Law Society of New South Wales v Young (No 3) (LSD)

[2001] NSWADTAP 38

Appeal Panel

CITATION:	Law Society of New South Wales -v- Young (No 3) (LSD) [2001] NSWADTAP 38
PARTIES:	APPELLANT Council of the Law Society of New South Wales RESPONDENT Lesley McIntosh Young
FILE NUMBER:	999021
HEARING DATES:	03/04/2001, 14/06/2001, 19/06/2001
SUBMISSIONS CLOSED:	06/19/2001
DATE OF DECISION:	11/23/2001
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Young [1999] NSWADT 78
BEFORE:	O'Connor K - DCJ (President); Robinson WL QC -Judicial Member; Elliott K - Member
CATCHWORDS:	no evidence - relevant/irrelevant considerations - unreasonableness
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	982002
DATE OF DECISION UNDER APPEAL:	09/03/1999
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Barwick v Law Society of New South Wales [2000] HCA 2 Law Society of New South Wales v Young (No 2) [2001] NSWADTAP 19 Ex p Tziniolis: re the Medical Practitioners Act (1966) 67 SR (NSW) 448 Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 Burton v Anderson NSWCA (Kirby P, Priestley, Handley JJA) unreported, 28 September 1994 Law Society v Foreman (1994) 34 NSWLR 408 R v A and B [1999] NSWADTAP 2 Woodside v Director General, Department of Community Services [2000] NSWADTAP 8 House v The King (1936) 55 CLR 499 Minister for Immigration and Multicultural Affairs; ex parte P T [2001] HCA 20 Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 Paramananthan v Minister for Immigration and Multicultural Affairs (Fed Ct FC) (1998) 160 ALR 24 Weal v Bathurst City Council & anor [2000] NSWCA 88
REPRESENTATION:	APPELLANT J Griffiths, barrister RESPONDENT P Capelin QC, barrister
ORDERS:	1. Appeal dismissed as it relates to Penalty Orders 1, 2 and 3; 2. In relation to Penalty Order 4 of the Tribunal, Appeal Panel to reconvene to hear submissions on the practicality of the Order, and whether a substitute Order should be made, or the Order vacated.

1 On 3 September 1999 the Legal Services Division of the Tribunal found a legal practitioner who practises as a solicitor, Lesley McIntosh Young, guilty of professional misconduct and guilty of unsatisfactory professional conduct, within the meaning of the Legal Profession Act 1987 (the Legal Profession Act): Law Society of New South Wales v Young [1999] NSWADT 78. It did not accept the Law Society’s submission that the principal penalty be the removal of the practitioner from the roll of practitioners. Instead the following penalty was imposed:

1. That the solicitor Lesley McIntosh Young has been guilty of professional misconduct and is fined $11,500.00 with 12 months to pay.
2. That the solicitor Lesley McIntosh Young has been guilty of unsatisfactory professional conduct and is fined $1,500.00 with 12 months to pay.
3. The solicitor Lesley McIntosh Young should receive a public reprimand.
4. That the solicitor's practice be subject to periodic inspection for a period of three years by the Law Society or its nominee pursuant to s.171C(2)(b) of the Legal Profession Act.

2 The Law Society lodged a notice of appeal on 30 September 1999. Prior to the appeal being heard the High Court delivered its decision in Barwick v Law Society of New South Wales [2000] HCA 2 (3 February 2000). That led the Law Society to move to amend its notice of appeal to take account of the jurisdictional issues addressed by the High Court in that decision. Following grant of leave, an amended notice of appeal was lodged on 26 October 2000.

3 The appeal eventually came on for hearing before the Appeal Panel on 3 April 2001. A ruling on the jurisdictional issues raised by the amended notice of appeal was delivered on 12 June 2001: Law Society of New South Wales v Young [2001] NSWADTAP 17. The Appeal Panel decided that so much of the substantive and penalty decision that was made by the Tribunal that could now be said to be affected by the jurisdictional error identified in the Barwick decision should not be set aside. Consequently the Primary Ground (or Ground 1) of the amended notice of appeal was dismissed. In respect of the remaining grounds of appeal numbered 1-5 under the heading Alternative Ground, there was an application by the Law Society to adduce further evidence. That application was heard on 14 June 2001 with a decision denying the application being delivered on 15 June 2001: Law Society of New South Wales v Young (No 2) [2001] NSWADTAP 19. The substantive appeal hearing occurred on 19 June 2001.

4 This decision deals with the Alternative Grounds as set out in the amended notice of appeal. These grounds correspond to the original grounds of appeal set out in the original notice of appeal. These five grounds follow:

‘ Grounds of appeal on questions of law

1. In reaching its decision the Tribunal failed to take into account relevant considerations which it was obliged to consider.
2. Aspects of the Tribunal's decision were perverse or irrational in the Wednesbury sense.
3. There was no evidence to support findings of fact made by the Tribunal.

