Law Society of New South Wales v Jayawardena
[2008] NSWADT 187
•4 July 2008
CITATION: Law Society of New South Wales v Jayawardena [2008] NSWADT 187 DIVISION: Legal Services Division PARTIES: APPLICANT
Council of the Law SocietyRESPONDENT
Muhandiramge Chandra JayawardenaFILE NUMBER: 072029, 072037 HEARING DATES: 5 May 2008 SUBMISSIONS CLOSED: 19 May 2008
DATE OF DECISION:
4 July 2008BEFORE: Molloy GB - Judicial Member; Greenwood J - Judicial Member; Dyster B - Non Judicial Member CATCHWORDS: Solicitor – disciplinary application MATTER FOR DECISION: Principal matter LEGISLATION CITED: Legal Profession Act 2004
Migration Act 1958 (Cwlth)CASES CITED: Briginshaw v Briginshaw [1938] 66CLR 336
Council of the NSW Bar Association v Sahade [2007] NSWCA 145
Khera v Law Society (LSD) [2005] NSWADRAP 28
Law Society v Hughes [1999] NSWADT 44
Law Society v Jayawardena [2005] NSWADT 96
Law Society v Pitsikas (1995 1 LPDR 5)
Legal Services Commissioner v Ball (Legal Services Tribunal) No. 13 of 1998
Legal Services Commissioner v Ball [1999] NSWADT 45
Portale v Law Society of NSW (No. 2) LSD [2003] NSWADTAP 56
Mark Phillip Symonds (1995) 2 LPDR 10REPRESENTATION: APPLICANTS
RESPONDENT
P R Boyd, solicitor
No appearanceORDERS: 1. The name of the Respondent Muhandiramge Chandra Jayawardena be removed from the local roll
2. The Respondent pay the costs of the Council of the Law Society of NSW, including its costs of 5 May 2008 limited to 2 hours, as agreed or assessed
3. No order as to costs with respect to the Application filed by the Legal Services Commissioner.
REASONS FOR DECISION
Background
1 The Respondent was admitted on 22 September 1998 and held a restricted practicing certificate until 30 June 1999. This certificate entitled the Respondent to practice as a solicitor, but only as an employee.
2 The Respondent then held a similarly restricted practicing certificate from 2 February 2000 until 30 June 2001; from 3 July 2001 until 30 June 2002; and from 12 July 2002 until 19 October 2006.
3 On that day the Council of the Law Society refused to renew his local practicing certificate for the year ended 30 June 2007, pursuant to the provisions of Legal Profession Act 2004, Section 48(8). The Respondent appealed that decision to the Supreme Court and on 17 January 2007 his Summons was dismissed. However, on 22 January 2007 a similarly restricted practicing certificate was issued to him and he continues to hold that practicing certificate.
4 Doing the best that we can on the material available to the Tribunal the Respondent asserted that he had been admitted to practice by the Supreme Court of Sri Lanka as an Attorney at Law on 2 November 1978 and had been practicing as a lawyer in various parts of the Commonwealth since that date. He stated that he had worked as a Principal State Advocate in the Attorney General’s Chamber in Lusaka, Republic of Zambia; was admitted as a Barrister and Solicitor of the High Court of New Zealand on 13 December 1996; and practiced as a “Barrister Sole” in New Zealand and also as a Staff Solicitor at a law firm in Hamilton, NZ. In addition he had worked as a Corporate Advocate/Reviewer for the Accident Compensation Corporation in New Zealand.
5 More relevantly, his name was entered in the Register of Practitioners kept in the High Court of Australia Registry on 10 September 2003. The letter from the Registry to him dated 26 September 2003 stated (relevantly) as follows:
6 The Respondent, on his own admission, was an experienced legal practitioner.
“You are now entitled to practice as a Solicitor and Barrister in any federal court. If, however, you wish to have a right of audience in that capacity in a State Court exercising federal jurisdiction, you should comply with the requirements of Section 55B(5) and (6) of the Judiciary Act 1903 and become registered in the Register (if any) of the Supreme Court of that State”.
7 The above recitation is necessary because it is important to understand, in what is to follow, that the Respondent asserted in his Amended Reply to the Application filed by the Law Society that, effectively, because he was a New Zealand practitioner and because the legal profession in New Zealand was a fused system that somehow that fact, coupled with his asserted “wrong impression” that he had with regard to the conditions of his holding a practicing certificate in this State, he ought to be excused or, perhaps, that somehow any penalty should be appropriately reduced.
Further Preliminary Matters
8 The Law Society commenced proceedings against the Respondent by formal Application filed 28 August 2007, matter number 072029.
9 The Legal Services Commissioner also commenced proceedings against the Respondent by formal Application filed 25 October 2007, matter 072037.
10 The Tribunal will deal with each of these Applications separately below.
11 The Commissioner’s Application sought joinder of his Application with that filed by the Law Society and a direction that the Law Society be substituted as the Applicant. On 24 April 2008 those orders were made by Her Honour Karpin ADJC, as well as an order that both matters be heard together and an order for substituted service.
12 There was good reason for the last-mentioned order. On four occasions the Respondent had failed to appear in relation to the Commissioner’s Application. In addition, it appears from the Tribunal’s file that the Respondent in fact appeared on one occasion (3 October 2007) at a Directions Hearing but then failed to appear on the following three Directions Hearings.
13 It is important to emphasise these points because the Respondent failed to appear at the hearing specifically fixed for three days commencing 5 May 2008. There was, however, more than adequate evidence, both from within the Tribunal’s file and also by way of additional material tendered as exhibits “1” and “2”, to indicate clearly that the Respondent had been given more than adequate notice of these proceedings and the fixed hearing dates, yet failed to appear, either in person or by any representative. It is also worthwhile repeating that the Respondent actually filed in this Tribunal a Reply and an Amended Reply to the Application filed by the Law Society and, although he filed no documents at all in respect of the Application by the Commissioner, it would seem more than adequately clear that he was at one point an active participant and yet, for reasons not clear, decided to vacate the field of battle. We shall refer to this later in our Judgment.
14 The Tribunal proposes to firstly, address the Application filed by the Law Society and secondly, address the Application filed by the Commissioner.
Law Society’s Application
15 This Application made two significant complaints. Firstly, it was asserted that by letter dated 15 May 2008 he threatened a Mr Wali Rahman. Secondly, it was complained that he acted contrary to the terms and conditions of his restricted practicing certificate.
16 It is appropriate to deal with each of those complaints separately.
Threatening Letter
17 Before proceeding to examine the terms of the letter in issue it is appropriate to observe that the Respondent, as a legal practitioner, appears to have conducted a practice in which his primary clientele were persons seeking refugee status in Australia. All of the material before the Tribunal in both matters deals with that type of clientele. By making those observations it is not intended to be disparaging but rather to identify the type of clients for which the Respondent was acting in the various matters which came to the attention of the Law Society and the Commissioner. In addition, it goes to explain the phraseology used in the letter 15 May 2006.
18 There is no need to refer to the whole letter. On the first page thereof he refers to a complaint made by Mr Rahman to the Commissioner; states that he had “not done anything contrary to the law or unprofessional in handling your case and I was determined to help you because of your mental condition …”; that he was “highly disturbed by your unfounded allegations against me by writing lengthy complaints to authorities, although you say your reading and writing skills in English are no good …”; and then, more relevantly, on page 2 of this letter states:
19 In his letter to the Society 10 March 2007 he asks the Law Society to “peruse my letter to Mr Rahman very carefully. You will realise how considerate I have been from the beginning to help him because of his speech and psychological problems. He was brought to me by a very good client of mine Raj Sudan, highly conversant in English (a North Indian and he had worked as a Manager in a reputed Indian company, before his coming to Australia) who pleaded with me to help Mr Rahman who is a Pakistani Muslim. Mr Sudan told me that Mr Rahman went to a white lawyer with all the files …”.
“As you have withdrawn my appearance on the 3rd of April 2006 by your letter to Court Legal Services Commissioner and the Respondents Solicitors, I presume that I no longer act for you in this matter. What I am now concerned is that you should withdraw your complaint made to the Legal Services Commissioner as you have tried to accuse me for dishonesty, misappropriation of your money, professional misconduct and incompetency.
Please note that I am an Australian Citizen and Barrister and Solicitor of NSW duly appointed by the Supreme Court of Australia, therefore it is my duty to (as you are Refugee Applicant seeking Refuge in Australia) inform the Honourable Minister of Immigration and Multicultural Affairs that you do not satisfy Public Interest Criteria of the Migration Regulations to become a worthy Citizen of this Country, by gaining refugee status.
If you had an audacity to make false allegations and corrupt conduct accusations against me as an Officer of the Court at this stage, I could imagine the amount of problems you can create for decent and law abiding professionals in this Country later, if you would succeed in your Refugee Claims.
Please note that the Honourable Minister has the authority either to refuse or cancel a visa if a person does not satisfy the PUBLIC INTEREST CRITERIA or not of Good Character in terms of Sections 501 of the Migration Act 1958.
In these circumstances I urge you to withdraw your complaint within 14 days on receipt of this letter, its Annexure and all your documents and advice me accordingly. I do not ask an apology from you. In the event if I am not advised accordingly, a copy of this letter and all Annexures hereto will be sent to the Honourable Minister to make a note about you in the Immigration Records and about your inimical nature to the Australian Public and act accordingly at the appropriate time.”
20 The Respondent then pleads that he appeared in the Federal Magistrates Court in respect of another matter and after that “only Mr Rahman made a false complaint against me because he must have been pressurised by (another named person) and other friends to do so to put me into unnecessary trouble”.
21 He later says: “Please note that although I helped him as a Solicitor, it is not only I should act in a decent and responsible manner. The client should also extend that courtesy to me. When I have gone all out and helped him, just because he was highly obligated to (a named person) and his other friends for letter writing and telephone conversations, he should not have been ungrateful to me. He completely forgot what I did to him and made false accusations to the Legal Services Commissioner alleging dishonesty, misappropriation of his money, professional misconduct and incompetency. That is why I sent that letter under reference to him to indicate to him that he should also act in a decent and responsible manner, if he wants to become a refugee in Australia … I only cautioned him about my rights (any citizen has the right to advise the Minister of persons who does not satisfy the PUBLIC INTEREST CRITERIA to avoid undesirables being admitted to this country). Although I wrote that letter because of my deep disappointment with him, I did not tamper or conceal a single document which could have affected his refugee claims … I acted this way for upholding the dignity and respect of the Australian legal profession and the honour of the Law Society. Although this letter was written “a the spur of the moment” I forgot the whole matter …”
22 The Respondent asserts his “contention that I did not commit any professional misconduct in that letter. As I told you I have not pursued any threat against him after that. Just because I wrote (as a human being I was depressed how unreliable and dirty these people could be) that letter, there was no harm caused to him by me … Hence you will see that I did not damage him or was there any imminent threat to his life or his remaining in this country. The effect of the letter was pure rhetoric. Hence I kindly consider my submissions and take appropriate actions befitting the truth and the exact situation that occurred”.
23 In his Amended Reply the Respondent “denies committing an act of professional misconduct and pleads that the (Law Society) has been acting unfairly and unreasonably trying to impose a severe punishment on the Respondent preventing him from holding forever a Practicing Certificate in New South Wales on this mere complaint alone …” The Respondent asserted “irregularity in law and procedure” and then relevantly stated as follows:
24 The Tribunal is acutely alive to its obligations (which we shall endeavour to expand upon below) where a Respondent to an Application does not appear, alternatively is not represented. This Respondent did not appear at all. The Tribunal has therefore been to some pains to set out what it sees as the relevant factual matters pertaining to this particular complaint/issue. The Respondent’s turn of phrase in his letters and Amended Reply is not something about which we take issue or about which issue has been taken. This is often the case when professional people come to Australia from another country where what is now colloquial and/or plain English is not necessarily used.
