come back to the firm.
That afternoon the client sent the practitioner an email advising that he no longer wished the firm or the barrister to represent him in the matter scheduled for hearing the next day. At 4:21pm the practitioner forwarded the client’s email to the registry of the AAT and shortly afterwards sent an email to the client advising that he had notified the AAT and that the AAT had advised that there was no need for the firm to appear in the hearing.
On 15 March 2017, the client appeared unrepresented at the AAT hearing. Comcare wished to proceed and their counsel wanted to know whether the doctor was available. The client responded that the doctor was not available and that “from the events yesterday, yes, they cancelled him… I mean, solicitors – my counsel cancelled him.” The AAT expressed surprise about that and said he thought it was confirmed at the directions hearing that both doctors would be available concurrently. Ultimately an adjournment was granted for seven days.
The doctor subsequently rendered an invoice for court attendance/time reserved on 15 March 2017.
The client met with the practitioner on 20 March 2017 and the practitioner gave him some advice. The client followed that advice and informed the AAT that he wished to proceed with the claim. Shortly afterwards, he engaged a new solicitor.

On or around 5 December 2017, the client made a complaint to the Law Society.
In his first response to the Law Society regarding his representation of the client and the termination of the retainer, received on 7 February 2018, the practitioner wrote:
In relation to the matter raised in paragraph 2 on page 5 of [the client’s] email about a ‘pre-arranged appointment for my daughters’; I do not recall I said that to him. I don’t know where this came from. With God’s blessings, both of my children are healthy and well and I did not remember having had [sic] to attend an appointment with any doctor on 15 March 2017. In fact my diary for 15 March 2017 did not have in it any other engagement apart from [the client’s] hearing at the Tribunal.
Around this time, formal steps in the LP 12 proceedings were taken. The application to the Tribunal occurred in July 2016. A no case submission was made at the first hearing on 7 December 2016 and the hearing resumed on 2 March 2017 (just before the misconduct which is the subject of the present proceedings). The decision of the Tribunal on 7 July 2017[21] led to a review application by the practitioner in the ACT Supreme Court. On 23 February 2018, the ACT Supreme Court decided in the practitioner’s favour and he obtained a costs order.[22]
[21] Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52
[22] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27
The LP 12 proceedings then went to the Court of Appeal where, in a judgment delivered on 6 December 2018,[23] the practitioner was unsuccessful and a costs order was made against him. Costs of the Council were $425,876.66. The practitioner also had to pay a substantial amount to his counsel. We were advised that special leave to appeal to the High Court was sought on 17 January 2019 and refused on 17 April 2019.[24] There was a further hearing in the Tribunal on 13 and 14 May 2019 with a decision on 22 July 2019 finding two grounds of misconduct,[25] and a hearing on penalty on 27 September 2019 with a decision on 24 December 2019.[26]
[23] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60
[24] Transcript of proceedings 14 September 2020 page 26
[25] Council of the Law Society of the ACT v LP 12 [2019] ACAT 68
[26] Council of the Law Society of the ACT v LP 12 (No.2) [2019] ACAT 121
The next step in the present proceedings occurred on or about 18 April 2019, when the Council provided the practitioner with a copy of the transcript for the 14 March 2017 directions hearings before the AAT.
On 28 April 2019, the practitioner signed and sent a letter to the AAT which stated:
Having now read the transcript, I write to advise that there appears to be an error in the transcript. References were made by me to ‘my daughter’ and ‘her medical appointment’ on 15 March 2017. I wish to advise that it was a slip of tongue on my part due to the heavy pressure environment and was an unintentional mistake. What I meant to say was, ‘my family or my brother in law’ and ‘his medical appointment in Sydney’. I did not become aware of the mistake until when the transcript was perused/reviewed on 24 April 2019.
By letter dated 28 May 2019, the practitioner provided a copy of his letter to the AAT to the Law Society in support of his submission that he did not know why he referred to his daughter during the directions hearing and that the complaint made by the client should be dismissed.

Original Decision

In the hearing before the Original Tribunal on 26 February 2020, the parties agreed that the practitioner was guilty of professional misconduct. The only issue was what sanctions should be applied.[27] We note the key findings and conclusions.
[27] Original Decision at [2], [41]
The Original Tribunal stated that it was clear, and made a finding, that the conduct was professional misconduct.[28] In reaching the view that “the conduct consists of a course of conduct that amounts to professional misconduct,” the Original Tribunal wrote that it was “appropriate to consider the matters globally.”[29] That was consistent with the parties’ Joint Submission that the charges could be dealt with globally as had been done in previous cases (which were listed). They submitted (at paragraph 64) that, “considered globally,” the conduct in the charges constitutes professional misconduct within the meaning of section 387(1) of the Act. [30] The Original Tribunal noted that the Council had submitted that the conclusion about the conduct was “fortified by enumerating the incidents as they occurred and arriving at five individual incidents over a two-day period.”[31]
[28] Original Decision at [49], [185]
[29] Original Decision at [43], [156]
[30] Original Decision at [41]
[31] Original Decision at [129]
The Original Tribunal continued:
It might be said each charge separately amounts to professional misconduct. Because the charges rely on a combination of facts, some of which are relied on in more than one charge, it is more useful to focus on the particular acts or omissions of the practitioner to assess them. The first is the lie to the [AAT] about the daughter. The repetition of it to the client is the same thing really. The lie about Dr Knox is a separate act. The arming of the client and the email about termination without undoing the misleading effect may be seen as a third act. However, these matters should be seen as all occurring within a short space of time.[32]
[32] Original Decision at [156]
The Original Tribunal noted next that the practitioner’s first response to the Law Society expressing surprise at the suggestion he had used his daughter as an excuse was admitted to be “knowingly untrue.” The Original Tribunal characterised that response as “frankly bizarre.” In his opinion, it was “hard to understand” how the practitioner thought that such a statement would not be checked when a transcript would be available. He agreed with the Council that a lie is not excused just because it is stupid but stated that “it raises the real question why an intelligent man such as the practitioner would not expect it to be discovered when the transcript would show it to be.”[33]
[33] Original Decision at [157]
The Original Tribunal then stated:
The email to the [AAT] is a separate act as well and is equally bizarre. The next submission to the [Law] Society is really part of the earlier email to the [AAT] but is just as wrong and unusual.[34]
[34] Original Decision at [158]
Having considered the practitioner’s work and disciplinary history, the Original Tribunal noted some unsatisfactory aspects of the evidence but concluded that it was “more probable than not” that the practitioner suffered from depression “to some extent” at the time of his misconduct. It was unchallenged that the practitioner “had numerous external stressors at the time.”[35] The Original Tribunal concluded:
The source of the depression is important. It is what might be termed reactive and not something that he suffered from in any event. This enables a conclusion that it need not be permanent.[36]
[35] Original Decision at [171]
[36] Original Decision at [172]
As the Original Tribunal observed, the practitioner’s conduct was “so serious that unless I can be satisfied that the flaws that led him to do it are not permanent, the Tribunal should recommend that he be struck off.”[37]
[37] Original Decision at [176]
In the Original Tribunal’s view, one relevant matter was the extent of the practitioner’s insight into his misconduct. The Original Tribunal thought that the practitioner had shown “significant insight” in taking the unilateral step of handing back his current practising certificate, and that the “capacity to have complete insight is still a work in progress” and the practitioner’s current mental state was not helping this.[38]
[38] Original Decision at [179]
Although the Original Tribunal thought that the stress and depression explained the practitioner’s actions, he agreed they did not excuse it. He continued:
The first lie was unplanned and only occurred when the practitioner was suddenly faced with the prospect of running a case himself that he was unprepared for and that he thought he was not up to. That was situational stress. The matters that occurred on that day and the next were a product of this first response. They are indicative of not dealing with the matter in a structured way. The later events occurred when the LP 12 matter had proceeded further, and costs were blowing out. They are bizarre on their face and are explicable in the way Professor Stevens explains. I am satisfied that the mental state of the practitioner at the relevant times is consistent with the issues that he then had with his mental wellbeing.[39]
[39] Original Decision at [180]
In that context the issue was what orders should be made in relation to the practitioner. There was no dispute that there should be a public reprimand and an order for costs as sought by the Council.[40]
[40]Original Decision at [181]
The Original Tribunal was concerned that the effective suspension of the practitioner for 12 months (as suggested by the practitioner):
(a)would not reflect adequately the disapproval that should be demonstrated as a sign of the standards that the public should expect and to which the profession should adhere (noting that the task is not punitive but protective); and
(b)would be an insufficient period for the practitioner to recover sufficiently “so as to overcome his current issues.”[41]
[41] Original Decision at [182]
In light of those conclusions, the Original Tribunal made the Orders summarised at [5] above.
The Original Tribunal characterised the Orders as providing “what is in effect a suspension for five years,” although the practitioner may obtain a restricted practising certificate if he meets the conditions not earlier than the year commencing 1 July 2021. The Orders were crafted so as not to make “recovery impossible by placing bigger hurdles in front of the practitioner.” However, if the practitioner cannot meet the conditions then “he will not get a certificate and the public will remain protected.” In the Original Tribunal’s view, “the issue of a sanction reflecting the seriousness of the offences is met by the length of the default period before he may be considered for an unrestricted certificate, the reprimand as well as seeing the desperate situation that the conduct has brought on the practitioner already.”[42]