Grounds for appeal on the merits

4. On the basis of all the evidence and the material, the Tribunal erred in imposing the penalties that it did and in not ordering that the solicitor be removed from the Roll of Legal Practitioners.
5. The Tribunal erred in making findings of fact.'

5 The Law Society handed up written submissions in relation to each ground. These submissions were revised following the decision delivered on 15 June 2001 so as to remove any reference to the further evidence on which the Law Society had sought to rely.

Background

6 Before dealing with the grounds of appeal, it is desirable to reiterate in outline what this case involved. There were four primary charges, three of professional misconduct (involving five counts) and one of unsatisfactory professional conduct (involving 2 counts).

7 They arose from the practitioner’s conduct in relation to the probate of two deceased estates, the estate of Stone and the estate of Brebner. In each case her instructions were to obtain letters of administration from the Supreme Court. In each case she failed to do so, and instead prepared false Letters of Administration and gave them to her client, who proceeded to administer the estates and relied on the documents in dealings with third parties such as banks and trustee companies.

8 She received instructions in the Brebner estate in January 1995. She filed an application for grant of letters of administration. The Court made requistions on 4 May 1995. She did not respond. On 14 February 1996 she provided her client with forged letters of administration.

9 She received instructions in the Stone Estate on 20 December 1996. On 20 March 1996 she filed an application for grant of letters of administration. The Court made requisitions on 27 March 1997. She responded to the requisition on 21 May 1997. There were several matters that needed to be attended to before a grant could be made. This did not occur and in the process she misled her client and her client’s husband on several occasions as to the status of the matter. On 1 August 1997 she forged letters of administration. On 29 January 1998 she issued a certificate authenticating that document.

10 After recognising the forgery, the solicitor acting for a claimant recognised the forgery and so advised a legal officer at the trustee company with which she was dealing.

11 The solicitor acting for a claimant in the Stone Estate (Ms M Reid of Elliot Tuthill & Co) wrote confidentially to the Law Society by letter dated Friday 13 March 1998. On Monday 16 March 1998, Ms Ferguson, legal officer, Prudential Corporation (despite Ms Reid’s request not to do so) contacted the practitioner directly to inform her of the concerns that had been raised. On Thursday 19 March 1998, there was a conference at the Law Society between the Society’s officers, the practitioner and her solicitor, Mr Lloyd. By letter dated 19 March 1998, Mr Lloyd wrote to the Society on behalf of the practitioner. She admitted the offences in relation to the estate of Stone, and that they amounted to wilful professional misconduct.

12 On Thursday 26 March 1998, there was a further letter from Mr Lloyd on her behalf disclosing similar prior conduct in respect of the estate of Brebner and admitting wilful professional misconduct.

13 The Law Society brought proceedings by way of Information in the Tribunal, in accordance with the Legal Profession Act, s 167. Three types of conduct specific to each estate were the subject of allegations: forgery of letters of administration; propounding of the document knowing it to be false (both charged as professional misconduct); and lack of competence in making application for letters of administration (charged as unsatisfactory professional conduct). There was one allegation solely related to the Stone estate: misleading of the client and the client’s husband (charged as professional misconduct). In line with the letters from Mr Lloyd on 19 and 26 March 1998, all allegations were admitted. The Tribunal made findings of guilt, as charged.

14 The Law Society presented its case by way of affidavits. Its witnesses were not called. The practitioner’s conduct was the subject of affidavits by her and her solicitor, Mr Lloyd. She also gave evidence orally, and there were character witnesses - some gave oral evidence, others gave statements. Many eminent practitioners attested to her integrity and character, despite what had occurred.

Penalty Decision

15 The Law Society’s concern relates to what it sees as an unduly lenient penalty. It challenges the reasoning of the Tribunal below in relation to penalty.

16 Without setting out in its entirety the reasons for decision, it is helpful to refer to their structure. The reasons begin by noting that the practitioner has admitted the allegations and has expressed contrition ‘not mere regret.’ The reasons then deal, in brief, with her professional history. They then go on to outline the course of conduct that led to the allegations being laid against her. The Tribunal accepted that the practitioner was highly regarded in her specialty, family law. She was hard working and seen as ambitious. The Tribunal noted that she had little experience of deceased estates work, only handling six other matters between 1993 and 1998. The practitioner’s conduct in respect of these six other matters has been examined and found to be in order.

17 She told the Tribunal that pressure of work had contributed to the offences that she had committed. The Tribunal also took into account a traumatic event in her private life as possibly providing some explanation for her conduct in relation to the two estates.

18 In January 1995, she and her husband had consulted a clinical psychologist who expressed concerns in relation to the slow development of their then 20 month old son. In June 1995 the son was diagnosed as having delayed motor development affecting speech (dyspraxia). According to the Tribunal, she had a sense of blame, because she and her husband, as first-time parents, had felt they were slow in detecting the signs that ultimately led to them seeking professional advice.

