Legal Practitioner LP 201901 (David Lander) v Council of the Law Society of the ACT - [2019] ACAT 57

ACT CIVIL & ADMINISTRATIVE TRIBUNAL 
LEGAL PRACTITIONER LP 201901 (David Lander) v COUNCIL OF THE LAW SOCIETY OF THE ACT [2019] ACAT 57

OR 1/2019

Catchwords: OCCUPATIONAL DISCIPLINE – legal practitioner – appeal from Council decision – reasonable likelihood that practitioner will be found guilty by ACAT of unsatisfactory professional conduct – whether conduct was unsatisfactory professional conduct – whether criticism of an adverse litigant and its witnesses was in breach of rules regarding courtesy or injury to the reputation of the profession – nature of appeal from a decision of the Council – decision confirmed

Legislation cited: Legal Profession Act 2006 ss 410, 411, 412, 413, 414, 415, 416, 420
Safety, Rehabilitation and Compensation Act 1988 (Cth) ss 4, 16, 72, 89B

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules2015 rr 2, 4, 5
Legal Profession (Solicitors) Conduct Rules 2007 r 24

Cases cited:Banque Commercial SA (en Liq) v Akhil Holdings Ltd [1990] HCA 11
Briginshaw v Briginshaw [1938] HCA 34
Clyne v NSW Bar Association [1960] HCA 40
Dallarooma Pty Ltd t/as CDB Chauffeured Transport v Hyam [2014] ACTCA 22
Donaghy v The Law Society of New South Wales [2013] NSWCA 154
Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364
Haley v Graham [2005] ACTSC 60
Johnson v Australian War Memorial and Ors [2005] ACTSC 122
Koker v Comcare [2017] AATA 1432
Lander v Council of the Law Society of the Australian Capital Territory [2009] ACTSC 117
Law Society of New South Wales v Constantine Karageorge NSW Solicitor’s Statutory Committee (15 July 1987)
Legal Practitioner “M” v Council of the Law Society of the ACT [2015] ACTSC 312
Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305
McDonald v Legal Services Commissioner [2015] VSC 237
McDonald v Legal Services Commissioner (No 2) [2017] VSC 89
Neat Holdings Pty Ltd v Karajan Pty Ltd [1992] HCA 66
Rejfek v McElroy [1965] HCA 46
Re Veron; Ex parte Law Society of New South Wales (1966) 84 WN (Pt 1) (NSW) 136
Sheehan v Comcare [2017] AATA 2777
Vakauta v Kelly [1989] HCA 44
Victorian Legal Services Commissioner v McDonald [2019] VSCA 18

Tribunal:Presidential Member E Symons
Senior Member B Meagher SC

Date of Orders:  26 June 2019
Date of Reasons for Decision:      26 June 2019AUSTRALIAN CAPITAL TERRITORY       )
CIVIL & ADMINISTRATIVE TRIBUNAL           )  OR 1/2019

BETWEEN:

LEGAL PRACTITIONER LP 201901
Applicant

AND:

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent

TRIBUNAL:Presidential Member E Symons
Senior Member B Meagher SC

DATE:26 June 2019

ORDER

The Tribunal orders that:

1. The appeal is dismissed and the decision under appeal dated 5 December 2018 is confirmed.
2. The order made on 14 January 2019 supressing the applicant’s name will remain in force until 29 days after the date of this decision. After that date this decision will be published with the applicant’s full name.

………………………………..
Presidential Member E Symons
For and on behalf of the Tribunal

REASONS FOR DECISION

1. The applicant (applicant or practitioner) has brought an appeal under section 416 of the Legal Profession Act 2006 (Act) from a decision by the respondent (respondent or the Council) under section 413 of the Act made on 6 December 2018. The Council had concluded that conduct complained of by Comcare was such that it warranted the Council imposing a penalty under section 413(2) of the Act and it issued a public reprimand and a fine of $1,500.
2. The complaint listed 34 instances of conduct by the applicant in which he was alleged to have made comments concerning Comcare or its officers or doctors it used.
3. The complaint is 14 pages long. It says that the applicant is consistently in breach of his professional responsibilities in his dealings with Comcare. It cites examples of serious derogatory remarks made by the applicant to and about Comcare, its employed legal officers and witnesses and professional associates. It says that they should not be subject to recurrent discourteous and disparaging communications. The applicant’s conduct is said to be intended to or alternatively has the effect of intimidating staff who, in the discharge of their statutory duties, are not in a position to respond generally.
4. In its decision the Council relied on six instances and concluded that the other instances were not such as to attract an adverse finding. Since the appeal was lodged and after the recent decision in the Victorian Court of Appeal in Victorian Legal Services Commissioner v McDonald (McDonald), the Council now relies on two further instances of the 34 instances in [2] above. The applicant opposed the late introduction of these further matters. He did not suggest that he could not deal with it and he has. He did not articulate but may have raised an issue about this being permissible under the legislative scheme and this will be addressed. He also asserted that he should not be judged by new legal principles if they differed from those that he understood he was complying with. This will also be addressed.