Grounds of appeal

[42] Original Decision at [183]

The Council submitted that the appeal should proceed, and the orders which it seeks should be made, because, in summary, the Original Tribunal erred:
(a)by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner (Ground 1);
(b)in his application of the expert psychological evidence to the agreed facts and the evidence (Ground 2);
(c)in his characterisation of the practitioner’s disciplinary history (Ground 3);
(d)by failing to heed and apply the long line of authority that character evidence carries far less weight where the facts involved repeated dishonesty, as they did here (Ground 4); and
(e)in failing to find that:
(i)the practitioner was, in light of his admitted conduct in this matter and his disciplinary history, probably permanently or indefinitely unfit to practise; and
(ii)a recommendation for the removal of his name from the roll should accordingly be made (Ground 5).
The Council submitted that the proper conclusion that this Appeal Tribunal should draw is that there is no proven explanation for the practitioner’s conduct other than a fundamental flaw of dishonesty. Consequently, the appeal should be allowed and the practitioner’s name should be removed from the roll of legal practitioners.

Nature and conduct of the appeal

The appeal was dealt with, in accordance with section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a review of the Original Decision. Neither party sought to provide additional evidence, and each proceeded by reference to the evidence and submissions before the Original Tribunal, as well as the Original Decision.
The parties took different approaches to this appeal. The Council provided a detailed critique of the reasons for decision by the Original Tribunal, compiling five grounds for appeal some of which had numerous components. Those grounds were expressly far from the grounds that constituted the particular complaints dealt with by the Original Tribunal. The Council took issue with the reasoning of the Original Tribunal about the basis of the practitioner’s misconduct, namely his mental illness, which, it submitted, was solely the Original Tribunal’s own and was not part of the practitioner’s case and was not explained by Professor Stevens’ evidence.[43] The Council sought to convince this Appeal Tribunal of material errors in the Original Tribunal’s reasons for decision so that the Appeal Tribunal would exercise afresh the discretion in relation to the appropriate sanction, rather than assess whether the orders made by the Original Tribunal were preferable or at least within an acceptable range.
[43] Transcript of proceedings 14 September 2020 pages 4-5
The practitioner, by contrast, noted that the parties had agreed the facts in the Joint Submission. Based on those agreed facts, the Original Tribunal was invited to make the finding that the conduct considered globally constituted professional misconduct. It was agreed that the only issue that the Original Tribunal had to decide was penalty, and the appeal is only taken in respect of the orders made by the Original Tribunal. Further, the Original Tribunal had to consider that issue within the structure of the charges that were actually preferred, the submissions that were made by the Council at first instance, and the reality of the way the parties approached the matter.
The practitioner did not concede that errors were made, and submitted that the findings made by the Original Tribunal were open to him to make.[44] He submitted that, as the Original Tribunal’s orders were within the appropriate range, they should not be set aside. In the practitioner’s submission, if this Appeal Tribunal were to conclude that the Original Tribunal was in error in a House v The King[45] sense, the Appeal Tribunal should re-exercise the discretion. However, the test remains the same, the onus remains the same, and the outcome should be the same as before the Original Tribunal. Removal from the roll is not the only outcome that is indicated by the circumstances of the practitioner’s behaviour in his present condition.[46]
[44] Respondent’s submissions paragraphs 8-9
[45] House v The King (1936) 55 CLR 499
[46] Transcript of proceedings 14 September 2020 page 43
In light of those submissions, we make two observations about the appeal. First, the fact that the Original Tribunal adopted a line of reasoning different from that advanced by either party is not of itself a reason for the appeal to succeed. The issue for the Appeal Tribunal is whether the reasoning and the conclusions reached by the Original Tribunal were supported by the evidence before him.
Second, in our view the Original Tribunal exercised a discretionary power under section 425 of the Act (considered later in these reasons for decision) in deciding, by reference to a range of options, what orders should be made in light of the admitted professional misconduct.[47] As Justices Mason and Deane explained in Norbis v Norbis, an exercise of a discretion is involved because assessments such as this “call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right.”[48]
[47] See Council of the Law Society of New South Wales v Zhulovska [2020] NSWCA 163 at [95]-[97] per Leeming JA (Macfarlan and McCallum JJA not deciding)
[48] Norbis v Norbis [1986] HCA 17 at [4]
The type of decision made by the Original Tribunal affects how the appeal might be decided. In House v The King, Justices Dixon, Evatt and McTiernan wrote:
The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[49]
[49] (1936) 55 CLR 499 pages 504-505
In Norbis v Norbis, Justices Mason and Deane referred to the principles enunciated in House v The King and continued:
If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties’ rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.[50]
[50] Norbis v Norbis [1986] HCA 17 at [5]
Consequently, as Justice Kitto stated in Australian Coal & Shale Employees Federation v Commonwealth, there are:
[C]ases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King…[51]
[51] Australian Coal & Shale Employees Federation v Commonwealth (1953) 94 CLR 621 page 627
In light of those authorities, this Appeal Tribunal has to decide this case in accordance with the following principles:
(a)The decision of the Original Tribunal was an exercise of discretionary power.
(b)There is a strong presumption in favour of the correctness of the decision appealed from.
(c)The decision should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong.
(d)It is not enough that members of the Appeal Tribunal consider that they would have exercised the discretionary power differently if they had comprised the Original Tribunal, or that they would prefer a different result from that favoured by the Original Tribunal.
(e)The Appeal Tribunal may be satisfied that the decision of the Original Tribunal was wrong if the Original Tribunal:
(i)acted upon a wrong principle;
(ii)gave weight to extraneous or irrelevant matters;
(iii)failed to take into account some material consideration;
(iv)failed to give weight (or sufficient weight) to a relevant consideration; or
(v)made a mistake as to the facts or if the result is so unreasonable or plainly unjust that the Appeal Tribunal may infer that the Original Tribunal failed properly to exercise the discretion reposed in it under section 425 of the Act.
(f)The existence of an error of law or fact on the part of the Original Tribunal is an indispensable condition of a successful appeal.
(g)If the Appeal Tribunal is satisfied of one or more of the matters referred to in (e), it may exercise its discretion in substitution for the decision of the Original Tribunal.