19 The Brebner estate offences overlap with this period. Her involvement with the Stone estate, and her primary offences in relation to that estate, belong to a later period, December 1996-August 1997.

20 The Tribunal referred to the intrinsic seriousness of forging Court documents. It also referred to a long history of voluntary legal work and other activities undertaken by the practitioner, including since the time that her misconduct was discovered.

21 The following aspects of the Tribunal’s reasons were highlighted by the Law Society in its submissions.

‘2 At the outset I make it clear that Miss Young has admitted both offences and has expressed contrition for the offences which is more, in our opinion, than mere regret for being found out. Whilst she apprehended that the offences in the Stone estate were likely to come to the attention of the Law Society, she did voluntarily go to the Law Society and make confession of what she had done at the earliest opportunity on 19 March 1998. It is probable that the offences in the Brebner estate may not ever have come to light unless she, through her solicitor, had not also brought these to the attention of the Law Society. This is no excuse, but it does give some insight to the present attitude of Ms Young.’

and -

‘15 In the latter estate [Brebner] there was no suggestion that any person was disadvantaged by what the solicitor did. In the Stone estate there was apparently some dispute as to the ultimate destination of the money in the estate. Mrs Philips, the client of the solicitor, had said that the only children of the deceased were her two infant children. Initially, one of the problems with the Supreme Court had been because Mrs Phillips was being required to give a bond. Subsequently, there was another daughter of the deceased who made a claim through solicitors, initially through R.D. Black and subsequently through Elliot Tuthill. However, we have heard nothing further about complications in the estate through the later claim (at least formally, although there is a reference in one of the Chronologies handed up by Ms Young's representatives). Ms Young was careful, in saying that did not know of this other child (sic), not to say that Mrs Phillips knew of her existence. It would have been an easy excuse for Ms Young to give as a reason for her actions that Mrs Phillips was so pressing her for a speedy resolution of the estate because Mrs Phillips knew of a possible complication. But Ms Young declined the invitation to put the blame on anyone else. She accepted that the responsibility for the misdoing was hers in each case.’

and -

‘23 It would be our opinion that at the time of the forgeries, Ms Young was not, as the Law Society has submitted is now the case, fit to practise as a solicitor. Her actions spoke of irresponsibility and contempt for the ethics which had been her guide up until then.

24 But the picture has changed. We feel that Ms Young has grasped, again, what she should then have done at the time and now has hold of her moral standards and legal knowledge and competence.

25 We have been referred to a number of authorities and in coming to a conclusion we have taken into account the following.

1. The solicitor made initial confession in the Stone Estate to the Law Society before anyone from the Society came to her. She was no doubt expecting this to happen but she got there first.

2. The solicitor made voluntary confession of the matters in the Brebner estate which may well have escaped detection if she had not told her solicitor of it.

3. She is genuinely contrite and realises the enormity of what she has done. And contrite for the actions rather than the discovery.

4. She had worked for more than ten years in an exemplary and legally competent fashion before the commission of the actions of which we have heard.

5. Many of the fellow practitioners have given glowing character evidence which refer, if not in actual words, at least in the sense, to what happened there as an aberration or being out of character.

6. Her former partners have confidence in her and are prepared to give her their continued support.

7. Her workload has been reduced by the amount of files referred to by her in her affidavit as being between 230 and 280. She now has files of "probably about 150".

8. Whilst the developmental problems with her son are on going, the initial shock of the diagnosis has been accepted.

9. Ms Young has agreed, through her solicitors, to pay the costs of the Law Society of these proceedings amounting to $6,353.00.

10. If Ms Young were to be struck off the roll of solicitors, there would be a number of members of the public who would be disadvantaged. Whilst there are many solicitors in Sydney capable of doing Family Law work, there is no doubt that Ms Young is able to provide a specialist service to her clients. Moreover, her clients, because of their difficulties, would in many instances be unprepared to accept a similar relationship with another solicitor, particularly as matters come close to a hearing.

26 However, there is one matter which does concern us. And that is the possibility of further stress on Ms Young causing a repetition of the actions which brought about this problem. Being a competent Family Law solicitor and an accredited specialist, there is no doubt that she will be under pressure from herself to take on new clients. We accept that Ms Young has herself said that she does not intend to accept instructions in any matter other than Family Law, de Facto Relationship and Family Provision matters. We cannot, of course, put any restriction on the voluntary work which Ms Young does outside her practice, any more than we can comment on her management of her child's education. Nor can we say that Stacks Family Law Services is to continue to use her services. Either Stacks or Ms Young may wish to part company for unrelated reasons which are presently not apparent.

27 But we do see it as important that she should not again have the temptation of taking an easy way out or what seems at the time to be an easy way. For this reason we are proposing a condition under s.171C(2)(b).

