Council of the Law Society of the Australian Capital Territory v R (a pseudonym) (Occupational Discipline)
[2025] ACAT 8
•12 February 2025
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY v R (a pseudonym) (Occupational Discipline) [2025] ACAT 8
OR 10/2024
Catchwords: OCCUPATIONAL DISCIPLINE – (LEGAL PRACTITIONERS) – whether legal practitioner engaged in professional misconduct or unsatisfactory professional conduct when he entered into a sexual relationship with an employee, thereby bringing the profession into disrepute – whether the employee was suffering from a psychological impairment at the time of the sexual relationship, to the legal practitioner’s knowledge – whether the employee was vulnerable to the legal practitioner’s knowledge - whether the legal practitioner engaged in professional misconduct or unsatisfactory professional conduct when he terminated the employment of the employee after the sexual relationship ended, thereby bringing the profession into disrepute
CIVIL PROCEDURE – power to make pseudonym orders – s 39 of the ACT Civil and Administrative Tribunal Act does not expressly provide for pseudonym orders – the tribunal has implied power to make pseudonym orders
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 39
Civil and Administrative Tribunal Act 2013 No 2 (NSW) s 64
Evidence Act 2011 ss 55, 117, 119, 122, 140(2)
Evidence (Miscellaneous Provisions) Act 1991 ss 111(1)(b), 111(2)(c)
Legal Profession Act 2006 ss 8, 386, 387, 419, 423A
Subordinate
Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 (ACT) r 5
Cases cited:Applicant 4102023 v ActewAGL Retail (Energy & Water) [2024] ACAT 61
Attorney General for New South Wales v Gatsby [2018] NSWCA 254
Briginshaw v Briginshaw (1938) 60 CLR 336
Browne v Dunn (1894) 6 R 67
Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315
Commissioner of NSW Police v Deputy State Coroner for NSW [2021] NSWSC 398
Commonwealth of Australia v Kupang Resources Pty Ltd (ACN 098 773 785) [2022] NSWCA 77
Council of Law Society of Australian Capital Territory v LP12 [2018] ACTCA 60
Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46
Forensic Mental Health Network [2021] NSWCA 94
Fox v Percy [2003] HCA 22
Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364
JKL by his tutor Jennifer Thompson v Justice Health and
John Fairfax Group Pty Ltd (receivers and managers apptd) & Anor v Local Court of NSW & Ors (1991) 26 NSWLR 131
Mann v Carnell [1999] HCA 66
Monday (a pseudonym) v R [2022] ACTCA 25
Nguyen v Cosmopolitan Homes [2008] NSWCA 246
R v Gittany (No 3) [2013] NSWSC 1670
R v Smith (1996) 86 A Crim R 308
Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47
Re Robb (1996) 134 FLR 294
Witness v Marsden & Anor (2000) 49 NSWLR 429
XYZ v State of Victoria & Anor [2016] VSC 339
Tribunal:Presidential Member Dr J Lucy
Acting Presidential Member G Curtin SC
Date of Orders: 12 February 2025
Date of Reasons for Decision: 12 February 2025
Date of Publication: 19 February 2025
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) OR 10/2024BETWEEN:
COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
ApplicantAND:
R (a pseudonym)
RespondentTRIBUNAL:Presidential Member Dr J Lucy
Acting Presidential Member G Curtin SC
DATE:12 February 2025
ORDER
The Tribunal orders that:
1.The application is dismissed.
2.Until further order, the persons identified in the Table at [22] of these reasons are to be referred to only by the pseudonyms set out in that Table.
3.Until further order, the disclosure by publication or otherwise of information or particulars that might enable the persons in that Table to be identified or that would reveal their identity, other than by use of their pseudonyms, is prohibited.
4.If any party seeks costs of the application, any submissions of no more than three pages and evidence in support of the application are to be filed and served within 14 days of the date of these reasons.
5.Any submissions of no more than three pages and evidence in opposition to a costs application are to be filed and served within 28 days of the date of these reasons.
6.Any submissions in reply of no more than two pages are to be filed and served within 35 days of the date of these reasons.
7.Any submissions of no more than one page opposing the determination of any costs application on the papers should accompany the submissions referred to in the orders above.
……………………………………
Presidential Member Dr J Lucy
For and on behalf of the Tribunal
REASONS FOR DECISION
Introduction
1.In these proceedings, the applicant (the Council) brought two charges against the respondent pursuant to section 419 of the Legal Profession Act 2006 (the LPA) arising out of the entering into of a sexual relationship between the respondent and an employee of his firm (the complainant), and the employee’s subsequent termination.
2.In short, the allegations were that the complainant was, to the knowledge of the respondent at the time the sexual relationship commenced, and for the duration of that sexual relationship, suffering from a psychological impairment and was therefore psychologically vulnerable because of that condition. She was also an employee and there was therefore a power imbalance between them.
3.The essence of the Council’s case was that the respondent was guilty of professional misconduct, or alternatively, was guilty of unsatisfactory professional conduct, by entering into that sexual relationship with the complainant (Charge 1) and was similarly guilty in terminating the complainant’s conduct about eight months later (Charge 2).
4.For the reasons set out below, we are not persuaded that the Council has proved either of the two charges and the charges are therefore dismissed.
The pseudonym orders
5.Because the allegations involve an intimate affair, and both the complainant and the respondent have spouses and children, justice is not served by identifying any of the persons involved. Accordingly, we have made pseudonym orders to that effect.
6.We are aware of several earlier cases in which the Tribunal made pseudonym orders on the basis that such was authorised by section 39 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). In no decision that we are aware of has the section been examined in any detail. Rather, each decision simply stated that section 39 granted that power. In a recent case,[1] one of the members of the Tribunal (as presently constituted) found that the ACT Civil and Administrative Tribunal (the ACAT) has an implied incidental power to make orders that a party be referred to by a pseudonym and that there be no access to the file or to any records of proceeding. However, the reasons for that conclusion were not explored.
[1] Applicant 4102023 v ActewAGL Retail (Energy & Water) [2024] ACAT 61 at [42]
7.The terms of section 39 do not make express provision for such orders. In our view, all that the text of section 39 does is to provide for private hearings (i.e. a closed hearing), prohibit or restrict the publication of evidence, or prohibit or restrict the disclosure of evidence given at a hearing. Neither the Explanatory Statement nor the Presentation Speech say anything on the topic.
8.In terms, section 39 contains no provision for prohibiting the publication of people’s names. This is in contrast to, for example, section 111(1)(b) and (2)(c) of the Evidence (Miscellaneous Provisions) Act 1991. Section 111 directly addresses the making of orders prohibiting the publication of names of parties and witnesses. Those provisions, in their textual context, are as follows:
111 Prohibition of publication of evidence etc
(1) This section applies if a court considers that—
(a)the publication of evidence given, or intended to be given, in a proceeding is likely to prejudice the administration of justice; or
(b)in the interests of the administration of justice the names of any of the following people should not be published:
(i)a party to the proceeding;
(ii)a witness, or intended witness, in the proceeding.
(2) The court may, at any time during or after the hearing of the proceeding, make an order forbidding the publication of—
(a)the evidence or a stated part of the evidence; or
(b)a report of the evidence; or
(c)the name of the party or witness.
9.Section 39 may also be contrasted with the Civil and Administrative Tribunal Act 2013 No 2 (NSW), in which an express power to make pseudonym orders is provided in section 64(1). That section says:
If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders:
(a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal)…
10.Nevertheless, we are of the view that the Tribunal has the implied power to make pseudonym orders.
11.In XYZ v State of Victoria & Anor [2016] VSC 339 (XYZ), T Forrest J said:
[18] At common law, the power to make pseudonym orders is well established. One category of case in which suppression, closed court and pseudonym orders are generally made to prevent prejudice to the administration of justice are those where it is desirable to protect the safety of persons who are to be litigants or witnesses in those proceedings. In BK v ADB, Nettle J accepted that pseudonym orders may be made in -
a case where disclosure of the identity of the plaintiffs might be sufficient to deflect the plaintiffs from prosecuting their case; which is to say they might reasonably be deterred from bringing proceedings unless public disclosure of their identities could be prevented.
[19] At common law, pseudonym orders in particular have been made in the following categories of cases:
(a) when the plaintiff would reasonably be deterred from bringing proceedings without a pseudonym order;
(b) when the defendant would reasonably be deterred from defending proceedings without a pseudonym order;
(c) cases involving sexual offences; and
(d) cases involving children.
[20] It is convenient to refer to the succinct distillation of principle by J Forrest J in ABC v D1 & Ors Ex Parte The Herald Sun & Weekly Times Ltd:
First, that the principal rule is that judicial hearings should take place in open court: publicly and in open view, with no restriction on reporting. This is a fundamental precept underpinning the administration of justice.
Second, that in certain circumstances the administration of justice requires a qualification of the general rule. There will be circumstances where modifications of the general rule are necessarily made to ensure that the administration of justice is not frustrated. These exceptions are many and varied and cannot be prescriptively identified.
Third, that the test to be applied by the court in making a pseudonym order is, to use the words of the statute, whether it is necessary to do so in order not to prejudice the administration of justice.
Fourth, that a court, in determining whether to make a pseudonym order, is entitled to take into account the individual considerations affecting the person seeking the order and balance those against the principal rule of open justice in determining whether the administration of justice warrants the making of the order. Relevant to these individual considerations is whether there is a real risk of the party or witness suffering psychological harm as a result of publication of his or her name or the names of other parties. Also relevant is the real risk of a party not proceeding with an action in the event that he or she or another person is identified.
Fifth, that in certain circumstances, particularly those involving sexual assaults, it may be appropriate not only to suppress the name of the plaintiff but also to suppress the name of the defendant or defendants.
Sixth, that in determining whether to make such an order, a court is entitled to take into account the fact that there will still be a reporting of the proceeding and that the hearing itself will be conducted in open court, subject to the restrictions imposed by the pseudonym order.
Seventh, in determining whether it is necessary to make such an order, usually the proofs must be cogent and will not be satisfied by mere belief on the part of a party that the order is necessary. However, in certain cases a court can, in a practical sense, act on its own experience and draw appropriate inferences.
[21] Finally, that genuinely held fears of psychological harm upon disclosure of identity will be a relevant factor for the court’s consideration is also evident from the cases. In TTT and JJJ v State of Victoria, Cavanough J stated:
Even where an applicant for a pseudonym order cites a fear of psychological harm, the success of the application will not always depend on establishing objectively that disclosure of the applicant’s identity would or might in fact cause the applicant psychological harm. Of course, if such a thing were established, it might provide a good independent ground for a pseudonym order. Further or alternatively, it might confirm the reasonableness of the fear expressed by or on behalf of the applicant. However, if the court is satisfied that a fear of this kind is actually and reasonably held, and that the fear might reasonably deter the applicant from proceeding to invoke the jurisdiction of the court, a pseudonym order might be warranted on this basis alone.