The legislation

5.           The relevant provisions of the Act are as follows:
Part 4.5    Decision of council
410   Decision of council after investigation
(1)     After finishing an investigation of a complaint against a person, the relevant council must—
(a)dismiss the complaint under section 412; or
(b)take action under section 413 (Summary conclusion of complaint procedure by fine etc); or
(c)make an application to the ACAT under part 4.7.
(2)     This section does not affect section 400 (Withdrawal of complaints).
411    Decision of council without investigation
(1)     This section applies to a complaint against an Australian legal practitioner if the relevant council is satisfied that action should be taken under this section because of—
(a)the nature of the subject matter of the complaint; and
(b)the reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct.
(2)     This section also applies to a complaint against an employee of a solicitor if the relevant council is satisfied that action should be taken under this section because of—
(a)the nature of the subject matter of the complaint; and
(b)the reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
(3)     If this section applies to a complaint, the relevant council may make an application to the ACAT under part 4.7 for an occupational discipline order in relation to the person complained about without starting or finishing an investigation of the complaint.
412   Dismissal of complaint
(1)     After finishing an investigation of a complaint against an Australian legal practitioner, the relevant council may dismiss the complaint if satisfied that—
(a)there is no reasonable likelihood that the practitioner will be found guilty by the ACAT of either unsatisfactory professional conduct or professional misconduct; or
(b)it is in the public interest to dismiss the complaint.
(2)     After finishing an investigation of a complaint against an employee of a solicitor, the relevant council may dismiss the complaint if satisfied that there is no reasonable likelihood that the employee will be found guilty by the ACAT of unsatisfactory employment conduct.
413   Summary conclusion of complaint procedure by fine etc
(1)     This section applies if the relevant council for an Australian legal practitioner—
(a)completes an investigation of a complaint against the practitioner; and
(b)is satisfied that there is a reasonable likelihood that the practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct); and
(c)is satisfied that the practitioner is generally competent and diligent; and
(d)is satisfied that the unsatisfactory professional conduct can be adequately dealt with under this section.
(2)     The relevant council may do all or any of the following:
(a)caution the Australian legal practitioner;
(b)publicly reprimand the Australian legal practitioner or, if there are special circumstances, privately reprimand the practitioner;
(c)make a compensation order under part 4.8 if the complainant requested a compensation order in relation to the complaint;
(d)direct the practitioner to do all or any of the following:
(i)stop accepting, for a stated time, instructions in relation to stated work;
(ii)stop employing a stated person in the practitioner’s practice;
(iii)undertake stated further legal education;
(iv)seek advice in relation to the management of the practitioner’s practice from a stated person;
(e)impose a fine on the practitioner of a stated amount.
(3)     The maximum amount that can be imposed by way of fine is $1 500.
(4)     A fine is payable to the relevant council in the way and within the reasonable period required by the relevant council.
(5)     If an amount is received by a council as complete or partial payment of a fine imposed under this section, the council must pay the amount into a statutory interest account.
(6)     The Australian legal practitioner must not fail to pay a fine imposed under this section in accordance with the requirements of the relevant council.
(7)     If action is taken under subsection (2), further action must not be taken under this chapter in relation to the complaint.
414   Record of decision of council about complaint
(1)     A council must make and keep a record of its decision in relation to each complaint dealt with by it under this chapter.
(2)     The record must include its reasons for the decision.
415   Council to give reasons to complainant and practitioner
If a complaint is made about a person, the complainant and the person about whom the complaint is made are entitled to receive a statement of reasons from the relevant council if any of the following decisions are made by it:
(a)a decision to dismiss the complaint;
(b)a decision to make an application to the ACAT under part 4.7 in relation to the complaint;
(c)a decision to refer a matter to the Supreme Court under section 409 (Referral of matters for costs assessment—complaint investigation) in relation to the complaint;
(d)a decision to take action under section 413 (Summary conclusion of complaint procedure by fine etc);
(e)a decision to omit, from the allegations particularised in an application made by it to the ACAT under part 4.7 in relation to the complaint, matter that was originally part of the complaint.
416   Appeals to ACAT against decisions of relevant council
(1)     A person mentioned in table 416, column 2 may appeal a decision mentioned in column 3 to the ACAT.
(2)     The appeal must be made not later than—
(a)28 days after the day the relevant council gave the person making the appeal a statement of reasons under section 415; or
(b)any further time allowed by the ACAT.
(3)     The ACAT may make any order it considers appropriate on the appeal.
(4)     Without limiting subsection (3), the ACAT may make 1 or more of the orders mentioned in section 425 (3) to (5) (ACAT orders—Australian legal practitioners).