Purpose of disciplinary proceedings and the Tribunal’s powers

Before considering the grounds of appeal, it is appropriate to set out the context in which those grounds are advanced and the criteria by which they must be assessed.
Disciplinary proceedings were brought against the practitioner under section 419 of the Act. Given that the parties agree (and the Original Tribunal concluded) that the practitioner engaged in “professional misconduct,” it is necessary only to refer to the following sections.
Section 387(1) of the Act defines ‘professional misconduct’ to include:
(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.
Section 387(2) provides:
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
Note See also s 389.
Section 425 of the Act sets out the range of orders that the Tribunal may make where it is satisfied that the practitioner is guilty of professional misconduct.
425          ACAT orders—Australian legal practitioners
(1)     If, after the ACAT has finished considering an application under this part in relation to an Australian legal practitioner, the ACAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may—
(a)make 1 or more of the orders mentioned in subsections (3) to (5); or
(b)any other order it considers appropriate.
...
(3)     The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order recommending that the name of the practitioner be removed from the local roll;
(b)an order that the practitioner’s local practising certificate be suspended for a stated period or cancelled;
(c)an order that a local practising certificate not be granted to the practitioner before the end of a stated period;
(d)an order that—
(i)stated conditions be imposed on the practitioner’s practising certificate granted or to be granted under this Act; and
(ii)the conditions be imposed for a stated period; and
(iii)states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;
(e)an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.
…
(5)     The ACAT may make the following orders in relation to the Australian legal practitioner:
(a)an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;
(b)an order that the practitioner undertake and complete a stated course of further legal education;
(c)an order that the practitioner undertake a stated period of practice under stated supervision;
(d)an order that the practitioner do or not do something in relation to the practice of law;
(e)an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;
(f)an order that the practitioner’s practice be managed for a stated period in a stated way or subject to stated conditions;
(g)an order that the practitioner’s practice be subject to periodic inspection by a stated person for a stated period;
(h)an order that the practitioner seek advice in relation to the management of the practitioner’s practice from a stated person;
(i)an order that the practitioner not apply for a local practising certificate before the end of a stated period.
As the practitioner submitted, section 425 of the Act does not identify the matters that guide the Tribunal in the exercise of its discretionary power. Rather, the discretion should be exercised by reference to the objects in section 6 of the Act and relevant jurisprudence.[52]
[52] Respondent’s submissions paragraph 11
It is sufficient to note that section 6(a) of the Act provides:
The purposes of this Act are as follows:
(a) to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; [emphasis added]
There are also authorities that describe the purpose of disciplinary proceedings such as those in relation to the practitioner, and hence provide guidance about how the Tribunal should exercise its powers under section 425.
In Council of the Law Society of the Australian Capital Territory v Davey,[53] a Full Court of the ACT Supreme Court wrote:
22. The Court is very mindful that subjective circumstances may be taken into account and, perhaps more importantly, that the Court’s decision should not include “any notion of punishing the practitioner” (Legal Profession Complaints Committee v Bower [2019] WASC 281, at [38] (Bower)). The “protection of the public and the maintenance of the reputation and standards of the legal profession” exceed any mitigatory element that arises from the subjective features (Bower at [38]).
[53] [2019] ACTSCFC 2
The ACT Supreme Court cited the judgment in Bower, where the Supreme Court of Western Australia wrote:[54]
It is well‑established that:
(a) The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.
(b) Account must also be taken by the court of the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of legal practitioners.
(c) Where the order sought is for the removal of a practitioner's name from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to remain a legal practitioner. Such an order is reserved for very serious cases where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice'.
(d) Fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges. Honesty, fairness and integrity are essential prerequisites to the right to practise law. The quality most likely to result in removal of a practitioner's name from the roll is conduct which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, or that the practitioner cannot be trusted to deal fairly within the system in which he or she practises. The willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise.
(e) It is 'a matter of the utmost seriousness' for a practitioner to intentionally mislead a court. The administration of justice and public confidence in the system depends upon the assumption and expectation that practitioners will conduct themselves before the court with honesty and candour.
(f) A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether their name should be permitted to stay on the roll.
[54] Legal Profession Complaints Committee v Bower [2019] WASC 281 at [38]
Later in its judgment, the WA Supreme Court referred to “the principle that the court’s jurisdiction to remove a practitioner’s name from the roll is principally for the protection of the public.”[55]
[55] Legal Profession Complaints Committee v Bower [2019] WASC 281 at [42]
Having considered those statements, the Original Tribunal observed that “the task is not punitive but protective.”[56]
[56] Original Decision at [182]
As the High Court observed in Wentworth v New South Wales Bar Association, disciplinary proceedings have been described as “proceedings concerned with the protection of the public.”[57]
[57] Wentworth v New South Wales Bar Association (1992) 176 CLR 239 page 251
It is against that background, and in that legal context, that this Appeal Tribunal considers the various grounds of appeal advanced by the Council.

Ground 1 – seriousness of the conduct issues

The central issue in this appeal is whether, in light of the practitioner’s conduct, mental health and disciplinary history, his conduct demonstrated that he was no longer fit and proper to remain on the roll. The Council contended that the Original Tribunal erred in failing to find that the practitioner was probably permanently unfit to practise.
In relation to the overall import of the various components of Ground 1, the Council contended that the Original Tribunal failed to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner which, as the Council put it, involved lying to his client, lying to and strategically misleading the AAT, and lying to the Law Society over a two-year period.
The Council’s case was set out in relation to the components of Ground 1, each of which is considered separately below.