[Citations omitted]
12.The authorities cited by his Honour in support of the proposition set out in the first sentence of [189] of XYZ, namely that the common law authorises pseudonym orders, were Witness v Marsden & Anor (2000) 49 NSWLR 429; R v Smith (1996) 86 A Crim R 308; Raybos Australia Pty Ltd v Jones (1985) 2 NSWLR 47; and John Fairfax Group Pty Ltd (receivers and managers apptd) & Anor v Local Court of NSW & Ors (1991) 26 NSWLR 131.
13.The last-mentioned case concerned the question whether the Local Court of New South Wales had implied (as distinct from inherent) power to make pseudonym orders in a committal hearing. The majority of the Court of Appeal held that they did. In that case, Mahoney JA, (with whom Hope AJA agreed) noted at 159.F that the power to make orders for concealment of the identity of persons had been exercised by superior courts in various circumstances. His Honour then noted that inferior courts were creatures of statute (as is the Tribunal) and thus did not have inherent powers. But statutory courts have implied powers, being those necessary to enable them to act effectively within their jurisdiction (see at 160.E-F). That is, a statutory court has implied authority to uphold, protect and fulfil the judicial function by ensuring that justice is administered, both in a particular case and as a continuing process, according to law and in an effective manner.
14.His Honour held that the Local Court had implied power to make a pseudonym order if the making of the order was necessary to secure the proper administration of justice.
15.As to what was necessary to secure the proper administration of justice, his Honour said:
This leads to the consideration of what is meant by “necessary to secure the proper administration of justice” in this context. The phrase does not mean that if the relevant order is not made, the proceedings will not be able to continue. Plainly they can. If the name of an informer is not hidden under a pseudonym, the proceeding will go on: at least, the instant proceeding will. And if the name of a security officer is revealed, the administration of justice or of the country will not collapse. The basis of the implication is that if the kind of order proposed is not made, the result will be — or at least will be assumed to be — that particular consequences will flow, that those consequences are unacceptable, and that therefore the power to make orders which will prevent them is to be implied as necessary to the proper function of the court. The kinds of consequences that, in this sense, will be seen as unacceptable may be gauged by those involved in the cases in which statutory courts have been accepted as having restrictive powers. Thus, there will be hardship on the informer or the security officer or the blackmail victim; the future supply of information from such persons will end or will be impeded; and it will be more difficult to obtain from such persons the evidence necessary to bring offenders before the courts and deal with them. It is not necessary to attempt to state exhaustively the considerations relevant in this regard: it is to considerations of this kind or of an analogous kind on which the principle stated by McHugh JA is based.
16.That passage was adopted, with apparent approval, by the majority in Monday (a pseudonym) v R [2022] ACTCA 25.
17.The Tribunal is not a court but, in our view, the same principles apply. So much was said in JKL by his tutor Jennifer Thompson v Justice Health and Forensic Mental Health Network [2021] NSWCA 94 per Bell P, with whom Macfarlan and Meagher JJA agreed, at [54]. In that case, the question was whether the Mental Health Tribunal had certain implied powers. Our conclusion as to the existence of this implied power is supported by the fact that the Tribunal has express power to direct that proceedings be conducted in private, and that publication of evidence may be prohibited. Against that background a pseudonym power may be readily implied.
18.The provision of the express powers in section 39 of the ACAT Act does not deny or exclude the existence of other incidental powers to limit the application of the open justice principle, where the Tribunal forms the view that the exercise of such a power is necessary in the interests of justice.[2] Parliament’s conferral upon the Tribunal of an express power to hold private hearings and prohibit the publication of evidence is not consistent with a legislative intention to withhold from the Tribunal an implied power to act effectively, including by the making of pseudonym orders, to ensure that the administration of justice is not frustrated.
[2] A similar conclusion was reached by the NSW Supreme Court in relation to the powers of the NSW Coroner in Commissioner of NSW Police v Deputy State Coroner for NSW [2021] NSWSC 398 at [78]
19.This implied power to make pseudonym orders provides additional protection to the limited protection provided by section 423A of the LPA, which prohibits the publication of any account or report of an application made by the Council, and which would disclose the identity of the respondent, or allow the identity of the respondent to be worked out.
20.The implied power to make pseudonym orders should be exercised consistently with the common law principles set out in the authorities referred to above, as modified or extended by the considerations set out in section 39(5) of the ACAT Act.
21.We are satisfied that pseudonym orders should be made in relation to the names of the persons involved to prevent harm (or further harm) to the complainant, the respondent, and particularly to their spouses and children.
22.The anonymised names of the persons referred to in these reasons, their respective roles in the subject events, and their pseudonyms, are described in the following table:
The respondent
R or the respondent
The respondent’s wife
Mrs R
The complainant
Ms C
The complainant’s husband
Mr C
A paralegal employed at the respondent’s firm in the period 2016-2018
P
The charges and the ambit of the factual disputes
23.Two charges were brought against the respondent. Both were based on rule 5 of the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules). Rule 5 said:
5 Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.
24.Charge 1 was:
By having a sexual relationship with Ms C between November 2020 and June 2021, the respondent engaged in conduct which is likely to a material degree to bring the profession into disrepute in breach of rule 5.
Particulars
(a) The respondent initiated and maintained a sexual relationship with Ms C between November 2020 and June 2021.
(b) During the sexual relationship, the respondent knew that:
(i)Ms C was diagnosed with post-traumatic stress disorder with secondary depression and anxiety;
(ii)as a result of her psychological impairment, Ms C was vulnerable;
(iii)Ms C was his employee; and
(iv)there was a power imbalance between himself and Ms C.
25.The Council’s case was that Charge 1, if proved, amounted to professional misconduct or, alternatively, unprofessional conduct as per sections 386 and 387 of the LPA, or alternatively, at common law.
26.It was implicit in Charge 1, as accepted by the Council, that it needed to prove that Ms C was suffering from the psychological impairment at the time of the affair, and that she was vulnerable (at the time of the affair) by reason of that impairment, to the respondent’s knowledge. Those temporal and causative aspects of the charges are central to the decision in this case.
27.The respondent admitted having a sexual relationship with Ms C. He admitted that their intimate relationship commenced in November 2020. He said that that intimate relationship ended in May, rather than June 2021. As explained later, we do not consider there to be any significance whether the intimate relationship ended in May or June 2021.
28.The respondent admitted that he had known in 2014–2016 that Ms C had been diagnosed with post-traumatic stress disorder with secondary depression and anxiety, but said that any psychological impairment had not been apparent, as a vulnerability or otherwise, for many years subsequently. He denied that Ms C presented as vulnerable at the time of their affair.
29.The respondent admitted that Ms C had been his employee and that there “is a power imbalance between employers and employees”.
30.Thus, the issues for determination in relation to Charge 1 can be summarised as follows:
(a)Did Ms C suffer from post-traumatic stress disorder with secondary depression and anxiety (collectively, the psychological impairment) at the time of, including in the short time leading up to the commencement of, their affair, and was the respondent aware of that fact?
(b)If so, was Ms C vulnerable by reason of that impairment, and was the respondent aware of that fact?
(c)If so, did that vulnerability, or the power imbalance, or both, play any role in the commencement and continuation of the affair, or is it otherwise relevant to the characterisation of the respondent’s conduct?
(d)If so, was there a breach of rule 5?
31.In our opinion, the evidence did not provide a basis for affirmative answers to issues (a) and (b) above. It follows that questions (c) and (d) fell away, given the employer/employee power imbalance issue was not actively pursued in the hearing and lacked any evidence as to playing a causative effect in the commencement of the affair. Charge 1 should accordingly be dismissed.
32.Charge 2 as it appeared in the Application was:
By terminating Ms C’s employment on 19 July 2021 the respondent engaged in conduct which is likely to a material degree to bring the profession into disrepute in breach of rule 5.
Particulars
(a) The respondent initiated and maintained a sexual relationship with Ms C between November 2020 and June 2021.
(b) The respondent terminated Ms C’s employment on 19 July 2021 due to his sexual relationship with Ms C “… to clear the blurred lines”.
33.As we read that charge, the allegation concerned the termination simpliciter of Ms C’s employment. In final oral submissions, the Council said that Charge 2 was to be read differently, namely that by terminating Ms C’s employment on 19 July 2021:
… the respondent engaged in conduct which is likely to a material degree to bring the profession into disrepute by not acknowledging that the sexual relationship was a reason that he terminated Ms [C] to clear the blurred lines.[3]
[3] Transcript dated 15 November 2024, page 372, lines 1–6
34.The reference to “blurred lines” is a reference to that expression as it was used by the complainant and the respondent at the relevant time, but the significance of the reformulation of Charge 2 is that it did not concern the termination of Ms C’s employment per se but was rather concerned with the manner in which her employment was terminated, i.e., terminating without acknowledging certain matters. As further explained by the Council in closing submissions at the hearing:
Charge 2, Members, deals with the termination. The conduct, it is submitted, is professional misconduct because the termination was made in circumstances where the respondent did not acknowledge he was terminating Ms [C] because of at least in part the sexual relationship. The decent thing to do, and the counterfactual which the tribunal ought to consider is that the respondent should have acknowledged the sexual relationship was a reason as to why Ms [C’s] employment should end.[4]
[4] Transcript dated 15 November 2024, page 380, lines 8–14
35.In our view, this reformulation of Charge 2 was, contrary to the Council’s submissions, not within the pleaded charge. No application was made seeking to amend Charge 2 and thus we have considered it as pleaded and as we understood that pleading to convey.
36.The applicant’s counsel relied upon the judgment of Murrell CJ and Burns J in Council of Law Society of Australian Capital Territory v LP12 [2018] ACTCA 60 at [58], for the proposition that the Tribunal is not restricted by the precise allegations as formulated.[5] It is worth setting out that paragraph of their Honours’ judgment in full:
Legal practitioners are entitled to know the particulars of any complaint against them so that they may inform and assist the body conducting the disciplinary inquiry. Sometimes such assistance will result in the complaint being dismissed; at other times it may not. Although cast as disciplinary proceedings, complaints are primarily brought and determined in the public interest. In considering complaints, neither the Court nor the ACAT is restricted to considering the precise allegation as formulated: Re Robb (1996) 134 FLR 294 at 297 per Miles CJ, Gallop and Higgins JJ If the respondent had adopted a proper approach to the present complaint, it would have been determined long ago.
[5] Transcript dated 15 November 2024, page 370, lines 21–25
37.Re Robb (1996) 134 FLR 294 is a decision of the ACT Supreme Court. In that case, Miles CJ, Gallop and Higgins JJ said at 297:
Whether or not the proceedings have been brought by the Law Society as in the present case, the Court is not restricted to considering the precise allegations as formulated. If the evidence is capable of establishing misconduct other than that alleged, the Court must in the discharge of its duty consider the questions that arise relating to possible misconduct, so long as the practitioner is on notice of the nature of the case and the case proceeds to a determination of those questions without unfairness to the practitioner. (emphasis added)
38.We consider that giving leave to the applicant to make the proposed changes to the nature of the case, in the course of making final submissions, would be procedurally unfair to the respondent. We have accordingly refused to grant such leave.