28 We have heard no evidence of the financial resources of Ms Young or her husband and the fine which is being imposed has been calculated as a deterrent to others without knowledge of its effect on the solicitor or her family.’

22 The various grounds of appeal raise the question of the appropriate approach to be adopted when considering penalty where there is a finding of professional misconduct. The fundamental question once there is a finding of professional misconduct is that of the practitioner’s continued fitness to practise.

23 Professional misconduct is indicative of lack of integrity and bad character. It cannot be assumed that a change of character warranting continuation in practice has occurred ‘merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred’: Ex p Tziniolis; re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461. In determining whether a practitioner should be permitted to continue to practise after an offence of professional misconduct it is plain that such factors as the gravity and frequency of the conduct giving rise to the finding are relevant: e.g. Law Society of New South Wales v Harvey [1976] 2 NSWLR 154 (Harvey); Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 (Moulton). Also relevant is the nature of the practitioner’s conduct during the period since the conduct in issue and until the question of penalty falls finally to be determined: e.g. Burton v Anderson NSWCA (Kirby P, Priestley, Handley JJA) unreported, 28 September 1994 (case involving veterinary surgeon, order of striking off varied because of conduct during period of stay to one of reprimand and supervised practice and undertaking of training programs).

24 The focus of the inquiry as to penalty is the conduct itself. The absence of any negative impact on the client is of little, if any, relevance: Moulton per Hope JA at 740C.

25 As noted, in assessing the gravity of the conduct it is relevant to take into account the frequency of the conduct, including the number of affected transactions, the period of time and amounts of money involved and the extent of any losses caused. This course was adopted by the Court of Appeal in both Harvey and Moulton, each of which concerned solicitors who had over many years borrowed directly from clients and reinvested their loan monies without addressing the clear conflict of interest involved.

26 It is also relevant to have regard to admissions of guilt, expressions of remorse and contrition and candour.

27 Of the 10 factors listed by the Tribunal in para [25] seen in this case as relevant to its conclusion on penalty, the following, as we interpret the Law Society’s submission are not put in issue:

‘3. She is genuinely contrite and realises the enormity of what she has done. And contrite for the actions rather than the discovery.
4. She had worked for more than ten years in an exemplary and legally competent fashion before the commission of the actions of which we have heard.
5. Many of the fellow practitioners have given glowing character evidence which refer, if not in actual words, at least in the sense, to what happened there as an aberration or being out of character.
6. Her former partners have confidence in her and are prepared to give her their continued support.
7. Her workload has been reduced by the amount of files referred to by her in her affidavit as being between 230 and 280. She now has files of "probably about 150".
8. Whilst the developmental problems with her son are on going, the initial shock of the diagnosis has been accepted.
9. Ms Young has agreed, through her solicitors, to pay the costs of the Law Society of these proceedings amounting to $6,353.00.
10. If Ms Young were to be struck off the roll of solicitors, there would be a number of members of the public who would be disadvantaged. Whilst there are many solicitors in Sydney capable of doing Family Law work, there is no doubt that Ms Young is able to provide a specialist service to her clients. Moreover, her clients, because of their difficulties, would in many instances be unprepared to accept a similar relationship with another solicitor, particularly as matters come close to a hearing.’

28 The following are put in issue:

‘1. The solicitor made initial confession in the Stone Estate to the Law Society before anyone from the Society came to her. She was no doubt expecting this to happen but she got there first.
2. The solicitor made voluntary confession of the matters in the Brebner estate which may well have escaped detection if she had not told her solicitor of it.’

29 The Law Society also draws attention to other parts of the reasons where other considerations not mentioned in this list are said to be found, in particular para [15] referring, in the cases of the estate of Brebner, to the absence of any person being disadvantaged by what the solicitor had done.

Role of Appeal Panel in relation to the Decision of the Tribunal

30 Key Court of Appeal cases to which the Law Society drew attention in its submissions were instances of hearings de novo: e.g. Harvey, Moulton and Law Society v Foreman (1994) 34 NSWLR 408 (Foreman). In a hearing de novo, an appellate court will accord great respect to the views of the disciplinary tribunal which includes an eminent member or members of the relevant profession as to what constitutes acceptable standards of practice, and the appropriate penalty. But it is in no way bound or constrained by them: see generally Foreman per Mahoney JA at 440. It is at large in relation to its fact-finding and penalty assessment function.

31 The Appeal Panel of this Tribunal is not in the same position. The right of appeal is limited to ‘questions of law’ and, by leave of the Panel, may be extended to the ‘merits’: Administrative Decisions Tribunal Act 1997, s 113. The Appeal Panel has set down its understanding of its jurisdiction in a number of previous decisions and it will be not repeated in detail here. Essentially our understanding is that ordinarily an error of law must first be established before any consideration is given to extending to the appeal to the merits: R v A and B [1999] NSWADTAP 2 at [6]; Woodside v Director General, Department of Community Services [2000] NSWADTAP 8. Further even where an error of law is identified the principle in House v The King (1936) 55 CLR 499 at 504-505 per Dixon, Evatt and McTiernan JJ has been seen as generally applicable to proceedings before Appeal Panels in this Tribunal, i.e.:

‘The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material considerations, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has material for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has occurred.’