“d) The Tribunal be pleased to understand that the Respondent having gone all out to help Mr Rahman and having satisfied the Legal Services Commissioner that the Respondent had not at all acted dishonestly, requested the Investigating Officer of the LSC to advise Mr Rahman to discontinue the complaint. When this did not happen and that the Respondent having suffered humiliation and anger because of Mr Rahman copying the complaint to the Minister’s Lawyers and the Registry of the Court, the Respondent admit having acted against the professional norms, but there was no intention at all to cause damage to the on-going refugee Application of Mr Rahman at all.
e) The Respondent feel sorry for writing that letter which had origined because of Mr Rahman’s own conduct partially and partially because of the Respondent becoming highly emotional due to allegations of corruption levelled against him at that time by Mr Rahman. Hence the Respondent (despite Ground 1 filed by the Applicant being irregular, unreasonable and procedurally unfair) is prepared to tender an apology to the Tribunal as a matter of forgetting this issue and get going with the Respondent’s life without any hassle”.
25 It is clear, however, from the documentation that the Respondent was “highly emotional” and sent the letter “on the spur of the moment” in circumstances where he, perhaps belatedly, accepts that such a letter should not have been sent. It is important to understand that the letter to Mr Rahman was copied to the Legal Services Commission, the Registrar, Federal Magistrates Court Sydney (“FMC”) and another solicitor. Looked at dispassionately it is difficult to accept the assertions by the Respondent that he had “no intention at all to cause damage to the on-going refugee Application of Mr Rahman at all” - after all, why would the letter have been copied in the manner that it was?
26 However, there is no evidence of damage suffered and, one would not unreasonably think that the recipients of the copies would simply put those copies in the file and forget they ever existed.
It would not be unreasonable to conclude, by reference to the content of the judgments set out at [29] below, that the Respondent probably had a miserable, exasperating and perhaps humiliating time defending in court the indefensible. The letter is clearly an attempt to cow the recipient by asserting the perceived authority and influence of the Respondent and by sending copies thereof to persons of rank and power.
27 If this complaint was the only complaint against the Respondent we might have been sympathetic to him and perhaps have simply cautioned him on the basis that his conduct fell at the very lower end of the scale of unsatisfactory professional conduct.
28 However, there are much more serious allegations made against the Respondent.
Acting Contrary to Practicing Certificate
29 The evidence here is overwhelming. The Respondent appeared as the solicitor on the record, and in person, in proceedings in the Federal Court of Australia and in the Federal Magistrates Court in relation to a number of appeals in the following matters:
30 The Respondent has only ever held a practicing certificate issued by the Law Society entitling the Respondent to practice as an employed solicitor. In each of the above matters, and although his practicing certificate did not allow him so to do, the Respondent accepted instructions, acted as the solicitor on the record and appeared as counsel for the relevant appellant/applicant. The Tribunal has no difficulty in finding the facts as asserted clearly made out. The material is overwhelming.
SZBKB v Minister for Immigration and Multicultural Affairs [2005] FCA 1811 (13/12/2005)
SZBKC v Minister for Immigration and Multicultural Affairs [2005] FCA 1416 (6/10/2005)
SZDZH v Minister for Immigration and Multicultural Affairs [2005] FCA 1533 (12/10/2005)
SZEOO v Minister for Immigration and Multicultural Affairs [2005] FCA 1797 (12/12/2005)
SZEUX v Minister for Immigration and Multicultural Affairs [2006] FCA 680 (9/5/2006)
SZEPU v Refugee Review Tribunal [2006] FCA 633 (10/5/2006)
SZCOX v Minister for Immigration and Multicultural Affairs [2006] FCA 1053 (4/8/2006)
SZDFF v Minister for Immigration and Multicultural Affairs [2006] FCA 1178 (1/9/2006)
SZGLL v Minister for Immigration and Multicultural Affairs [2006] FCA 1507 (3/11/2006)
SZJBN v Minister for Immigration and Multicultural Affairs [2007] FMCA 434 (13/3/2007)
SZJJJ v Minister for Immigration and Multicultural Affairs [2007] FMCA 467 (20/3/2007)
31 In his Amended Reply the Respondent pleads his admission as a practitioner in New Zealand, the letter recited at [5] above from the Registrar High Court of Australia and “now realise that after the Law Society explained him the Condition of Restricted Practice in his Practicing Certificate, the Respondent gave up completely appearing in any Court since October 2006. The Respondent further states that as far back as July 2004 the Respondent had been exempted from passing Professional Management Course By the Applicant which indicate that the Respondent was suitable to hold An Unrestricted Practicing Certificate. … (The) Respondent is prepared to tender a Written Apology to the (Law Society) for the mistake he had done due to the wrong impression he had with regard to the Conditions of his Practicing Certificate and for almost one year, he had not appeared in any Court in compliance”.
32 It may have been (and there is no need to express a final view on this) that this Tribunal may have been able to look more kindly upon this Respondent had it not been for proceedings taken against him by the Law Society, and consequent findings of this Tribunal, in 2005 (Law Society of New South Wales v Jayawardena [2005] NSWADT 96). It is appropriate now to examine that decision (“The 2005 Proceedings”). It is also appropriate for this constituted Tribunal to confirm that a Member of the 2005 Tribunal was Judicial Member Greenwood, who is also a Member of this Tribunal – the Law Society raised no objection.
The 2005 Proceedings
33 This Judgment was handed down 3 May 2005. The Tribunal found [58] “that the (Respondent) well knew that he could not practice as a solicitor for third parties and to do so was in breach of the conditions endorsed on his Practicing Certificate. The Tribunal is of the view that his continued breach of the condition and in the circumstances … the Tribunal finds (the Respondent) guilty of professional misconduct”.
34 There is no need to go into the details of the 2005 Decision. Suffice it to say that there was before that Tribunal more than sufficient evidence to “clearly establish that the (Respondent) has acted as a sole practitioner” (at [16]) in relation to a Federal Court matter, an Application for Leave to pay a Judgment Debt by instalments, a lease agreement, another legal agreement and a workers compensation matter. It seems that the Respondent somehow practiced under the name “ReQuest International Pty Limited” but pleaded that he “did not act as a solicitor on the record or charged costs for my own gain (in relation to the Federal Court matter) except as an employee of ReQuest International who charge all fees and I was remunerated for the services rendered as their employee”.
35 It is probably worthwhile looking at some further observations of the 2005 Tribunal with regard to the facts put before it. The Respondent apparently, in correspondence with the Law Society, adopted the view that he was a very busy professional person and that the complaints against him were unjustified and were wasting his time. In a letter 23 October 2002 the Respondent said: “Finally, I kindly request that this matter be closed as it had taken a lot of my valuable time which I could have meaningfully utilised for my career development” [23]; on 12 December 2002 the Respondent said: “I am of the view that these have nothing to do with the complaint unless you doubt my honest” [25]; by letter 24 January 2003 [27] he stated that he required at least 10 more days to send a detailed response to the Society and then stated:
36 By letter 17 February 2003 [29] the Respondent set out his academic achievements and work experience in other countries and then complained about the nature of the investigations undertaken by the Law Society and stated:
“The issues involved are of a very important nature and upsets my professional outlook and my competency. Hence I have to study them very carefully without rushing …”.
37 Later, by letter 28 October 2003 [39] the Respondent stated:
“I must tell you that you have not done anything about a crooked lawyer in The Law Society … and gone on investigating about honesty and integrity of a decent man as if he had been a rogue. There was no necessity at all for you to have gone outside your jurisdiction to investigate into my admission, which was never an issue before you. You believed the rogue … and went on an irrelevant “voyage of discovery”.
“I cannot understand as to why you twist and turn all the time when you communicate with me on any matter. After receiving my last reply you are aware you have accepted that I as an employee of a body corporate, I was covered by my restricted Practicing Certificate at that time for the work I did for my employer. Therefore, you conceded that according to the regulations, you will refer this matter back to the Disciplinary Committee for reviewing their previous decision”.
The Law Society responded by letter 23 December 2003 [40]:
“clearly pointing out that the Practicing Certificate that the (Respondent) held did not enable him to practice in the way that he thinks it did and suggested that he obtain legal advice”.
38 There is no need to refer further to the 2005 Judgment facts other than to observe that (at [7]) Counsel for the Respondent conceded, at the commencement of the hearing 7 March 2005, that the Respondent “had practiced as a solicitor in New South Wales without an appropriate Practicing Certificate”. Counsel also conceded that the Respondent had attempted to mislead the Society, that he had failed to comply with a Section 152 Notice within the time specified and that the Respondent “failed to assist The Law Society and co-operate with it in its investigations of the complaints …”.
39 The Respondent was very lucky in the 2005 proceedings. That Tribunal went to considerable effort, after considering detailed character references (then of some vintage) certifying that the Respondent was a person of high integrity and honesty, that the Respondent’s honesty and integrity are unquestionable, but that taking “into account (the Respondent’s) impressive work record and the support of the referees, the Tribunal concludes that the protection of the public did not require that he be prevented from practicing and that an imposition of a fine and a costs order will sufficiently mark the Tribunal’s disapproval of the (Respondent’s) misconduct”.
40 The Tribunal ordered the Respondent to be publicly reprimanded; that he pay a fine of $2,500.00 within 12 months by monthly instalments; a consequent provision for suspension of his practicing certificate should the payments be in arrears; that he pay the costs of the Law Society and that he was “to undertake and successfully complete a course in Legal Ethics conducted by the College of Law or complete such other course as approved by the manager of the Professional Standards Department of the Law Society and such course to be undertaken and completed within twelve calendar months from the date of these orders or such further time as is approved by the manager of the Professional Standards Department”.
41 This Tribunal understands that the Respondent has not complied with the last-mentioned order.
Conclusions
42 The 2005 Judgment makes it plain that the Respondent had been properly warned by the Tribunal’s findings that practicing as a sole practitioner or a solicitor on the record was a breach of his restricted practicing certificate. Properly advised, he would not have transgressed again but rather would have sought appropriate employment so that he could practice as an employed solicitor. Unfortunately, it would seem crystal clear that the Respondent has simply thumbed his nose at the Tribunal and the Law Society by continuing to practice as the solicitor on the record and as a sole practitioner and appearing in Court as counsel as a sole practitioner in clear breach of what he was told by the 2005 Tribunal and what he was told by the Law Society. This Tribunal has no hesitation in concluding that his actions after the 2005 decision (as recited at [29]) are contemptuous and demonstrate that he has little or no understanding of what members of this profession would regard as proper and that he continues to believe that he can continue to practice as the holder of a full practicing certificate notwithstanding the terms of the 2005 Decision and the conditions imposed on his practicing certificate.
43 There are serious implications for members of the legal profession and for members of the public where a person practices as a sole practitioner (or, for that matter as a partner) in circumstances where that person does not hold a full unrestricted practicing certificate. There are issues relating to that person’s holding of a trust account, complying with the Trust Account Regulations, the costs disclosure regime under the Legal Profession Act 2004, all of which seem to be quite foreign to this Respondent.
