Law Society v Ford (No 2)

[2024] ACTSCFC 2

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

FULL COURT

Case Title:

Law Society v Ford (No 2)

Citation: 

[2024] ACTSCFC 2

Hearing Dates: 

4-5 November 2024

Decision Date: 

19 December 2024

Before:

Mossop and McWilliam JJ, Ainslie-Wallace AJ

Decision: 

See [141]

Catchwords: 

LEGAL PRACTITIONERS – DISCIPLINE – Application for removal from the roll of legal practitioners – recommendation by ACAT that defendant be removed from the roll of legal practitioners for professional misconduct and unsatisfactory professional conduct – whether defendant is a fit and proper person to practise law – where defendant shows no insight into inadequacies of his own conduct – unfitness indefinite – defendant’s name removed from the roll of legal practitioners

PRACTICE AND PROCEDURE – JURISDICTION – Factual findings by ACAT of professional misconduct and unsatisfactory professional conduct – defendant sought to have Supreme Court conduct fresh fact-finding – inconsistent with statutory regime to permit unchallenged finality reached as part of ACAT process to be undermined in subsequent proceedings – factual findings of ACAT to be applied by Supreme Court in determining fitness to remain on the roll

PRACTICE AND PROCEDURE – JURISDICTION – Whether Supreme Court has jurisdiction to hear and determine proceedings – submission by defendant that original decisions of Law Society invalid – submission that all subsequent proceedings, including present proceedings, were without jurisdiction – filing of ACAT orders under s 431(3) of Legal Profession Act 2006 (ACT) enlivens jurisdiction of Supreme Court to consider removal from the roll – separate statutory rights of appeal to Appeal Tribunal of ACAT and Supreme Court – no orders made in appeals or properly constituted judicial review proceedings setting aside ACAT orders – not open to seek prerogative relief by application in current proceedings

Legislation Cited: 

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 79, 86

Court Procedures Rules 2006 (ACT), r 5052

Legal Profession Act 2006 (ACT), ss 27, 81(1)(b), 222, 269, 394(1), 410, 425(3)(a), 431, Pt 4.7, Ch 4, Dictionary

Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rr 4, 5, 19, 43

Cases Cited: 

A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253

Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68; 272 FLR 470

Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1

Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1

Council of the Law Society of the ACT v Legal Practitioner LP 202012 (Hugh Ford) (Occupational Discipline) [2024] ACAT 11

Council of the Law Society of the Australian Capital Territory v LP 202012 (Hugh Ford) (Occupational Discipline) [2020] ACAT 80

Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42; 18 ACTLR 245

In re Weare, a Solicitor; In re The Solicitors Act, 1888 [1893] 2 QB 439

Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655

Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Law Society of New South Wales v Jones (NSW Court of Appeal, unreported, 27 July 1978)

Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184

Law Society of the Australian Capital Territory v Elmaraazey [2017] ACTSCFC 2

Law Society v Ford [2024] ACTSC 255

Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110

Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory [2023] ACTSC 391

LP9 v Council of the Law Society of the Australian Capital Territory [2024] ACTSC 116

LP 202012 (Hugh Ford) v Council of the Law Society of the ACT (Appeal) [2024] ACAT 12

Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597

New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279

Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78

Southern Law Society v Westbrook (1910) 10 CLR 609

Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93

The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60; 14 ACTLR 45

Parties: 

The Council of the Law Society of the Australian Capital Territory (Plaintiff)

Hugh Ford (Defendant)

Representation: 

Counsel

D Moujalli (Plaintiff)

Self-represented (Defendant)

Solicitors

Thomson Geer (Plaintiff)

Self-represented (Defendant)

File Number:

SC 10 of 2024

THE COURT:

Introduction

1․The Council of the Law Society of the ACT (Law Society) has, by originating application filed 11 January 2024, sought an order, pursuant to s 431(3) of the Legal Profession Act 2006 (ACT) (LP Act) and/or the inherent jurisdiction powers of the court, that the name of the defendant, Hugh Russell Ford, be removed from the roll of people admitted to the legal profession maintained by the Supreme Court of the Australian Capital Territory pursuant to s 27 of the LP Act. At the hearing, the Law Society made it clear that it only relied upon the inherent jurisdiction of the court in a limited and contingent way. The matter was conducted on the basis that it was a statutory application relying upon s 431(3).

Background

2․The defendant was admitted as a barrister and solicitor of the Supreme Court of the ACT on 20 October 1995. He held a barrister practising certificate issued by the Law Society from 9 January 2007 to 30 June 2008.

3․He held a restricted practising certificate from 3 December 2009 until 30 June 2011.

4․He held an unrestricted practising certificate from 1 July 2011 to 21 June 2018.

5․On 18 June 2018, the defendant’s practising certificate was cancelled. The defendant appealed against this decision but, at the hearing of his appeal on 18 December 2018, he consented to its dismissal, and it was dismissed.

6․On 2 July 2020, the Law Society made four applications to the ACT Civil and Administrative Tribunal (ACAT) for disciplinary orders in relation to the defendant. The ACAT file numbers for the applications were OR 12/2020, OR 13/2020, OR 14/2020 and OR 15/2020.

7․On 7 October 2020, the ACAT made a decision dismissing an application by the defendant for summary dismissal of those four applications: Council of the Law Society of the Australian Capital Territory v LP 202012 (Hugh Ford) (Occupational Discipline) [2020] ACAT 80 (ACAT Jurisdiction Decision). This application was made on the grounds that the decision by the Law Society under s 410 of the LP Act was ultra vires because, following the cancellation of his practising certificate, he was not subject to Ch 4 of the LP Act, and, further, that the decision under s 410 was made for an improper purpose.

8․The hearing of the four applications took place on 15, 16 and 17 March 2021 and 6 May 2021. The defendant was legally represented. On 8 November 2021, the ACAT made a decision on the four applications for disciplinary orders and recommended, pursuant to s 425(3)(a) of the LP Act, that the defendant’s name be removed from the roll of legal practitioners kept by the Supreme Court of the ACT: Council of the Law Society of the ACT v Legal Practitioner LP 202012 (Hugh Ford) (Occupational Discipline) [2024] ACAT 11 (ACAT Decision).

9․The defendant appealed from that decision on 3 December 2021. The hearing took place on 14, 15 and 16 June 2022. The defendant was not legally represented at this hearing. On 10 March 2023, the Appeal Tribunal of the ACAT confirmed the original order of the ACAT: LP 202012 (Hugh Ford) v Council of the Law Society of the ACT (Appeal) [2024] ACAT 12 (ACAT Appeal).

10․On 5 April 2023, the defendant filed an application for leave to appeal to the Supreme Court from the Appeal Tribunal’s decision. However, on 14 December 2023, Curtin AJ dismissed the application for leave to appeal from the Appeal Tribunal’s decision: Legal Practitioner LP 202012 v The Council of the Law Society of the Australian Capital Territory [2023] ACTSC 391 (Leave Decision). No appeal or application for leave to appeal to the Court of Appeal was filed in relation to the decision of Curtin AJ.

11․The originating application in the present proceedings was filed by the Law Society on 11 January 2024.

12․An application for an adjournment of the hearing made by the defendant was dismissed on 16 August 2024: Law Society v Ford [2024] ACTSC 255.

13․The hearing of the present proceedings took place on 4-5 November 2024 before a Full Court of the Supreme Court.

Applications under s 431

14․Section 431 comes towards the end of Pt 4.7 of the LP Act, which relates to applications for disciplinary action made to the ACAT. One of the powers of the ACAT following a disciplinary proceeding is to make an order recommending that the name of the practitioner be removed from the local roll: s 425(3)(a). Section 431(3) then provides:

(3)If the ACAT makes an order recommending that the name of an Australian legal practitioner who is a local lawyer be removed from the local roll—

(a)a copy of the order may be filed in the Supreme Court; and

(b)the Supreme Court may order the removal of the name from the roll.

15․On an application made pursuant to s 431(3), the process to be followed is distinct from that which is followed if the application is made in the inherent jurisdiction of the court. On an application pursuant to s 431, the court decides the issues on the basis of the ACAT’s findings of fact. The process of filing the order of ACAT under s 431(3)(a) is what enlivens the Supreme Court’s jurisdiction. No power is granted to reopen the factual findings of ACAT on which the recommendation order is founded. It is the consequences of those findings which the Supreme Court is then empowered to consider under s 431(3)(b).

16․That differs from the situation if the application is made in the inherent jurisdiction when the court has to decide the background facts for itself: Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [17].

17․In the present case, the originating application made reference to both s 431 as well as the inherent jurisdiction of the court. Counsel for the Law Society explained that the basis for the application was s 431(3). He said that the inherent jurisdiction of the court was not relied upon in order to establish a basis for removal of the defendant from the roll but was only relied upon in the event that the court concluded that removal from the roll was not appropriate, in order to leave open the possibility that some other form of relief, such as a suspension from practice, was available. Counsel submitted that this was an issue which was left open by the decision in Law Society of the ACT v Powrie [2017] ACTSCFC 4; 12 ACTLR 184 at [91]. Having regard to the manner in which the claim was put, it is appropriate to focus upon the statutory requirement of s 431(3). As will become apparent, it is not necessary to address the possible invocation of the inherent jurisdiction of the court to permit an order different to that contemplated in s 431(3)(b).