32 On the other hand, too minute an inspection of the reasons for the decision of the tribunal of fact should be avoided. The relevant principles were referred to in submissions for the practitioner: Minister for Immigration and Multicultural Affairs; ex parte P T [2001] HCA 20 at [30] per Kirby J referring to Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259 at 272, 291. The mere fact that this panel may have come to a different conclusion as to penalty faced with the same circumstances and evidence is not enough.

33 The Law Society’s objections are organised by reference to the familiar error of law categories - absence of relevant considerations, manifest unreasonableness and no evidence. Often the same objection is repeated under each of these headings.

Ground 1: Relevant Considerations

34 We accept the general statements of the law relating to the need for tribunals to consider properly relevant considerations, as set out in the Law Society’s submissions: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24 esp per Mason J at 39-42 and the embellishment of that analysis to the effect that it is the duty of the decision-maker to give the questions before it for its determination ‘proper, genuine and realistic consideration on the merits: Khan v Minister for Immigration and Ethnic Affairs (1987) 14 ALD 291 at 292 per Gummow J and now adopted generally in the Federal Court (Paramananthan v Minister for Immigration and Multicultural Affairs (Fed Ct FC) (1998) 160 ALR 24 at 57 per Merkel J and the line of authority cited there); and also now commended as a relevant standard in New South Wales: Weal v Bathurst City Council & anor [2000] NSWCA 88 at [9] per Mason P. The Law Society also referred to Giles JA’s proposition at [80] in Weal, with which we find no difficulty, that:

‘Taking relevant matters into consideration called for more than merely adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them to warrant the description of the matters being taken into consideration.’

35 As noted earlier, the Law Society does not confine its analysis to those considerations set out in the list of 10 at para [25] of the reasons; and refers to some other considerations mentioned elsewhere in the reasons. It questions the accuracy of the Tribunal’s summaries of the circumstances when compared with the material before it. The Law Society contends that where the Tribunal has inaccurately summarised the circumstances, it must have taken account, necessarily, of an irrelevant consideration, then goes on to submit that, even if the summaries are accepted as accurate, in some instances the consideration remained irrelevant or was not deserving of any significant weight.

(a) Voluntary Disclosure

36 Clearly the Tribunal saw as a significant factor in mitigation that the practitioner had made ‘voluntary confession’ ([252]) of her misconduct in the Brebner estate after her offence in respect of the Stone estate had been discovered. The Law Society contended that the Tribunal had not properly understood the material before it on this point, giving rise to consideration of an irrelevant matter. The Law Society refers to the following answer by the practitioner in the transcript of proceedings (ts), 23:2-5:

‘Q. And if Mr Phillips [the Law Society investigator] had never come along, what do you think would have happened with Brebner?
A: If there had been no cause for me to approach the Law Society about any matter, then in all probability I wouldn’t have disclosed it, but I had an opportunity to do it and I did.’

37 The Law Society’s submission describes this answer as ‘highly unfavourable’ to the practitioner, and noted that the original admission was made one week after her admission in relation to the estate of Stone (26 March versus 19 March). The submission was, in essence, that the disclosure ought more properly be described as ‘calculated’ rather than ‘voluntary’.

38 Clearly, this was a situation where once one event of misconduct was discovered, the practitioner decided to reveal another event ahead of the Law Society making any further discovery of its own. The Tribunal appreciated that there was an element of self-protection and calculation in her choice (see [25.1]). A week passed before she confessed. Viewed in that light it was an informed decision rather than a spontaneous decision.

39 It remains open, we consider, for the Tribunal nonetheless to describe a confession in these circumstances as ‘voluntary’ and deserving of recognition.

40 We agree that the Tribunal overstated the position as it relates to the Stone Estate as being one where it was made ‘at the earliest opportunity’ (see para 2 of the reasons). She knew that she had been found out on 16 March. Her solicitor and the Law Society had contact on 18 March. Disclosure was affected on 19 March. Nonetheless it remains a prompt confession, it was full and avoided some costs to the Law Society. The material before the Tribunal did cover these matters.

41 We are not satisfied that the Tribunal misunderstood the evidence in describing the confession as it did to such an extent as to give rise to an error of law.

42 Nor are we satisfied that there was any failure to meet the standard expressed by Mason P in Weal v Bathurst City Council [2000] NSWCA 88 at [9], ‘that there must be a proper, genuine and realistic consideration upon the merits’ or the standard as expressed by Giles JA, as follows, at [80]:

‘Taking relevant considerations into consideration called for more than simply adverting to them. There had to be an understanding of the matters and the significance of the decision to be made about them, and a process of evaluation, sufficient to warrant the description of the matters being taken into consideration.’