Ground 1(a) – nature of the lies to the AAT

The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:
(a)wrongly characterising that the “first … lie to the [AAT] about the daughter” (at [156], [180]),[58] being a lie both as to the fact of, and the reason for, the practitioner’s unavailability, as “unplanned” (at [180]) when, in truth, the practitioner’s evidence was only that the latter, i.e. the false reason, was given on the “spur of the moment”.[59]
The Council’s submissions
[58] The numbers cited in each ground refer to numbered paragraphs in the Original Tribunal’s reasons for decision.
[59] Appeal Book (AB) page 3
The Council highlighted the practitioner’s statements to the AAT at the directions hearing on 14 March 2017 that:
(a)he had to take his daughter to a medical appointment the next day (the first lie);
(b)he was not available all of the next day (the second lie),
and the fact that the practitioner knew the statements were untrue but made them in the hope that he would elicit sympathy from the AAT. He also admitted that he did not have an appointment for his daughter, and the only thing in his diary for 15 March 2017 was the AAT hearing.
The Council submitted that, although the Original Tribunal fairly stated the relevant facts at this point, he misunderstood the evidence. In particular, the Original Tribunal found that the first lie “was unplanned and only occurred when the practitioner was suddenly faced with the prospect of running a case himself that he was unprepared for and that he thought he was not up to.”[60]
[60] Original Decision at [180]
In the Council’s submission, there were two related but separate lies. The first was the false claim that he was not available to appear the next day (when he was available and the AAT hearing was the only matter in his diary) and the second was the reason for his unavailability. It was only the decision to give a full reason for not being able to appear which was, on the practitioner’s affidavit evidence, made “on [the] spur of the moment under pressure and was not in any way planned or premeditated”.[61] The practitioner gave no such evidence about his false claim to be unavailable at all. If anything, the practitioner suggested the opposite. Consequently, there was no basis for the Original Tribunal to find that both lies were unplanned by finding that the first lie was unplanned.
The practitioner’s submissions and the Council’s reply
[61] Practitioner’s affidavit dated 17 February 2020 at paragraph [27], [28] at AB page 239
The practitioner’s submissions in relation to this Ground of appeal had two limbs. First, he drew attention to the way in which the matter proceeded before the Original Tribunal. In essence, although the practitioner was available to appear before the AAT on 15 March 2017, he avoided being forced into doing the hearing by lying about his daughter having a medical appointment to gain sympathy. The charges that were brought against the practitioner did not allege in terms that two lies were involved that warranted separate consideration. Charge 3 stated “The Respondent accepts that he knowingly misled the [AAT] contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law”.[62] The evidence of the practitioner was consistent with the framing of the charges. The cross-examination of the practitioner did not seek to impugn the manner in which his affidavit addressed the issue. Nor did the Council’s submission invite the Original Tribunal to approach the matter drawing the distinction between the two lies which were set out in this ground of appeal.
[62] Joint submission dated 18 December 2019 at [61] at AB page 204
Second, the practitioner submitted that if there was an error on the part of the Original Tribunal (and it is not conceded that there was), it cannot be said that it was material.
In reply, the Council contended that it was not an agreed fact that the lie was either wholly or partly unplanned. The onus fell on the practitioner to prove that it was unplanned if he sought to do so as a matter of mitigation. There was no onus on the Council to cross-examine on evidence not given. The Original Tribunal’s error was material because it brought about a wrongful finding of mitigation.
Consideration and conclusion
Charge 3, which the practitioner accepted, did not particularise the two lies set out in Ground 1(a). But that fact does not dispose of that Ground.
The chronology of events on 14 March 2017 (set out at [21] to [31]) and the transcript of the directions hearing before the AAT on 14 March 2017 show that:
(a)the practitioner wrote to the AAT requesting that the matter be listed urgently for a directions hearing for the purpose of applying for an adjournment due to the absence of counsel;
(b)at the directions hearing by telephone, the AAT Senior Member asked the practitioner why it would not be possible for him or someone from his firm to put the client’s case;
(c)the practitioner replied that “We [presumably his firm] are not able to do that at all” and the case needed to be “properly put.” If they were to put his case, they would not do the client any service themselves and that is why they had to find another barrister which was “the only reason why we had to have this adjournment”;[63]
(d)when pressed, on the basis that his firm had had the carriage of the matter for some time, the practitioner replied “We do have the carriage of this matter, but the case needs to be properly put and we’re not in a position to do so, besides I am not available anyway tomorrow”;[64]
(e)after further discussion about whether another solicitor would be available, the AAT Senior Member asked why the practitioner was not available, particularly given what had transpired, and the practitioner replied “I have other arrangements made, so I am not available tomorrow”;[65]
(f)when the Senior Member asked, “exactly why it is you can’t make yourself available tomorrow now”, the practitioner replied “I need to take my daughter to a medical appointment and that’s been scheduled. So I’m personally not available”;[66]
(g)after further discussion between the legal representatives and the AAT, the Senior Member said he was happy to consider whether there was a time on 15 March 2017 to allow the practitioner to take his daughter to the medical appointment and still be involved in the hearing, and the practitioner stated “No, I’m not available at all tomorrow.”[67]
[63] Transcript of AAT proceedings 14 March 2017 page 4, at AB page 320
[64] Transcript of AAT proceedings 14 March 2017 page 4 at AB page 320
[65] Transcript of AAT proceedings 14 March 2017 page 5 at AB page 321
[66] Transcript of AAT proceedings 14 March 2017 page 5 at AB page 321
[67] Transcript of AAT proceedings 14 March 2017 page 8 at AB page 324
That summary identifies a series of lies, moving from the general to the specific. They were told in response to questions asked by the AAT in the context of an application for an adjournment of the hearing scheduled on 15 March 2017. The practitioner’s explanation set out in his affidavit of 17 February 2020,[68] acknowledges that the AAT Senior Member pressed him in relation to appearing on behalf of the client. According to the practitioner:
I had tried to avoid saying anything specific about why I could not appear. I eventually said to him that I had to take my daughter to a medical appointment. I acknowledge that to be untrue. I said it because I thought that it would provide a compelling reason why I could not be there. I acknowledge that I directly and also implicitly repeated the remarks in my interchange with Senior Member Mr Popple. I did so because I wanted to avoid having to run the matter myself. I also thought the client’s interests were best served by having the matter adjourned. Frankly, I was not anticipating a refusal from the Tribunal of the adjournment application in light of the client’s last-minute withdrawal of counsel.
My decision to give a reason for not being able to appear was made on a spur of the moment under pressure and was not in any way planned or premeditated.
[68] AB page 239
The transcript of the AAT proceedings on 14 March 2017 and the extract from the practitioner’s affidavit provide a complete answer to the Council’s submissions in relation to Ground 1(a). The several lies were related in content, proximate in time, and responsive to one set of circumstances. It was open to the Original Tribunal to consider them together and not draw the distinctions highlighted by the Council. The Appeal Tribunal is not satisfied that the Original Tribunal made a material error of the kind necessary to support the appeal being granted.

Ground 1(b) – were the further lies a product of the first?

The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:
(b)in any event, wrongly finding that the “matters that occurred on the day and the next [i.e. the subsequent lies and misleading on 14 and 15 March 2017] were a product of this first response [i.e. the lie to the AAT about his daughter]” (at [156], [180]), when in truth they were separate and further, albeit related, lies, which were not told on the spur of the moment but, instead, were motivated in part by the practitioner’s admitted “strategy” (at [147]) for the client to obtain an adjournment by misleadingly claiming to be unrepresented.[69]
The Council’s submissions
[69] AB pages 3-4
The Council stated that, following the lies told by the practitioner on 14 March 2017, he went on to tell a series of further lies to his client. They included lies which caused his client unknowingly to mislead the AAT on 15 March 2017 when the client appeared for himself and obtained an adjournment on a fundamentally false understanding of the facts. In particular, the practitioner emailed his client on 14 March 2017 reporting that, at the directions hearing, the adjournment application had been refused and stating that:
(a)he was not available for personal reasons; and
(b)the client’s doctor (Dr Knox) had been “put off standby.”

In the Council’s submission, those further lies were not the inevitable result of the first and second lies but were separate lies of the practitioner’s own doing and choice. Accordingly, although the Original Tribunal found that the matters that occurred on 14 and 15 March 2017 were the “product of this first response”[70] these lies to the client were independent and did not inevitably flow from the earlier lies that the practitioner had told the AAT about his unavailability. In particular, the Council contended that:
(a)it was not inevitable that (merely because, unbeknownst to the client, the practitioner had lied to the AAT about his daughter’s medical appointment) the practitioner would tell the same lie to his client; and
(b)the practitioner had not told the AAT the lie about the unavailability of Dr Knox.
[70] Original Decision at [180]
Rather, the Council submitted, the practitioner’s conduct was part of an admitted strategy (or in pursuance of a deceptive strategy) that included the termination by the client of his retainer with the practitioner’s firm to facilitate an adjournment, on the basis that the client would come back to the firm later. That much is apparent from the following passage from the reasons for decision of the Original Tribunal:
Then followed a phone call by the practitioner in which he said he could not appear because he had a long-awaited prearranged appointment for his daughter. The only thing in his diary was the hearing. It is admitted that the statement was false. The practitioner said his junior solicitor could not appear as he was not experienced enough, and the client would have to appear alone and seek an adjournment. He also asked the client to send an email terminating the firm’s retainer. He persuaded the client that this would assist an adjournment. It is admitted that the intention was for strategic reasons to facilitate an adjournment. The client was also told that he could come back to the firm later. It is assumed that this was to happen if the case was adjourned.[71]
[71] Original Decision at [21]
The Council submitted that these later lies were not the inevitable consequence of the initial lies and the Original Tribunal was in error in describing the “repetition” to the client of the lie about his daughter being “the same thing really” as the lie to the AAT.[72] It was argued that it was not. Also, the lie about Dr Knox was, as the Original Tribunal acknowledged, a “separate act.”[73] However, the Original Tribunal’s finding that those matters were the “product of this first response”[74] was not consistent with that observation.
[72] Original Decision at [156]
[73] Original Decision at [156]; see also at [147]
[74] Original Decision at [180]
Further, the Council noted the Original Tribunal’s statement that the arming of the client and the email about termination without undoing the misleading effect may be seen as a third act.[75] The Council contended that although the statement understates the deliberately and strategically dishonest nature of the acts, it at least acknowledged their separateness. That acknowledgement, however, was undone when all these matters were simply described and downplayed as a “product” of the practitioner’s first response.
The practitioner’s submissions and the Council’s reply
[75] Original Decision at [156]
The practitioner submitted that no error was demonstrated. He did so on the basis that the ground of appeal and the associated submissions do not make clear that the comment made by the Original Tribunal was made to address a specific submission that stress and depression did not explain the actions taken by the practitioner. As the submissions made by the Council in respect of this issue made clear, the Original Tribunal found that the practitioner’s conduct was part of an overall strategy to facilitate an adjournment of the case. That was the basis of charges 1 to 3 and the Joint Submission. The parties invited the Original Tribunal to find that this conduct, on its own and with other conduct, amounted to professional misconduct.
In reply, the Council submitted that because the practitioner’s conduct was part of an overall strategy to facilitate an adjournment of the case, that is why the Original Tribunal erred in characterising the first lie as unplanned and in describing the matters occurring on 14 and 15 March 2017 as a “product of this first response.” The conduct was not a product of the first response but was (as the parties agree) part of an overall strategy to facilitate the adjournment of the case.
Consideration and conclusion
The practitioner’s lies to the client were separate in time from his lies to the AAT at the directions hearing. However, the first lie (that the practitioner was not available on 15 March 2017 for personal reasons), if not the inevitable result or product of the lies to the AAT, was consistent with those lies and provided a context for the client to seek an adjournment from the AAT on 15 March. It also provided a reason for the client to terminate the firm’s retainer. It was part of a developing strategy to facilitate an adjournment. If the repetition of the lie to the client was not, strictly speaking “the same thing really,” it was consistent in content and purpose when conveyed to the client.
The Original Tribunal correctly identified the lie about Dr Knox as separate.
It is at least arguable that it was a deliberate part of a misleading strategy to assist the client to make a more compelling application for an adjournment. Indeed, having referred to that and the other lies to the client, the Original Tribunal wrote:
The arming of the client and the email about termination without undoing the misleading effect may be seen as a third act. However, these matters should be seen as all occurring within a short space of time.[76]
[76] Original Decision at [156]
Even if one accepts that the practitioner told more lies as part of a misleading strategy that he was developing in order to secure an adjournment of the AAT proceedings, the lies to the client were told soon after the directions hearing. Accordingly, we are not satisfied that the Original Tribunal erred in assessing or characterising those lies to the client.
Significantly, the Original Tribunal did not downplay the seriousness of these separate lies. Rather, the Original Tribunal recognised the significance of the lies when he described the practitioner’s conduct as “so serious that unless I can be satisfied that the flaws that led him to do it are not permanent, the Tribunal should recommend that he be struck off.”[77]
[77] Original Decision at [176]
The real issue in this appeal is whether the flaws which caused the practitioner to tell those lies was permanent. That issue is dealt with later in these reasons. We are not satisfied that, for the purpose of this appeal, the minor errors identified in ground 1(b) were material errors.