The defendant’s approach to the application

18․The approach of the defendant to the application had two main components. First, he sought to challenge the jurisdiction of this court by contending that the decisions of ACAT were void and, hence, could not provide a basis for the invocation of the jurisdiction under s 431(3) of the LP Act. Second, he sought to adduce evidence in order to have this court make factual findings about his conduct which were different to, and inconsistent with, the findings made by the ACAT (and confirmed by the Appeal Tribunal).

19․Apart from these two matters, the defendant adduced only limited evidence as to his personal circumstances or other evidence that, notwithstanding the findings of the ACAT, might provide a basis for determining that it was not appropriate to make an order under s 431(3)(b) removing his name from the roll.

20․For the reasons that follow, it is now not open to the defendant to challenge the jurisdiction on the basis that the ACAT decisions were void, or to adduce evidence for the purpose of having this court make findings of fact which are inconsistent with findings of fact made by the ACAT. Because of the existence of authority directly on point, it is convenient to first address the issue relating to findings of fact made by the ACAT.

Departure from ACAT’s findings of fact

21․The defendant sought to have admitted into evidence a substantial amount of evidence directed to having the Supreme Court make findings of fact about his conduct for itself, and to do so even where those findings were inconsistent with the findings of fact made by the ACAT. The Law Society submitted that, having regard to earlier decisions of the Supreme Court, the factual foundations for its application were determined by the decision of the ACAT and it was not open, upon an application under s 431(3), for the parties to adduce evidence to contradict or qualify the findings of the ACAT as to its findings of unsatisfactory professional conduct or professional misconduct.

22․The approach to findings of fact contended for by the defendant cannot be accepted, as it does not accord with the consistent authority of this court.

23․In Powrie, a Full Court of the Supreme Court considered a legal practitioner’s submission that a Full Court was entitled to review the findings and determinations of the ACAT and to make different and conflicting findings if it so chose. The conclusion was based upon the terms of the LP Act and the concept of issue estoppel. The Court described these two reasons as “not unconnected”. So far as the terms of the LP Act were concerned, the Court said (at [79]):

79.When one considers the statutory regime in the LPA as a whole, including the authority given to the ACAT to determine whether conduct constitutes professional misconduct or unsatisfactory professional conduct, and the availability of appeals from such determination, it is impossible to conceive that the legislature intended that this Court, in determining whether to accept and act upon a recommendation of the ACAT that the name of a practitioner be removed from the roll, would engage in a review of those determinations. To construe the relevant provisions of the LPA otherwise would be to effectively grant the practitioner a right of appeal outside the terms of the statute. Such a construction would also negate the very purpose of the provisions, because there would effectively be no difference between the Court considering a recommendation of the ACAT under s 425 of the LPA, and the exercise of its inherent jurisdiction. In the statutory process for disciplining practitioners found in the LPA, the legislature has seen fit to bestow upon the ACAT, and not upon this Court, the authority to make findings of fact and to determine how the facts as found are to be characterised. To construe the LPA as submitted by the practitioner would be to render that conferral of authority nugatory.

24․A similar conclusion was reached by reference to the concept of issue estoppel. The court was satisfied “that the legislature did intend that the relevant findings and determinations of the ACAT are to be final, subject to the exercise of any right of appeal”: Powrie at [83].

25․This approach was followed in Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1, where the court said (at [130]):

130.In exercising its statutory function under s 431(3), the Full Court must apply the Tribunal’s findings of fact, including any findings as to the practitioner’s state of mind or motive in relation to relevant conduct, and any findings that the conduct was unprofessional conduct or professional misconduct: Powrie at [83]-[84]. The Court cannot make findings inconsistent with those made by the Tribunal.

26․The Court followed Powrie and Bandarage in Council of the Law Society of the Australian Capital Territory v Giles [2020] ACTSCFC 1 at [117]-[118]. The Full Court also noted that it was not bound to accept the ACAT’s recommendation that the practitioner be removed from the roll but must make its own independent determination of whether the practitioner’s conduct (as found by that Tribunal) warranted removal.

27․In oral submissions, the defendant said that he challenged the correctness of these decisions. He was encouraged by the Court on two occasions to make any submissions that he wished to as to why the decisions were not correct. However, ultimately, he made no submissions as to why they were incorrect. In those circumstances, they should be followed, as for reasons explained below in relation to the jurisdictional challenge, they accurately reflect the proper construction and consequences of the statutory scheme.

28․Having said that, the factual findings of the ACAT, and findings characterising conduct as unsatisfactory professional conduct or professional misconduct, must be distinguished from the opinions expressed about the consequence of those findings for the defendant’s fitness to practise law, which led the ACAT to recommend removal of the practitioner from the roll. One example of this is the statements made by the ACAT, which are quoted at [105] below. While the Court cannot trespass on the findings, the ACAT’s opinion as to consequences, and whether to accept the ACAT’s recommendation, is the very issue before the Court on the application.

Challenge to jurisdiction

29․The defendant sought to challenge the jurisdiction of the Court to hear the Law Society’s application. He sought to do this by way of an application in proceeding dated 30 May 2024, which sought:

(a)a declaration that the Law Society’s decision to cancel his practising certificate involved a jurisdictional error and that this decision be quashed;

(b)a declaration that the decision of the ACAT disclosed a jurisdictional error and an order of certiorari quashing that decision;

(c)mandamus to compel the Law Society to grant the defendant an unrestricted practising certificate;

(d)an order that the defendant is “not liable to pay any costs in the matter”; and

(e)an order that the Law Society’s application to have his name removed from the roll be dismissed.

30․The grounds set out in the application in proceeding indicate that the defendant contended that the decisions of the Law Society to cancel his practising certificate and to make the applications to ACAT, and the decision of the ACAT itself each involved jurisdictional error and were, as a result, void. Therefore, there was, so the argument went, never a decision of the ACAT to recommend the removal of the defendant from the roll which could enliven s 431(3) and, as a consequence, the court had no jurisdiction to deal with the application.

31․So far as the decisions of the Law Society were concerned, the grounds made reference to a decision under s 410 of the LP Act to make an application to the ACAT, although the grounds related to the earlier decision to cancel the defendant’s practising certificate. The relationship between these two different decisions was not made clear. In total, 15 different matters were put forward. Each ground was in the nature of an administrative law ground for asserting an error in one or other of the decisions of the Law Society.

32․One of the grounds asserted that the LP Act gave no jurisdiction to regulate the conduct of a solicitor in the Federal Circuit Court. However, during the course of oral submissions the defendant indicated that he did not press this ground.

33․So far as the challenge to the decision of the ACAT was concerned, this involved grounds related to the decision of the Law Society under s 410 of the LP Act to bring the proceedings to the ACAT, as well as errors in, or relating to, the proceedings themselves in the ACAT. The application asserts that:

46.The ACAT was asked to determine whether it had the jurisdiction to deal with the matter. The ACAT however refused to make such a determination.

34․The application then lists 12 different matters, each of which was in the nature of an administrative law ground for asserting jurisdictional error in the ACAT proceedings. The grounds set out did not include the grounds relied upon to challenge the jurisdiction in the defendant’s summary dismissal application that was rejected in the ACAT Jurisdiction Decision. A number of the asserted errors had been considered by the Appeal Tribunal or by the Supreme Court at an earlier stage and had been rejected: see ACAT Appeal at [41]-[136]; Leave Decision at [87]-[96], [124]-[155].

35․Whilst the attempt to re-agitate those matters already considered and rejected may be precluded, it is not necessary to consider the matter in a piecemeal way. It is similarly not necessary to consider the defendant’s reliance on Minister for Immigration and Multicultural Affairs v Bhardwaj [2002] HCA 11; 209 CLR 597 at [51], which founded his argument that an administrative decision affected by jurisdictional error is properly regarded as no decision at all and could not, therefore, found the plaintiff’s application to remove him from the roll. The reliance on Bhardwaj was misplaced, as what is required is consideration of the legislation under which the decision-maker acts to determine the consequences of any jurisdictional error found: see Bhardwaj at [11] per Gleeson CJ; at [54]-[60] per Gaudron and Gummow JJ (with McHugh J agreeing at [63]). See also Jadwan Pty Ltd v Secretary, Department of Health and Aged Care [2003] FCAFC 288; 145 FCR 1 at [42]. However, that entire issue (as to whether there were any jurisdictional errors and if so, what were the consequences) may also be put to one side.

36․That is because, having regard to the scheme of the LP Act and its relationship with the ACT Civil and Administrative Tribunal Act 2008 (ACT) (ACAT Act), including the availability of separate appeal mechanisms in relation to the decision of the Law Society to cancel the defendant’s practising certificate and the separate appeal provisions in relation to the decisions of the ACAT, it is not open to the defendant in these proceedings to challenge the validity of those antecedent proceedings. That is the situation whether or not those appeal mechanisms were invoked, or issues were previously raised and determined.

37․In order to explain why this is the case, it is first necessary to identify the available pathways for challenging the decision to cancel the practising certificate and the decision of the ACAT. So far as the decision of the Law Society to cancel the defendant’s practising certificate, this occurred on 18 June 2018. Although the decision was given significant prominence in the submissions made by the defendant, it was not clear by what means the asserted invalidity of this decision could have affected the jurisdiction of the ACAT. The cancellation decision was a separate decision from the application for disciplinary orders made two years later, made under a separate part of the LP Act. There was no statutory requirement for the Law Society to have validly cancelled the defendant’s practising certificate prior to making any application to the ACAT for the disciplinary orders that are the subject of the present proceeding.