(b) Disadvantage to Others

43 The Law Society challenged the conclusion (para [15] of the reasons) that in the estate of Brebner, ‘there was no suggestion that any person was disadvantaged by what the solicitor did.’

44 The Law Society submits that the Tribunal failed to address the evidence that it had before it on this matter, namely that third parties would be disadvantaged by having propounded to them a fraudulent document. That occurred twice, by fax transmission on 16 February 1996 and then by handing it direct to the client on 28 February 1996. We accept that there is disadvantage to third parties involved in such a step. But as we interpret the Tribunal’s comments, it was simply seeking to make the point that no financial harm had in fact transpired in the case of the estate of Brebner. We do not consider that the Tribunal was thereby disregarding the harm that is necessarily involved in the offence itself; for example, by rendering invalid the dealings of the ‘administrator’ and the title of the beneficiary/ies, exposing the ‘administrator’ to legal action because of the absence of relevant immunities and in turn possibly leaving him deprived of any insurance protection that may have depended on him acting on the basis of valid letters of administration.

45 The Law Society also criticises the decision for not having identified those exposures as relevant considerations to which the Tribunal should have had regard. These matters were not expressly raised by the Law Society in its submissions before the Tribunal. They are matters of which the Tribunal would have been likely to have been aware. It is in our view not surprising that they were not singled out for consideration in the reasons for decision.

46 We agree with the Law Society that little if any weight should be given in the practitioner’s favour to the fact that no harm actually occurred. While regard should be had to actual losses and other harms (e.g. personal distress, damage to reputation) in assessing the gravity of the practitioner’s conduct, the converse does not follow - that lack of harm weighs in favour of the practitioner, for the reasons given by the Court of Appeal in Moulton.

47 In this case it is significant in assessing the actual weight that the Tribunal accorded to this consideration that it is not listed in the 10 factors given in para [25]. We are not satisfied that the Tribunal fell into error by according undue weight to this consideration.

c Practitioner’s conduct not isolated

48 We agree with the Law Society that the frequency of incidents of misconduct is a relevant consideration. In this case there were two events well apart in time. The first set of offences commenced after the receipt of the Supreme Court’s requisitions in or about June 1995. The second set of offences commenced after receipt of instructions on 20 December 1996. This evidence was before the Tribunal.

49 The Law Society says in reply: ‘It is no sufficient answer to this complaint that the ADT set out in its reasons the relevant dates of the respondent’s misconduct. That is merely to pay lip-service. What is conspicuously missing from the ADT’s reasons is any direct discussion at all of this important matter, which, significantly, had also been the subject of detailed address by the Law Society (see ts 66:3-11; ts 67:21-27; ts 68:6-23).’

50 The Tribunal did acknowledge the two set of events. It is clear, in our view, that it weighed that against a range of extenuating factors, in particular the difficult domestic circumstances that the practitioner had encountered over that time. It did not, in our view, regard the events, though there were two of them, as belonging to a pattern of recurring conduct. The solicitor’s other six estate files were found to be in order.

51 We agree that it would have been better if the Tribunal had responded in greater degree to the Law Society’s submissions on this point, but again if there is an error we do not see it as sufficient to warrant intervention on our part.

52 The case stands well apart from such cases as Harvey and Moulton where the practitioners had been engaged repeatedly over many years in the activity leading to them being found guilty of professional misconduct, and where the fine penalty of the relevant tribunal (then the Statutory Committee) was set aside on appeal and replaced by an order that they be struck off.

(d) Period of Rehabilitation

53 The Law Society submitted, in essence, that the Tribunal gave undue weight to the period of good conduct that had passed between the discovery of the offences, March 1998, and the hearing, September 1999. It criticised the ‘superficiality’ of the passage at [24] of the reasons, containing the following statement:

‘But the picture has changed. We feel that Ms Young has grasped, again, what she then should have done at the time and now has hold of her moral standards and legal knowledge and competence.’

54 The Law Society submitted that this was another instance where the Tribunal had failed to give ‘genuine and realistic consideration’ to the question of rehabilitation.

55 The reasons given by the Tribunal on this point were short ones. They have to be viewed in light of the evidence. There was oral evidence from the practitioner. She was cross-examined. There was evidence in her support from a cross-section of practitioners of standing.

56 In this passage the Tribunal was, as we see it, referring to both the extent to which she had come to terms with her misconduct, and the possibility of re-offence.

57 Contrary to the submission of the Law Society, we do not agree that 18 months is too short a period within which to gauge the extent of a practitioner’s rehabilitation. Nor do we see any fundamental difficulty in the Tribunal manifesting a somewhat guarded response on this issue, by imposing a practice restriction (in this instance the periodic inspection order) on future practice. A person can be found fit to practise, but nevertheless be required to submit to conditions for a period. One is not a contradiction of the other. The process that the Tribunal was engaged in was one of balancing the various factors relevant to ongoing protection of the public, so as to decide whether a practitioner found guilty of heinous conduct should nonetheless be given a second chance.