39.The respondent admitted that he terminated Ms C’s employment on 19 July 2021 but did so because the ongoing employment relationship was untenable in the context of Ms C’s conduct in the office. It was not part of the applicant’s case that the termination was unlawful.
40.As explained in a little more detail later in these reasons, we are satisfied that by May or June 2021, the employment of Ms C at the legal practice was simply untenable, a position not in contest between the parties. Further, the respondent had provided Ms C with an opportunity to show why her employment should not be terminated, and she conceded that her conduct at work had been “unacceptable.”[6] Given those circumstances, no answer was provided by the Council as to what other course of action was open to the respondent. Therefore, in our view, it was neither unprofessional conduct nor professional misconduct to terminate Ms C’s employment at that time.
[6] Letter from Ms C dated 12 July 2021 at [3]
41.In the absence of any reasonable alternative course of action, it could not be said that the practitioner’s termination of Ms C’s employment was conduct that fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent legal practitioner, or would justify a finding that the practitioner was not a fit and proper person to engage in legal practice.
Approach to fact finding
42.Both parties accepted that the relevant standard of proof to apply was that referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 (Briginshaw), namely that the seriousness of the allegations made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the Tribunal. That standard of proof is now enshrined in section 140(2) of the Evidence Act 2011.[7]
[7] Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 per Sackville AJA at [99] (Ward and Gleeson JJA agreeing).
43.In terms of fact finding, we have applied the principles set out in Commissioner for Fair Trading v Bowes Street Developments Pty Ltd (No 3) [2024] ACTSC 315 in which the following was said:
[651] In making my findings of fact and assessing credit, I bear in mind the dangers of too readily drawing conclusions about truthfulness and reliability solely or mainly from the appearance of the witnesses when giving their oral evidence. I will, as far as possible, reason to my conclusions on the basis of contemporary materials, objective facts, and the inherent probability of events: see Fox v Percy [2003] HCA 22; 214 CLR 118 at 128129 (Fox v Percy), [30]-[31] per Gleeson CJ, Gummow and Kirby JJ.
[652] I also bear in mind McLelland CJ in Eq’s oft-quoted passage about the fallibility of human memory set out in Watson v Foxman (1995) 49 NSWLR 315 (Watson v Foxman), wherein his Honour said at 319:
Furthermore, human memory of what was said in a conversation is fallible for a variety of reasons, and ordinarily the degree of fallibility increases with the passage of time, particularly where disputes or litigation intervene, and the processes of memory are overlaid, often subconsciously, by perceptions or self-interest as well as conscious consideration of what should have been said or could have been said. All too often what is actually remembered is little more than an impression from which plausible details are then, again often subconsciously, constructed. All this is a matter of ordinary human experience.
[653] The fallibility of human memory, and other difficulties with fact finding, were further examined by Justice David Ipp, writing extra-judicially, in ‘Problems with fact finding’ (2006) 80 Australian Law Journal 667 (‘Problems with fact finding’) at 667, and by Justice Peter McClellan, also writing extra-judicially, in ‘Who is telling the truth? Psychology, common sense and the law’ (2006) 80 Australian Law Journal 655 (‘Who is telling the truth?’) at 663-665.
[654] Further comment on the fallibility of human memory is found in Gestmin SGPS SA v Credit Suisse (UK) Limited [2013] EWHC 3560 (Comm) at [15]–[23], in which Leggatt J observed that there are a number of difficulties with oral evidence based on recollection of events. Leggatt J said that considerable interference with memory is also introduced in civil litigation by the procedure of preparing for trial. As Lee J summarised his Lordship’s judgment in Webb v GetSwift Limited (No 5) [2019] FCA 1533 at [18]:
As his Lordship noted, a witness is asked to make a statement, often when considerable time has already elapsed since the relevant events. The statement is usually drafted by a solicitor who is inevitably conscious of the significance for the case of what the witness does or does not say. The statement is often made after the memory of the witness has been “refreshed” by reading documents. The documents considered can often include argumentative material as well as documents that the witness did not see at the time and which came into existence after the events which the witness is being asked to recall. It may go through several iterations before it is finished. As Lord Buckmaster famously said, the truth “may sometimes leak out from an affidavit, like water from the bottom of a well”. This may be overly cynical, but the surest guide for deciding the case will be as identified by Leggatt J at [22]:
… the best approach for a judge to adopt in the trial of a commercial case is, in my view, to place little if any reliance at all on the witnesses’ recollections of what was said in meetings and conversations, and to base factual findings on inferences drawn from the documentary evidence and known or probable facts.
[655] Leggatt J’s statement may be a helpful working hypothesis, but it is not a rule to be slavishly applied. At its base, it reflects what was said in Fox v Percy together with the recognition of the fallibility of human memory, and how, no matter the honesty of the witness, memory may be affected by the passage of time, self-interest, motivation, suggestion and other factors.
44.We would also note that the accuracy of the respondent’s and Ms C’s recollection evidence was further affected by the high degree of emotion involved in them giving evidence. When giving oral evidence, both Ms C and the respondent were often significantly visibly distressed, and both needed to take breaks from being cross-examined. In making those observations, we are not at all critical of either witness. But it is well recognized that a highly emotional state may adversely affect a person’s accurate recollection of events.
45.Therefore, as Fox v Percy [2003] HCA 22 requires, we shall reason to our conclusions as far as possible on the on the basis of the contemporary materials, objective facts, and the inherent probability of events.
Background
46.The respondent was at all material times an Australian legal practitioner and local legal practitioner as defined in section 8 of the LPA and was the holder of an unrestricted practising certificate. He practised as a sole practitioner.
47.Both the respondent and Ms C were born in the same year in the early 1970’s.
48.The respondent, Ms C, and their families became close friends from about 2012.
49.In January 2014, Ms C was involved in a severe motor vehicle collision and was injured both physically and psychologically.
50.The respondent subsequently agreed to act for her in relation to a claim for compensation for injuries sustained in that motor vehicle collision.
51.At the time the respondent agreed to act for her, Ms C said she was already well acquainted with the respondent. She said that they had been in the same friendship group since around 2012 and the respondent’s wife, Mrs R, was one of her closest friends. She said their three children are all roughly the same age and were also close friends. She said their families travelled together overseas in November 2015 and December 2017, and interstate on numerous occasions. The respondent and Mrs R became the godparents to one of Ms C’s children in 2014.
52.Whilst acting for Ms C, the respondent obtained certain medical evidence in support of Ms C’s claim for compensation and entered into correspondence with the insurer of the other motor vehicle involved in the collision.
53.By letter dated 15 May 2015, the respondent wrote to that insurer and asserted that Ms C’s injuries included, among others, post-traumatic stress disorder and secondary depression, panic attacks, anxiety, increased stress and hypervigilance, and sleep issues.
54.While acting for Ms C, the respondent obtained and read the following medical reports and records (collectively the Reports):
(a)a psychological/counselling management plan review dated 28 March 2014;
(b)a letter dated 20 March 2015 from Ms C’s psychologist enclosing clinical notes;
(c)a report of a general practitioner dated 14 July 2015, which detailed Ms C’s medical history from 2004;
(d)a supplementary report (to the report dated 14 July 2015) of the general practitioner dated 27 June 2016;
(e)a report of the general practitioner dated 27 June 2016, which detailed Ms C’s medical history from July 2015; and
(f)Ms C’s patient medical history treatment notes from the general practitioner’s practice.
55.Those Reports detailed Ms C’s psychological condition at the time the medical practitioners saw Ms C together with some opinions as to her prognosis. The detail of those Reports is important, and we shall return to them later in these reasons but suffice to say that the respondent read those Reports when made available to him in 2014–2016.
56.Ms C said that she underwent neck surgery in April 2016. The surgery improved some of her symptoms, however she continued to experience pain and had diminished range of movement in her neck and shoulder. She continued to suffer from ongoing psychological injuries, including post-traumatic stress disorder, depression and anxiety, and she had a fear of driving. She believed that the ongoing pain in her shoulder and neck, along with the medications that she needed to take, contributed to depression, weight gain and a chronic pain condition.
57.Ms C said that because of her accident she was unable to function adequately at her work with the Australian Public Service (the APS). She entered into discussions about taking a voluntary redundancy from the APS and was offered, and accepted, a voluntary redundancy in about July 2016.
58.Prior to accepting that redundancy, and after discussions with the respondent and Mrs R, the respondent offered Ms C employment at his legal practice. That offer was accepted, and Ms C commenced her employment with the respondent on 4 July 2016.
59.Very shortly after Ms C commenced her employment with him, the respondent (with Ms C’s consent) ceased to act for Ms C on her claim for compensation and transferred her file to solicitors in Sydney.
60.Ms C said that after the respondent ceased acting for her, he continued to be involved in her claim, in that she told him about medical appointments arranged by her new solicitors and the respondent asked her to continue sharing details of her claim, including offers of settlement and medical reports.
61.Ms C said that she showed the respondent reports of Dr Parmegiani, a consultant psychiatrist, dated 10 November 2016 and of Dr Bodel, an orthopaedic surgeon, dated 20 December 2016. She said she discussed their contents with the respondent in depth. The respondent agreed he saw those reports and their contents.
62.In addition to those matters, the respondent prepared and signed a witness statement dated 30 March 2017 in support of Ms C’s claim for compensation.
63.In that statement, the respondent said that he had acted for Ms C in relation to her claim for compensation from about February 2014 until March 2016. He said that it was obvious to him that Ms C’s claim was significant given her physical injuries and her psychological symptoms. He said that Ms C would speak to him about her symptoms and her attempts to return to work with the APS, and that she was unable to function at work with the APS given her medical restrictions.
64.He said in the statement that Ms C commenced employment with him in July 2016 working five hours per day for four days per week. He said that Ms C had developed strongly in her role with his firm. He said that she was clearly articulate, intelligent and capable notwithstanding her injuries. He said that he felt that without her injuries she would exceed her role requirements.
65.The respondent said that, as of March 2017, he did not see that her capacity would change considerably without significant further medical intervention. He said that he had observed Ms C to be in pain and discomfort physically and on occasion she appeared emotionally fragile although she managed that well.
66.The respondent also said in the statement that Ms C’s confidence and self-worth had been significantly reduced because of the failed return to work with the APS. He said that he had observed her work since she had started work with his firm, and it had become clear to him that the hours Ms C worked were a strain on her. He said that she exhibited signs of pain and discomfort and said that her hours were variable by agreement in respect of her symptomology. He said that she had tried to increase her hours but that appeared to increase her discomfort. He proffered the opinion that Ms C struggled with capacity and confidence and, having known her for some time, opined that the motor vehicle accident had impaired Ms C emotionally, physically and professionally.