38․Leaving that question aside, the defendant had an entitlement to appeal from that decision to the Supreme Court, pursuant to s 81(1)(b) of the LP Act. That appeal was in the nature of a hearing de novo: Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2011] ACTSC 110; Barlow v Law Society of the Australian Capital Territory [2013] ACTSC 68; 272 FLR 470 at [53]; LP9 v Council of the Law Society of the Australian Capital Territory [2024] ACTSC 116 at [9]. The defendant exercised that right, but, at the hearing of the appeal on 18 December 2018, the defendant consented to an order that the appeal be dismissed, and it was dismissed.

39․So far as the decision of the ACAT is concerned, the defendant challenged the jurisdiction of the ACAT to hear the proceedings and, in the ACAT Jurisdiction Decision, the ACAT rejected that challenge. The matter then proceeded and was determined by the ACAT. The defendant then appealed that decision to the Appeal Tribunal of the ACAT pursuant to s 79 of the ACAT Act. The Appeal Tribunal confirmed the ACAT’s decision. In doing so, it determined numerous challenges to the jurisdiction of the ACAT and allegations of jurisdictional error in the ACAT Decision. The Appeal Tribunal described the defendant as having “alleged literally hundreds of errors, mostly characterised as jurisdictional errors”. The Appeal Tribunal specifically addressed allegations that the decision to cancel the defendant’s practising certificate was void and the submission that the Law Society had no authority to make the applications to ACAT.

40․The defendant then made an application to the Supreme Court for leave to appeal from the ACAT Appeal Decision. That application was made pursuant to s 86 of the ACAT Act. In the Leave Decision, Curtin AJ dismissed the application and, notwithstanding the potential for an appeal from that decision to the Court of Appeal, the defendant did not seek to appeal his Honour’s decision.

41․This history illustrates that the statutory scheme in which s 431(3) operates includes the following:

(a)A statutory process in which questions of jurisdiction may be raised and determined between the same parties as those ultimately involved in proceedings under s 431(3).

(b)A statutory path for internal and external appeals in which questions of jurisdiction may be raised and determined.

(c)A limitation on appeals to the Supreme Court, requiring that they be by leave and not as of right.

(d)The original and appeal proceedings in the ACAT being also potentially subject to the supervisory jurisdiction of the Supreme Court.

(e)The “filing” of the ACAT orders in the Supreme Court being consistent with those being the finalised product of the separate ACAT process.

42․Section 431 is a section entitled “Compliance with ACAT orders”. It operates by reference to ACAT orders that have been arrived at in accordance with the ACAT Act, with its scheme for appeals, including internal appeal mechanisms and the potential for appeals on fact and law to the Supreme Court.

43․Just as it was held in Powrie (at [79]) that the statutory scheme was inconsistent with a legal practitioner being able to challenge the findings of the ACAT in proceedings commenced pursuant to s 431(3), so too is it inconsistent with that statutory scheme that the jurisdiction of the ACAT be open to challenge on administrative law grounds within the scope of a s 431(3) application.

44․Rather, the existence of the separate regime for the determination of factual matters and the separate regime for appeals in relation to determinations, is sufficient to indicate that what is required for the purposes of s 431(3) is the filing of an order. If that order has not been set aside or quashed in properly constituted proceedings, then it is an order which is sufficient to enliven the jurisdiction of the court under s 431(3). That is so, even in cases where the order might have been the product of a decision made by the ACAT which was affected by an error that could have caused the order to be set aside at an earlier stage in properly constituted proceedings. The scope of proceedings under s 431(3) is impliedly limited by the broader statutory context in which it sits. This is a form of statutory preclusion arising by implication from the context in which s 431(3) exists and reflects the fundamental importance of achieving finality: see the discussion in Harlech Enterprises Pty Ltd v Beno Excavations Pty Ltd [2022] ACTCA 42; 18 ACTLR 245. It does not depend upon questions of issue estoppel or abuse of process, although, if it was necessary, the concept of abuse of process would be flexible enough to encompass this form of preclusion: Harlech Enterprises at [65].

45․If an administrative law challenge to the ACAT Decision was to be made, it needed to be made pursuant to the appeal regime in the ACAT Act or through properly constituted judicial review proceedings. To hold otherwise would be to undermine the statutory scheme by providing, in the language of Powrie, “the practitioner a right of appeal outside the terms of the statute”. It would be clearly inconsistent with the detailed statutory regime to permit the unchallenged finality reached as part of the ACAT process to be undermined in subsequent proceedings between the same parties. This means that it is not open to the defendant to either ‘save up’ administrative law arguments affecting the validity of the ACAT orders and then run them when those orders are filed under s 431(3), or repeat such arguments that were made and rejected in the ACAT or on appeal from a decision of the ACAT.

46․Here, the effect of the above interpretation of the jurisdictional foundation in s 431(3) is that, like the position in relation to factual conclusions, any administrative law challenges to the decision of the ACAT must be made within the available statutory appellate hierarchy or within properly constituted judicial review proceedings.

47․Consistently with the language of s 431(3), this interpretation means that the scope of proceedings under that section is confined to determining if an order has been filed and then making a discretionary decision as to whether or not to remove the practitioner from the roll. That involves acceptance of the facts as found by the ACAT and consideration of any other evidence that is relevant to the discretionary decision. It does not involve a fact-finding exercise in order to contradict the facts found by the ACAT, nor does it involve judicial review proceedings in relation to the decision of the ACAT.

48․The defendant did not seek leave to commence separate judicial review proceedings out of time in relation to either the decision of the Law Society, or the decisions of the ACAT. Nor did he seek leave to appeal out of time to the Court of Appeal from the decision of Curtin AJ refusing him leave to appeal from the ACAT Appeal.

49․Because the ACAT Decision has not been set aside or quashed in appropriately constituted proceedings, the ACAT Decision provides a jurisdictional foundation for the present proceedings and the defendant’s application in proceeding dated 30 May 2024 must be dismissed.

Evidence admissible on the application

50․For the purposes of the application, the Law Society relied upon the two decisions of the ACAT and the decision of Curtin AJ dismissing the application for leave to appeal from the Appeal Tribunal. Leave was granted to file in Court each of the ACAT decisions, which included the relevant order (noting the terms of s 431(3)). As a consequence, it was not necessary for the decisions to be admitted into evidence separately. Had it been necessary, they would have been. So far as the decision of Curtin AJ was concerned, the Court indicated that it would take judicial notice of the existence of that decision and the reasons for the decision.

51․The defendant did not expressly read the affidavits that he had filed. However, the parties appeared to proceed on the basis that each of those affidavits would be read and, subject to the Law Society’s objections, admitted into evidence. The relevant affidavits were affidavits made by the defendant on 9 April 2024, 30 May 2024, 26 June 2024, 27 June 2024 (two) and 27 July 2024. The Law Society’s objections were to those parts of the affidavits which sought to re-agitate factual issues determined by the ACAT. Having regard to the determination earlier in these reasons that it is not open to a practitioner to challenge the factual findings of the ACAT, the Law Society’s objections must be upheld and those portions of the affidavits objected to not admitted into evidence.

Application to issue a subpoena

52․At the hearing of the appeal, the defendant made an application to the court for the issue of a subpoena to compel the attendance of Mr Robert Reis to give evidence. That arose in the following circumstances. The Law Society had filed and served an affidavit of Mr Reis dated 9 January 2024. This provided some basic chronological information about the defendant’s admission as a lawyer and the periods during which he held practising certificates. It also annexed the two decisions of the ACAT and the Leave Decision of Curtin AJ. It appears that the defendant gave notice that he wished to cross‑examine Mr Reis. The Law Society then indicated to him that Mr Reis would not be called to give evidence. Instead, the Law Society would simply tender the documents directly or, if necessary, through a different witness.

53․It was clear to the Law Society and was made clear to the court by the conduct of the defendant, that the intention of any cross-examination of Mr Reis would be to pursue factual matters said to be relevant to the administrative law grounds upon which the defendant sought to challenge the Law Society’s decisions to cancel his practising certificate and make applications to the ACAT. He thereby sought to challenge the lawfulness of the decisions of the ACAT.

54․Following the Court’s ruling that both decisions of the ACAT were to be filed in Court for the purposes of s 431(3) (see [50] above), rather than admitted into evidence through an affidavit, the defendant sought to have a subpoena issued to Mr Reis so as to require him to attend and give evidence. After hearing submissions on the application, the court dismissed the oral application and refused leave to issue a subpoena to Mr Reis. The court reserved its reasons for that decision.

55․The reasons that the application was dismissed were:

(a)It was not open to the defendant to challenge the jurisdiction of the court in circumstances where the decision of the ACAT had not been set aside or quashed in properly constituted proceedings: see [49] above.

(b)It was not open to the defendant to adduce evidence in order to challenge the factual conclusions reached by the ACAT that gave rise to the finding of unsatisfactory professional conduct or professional misconduct: see [20] above.

(c)In those circumstances, any evidence that might be adduced from Mr Reis was irrelevant and, therefore, the court should not permit the issue of a subpoena to compel him to give evidence.