Ground 1(c) – was the lie to the Law Society bound to be shown up?

The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:
(c)wrongly finding (J [157]) that the lie that the practitioner told in his first response to the Law Society on 7 February 2018 about his daughter would be (inevitably) shown up by the checking of the “transcript” when, in truth, (J [20]-[21], [29], [30]) this lie to the Law Society was about what the practitioner had told the complainant, not the [AAT].[78]
The Council’s submissions
[78] AB page 4
As noted earlier, the client complained to the Law Society about the practitioner on or around 5 December 2017. In response to the allegation by the client that the practitioner had told the client that he was unavailable because his daughter had a medical appointment, the practitioner wrote to the Law Society on 7 February 2018 in the following terms:
In relation to the matter raised in paragraph 2 on page 5 of [the client’s] email about a ‘pre-arranged appointment for my daughter’, I do not recall I said that to him. I don’t know where this came from. With God’s blessings, both of my children are healthy and well and I did [sic] not remember having had to attend an appointment with any doctor on 15 March 2017. In fact my diary for 15 March 2017 did not have in it any other engagement apart from [the client’s] hearing at the Tribunal.
However, the practitioner ultimately admitted that he knowingly misled his client by falsely advising his client on 14 March 2017 that he had to take his daughter to a medical appointment when there was no such appointment and his diary had no engagement apart from the client’s hearing in the AAT. The Original Tribunal referred to that admission, but continued:[79]
It is frankly bizarre. It is hard to understand how he thought such a statement would not be checked when a transcript would be available. The Council said a lie is not excused just because it is stupid. That is obviously right, but it raises the real question why an intelligent man such as the practitioner would not expect it to be discovered when the transcript would show it to be.
[79] Original Decision at [157]
The Council submitted that the Original Tribunal’s reasoning is based on a wrong premise. The practitioner admitted to telling a lie directly to his client in the conversation with the client on 14 March 2017. There was no transcript of that conversation. It was not inevitable that the Law Society would think to check whether a similar thing might have been said by the practitioner to the AAT. As it happened, about one year later the AAT transcript was obtained and the first lie was uncovered.
In the Council’s submission, all of this shows the fundamental dishonesty on the part of the practitioner. That is the answer to the “real question” referred to by the Original Tribunal at [157] of his reasons for decision.
The practitioner’s submissions and the Council’s reply
The practitioner submitted that no error was demonstrated, let alone a material error. In his submission, the Original Tribunal dealt with this issue as the matter was charged and how the parties invited the Original Tribunal to proceed by reference to the admission made. Charge 5 (which in the Joint Submission is shown as 6) was that the practitioner did not furnish an accurate record of his conduct in relation to the matter to the Law Society, contrary to r 43.2 of the Legal Profession (Solicitors) Conduct Rules 2015. That charge treated the response given by the practitioner as an attempt to mislead the Law Society as to both what he said to his client and to the AAT. The reality was that the practitioner would have known that the terms of his client’s complaint to the Law Society reflected what he had said to the AAT.
In reply, the Council noted that particular (a) to charge 5 is only about what the practitioner claimed to have said to his client in his first response to the Law Society on 7 February 2018. Particular (b) to charge 5 is about the practitioner’s response two years later to the Law Society in which the practitioner attempted to mislead the Law Society about why he had said what he did to the AAT (i.e., it was a slip of the tongue). These are separate (although related) complaints relating to different letters written at different times in different circumstances. It is beside the point that the practitioner “would have known” that his client’s complaint to the Law Society reflected what he had said to the AAT. The client’s initial complaint to the Law Society was relevantly about what the practitioner had said to his client, not to the AAT.
Consideration and conclusion
Charge 5 was that the practitioner did not furnish an accurate record of his conduct in relation to the matter to the Law Society. The particulars referred to his responses to the Law Society in February 2018 and May 2019 about the reason why he could not attend the hearing at the AAT on 15 March 2017. The particulars referred to the practitioner’s statement to the AAT and the client.
As noted earlier, the practitioner emailed the client informing him that the AAT had refused to vacate the hearing and wrote “I am not available for personal reasons.”[80] It was after that email that he telephoned the client and told him that he could not appear because he had a long-awaited and prearranged medical appointment for his daughter.
[80] AB page 235
To the extent that the Original Tribunal reasoned that the practitioner would have thought that such a statement would not be checked when a transcript would be available, he was in error. There was no transcript of his conversation with his client. That error influenced the Original Tribunal to characterise the practitioner’s behaviour as “bizarre.”
However, to the extent that the practitioner was repeating to the client what he had told the AAT soon before writing and speaking to the client, he would have known that a transcript of the directions hearing before the AAT could (and possibly would) have been prepared.
We are not satisfied that the error in the Original Tribunal’s reasoning was a material error. The real issue is what caused the practitioner to lie again in the way described, long after the AAT directions hearing. Whether or not his behaviour was bizarre, the issue on appeal is whether that behaviour illustrated a form of misconduct that is permanent and warrants the removal of the practitioner’s name from the roll. That issue is dealt with later in these reasons for decision.

Ground 1(d) – did the lies cause detriment?