67.Ms C’s personal injury claim was settled in 2017.
68.Whilst Ms C was employed with the respondent, the respondent also acted for her in relation to preparing a will in 2016 and two conveyances of residential property in 2018, although nothing of significance turns on those matters.
69.The respondent’s wife, Mrs R, also worked in the respondent’s firm together with a paralegal, P. In the early days of Ms C’s employment, Mrs R and Ms C often drove into the office together, dropping their respective children at school along the way. They would often leave the office together and collect the children from school on the way home.
70.P left the firm in about 2018, after which Ms C’s hours increased. She said she worked five days a week, often worked from 7:00am until 6:00pm, and occasionally worked on weekends.
71.Due to the longer hours that Ms C was now working, she was no longer as able as previously to attend to school drop-offs and pickups, and so her husband attended to most of those tasks together with Mrs R.
72.From about the middle of 2019, the respondent and Ms C worked closely together. They worked through the Covid-19 lockdown together, often alone, and worked on litigation matters that required many late nights and early mornings. Ms C said she often drove the respondent to and from the office.
73.Ms C said that she found the work at the respondent’s firm interesting and satisfying. She regarded herself as a good employee.
74.Ms C gave some evidence of what she regarded as inappropriate conduct by the respondent in this period (such as allegedly making fun of her weight), but that evidence is irrelevant to the two charges. Given that lack of relevance, we do not need to consider the unchallenged affidavit evidence of Mrs R or P in relation to those matters.
75.Relevant evidence is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding — see section 55 of the Evidence Act 2011.
76.The facts in issue in relation to Charge 1 were whether Ms C suffered from a psychological impairment at the time of the commencement of the affair, whether she was vulnerable at that time, whether the respondent knew of those matters, and whether any vulnerability, or power imbalance, or both, played any role in the commencement and continuation of the affair. Whether the respondent acted inappropriately in the ways set out in Ms C’s affidavit (such as allegedly making fun of Ms C’s weight) did not make any of those facts in issue more or less probable.
77.There were no facts in issue in relation to Charge 2.
78.Ms C also said that she found that the respondent could be quite charismatic and charming. She said she was eager to please him at work because she was grateful that he had taken the risk of employing her and had provided her with a job opportunity when she was dealing with a difficult recovery from her neck surgery. She said she became invested in the success of the legal practice, and she felt a sense of pride in being involved with its operation. She said the respondent was her “boss and we had a longstanding friendship”.
79.Ms C suffered from several very upsetting life events between late 2019 and the end of 2020.
80.In 2019, her husband had a serious mountain bike accident and suffered serious injuries.
81.In December 2019, the Black Summer bushfires occurred, an event she found terrifying not least because her children, husband and parents were at Mollymook on the New South Wales south coast which was then surrounded by fire. For a time, her family were unable to be contacted.
82.In January 2020, Ms C’s mother was diagnosed with dementia as a sequela to Parkinson’s disease. Her mother suffered a sudden and severe downturn in her health and needed fulltime care. Ms C and her brother became her mother’s decisionmakers and had to make decisions about her healthcare. She and her brother were involved in many months of assessments and were her mother’s carers until a permanent solution could be found. Her mother passed away in January 2022, but up until that time her mother spent time in hospital and was in palliative care from about August 2020.
83.In February 2020, legislative changes in the Australian Capital Territory came into effect and reduced the number of personal injury files that were being opened in the respondent’s legal practice. That legislative change had a significant detrimental financial impact on the practice and Ms C became concerned about her job security.
84.She said that in March 2020, the COVID-19 pandemic “hit”. She said she experienced stress and uncertainty as a result and her psychological health declined further.
85.In August 2020, her work hours were reduced because of the firm’s reduced workload. This caused her stress and uncertainty and, she said, exacerbated her psychological health (by which we understood her to mean that the reduced hours exacerbated her mental health issues).
86.Ms C said she discussed these matters with the respondent, although little detail of these discussions was given. Her evidence of these discussions was limited to the following:
Well, I discussed each of these paragraphs, so the mountain bike accident, the Black Summer bushfires, my mother's diagnosis and downturn. I discussed - we discussed regularly the impacts of the legislative changes on the business. We discussed and worked through together the COVID-19 first lockdown. We discussed regularly the reduced work at [the respondent’s firm] and the impact on my job and the uncertainty for my family. We discussed my stress, the fact that I was burying myself in work to cope with a lot of these events. [The respondent] and I spent every day for the bulk of my waking hours together so, you know, he knew everything about what I was going through in this time.
87.In our view, that evidence was consistent with the closeness of the friendship which then existed between Ms C and the respondent. They were the type of conversations which close friends will commonly have in which their respective stresses and strains are shared and discussed.
88.Ms C’s limited evidence of these discussions did not convey to us the communication of the suffering of a psychological impairment or vulnerability. True it is that, on her evidence, she conveyed that she was under some stress and that certain events caused her “psychological health” to decline. But the use of that expression in the context given seemed to us to convey a lay person’s description of their general mental state rather than anything else.
89.Ms C had been prescribed Endone, an opioid pain-relief medication, by her doctors in relation to her physical injuries arising from the 2014 accident. The respondent had also been prescribed the same medication and kept some of it in his desk drawer at work.
90.In about June of 2020, and for reasons not explained, Ms C took ten tablets of Endone from the respondent’s desk without his knowledge or permission. She later confessed to the respondent what she had done and became distressed. She attended her general practitioner the next day and agreed that her reliance upon Endone had become a problem. She obtained a medical certificate saying that she was unable to work from 21 June – 3 July 2020.
91.Ms C said that after this event, she was placed on a “return to work” plan, however she felt she was no longer respected in the office and was regarded as someone who needed to be closely monitored and supervised. She said she no longer had access to any client files and had to rely on the respondent drip feeding her tasks.
92.On 23 June 2020, the respondent had a meeting with Ms C about her work performance. He took a contemporaneous file note of that meeting. Suffice to say, it is apparent that there was some concern about Ms C’s work performance and the fact that she had taken the Endone from the respondent’s desk without permission. Nevertheless, the meeting seems to have been productive with the respondent providing Ms C with a new laptop at the conclusion of the meeting to replace her own laptop which she had been using up until that time.
93.In August 2020, and because of a decline in legal work at the respondent’s practice, Ms C was instructed to reduce her hours. She said this created further stress and uncertainty which then exacerbated her psychological health.
94.In about August or September 2020, Ms C said that the respondent told her that he might not be able to keep her employed and suggested she look for employment elsewhere.
95.Ms C approached a recruitment agency and was offered a job in the APS. At about that time, the workload at the legal practice started to pick up and, she said, the respondent asked her to continue her employment. She declined the job offer at the APS. She said she felt a sense of loyalty towards the legal practice, and she was hopeful that the work would continue to increase. She said she “loved working in the law” and now saw this as her career.
96.Ms C said that during the last two years of her employment, from about June 2019 onwards, her interactions with the respondent became more personal and intense. She had conversations with the respondent from time to time which both parties described as “counselling sessions” and which seemed to include the discussions of Ms C’s upsetting life events mentioned earlier above.
97.Ms C described the content of those “counselling sessions” as follows:
For example, when we were alone in the office, [the respondent] would often ask me personal questions about my marriage, my sex life (including my sexual experiences as a teenager), the medications that I was taking, my PTSD (including my flashbacks on highways and my inability to drive to the coast), as well as the death of my father and my mother's illness. Often, these conversations brought me to tears.
[The respondent] described these conversations as "counselling sessions". At the conclusion of these conversations, he jokingly commented that I should pay him for the service. I did not instigate these conversations. These conversations occurred about weekly on average.
98.The respondent’s recollection was a little different. He said:
[Ms C] and I became close friends, particularly when working alone during covid. We often talked about personal matters such has her mother's health, finances, children, pain medication and our relationships, friends and family. At times, [Ms C] would become upset in that context. I deny that I pushed [Ms C] to discuss any matter. She would initiate these discussions as much as I would. She first used the term "counselling sessions". As time went by, I recall that she jokingly offered to pay me for them.
99.It is inherently probable that two good friends, working in the same office, and both being subject to various stressors, would discuss personal matters and would do so privately. The exact content of those discussions is not relevant, except to the extent that Ms C may have communicated something to the respondent about her mental state and in particular any psychological impairment she was suffering from and any vulnerability she may have felt. In that regard, it is important to note that, even on her own version of events, all that Ms C communicated to the respondent at that time regarding her psychological state was that she had post-traumatic stress disorder which manifested in flashbacks on highways and an inability to drive to the coast.
100.In terms of medications, there is no dispute that at that time Ms C was taking medication for pain but was not taking any medication for any psychological condition, whether for post-traumatic stress disorder, anxiety or depression. Nor was she undertaking any psychological treatment. The absence of medication or other treatment for any psychological issue tends to suggest that the psychological impairment being experienced by Ms C at that time, if any, was limited.
101.Ms C said that by late 2020, her relationship with Mrs R had become strained.
102.Ms C said that in November 2020, following office drinks at which the respondent, but not Ms C, consumed alcohol, she and the respondent commenced a sexual relationship.
103.Ms C gave no evidence of her mental state at this point in time, whether (at least subjectively) she felt she was psychologically impaired in any way or whether she felt vulnerable. That is not to deny that there was evidence of, for example, the upsetting life events described earlier in these reasons and matters which would place any normal person under a degree of stress. But Charge 1 is limited to vulnerability arising from a particular psychological impairment, and it is that impairment about which evidence was lacking at the time of the commencement of the affair, and by and large thereafter. The same is the case in relation to the pleaded vulnerability said to have been caused by the psychological impairment.
104.Ms C said that after their first intimate encounter, she and the respondent were intimate about once per week and were intimate only in the office except for one occasion.
105.Ms C gave some evidence of the details of their intimate encounters, and of some alleged non-sexual conduct of the respondent which she said caused her distress. That evidence is not relevant to the charges, not tending to prove the facts in issue were more or less probable and shall be ignored.
106.Ms C said that the respondent told her in December 2020 that their affair had to stop. She said it stopped for a short time and then resumed. She said that this “pattern continued” until mid-June 2021.
107.Ms C explained that when she said the “pattern continued”, she meant that on numerous occasions she and the respondent would be intimate, following which the respondent would tell her that their sexual relationship had to stop. She said this was typically followed by the respondent ignoring her in the office, followed by Ms C becoming emotional and upset and sending the respondent text messages. She said their sexual relationship would then resume a day or two later.
108.In his Response to the Application, the respondent said that sexual intercourse only occurred on three or four occasions. In his cross-examination, the respondent said that this was a reference to penetrative sex. He agreed that non-penetrative sex occurred “reasonably frequently” during the term of the affair. He agreed that he tried to end the affair in December 2020, and at times thereafter, but then the pair would be intimate again.