ACAT’s findings

56․There were four separate applications made to the ACAT: OR 12/2020, OR 13/2020, OR 14/2020 and OR 15/2020. In chronological order, the proceedings had their genesis in complaints or correspondence received by the Law Society:

(a)OR 13/2020: a complaint from a practitioner identified as “Mr D” about the defendant’s conduct;

(b)OR 12/2020: a complaint raised by the Law Society following the receipt of correspondence from the Registrar of the Federal Circuit Court dated 28 March 2018;

(c)OR 15/2020: a complaint raised by the Law Society following the receipt of correspondence from an Acting Assistant Secretary of the Department of Home Affairs dated 11 May 2018; and

(d)OR 14/2020: a complaint raised by the Law Society following the receipt of correspondence from the Registrar of the Federal Circuit Court dated 1 June 2018.

57․The references to complaints being raised by the Law Society are to the Law Society itself making a complaint as it was entitled to do pursuant to LP Act, s 394(1).

58․The were a total of 28 charges particularised within those ACAT proceedings. The ACAT found 26 of the charges proved. It found that the conduct in relation to 24 of them constituted professional misconduct and the conduct in relation to two of them constituted unsatisfactory professional conduct. A table summarising the proceedings and the charges that were proved and not proved is as follows:

Application Number	Charge	Result
OR 12/2020	1	Not proved
2-3	Proved
OR 13/2020	1	Not proved
2-19	Proved
OR 14/2020	1-3	Proved
OR 15/2020	1-3	Proved

59․The two charges that were characterised as unsatisfactory professional conduct, as distinct from professional misconduct, were charge 2 in OR 14/2020 and charge 16 in OR 13/2020.

Relevant provisions of the Solicitors Rules

60․The provisions of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Solicitors Rules) relevant to the ACAT Decision were as follows:

4OTHER FUNDAMENTAL ETHICAL DUTIES

4.1A solicitor must also:

4.1.1act in the best interests of a client in any matter in which the solicitor represents the client;

4.1.2be honest and courteous in all dealings in the course of legal practice;

4.1.3deliver legal services competently, diligently and as promptly as reasonably possible;

4.1.4avoid any compromise to their integrity and professional independence; and

4.1.5comply with these Rules and the law.

5DISHONEST AND DISREPUTABLE CONDUCT

5.1A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:

5.1.1be prejudicial to, or diminish the public confidence in, the administration of justice; or

5.1.2bring the profession into disrepute.

…

19FRANKNESS IN COURT

19.1A solicitor must not deceive or knowingly or recklessly mislead the court.

19.2A solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.

…

43DEALING WITH THE REGULATORY AUTHORITY

43.1Subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.

43.2A solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor’s conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.

OR 12/2020

61․Application number OR 12/2020 arose from a complaint raised by the Law Society following the receipt of correspondence from the Registrar of the Federal Circuit Court in relation to the defendant's conduct in multiple proceedings in the High Court and Federal Circuit Court, including two matters identified as the “C7 proceeding” and the “C7 transfer proceeding”.

62․The C7 proceedings were court proceedings between a plaintiff identified as “C7” and the Minister for Immigration and Border Protection. There were proceedings in the High Court before Bell J and, following the remittal of the proceedings by Bell J, proceedings in the Federal Circuit Court before Judge Neville. Following remittal, the matter came before Judge Neville on 26 September 2017. The defendant made an oral application to transfer the proceedings to Darwin. He told Judge Neville that his client had been living in Darwin for “[a]pproximately six months”. His Honour ordered that the transfer application should be decided on the papers and that the defendant was to file and serve a transfer application and written submissions by 10 October 2017. The defendant then filed an affidavit of his client which said, contrary to what the court had previously been told, that he had lived in Darwin for four years. He did not file any transfer application or written submissions. When asked to show cause why Judge Neville’s reasons for judgment should not be referred to the Law Society, the defendant said that, in his view, written submissions were “otiose”.

63․The ACAT found that a charge (charge 1) alleging that the defendant had repeatedly made an argument without merit was not proved.

64․The ACAT found that the defendant had failed to file submissions in compliance with the orders of the court because he decided that they were not necessary. Charge 2 was that the defendant had breached rr 4.1.1 and 4.1.3 of the Solicitors Rules by failing to comply with orders of the court for the filing and service of documents in the C7 transfer proceedings. The ACAT found this charge to be proved: ACAT Decision [68]. Along with other charges involving a failure to act competently and diligently, this was characterised as meeting the definition of professional misconduct: ACAT Decision [343].

65․Charge 3 was found to be proved in that the defendant had breached r 19.2 of the Solicitors Rules by failing to discharge his duty of honesty and candour to the court when he informed the court that the applicant had lived in Darwin for “[a]pproximately six months”. The ACAT found that this statement was made carelessly and that the subsequent affidavit neither explained nor corrected the earlier misleading statement: ACAT Decision [72]-[73]. Along with other charges involving recklessly misleading the court, the failure to correct an earlier misleading statement made carelessly was characterised as involving professional misconduct: ACAT Decision [344].

OR 13/2020

66․Application number OR 13/2020 arose from a complaint from a practitioner identified as “Mr D” about the defendant’s conduct in proceedings in the Federal Circuit Court, identified as the “AXY17 proceeding”.

Charge 1

67․Charge 1 was not proved.

Charge 2

68․The AXY17 proceeding involved a plaintiff identified as “AXY17”. The facts of charge 2 were outlined in detail by the ACAT at [74]-[145]. In short, a person identified as “Ms O” had consulted a migration agent by the name of Ms Melany Ramos in relation to an application for a protection visa. Ms O then made an application for a protection visa, which was refused by a delegate of the Minister. There was a 28-day period in which an application for review of that decision could be made to the Administrative Appeals Tribunal (AAT). Ms Ramos claimed that she had completed an online application for review of the decision on the second last day on which an application could be made and pressed “Enter” on her computer. She said that she had only realised that there was a problem with her IT system that prevented the application from being uploaded the day after the time limit for lodgement. She then lodged another application outside the relevant time limit. The AAT subsequently determined that it did not have jurisdiction to hear the application because it was filed out of time. Ms Ramos had some discussions with a lawyer, Mr D, but he was never engaged to act on behalf of Ms O. Ms Ramos did not give instructions to the defendant that Mr D had been assisting her in relation to the AAT matter before the AAT made its decision.

69․On 6 March 2017, the defendant filed an application in the Federal Circuit Court on behalf of Ms O seeking judicial review of the AAT decision and an extension of time for filing the application in the Federal Circuit Court. Charge 1 related to a statement made in an affidavit made by the defendant in support of this application, which was alleged to have been incorrect. However, this charge was not proved because the statement was not found to have been incorrect: ACAT Decision [214].

70․The defendant prepared submissions on 30 March 2017 in support of the application for an extension of time: ACAT Decision [101]. They were filed on 31 July 2017: ACAT Decision [215]. Those submissions contained a representation that the solicitor, Mr D, had been engaged prior to the deadline for the filing of the AAT application, that he was “well aware” of the time period in which to seek the review of the decision but that he “was unable to get the papers into the Tribunal within the prescribed period”: ACAT Decision [101]. It also contained the representation that “[b]oth Ms Ramos and [Mr D] would be prepared to put on an affidavit attesting to the situation.” The ACAT found that the allegations about Mr D lacked any proper evidentiary basis, and that the defendant lacked any genuine belief that the statements were true and made the statements not caring whether or not they were true: ACAT Decision [142]-[143].

71․The allegation in charge 2 was of a breach of rr 19.1 and/or 19.2 and the defendant’s common law duty of honesty and candour to the court by making these two statements to the Federal Circuit Court dishonestly, knowing the statements to be false, or recklessly indifferent to their truth or falsity or, if the statement was made mistakenly, failing to take steps to correct the misleading statement. The ACAT found that the defendant had breached r 19.1 and his common law duty of honesty and candour to the court by recklessly misleading the court: ACAT Decision [217]. It also found that there had been a breach of r 19.2 and his common law duty of honesty and candour to the court by failing to correct the misleading statements as soon as possible: ACAT Decision [168], [218]. This, along with other occasions on which the defendant recklessly misled the court, was characterised as professional misconduct: ACAT Decision [344].

Charge 3

72․Charge 3 related to oral submissions made to the court in the AXY17 proceeding on 19 July 2017. This was the hearing for the application for an extension of time before Judge Neville. During the course of that hearing, the defendant said to Judge Neville:

Well, I’m saying the circumstances in this case, your Honour - and I think you should exercise your discretion to allow the extension of time because the circumstances were sort of not of the making of the applicant. They were --- unfortunately, we had one agent who made every effort to lodge the application within time, and then attempted to elicit the support of not one but two very experienced migration lawyers, who unfortunately let the applicant down in a most unprofessional way, when it was quite clear that what they should have done is lodge these documents as soon as possible, but they chose not to.

And unfortunately, the applicant is now suffering as a consequence of the poor professional practice of two other migration lawyers, one of which is highly respected and should have known better than - in conclusion, your Honour, the applicant really shouldn’t be punished, for want of a better word, for the actions of not one but two experienced migration lawyers.

(Emphasis added.)