6. Rule 24 of the Legal Profession (Solicitors) Conduct Rules 2007 (2007 Rules) provided:
24.Communications
A practitioner, in all of the practitioner’s dealings with other practitioners, must take all reasonable care to maintain the integrity and reputation of the legal profession by ensuring that the practitioner’s communications are courteous, and that the practitioner avoids offensive or provocative language or conduct.
7. Relevant Rules from the Legal Profession (Solicitors) Conduct Rules 2015 (2015 Rules) are:
Rule 2
The purpose of these Rules is to assist solicitors to act ethically and in accordance with the principles of professional conduct established by the common law and these Rules. In considering whether a solicitor has engaged in unsatisfactory professional conduct or professional misconduct, the Rules apply in addition to the common law. A breach of these Rules is capable of constituting unsatisfactory professional conduct or professional misconduct and may give rise to disciplinary action by the relevant regulatory authority but cannot be enforced by a third party.
Rule 4 Other fundamental ethical duties
A solicitor must also:
4.1.1 act in the best interests of a client in any matter in which the solicitor represents the client;
4.1.2 be honest and courteous in all dealings in the course of legal practice;
4.1.3 deliver legal services competently, diligently and as promptly as reasonably possible;
4.1.4 avoid any compromise to their integrity and professional independence; and
4.1.5 comply with these Rules and the law.
Rule 5 Dishonest and disreputable conduct
5.1 A solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to:
5.1.1 be prejudicial to, or diminish the public confidence in, the administration of justice; or
5.1.2 bring the profession into disrepute.