44 It is not as if this Respondent is an uneducated or inexperienced person. Rather, to the contrary. It may well be that, as a foreigner with a command of the English language not consistent with colloquial or plain English, he may have found employment difficult and that “fitting into” the legal milieu equally difficult. However, all of that (if relevant) is simply not an excuse. The 2005 Decision was clear and this Tribunal in all the circumstances has no hesitation in finding the Respondent guilty of professional misconduct.
45 The Law Society has sought an order that the name of the Respondent be removed from the local roll (of practitioners). We propose to deal with the question of penalty at the end of this Judgment.
Application by Legal Services Commissioner
46 We have been at pains in this Judgment to refer to the Respondent as the “Respondent” as distinct from the usual appellation “legal practitioner”. There is no doubt that the Respondent was acting as a legal practitioner in relation to the complaints brought against him by the Law Society. On the other hand, in relation to the complaints preferred by the Commissioner, and on the evidence therein adduced, there is considerable doubt on whether the Respondent was acting as a legal practitioner at the relevant times. The Respondent asserts in his correspondence with the Commissioner (he having not filed any Reply to the Commissioner’s Application) that he was at all times acting as a Migration Agent under the Migration Agent’s Act.
47 The Commissioner has complained that the Respondent misled the Federal Magistrates Court (“FMC”) by stating that he did not act for a Mrs Sandhu; by failing to inform a Federal Magistrate that an original document lodged by the Respondent on behalf of Mr Sandhu had included Mrs Sandhu’s details, even though that particular page had been substituted with a page that did not record Mrs Sandhu’s details; that similarly he had misled the Commissioner by stating that he acted for Mr Sandhu only; that the Respondent “acted in breach of the accounting requirements as prescribed by Part 3.1 of the Legal Profession Act 2004 and Part 8 of the Legal Profession Regulation 2005” in that certain moneys that he received from Mr (and Mrs) Sandhu had not been deposited into a trust account; that the Respondent had “acted negligently and failed to reach a standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent solicitor” in that he failed to advise Mrs Sandhu that she needed to complete a Form 1005 separate to that of Mr Sandhu, that he failed to file an application on behalf of Mrs Sandhu or advise Mrs Sandhu that she needed to file an application or advise her that he had not done so, that he drafted and filed at Court two handwritten affidavits that were “difficult to read and understand” and finally that he “did not keep any or any adequate records of his meetings or conversations” with Mr or Mrs Sandhu.
48 The Commissioner in support of his Application, filed a lengthy affidavit which annexed numerous items of correspondence, including the actual Complaint Form signed by Mrs Sandhu, various documents from her, various internal documents and letters to and from the Respondent.
49 At the outset the Tribunal was seriously concerned that an injustice might be done if the matter proceeded on the unchallenged evidence of the Commissioner. We put it in that fashion simply because the Respondent was not present and not represented. We have a very clear view of the obligations of this Tribunal when faced with a case of this nature that is effectively being presented ex-parte. The Tribunal, in our opinion, has an absolute obligation to ensure:
a) Firstly, that only evidence in the legal sense be admitted;
b) Secondly, that any findings of the Tribunal are made only on that evidence as admitted.
50 It follows that the Tribunal must be alive to ensuring that material that is not truly evidence is not put before it, such that, if tendered, it must be rejected. In this case, for example, there was tendered the actual Complaint Form signed by Mrs Sandhu which made certain allegations/assertions against the Respondent. It is plain to us that the admission of the Complaint Form simply goes to prove that Mrs Sandhu made a formal complaint to the Commissioner – it does not prove the contents of that Complaint as being true. Similarly there were lengthy letters making all sorts of allegations/assertions against the Respondent and, for the same reason, that type of material ought to be rejected as evidence against the Respondent. It was not sworn to, Mrs Sandhu swore no affidavit and was not called (even though we were informed that she was currently conducting an appeal to the Federal Court of Australia) – this Tribunal can only proceed on evidence and that evidence must be of a quality and cogency that leads inevitably on the Briginshaw standard to a conclusion against the Respondent.
51 Matters to be brought before this Tribunal alleging some sort of non-professional conduct must be of a serious, grave and weighty kind that would prima facie persuade this Tribunal that a finding should be made against a Respondent who is a legal practitioner. Frivolous or unsupported matters ought not to be brought against a Respondent.
52 Making a finding against a legal practitioner relating to his/her professional conduct is a serious, grave and weighty matter. Proof is often said to be to the Tribunal’s “comfortable satisfaction” in accordance with the oft recited High Court decision in Briginshaw v Briginshaw [1938] 66CLR 336. It is worthwhile pausing at this point to re-visit Briginshaw.
53 The headnote in Briginshaw states that it was held that: “on a petition for divorce on the ground of adultery, the standard of proof required by the (Marriage Act 1928 (Victoria)) was not that of proof beyond reasonable doubt which obtains in respect of issues to be proved by the prosecution in criminal proceedings”. Briginshaw was decided in the societal milieu of divorce on the grounds of adultery being a serious, grave and weighty matter that needed to be properly proved.
54 Dixon J (at 368) said this:
“Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not lose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subject to these tests, satisfy the tribunal of facts that the adultery alleged was committed, it should so find”.
55 Briginshaw was a case where the Judge at first instance (Martin J) was not satisfied that the ground of adultery was made out. Dixon J sets this out generally (at 369). His Honour expressed the view that Martin J:
“found himself unable to arrive at any satisfactory or firm and definite conclusion that adultery had been committed although conceding that perhaps in the probabilities arising upon the evidence there was some preponderance of those for, over those against, such a conclusion. It must follow that, in order to succeed upon this appeal, the petitioner must satisfy this court, either that the learned judge ought to have been satisfied of the adultery alleged or that his conclusion was determined by some mistake or error in his reasoning upon the facts. As for the first alternative, I must acknowledge that the respondent’s and co-respondent’s account of the matter, as recorded, has filled me with much misgiving, but I do not think that the materials warrant a court of appeal in finding affirmatively the adultery of which the trial judge was not satisfied”.
56 The point of re-visiting the so-called Briginshaw principle is to underline the importance, and even the duty, of the Law Society and the Legal Services Commissioner, in bringing proceedings in this Tribunal against a legal practitioner, to ensure that the material so brought against the practitioner is such that, at least to a prima facie standard, this Tribunal will be satisfied that there has been appropriate misconduct by the legal practitioner of the types referred to in the Legal Profession Act 2004. It is not a question of “misgivings” but it is rather a question of appreciating the seriousness of the assertions/ allegations that need to be proven in order to base a finding against the practitioner.
57 These issues and principles were discussed and approved as far back as 1994 where the Tribunal’s predecessor in Law Society v Pitsikas (1995 1 LPDR 5) said (at page 5):
“Issues relating to professional misconduct are serious, grave and weighty. The standard of proof is the test of “comfortable satisfaction”. The importance and gravity of the matters in issue must enter into the consideration of whether the evidence produces the reasonable satisfaction required, and it is only after the exercise of caution and after making a close scrutiny of the evidence that the requisite degree of satisfaction can be reached. There must be evidence that is precise and cogent evidence which survives careful scrutiny: see Mercer v Pharmacy Board of Victoria (1968) VR72 at 81-83 and Briginshaw v Briginshaw (1938) 60CLR366 per Dixon J at 361-362 (sic). And see the discussion of the principles that apply in the unreported decision of this Tribunal in the matter of Ian Gordon Dun, No 22 of 1993, reasons for judgment handed down 9 May 1994.
In our view it would be an extraordinary situation, and a travesty of justice, if a finding of fact against the Solicitor in another court or tribunal, howsoever senior, would be binding on this Tribunal when dealing with the Solicitor’s professional conduct when it is clear that the finding of fact was incorrect in that it was not supported by the evidence or was contrary to the evidence. It is the duty of this Tribunal to closely scrutinise the evidence to ensure that the evidence is precise and cogent so that any finding of this Tribunal relating to professional conduct is properly founded”.
58 What this all means that only proper evidence should be led and, in the case of an unrepresented or non-present respondent, the Tribunal must be acutely alive to ensuring that only proper admissible evidence is allowed in upon which it can base its findings, either for or against the parties to the proceedings before it. Briginshaw is an important case in that it underlines the seriousness of the matters that are debated before this Tribunal consistent with the seriousness of the consequences to a practitioner should there be an adverse finding, consequences relating to his/her reputation on the lower end of the spectrum and a strike-off order on the upper end. Legal practitioners are persons who have spent many years at university and often many years in legal practice and are entitled to “a fair go” when they come before this Tribunal in that charges should only be preferred against them that are in fact serious, grave and weighty and properly supported by admissible and cogent evidence.
59 For those reasons this Tribunal rejected much of the material tendered by the Commissioner which related to the conduct complained of. As a general rule, unless it is plain from extrinsic documents, and not some mere assertion(s) by a complainant, there ought to be proper sworn evidence put before the Tribunal to which a respondent can respond, traverse or confess and avoid, also duly sworn, and the deponent(s) available for cross-examination if required. There was no sworn evidence in this case by the complainant Mrs Sandhu.
On this point it is worth repeating the observations of the Tribunal in Law Society v McCarthy [2002] NSWADT 58 at [81]:
Finally, we refer to the matter of Mark Phillip Symonds (1995) 2 LPDR 10. In that case the Legal Profession Disciplinary Tribunal made these observations (at page 12):
“It is not the duty of the Law Society, neither is it the duty of the Legal Services Commissioner to chase every rabbit down every hole. There must, and always should be in any litigation, an analysis by relevant prosecuting parties by way of a cost-benefit analysis such that only matters of importance and substance are brought before the Tribunal. As the Legal Profession Disciplinary Tribunal pointed out in the matter of Ian Gordon Dunn (1994) 3 LPDR 5, matters involving professional misconduct are matters that are, “serious, grave and weighty” (page 7). It is unarguably the duty of a prosecuting authority in professional conduct matters to assess the factual material and to bring forward only that factual material which might arguably constitute conduct that would fall within the parameters of professional conduct as discussed in Dun . In our view a proper analysis by the Law Society would have resulted in an assessment in favour of the practitioner or at the very least to the effect that further proceedings against this practitioner were not warranted in the particular circumstances”.
Those observations were made as long ago as 15 December 1994 and are as valid today as they were in 1994.
“There is absolutely no question in our mind that, firstly, the Society had (and has) no absolute duty to bring proceedings against a legal practitioner in this Tribunal and, secondly that it must only so do after very careful deliberation and carefully weighing up the evidence and the chances of success and only after a careful investigation, careful interview of the witnesses and a professional assessment of the chances of success. Perhaps to use a business phrase: the cost-effectiveness of commencing and maintaining proceedings. It is a very serious matter to bring disciplinary proceedings against a solicitor.
It is a very serious matter to find a solicitor guilty of any sort of professional misconduct or unsatisfactory professional conduct (see in the matter of Dun and in the matter of Spero Pitsikas (1995) 1 LDPR 5) and it is also a very serious step for Society or the Commissioner to file a Complaint against a legal practitioner alleging professional misconduct or unsatisfactory professional conduct. The consequences to a legal practitioner who is served with such a Complaint are highly traumatic. At the very least his/her professional reputation is being put at risk and, at the most he/she is likely to have their name removed from the Roll. Furthermore the result can be extremely expensive because the legal practitioner should properly obtain independent legal advice as to his/her position, be legally represented and generally be put to a great deal of time and expense in resisting the complaint if it is to be contested. Consequently, it must follow that proceedings should only be brought in this Tribunal after careful consideration and weighing up all the facts.”