73․The ACAT interpreted these remarks as going to the timing of the lodgement of the application to the court rather than to the AAT: ACAT Decision [168]. Before the ACAT, the representative of the defendant acknowledged that the submissions were “incorrect and unfounded”: ACAT Decision [222]. The ACAT found that, in making the submission, the defendant breached r 19.1 and his common law duty of honesty and candour by recklessly misleading the court: ACAT Decision [171], [223]. This, along with other occasions on which the court was recklessly misled, was characterised as professional misconduct: ACAT Decision [344].

Charges 4, 5, 6, 8, 9, 10, 11, 12 and 13

74․Charges 4, 5, 6, 8, 9, 10, 11, 12 and 13 alleged a breach of rr 43.1 and 43.2 and the defendant’s common law duty to inform and assist the Law Society by making a statement to the Law Society in connection with its investigation of the complaint, knowing the statement to be false or recklessly indifferent to its truth or falsity.

75․The terms of rr 43.1 and 43.2 are outlined above. The common law duties were articulated in Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78 at [3] and The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60; 14 ACTLR 45 at [56].

76․The charges arose out of the response by the defendant to the Law Society’s investigation. That investigation was commenced on 16 October 2017. The defendant provided a response to the notice of the Law Society’s decision to investigate on 10 November 2017. The whole of that response was set out in the ACAT Decision (at [183]) and the ACAT highlighted several passages where it found that the respondent “made statements that he knew were false”. Further, the ACAT found that “the response demonstrates the [defendant’s] lack of candour, dishonesty, and lack of insight in responding to the complaint”: ACAT Decision [183].

77․The solicitors for the Law Society wrote to him on 31 January 2018 seeking further information: ACAT Decision [184]. The defendant made statements in his email response on 5 March 2018 which were the subjects of charges 4, 5 and 6.

78․On 22 March 2018, the solicitors for the Law Society wrote to the defendant again in relation to their earlier request for information, which remained partly unanswered. The defendant responded on 6 April 2018 and made statements which gave rise to charge 7 (“I did not draft or settle the Affidavit [of Ms Ramos]”, discussed below) and charge 8 (“I confirm that my submissions in the matter are accurate”): ACAT Decision [191].

79․On 16 May 2018, the solicitors for the Law Society wrote to him again requesting a copy of his affidavit made on 6 March 2017. He responded on 22 May 2018 by an email which included a number of statements:

(a)that he “did not file any affidavit in this matter”: ACAT Decision [194]; and

(b)that Judge Neville had “refused to allow the tender of the [affidavit of Ms Ramos] and refused to allow her to give evidence”: ACAT Decision [195].

80․In a further email sent that day, he said:

(a)that he did file an affidavit but that the affidavit “did not summarise the facts. It just attached the decision of the Tribunal”;

(b)that there was no affidavit of Ms Ramos tendered to the court; and

(c)that he was not paid.

81․The content of the emails on 22 May 2018 gave rise to charges 9, 10, 11, 12 and 13.

82․Each of the following charges were proved and found to have established a breach of rr 43.1 and 43.2 and the defendant’s common law duty to inform and assist the inquiry of the Law Society:

(a)Charge 4 related to the statement on 5 March 2018 that Mr D “acknowledges that he was involved in the appeal to the AAT”. This statement was found to be more than careless, with the ACAT finding that it was made knowing it to be false or with reckless indifference as to its truth or falsity: ACAT Decision [186], [229].

(b)Charge 5 related to the statement on 5 March 2018 that “there was never at any time any misrepresentation of the facts by me”. The ACAT found that the defendant knew that this statement was false when he made it: ACAT Decision [187], [230].

(c)Charge 6 relates to the statement on 5 March 2018 that Mr D “withdrew from the matter before the Federal Circuit Court”. The ACAT found that the defendant knew that this statement was false when he made it: ACAT Decision [188]-[189], [231].

(d)Charge 8 related to the statement in the defendant’s letter to the solicitors for the Law Society dated 6 April 2018 that his submission in the matter was accurate. The ACAT found that the defendant knew that the statement was false when he made it: ACAT Decision [193], [232].

(e)Charge 9 related to the statement on 22 May 2018 (the ACAT mistakenly refers to this as 22 April 2018) that the defendant did not file any affidavit in the matter. The ACAT found that the defendant knew that the statement was false when he made it: ACAT Decision [194], [233].

(f)Charge 10 related to the statement on 22 May 2018 (the ACAT mistakenly refers to this as 22 April 2018) to the effect that Judge Neville refused to allow the defendant to tender Ms Ramos’ affidavit and for her to give evidence. The ACAT found that the defendant knew that this statement was false when he made it: ACAT Decision [195], [234].

(g)Charge 11 related to the statement on 22 May 2018 (the ACAT mistakenly refers to this as 22 April 2018) to the effect that the affidavit did not summarise the facts. The ACAT’s finding at [235] refers to it being Ms Ramos’s affidavit, but it is apparent from the findings at [197]-[198] that the charge related to the defendant’s affidavit. The ACAT found that the defendant made the statement knowing that it was false and noted that in cross-examination he admitted that he knew that the statement was untrue: ACAT Decision [197]-[198], [235].

(h)Charge 12 related to the statement on 22 May 2018 (the ACAT mistakenly refers to this as 22 April 2018) to the effect that there was no affidavit of Ms Ramos’ tendered to the court. The ACAT found that the defendant made the statement knowing it to be untrue: [197]-[198], [236].

(i)Charge 13 relates to the statement on 22 May 2018 (the ACAT mistakenly refers to this as 22 April 2018) that the defendant was not paid. The ACAT found that the defendant made the statement knowing it to be untrue: ACAT Decision [197]-[198], [237].

83․Charges 4-6 and 8-13 were found to meet the definition of professional misconduct: ACAT Decision [351].

Charge 7

84․Charge 7 involved rr 43.1 and 43.2 and the defendant’s common law duty to inform and assist the Law Society. It relates to the defendant’s response to the solicitors for the Law Society on 6 April 2018, which stated that he did not draft or settle Ms Ramos’ affidavit. The ACAT found that he had breached rule 43.2 and his common law duty to inform and assist the inquiry. Whilst the ACAT did not accept the submission that the statement was made knowing it to be false or with reckless indifference to its truth or falsity, it did find that the response lacked candour: [192], [239]. Charge 7 was found to meet the definition of professional misconduct: [351].

Charge 14

85․Charge 14 alleged that the defendant had breached s 222(1) of the LP Act by failing to deposit trust money received on account of legal costs into a trust account. Section 222(1) of the LP Act provides that as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice kept in the ACT. The definition of ‘trust money” in the Dictionary to the LP Act includes money received by the practice on account of legal costs in advance of providing the services.

86․The ACAT found that this breach was established. The defendant had, without providing any disclosure of costs to Ms O or Ms Ramos, sent an invoice for $6115 for services described as “Representation of Ms O in the Federal Circuit Court”. The ACAT found that the invoice sought payment of trust money and, hence, that the failure to pay that money into a trust account breached s 222: ACAT Decision [146]-[151], [242]. Taken together, charges 14, 15 and 17 were characterised as involving professional misconduct: ACAT Decision [346].

Charge 15

87․Charge 15 alleged that the defendant had misappropriated trust monies in breach of the common law by causing trust monies to be deposited to an office account. This was in relation to the amount of $6115 associated with the earlier charge. It involved the appropriation of monies to which he was not presently entitled. The ACAT found that the charge was established in relation to that part of the $6115 not attributable to work already done: ACAT Decision [146]-[151], [247]. Taken together, charges 14, 15 and 17 were characterised as involving professional misconduct: ACAT Decision [346].

Charge 16

88․Charge 16 alleged breach of s 269 of the LP Act by failing to give the required costs disclosures to Ms O and Ms Ramos. The ACAT found that to be proved: ACAT Decision [146], [249]. The ACAT characterised this as unsatisfactory professional conduct: ACAT Decision [345].

Charge 17

89․Charge 17 alleged breach of r 5 of the Solicitors Rules by failing to comply with an order of the court requiring the defendant to repay costs to his client.

90․The amount in question was the $6115 which was the subject of charges 14 and 15. On 7 September 2017, Judge Neville ordered the defendant to repay, within 14 days, any costs that his client had already paid him: ACAT Decision [172]. The defendant did not do so, thereby failing to comply with this order: ACAT Decision [178]. The ACAT found that charge was proved: ACAT Decision [252]-[253]. Taken together, charges 14, 15 and 17 were characterised as involving professional misconduct: ACAT Decision [346].

Charge 18

91․Charge 18 alleged that the defendant had breached r 4.1.3 by failing to deliver legal services competently and diligently in circumstances where he knew, or should have known, that the application for an extension of time in the AXY17 proceeding had no reasonable prospects of success. In those proceedings in the Federal Circuit Court, Judge Neville had found that the application brought by the defendant on behalf of his client had no reasonable prospects of success and made costs and other consequential orders on that basis. The ACAT found that this charge was proved on the basis of a concession made by the defendant in his closing submissions to the ACAT that the application to the Federal Circuit Court was misconceived: ACAT Decision [254]-[257]. This, along with other occasions when the defendant had failed to act in his client’s best interests and deliver legal services competently and diligently, was characterised as professional misconduct: ACAT Decision [343].