The nature of the appeal to the Tribunal

8. In the decision of the Supreme Court of the Australian Capital Territory in Legal Practitioner “M” v Council of the Law Society of the ACT (M), Refshauge J described the appeal under section 416 of the Act as a review of an administrative decision.
9.           He said:
The balance of authority seems to favour a wide role for the ACAT in hearing the appeal from the Council of the Law Society. As noted, the precise label given to the process is not always helpful. It seems, however, that the ACAT proceeds in this situation in a way that is more closely identified with the notion of a hearing de novo; that is, it revisits the application without regard to error and may receive not only the evidence before the Council but additional evidence (perhaps with some limitation) where, as I now address, the onus of proof remains on the Council to prove the conduct the subject of the complaint and that it is unprofessional.
and
In this case, it seems to me that a consideration of the authorities shows that the “appeal” to the ACAT is to be undertaken on the following basis:
1.    1. The ACAT should have regard to the material before the Council.
2.            2.             The ACAT is not limited to that material and can receive further or other material, including material that relates to matters that occurred after the decision was made by the Council.
3.            3.             The ACAT may limit the material to be adduced if it addresses issues that are not properly before it.
4.            4.             The ACAT is not limited to finding error in the decision of the Council.
5.            5.             The ACAT should make the correct or preferable decision at the time that it makes its decision.
6.            6.             The ACAT may not rely on facts unless satisfied on the balance of probabilities that they exist and so the status quo may remain unless the ACAT is otherwise satisfied.
7.            7.             The ultimate onus of proof in proceedings for discipline of lawyers is on the professional association which brings the proceedings.
8.            8.             The legal practitioner may, however, in an appropriate case, bear an evidential onus of proof.
10. Refshauge J also said that ACAT stands in the shoes of the decision maker. In that case there was a problem that is not present here, namely, there were disputed questions of fact and that highlighted the language of section 410 and section 413 of the Act. The question the Council was required to consider was whether there was a reasonable probability that the ACAT would make a finding of unsatisfactory professional conduct. If this was so decided by it, as well as the other matters in section 413, then it may impose particular penalties. Under section 416 of the Act ACAT, on appeal, has wider powers. As Refshauge J explained:
144. The ACAT then sought to draw a conclusion from these findings in the words of the statute as follows:
[61]Assessing the weight of that evidence, the Tribunal considers there to be a reasonable likelihood that based upon it the ACAT would make a finding of unsatisfactory professional conduct, but not one of professional misconduct.
145. The difficulty with the question to be answered is that there is a strange uncertainty inherent in it. The task of the decision-maker, which is the Council of the Law Society, is to proceed only if “there is a reasonable likelihood that the legal practitioner will be found guilty by the ACAT of unsatisfactory professional conduct (but not professional misconduct)”: s 413(1)(b) of the Legal Profession Act.
146. When it comes to the appeal to the ACAT, it stands in the shoes of the decision-maker and must make that same decision, even though it is the ACAT itself. Thus, it is required to consider whether it is likely that it would to (sic) find the legal practitioner guilty of unprofessional conduct (but not professional misconduct) without actually doing so.
147. The parties to these proceedings accepted that, when applying the test as to whether the decision-maker is satisfied of the reasonable likelihood, the decision-maker had to apply the principles set out in Briginshaw v Briginshaw [1938] 60 CLR 336. In that case, Latham CJ pointed out at 343, the difference in degrees of certainty and that the level of certainty will naturally vary in accordance with the seriousness or importance of the issue.
11. Refshauge J commented that this was counter-intuitive and difficult for lay people to understand. For our part, this is not confined to lay people.
12. These provisions could be amended to remove unnecessary artificial distinctions. It should be the case that the Council should actually decide that the practitioner was guilty of unsatisfactory professional conduct before proceeding to impose penalties. In the present matter it must be the case that the Council was satisfied as it did not refrain from imposing a penalty and chose to impose penalties that were more severe than it might have. In fact, the Council did, as explained in its reasons for decision. The Council also made a finding in accordance with section 413(1) of the Act.
13. It can be seen that the Council must do one of three things under section 410. It might dismiss the complaint but would not, unless there was a public interest reason, if it thought that there is a reasonable likelihood that ACAT would find the practitioner guilty of unsatisfactory professional conduct. It can be seen, also, that the test in Briginshaw v Briginshaw [1938] HCA 34 (Briginshaw) applies to that question. Thus, this Tribunal has to be comfortably satisfied, on the balance of probabilities, that there is a reasonable likelihood that the ACAT would find the legal practitioner guilty of unsatisfactory professional conduct, without actually doing so.
14. The Tribunal is bound by the decision of Refshauge J dealing with this problem. Whilst the outcome is illogical the analysis by Refshauge J is, with respect, persuasive and the outcome is a product of the language of the statute.
15. The same question has been answered the same way in respect of analogous NSW legislation, the Legal Profession Act 2004, by the New South Wales Court of Appeal in Donaghy v The Law Society of New South Wales:
16. The requirement in s 540(1) that the Council be satisfied that “there is a reasonable likelihood that the practitioner would be found by the Tribunal to have engaged in unsatisfactory professional conduct” has been held to require that the Council predict or forecast the outcome of a hearing before the Tribunal “on a test of reasonable likelihood”: Murray v Legal Services Commissioner [1999] NSWCA 70; 46 NSWLR 224 at [88] Carson v Legal Services Commissioner [2000] NSWCA 308 at [43]. That test does not require satisfaction that the practitioner has engaged in such conduct. It requires satisfaction that there is a “reasonable likelihood” of that outcome following a hearing before the Tribunal. That composite expression describes a chance or prospect of that happening which is real and not fanciful or remote. The adjective “reasonable” is a measure of the “likelihood” and a descriptor of its characteristic as soundly based. It is not necessary in this case to explore more closely the meaning which that expression conveys.