The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:
(d)wrongly finding that the lies in March 2017 to the [AAT] and the client, as well as the failure to reveal the full facts, did not in fact “cause any detriment to anyone” (J [147]) when:
(i) the lies did indeed cause detriment to the client, the opposing party, the AAT, and the public generally, as they led to the client having personally to seek, and the AAT granting, an adjournment, over the opposing party’s objection, on a fundamental misapprehension of the true facts, on 15 March 2017; and
(ii) in any event, the focus should have been on how these lies and deceptions reflected on the practitioner’s honesty.[81]
The Council’s submissions
[81] AB page 4
In the Council’s submission, the various lies that the practitioner told, and caused to be told, to the AAT and to the client, together with the strategy in which the practitioner engaged, caused profound detriment, not the least being damage to the administration of justice. In particular, the practitioner’s lies and deceptions caused the AAT to grant an adjournment on a false basis. Having refused the practitioner’s adjournment application on the afternoon before the hearing, the AAT was deflected from its course when it granted the client an adjournment at the start of the hearing on a number of false premises induced by the practitioner’s misleading comments. That deprived the opposing party (Comcare) of the opportunity of successfully opposing the adjournment, thereby avoiding the throwing away of the parties’ costs and the waste of the AAT’s resources.
Further, the Council submitted that, when wrongly concluding an absence of detriment, the Original Tribunal wholly failed to apply the principles set out in authorities on the gravity of misleading the Court[82] to the admitted facts.
The practitioner’s submissions
[82] See Original Decision at [125]-[127]
The practitioner submitted that no error by the Original Tribunal was demonstrated. In his submission, the Original Tribunal’s finding that the conduct of the practitioner “did not in fact cause detriment to anyone”[83] asserted no more than that the AAT was not deflected from its course in insisting that the matter proceed. The practitioner contended that, given the advice that had been given by counsel, it was at best ethically problematic for the practitioner to appear to further his client’s claim. The appropriate course for the practitioner to take was to explain to the client that it was open for him to obtain another opinion (which he did) and withdraw from the matter if the client insisted on the hearing proceeding, without misleading the client and the AAT in so doing (which he did not do).
[83] Original Decision at [147]
Further, the practitioner contended, the Original Tribunal made no finding that the misleading of the AAT was anything other than serious misconduct inviting consideration of being removed from the roll. The finding made by the Original Tribunal was made against the background of him:
(a)having quoted with approval relevant authority as to how serious it is for a practitioner to mislead a court or tribunal;[84] and
(b)finding in the circumstances of this case that the lie to the AAT justified a finding of professional misconduct.[85]
Consideration and conclusion
[84] Original Decision at [46], [47], [49]-[51]; See also at [125]-[127]
[85] Original Decision at [49]; See also at [176]
We conclude that the application for an adjournment was appropriate in circumstances when the client had sacked his counsel and lacked adequate legal representation. The directions hearing on 14 March 2017 originally proceeded on that basis. It was only when the AAT pursued the practitioner to explain why the hearing could not proceed on 15 March 2017 that the practitioner told lies. Those lies did not convince the AAT to grant an adjournment.
The practitioner’s further lies to the client provided part of the basis for the client’s success in securing an adjournment on 15 March 2017. To that extent, the practitioner’s lies and deceptions prompted, if not persuaded, the AAT to grant an adjournment on a false basis. In obtaining the adjournment which he sought, the client did not suffer detriment other than the cost of Dr Knox’s invoice for court attendance time reserved on 15 March 2017. However, there must have been some detriment to Comcare and, although it is more difficult to quantify, there was some waste of the AAT’s resources and an unmerited, if short term, interference with the administration of justice. Accordingly, the Original Tribunal was in error in finding that the attendance did not cause detriment to anyone. We are not satisfied that it was a material error for the purpose of the appeal.
The Original Tribunal acknowledged that the authorities state that it is serious for a practitioner to mislead a court or a tribunal. It is clear from the reasons for decision of the Original Tribunal that the Senior Member recognised the seriousness of the behaviour and found in the circumstances of this case that the lies to the AAT justified a finding of professional misconduct and a recommendation that his name be struck off the roll of legal practitioners.[86] Whether the Original Tribunal was in error in not recommending that outcome is considered later in these reasons for decision.

Ground 1(e) – the nature of the lies in the letter to the AAT

[86] Original Decision at [46], [47], [49]-[51], [125]-[127], [176]

The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:
(e)failing properly to grapple with the letter to the [AAT] of 28 April 2019 in which the practitioner absent any circumstances of urgency knowingly misled the [AAT] by falsely claiming that the statement earlier made about his daughter was a “slip of the tongue” and an “unintentional mistake”, by merely characterising it as “equally bizarre” (J [158], [180]).
The Council’s submissions
The Council quoted from the practitioner’s letter to the AAT on 28 April 2019 in which he stated:
References were made by me to ‘my daughter’ and ‘her medical appointment’ on 15 March 2017. I wish to advise that it was a slip of tongue on my part …and was an unintentional mistake.
In the Council’s submission, by making that statement the practitioner did not admit and apologise for misleading the AAT but continued the deception. As the practitioner ultimately admitted, he did not have a medical appointment for his daughter on 15 March 2017 and the only appointment in his diary was the hearing before the AAT.