60 Because of the nature of the allegations and the content of the letters to and fro, the Tribunal thought it appropriate to deliver to counsel for the Commissioner what was, in effect, a request for particulars (“the Tribunal’s particulars”). Although the Commissioner’s formal Application specified detailed particulars of the complaints made, it seemed to the Tribunal that there were serious issues that had not been addressed and not particularised and which went to the substance of the allegations made against the Respondent.
61 The provision of particulars, properly articulated and provided, serves to concentrate the mind on, not only the issues but also the evidence required to prove the assertions. In Legal Services Commissioner v Ball (Legal Services Tribunal No. 13 of 1998, ex-tempore Judgment delivered 13 August 1998 (unreported)), an interlocutory application was made by the practitioner seeking a direction from the Tribunal that the Commissioner provide further and better particulars. The Commissioner, in his filed Information, had alleged a number of quite serious matters of conduct against the practitioner which, if found proved, were capable of constituting professional misconduct. The matter came before the Presiding Member of this Tribunal (Mr G B Molloy) when he made these observations having regard to the fact that the matter had not progressed very far at that stage:
“These are early days and one’s experience shows that as matters progress issues in dispute are refined and even sometimes eliminated. The provision of particulars often assists in this process.
It would be difficult, in my view, therefore, to form an opinion on what material information would be relevant to the issues to be debated before the Tribunal at the hearing of the information. This Tribunal deals with professional conduct. The range of matters that the Tribunal can look at in determining the quality of the conduct of a legal practitioner should not be limited by denying to a legal practitioner access to material and information from which the practitioner, at the hearing, may wish to rely.
I should not try to second guess the evidence or the submissions the practitioner may wish to put before the Tribunal at hearing. Conduct that prima facie appears professionally objectionable may, viewed in a different light, be not so regarded and I should not, in the exercise of my discretion, seek to limit (within reason) the practitioner in endeavouring to elicit from the informant (the Commissioner) matters that may go towards explaining or negativing, or even putting a different hue upon, the alleged professionally offensive conduct.
Proceedings in this Tribunal are serious. The issues are grave and weighty and an adverse finding against a legal practitioner may result in that practitioner’s name being removed from the roll. Consequently, in my view, it is important that the practitioner be permitted to seek from the informant particulars that may not necessarily fall strictly within the ambit of the filed information but which may affect the view that the Tribunal forms of the alleged conduct at hearing.
It is my understanding that particulars may be ordered, even if they are not strictly necessary, to limit the extent of the evidence given at the hearing or to prevent surprise at the hearing and are merely supplemental to the particulars. This Tribunal, in my view, has a wide discretion to order further particulars wherever the proper administration of justice requires. It involves a balancing of the interests of the parties and, in my view, that balance weighs in favour of the legal practitioner today.”
62 In that case counsel for the Commissioner “properly identified the role of the informant as akin to that of a prosecutor so that the informant should put before this Tribunal all material (akin to the principles that govern the obligation to give discovery) that favours the case put forward by the informant or otherwise. Often material and information is only within the knowledge of the informant and not available to the practitioner”.
63 The Commissioner supplied some particulars but the practitioner was not happy therewith and made a further application to the (now) Administrative Decisions Tribunal. The Tribunal decided, in all the circumstances, that this application should be heard before a full constituted Tribunal and this was done and the matter is reported: Legal Services Commissioner v Ball [1999] NSWADT 45. That Tribunal reviewed the law – there is no need for us to set it all out again – it is set out quite clearly in Ball at [1]-[5]. This Tribunal endorses those observations.
64 There is no need to refer further to Ball other than to observe the particulars as supplied by the Commissioner in that matter failed the test of information and facts supplied with precision [15]. The Tribunal went on to observe [18] that “the proper administration of justice requires the Commissioner to be vastly more specific than he has been in responding to the questions so that he truly answers “the usual particulars” with specificity and precision”. The Tribunal then made some observations about the type of particulars as supplied and then said this [23]: “However, the Commissioner is not running a case. He is not winning or losing but he is conducting a matter in this Division in the interests of the public. And, with respect, the public (which includes the legal practitioner) is not assisted by a failure to answer what is really a very simple request for particulars”.
65 The Tribunal observed [27] that “not only should inadmissible material not be put before a court or tribunal … but it is quite inappropriate and in our view improper to put the burden on the legal practitioner to somehow divine from a bundle of material the precise allegation that is being made”. And, at [30] the Tribunal said: “It is plain that “precision” is the key word in the provision of particulars”.
66 Reference should also be made to Law Society v Hughes [1999] NSWADT 44 where the Tribunal said at [217]:
“This Tribunal deals with admissible evidence, not suspicion or conjecture”.
67 Now, having recited those authorities and reverting to the matter in hand, counsel for the Commissioner took some time (understandably) to respond to the Tribunal’s particulars. However, when the Tribunal’s particulars were addressed it became clear, starkly clear, that there was little or no real evidence against this Respondent. Furthermore, it was also clear that various of the complaints would not stand up to any sort of rigorous examination (and we shall deal with these below) and the Commissioner through his counsel withdrew those complaints. However, the fact that the allegations were made indicates, we think, a lack of understanding of the Briginshaw principles – at the time of Briginshaw, to make an allegation of adultery was a serious and grave and weighty allegation which needed to be proved to the so-called Briginshaw standard. That standard has applied, correctly in our respectful opinion, to all allegations of conduct that might be categorized as unsatisfactory professional conduct or professional misconduct. Consequently, before the Commissioner or the Law Society brings proceedings against a legal practitioner they must be satisfied that the conduct about which they propose to complain is in fact, not only of a serious, grave and weighty type but also that the material sought to be used in proof of that conduct is evidence in proper form from which the appropriate conclusion can be drawn, at least to a prima facie standard, consistent with the observations of Dixon J (quoted above) in Briginshaw.
68 It is a serious matter to seek to cast aspersions on a person’s character, to seek the imposition of a fine, to seek to deprive that person of his/her chosen calling or profession. Thus it is important, particularly in the peculiar costs milieu that pertains in this Division, to ensure that only matters are brought which survive the Briginshaw analysis.
69 The Tribunal now proposes to consider each of the Commissioner’s complaints against the Respondent, dealing with them as pleaded in the Commissioner’s Application and with reference to the Tribunal’s particulars as supplied by counsel for the Commissioner as a result of the request from the Tribunal.
Commissioner’s First Complaint
70 The Commissioner asserted that the Respondent “knowingly and deliberately misled the Federal Magistrates Court (“FMC”) by informing the FMC that a Mrs Sandhu “was never my client and I never charged any fee from her. My only client was Sukdhev Singh Sandhu (“Mr Sandhu”) from whom I charged $770.00” when at all material times the Respondent did in fact act for and had instructions from Mrs Sandhu.
71 The formal complaint to the Commissioner was made by Hariett Kaur Sandhu (“Mrs Sandhu”) and Jajeet Singh Sandhu (Mrs Sandhu’s son) (“Jajeet”) and was signed only by Mrs Sandhu. At all relevant times Jajeet was a minor, born 10 June 1993 and at the time of the complaint was aged 13. It might be assumed that Mrs Sandhu was his legal guardian because she inserted his name on the Complaint Form and also included his name (as a deponent) on her ultimately filed affidavit in the FMC. But there was no evidence of legal guardianship residing in Mrs Sandhu, as distinct from Mr Sandhu, and thus this Tribunal is unable to form any opinion one way or the other. Counsel for the Commissioner conceded that guardianship of Jajeet was not known.
72 The formal Complaint Form noted the Respondent as being a “Migration Agent” with a registered number; then (in paragraph 4) describes the Respondent as the solicitor for Mrs Sandhu (and Jajeet), then notes that her (their) Complaint related to proceedings in the FMC, case No. SYG 3915/2006; asserted (at paragraph 9) that the main issues were “not filing proceeding negligence” and “taken the fees not file the case”. In paragraph 10 she provides details of her assertions against the Respondent. She states that she is the first applicant in the FMC proceedings; that her (Refugee Review Tribunal (RRT)) decision was received separately from the decision of her husband; that the Respondent “acted for my family with the review with the RRT when the matter was sent to us”; that the decision relating to her “was received later than my husband’s application” which itself was filed with the FMC for review by the Respondent; that her RRT decision was received “late November or even early December” and that the Respondent completed the date of receipt by her as being “12 October 2006” in circumstances where that date was not correct [in fact it was the date of the RRT decision] and that (on the papers) the Respondent mis-completed the FMC Application by ticking (in fact a cross (“X”) was used) the incorrect box relating to waiver of time for filing an application out of time such that the correct box that should have been completed was the box requesting an extension of time under Migration Act 1958, Section 477, the time for the filing of the Application having expired.
73 Attached to the Complaint Form is a letter from Mrs Sandhu. Again, she describes the Respondent as “my migration agent”. She stated that she had given to the Respondent “fees to file our application to” FMC but the Respondent only filed Mr Sandhu’s application and “he did not file my and my son Jajeet Sandhu application to the Court. This was his great mistake”.
74 She then asserted that after the decision rejecting her refugee status was received by her from the RRT she telephoned the Respondent and asked him to make an application (by way of appeal) to the FMC “within 28 days” and he told her that he would “file your application in time – you don’t worry”. She then asserted that “after that I don’t know about our case, what happened, whether he applied or not. He did not inform us about our case. And then one day immigration came to my home and they told me there are no records of you and your son in our office records”. It is difficult to follow precisely what is then asserted but later in the letter she states “now Federal Magistrates Court Minister has sent a letter to me that on 28/5/07 you case can be dismiss. I am worry about me and my son”.
75 The reason for the Tribunal referring to the Complaint Form is simply to set the scene to understand (as best one can) the nature of the complaint made by Mrs Sandhu. At the risk of stating again the obvious the Complaint Form is not evidence of anything other than the fact that Mrs Sandhu made a complaint. It is certainly not evidence of the facts as asserted and/or the allegations made.
76 We now need to go back a little in time to trace the history of the Sandhu family in relation to its contact with the Respondent. There is absolutely no doubt, and the evidence is quite clear, that Mr Sandhu and Jajeet came to see the Respondent on 17 October 2006. On that occasion Mr Sandhu paid the Respondent $770.00. The Respondent issued a receipt in the following terms:
“Received from Sukhdev Singh Sandhu and Harjeet Kaur Singh Sandu the sum of seven hundred and seventy dollars only, being for preparation, lodgment of FMC application and obtaining BVA”, (the last letters referring to a Bridging Visa Type “A”).
77 The receipt was signed by the Respondent.
78 At that time (17 October 2006) Mr Sandhu’s refugee status was as follows: the RRT had refused his refugee application; thus it was necessary (in order to keep the matter going forward) for Mr Sandhu to apply to the Department of Immigration for a renewal of his “BVA” visa by preparing and lodging with the Department a Form 1005, and also to file an Application (by way of appeal) with the FMC from the decision of the RRT. Consistent with that situation and his instructions, the Respondent lodged within time the Form 1005 (Application for a bridging visa) duly signed (at paragraph 47 thereof) by Mr Sandhu and also filed within time Mr Sandhu’s Application in the FMC (SYG 3219/2006) joining the RRT as one of the Respondents, also signed by Mr Sandhu; and all of this was clearly supported by the Respondent’s file note 17/10/06 (set out at [116] below which makes it clear that his instructions were only from Mr Sandhu.