109.Ms C said that as the relationship continued, she and the respondent had numerous arguments about their different expectations, her “moods”, and the deterioration of Ms C’s relationship with Mrs R. She said the office environment became tense. She said that the respondent asked Ms C at least a dozen times to reach out to Mrs R to try and mend their relationship. However, at the same time, she and the respondent were still being intimate, Ms C was confused and, understandably, did not know how to deal with the situation. She said her mental health deteriorated further.
110.On 9 June 2021, Ms C and the respondent had their first meeting concerning Ms C’s work performance. She said the respondent spoke about her conduct in the office and he said that it was influencing the office more generally. She said that at the end of the meeting she said that this was unfair, that the respondent knew what the real issues were, he knew why she was behaving in “this way”, and that they were not discussing the real issues. Her evidence was that at the meeting their sexual relationship was not raised by the respondent (or herself) or directly discussed.
111.The respondent’s contemporaneous file note of the meeting recorded that Ms C’s conduct in the office was perceived as improper, threatening, harassing, abusive, obsessive and that Ms C would lash out. It recorded that there had been monthly/weekly conflicts in the office and that Ms C was unapproachable as any comment made at the wrong time could send her into a downward spiral which could last a week. The file note records the respondent’s concern over Ms C’s health, that she had had a change in general practitioner and counselling was pending. What condition the counselling was for was not explained in the file note or by any of the witnesses in their evidence.
112.The file note recorded that options were presented to Ms C to work less and to take time off. There was reference to Ms C’s issues with Mrs R, that the respondent had offered to allow Ms C to bring a support person to the meeting (which had been refused), and that Ms C was being given a first warning that if her conduct did not improve then the respondent did not feel that her employment could continue.
113.Ms C accepted that she had been behaving “this way” i.e. as described by the respondent in the file note, albeit she said the cause of her behaviour was their affair (to put it neutrally) and not her work performance. In the paragraph of her affidavit in which she referred to the file note (which was exhibited to her affidavit and the contents of which she did not dispute) she said:
[The respondent] spoke about my conduct in the office and he said that it was having an effect on the office more generally. At the end of the meeting, I said that this was unfair, that he knew what the real issues were, he knew why I was behaving in this way, and that we were not discussing the real issues.
114.We accept that the situation in the office was as described in the file note given its contemporaneity and the fact that its contents were not disputed by Ms C.
115.Having said that, it is true to say that nowhere in the file note (or any other document created during or after the ending of the affair), was there any reference to their intimate relationship and its ending. Clearly enough, that intimate affair, and the respondent’s desire to end it, was the root cause of much of Ms C’s distress. That fact would have been obvious to the respondent, and it seems more likely than not that the affair and its ending was a cause, and probably a significant cause, of Ms C’s perceived poor work behaviour.
116.But that is not the issue in this case. We are not a tribunal of morals, nor a tribunal conducting a general inquiry into the behaviour of the respondent, how he treated Ms C on a personal level, and whether that behaviour would be regarded as socially acceptable or something else. We are sitting as a disciplinary tribunal tasked with determining whether two charges of less than acceptable professional conduct occurred. The issues for determination by us are Charges 1 and 2 and nothing more.
117.After that meeting, Ms C prepared a short note referring to her plans to take leave, an adjustment to her working hours to have some weekly time off, and that she had an appointment with a psychologist on 3 July 2021. No further evidence was given by Ms C as to the purpose of the appointment with the psychologist, for what symptoms she was seeking treatment, whether the appointment went ahead and, if so, what the result of the appointment was.
118.On 16 June 2021, Ms C said that she and the respondent were intimate again, and for the last time. The respondent denied this event occurred and said their affair had ended the previous month. The Council sought to make much of this alleged intimate encounter, and its details, because of its proximity to Ms C’s termination of employment. It was submitted that the details of the alleged intimacy on this occasion were relevant to Charge 2, but we do not agree given the limited ambit of that charge.
119.Whether the affair ended in May or June 2021, and whether the last occasion of intimacy was as alleged by Ms C, is not, in our view, relevant to Charge 2. Charge 2 was limited to the question whether terminating Ms C’s employment was, in the circumstances existing at the time, unprofessional conduct or professional misconduct. The relevant circumstance was the existence of the intimate affair, not the details of their intimate encounters.
120.On 21 June 2021, the respondent and Ms C had a second meeting to discuss her employment performance. Ms C gave no evidence as to the contents of the meeting other than that she was given a final chance to improve her conduct in the office and that the respondent did most of the talking.
121.The respondent did not give testimonial evidence as to what occurred at the meeting on 21 June 2021. However, he took a contemporaneous file note which recorded that there was a discussion regarding Ms C’s continuing conduct which included inappropriate text messages from her and that Ms C’s inappropriate conduct had continued and degraded. The file note recorded that there was agreement between them that Ms C was being given a last chance and was on a final warning. Ms C did not dispute the accuracy of the file note other than the recorded length of the meeting. We accept the contents of the meeting were as set out in the file note.
122.On 25 June 2021, the respondent and Ms C met again. Ms C said that immediately prior to this meeting she was upset (because she had been told the respondent was going on leave the following week at short notice), she was stressed about being left alone in the office for a full week while not knowing what was going on with their relationship or her job. She said she felt a “desperate need to speak with” the respondent before he left to try and clear the air, to understand where she stood and what was going on.
123.Ms C said she was told to go home prior to the meeting but refused. By that point she said she was worked up and too upset to leave the office. She was sobbing at her desk. She wrote an undated letter to the respondent and gave it to him at their subsequent meeting that day. We shall come to that letter shortly.
124.No testimonial evidence was given as to what occurred at this meeting, but the respondent’s contemporaneous file recorded that Ms C had been in tears from the start of the day (the meeting started at 2:30pm), and that Ms C was ostracising the office. The only people working in the office at that time, as we understand it, were the respondent, Mrs R and Ms C.
125.About two hours after the meeting had ended, and after the respondent had attended a client meeting, Ms C handed the respondent the letter mentioned above. In that letter she expressed her love for the respondent and her anguish at not being able to have a relationship with him. Those feelings for the respondent, and her distress at not being able to have a relationship with him, are reflected in the many text messages sent by Ms C to the respondent in 2021 that were in evidence and which we will come to later in these reasons.
126.By letter dated 26 June 2021, the respondent gave Ms C formal notice of the suspension of her employment, effective immediately. In that letter, Ms C was directed to attend a further meeting with the respondent with a support person of her choosing as soon as reasonably practicable. The letter said that it (the respondent’s letter) was a response to Ms C’s unsatisfactory performance and conduct, culminating in the events of 25 June 2021.
127.By letter dated 6 July 2021, the respondent noted that he and Ms C had discussed alleged conduct of hers that included improper non-work-related relationship matters, threatening conduct, lashing out, abusive conduct and bullying and harassment, amongst other matters. Ms C was invited to show cause why her employment should not be terminated.
128.By letter dated 12 July 2021, Ms C responded to the letter of 6 July 2021. In that letter, Ms C said, amongst other things:
…
3. I acknowledge that my conduct has been unacceptable and damaging to all of us. For this I am sorry. So sorry. There has been a chain of events that has led to where we are today, which I will discuss now, by way of background, not an excuse.
4. Firstly, our relationships have always had many blurred lines. This started before my employment with the friendship of children, blurred further when we engaged you as our lawyer following our accident in 2014.
…
7. At the time of commencing work with you, our client-solicitor relationship ceased.
8. I was reinvigorated by the new role and was excited to be challenging myself with new learnings on a daily basis. It was scary and fun. I was also so happy to be able to work with my best friend and her husband. It made going to work enjoyable and I felt like I had something to offer and could help [the respondent’s firm] thrive. Although I have never been officially financially invested, my love of the business, and our relationship with your family has always meant I have felt invested. I deeply care about the success of the business for all of us.
9. Working with [the respondent’s firm] was a huge step forward in my recovery. Having been through my own personal injury event I felt a very real sense of empathy for our clients, and thrived on the feelings of being able to help each and every one of them in whatever way I could. I grew very close to the clients and took extreme pride in the work I could do to assist you in the preparation of their cases.
129.The letter went on to refer to the various upsetting life events we have referred to earlier, and said that by June 2020, Ms C’s “psychological health was in a very bad way”. She then referred to the financial strain on the respondent’s practice (with which she was heavily, emotionally invested), her seeking other employment, her refusal of a job offer to remain at the respondent’s practice, her subsequent throwing herself into her work, working long hours, not pulling her weight at home and strains in Ms C’s marriage.
130.The letter said that Ms C had fallen in love with the respondent and loved her work. She said her love for the respondent grew over the years from the time their respective families had travelled together, including the time Ms C’s husband was in hospital after his 2019 accident and all the talks Ms C and the respondent had had. Ms C then said:
Which brings me to my conduct at work. It's been shit. I know it. I have been jealous of you and [Mrs R]. Sometimes, particularly when so many things are falling apart around me, it is really hard to face such a perfect couple. I took it out on you both. I have also been jealous of [Mrs R’s] outside friendships and have felt increasingly distanced from her and even your family.…
131.The letter said that things would change for the better including Ms C’s behaviour. She assured the respondent that her text messages to him would cease, and she confirmed that she was undergoing regular counselling both individually and, in the near future, as a couple with her husband.
132.A number of aspects of that letter are important. First, it confirms the respondent’s file notes that Ms C’s conduct at work around that time was unacceptable. Second, paragraphs [8] and [9] of that letter tend to suggest that, at the time to which those paragraphs referred, and although Ms C was under some stress from other events, she was not psychologically impaired or vulnerable. Third, although she said her psychological health was very bad in June 2020, she gave no details to explain what she meant by “very bad” (including in her testimonial evidence) and went on to say she threw herself into her work and found her work to be beneficial to her, that she had implemented many positive changes and that she had so much to offer going forward.
133.Although the letter referred to her psychological health in June 2020, it is noteworthy that at no time did she say that she was vulnerable at any point in time, nor that the power imbalance between employer and employee had played any role in the commencement of their affair.
134.Ms C said that there was then a meeting between her, her husband, the respondent and Mrs R, but did not give any evidence of the content of that meeting.
135.On 19 July 2021, the respondent terminated Ms C’s employment.
Did Ms C suffer from the psychological impairment at the time of the affair and was the respondent aware of that fact?
136.We are not satisfied, to the necessary standard, that Ms C suffered from the alleged psychological impairment at the time of the affair.
137.The medical evidence relied on was dated between 2014 – 2016.
138.The copy of the psychological/counselling management plan review dated 28 March 2014 was largely unreadable despite the parties’ best efforts to obtain a readable copy. What was readable was not of any assistance.
139.The psychologist’s letter simply attached treatment notes, and those notes appeared to be dictated file notes of five consultations with Ms C which took place between early December 2014 and mid-March 2015.