The Council’s submission that there had been “an accidental failure to afford procedural fairness”[177] was made without any evidentiary basis in these proceedings or, on the evidence before us, the Original Tribunal proceedings. Accepting none-the-less for this limited purpose the correctness of the submission, we note the asserted ability of the Council to excuse itself of the consequences of its own unlawful acts, a privilege not accorded to the practitioner. Leaving this to one side, what little we know of these earlier proceedings is that the practitioner was successful and obtained a costs order on the basis that the Council failed to afford procedural fairness, that is it acted unlawfully. Whatever delay these earlier proceedings occasioned, it is hard to see that the practitioner was to blame, since it seems he was simply successfully enforcing his legal rights in relation to the proceedings.
[177] Appellant’s outline of submissions at [67]
There was evidence that the Council contributed to the delay in the LP 12 proceedings. The comments in the Original Decision were reasonable. No error was made. We do not see how this is relevant to the appeal.
The Council also alleges in ground 3(c) that the Original Tribunal “wrongly conflated (J [70]) the question of delay with the vigorous denial, and contesting by the practitioner, of the charges until at least the Tribunal’s finding of liability.”[178] It needs to be remembered that paragraph [70] of the Original Decision is principally summarising the evidence of the practitioner (see the heading before paragraph [62]). The focus of this paragraph is the impact of the LP 12 proceedings on him. It is unclear precisely where it is said the conflation takes place, but in the absence of any assistance we assume this is alleged to arise from the sentence: “Some aspect of the Council’s submission sought to assert that he was to be seen as being dishonest over a long period of time because of his resistance to owning up to the initial charge.” This is a very brief summary of some of the arguments of the Council. No basis is provided for saying it is incorrect. In our view there may be a better way of providing such a brief summary, but it is a reasonable one and reveals no error.
[178] AB page 9
The Original Tribunal then went on to make comments about the delay, apparently following up the reference to “long period of time” in relation to his resistance, which in turn was made in the context of the summary of the practitioner’s evidence in this paragraph [70] that the LP 12 matter had been hanging over his head for six years which was distressing and devastated him and his family. We do not see how it can be an error of law to discuss the delay in this context. The Original Tribunal discussed the criticisms of the Court of Appeal elsewhere.[179]
[179] Original Decision at [61]
The Original Tribunal concluded by stating that, in any event, the practitioner’s evidence as to the effect of the LP 12 proceedings on him was not challenged and was consistent with common experience. The discussion at [70] of the Original Decision was focussed on this issue. The issues raised by the Council are minor, immaterial and irrelevant to this issue. No error is established.
Ground 3(d) - was the behaviour the subject of LP 12 different from the behaviour at issue here?
Ground 3(d) was that the Original Tribunal wrongly held (at the conclusion of paragraph [160]) that the difference between the dishonesty in LP 12 and in the present case was a factor in the practitioner’s favour.
What the Original Tribunal said was that the initial dishonesty in the LP 12 matter “was very different from the conduct here.” That seems to be correct. The Council said that, as both involved deception, to that extent they are not different. With respect this is a false logic. At a high level of generality things can be the same, even though they have many significant differences. We discuss the nature of the complaint in LP 12 at [273] below, and in these proceedings at [20]-[41] above. We think that there is no error in saying that the LP 12 events and the events at issue here were very different.
The Council said that any such difference should have counted against the practitioner, or in any event, not assisted him. In the Council’s submissions this ground is simply restated without reference to evidence or further reasoning. A reference to the Solicitor’s Manual is provided.[180] This states, in summary, that where there is previous proven misconduct a tribunal may legitimately conclude that the lawyer has not learned from these previous indiscretions. It is said that this does not mean that a lawyer is repeatedly disciplined for the same misconduct, but that findings of misconduct must be viewed in the context of the earlier findings, especially those of a similar nature. However, it is later said that the fact that the subsequent misconduct is different in nature says little in the lawyer’s favour, especially where it is serious and persistent and reveals that the previous penalties had little deterrent effect. This can all be accepted, but it clearly gave the Original Tribunal significant room to exercise discretionary judgment, as he did in this case.
[180] Solicitor’s Manual at [30,070.10]
In paragraph [160], the Original Tribunal drew on a number of other factors as to why the LP 12 is of limited assistance in this matter. First, the conduct in issue in LP 12 occurred many years ago. This is correct. Second, there was delay in resolution of the complaint. This is also correct. Third, the Original Tribunal found unpersuasive the Council’s submission that the practitioner’s action at issue in LP 12 “was turned into some persistent course of conduct because it was fought so hard by the practitioner”. We have also found the position of the Council to be unpersuasive, indeed inappropriate and unfair, and the position of the Original Tribunal to be reasonable and involving no error. These factors support the position of the Original Tribunal on the relevant issue, in addition to the finding that the “initial dishonesty” in LP 12 was very different from the conduct here. Further, we note again that the relevant issue here is whether the practitioner’s mental illness affected his conduct and supports a penalty of suspension with conditions rather than removal from the roll.
In our view it was open to the Original Tribunal to find that the initial dishonesty in LP 12 was very different from the dishonesty in this case. Of course the Council and others may take a different view. It was also open to the Original Tribunal to take the view that the dishonesty in LP 12 did not compel removal from the roll here. Again the Council and others may take a different view. But no material error is involved in the Original Tribunal’s findings.
Ground 3(e)(i) - were the relevant fees in the LP 12 matter reasonable but for the agreement?
In ground 3(e) it is said that the Original Tribunal made two factual errors about LP 12. The first was the comment in paragraph [56], after stating the amount of money involved was not large, that the amount would have been “reasonable but for an agreement to give a discount.” In summary terms, drawn from the various LP 12 decisions, several claims were made for compensation by a client of the practitioner. Some of them were transferred from Firm B to the practitioner’s firm, called ‘Firm A’, where the practitioner took them over. The claims were settled and the legal fees were said by the practitioner to be about $47,000 including all disbursements and firm B’s fees, for claims which were settled in total for about $352,000. The client sought a reduction of the legal fees of $5,000, in particular in relation to the fees for firm B, and agreed to pay an amount of $42,000. The practitioner in fact disbursed about $47,000 as legal fees. This was done by various transactions in August and September 2011 and when the client noticed that the fees amount exceeded $42,000, he complained to the practitioner in October 2011.[181]
[181] LP 12 misconduct decision at [6]-[17]; LP 12 Supreme Court decision at [84]
In the disciplinary proceedings, there was no allegation that the fees of $47,000 were unreasonable. The allegations were rather that they were disbursed contrary to the client’s instructions and amounted to a misappropriation from the client of about $5,000. The Original Tribunal could have been more precise with the summary of the situation, and perhaps said that there was no allegation that the fees were unreasonable, rather the allegation was that the agreement as to fees had not been complied with. But we do not think the less precise summary formulation used amounts to a material error.
Ground 3(e)(ii) - was there deception in the LP 12 conduct?
The second alleged error was said to be the Original Tribunal’s statement that there was “no deception involved as the client was under no misapprehension that it had happened” (at paragraph [56]). The Council argued that the practitioner had effected the transfer without the client’s knowledge or consent, and the client only discovered the excessive transfer after it had happened. This is correct, as we have set out above.
The Original Tribunal stated that it was conceded by the practitioner that the conduct was dishonest, and he was dealt with for that matter. But deception is different, and is generally defined as “misleading by deliberate misrepresentation.”[182] As the Council admits, the practitioner told his client about the disbursements shortly after they were made, and the client complained. The allegations were that the practitioner disbursed funds contrary to the client’s instructions which amounted to a misappropriation from the client, but there was no allegation that there was deception about the payment. The Original Tribunal noted that it was not clear what the practitioner’s state of mind was, but that he had a “complicated argument about what was the [costs] agreement”, an argument which was not accepted by the tribunal.[183]
[182] Lexis Nexis Concise Australian Legal Dictionary (4^th edition, 2011)
[183] Original Decision at [55], footnote 11; see also Council of the Law Society of the ACT v LP 12 [2019] ACAT 68 at [27]-[32]
Again the Original Tribunal could have said more and perhaps been more precise. But we have concluded that there was no material error in what he said.

Ground 4 - character evidence

Ground 4 is that the Original Tribunal erred (at [175]) by failing to heed and apply the long line of authority that character evidence carries far less weight where the facts involve repeated dishonesty, as they did here.
The Council’s submissions
The Council simply restated the Ground that the Original Tribunal failed to apply the long line of authority that character evidence carries less weight where the facts involve repeated dishonesty.[184]
The practitioner’s submissions and reply
[184] Council’s submissions at paragraph 73
The practitioner argued it was a matter of weight and therefore had little relevance to an appeal against a discretionary decision. References are a matter relevant to the determination of whether the practitioner is permanently unfit to practise.[185]
[185] Practitioner’s submissions at paragraph 47
The Council argued in reply that this was a matter of principle, not a mere matter of weight.[186]
Consideration and conclusion
[186] Council’s reply at paragraph 29
The Original Tribunal summarised the references provided in support of the practitioner at paragraphs [120] and [159] of the Original Decision (see also at [79]). He then considered the evidence that the practitioner had a mental illness, which was said to be reactive and not permanent (paragraphs [165]-[173]). He then formulated the issue as whether the practitioner had permanent character flaws that made him unfit to practise; stated that he did not think he was so fit at the time of the Original Tribunal decision; but then asked “is that a permanent situation” (at [174]). It is in this context at paragraph [175] that he said that, whilst the role of character evidence and other subjective factors (which are not specified) cannot override the need to protect the public and show the standard that the profession should aspire to, “they can where the objective facts assist in assessing the character and the flaws”. He noted that he “was particularly assisted” by the letter from Mr McLean who had extensive history as a diplomat and had known the practitioner since 1989, before he came to Australia, in a professional capacity. He therefore had experience of the practitioner before the onset of his mental illness. This reference provided support for some of the comments about the practitioner’s intelligence and strength character.[187] The Original Tribunal also noted here the evidence of the practitioner’s work for his church and other deserving causes.
[187] Letter from Murray McLean dated 16 January 2020 at AB 305-308; see Original Decision at [74], [159]
The Original Tribunal then went on to note at paragraph [179] that the practitioner had shown significant insight in handing back his practising certificate, and then discussed why he thought that stress and depression explained but did not excuse his actions.
In our view, the Original Tribunal considered various factors in deciding what the appropriate penalty should be. In particular, the Original Tribunal considered whether the practitioner’s conduct was the result of permanent character flaws and the practitioner should therefore be struck off, or whether his conduct was affected by a mental illness which was not permanent and a lesser penalty should be provided.
We accept that there is a principle that “where the misconduct is more serious, and especially where it involved repeated dishonesty, character evidence carries far less weight”.[188] But the principle contains a significant initial requirement, and even then does not suggest that no weight should be given to references. It is true that references are of more use when the referee has had dealings in a professional context and understands the practise of law.[189] Here, there were references from the practitioner’s colleague, other lawyers, and Mr Maclean.
[188] Solicitors Manual at [33,090.15]
[189] Solicitors Manual at [33,090.20]
There is also the principle that in general removal from the roll is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration.[190] It is clear that the Original Tribunal principally relied on the evidence of Professor Stephens, the practitioner himself, and his work colleague, on this issue. But he also had regard to referees in determining whether the conduct was the result of permanent flaws or mental illness. Indeed, because of the nature of mental illness, and that sometimes as here expert evidence of the practitioner’s mental state at the time he committed the misconduct is not available, referees can provide some relevant evidence of his condition before the illness. This is exactly what his work colleague and Mr Maclean did. In our view this was reasonable and in accordance with the legal principles noted.
[190] Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [149]
We think that the Council’s arguments have more strength in relation to the reference by the Original Tribunal at paragraph [175] to the considerable undisputed evidence of the commendable good work the practitioner does for his church and other deserving causes. We do not see how this supports the practitioner on the relevant issue of his mental illness and its effect. But even so, all that the Original Tribunal did was note the evidence. There is no basis for thinking this was determinative in any way, or that these references were given any more than minimal weight.
No material error is made out in relation to the Original Tribunal’s use of character evidence.