79 One of the “problems” on the completed Form 1005 was that paragraph 13 the Form requires the Applicant to “Give details of members of your family unit who are also applying for a bridging visa on this application form” and the Respondent had completed the name and details of Mrs Sandhu. An officer of the Department of Immigration and Multicultural Affairs kindly telephoned the Respondent, drew this to his attention and returned the Form 1005 to him. The Respondent immediately recognised that Mrs Sandhu should not have been included as a person applying for a bridging visa (for the obvious reason that although the RRT had in fact rejected Mrs Sandhu’s application she had not received the rejection and thus did not know, and neither did her husband know, and neither did the Respondent know, that she should be applying for a bridging visa), substituted a blank page (showing there were no other members of Mr Sandhu’s family unit applying for a bridging visa on Mr Sandhu’s application form) and then sent the completed correct form back to the Department 11 November 2006. In his hand-written note to the Departmental Officer the Respondent notes:
“Thank you for pointing out the error I have made.
2. I have faxed hereto a substituted page with “NIL” members of the Family Unit. Pl(ease) replace Page 7 faxed hereto with former 1005.
3. I agree. Mr Sandhu was a single Applicant to RRT and he only signed 1005.
4. I thank you once again.”
80 In support of the Application to the FMC Mr Sandhu swore an affidavit prepared for him by the Respondent. He observed that the Department had rejected his application for a protection visa on the basis that he had “not satisfied the refugee criteria”; that the RRT had also “refused my application. Hence I wish to appeal to Federal Magistrates Court”.
81 The material before the Tribunal shows clearly that Mr Sandhu gave those instructions and that the Respondent carried out those instructions. There was no submission made by the Commissioner in or to the effect that in carrying out those instructions on behalf of Mr Sandhu the Respondent acted in any improper or incorrect fashion or that he acted in any role other than as a migration agent. It may well be that there was no issue in this Tribunal that in so acting for Mr Sandhu the Respondent acted as a migration agent. But the material was put before us, was unchallenged and we have no hesitation in concluding, on the evidence, that at all material times the Respondent received instructions from and acted for Mr Sandhu as a migration agent.
82 The next vital question is this: having regard to the above recitation of facts can it be said that the Respondent also acted for Mrs Sandhu? The answer must be: “No”. It is not sufficient to draw that conclusion simply from looking at the receipt (at [76] above) – receipts are often issued in different names (example a receipt may be issued to a company or a cheque received from a company on account of a personal client). The plain fact is that the evidence in relation to Mr Sandhu does not support a conclusion to anything near the Briginshaw standard that the Respondent acted for Mrs Sandhu.
83 The next important point to make is this: the Respondent in his correspondence with the Commissioner has strenuously denied that he acted for Mrs Sandhu. That is not to say that his denial has always been as clear as it could be simply because at times he appears to have overtly stated that he acted for Mrs Sandhu. So, for example, in his letter 9 July 2007 he stated (paragraph 3) that he acted for Mr Sandhu as a migration agent in FMC matter SYG3219/2006; he then denied preparing Mrs Sandhu’s FMC Application, and asserting that the handwriting thereon was not his; raised the proposition that Mrs Sandhu had prepared her own affidavit in support; and then, in paragraph 5, stated that he “acted as a Registered Migration Agent for Mr Sandhu only”, and confirmed that he told His Honour Scarlett FM to the same effect. Yet, in his letter to the Department of Immigration and Multicultural Affairs 7 November 2006 he stated that he was acting as the “duly appointed Migration Agent” for both Mr & Mrs Sandhu and in support of that assertion produced an Application and Affidavit that were filed in the FMC on 3 November 2006 – that Application and supporting affidavit related to Mr Sandhu only! In his letter to Scarlett FM 15 June 2007 he made it plain that Mrs Sandhu “was never my client and I never charged any fee from her” and that he “was appointed Migration Agent who lodged the application on behalf of only (Mr Sandhu)”. Then, if more confusion is necessary, in his letter to the Commissioner 2 August 2007 (paragraph 4) he referred to the conference with Mr Sandhu and Jajeet, then referred to his file note (at [116] below) (which relates only to Mr Sandhu) and then stated: “Please also see that I have written in that Note “Await documents” because they had to send to me the RRT decision, Sworn Affidavit, fee waiver application, signed Application. That was why I have further written on that Note “Lodge on 3/11/06”, which means I have agreed to do lodge their FMC Application and obtain the work rights for them by submitting FORM 1005 to the Onshore Protection Unit of the DIMIA in Sydney”; but later this is clarified in paragraph 5 where he makes it plain that the FMC Application “applied only to Mr Sandhu because he was the only Applicant in that RRT decision because he had lodged a Refugee Application to DIMIA on his own without the wife and child”.
84 The Respondent in this letter proceeds to make it even more confusing. In paragraph 6(a) he states that he “issued the Receipt (for the $770.00) in the name of both Mr Sandhu and his wife, because, at that meeting on 17/10/06, they engaged me to prepare and lodge their FMC Application, visit FMC Registry to lodge it, prepare and lodge Form 1005 with the DIAC on their behalf for the renewal of their BV “A” for work rights and to obtain the approval of the DIAC and put the Visa Label on their Passports. The fee charged was the standard fee I charge from anyone to do the amount of work explained. That is a single job and once and for all charge and no more. There was no need to put that money into a Trust A/c because that was a single job and single fee for my time professional services and my livelihood. There was nothing paid on Trust for perpetuation”.
85 Then, in paragraph 6(b) he states:
“At that meeting I did not have the RRT decision, nor the Sworn Affidavit or the Formal Application to FMC signed by them. They gave me the impression that RRT refusal was in respect of both of them.
[Pausing at this point the Commissioner conceded through his counsel that the Respondent and Mrs Sandhu had never met and Mrs Sandhu was not at that meeting on 17/10/06].
That was why I have written on the Receipt both their names. At the same time I prepared the Affidavit in their both names before they left my Office that night to enable them to go before the JP in Griffith and sign accordingly. As I got the impression that the principal Applicant was Mrs Sandhu I put her name first in the Affidavit, followed by the name of Mr Sandhu”.
86 At 6(c) the Respondent stated:
“I also gave the Formal Application to FMC for both of them to sign when they go back to Griffith and send with the Affidavit and the RRT decision … I did not have the RRT decision at that time to insert all the details asked for in the Application and at the same time there was no time to carry on with them until very late in the night with their small child. Hence I gave them the blank Application to be attended to and send back with all other documents”.
Clearly, these observations were also wrong – Mrs Sandhu was never at that meeting.
87 In paragraph 6(d) he agreed that the Affidavit for SYG 3219/2006 was prepared by him “to cover both Mr & Mrs Sandhu and that was I marked the two places in the FMC Application to be signed by both of them”. Then, in paragraph 6(e) he refers to the receipt and states that when it was issued by him “I had only limited information about the Application to FMC and according to the documents I prepared at the time, it appears my intention had been to act for both Mr and Mrs Sandhu. However (the Departmental officer) pointed out to me that the said particular RRT refusal affected only Mr Sandhu’s Protection Visa Application, the work-rights of Mrs Sandhu had not been affected as she and her son had a separate Application to RRT”.
88 The most important aspect, however, appears at paragraph 6(f). Here the Respondent refers to Mrs Sandhu’s admission that she had not received the RRT decision, handed down on 12/10/06, until the end of November or early December 2006. He states that the date 12/10/06 “may be the date of handing down of Mr Sandhu’s RRT decision. That may be the reason I lodged his one on 03/11/06 To FMC in order to be within 28 days” [the appeal period]. He then says that there was “no way of my obtaining (Mrs Sandhu’s) work rights, because, there was no refusal of her claims that had been made at the time they saw me on 17/10/06. Only Mr Sandhu’s application that had been refused by the RRT by that time”.
89 Then, in the following paragraph he denies that Mrs Sandhu came to see him at all (now conceded by the Commissioner).
90 So, at least on the material that is in evidence before us, it would seem that at the time Mr Sandhu and Jajeet saw the Respondent there had been a RRT decision against Mr Sandhu such that the appeal could be properly launched in the FMC on his behalf. On the other hand, no time had commenced running against Mrs Sandhu because she had not received the rejection decision of the RRT in her case. Thus, Mrs Sandhu could not have given instructions to the Respondent in any case because she simply did not know what was the result of her RRT decision. In any event, and assuming that the RRT decision in her case had been handed down on 12/10/06, the time had simply not then expired, such that the next legal step for Mrs Sandhu, as far as the Respondent was concerned at the conference 17/10/06, was “nothing” because no decision had been received.
91 What happened next? It would seem from the evidence and the Tribunal’s particulars, upon Mr Sandhu’s instructions the Respondent completed a form of Affidavit for the FMC in the joint names of Mr Sandhu and Mrs Sandhu, together with a blank (and this is an important word) FMC Application form and handed those forms to Mr Sandhu. The Tribunal’s particulars make it plain that it was Mrs Sandhu who completed the Application. Mrs Sandhu then signed the affidavit but, doing the best that we can on the evidence, it would seem that she deleted from the affidavit drafted by the Respondent the name of Mr Sandhu and substituted Jajeet’s name; she also completed the application in a number of important particulars: firstly, she listed the decision of the RRT as being “20/09/2006”; secondly, she completed the “Date when notification of the decision was received by the applicant” by writing “12/10/06” (clearly the wrong date because she herself says that she did not receive the notification until late November or December 2006); then, under the heading “Application for extension of time” she puts an “X” in the box indicating that she does not apply for an order for extension of time under Migration Act 1958 Section 477.
92 There is no Lawyer’s Certification and the Commissioner conceded in the Tribunal’s particulars that it was Mrs Sandhu who filed the application and the affidavit in the FMC on 28 December 2006 when it was allocated SYG 3915/2006. This concession is properly made because there is evidence to the effect that the Respondent was not in Australia at that time.
93 It appears clear from the Tribunal’s particulars and the documents that Mrs Sandhu took the original affidavit prepared by the Respondent in the joint names of Mr & Mrs Sandhu, deleted Mr Sandhu’s name and inserted in lieu the name of her son Jajeet, then took the date of swearing, originally entered by the Respondent as “the 17 day of 10 2006” and changed that herself to read “the 28 day of 12 2006”; then copied her husband’s FMC Application form and thereby wrote down the wrong date “12/10/06” thereby putting her out of time.
94 There is no real evidence one way or the other why it was that the Respondent prepared one affidavit for Mr Sandhu and then another affidavit for Mr Sandhu and Mrs Sandhu. The best that we can do is opine that the second affidavit was prepared as a template to be altered as appropriate by Mrs Sandhu when she received the RRT decision. It would seem that the Respondent was doing his best to assist but it is plain to us that, on the evidence and the Tribunal’s particulars, that Mrs Sandhu did not give any direct instructions to the Respondent and, indeed, gave him no instructions at all, but rather altered the affidavit as she thought was appropriate and completed the FMC Application as she thought appropriate without any input from the Respondent. So, instead of her blaming the Respondent for filing the FMC Application out of time, she clearly should have paid more attention to the document and completed it properly. There is absolutely no evidence at all that the Respondent received from Mrs Sandhu any signed documents and we can only conclude that it was she who filed the Application and Affidavit in the FMC and that she is the author of her own misfortune. There is no evidence either way as to who actually filed those documents but we are certainly not persuaded that it was the Respondent.
95 Equally as importantly, the Tribunal concludes clearly that no money was paid by Mrs Sandhu to the Respondent – this was plain from the Tribunal’s particulars and from the fact that Mrs Sandhu never saw the Respondent, notwithstanding the terms of the receipt. The Commissioner in the Tribunal’s particulars conceded that no money was paid by Mrs Sandhu.
96 One of the Tribunal’s particulars sought information or evidence as to whether the $770.00, unarguably paid by Mr Sandhu, was a reasonable sum for the work done on his behalf. No information was put to the Tribunal one way or the other, save that the Respondent says that it was a proper amount for him acting for Mr Sandhu as a migration agent.