58 There was in our view no error.

Ground 2: Manifest Unreasonableness

(a) Penalties outside the Range

59 Ground 2 focuses on the penalty as compared to the conduct. The contention is that the penalty is manifestly unreasonable in being too light, when regard is had to the objective gravity and circumstances of and surrounding the practitioner’s conduct.

60 The Law Society’s submitted, in essence, that forgery of a Court document should give rise to striking off.

61 The question, as we see it, is, to paraphrase the words of Mahoney JA in Foreman at 450, as follows. Is the imposition of a fine a proper measure of the seriousness of what was done? That question must be qualified in the case of an appeal ‘on a question of law’ (as this ground of appeal recognises) by the further question - was it so unreasonable that no reasonable tribunal would have imposed the penalty in issue?

62 In the hearing before the Tribunal a schedule was presented which included a number of instances where forgery did not result in striking off: Respondent’s submissions filed 23 March 2001, list of authorities. Clearly forgery of a document, especially a Court document which founds a claim to title in property, is a most serious matter. We would expect that ordinarily such a forgery would result in striking off. But as we interpret the contentions of the Law Society, it is put that where there are two incidents of like forgery of such a document well apart in time (as here) it must always be the case that striking off will result. There can be no extenuating factors sufficient to prevent such a penalty. It is, in our view, dangerous to lay down any absolute rules on penalty. Every case will depend on a variety of factors.

63 As the case received some attention in the submissions, we note in relation to Foreman’s case that the forgery in this instance was not as reprehensible. In Foreman’s case the forgery was specifically to the practitioner’s benefit and against the interests of her client (internal time sheet altered to show falsely that a costs agreement had been provided to the client, and produced to the Family Court in support of charges of over $355,000).

64 We are satisfied that in the circumstances of this case it was not manifestly unreasonable for the practitioner to be allowed to continue in practice, and not be struck off.

(b) Excessive weight to Practitioner’s disclosures

65 This ground, once again, attacks the weight given to the practitioner’s disclosure of her second offence. It is contended that it was ‘hardly voluntary’ because she had been confronted by the legal officer at the insurance company in relation to the situation in respect of the estate of Brebner and therefore it would certainly have come to the Law Society’s attention. This is, in essence, a repeat of the argument already put under the heading of ‘relevant considerations’. We are satisfied that the Tribunal understood when it described it as ‘voluntary’ that it was a confession affected by a period of delay after the first offence was discovered. We are not satisfied that it gave excessive weight to this matter, so as to render its ultimate decision manifestly unreasonable. It was one of 10 factors listed by the Tribunal.

(c) Practitioner’s rehabilitation

66 This is a repeat of the argument put under the heading of ‘relevant considerations’, and for the reasons given there we are not of the view that the Tribunal gave undue weight to this consideration, so as to render its ultimate decision manifestly unreasonable.

(d) Totally inappropriate condition

67 This contention under this heading is put as a basis for declaring the Penalty Order to be manifestly unreasonable. But as we construe the argument as set out in the written submissions it is in the nature of a procedural fairness objection. The relevant submissions are as follows:

‘The ADT ordered that the solicitor’s practice be subject to periodic inspection for a period of 3 years by the Law Society or its nominee pursuant to s 171C2(b) of the LP Act [Legal Profession Act]. It did so without affording the Law Society a meaningful opportunity to comment on the appropriateness of the order. The ADT simply invited the respondent’s counsel [i.e. the practitioner’s counsel] to indicate whether such an order would be acceptable to his client.’

68 The periodic inspection was the Tribunal’s way of addressing its concern that the solicitor’s practice remain within manageable proportions.

69 The submission then goes on to list three concerns:

(i) there is no power in the Law Society to enforce the consequences of any periodic inspection which revealed that the practitioner’s practice was not operating within manageable proportions
(ii) it fails to provide an objective benchmark against which the Law Society or its nominee could assess whether the practitioner’s workload was within manageable proportions
(iii) it is strange that the Tribunal made no provision for the practitioner to bear the costs of the periodic inspections.

70 The matters raised by the Law Society are all, in our view, reasonable concerns. There was, we consider, a shortcoming in the way that the Tribunal went about issuing its order in this regard. Where an order requires conduct to be undertaken by a party other than the party being punished, it is we consider, necessary as a matter of procedural fairness, that the affected party be given an opportunity to be heard on the specific terms of the proposed order.

71 In this instance the possibility of such a restriction was aired generally at the original hearing. It was, it would seem, open to the Law Society to raise any general concerns it might have at that point. Nonetheless we are of the view that it would have been preferable if the order had been the subject of consultation with the Law Society as to the mechanics of its implementation including such matters as those now raised - the objective standards to be applied, enforcement in the case of non-compliance and so on.