Ground 5 – should the practitioner be removed from the roll?

The Original Tribunal erred, including as a consequence of the errors set out in Grounds 1 to 4, in failing to find that:
(a)the practitioner was, in light of his admitted conduct in this matter and his disciplinary history, probably permanently or indefinitely unfit to practise; and
(b)a recommendation for the removal of his name from the roll should accordingly be made.
The Council’s submissions
Rather than constituting a separate ground of appeal, Ground 5 draws together the previous grounds of appeal in order to support the Council’s submissions that the practitioner’s name should be removed from the roll. In summary, the Council submitted that the Original Tribunal:
(a)failed to make a proper assessment of the sustained and dishonest nature of the conduct engaged in by the practitioner;
(b)misapplied the psychological evidence;
(c)mischaracterised the practitioner’s disciplinary history; and
(d)failed to apply the principle that character evidence is of far less weight where dishonesty is involved.
On that basis, the Council submitted that this Appeal Tribunal should conclude that there is no proven explanation for the practitioner’s conduct other than a fundamental character flaw of dishonesty. Accordingly, the appeal should be allowed with costs. The lesser order of effective suspension should be set aside and substituted by a recommendation pursuant to section 425(3)(a) of the Act that the name of the practitioner be removed from the roll.
The practitioner’s submissions
The practitioner adhered to his submissions made in relation to the specific grounds of appeal.
The practitioner noted that the original hearing proceeded by reference to agreed facts on the basis of which the Original Tribunal was invited to make the finding that the conduct considered globally constituted professional misconduct. The live issue at the hearing was whether the admitted dishonesty, considered in the context of the antecedents of the practitioner and the evidence of him and Professor Stevens as to his history of depression, warranted a finding that he was probably permanently or indefinitely unfit to practise, thus justifying the removal of his name from the roll.
In relation to the appropriate order, the practitioner submitted that the outcome of the proceedings before the Original Tribunal was within a given range and was a legitimate and reasonable answer to the question asked of the Original Tribunal. In his submission, it would be wrong for the Appeal Tribunal to set aside the decision at first instance simply because another outcome may have been open.
Further, the practitioner noted that the orders made by the Original Tribunal placed very substantial restrictions on his right to practise. He is currently 56 years old. He will not be entitled to an unrestricted practising certificate in the ACT until June 2025 unless, before that date, the Council is of the view that he is fit to hold such a certificate. His right to apply for a restricted certificate was curtailed by time (1 July 2021) and the grant of such certificate was subject to further conditions addressed substantially at ensuring his psychological well-being.
Consideration and conclusion
For the reasons set out above, this Appeal Tribunal has concluded that no material error was made by the Original Tribunal in relation to any of the Grounds of Appeal in this case. Consequently, Ground 5 is not made out.

Factors to consider in exercise of discretion

As noted earlier, the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner.[191] The issue in cases such as this is what are appropriate orders to achieve that outcome. In some cases, that is the removal of a practitioner’s name from the roll.
[191] See [75]-[79] above
As the Original Tribunal recognised, the relevant general principles in deciding a statutory application for removal were set out by the Full Court of the ACT Supreme Court in Council of the Law Society of the Australian Capital Territory v Davey,[192] which quoted from the Court’s judgment in Council of the Law Society of the ACT v Bandarage.[193] The Original Tribunal also referred to what the Court said in the earlier judgment in Law Society of the ACT v Powrie.[194]
[192] Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2 at [13]
[193] Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [137]
[194] Law Society of the ACT v Powrie [2017] ACTSCFC 4 at [88]

The Original Tribunal quoted the passages in full.[195] We do not need to do so again. It is sufficient to note the following salient propositions:
[195] Original Decision at [46], [123], [125]
(a)Under the Act, if the Tribunal finds a practitioner guilty of professional misconduct, the Tribunal may recommend that the practitioner’s name be removed.
(b)A finding of professional misconduct does not, of itself, demand an order removing a practitioner’s name from the roll.
(c)Removal from the roll is reserved for the most serious cases of wrong conduct, where the character and conduct of the practitioner is assessed to be inconsistent with the privileges of further practise.
(d)In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration.
(e)The personal attributes of a practitioner are integral to an assessment of whether the person is a fit and proper person to practise law.
(f)Honesty and integrity are important to the practise of the law for the interests of clients, fellow practitioners, the judiciary and the public.
(g)A willingness to engage in dishonest conduct often compels a finding of unfitness to practise.
(h)A finding that a practitioner knowingly misled a court (for example, in his application for an adjournment of proceedings before that court) is one of the most serious offences that an advocate or litigator can commit.
(i)Persistent misconduct will ordinarily justify a finding of unfitness to practise.
(j)A penalty of suspension is usually inappropriate if there is a finding of unfitness to practise.
(k)Insight into previous wrongdoing is another personal attribute that is important to an assessment of whether a person is a fit and proper person to practise law (and a legal practitioner’s failure to appreciate the gravity of misconduct may be indicative of unfitness to practise).
(l)It is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.
The extent to which some or all of those propositions apply in a particular case will be influenced by the circumstances of that case. In the present proceedings, we are satisfied that the Original Tribunal took into account the relevant propositions and gave appropriate weight to evidence in relation to them.
Having concluded that the Original Tribunal made no material errors in the reasons for the Original Decision, and having considered the propositions set out above as they apply in the present case, this Appeal Tribunal is satisfied that the orders made by the Original Tribunal were supported by the evidence and did not involve an erroneous exercise of discretion. Consequently, we are not satisfied that the sanctions put in place by the Original Tribunal in relation to the practitioner should be set aside, varied or replaced.

Costs

As noted earlier, the Council sought an order that the practitioner pay the Council’s costs of the appeal. At the conclusion of the hearing, counsel for the practitioner sought to be heard on the question of costs once the decision of this Appeal Tribunal was released.
We are satisfied that it is appropriate for each party to be given an opportunity to make submissions in relation to an order for costs of the appeal proceedings if they wish to do so. Accordingly, we will order that each party has 14 days within which to provide to the Tribunal and the other party any submissions it wishes to make about whether the Appeal Tribunal should make an order for costs.

Orders

For the reasons set out above, the Appeal Tribunal orders that:
(a)The appeal be dismissed.
(b)The parties may within 14 days make submissions in writing as to whether any other orders, including orders as to costs, should be made.
………………………………..
President G Neate AM
For and on behalf of the Tribunal

Date(s) of hearing	14 September 2020
Counsel for the Applicant:	Mr N Beaumont SC
Solicitors for the Applicant:	McInnes Wilson Lawyers
Counsel for the Respondent:	Mr K Archer
Solicitors for the Respondent:	Capital Lawyers