97 With regard to Jajeet his fate seems to rest upon that of Mrs Sandhu and similar observations that we have made above apply equally to him. The Commissioner conceded in the Tribunal’s particulars that no money was paid to the Respondent on account of any instructions (if any) by or on behalf of Jajeet.
98 This complicated web of facts leads this Tribunal to the clear conclusion that at all times the Respondent was correct when he asserted to the Commissioner, and to the FMC, that he only acted for Mr Sandhu. Consequently, the Respondent did not mislead the FMC as pleaded in Particular 1.25 of the Application before this Tribunal, neither did he mislead the FMC as pleaded in Particular 1.26-1.27; neither did he mislead the Commissioner in terms of Ground 2, Particulars 2.1-2.3 inclusive.
99 That is not to say, we hasten to add, that some of the material that the Respondent put to the Commissioner was clear – rather, in some cases, to the contrary. But a careful analysis of that material makes it plain, so we think, that the Respondent only acted for Mr Sandhu.
Commissioner’s Second Complaint
100 The Commissioner alleged that the Respondent “knowingly and deliberately misled the Office of the Legal Services Commissioner” in a number of pleaded Particulars. Particular 2.1 – 2.3 asserted that by his letter 9 July 2007 the Respondent advised the Commissioner “that he acted for Mr Sandhu only” and that in so doing the Respondent misled the Commissioner. As we have stated above [98] this Tribunal finds, on the facts, that the Respondent did only in fact act for Mr Sandhu and therefore this particularised complaint must be dismissed.
101 The Commissioner then made further assertions in Particulars 2.4 and 2.5. These relate to an allegation that in support of the Respondent’s contention that he only acted for Mr Sandhu, he advised the Commissioner in his letter 9 July 2007 that the Form 1005 filed on behalf of Mr Sandhu had paragraph 13 substituted, whereas the originally filed From contained a different paragraph 13. It will be remembered (see [79] above) the original paragraph 13 listed Mrs Sandhu’s details but the Departmental Officer had queried this and the Respondent had accepted that query and had simply substituted a blank sheet of paper marking next to paragraph 13 the word “NIL”. This, the Commissioner asserted, was misleading because in his original Form 1005 the Respondent had listed Mrs Sandhu’s details and thereby the Commissioner could conclude that he acted for Mrs Sandhu as well.
102 This submission does not stand up to any rigorous examination. The Commissioner had before him the facsimile from the Departmental Officer 10 November 2006 and the response written thereon by the Respondent as we have recited above at [79]. It was plain therefrom that the Commissioner could not have been misled – rather, those facts supported the Respondent’s clear contention that he did not act for Mrs Sandhu.
103 Under the same heading asserting that the Respondent “knowingly and deliberately misled” the Commissioner’s office in Particulars 2.6 – 2.10, the Commissioner asserted that in preparing the receipt, by his letter 2 August 2007 responding that he did not act for Mr and Mrs Sandhu and in terms of paragraph 6(b) and 6(c) of the Respondent’s letter 2 August 2007 (referred to above at [83] – [89]) and in the light of Mrs Sandhu’s affidavit, the Respondent misled the Commissioner’s office.
104 We are clearly of the view that this complaint cannot be made out on any appreciation of the facts. Having regard to our findings, based on the material and on the Tribunal’s particulars, it is plain (if we have to say so again) that the Respondent never saw Mrs Sandhu, never received any instructions from her, was never paid any money by her, did not prepare her affidavit and simply did not act for her. Upon a careful analysis (as the Tribunal has endeavoured to carry out above) the Commissioner could not have been misled. And, at the risk of repeating ourselves, as at the date of the conference 17/10/06 Mrs Sandhu was not aware of the status of her Refugee Application, neither was her husband and neither was the Respondent.
105 Having regard to our findings it is plain that the whole of Ground 2 is not proved but rather to the contrary and therefore the whole of the pleaded Particulars in Ground 1 and Ground 2 must be, and are, dismissed. In so doing we observe that Particulars 2.4 and 2.5 were withdrawn at the hearing. It is important, however, to make an observation about these particulars. The reason for this and what follows in this Judgment is that firstly, the Respondent was not present at the hearing and secondly, the Commissioner did not withdraw these particulars until quite late into the hearing and then only after there was some robust discussion and criticism from the Bench in relation thereto.
Commissioner’s Third Complaint
106 In Ground 3, Particular 3.1 – 3.6, the Commissioner pleaded that the $770.00 paid by Mr Sandhu 17 October 2006 “were in part in anticipation of future costs and disbursements and the remainder was with respect to services rendered on 17 October 2006” and therefore the Respondent should have placed the money into a trust account in accordance with the requirements of the Legal ProfessionAct 2004 and Part 8 of the Legal Profession Regulation 2005.
107 At the hearing this complaint was withdrawn. It is important to make this observation because the Respondent always asserted that the $770.00 was for “a single job and once and for all charge and no more. There was no need to put that money into a Trust A/c because it was a single job and single fee for my time professional services and my livelihood. There was nothing paid on trust for perpetuation”. (See [84] above.) We have referred above [96] to the fact that the Commissioner in response to the Tribunal’s particulars was unable to advise whether or not $770.00 was a reasonable price for the Respondent acting for Mr Sandhu. There was no evidence to the contrary in opposition to the Respondent’s assertions. Clearly, on the material, Ground 3 could not be made out and was properly withdrawn.
Commissioner’s Fourth Complaints
108 The Commissioner pleaded that the Respondent “acted negligently and failed to reach a standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent solicitor”. At the hearing, and quite late in the day, the Commissioner through his counsel withdrew the whole of Ground 4. However, this was only after the evidence said to be in support of the various pleaded Particulars was led against the Respondent and there had been quite lengthy discussion between counsel for the Commissioner and Tribunal Members.
109 In these circumstances we think it appropriate to make some observations, simply because it seems to us that in preferring these Particulars against this Respondent in all the circumstances indicates a lack of understanding of the Briginshaw principle.
110 In Particular 4.1 the Commissioner asserted, in respect of the Form 1005 Application signed by Mr Sandhu on 17 October 2006 when Mrs Sandhu’s name was recorded next to Question 13, the Respondent did not advise Mr Sandhu that he subsequently substituted a new page in the Form 1005 which did not include Mrs Sandhu’s name at Question 13. There was absolutely no evidence at all in support of that proposition. In any event, even if there was, one might colloquially ask: “So what?” The Respondent only acted for Mr Sandhu – there was an error in the Form and that error was completed by the substitution of the new page on 11 November 2006. All the Respondent was doing was simply carrying out the instructions of Mr Sandhu. No complaint can be made.
111 In Particular 4.2 the Commissioner pleaded that the Respondent “did not advise Mrs Sandhu that she needed to complete a Form 1005 separate to Mr Sandhu”. That may well be correct – it more than likely is – but that is simply because the Respondent never acted for Mrs Sandhu and, at the relevant time when he saw Mr Sandhu the refugee determination of her status had not been received by Mrs Sandhu. This complaint is simply not made out if it is intended to be a complaint against the Respondent.
112 In Particular 4.3 the Commissioner complained that the Respondent “did not file an application in the FMC on behalf of Mrs Sandhu or advise Mrs Sandhu that she needed to file an Application at the FMC or advise Mrs Sandhu that he had not done so”. Again, this complaint does not survive rigorous examination simply because it was plain at all material times that firstly, Mrs Sandhu’s refugee status was different from that of Mr Sandhu (at the relevant time) and secondly that the Respondent never received any instructions from Mrs Sandhu in any event.
113 In Particular 4.4, the Commissioner complained that the Respondent “drafted and filed at the FMC a handwritten application on behalf of Mr Sandhu that was difficult to read or understand”. We were informed by counsel, in response to the Tribunal’s particulars, that the justification for this complaint was to be found at page 77 of the Commissioner’s affidavit, annexure “M”, tab M. This page was page 2 of Mr Sandhu’s handwritten Application. Quite frankly, other than the fact that it was handwritten (about which no complaint has, or could, be made) it seems to us that the document was neither “difficult to read” nor difficult to “understand”. And the orders sought by Mr Sandhu at the following page are equally not difficult to read nor difficult to understand. The complaint has no merit and, although withdrawn, would have been dismissed.
114 In Particular 4.5, the Commissioner complained that the Respondent “drafted and filed at the FMC handwitten affidavit that was difficult to read or understand”. The Commissioner relied upon, in the Tribunal’s particulars, page 75 of the annexures to his affidavit. This page 75 was an affidavit by Mr Sandhu and, again, other than the fact that it is handwritten, is neither difficult to read nor difficult to understand. Why this complaint was made is not entirely clear. It has no merit and would have, if not withdrawn, been dismissed.
115 In Particular 4.6, the Commissioner complained that the Respondent “drafted a handwritten Affidavit on behalf of Mrs Sandhu that was difficult to read or understand”. In answer to the Tribunal’s particulars the Commissioner relied upon annexure page 10 of his affidavit which page 10 was an affidavit said to be in the names of Mrs Sandhu and Jajeet. The difficulty with the whole of this complaint is that, in answer to the Tribunal’s particulars, it appeared clear that it was Mrs Sandhu who completed this document, not the Respondent. Consequently, the complaint itself was not supported by any evidence at all and would have, if not withdrawn, been dismissed.
116 Finally, in Particular 4.7, the Commissioner complained that the Respondent “did not keep any or any adequate records of his meetings or conversations with Mr or Mrs Sandhu”. Firstly, it was plain that the Respondent never acted for Mrs Sandhu. Secondly, the Commissioner relied upon a number of documents annexed to his Affidavit. The first appears at page 66, being a File Note produced by the Respondent which reads: “17/10/06 – 7/40pm – Sukhdev Singh Sandhu – FMC Application – Await documents – Await Bank Statement – lodge on 3/11/06”. Nextly, the Commissioner relied on a note at page 67, which was the handwritten note made by the Respondent on 11/11/06 and sent back to the Departmental Officer in relation to the Form 1005 (referred to above at [79]). Lastly, the Commissioner relied upon a handwritten note of the Respondent (at page 15) on a letter written by him to the Department of Immigration and Multicultural Affairs 7 November 2007. The note is dated the same date, refers to an express post number and then says, “Pl see copies of the Affidavit and Application filed. 2. You have a Directions hearing on 21/12/06 at 2/15pm in Sydney. Pl attend at the hearing without fail. Pl see page 04 of the FMC Application hereto. 3 Pl ring me if any clarification” and it was signed by the Respondent. The Commissioner did not lead any evidence of what file notes the Respondent should have made in all the circumstances (an important omission in the evidence) and again if this complaint had not been withdrawn it would have been dismissed.
Further Observations
117 The Tribunal has been to some trouble to set out in, perhaps in excruciating detail, the factual matters as asserted by the Commissioner. It has also dealt with those matters pleaded by the Commissioner which were ultimately withdrawn at the hearing – the reason for this is in fairness to the Respondent because, although he was not present and was not represented, all of the material in support of those pleaded complaints was in evidence, there had been discussion between the Bench and counsel for the Commissioner and in our view it would not be fair to simply gloss over all those matters in those circumstances. The Respondent may well have been put off seeking to be heard on the Commissioner’s Application having regard to the quantity of matters pleaded against him such that, in our view, in fairness to the Respondent, all evidence having been led, and the Respondent not being there, the Respondent is entitled to a finding on those pleaded complaints.