16. Fortunately, in the present case there is no factual issue about what happened. The alleged offending communications are admitted. There is no attack on the honesty of the practitioner. He has provided evidence about the material on which he based his statements and, whilst that is criticised, it is not because of any attack on the credit of the practitioner but, rather, whether it is an adequate basis for making the admitted statements.
17. The reason why there was a problem in the case of M was that there were real factual questions as to what had happened, and the Tribunal then decided them even though the Council had or could not. Refshauge J observed, in such a case it would be unwise for the Council to use section 413 but, instead, should apply to the Tribunal.
18. It must be the case that if we actually came to the conclusion that the applicant was guilty of unsatisfactory professional conduct that the question whether it was reasonably probable that a theoretical tribunal would do so is answered anyway. Refshauge J contemplated this approach where he said:
Clearly, there will be cases which are clear and where the ACAT will, without difficulty, find that there is an abundance of clear evidence to show that the legal practitioner has, without much doubt, engaged in or not engaged in unsatisfactory professional conduct. In such circumstances, it may then not be difficult to answer the proper question set out above (at [150]).
19. It is possible that the Council might not be certain that the practitioner is so guilty but is of the view that it was reasonably likely that ACAT would so find. The range of options in section 413(2), whilst preceded by the word “may”, do not offer a choice of doing nothing. Theoretically, the Council must impose sanctions even if it is not certain of guilt. Obviously, in such a case, the complaint could be dismissed or sent to ACAT, but it seems very unwieldy.
20. In practice, the course followed by the Council here is sensible. The need to then consider what a tribunal might do can be seen as a brake on acting summarily unless it not only thinks the practitioner is guilty but also thinks an independent umpire would be reasonably likely to do so as well.