Charge 19

92․Charge 19 alleged a breach of rr 4.1.2, 5.1.1 and 5.1.2 by the making of allegations of serious improper conduct against a judge of the Federal Circuit Court in a letter to the Chief Judge of that court, without particularising, justifying or substantiating the allegations: ACAT Decision [258].

93․The ACAT found that the content of the letter (described in the ACAT Decision at [199]‑[210]) was not merely impermissibly offensive and discourteous, but that the defendant had made unsubstantiated allegations of the most serious kind against Judge Neville in an improper attempt to damage his standing and reputation at the Federal Circuit Court, and to procure his removal from hearing cases in which the defendant may appear: ACAT Decision [265]. The ACAT found that the content of the letter provided no evidence capable of substantiating the allegations. The ACAT found that the charge was proved: ACAT Decision [268] and continued (at [269]):

269.We find that the respondent’s conduct, and his lack of insight demonstrated by his evidence in an affidavit filed shortly before the hearing deposing that he did not regret writing to the Chief Justice in the terms that he did because it “correctly reflected [his] feelings and…perceptions about the conduct” of Judge Neville, shows that he is not a fit and proper person to practise law.

(Footnote omitted.)

94․The ACAT characterised this conduct as professional misconduct: ACAT Decision [350].

OR 14/2020

95․Application number OR 14/2020 arose from a complaint raised by the Law Society following the receipt of correspondence from the Registrar of the Federal Circuit Court in relation to the defendant's conduct in two proceedings in the Federal Circuit Court, identified as the "CFMMEU proceeding" and the "Singh proceeding".

96․Charge 1 related to the CFMMEU proceeding and involved alleged breaches of rr 4.1.1, 4.1.3 and/or 5 by filing a defence in proceedings which he knew or ought to have known exposed his client to a risk of default judgment and which resulted in that outcome. The proceedings were brought by the CFMMEU, an industrial union, against the defendant’s client, alleging sham contracting arrangements. A defence was ultimately filed which failed to plead to many of the allegations in the Statement of Claim and included legally incoherent or irrelevant claims. The ACAT found that there had been a breach of rr 4.1.1 and 4.1.3: ACAT Decision [270]-[278], [291]. This, along with other failures to reach or maintain a reasonable standard of competence and diligence in court proceedings, was characterised by the ACAT as professional misconduct: ACAT Decision [343].

97․Charge 2 related to the Singh proceeding, which involved the Migration Review Tribunal and a plaintiff identified as “Mr Singh”. The defendant attended the hearing with Mr Singh. The defendant failed to complete a Notice of Appointment as Mr Singh’s agent. The delegate’s decision to refuse Mr Singh’s visa application was affirmed on 23 September 2015. The Migration Review Tribunal notified an earlier agent of Mr Singh the same day. In March 2017, the defendant filed an application for an extension of time in which to seek review of the Migration Review Tribunal’s decision. He deposed that the applicant had been notified of its decision on 27 March 2017.

98․Charge 2 alleged that he had breached rr 4.1.1, 4.1.3 and/or 5 by failing to file a Notice of Appointment in the proceedings. The defendant admitted that he had failed to do so. The ACAT found that a breach of 4.1.1 was proved: ACAT Decision [280]-[281], [294]. The ACAT characterised this conduct as unsatisfactory professional conduct and noted that it was “a relatively minor and isolated instance”: ACAT Decision [341].

99․Charge 3 also related to the Singh proceeding. It was alleged that the defendant had breached rr 5 and 19.1 by making a misleading statement in an affidavit. That statement was misleading insofar as it conveyed the impression that responsibility for the 18-month delay in Mr Singh receiving notice of the decision to refuse his visa application lay with the Migration Review Tribunal, when the true position was that he had not been notified of the decision on the day that it was made because he had failed to file a Notice of Appointment. The ACAT found that the defendant had breached r 19.1 and his common law duty of honesty and candour to the court: ACAT Decision [281]-[287], [297]. This, along with other occasions when the defendant had recklessly misled the court in proceedings, was characterised as professional misconduct: ACAT Decision [344].

OR 15/2020

100․Application number OR 15/2020 arose from a complaint raised by the Law Society following the receipt of correspondence from an Acting Assistant Secretary of the Department of Home Affairs in relation to the defendant's conduct in proceedings in the Administrative Appeals Tribunal and the Federal Circuit Court, identified as the "AAT proceeding" and the "BNJ17 proceeding".

101․These proceedings involved three charges. Charge 1 related to conduct of the defendant in the AAT proceeding before Member Short (the Tribunal Member). Charges 2 and 3 related to conduct in the BNJ17 proceeding in the Federal Circuit Court, arising from the refusal of a protection visa to an applicant referred to as “BNJ17”.

102․Charge 1 alleged that the defendant had breached rr 4.1.1, 4.1.2, 4.1.3 and/or 5 by his conduct during the AAT proceeding in talking over the Tribunal Member, directing his client not to answer questions asked by the Tribunal Member, pressing the Tribunal Member to recuse himself, leaving the hearing with his client before the Tribunal Member had concluded the hearing, and accusing the Tribunal Member of disgraceful conduct. The bizarre conduct of the defendant is described by the ACAT by setting out portions of the transcript of those proceedings: ACAT Decision [298]-[306].

103․The legal representative of the defendant before the ACAT conceded that the defendant’s conduct was grossly discourteous and without a proper basis and, as such, the defendant failed to act in the best interests of his client and failed to deliver legal services competently and diligently.

104․The ACAT referred to the defendant’s affidavit relied upon in the ACAT proceedings, which the ACAT described as making it “apparent that the [defendant] saw nothing wrong with his conduct”. The affidavit included, as an annexure, a letter written to the Attorney‑General complaining about the Tribunal Member: ACAT Decision [323]. The ACAT found the allegation of breach of rr 4.1.1, 4.1.2, 4.1.3 and 5 proved: ACAT Decision [324]. The ACAT continued:

By his reliance on the abovementioned correspondence, we consider the respondent has demonstrated a complete absence of insight in relation to his failure to comply with acceptable standards of professional conduct and a lack of understanding of basic ethical rules governing [practice] as an advocate before a court or tribunal.

105․The ACAT characterised this conduct as professional misconduct, saying (at [342]):

The respondent’s conduct was grossly offensive, incompetent, and inexcusable. It was clearly prejudicial to the administration of justice, resulting as it did in the respondent’s client effectively being denied a real and meaningful opportunity to have his case heard and determined on its merits. It was conduct that in our view is likely, to a material degree, to bring the profession into disrepute. It demonstrates, clearly in our view, that the respondent is not a fit and proper person to practise law. His lack of insight into the gravity of his departure from required standards of professional conduct when appearing as an advocate, after having ample opportunity to reflect on his conduct, confirms our opinion that he is not fit to [practice] law.

106․Charges 2 and 3 relate to the BNJ17 proceeding. That was an application for an extension of time in which to file an application for judicial review. The grounds of the application included allegations that a migration agent had acted for the applicant, not made her aware of the hearing date, not disclosed the outcome of the application, and not advised her about the option of having the application reinstated. After it was pointed out that no migration agent had acted, an amended application was filed substituting, without explanation, the word “friend” in the place of “migration agent”. At the hearing of the application, no evidence was called by the defendant to support the grounds in the application, and it was dismissed. The defendant was ordered to pay the Minister’s costs and repay to BNJ17 any costs paid to the defendant in connection with the proceedings. An order was also made preventing the defendant from recovering any costs he had incurred in commencing and continuing the proceedings.

107․Charge 2 alleged that the defendant had breached rr 4.1.1, 4.1.3 and/or 5 by providing legal services which had no reasonable prospects of success. The legal representative of the defendant before ACAT conceded that the defendant had failed to conduct the proceeding in a manner reflecting a satisfactory degree of competence. The ACAT agreed and found breaches of rr 4.1.1 and 4.1.3 to be proved: ACAT Decision [327]. This, along with other failures to reach or maintain a reasonable standard of competence and diligence, met the definition of professional misconduct: ACAT Decision [343].

108․Charge 3 alleged a breach of rr 19.1 and/or 19.2 and the defendant’s common law duty of honesty and candour to the court by filing an application in the BNJ17 proceeding knowing that the application contained false information or with reckless indifference as to the truth or falsity of the contents. That related to the assertion in the grounds about the involvement of a migration agent. The ACAT noted the elaborate nature of the allegations and the absence of evidence to explain the subsequent references to a friend being involved. The ACAT concluded (at [331]):

What is clear, however, is that the respondent failed to make even the most basic enquiries to confirm that there was a proper basis to make the allegations about the migration agent’s involvement. We consider that the respondent made the statements with reckless indifference as to their truth or falsity.

109․The ACAT found that there had been a breach of rr 19.1 and 19.2 and the defendant’s common law duty of honesty and candour to the court by recklessly misleading the Federal Circuit Court in failing to correct the misleading statements as soon as possible: ACAT Decision [332]. The defendant’s conduct in recklessly misleading the court at various times was characterised as professional misconduct: ACAT Decision [344].

Summary of ACAT’s findings

110․The findings of the ACAT may be summarised as follows. Where a number of charges are found to have been proved and taken together to amount to professional misconduct, that is illustrated in the following table.