118 Nextly, and in any event, the Tribunal has been to some pains in an endeavour to deal with each of the complaints preferred by the Commissioner consistent with Khera v Law Society (LSD) [2005] NSWADRAP 28 the observations of the Appeal Panel in at [68] – [69] where the Panel noted that the Divisional Tribunal had not made any precise finding on a particularised complaint and should “have made a positive finding one way or the other on this particular”. This Tribunal has endeavoured to cover all of the particularised complaints of the Commissioner in accordance with that general principle. At [74] the Panel said: “There is an obligation on a fact-finding Tribunal to find facts as proved or otherwise and then to reach the appropriate legal conclusions”.
Actions as a Migration Agent
119 There was not the slightest jot of evidence that would have persuaded this Tribunal that in acting for Mr Sandhu (or even Mrs Sandhu or Jajeet if the evidence supported that conclusion) on the material in evidence the Respondent acted in any other role other than as a Registered Migration Agent under the Commonwealth Migration Act 1958. There is no doubt that at least as at 17 October 2006 the Respondent was also a legal practitioner (see the recitation above at [1] – [3]) and there is also no doubt that in relation to the matters as pleaded by the Law Society the Respondent acted as a legal practitioner. But, one cannot draw any conclusion from those facts in relation to the quite specific matters as pleaded by the Commissioner against this Respondent. We have been at pains, in the course of this Judgment, to describe the Respondent, not as a legal practitioner (as so described in the Commissioner’s material) but rather as the Respondent (in a neutral sense) because there was always a very live question regarding the role played by the Respondent in relation to Mr Sandhu (and also in relation to Mrs Sandhu and Jajeet if such could have been made out on the evidence).
120 The Respondent, somewhat belatedly, took the point in his letter to the Commissioner 31 August 2007 by taking what he described as a “Preliminary Objection” because, he submitted, he “did not act for the complainants as a Solicitor or a Legal Practitioner. As you have seen from the documents, I acted only as a Registered Migration for Mr Sandhu for obtaining him a judicial review bridging visa from the DIMIA and preparing him for proceeding before the Federal Magistrates Court which powers I exercise as a Registered Migration Agent in terms of sec. 276(1)(a) & (c) of the Migration Act 1958”.
121 The Respondent re-asserted his contention by stating (in his letter 4 September 2007): “Even if I was a Solicitor at the time I did lodge Mr Sandhu’s Application, it does not bother me, because I acted only in the capacity of a Registered Migration Agent for the particular job I did on behalf of Mr Sandhu”.
122 There was some further correspondence and in his letter to the Commissioner 5 October 2007 the Respondent made these observations:
“Firstly, I must reiterate that I did not act as an Australian Legal Practitioner for the complainants in terms of Legal Profession Act 2004 … that I performed the tasks that were undertaken by me in my capacity as a Registered Migration Agent only … I again remind you that at no stage did I perform any work for them as a Australian Legal Practitioner … if however the Applicants (referring to Mrs Sandhu and Jajeet) made a complaint to the MARA (the disciplinary body dealing with complaints against Migration Agents) at the time, at least the MARA could have made an appropriate Order against me (if found guilty) because I performed my tasks as a Registered Migration Agent who had a current practicing certificate as RMA at the time of performing those tasks. Even if the MARA made a Compensation Order against me, I would have been covered, because I had a valid Indemnity Insurance Cover until 06 August 2007. I do not blame the Office of the LSC, but the complainants may have been wrongly advised to complain to the Commissioner instead of the MARA”.
123 In his correspondence with the Respondent (letter 4 September 2007) the Commissioner asserted jurisdiction by calling in aid Section 499 Legal Profession Act 2004, asserting that the Commissioner “had jurisdiction to deal with complaints about legal practitioners whether or not they hold a current practicing certificate at the time the conduct occurred”.
124 The issue was raised fairly by the Tribunal and, indeed, the Respondent (in correspondence) and the Commissioner sought, and obtained, time to file Written Submissions in support of his contention that in the circumstances the Commissioner had jurisdiction over this Respondent. In discussion between the Commissioner’s counsel and the Tribunal the Tribunal queried whether this case was a proper vehicle for addressing this issue; but the Commissioner has persisted, has made Written Submissions and we are duty bound to deal with those as part of this Judgment.
Relevant Legislation
125 The Commissioner in his written submissions has kindly made reference to relevant legislation, namely the Migration Act 1958 (Commonwealth) and the Legal Profession Act 2004.
126 Instead of setting out the relevant Sections in detail and in the interests of endeavouring to make this decision less unwieldy, we set out below the relevant sections by reference to the relevant sub-sections thereof. It is convenient to set these out firstly because the Commissioner relies upon some of them in asserting that he is entitled to bring this Respondent before this Tribunal even though this Respondent acted at all relevant times as a Migration Agent.
127 Firstly, it is appropriate to refer to the relevant sections of the Migration Act 1958. We set these out hereunder:
A. Section 276(1) For the purposes of this Part, a person gives immigration assistance if the person uses, or purports to use, knowledge of, or experience in, migration procedure to assist a visa applicant … by:
B. Section 277(1) For the purposes of this Part, a lawyer gives immigration legal assistance if the lawyer:
(a) …
(b) …
(c) preparing for proceedings before a court or review authority in relation to the visa application …; or
(d) representing the visa applicant … in proceedings before a court or review authority in relation to the visa application …
(2) …
(2A) …
(3) …
(4) …
C. Section 275 defines “lawyer” as meaning:
(a) acts for a visa applicant … in preparing for proceedings before a court in relation to the visa application …; or
(b) represents or otherwise acts for a visa applicant in proceedings before a court in relation to the visa application …; or
(c) gives advice to a visa applicant … in relation to the visa application … that is not advice for the purposes of any of the following:
(i) the preparation or lodging of the visa application …;
(ii) proceedings before a review authority in relation to the visa application …;
(iii) …
(2) …
(3) …
(4) …
(5) …
[Pausing at this point it is important to note (our italics above) the differences between “immigration assistance” and “immigration legal assistance”].
D. Section 280(1) Subject to this section, a person who is not a registered migration agent must not give immigration assistance.
(a) a barrister; or
(b) a solicitor; or
(c) a barrister and solicitor; or
(d) a legal practitioner; or
of the High Court or of the Supreme Court of a State or Territory.
E. Section 281(1) Subject to subsection (3), a person who is not a registered migration agent must not ask for or receive any fee or other reward for giving immigration assistance.
(1A) …
(2) …
(3) This section does not prohibit a lawyer from giving immigration legal assistance.
(The balance of this Section is not relevant).
F. Section 303(1) The Migration Agents Registration Authority may:
(2) …
(3) This section does not prohibit:
(a) a lawyer from asking for or receiving a fee for giving immigration legal assistance; or
(b) …
(4) …
G. Section 316(1) The functions of the Migration Agents Registration Authority are:
(a) cancel the registration of a registered migration agent by removing his or her name from the register; or
(b) suspend his or her registration; or
(c) caution him or her,
if it becomes satisfied that:
(d) …
(e) …
(f) the agent is not a person of integrity or is otherwise not a fit and proper person to give immigration assistance; or
(g) …
(h) the agent has not complied with the Code of Conduct prescribed section 314.
(2) …
H. Section 319(1) The Migration Agents Registration Authority may refer to any authority responsible for disciplining lawyers the conduct of a registered migration agent who holds a practicing certificate (however described) entitling him or her to practise as a lawyer.
(a) …
(b) to monitor the conduct of registered migration agents in their provision of immigration assistance and of lawyers in their provision of immigration legal assistance; and
(c) to investigate complaints in relation to the provision of immigration assistance by registered migration agents; and
(d) to take appropriate disciplinary action against registered migration agents …; and
(e) to investigate complaints about lawyers in relation to their provision of immigration legal assistance, for the purpose of referring appropriate cases to professional associations for possible disciplinary action; and
(the balance of this section is not relevant).
(2) If the Migration Agents Registration Authority refers the conduct of a registered migration agent, it may not take action against the agent under section 303 on the basis of that conduct.
(3) …
128 Pausing at this point it is plain that the operations of MARA are to a degree similar to the operations of the Commissioner and the Law Society in that it is not only the registration body for migration agents but it also has disciplinary powers. There is no need to review the balance of the Migration Act 1958 other than to observe that it gives to MARA wide investigatory powers.
129 The second observation is this: it appears clear from sections 276, 277 and 280 that a lawyer can give immigration legal assistance without being a registered migration agent. It is also clear from section 276 coupled with section 280, that a person cannot give immigration assistance (whether for a fee or otherwise) unless the person is a registered migration agent.
130 It thus follows that a person who is a lawyer holding a current practicing certificate and who provides immigration legal assistance and who is also a registered migration agent, becomes subject to the disciplinary powers of MARA and the disciplinary powers under the Legal Profession Act 2004. Why? Because that person is such a lawyer providing immigration legal assistance under section 277 and is caught be sections 316 and 319.
131 Putting it another way, if the Respondent was simply a registered migration agent and not a lawyer holding a current practicing certificate then it would only be MARA which could exercise disciplinary powers in relation to his actions. But, so it seems to us, if the Respondent was a lawyer holding a current practicing certificate at the relevant time as well as being a registered migration agent, then by virtue of him wearing two hats he becomes subject to two disciplinary regimes. So, if a lawyer wishes to engage in migration work and does not wish to be also subject to the legal disciplinary regime then that person ought to cease to hold a practicing certificate and remove his/her name from the local roll (see [138] below) and practice only as a migration agent.
132 We reach this conclusion by the following route: to be caught by the MARA disciplinary regime does the lawyer carrying out immigration legal assistance need to hold a practicing certificate at the relevant time? The definition in section 275 does not define “lawyer” as meaning a person who holds a current practicing certificate but rather (as we read it) a person who simply is admitted to practice. But, in order to practice admission per se is not sufficient – one must hold a current practicing certificate. Thus, in order to be caught by section 277, coupled with section 316(1)(e) and section 319(1), the person must hold a current practicing certificate, because it is implicit in the disciplinary regime structured under the Migration Act 1958 that a lawyer in section 275 is only a lawyer who holds a current practicing certificate –that is why Section 319(1) exists - the disciplinary regime in respect of a lawyer who is not a registered migration agent and who does not hold a current practicing certificate is non-existent save that it would be a breach of section 280(1).
133 Section 319(1) makes it plain that MARA may refer to the legal disciplinary regime the conduct of a registered migration agent “who holds a practicing certificate (however described) entitling him or her to practice as a lawyer.” Section 319(1) is facilitative to section 316(1)(e) (otherwise there would be no need for section 319(1)) such that it must follow that a lawyer not holding a current practicing certificate but admitted to practice within the definition of “lawyer” in section 275, cannot be referred to the local disciplinary authority under section 319(1). Otherwise, there would no point in section 319(1).
134 If we are correct in this interpretation of the interrelation of these various sections of the Migration Act 1958, then the real question to ask is simply this: at the relevant time of the alleged professionally offensive conduct did the Respondent hold a current practicing certificate? If the answer is “No” then MARA cannot refer that Respondent to the Commissioner or the Law Society. If the answer is “Yes”, then the Respondent can be referred consistent with section 316(1)(e) coupled with section 319(1).
135 The reason for the above analysis is, it will be remembered, because the Respondent asserted the Commissioner could not exercise jurisdiction over him but rather MARA was the only disciplinary authority which could.