The relevant conduct complained of

Case 1

21. By an email of 20 November 2015 copied to the AAT, the applicant wrote to an in-house lawyer of Comcare in relation to an appointment arranged by her for the applicant’s client, who was seeking compensation, to be medically examined by a Sydney rheumatologist Dr A. There are two complaints about this letter.
22. It says, relevantly, in an attack on the doctor:
As Comcare knows from about 50 to 60 complaints made by this writer on behalf of clients over the last 15 or more years, Dr A is widely considered to be a “hired gun” rheumatologist with little or no compassion for injured workers, with a fixed position in relation to workplace injury (namely that it almost never happens), with an inflexible and ideological driven view of the world and with the capacity to discount even the most logical workplace injuries.
23. In an attack on Comcare it says:
Perhaps that is why you chose him… to examine ... (the client) who does not have a rheumatological condition” and “We are copying this letter to the Tribunal so there can be no misunderstanding about Comcare’s motivation in choosing Dr A.
24. It also complains about the delay in having to see a Sydney doctor and other practical matters about the time and travel expenses for the appointment.
25. For completeness, it is noted that the applicant was asked for information about this letter by the solicitor for the Council. The Tribunal has considered the applicant’s answerand the patient feedback extract provided. The applicant was also cross examined by counsel for the respondent. The various points made by both parties as well as the oral evidence on the topic will be described later.
Case 2
26. This relates to an email sent by the applicant to the case review officer and a copy to the Chief Executive of Comcare dated 2 February 2016. It is a request of a reconsideration of a decision by a Ms B.
27. In its heading it refers to “Grubby Insurance Practices.” It refers to a decision by a named officer of Comcare, described as robotic, not to allow medical expenses for massage. The practitioner said he doubted that the named officer understood a word of what she wrote but applied a meaningless template she had been directed to apply. He set out a five-point list of matters, presumably sent to him by the decision maker, that Comcare need to be satisfied about. He asserts the template is not appropriate. One element is to measure and demonstrate the effectiveness of treatment. Apparently, a medical report had been provided by the practitioner and the Comcare employee had said she would not pay for it as it was too expensive. One of the points to be addressed was “a biopsychosocial approach”. The practitioner comments that this requirement is an armchair theorist word and not one used by doctors. It was also said not to be one that the Act provides for and the expression “biopsychosocial approach” was not meaningful. The practitioner inserts a reference to Nazi Germany or Soviet Russia in his email, but not directly branding Comcare of being akin to such a state. He interpreted the refusal to allow medical expenses as based on the treatment as being non curative which he said was not the test. He said there was Federal Court authority to that effect. In fact, the Safety, Rehabilitation and Compensation Act1988 section 16 and section 4 allow compensation for medical expenses which includes therapeutic (alleviating) massage. It need not be curative but the Comcare officer can still ask how it might be effective in alleviating the injury or the condition it causes. Apparently, the General Practitioner had said so. Apparently, also, this followed a long, drawn out and ultimately successful AAT claim by the client. It might be inferred that the practitioner was provoked and may have been angry. It is apparent, too, that he is seeking to protect his client, a retired pensioner. He then added in his email:
Ms B does not understand the first thing about [the client’s] condition because she has adopted a nonsensical template ... and she has maliciously imposed a requirement on the client that she pay for her own medical report.
28. Whilst this language is robust the practitioner then added:
Comcare is a grubby, dishonourable and dishonest insurer. It does not deserve to have a licence … if it continues to write the garbage that Ms B was directed to write.
Case 3
29. This relates to an email to a Dr C dated 2 March 2016. It appears the doctor had been asked by Comcare to examine the practitioner’s client. The applicant must have had the commissioning letter even though the report had not yet been made or served. The practitioner states:
Comcare is engaged in what can only be described as systemic unethical conduct of which you need to be aware; you will be cross examined in relation to this matter should you appear in the Tribunal to give expert evidence.
30. The practitioner then explains that Comcare have a number of reports contrary to what is in the commissioning letter and also reports from people who cannot be regarded as reputable as they do not meet the description of experts without fixed ideologies or of writing for the audience that pays them and have minds closed to the suffering of human beings. At the end he adds:
I …. ask that you please not limit yourself to the erroneous postulations of Comcare who are trying to get you to assist them to deny all compensation … and who will use unethical means to achieve that outcome.
31. The letter is referred to by the applicant in his affidavit of 5 May 2019. Generally, in respect of assertions of unethical, dishonest or corrupt behaviour, the applicant has in his responses to the respondent, in his affidavit and oral evidence and in his submissions, relied on his long years of dealing with Comcare. These points will be addressed later.
Case 4
32. In an email to the Chief Executive of Comcare of 5 May 2016 the practitioner wrote of a decision for which he sought reconsideration:
This decision is naïve and an abuse of power.
It is patently dishonest, dishonourable and shameful. It is pitifully wrong and moreover misapplies the law. It needs to be reviewed by an external independent person with knowledge of the facts and law. You are presiding over corrupt practices. Defence conduct has again been shameful, dishonourable and corrupt. I will spell out further in chapter and verse if you appoint someone of integrity qualified to review it. It should not be going to the AAT.
33. He explained to the Tribunal that by the word “corrupt” he did not mean “in the sense of money changing hands or brown paper bags.” In a response to the Council’s solicitor, he stated that “corrupt is used in the sense of the perverse corruption of the beneficial nature of the legislation which Comcare administers.”
Case 5
34. This is the other extra count added to the six (6), the subject of the Council’s decision.
35. This concerns an email dated 4 July 2016 to Ms D, a legal officer employed by Comcare. It is referred to in paragraph 2.3.14 of the complaint. In response to a request to extend time for a supplementary medical report to be served from a rheumatologist, the applicant wrote:
I reckon he is livid with your unethical attempt to get him to change his opinion. It is consistent with Comcare’s general behaviour.
36. The applicant referred to this email in his affidavit and said he had a cordial relationship with Ms D and that continued after this email exchange. He mentioned that in his oral evidence as well.
Case 6
37. This concerns an email of 10 July 2016 to a Reconsideration Officer. It describes the original decision as “insulting”. The decision had denied a mood disorder claim made by the applicant on behalf of one of his clients. He said the decision was based on:
the unethical rubbish written by the unethical Dr E.
We note that we previously alerted Comcare to the pathetic waste of money that engaging Dr E usually produces.
38. The complaint refers to it at paragraph 2.2.5.
39. The applicant was asked the basis for these remarks in a letter from the Council’s solicitor of 9 March 2018 and he replied by a letter of 22 March 2018 and a later undated letter. He referred to two cases where the evidence of the doctor had been rejected. The cases of Johnson v Australian War Memorial and Orsand Haley v Grahamdo not indicate any adverse view of the doctor as a reason for preferring other evidence and do not support any attack on him. The applicant also provided some reviews of the doctor and some were hostile. He also provided an excerpt from the South Australian Legislative Council Hansard of 24 June 2010 which was a complaint describing the doctor as a hired gun. The Minister promised to investigate but the results of that investigation are not disclosed in the material.
40. The applicant also referred to this in his affidavit. He provided a report from the doctor about another client. The doctor had disagreed with a number of other doctors and attacked them. The report was never served and the opponent that had sought the report conceded the claim. The report seems on its face to be unusual and at odds with a number of other specialists.
41. He also referred to a decision of the AAT of Sheehan v Comcare dated 22 December 2017. Again, the doctor’s opinion was not accepted but there was nothing in the reasons that was critical of him.
Case 7
42. This arises from an email of 23 July 2016 to the Chief Executive of Comcare. It is referred to in the complaint at paragraph 2.3.18.
43. It said:
If there were a Federal ICAC the conduct reflected and documented to the attached [attachment has not been reproduced] would be referred to the Commission for both civil and criminal investigation.
You preside over an increasingly corrupt and unethical organisation.
…
Accordingly, there is no basis for your junior delegates to write what they wrote. They are complicit in the deception and dishonesty. (emphasis in original)
44. It is evident from the email that the applicant had been told about supposed bad behaviour by the clinical psychologist commissioned by Comcare. This information came to him from a treating psychotherapist. In oral evidence it was explained that the treating doctor had been quoted by the Comcare doctor as saying things that he did not say, and he was unhappy with the Comcare doctor. The aim of the letter was to get funding reinstated and for the Chief Executive of Comcare to investigate.
Case 8
45. This arises from an email from the applicant of 28 November 2016 to the Chief Executive of Comcare.
46. It asserts a general level of incompetence in the Melbourne office and appears to be aimed at getting the claim moved on. Having made that request it says:
Comcare is at times not only unethical but corrupt. You show a massive disinterest in the way your organisation operates because complaints to you are rarely and fully considered.