140.The psychologist referred to a history of worsening anxiety levels and that Ms C avoided driving if possible. Ms C was observed to be tearful at times and was having difficulties with her then APS employment. Frequent references were made in relation to Ms C’s fear of driving (caused by the 2014 motor vehicle accident) and steps that could be taken to overcome those fears.
141.Frequent references were made to increases in Ms C’s anxiety when a long drive was anticipated or approaching, such as family holidays to the south coast of New South Wales, and Ms C’s anxiety seemed to be linked to her fear of driving.
142.Reference was made to a medico-legal appointment with a psychiatrist retained by the defendant in Ms C’s compensation claim, a drive by Ms C accompanied by her psychologist, Ms C’s post-traumatic stress disorder, and a diagnosis of depression by a psychiatrist on referral from her general practitioner.
143.No notes or reports were tendered from this psychiatrist.
144.Although some brief references were made to other upsetting life events, the focus of the psychologist was on Ms C’s fear of driving, and her anxieties stemming from that activity.
145.We were taken to the report of Ms C’s then general practitioner dated 14 July 2015. That report recorded a “background of psychological issues” dating from 2008. In 2008, she had been diagnosed with postpartum depression, anxiety and panic attacks. She was prescribed Zoloft and was referred for counselling. She decided not to take the medication, and she gained help with psychological counselling instead. In September 2008, Ms C was improving but she had variable mood with persistent mild chronic anxiety. She was seen over the next year for other medical conditions, eight visits in all, but there was no mention of any psychological conditions. In February 2010, there was mention about anxiety management with her then pregnancy and in 2010 she experienced some stress in the workplace causing anxiety. In October 2010, she was diagnosed with antenatal depression. In December 2011, Ms C was referred for counselling for review of her mood, and anxiety issues with feeling socially isolated with three small children.
146.No further psychological issues were noted until the accident in January 2014. The general practitioner said that Ms C suffered from acute trauma. She was not sleeping, she was having nightmares, was feeling jittery and was a nervous wreck. She was having panic attacks in the car and could burst into tears when driving the car at any time. Counselling with a psychologist was discussed.
147.The general practitioner recorded a history of panic attacks in April and May 2014. There was a discussion of a psychiatric review and the role of antidepressants. In May 2014, Ms C was prescribed medication to help with her anxiety and panic attacks in combination with counselling and time off work. In July 2014, Ms C reported an improvement with no panic attacks since starting the medication, whereas before this the attacks were occurring daily. The general practitioner said that Ms C was still anxious but not panicked.
148.The general practitioner recorded saying that in March 2015, Ms C said she had experienced a setback after an exposure therapy drive to Bungendore with her psychologist the week before. The general practitioner opined that her psychological issues seemed to be continuing. A psychiatric review was discussed but it does not appear that it was undertaken.
149.The general practitioner said that Ms C suffered significant psychological trauma that was ongoing. She had had counselling and medication for post-traumatic stress disorder that continued to affect her daily life. She had suffered from panic attacks and generalised anxiety as a direct consequence of the motor vehicle accident. It was said that Ms C needed medication, psychological and psychiatric care, and would need ongoing treatment for that condition. The general practitioner said that Ms C suffered from acute and post-traumatic stress with generalised anxiety and panic attacks together with some mild depression. Importantly, the general practitioner then said:
She is being treated with appropriate medication and counselling and will need ongoing treatment with her psychologist for up to 2 years. I do not feel she will need ongoing psychiatric care.
150.Later in the same report the general practitioner said:
Further treatment is needed both for her psychological/psychiatric condition with medication and psychologist support for another two years.
151.The supplementary report dated 27 June 2016 did not add anything of note in relation to the issues at hand.
152.About one year later, in a report dated 27 June 2016 (but apparently faxed to the respondent on 1 July 2016), and after seeing Ms C on 12 occasions in that one-year period, the general practitioner opined:
[Ms C] has suffered greatly with pain and decreased function as well as psychologically from MVA of 19 January 2014. She has still to fully recover and may need another 2 years before full recovery has been achieved. She will need ongoing psychological support and physiotherapy to aid this recovery. Another cortisone injection may also be needed. I anticipate that she will be able to commence a graduated return to work soon.
153.In his Response, the respondent said that the Reports, which included the two reports of the general practitioner to which we have referred above, “were read by the respondent during the period 2014 to mid 2016”.
154.In cross-examination, the respondent appeared to adopt a different position in relation to the second report. He did not agree that he read the report of 27 June 2016. He said he “considered” it, meaning he looked at the report to make sure it was relevant to be transferred to her new solicitor. We do not accept that evidence for three reasons.
155.First, his answer that he “considered” rather than “read” the report of 27 June 2016 was inconsistent with the admission in his Response that he had “read” the Reports.
156.Second, it seems to us inherently improbable that the respondent, at that time a good friend of Ms C, and who had been privy to the contents of all her other medical reports, would not have read this report, particularly because he did not transfer the file to the other solicitors until 19 July 2016.
157.Third, his demeanour when answering the cross-examination questions on this topic was unconvincing. For example, he used the word “considered” first, but when he was asked shortly thereafter whether he had considered the report, he avoided answering that question and answered that he was “aware” of it. When pressed whether he had considered the report he then said it depended on what was meant by “considered”.
158.In our view it is more probable than not, to the Briginshaw standard, that the respondent read the second report of the general practitioner.
159.Ms C’s general practitioner treatment notes relevantly covered the period from the date of the motor vehicle accident until February 2015. Those notes contained the following relevant entries (relating to her psychological injuries):
(a)on 4 February 2014, Ms C reported that she was “psychologically not [sleeping] well”, she felt jittery and a nervous wreck and had minor panic attacks in the car when driving, and could burst into tears any time;
(b)on 12 March 2014, a “[b]ackground of anxiety and panic attacks following the [motor vehicle accident]” was noted and that Ms C would see a psychologist;
(c)on 30 April 2014, the notes recorded “also panic attacks in car seeing [the psychologist]”;
(d)on 13 May 2014, it was noted that Ms C had a major panic attack in the car while driving on the Barton highway at 100 km per hour, where she thought she was dying and then had increased anxiety for one week or so; was seeing a psychologist but becoming exhausted as operating at “windup level”; and it was noted that there was a recommendation for psychiatric review regarding general anxiety disorder and panic attacks;
(e)on 28 May 2014, it was noted that Ms C had seen a psychologist the previous Friday, was getting worse with panic attacks, and there was discussion about the taking of leave and antidepressant medication;
(f)on 3 July 2014, it was noted that Ms C reported no panic attacks since starting the medication (Cipramil, an anti-depressant); that she had previously been having daily panic attacks, and although she still felt anxious, she did not feel panicked; and
(g)there were four consultations with the general practitioner after 3 July 2014 and up to 4 February 2015, but none of those consultations related to psychological issues.
160.Dr Bodel was an orthopaedic surgeon and saw Ms C in November 2016. His report does not touch on Ms C’s psychological issues.
161.Dr Parmegiani was a consultant psychiatrist who saw Ms C for medico-legal purposes in November 2016. After noting a history like that recorded by the general practitioner and the psychologist (Dr Parmegiani had the general practitioner’s notes and reports, and the notes of Ms C’s psychologist), Dr Parmegiani offered the following opinion:
Ms [C] is a 44-year-old woman who was involved in a high velocity motor vehicle accident on 19 January 2014. Her account of the accident indicated that she was fortunate not to have been more seriously injured or killed. She continued to suffer cervical pain and pain in her left shoulder. A comment about her physical injuries is deferred to other experts. From a psychiatric perspective, Ms [C] presented with the characteristic symptoms of a Chronic Posttraumatic Stress Disorder with Secondary Depression. She re-experienced the motor vehicle accident through flashbacks and nightmares. Reminders of the accident exacerbated her anxiety, and she avoided driving on highways. She was anxious and emotionally labile. She slept poorly, and her energy was low. Her concentration deteriorated, and her stress tolerance was reduced. She could not tolerate conflict. Ms [C] became depressed and her self-esteem decreased. She lacked confidence and as she [sic] avoided social activities.
162.In relation to treatment, Dr Parmegiani recommended a combination of cognitive behaviour therapy and a trial of different antidepressants. He said that allowance should be made for 18 sessions of specialist psychiatric treatment and that antidepressants would be required for the following three to five years.
163.The respondent agreed that he had read the reports of Drs Bodel and Parmegiani.
164.None of the doctors’ reports or notes said that Ms C was vulnerable, or “psychologically vulnerable” as the Council put it, because of the conditions they diagnosed.
165.The Council submitted that the contents of the Reports, together with the reports of Drs Bodel and Parmegiani, proved that Ms C suffered from the pleaded psychological impairment in November 2020.
166.We do not agree.
167.By November 2020, the Reports and Dr Parmegiani’s report were four years old or older. There was no medical evidence that it was likely that the psychological impairment suffered by Ms C at the time of that medical evidence would probably continue until at least November 2020.
168.The only medical evidence as to the likely longevity of the psychological impairment were the opinions of the general practitioner and Dr Parmegiani in relation to treatment.
169.The general practitioner’s opinion in 2015 was that Ms C should have two years of psychological support, and then in July 2016 the general practitioner proffered the same opinion. That took the likely longevity of the condition up to the middle of 2018.
170.Dr Parmegiani’s recommended treatment included 18 sessions of cognitive behaviour therapy, which we infer would have taken no more than two years to complete. Antidepressants were recommended for three to five years, which would have taken events up until November 2021, but Ms C’s evidence was to the effect that she only took antidepressants episodically in the 2014–2016 period, and perhaps sporadically after. There was no evidence Ms C undertook the psychiatric treatment.
171.The lack of evidence that Ms C was prescribed or taking antidepressant medication in late 2020 is consistent with her not suffering a psychological impairment at that time, or at least not suffering significantly from such other than perhaps when driving.
172.On that topic, there were references in text messages in 2018, 2019 and 2020 from Ms C of driving the respondent to and from work on occasion. This seems consistent with comments in the medical documents which suggest that her driving-associated post-traumatic stress disorder was related to highway driving, or driving outside Canberra, rather than all driving.
173.Ms C gave no evidence of experiencing signs or symptoms consistent with post-traumatic stress disorder, anxiety, or depression as at November 2020, whether she was undergoing any treatment for any of those conditions at the time and, if so, what was that treatment. Rather, although she was suffering from the stresses of the various events about which she gave evidence, and was to some extent affected by them, she seemed rather stoic and seemed to soldier on without much complaint (other than discussing her problems with the respondent from time to time).
174.Ms C also gave evidence that she was able to competently perform her duties at the respondent’s firm, a fact tending to suggest she was not impaired or vulnerable.
175.Ms C did provide some evidence that her husband’s mountain bike accident triggered her post-traumatic stress disorder in 2019, that her psychological health declined because of the stress and uncertainty felt because of the Covid-19 pandemic (in March 2020), and that her reduction in hours in August 2020 because of reduced work at the firm exacerbated her psychological health. But this evidence was no more extensive than as we have noted it in this paragraph and is too generalised and non-specific for us to rely on it to make a finding of psychological impairment in and from November 2020.