136 However, this Respondent was not referred but rather the Commissioner seeks to prefer complaints against him because he is in fact a lawyer. It is relevant, therefore, to consider the various relevant sections of the Legal Profession Act 2004 which we set out below:
A. By Section 5 an “Australian Lawyer” is defined as “a person who is admitted to the legal profession under this Act …”.
B. In Section 6 an “Australian legal practitioner” is an Australian lawyer who holds a local practicing certificate …”.
C. Section 496 defines “unsatisfactory professional conduct” as including “conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
D. Section 497(1) defines “professional misconduct” as including:
E. Section 499(1) This Chapter applies to an Australian legal practitioner in respect of conduct to which this Chapter applies, and so applies:
a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and
b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
F. Section 500(1) This Chapter applies to Australian lawyers and former Australian lawyers in relation to conduct occurring while they were Australian lawyers but not Australian legal practitioners, in the same way as it applies to Australian legal practitioners and former Australian legal practitioners, and so applies with any necessary modifications.
a) whether or not the practitioner is a local lawyer, and
b) whether or not the practitioner holds a local practicing certificate, and
c) whether or not the practitioner holds an interstate practicing certificate, and
(The balance of the Section is not relevant).
(2) …
137 The Commissioner submits that in all the circumstances the complaint by Mrs Sandhu was a complaint made peculiarly within his jurisdiction because at all relevant times the Respondent was an Australian legal practitioner. The difficulty with that argument is that, relevantly, the Respondent held a restricted practicing certificate only up to 19 October 2006 and then did not hold a practicing certificate until 22 January 2007 (see [2]-[3] above). Consequently, and having regard to our findings above, it is plain that the Respondent did not hold a practicing certificate at the relevant times. If it be argued that as at 19 October 2006 the Respondent held a practicing certificate and at that point he acted for Mrs Sandhu, he clearly did not hold a valid practicing certificate from 20 October 2006 through to 21 January 2007, such that any actions the Respondent took during that period he took as an admitted lawyer (but without holding a current practicing certificate) and as a registered migration agent.
138 However, the Commissioner also submits that at all relevant times the Respondent was at least an Australian lawyer (that is, admitted but not holding a current practicing certificate). Legal Profession Act 2004 Section 499(1)(b) and/or Section 500(1) saves the day because the conduct applies “whether or not the practitioner holds a local practicing certificate”. In other words, provided the Respondent was an “Australian lawyer” (that is, admitted to the legal profession) then he is caught by Section 499(1)(b) and, if not, then certainly by Section 500(1).
139 We agree entirely with the Commissioner’s submissions in or to the effect that he is entitled to exercise jurisdiction in relation to an Australian lawyer whether or not that lawyer holds a current practicing certificate at the relevant times. It is all a matter of “conduct”.
140 In his submissions the Commissioner submitted that there was “dual regulation of migration lawyers … that regulation by one scheme is not exclusive and does not oust the jurisdiction of the other scheme. The regulatory regime for lawyers exists along side the regulatory regime for migration agents. They are not mutually exclusive”.
141 We, with respect, agree, but subject to our observations above.
142 We were referred to Portale v Law Society of NSW (No. 2) (LSD) [2003] NSWADTAP 56. That Tribunal, on appeal, differentiated (correctly) between “immigration assistance” in Migration Act 1958 section 276 and “immigration legal assistance” in Migration Act 1958 section 277 and noted that section 280(3) did not prohibit a lawyer from giving immigration legal assistance. At [153] the Tribunal said: “It follows that, unless it is immigration legal assistance, a lawyer may not give immigration assistance merely by force of being a solicitor”. We would respectfully agree with those observations save that there is a remarkable similarity between, relevantly and for example, section 277(1)(b) and section 276(1)(d).
143 We do not think Portale is relevant because clearly, on the allegations made, the Respondent was an Australian lawyer not holding a current practicing certificate acting as a registered migration agent and giving “immigration assistance”.
144 It is now necessary to address the issue of whether, on the facts, the Commissioner has jurisdictional power to refer this Respondent to the Tribunal. In order to address this it is convenient to make reference to Council of the NSW Bar Association v Sahade [2007] NSWCA 145. This case involved an application by the appellant Council seeking to appeal against a finding of the Tribunal on the ground of severity. The barrister had been found guilty of professional misconduct in that in 1999 he pre-registered and applied for shares in Telstra, through a public offering by the Commonwealth, by making multiple (353 pre-registration applications and 215 applications for shares using slight variations of names and addresses) in circumstances where multiple applications from the same person for shares in Telstra were not permitted. The Tribunal found that he was guilty of professional misconduct on the basis that “he had used dishonest tricks and devices for the purposes of concealing the fact that the applications were multiple applications by a single person” and was therefore guilty of professional misconduct and was not at the time of the conduct a fit and proper person to remain on the roll of practitioners. However, a further hearing in relation to penalty was conducted some years later (2005) and the Tribunal found that the barrister was no longer likely to offend against the ethics of the profession and ordered that he pay a fine, was publicly reprimanded and ordered to pay the costs.
145 The Court of Appeal noted (at [86]) that it was “also relevant that the conduct complained of involved share purchases and was, in that sense, unrelated to the practice of law. The conduct revealed a defect in character, because of its deceptive or deceitful nature. Whilst that aspect of character is of high importance in relation to practice as a legal practitioner, it may be accepted that individuals behave differently in different circumstances. It would be wrong in the presence case to simply to assume that a reasonably brief period of deceptive conduct in relation to private investments is of weighty significance in relation to the practice of law”.
146 The Court (at [58]) observed that “some aspects of character are likely to be of limited relevance to the practice of law. However, willingness to engage in deceptive or dishonest behaviour would generally be a matter of central relevance. Such a characteristic may be revealed by conduct in the practice of law or in conduct unrelated to the practice of law”.
147 The Court (at [59]) quoted with approval the observations of Kitto J in Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 at 298 where his Honour said:
“[83] A difficulty in this case is that deceitfulness is a character flaw that is thought by most legal practitioners as well as others not to be confined in separate compartments in one’s life. It is commonly thought that people who have indulged in deceit for their own advantage are likely to be deceitful again when it suits them, whatever they are involved in and whether it be in the course of legal practice or otherwise. Trust is one of the cornerstones of legal practice. Honest dealing is fundamental to fitness to practice law.”.
148 At [74] the Court of Appeal said this:
“The better view is that conduct occurring otherwise than in connection with the practice of law will only constitute professional misconduct if it would justify a finding of a kind defined in the definition. In other words the definition may be expansive in relation to personal misconduct, but only in respect of misconduct sufficiently serious to warrant a finding of unfitness or lack of good character. There is no temporal element involved in this, rather the identification of a high standard.”
149 It therefore seems to us in order to make a finding against an Australian lawyer for “unsatisfactory professional conduct” one needs to find the conduct complained of as being conduct “in connection with the practice of law” (in other words he/she must hold a current practicing certificate to be caught by this definition of conduct) but, in order to make a finding under section 497(1)(b) (that is, professional misconduct where the conduct complained of is “otherwise than in connection with the practice of law”) one needs to make a positive finding relating to facts that fall within Sahade principle.
150 The Commissioner submitted in support of his referral to the Tribunal that the Respondent knowingly and deliberately misled the FMC; secondly, that he knowingly and deliberately misled the Commissioner; in both cases where he advised the FMC and the Commissioner that he acted only for Mr Sandhu whereas (so the Commissioner asserted) he in fact acted for Mrs Sandhu as well.
151 The difficulty that confronts the Tribunal is that, on the evidence, the Respondent did not mislead the FMC and, on the evidence if it had been properly examined (as we have endeavoured to do above) the Commissioner could not himself have been misled into thinking that the Respondent also acted for Mrs Sandhu. Generally speaking, to deliberately mislead a Court or a professional disciplinary body is, so it seems to us, a serious grave and weighty matter that falls within the Sahade principle and is arguably caught by Section 497(1)(b) and may well have justified a finding of professional misconduct.
152 The real problem that confronts the Commissioner is simply this: firstly, the facts as found are against him; secondly, in our view the words in section 497(1)(b) are also against him simply because in reliance upon that sub-section the Commissioner would have to establish facts that would “justify a finding that the practitioner is not a fit and proper person to engage in legal practice”. In other words, the facts as asserted would need to justify that very serious finding. The facts as asserted in this case, upon a proper analysis, in our opinion are not only not proven against the Respondent but even if accepted without critical analysis would be difficult to justify such a finding within Section 497(1)(b) – the reason for this is simply that one would need to work out why it was the Respondent misled the FMC and/or the Commissioner and whether such misleading was deliberate or simply careless or inadvertent. So, even if one accepted everything submitted by the Commissioner and without analysis, it would be difficult (in our view) to make a finding against this Respondent that he was “not a fit and proper person to engage in legal practice”. It is true that misleading a Court or a professional disciplinary authority is a serious grave and weighty matter but there may be reasons that might be exculpatory by way of confession and avoidance and one would need to look at the global picture before one could justify a finding that a “practitioner is not a fit and proper person to engage in legal practice”. In our view that global analysis is not present here; in any event the facts as found do not support the Commissioner’s contentions.
Conclusions
153 Firstly, the Commissioner has succeeded in satisfying this Tribunal that he could properly exercise jurisdiction in relation to the conduct of this Respondent; but has failed to satisfy this Tribunal that the conduct complained of was conduct which would have entitled the Commissioner to bring these proceedings.
154 On the other hand, the Law Society has clearly succeeded in its application. The conduct of the Respondent in sending the threatening letter was clearly unsatisfactory professional conduct, but at the lower end of the scale, however his appearing as solicitor on the record and representing migration applicants in Court proceedings was clearly disgraceful and dishonourable, particularly having regard to the Tribunal’s findings in the 2005 proceedings. We reject the submissions made by the Respondent (as outlined above) in relation to this conduct. The Respondent has shown no real understanding of his role as a legal practitioner and his duties to the public, nor of understanding the 2005 decision, and simply fails to understand the gravity of his conduct and his professional responsibilities.
155 The Respondent filed no Reply in relation to the Commissioner’s Application but did file a Reply and an Amended Reply to the Law Society’s Application. In his Amended Reply the Respondent made the following submission:
- “Finally the Respondent beg that the Tribunal be pleased to consider that the Respondent is more than 63 years of age and that he has been trying to find a job for the last 6 years by responding to an immense number of vacancies notices, but failed to find any so far. Wherefore the Tribunal be pleased to consider the Applicant’s situation and he be granted a sympathetic consideration and thereby his Practising Certificate should not be removed.”
156 Having regard to our findings and our conclusions above although we bear in mind the obvious straightened circumstances of the Respondent, and observing that the Respondent did not appear nor seek to be heard in relation to either of the proceedings before the Tribunal, we have concluded that in all the circumstances there must be only one finding: the name of the Respondent must be removed from the roll of legal practitioners in this State.
157 With regard to costs, the Law Society is clearly entitled to its costs. However, the Commissioner although succeeding on the grounds of whether or not it could exercise jurisdiction relating to this Respondent, has failed on all grounds with regard to the factual assertions and in relation to his proceedings there will be no order as to costs.
158 Counsel for the Law Society also appeared as counsel for the Commissioner. The bulk of the hearing on 5 May 2008 was occupied with the Commissioner’s case. The costs of the Law Society will include 2 hours only devoted to the hearing 5 May 2008.
Orders
- 1. The name of the Respondent Muhandiramge Chandra Jayawardena be removed from the local roll
2. The Respondent pay the costs of the Council of the Law Society of NSW, including its costs of 5 May 2008 limited to 2 hours, as agreed or assessed
3. No order as to costs with respect to the Application filed by the Legal Services Commissioner.
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