72 We do not see these matters as so fundamental as to render the entire penalty or the particular Order (Order 4) element manifestly unreasonable. However there was an error in relation to procedural fairness, which was see as one that can be cured within the framework of these proceedings.

(e) Inconsistent findings

73 This again, in essence, reiterates a ground also put under the heading of relevant considerations. The contention relates to the finding that the ‘picture had changed’ in relation to the practitioner’s attitude and potential for a recurrence of the behaviour. It is said that the Tribunal had then found inconsistently that the practice restriction should be imposed to deal with any further ‘temptation of taking the easy way out.’ We do not regard these elements of the Tribunal’s thinking as revealing any fundamental inconsistency for the reasons already given.

Ground 3: No Evidence

74 This ground puts in issue again the Tribunal’s finding that ‘there was no suggestion that any person was disadvantaged by what the solicitor did.’ This conclusion, we consider, must be read in the context of the decision. It was, in our view, merely referring to there being no actual financial loss caused to any other person. We do not regard the statement as containing a finding of fact to the effect that the conduct was free of implications in relation to the exposure to the risks previously discussed.

Grounds 4 and 5

75 These grounds relate to the merits. As no error of law warranting the setting aside of the principal Orders has been found, we do not give leave to extend to appeal to the merits (save to the extent necessary to give effect to our second Order (see below)). Accordingly these grounds will not be considered.

Implications of this Appeal Panel’s First Ruling

76 The final part of the Law Society’s submissions deals with the above issue. As noted earlier, the first of the Appeal Panel’s rulings in relation to this appeal dealt with the implications for the proceedings of the High Court’s decision in Barwick v Law Society of New South Wales. The Panel rejected the Law Society’s contention that as 4 of the 7 allegations were affected by the jurisdictional defect identified in Barwick, the original decision - delivered on 5 September 1999, five months before the decision in Barwick was to that extent invalid with consequent effect on the penalty order.

77 To reiterate, the 4 affected allegations are those contained in cl 1 (deception re estate of Stone), cl 2B (forgery re estate of Brebner) and cl 4 (incompetence re estate of Stone, incompetence re estate of Brebner). Those that stand are cl 2A (forgery re estate of Stone) cl 3 (propounding re estate of Stone, propounding re estate of Brebner).

78 Not unusually, the professional misconduct Penalty Order - Order 1 (connecting to cl 1, cl 2 and cl 3) - was global and did not differentiate between the 5 relevant proven allegations. The unsatisfactory professional conduct Penalty Order (Order 2) connected only to cl 4, a clause affected by the procedural defect. Penalty Order 3, the public reprimand, and Penalty Order 4, the practice inspection requirement, addressed the overall conduct of the practitioner and did not differentiate between the professional misconduct category and the unsatisfactory professional conduct category.

79 As the Appeal Panel saw it, the question before it was whether matters finally determined prior to the identification of a jurisdictional defect, but still before the Tribunal by way of appeal, should be revisited and set aside in whole or in part. We concluded, largely reasoning by analogy from the criminal law, that the principle of finality of litigation did not admit of a matter that had been finalised at the trial level being revisited on the grounds of a later discovered jurisdictional defect. We also referred to public interest considerations that stood in the way of that approach.

80 A passage in our reasons on that occasion, para [54]-[55], has led the Law Society to query whether the Appeal Panel should proceed as if we are obliged nonetheless to set aside Order 2 (the only Order wholly affected by the later discovered jurisdictional defect).

81 As some doubt has been left by our reasons, we take this opportunity to restate concisely our view. We recognise that had this case still been on foot at the trial level when the Barwick defect was identified, it would have been incumbent on the Law Society as prosecutor and the Tribunal to ensure that only those portions of the Informations which were not affected by the defect should proceed in the Tribunal if severable in that way. The difficulty that arose in this case was that an appeal was pending at the time the procedural defect was identified.

82 Had the appeal been in the nature of a hearing de novo, then the Appeal Panel would be bound to ensure that the Information properly conferred jurisdiction. But this is a situation where no jurisdictional objection was taken by the practitioner at the trial level (in contrast to practitioner Barwick) and final orders had been entered. Accordingly our conclusion is that Penalty Orders 1, 2 and 3 should be left to stand.

83 In that regard as previously noted, we do regard the objection made in relation to the procedure adopted by the Tribunal in making Penalty Order 4, the inspection requirement, as unfair to the Law Society. Accordingly we propose to reconvene to hear submissions from the Law Society and the practitioner, as to the practicality of the Order.

DETERMINATION

1. Appeal dismissed as it relates to Penalty Orders 1, 2 and 3.

2. In relation to Penalty Order 4 of the Tribunal, Appeal Panel to reconvene to hear submissions on the practicality of the Order, and whether a substitute Order should be made, or the Order vacated.