176.The same applies to Ms C’s evidence when discussing the upsetting life events noted earlier.
177.Some of the text messages sent between Ms C and the respondent mentioned matters like stress and depression, but again, they were very generalised and non-specific. We discuss those messages in more detail in the next section of these reasons but suffice to say that those text messages do not persuade us to the necessary standard that Ms C was suffering from the pleaded psychological impairment or, if she was, that the respondent knew of that fact.
178.Dr Parmegiani opined in his report that it was unlikely that Ms C could work fulltime because of her psychiatric conditions, but we note that she began working fulltime in about 2018 which tends to suggest her previous psychological impairment had resolved or at least ameliorated substantially by 2018. On her own evidence, she was working long hours, albeit with some physical difficulties arising from her previous accident.
179.The Council submitted that because the general practitioner proffered a two-year treatment window in 2015, and then the same two-year window in 2016, we should draw the conclusion that the timeframe for recovery was indeterminate, and that the respondent should have known this.
180.We do not accept that submission. There was no medical evidence to support it. It is not unknown that estimates of the length of treatment required may vary, but it is another thing entirely to ask us to draw an inference that the timeframe for recovery was indeterminate.
181.Further, in terms of the respondent’s knowledge, the proposition that the timeframe for recovery was indeterminate was not put to the respondent in cross-examination, and we do not accept it on Browne v Dunn[8] grounds.
[8] Browne v Dunn (1894) 6 R 67
182.The Council submitted that post-traumatic stress disorder was a chronic condition and there was no evidence that it had resolved by 2020. We do not accept that submission. It was for the Council to prove that the condition persisted until the time of the affair. It was not sufficient for the Council to engage in speculation unsupported by evidence.
183.The Council submitted that the Reports were sufficient evidence of Ms C having a psychological impairment at the time of the affair because there was no evidence to the contrary. We do not accept that submission. It sought to reverse the onus of proof.
184.The general practitioner’s notes contained various entries in 2014 recording panic attacks, general anxiety disorder and like matters, but no notes were tendered from any treating general practitioner for the period of the affair, including the 12 months or so leading up to the affair, notwithstanding that Ms C had continued to see her original general practitioner after 2016, and then another general practitioner from about March 2021, after her original general practitioner retired.
185.We also note that no other expert medical evidence by way of reports or treatment notes was called as to Ms C’s mental state at the time of the affair, notwithstanding references to other medical practitioners in the text messages.
186.The Council submitted that, whilst it did not have any medical evidence beyond what was said in the Reports, the text messages sent by Ms C to the respondent proved that Ms C suffered from a psychological impairment at the time of the affair and that the respondent knew this.
187.The text messages relied on by the Council proved very little, even in terms of subjective observations from which one might be invited to, in effect, diagnose a psychological impairment. But we see nothing in the text messages to that effect, and even if there were, we would not in effect diagnose an impairment from the contents of those messages considering the absence of medical evidence and the absence of direct evidence from Ms C as to the symptoms she was experiencing at the time.
188.In submissions, the Council submitted that the text messages were more relevant to the issue whether Ms C was vulnerable at the time of the affair, and the respondent’s knowledge of that fact. We shall address that evidence in the next section of these reasons where we address the allegation of vulnerability.
189.In terms of Ms C’s evidence, she did give some evidence of being upset when she took the respondent’s Endone without permission, and gave evidence of discussing the various upsetting life events with the respondent, but in the absence of expert medical opinion we are not persuaded that we should therefore infer that Ms C was suffering from the alleged psychological impairment at that time. The evidence referred to was too thin a reed to support such a conclusion.
190.Ms C accepted in cross-examination that she told the respondent, on occasion, that she was happy to come to work and to work long hours because things weren’t good at home. She said she told the respondent that she was having EMDR treatment (in 2019), and that she had changed from Endone to Norspan (both of which are painkillers and not medications for psychological impairments). EMDR, or Eye Movement Desensitization and Reprocessing, is a psychotherapy treatment that is designed to alleviate the distress associated with traumatic memories. In Ms C’s case, the evidence indicates that it was related to Ms C’s fear of driving.
191.The respondent’s evidence was to the effect that he did not know at the time of the affair that Ms C suffered from any psychological impairment.
192.It was true that Ms C was suffering from several stressors in her life, and we accept her evidence that those stressors affected her in a not insignificant way. But it is another thing entirely to suggest she was suffering from the pleaded psychological impairment, and that is one necessary element that the Council bore the onus of proving to the necessary standard.
193.It was for the Council to prove Ms C suffered from a psychological impairment at the time of the affair, and to lead evidence which would persuade us (per Nguyen v Cosmopolitan Homes [2008] NSWCA 246 at [44] per McDougall J (McColl and Bell JJA agreeing)), to the Briginshaw standard of that fact.
194.The evidence did not persuade us that Ms C was suffering from the pleaded psychological impairment at the time of the commencement of the affair nor during the duration of the affair.
Was Ms C vulnerable at the time of the affair and was the respondent aware of that fact?
195.Assuming Ms C did suffer from a psychological impairment at the commencement of and during the affair, contrary to our finding, the next issue to determine is whether she was vulnerable by reason of that impairment.
196.Quite what “vulnerability” meant in this context was never explained. The Council may have meant that Ms C was exposed to the possibility of being enticed into an affair which, but for her vulnerability, she would otherwise have avoided. The Council may also have meant that Ms C was more vulnerable to suffering a psychiatric injury from the affair, because the affair had the potential to exacerbate an existing psychiatric injury. The term may have been used to suggest that the respondent exploited Ms C, using a position of power to obtain sexual favours.
197.The short answer to this element of the case is that there was no evidence to support it. There was no medical evidence to that effect, Ms C gave no evidence of feeling vulnerable leading up to and during the duration of the affair, and there were no other facts proved from which we, as a lay tribunal, could infer vulnerability.
198.That is not to say that Ms C was not periodically upset and at times distressed from the various upsetting life events to which we have referred — the sequelae of the 2014 accident and various other matters — but those matters of themselves do not bespeak vulnerability in the relevant sense.
199.It is noteworthy that Ms C never described herself as feeling vulnerable or being unable to say “no” to the affair, or that she was in some way impaired in deciding whether to enter into the affair or not.
200.In the six months or so leading up to the commencement of the affair, Ms C said she was pleased to be working in the firm, she found the work interesting and satisfying. She said the respondent was charismatic and charming, and she said she was eager to please him because she was grateful that he had taken the risk of employing her and had provided her with a job opportunity when she was dealing with a difficult recovery from her neck surgery. She said she became invested in the success of the business, and she felt a sense of pride in being involved with the operation of the legal practice. She said that the respondent was her boss and she and he had had a longstanding friendship.
201.She and the respondent discussed the upsetting life events as we have noted earlier, and sometimes Ms C was in tears, but we are not persuaded that these discussions and her reactions communicated to the respondent, or would have communicated to a reasonable person, some form of psychological vulnerability, especially in the absence of supportive medical evidence.
202.Rather, irrespective of who kissed whom first (an issue we need not decide given the framing of Charge 1), the evidence, taken as a whole, is to the effect that Ms C was a willing participant and was not psychologically vulnerable when deciding to enter into and to continue the affair.
203.There is indisputable contemporaneous evidence that Ms C wanted the affair to continue. She expressed her love for the respondent in writing, and her desire for something in return. In her note handed to the respondent on 25 June 2021, she wrote:
I only ever wanted to be your friend, but things changed. I felt something I had never felt with anyone else before. I tried to write it off as other feelings for a long time, but I just felt a chemistry with you I've never felt. I wanted to be with you. I wanted to hold you. I feel in love with you. Without ever meaning to.
…
What makes matters worse is that because I love you, because I am constantly holding on to that tiny bit of hope for something in return, I am constantly trying to prove myself to you.
204.Many people suffer various stresses in life, and their mental faculties may be affected in some ways, including decision-making. But the Council’s case was that Ms C was psychologically vulnerable because of the pleaded psychological impairment. Proof of that psychological vulnerability was needed but was absent.
205.We were taken to a series of text messages sent between Ms C and the respondent between July 2018–2021. One difficulty with the text messages is that they were often written in a form of shorthand and were sent in the context of conversations between Ms C and the respondent but without the conversations being in evidence. Therefore, some caution is necessary when assessing these text messages when context was missing.
206.Some of the text messages communicated that Ms C was stressed, and a small number contained mentions of post-traumatic stress disorder and depression. However, those messages have to be read in the context of the many other messages sent which addressed many different work and personal topics, in which no indication was given that Ms C had been diagnosed with a psychological impairment or was vulnerable in any relevant way. They should also be understood in the context of Ms C continuing to suffer physical symptoms from the 2019 accident. That is, when there was discussion about Ms C’s “health”, it is often not known whether they were speaking of her physical injuries which continued until after the affair ended, or her post-traumatic stress disorder or something else.
207.We shall briefly discuss some of the text messages.
208.On 22 June 2019, Ms C texted the respondent and said:
By the way I had a really interesting discussion with the dr re how work is a good thing for me
All to do with silencing the amygdala and activating the cortex
209.Thus, Ms C was being advised by a medical professional that work was good for her. That fact does not suggest vulnerability.
210.On 23 July 2019, Ms C texted the respondent to say that she was sick, but said that an unidentified person (presumably a medical practitioner) told her that she had adrenaline fatigue from excessive stress, and that that would be treated by EMDR. Ms C mentioned a (recent) drive home from Tathra which had triggered a post-traumatic stress disorder relapse, but the “good news” was that she would be “cured shortly”.
211.EMDR therapy is mentioned again in a text message on 13 August 2019, and after that, on 2 October 2019, the respondent asks if Ms C is OK. She responded that she wasn’t (without saying why).
212.Perhaps the closest the text messages got to proving this element of the applicant’s case was a series of messages sent on 18 June 2020, shortly after Ms C had taken the respondent’s Endone without permission. Ms C texted that:
I have had a massive spiral of the anxiety associated with the PTSD with [Mr C’s] anniversary, that on top of almost daily events with mum has tipped me over the edge. I have just wanted to numb everything. Completely
I have a fear of everyone I love dying. It’s why I push everyone I love away. It makes no sense but that’s PTSD.
213.The respondent later responded that he had had updates from Mr C, was pleased Ms C had seen the doctor and would move forward onto recovery. However, subsequent messages show that these text messages were in the context of Ms C taking the Endone and her apparent over-dependence on that drug. Hence, on 21 June 2020 there were messages from the respondent that he wanted to discuss the matter directly with Ms C’s general practitioner and he asked whether Ms C had told the general practitioner that Ms C had taken medication from the respondent.