The relevant law

52. As was explained earlier, Case 1 occurred at the time of the 2007 Rules whereas the other seven matters occurred after the introduction of the 2015 Rules.
53. The Tribunal was informed that there are, as yet, no decided cases about the relevant rules in 2015. There is some difference in language. In rule 24 of the 2007 Rules the requirement of courtesy might be thought to be confined to dealing with other practitioners. That is what Refshauge J said in M. In Lander v Council of the Law Society of the ACT (Lander) the Full Court of the ACT Supreme Court accepted the general exposition of principle by the Legal Practitioners Disciplinary Tribunal that rule 24 extended to others. The Full Court accepted this in part because the introduction to rules relating to Third Parties had stated the following:
Practitioners should, in the course of their practice, conduct their dealings with other members of the community, and the affairs of their clients which affect the rights of others, according to the same principles of honesty and fairness which are required in relations with the courts and other lawyers and in a manner that is consistent with the public interest.
54. It also has a test of taking all reasonable care.
55. In the 2015 Rules the requirement extends beyond just dealing with practitioners but does not refer to taking care. It also adds a requirement that the likely impact on the reputation of the profession be “to a material degree.”
56. The rationale of the rules that might affect communications with others including non-clients is to protect the integrity and reputation of the profession. The use of offensive language in a professional capacity without adequate justification would clearly have a tendency to damage the good name of the profession. In addition, the use of disparaging language is likely to cause harm to the objects of the language where they are individuals and may well be seen as intimidatory by the recipients. There are occasions where the robust prosecution of a client’s best interest requires a degree of offensive – or at least non courteous – conduct. Confrontational cross examination as to credit is an example. When dealing with an adverse party in litigation, it is often necessary to assert unpleasant facts about the adverse party. Minds might differ about the limits of this. It is not unknown for bullying to be used by some to get the better of an opponent. Robust resistance to such conduct might be objectively offensive but may well be justified.
57. There are a number of cases and the Tribunal has been provided with a helpful analysis of them by counsel for the respondent.
58. In Lander the Full Court heard an appeal by a practitioner from the Legal Practitioners Disciplinary Tribunal – a predecessor of the ACAT. That practitioner had been found guilty of unsatisfactory professional conduct for very similar conduct as here. The appeal was allowed. On its face the decision might be seen as enabling such conduct. However, the case needs to be examined carefully to see what it did decide. The key to the success on appeal was not a finding that such conduct is permissible but rather that any justification for it was not examined by the tribunal.
59. The Full Court rejected a contention that there is a general obligation on a solicitor to refrain from that which the recipient might find to be discourteous, offensive or provocative statements as too broad. However, the Full Court posited an example where the criticisms were shown to be true or fair comment as understood in defamation law. It did not think the comments were gratuitous, as had been in a case of Law Society of New South Wales re Constantine Karageorge (Karageorge), a decision of the then NSW Solicitors Statutory Committee of 15 July 1987.
60. In that case the lawyer concerned had called another solicitor a “f… ing” Arab and another solicitor a “f… ing” Jew. He had extended such abuse to members of the public. Clearly such language has no connection with the prosecution of a client’s interests. Where that line is drawn is elusive. The Full Court referred to comments that were extraneous to the matter being legitimately pursued.
61. Whilst the Full Court had suggested justification as being truth or fair comment it reverted to the expression “on reasonable grounds”, which is a less onerous test. It considered that the conduct was not on its face extraneous to a legitimate purpose. It said a solicitor has a right and a duty to represent his or her clients’ interests forthrightly and without fear or favour. If the conduct of public officials adversely impacting on a client is considered on reasonable grounds to be “rude, unhelpful” or any similar characterisation, it is no breach of courtesy to point that out to those in authority, even though those criticised may consider the criticism unwarranted and offensive. Such a communication was said to need to be raised in the interest of the client and generally.
62. That Court also adverted to the fact that the choice of confrontation rather than persuasion may not be effective advocacy on the part of the solicitor but that did not prevent it being permissible.
63. In summary, the tension between courtesy and the duty to advance a client’s case was ascertained by considering whether the conduct was gratuitous or extraneous to any legitimate purpose and whether it is based on reasonable grounds.
64. The case of Lander was extensively considered in cases between a practitioner, Mr McDonald, and the Victorian Legal Services Commissioner.
65. Mr McDonald wrote a letter to an opposing legal practitioner whom he described as fundamentally dishonest and that he was dishonest in a deliberate and calculated manner. This was because he had believed he had been told that the matter could not be settled but later an offer was made. The two lawyers differed as to what was said, and the Victorian Civil and Administrative Tribunal (VCAT) could not determine on the Briginshaw test what had been said. Mr McDonald was found guilty of unsatisfactory professional conduct by VCAT. He was given leave to appeal to the Victorian Supreme Court with respect to two questions of law – (a) whether the principle or authorative ruling to be derived from Lander is that there will be no unsatisfactory professional conduct on the part of a solicitor making accusations of the kind made in this case unless it is established that the accusations were false or without foundation to his or her knowledge; and (b) whether the principle to be derived from Lander is applicable in the circumstances of McDonald. Zammit J found that VCAT had applied the wrong test.