Charge	Subject matter	Characterisation
Charge 2 in OR 14/2020	Failure to file notice of appointment	Unsatisfactory professional conduct
Charge 1 in OR 15/2020	Conduct at the hearing of AAT in September 2016	Professional misconduct
Charge 18 in OR 13/2020 Charge 2 in OR 15/2020 Charge 2 in OR 12/2020 Charge 1 in OR 14/2020	Failure to act in best interests of clients and failure to deliver legal services competently and diligently between March and October 2017 in AXY17, BNJ17, C7, and CFMMEU proceedings	Professional misconduct
Charges 2 and 3 in OR 13/2020 Charge 3 in OR 14/2020 Charge 3 in OR 15/2020 Charge 3 in OR 12/2020	Recklessly misleading the Federal Circuit Court between March and July 2017 in AXY17, Singh and BNJ17 proceedings, and failing to correct an earlier misleading statement made carelessly in C7 proceedings.	Professional misconduct
Charge 16 in OR 13/2020	Failure to comply with costs disclosure obligations	Unsatisfactory professional conduct
Charges 14, 15 and 17 in OR 13/2020	Failure to comply with s 222 of the LP Act	Professional misconduct
Charge 19 in OR 13/2020	Making unsubstantiated allegations of serious improper conduct against a judicial officer	Professional misconduct
Charges 4-13 in OR 13/2020	Making statements to the Law Society which he knew to be false and failing to provide full and accurate account of his involvement in the matter	Professional misconduct

ACAT Appeal decision

111․The internal appeal to the ACAT Appeal Tribunal, pursuant to s 79 of the ACAT Act, was treated as a rehearing. In contrast to the position before the ACAT at first instance, the defendant was no longer legally represented. The Appeal Tribunal (at [35]-[40]) said the following in relation to the defendant’s grounds of appeal and his approach to the appeal more generally:

35.The practitioner’s written submissions amounted to lengthy and repetitive narratives alleging literally hundreds of errors of fact and law. The practitioner challenged every finding of guilt and seemingly every material paragraph of the original tribunal’s reasons for decision. Most allegations were repeated assertions of jurisdictional error. Many were assertions of “no evidence” to support a finding of fact (notwithstanding the practitioner admitting most facts in the original proceedings), a “failure to take into account a relevant consideration”, “taking into account an irrelevant consideration” and the like. The practitioner made repeated claims that the Council’s applications were “an abuse of power” and brought for “an improper purpose”.

…

39.The ratio of the original tribunal’s decision is that the practitioner cannot be trusted in respects that are essential to the practice of law; has no insight into, or understanding of, the seriousness of his misconduct; and has no insight into, or understanding of, the importance of honesty and candour in his conduct as a legal practitioner.

40.In his submissions on the appeal, written and oral, the practitioner repeatedly demonstrated that the original tribunal’s conclusions about him are correct. It was bewildering to read the practitioner’s submissions on appeal that were so lacking in honesty and candour – written in response to multiple findings that the practitioner breached his common law duty of honesty and candour.

112․The Appeal Tribunal addressed grounds asserting:

(a)that the LP Act “has no jurisdiction” because it did not govern conduct in a federal court: ACAT Appeal [41]-[67];

(b)that the decision of the Law Society to cancel his practising certificate was unlawful: ACAT Appeal [68]-[82];

(c)that the decision of the Law Society to refer the matter to ACAT was unlawful: ACAT Appeal [83]-[86];

(d)that the decision of the ACAT at first instance was unlawful: ACAT Appeal [87]‑[97];

(e)that there was non-compliance with the rule in Browne v Dunn: ACAT Appeal [98]-[121];

(f)that both members of the ACAT at first instance were biased: ACAT Appeal [122]-[128];

(g)that there had been unreasonable delay on the part of the Law Society in making the applications, and then on the part of the ACAT at first instance in making its decision: ACAT Appeal [129]-[133];

(h)that the applications for disciplinary action were an abuse of process: ACAT Appeal [134]-[136]; and

(i)that the defendant had been wrongly denied a separate hearing on the question of penalty: ACAT Appeal [137]-[140].

113․The defendant’s contentions were not accepted. The Appeal Tribunal then reviewed each of the findings made by the ACAT in detail and rejected each of the challenges to the conclusions reached on each of the charges that were established.

114․The Appeal Tribunal was satisfied that there was no error of fact or law made by the ACAT at first instance in its recommendation under s 425(3) of the LP Act and, as a consequence, the orders of the original tribunal were confirmed.

Test to be applied

115․Referring to the decision in Ziems, the High Court in A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; 216 CLR 253 said at [15]:

Where an order for removal from the roll is contemplated, the ultimate issue is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner’s name presently appears.

(Footnote omitted)

116․This formulation was picked up in Bandarage at [16] and Giles at [119]. The same issue arises when exercising statutory jurisdiction under s 431 as distinct from the inherent jurisdiction of the court: Bandarage at [16]; Powrie [86].

117․In Southern Law Society v Westbrook (1910) 10 CLR 609 at 612, Griffith CJ referred with approval to the formulation articulated in In re Weare, a Solicitor; In re The Solicitors Act, 1888 [1893] 2 QB 439 at 448:

To my mind the question which the Court in cases like this ought always to put to itself is this, Is the Court, having regard to the circumstances brought before it, any longer justified in holding out the solicitor in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?

118․This formulation was adopted in Bangura at [4]. It serves to emphasise not only the institutional role of lawyers for the operation of the courts but also the significance of their inclusion on the roll as part of the regulatory scheme for the protection of their clients and the clients of lawyers generally.

119․In the present case, the defendant has been found to have breached norms of conduct relevant to a lawyer in his position. Each of the norms the subject of the charges that were established represents important aspects of the practise of law.

120․First, a lawyer’s duty of honesty and candour to a court is a fundamental feature of the practice of law. Its significance cannot be overstated. It is one of the fundamental pillars upon which the proper administration of justice depends. Isaacs J explained this point in Incorporated Law Institute of New South Wales v Meagher (1909) 9 CLR 655 at 681 as follows:

The errors to which human tribunals are inevitably exposed, even when aided by all the ability, all the candour, and all the loyalty of those who assist them, whether as advocates, solicitors, or witnesses, are proverbially great. But, if added to the imperfections inherent in our nature, there be deliberate misleading, or reckless laxity of attention to necessary principles of honesty on the part of those the Courts trust to prepare the essential materials for doing justice, these tribunals are likely to become mere instruments of oppression, and the creator of greater evils than those they are appointed to cure.

121․As Spigelman CJ said in New South Wales Bar Association v Cummins [2001] NSWCA 284; 52 NSWLR 279 at [20], dealings with courts are only one of the areas in which the honesty and integrity of a lawyer is of significance. The relationship between lawyer and client, and between one lawyer and another, are also areas in which confidence in the honesty and integrity of lawyers is a central concern.

122․However, just focusing upon the centrality of honesty and candour of lawyers in dealing with courts, this is significant in a number of ways. Pragmatically, our system of justice can only function and get through the work that is required if lawyers, as officers of the court, can be relied upon for their candour and honesty. But the obligation of candour and honesty is also fundamental to the core values of the judicial system, the fair and impartial determination of disputes, and to societal confidence in its institutions. Any erosion of the obligations of lawyers to be honest and candid in their dealings with courts carries with it an unacceptable risk of both eroding the institutions administering justice as well as the social acceptance of the authority of those institutions.

123․Second, when it comes to dealings between a lawyer and the Law Society, it has to be recognised that, so far as solicitors are concerned, the Law Society is central to the scheme of regulation and, hence, the advancement of the public interest in the maintenance of standards within the legal profession. One of the burdens associated with the privileges of being an officer of the court is the need for honesty and disclosure when dealing with a regulatory body such as the Law Society. That is reflected in the terms of the Solicitors Rules: see r 43.1 set out above. It is inherent in the role of a lawyer, as an officer of the court, that the lawyer is able to deal honestly with the regulatory body established by law to regulate the conduct of lawyers. That extends to honesty and openness in circumstances where full disclosure may not be in the professional or financial interests of the lawyer in question. It involves subordination of the self-interest of the lawyer to the legal system to which they have been admitted to serve.

124․Third, dealing properly with trust money is a strictly regulated area of legal practice because of the potential for misfeasance by lawyers in dealing with other people’s money. The reliability and integrity of lawyers in the handling of trust funds has been recognised as of fundamental importance to the determination of whether a person is fit and proper to be entrusted with the responsibilities of being a lawyer: Giles at [120]-[123] and the cases cited therein; Law Society of the Australian Capital Territory v Elmaraazey [2017] ACTSCFC 2 at [20]; Law Society of New South Wales v Jones (NSW Court of Appeal, unreported, 27 July 1978) at 10.

125․Fourth, the requirement for competence and diligence is necessarily of fundamental importance both to the operation of the courts and the well-being of a lawyer’s clients. It is reflected in the Solicitors Rules: see r 4.1.3 set out above. Whilst a person may lack competence and diligence due to a lack of training or experience, a person may also lack competence and diligence due to ingrained personality characteristics which make them unsuitable for the practice of law.

126․In determining whether to remove a lawyer from the local roll, it is necessary to consider whether the unfitness to practice law is temporary or of indefinite duration. That is because, in relation to deficiencies identified as being temporary, the public interest may be able to be protected by lesser measures, such as a temporary suspension from practice: Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54].