214.Thus, on 21 June 2020, Ms C texted:
[The respondent] I took 10 tablets with every intention of putting them back. I never put your business in jeopardy. I worked my arse off to ensure that never happened. I actually wanted to come back to talk to you about bigger involvement/investment from us down the track. I care deeply about not only you as a family but the business overall. If you don’t want me back, just say, I can’t do a return to work program. I want to follow my doctors advice about what is best for me, and what I know is best for me. At the same time I can help you…which is surely not bad.
I am desperate to talk to you as text is just hopeless for this.
My performance at work has been above and beyond despite what challenges I have had personally… increasingly so this year
My return is a massive factor in my mental recovery.
215.Dr Parmegiani opined that Ms C was emotionally labile at the time he saw her. That seems an apt description when comparing the contents of those last two text messages sent three days apart. But the short point is that although Ms C was asserting, in very general terms, that she was suffering from anxiety associated with post-traumatic stress disorder, there was no medical evidence to support that assertion in terms of a formal diagnosis, and her feelings of anxiety seemed to have reduced substantially three days later when she was raising the prospect of increasing her involvement at her workplace because her work had been “above and beyond” and that work was a massive factor in her mental recovery.
216.Later, in September 2020, during the Covid-19 pandemic, Ms C texted the respondent to say that she could not cope with the feeling she was about to lose her job, and that she was very stressed and upset. She said she was operating with maximum stress and “depression” and was “struggling”.
217.In a text message sent by Ms C on 4 December 2020, Ms C indicated she was very happy. She said:
As busy as work has been in the past few weeks I can honestly say I have not been this happy for a very long time. It has been so great to see it rebound.
218.On 10 December 2020, Ms C texted the respondent to say that she was “done” (we infer she was referring to the end of a medical appointment) and complained that she had spent $590 to be told she had post-traumatic stress disorder and “hard to treat depression”.
219.Importantly in this case, as we have said previously, no medical evidence, either by way of reports or treatment notes, was tendered to corroborate the assertions made in those messages. There was no evidence from the relevant medical practitioner of any history given to him or her by Ms C nor that practitioner’s diagnosis.
220.On 2 and 3 February 2021, Ms C texted the respondent to say that she was stressed.
221.On 4 February 2021, the respondent texted Ms C to say that her “behaviour today was unacceptable and inexcusable”.
222.Ms C replied that she reacted to being called “mentally fucked up”. She went on to say that:
I will do anything for you. For next week. Whatever you want.
I will take leave after the hearing.
Can we please go in together in the morning.
I will go next door and explain I was having an argument with my brother while you were in another room.
I will literally do anything. I cannot bear this.
You are my closest friend you mean the world to me.
Is there any allowance whatsoever for us both being stressed and exhausted/ pre-hearing. I pushed myself to breaking point to get that… brief done yesterday amidst everything else. And scanning the folders while trying to do the actual prep was a nightmare.
223.On 19 March 2021, the respondent texted Ms C to say that he was doing his best to support her. He said that if she was not up to being in the office she should prioritise her health and she should take time to deal with those matters.
224.On 29 March, after Ms C texted the respondent to say that she was hurting, she needed to talk or cry, she could not deal with the respondent being angry and shutting her out, the respondent texted saying:
[Ms C] you berated me for asking about an IME appointment. You then blame me for being angry. It seems to me you were not up to coming in if you were hurting and now the usual conflict flows. You did not put your health first and now we are back here again. It is fortunate that your doctor wishes to see you now which I ask you to prioritise. I am trying to assist you but as you can appreciate the continuing conflicts and allegations are unhelpful. Good luck in the appointment. Please discuss thoroughly.
225.We infer that the doctor being spoken of was Ms C’s new general practitioner, her previous general practitioner having retired, and Ms C’s health was a reference to her ongoing physical injuries.
226.We were also taken to some text messages sent on 19 May and 1 June 2021, but it is clear from the messages surrounding the ones relied on by the Council that it was the affair, and the respondent’s desire to end it, which was causing great distress to Ms C, and it was that distress, rather than any psychological impairment, that was being spoken of.
227.These text messages, including the ones we were taken to in submissions but which we have not reproduced here, indicate that Ms C was the subject of several very upsetting life events (which included her mother being in palliative care). There were references to post-traumatic stress disorder and depression, but in the absence of expert medical opinion, we are not persuaded we should find that Ms C was suffering from post-traumatic stress disorder with secondary depression and anxiety as alleged as at the commencement of the affair and thereafter, and we are not persuaded that Ms C was vulnerable as alleged.
228.The evidence is that Ms C was seeing at least one medical practitioner at the time, but no medical evidence was called from that medical practitioner, and no reason for not doing so was given. We draw the inference that that evidence, if called, would not have assisted the Council’s case given there was no explanation given as to why that evidence was not adduced.
229.The respondent accepted he knew of Ms C’s mental state as revealed by the Reports at or about the time he read those Reports (which was reasonably contemporaneous to the dates of those Reports). But he denied thinking that Ms C was vulnerable at the time of the affair.
230.It is true to say that the respondent was not as forthcoming as he should have been in some of his evidence. He said in his Response, for example, that he and Ms C had sexual intercourse only three or four times, when in fact there was more frequent non-penetrative sexual interactions. He agreed that he said what he did in his affidavit to create the impression that he had less sexual contact with Ms C than had occurred. That evidence reflected poorly on the respondent’s credit.
231.What should not be overlooked was that Ms C and the respondent were of a similar age, having been born in the same year. It should also not be overlooked that they had a pre-existing and close friendship. It is true that they were employer and employee, but there was no evidence that that aspect of their relationship played any part in Ms C’s consent to the affair.
232.This was not a case of a much younger person consenting to an affair with a much older lawyer where it was suggested or implied that an affair might assist the younger person’s career prospects or some similar type of circumstance. In our view, the affair took place between two consenting adults who had a pre-existing close friendship which developed into them becoming best friends. Ms C was under some strain from various life events, but there was insufficient evidence to persuade us that she suffered from a psychological impairment which caused her to be vulnerable when she consented to the affair.
233.The Council bears the onus of proving, to the necessary standard, the pleaded case. Taken as a whole, we are not persuaded that Ms C was vulnerable as alleged.
Conclusions on Charge 1
234.As the Council did not prove the pleaded psychological impairment was being suffered at the relevant time, nor the alleged resultant vulnerability, the factual basis for Charge 1 was not made out.
235.Accordingly, Charge 1 is dismissed.
Charge 2
236.We shall not repeat the contents of the text messages, file notes and correspondence between the respondent and Ms C that we have referred to and quoted above.
237.Suffice to say that there is little doubt that by July 2021 the situation in the office was untenable (as evidenced by the respondent’s file notes and Ms C’s admissions) and could not continue. This conclusion was not in contest between the parties.
238.No answer was provided by the Council as to what other course of action was open to the respondent other than to terminate Ms C’s employment in those circumstances, and in circumstances where Ms C admitted that her conduct at work was unacceptable.
239.Therefore, in our view, terminating Ms C’s employment was not a breach of rule 5, was not professional misconduct, and was not unprofessional conduct.
240.Accordingly, Charge 2 is dismissed.
Rejection of cross-examination questions on the grounds of privilege
241.During the hearing, the respondent’s counsel sought to ask Ms C whether she had told the Council’s solicitors certain matters. Objection was taken on the grounds of legal professional privilege.
242.Submissions were received the following day, and we rejected the question on the basis that the communications sought to be adduced were privileged. We said we would give reasons for that rejection in these reasons.
243.Ms C was the complainant, a witness in the case and the question was directed to one or more communications she may have had with the Council’s solicitors.
244.The respondent’s first submission was that privilege did not attach to the communications because Ms C was not the solicitors’ client. Whilst factually correct, the submission is legally flawed. Section 119 of the Evidence Act 2011, in terms, applies to communications between a client’s solicitors and any person (in this case being a witness) if they meet the other requirements of s 119, and is not limited to communications between solicitors and their clients. The communication of a witness of the witness’s recollection of an event or events to a lawyer (confidentially) for the purpose of legal proceedings is protected by client legal privilege.[9]
[9] R v Gittany (No 3) [2013] NSWSC 1670
245.The respondent’s second submission was that privilege had been waived because Ms C had given evidence, such evidence having been communicated to the solicitors. In other words, if a witness gave evidence, then any privilege over any other communications between the witness and the solicitors was waived. The respondent relied on section 122(3) of the Evidence Act2011.
246.Section 122(3) is directed to inconsistent behaviour. That is, whether a client or party has acted inconsistently with a claim to maintain a privilege. The primary authority in this area is Mann v Carnell [1999] HCA 66 (Mann). Mann concerned waiver at common law, but it has been held that those principles are no different to those applicable to section 122, as per Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Limited [2013] HCA 46 at [32].
247.Put shortly, we did not accept that the giving of evidence on some matters was inconsistent with the maintenance of the privilege over other communications concerning matters not included in Ms C’s evidence. There is a distinction to be drawn between disclosing the substance of the confidential communication with a lawyer and disclosing the substance of the anticipated evidence concerning the underlying event when giving evidence.[10] Other than the assertion of inconsistency, it was not explained why the maintenance of the privilege was unfair in those circumstances. No authority was cited by the respondent in support of his submission.
[10] R v Gittany (No 3) [2013] NSWSC 1670 at [10]–[11]
248.The respondent’s third submission was that the communication was not a confidential communication as defined in section 117 of the Evidence Act2011. We disagree. In our view, the communication was clearly made when either Ms C or the solicitors were under an express or implied obligation not to disclose its contents.
Costs
249.Directions for submissions and evidence in relation to any application for costs are set out in the Orders below.
250.The Tribunal proposes to decide any costs application on the basis of documents, without the parties, their representatives, or witnesses appearing at a hearing, but if any party opposes that proposal that party should provide submissions to that effect of no more than one page.
Orders
251.We make the following orders:
(a)The application is dismissed.
(b)Until further order, the persons identified in the Table at [22] of these reasons are to be referred to only by the pseudonyms set out in that Table.
(c)Until further order, the disclosure by publication or otherwise of information or particulars that might enable the persons in that Table to be identified or that would reveal their identity, other than by use of their pseudonyms, is prohibited.
(d)If any party seeks costs of the application, any submissions of no more than three pages and evidence in support of the application are to be filed and served within 14 days of the date of these reasons.
(e)Any submissions of no more than three pages and evidence in opposition to a costs application are to be filed and served within 28 days of the date of these reasons.
(f)Any submissions in reply of no more than two pages are to be filed and served within 35 days of the date of these reasons.
(g)Any submissions of no more than one page opposing the determination of any costs application on the papers should accompany the submissions referred to in the orders above.
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Presidential Member J Lucy
For and on behalf of the Tribunal
Date(s) of hearing: 5, 6 and 15 November 2024 Counsel for the Applicant: Mr N Olsen Solicitors for the Applicant: Thomson Geer Counsel for the Respondent: Mr J Pappas Solicitors for the Respondent: Moray & Agnew
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