127․If removal from the roll is to occur, that is not for the purpose of punishing the practitioner but in order to protect the public and the institutions that the practitioner is required to serve. That protection is not just protection against further default by the practitioner in question. It also involves protecting the public against similar defaults by other practitioners and is significant because it publicly marks the seriousness of the conduct of the solicitor: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441.

Submissions of the Law Society

128․The Law Society submitted that the findings of the ACAT indicated that the defendant lacks character qualities which are essential for fitness to practise law: honesty, candour and trustworthiness. It points to the observation by the Appeal Tribunal that the defendant did not even understand these concepts, let alone their importance: ACAT Appeal [393].

129․The Law Society points to the defendant’s conduct involving:

(a)dishonesty;

(b)misappropriation of client money;

(c)being unable to comply with court orders requiring him to repay client money;

(d)being unable to prepare a defence which does not expose his client to default judgment; and

(e)being unable to provide other services in a manner which will best protect his clients’ interests and comply with mandatory costs disclosure obligations.

130․The Law Society submitted that the repeated and serious misconduct of the defendant strongly indicated that he was permanently unfit to practise law. It submitted that he cannot be trusted by courts, tribunals, other lawyers, or clients to act with candour and fulfil the most rudimentary requirements of legal practice. Further, he cannot be trusted by the Law Society to provide truthful information in relation to the investigation of his conduct.

131․It also submitted that the defendant does not have any genuine insight into his conduct and, as a result, no real remorse for his conduct. He continues to assert that he has done nothing wrong. It submitted that in order to protect the public from further default by the defendant and in order to mark for the profession generally the seriousness of his misconduct, the court should conclude that he was not a fit and proper person to be entrusted with the important duties and responsibilities which belong to a solicitor.

Submissions by defendant

132․As pointed out earlier, the bulk of the defendant’s submissions (which totalled 2256 paragraphs of written submissions and substantial oral submissions) related to matters that he was not able to agitate on the present application – contests over the factual conclusions reached by the ACAT, and administrative law challenges to the ACAT Decision and the decision to cancel his practising certificate. He engaged with the discretionary question as to whether or not an order should be made removing him from the roll in only a limited way.

133․So far as his attitude to the findings of the ACAT were concerned, he continued to assert on multiple occasions that he had done nothing wrong and yet, on other occasions, articulated regret for his conduct. A portion of the transcript in this court which captures this mixed position is as follows:

So obviously I regret what’s happened and I do regret how this matter has transpired in the ACAT. I wasn’t trying to mislead the ACAT or lead the ACAT up the garden path, and so I do have some remorse in this but I still adhere to my view that I’ve done nothing wrong in the matter of [Mr D] or anything else.

134․So far as his personal circumstances were concerned, he pointed to his age, submitting that “[i]t is very difficult for a sixty-five-year-old male to start a new career”, and to the financial impact that the ACAT proceedings had already had upon him. Although there was no evidence of this, he asserted that the proceedings to date had cost him “well over $200,000”, that for seven years he had been subject of actions by the Law Society, that he had suffered a heart attack, and that there had been significant strain on his relationship with his partner.

135․He submitted that many of the clients for whom he had acted were persons seeking asylum, and said, “I bust my gut to do what’s best for my clients”. He submitted that some of those for whom he had acted had been deported (“back to very risky countries”) in the period since the cancellation of his practising certificate.

136․He submitted that he had been justly punished up until now, and that the court should not make an order removing him from the roll.

Consideration and decision

137․The findings of the ACAT as to the conduct of the defendant in the period prior to the cancellation of his practising certificate in June 2018, are significant findings of professional misconduct. Of most significance are:

(a)the aggregation of findings that he knowingly or recklessly misled courts or failed to correct incorrect statements made to a court; and

(b)the aggregation of findings demonstrating a lack of professional competence.

138․It is significant that he has demonstrated an inability to recognise the fact that he has fallen below the standards required of a lawyer. This absence of insight comes notwithstanding an exhaustive process involving complaints to the Law Society, the initiation of proceedings in the ACAT, a hearing and adverse determination by the ACAT, a hearing and adverse determination by the Appeal Tribunal of the ACAT, and a hearing and adverse determination in the Supreme Court of the application for leave to appeal from the decision of the Appeal Tribunal of the ACAT. Some admissions were made during the period when the defendant was legally represented in proceedings before the ACAT, and submissions were made which appeared to reflect some insight into the inadequacy of his own conduct. However, that representation ceased following the ACAT Decision and the approach taken to the proceedings in the Appeal Tribunal and in the Supreme Court illustrates that, in fact, the defendant has no insight into the inadequacies of his own conduct. In this Court, he expressly submitted that he did “nothing wrong” and has persisted with factual and legal contentions previously rejected by the ACAT, the Appeal Tribunal and the Supreme Court on the application for leave to appeal. His assertion that he does “regret how this matter has transpired” and does “have some remorse” cannot be accepted as demonstrating any real appreciation of his departures from appropriate standards of conduct.

139․Insofar as the ACAT found that he had fallen below an appropriate standard of competence, the defendant similarly remained generally lacking insight. This was illustrated by an exchange with the Court in the present proceedings relating to the content of his written submissions which impliedly asserted that there was nothing wrong with him, as a legal practitioner, commencing proceedings that had no prospect of success because it would have the collateral benefit of delaying the deportation process and applicants who are liable to deportation would be grateful for another two or three years of residence in Australia. It was suggested to him that this amounted to an abuse of process of the courts. He refused to accept this, seeking to justify the conduct on the basis of the consequences of deportation for his clients. He further justified commencement of such proceedings on the basis that they did, in fact, have reasonable prospects of success, saying, “The fact that the court says they don’t have prospects of success, doesn’t mean that they don’t have prospects of success”, and that the reasons why cases he had run were not successful “had nothing to do with the merits of the case”. Unfortunately, these exchanges tended to illustrate that he had very little understanding of his duty as a lawyer or of the institutional framework in which he was required to operate. This pointed quite strongly towards his unfitness to be on the roll of legal practitioners. That such views were expressed many years after his practising certificate was cancelled, and after having gone through the long and difficult process in ACAT, points strongly to the indefinite nature of his unfitness to practise.

140․The unfortunate position for the defendant is that the course of proven misconduct provides a solid foundation for a decision to remove him from the roll of practitioners. His conduct in response to the disciplinary proceedings, and his conduct of the proceedings before this Court, illustrates that he continues to have no significant appreciation of the extent of his departures from appropriate standards of conduct. The combination of persistent failures to meet the standards required of a legal practitioner and the absence of insight into those failures compels the conclusion that he is not fit to remain on the roll. Notwithstanding the passage of time since, as a result of the cancellation of his practising certificate, he has ceased to practise as a lawyer, our conclusion is that he remains a person who is indefinitely unfit to practise as a lawyer and it is appropriate that he be removed from the roll of legal practitioners. We do not accept that any lesser response by the Court would adequately meet the need for the Court to protect the public and the administration of justice by ensuring that only those who are fit and proper persons are able to maintain the privileges associated with being an officer of the Court.

Orders

141․The orders of the Court are:

(1)The following evidence is not admitted:

(a)Affidavit of Hugh Russell Ford dated 9 April 2024:

(i)     paragraphs 28 to 37 and exhibit HRF1 pages 311 to 325;

(ii)    paragraphs 63 to 95 and exhibit HRF1 pages 87 to 120, 121 to 178 and 183 to 186;

(iii)   paragraphs 96 to 124 and exhibit HRF1 pages 187 to 206;

(iv)   paragraphs 125 to 141 and exhibit HRF1 pages 265 to 288;

(v)    paragraphs 173 to 193 and exhibit HRF1 pages 244 to 251;

(vi)   paragraphs 194 to 224 and exhibit HRF1 pages 252 to 253;

(vii)     paragraphs 225 to 244 and exhibit HRF1 pages 254 to 264;

(viii)    paragraphs 245 to 255;

(ix)   paragraph 263 to 278 and exhibit HRF1 pages 290 to 297; and

(x)    paragraphs 279 to 283 and exhibit HRF1 pages 301 to 309.

(b)Affidavit of Hugh Russell Ford dated 26 June 2024:

(i)     paragraphs 68 to 94 and exhibit RUS1 pages 36 to 46; and

(ii)    paragraphs 95 to 100 and exhibit RUS1 pages 47 to 49.

(c)Affidavit of Hugh Russell Ford dated 27 June 2024 (the affidavit of 69 paragraphs): the whole of the affidavit and exhibit RD1.

(2)The application in proceeding dated 30 May 2024 is dismissed.

(3)The name of Hugh Russell Ford be removed from the roll of people admitted to the legal profession maintained by the Supreme Court pursuant to s 27 of the Legal Profession Act 2006 (ACT).

(4)Unless the parties notify the court within 14 days that consent orders are proposed in relation to costs:

(a)The plaintiff is to file and serve written submissions limited to not more than four pages and any evidence in relation to costs by 31 January 2025.

(b)The defendant is to file and serve written submissions limited to not more than four pages and any evidence in relation to costs by 14 February 2025.

(c)The plaintiff is to file and serve any written submissions in reply limited to not more than two pages by 28 February 2025.

(d)Unless the court otherwise orders, the question of costs will be dealt with on the papers without an oral hearing.

I certify that the preceding one hundred and forty-one [141] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.

Associate:

Date: 19 December 2024