66. Zammit J decided that Lander meant that it was the practitioner’s subjective knowledge that was to be used in determining whether there was an objective reasonable basis for the accusations or criticisms. Apart from the need for the reasonable basis, she identified at [26] and [27] that the offensive language must not be extraneous to the purpose of robustly asserting the clients’ interests and that this was a difficult issue. She noted there is a distinction between ineffective advocacy, which might not achieve the object, and extraneous objects. The VCAT decision was set aside and the matter remitted to VCAT for determination.
67. VCAT subsequently found the two charges against McDonald were proved (the second VCAT decision); and he appealed this decision to the Victorian Supreme Court where Bell J allowed the appeal.
68.         The Victorian Legal Services Commissioner appealed the decision of Bell J. The Court of Appeal, in McDonald agreed with VCAT and allowed the appeal. The Court of Appeal disagreed with Zammit J about posing a two-step test but did not disagree that the test for a reasonable basis was objective and said so. It summarised its position, which it said, was in accordance with the Lander decision, as follows:
In summary, in our view, Bell J was correct in recognising that:
(1)     Rule 21 is to be interpreted according to its plain meaning;
(2)     The issues of whether a practitioner’s comments are made in the legitimate pursuit of a client’s interests and on a reasonable basis are both relevant considerations to the application of r 21; neither issue is determinative and neither issue is a substitute for the application of the ordinary language of the rule;
(3)     Lander supports a contextual approach that recognises the inter-relationship between a number of factors (and not simply those identified in (2));
(4)     The purpose of r 21 is the preservation of the integrity and reputation of the profession thereby supporting public confidence in the legal system;
(5)     The duty a practitioner has to be robust in defending a client’s interests, and the freedom of expression protected by the Charter, support an interpretation of r 21 that imposes a limit on freedom of expression only to the extent necessary to achieve its purpose; thus the rule only prohibits discourteous, offensive or insulting language or conduct that represents a failure to take reasonable care of the reputation or integrity of the legal profession.
69. Finally, as can be seen from the decision in M, the tribunal is standing in the shoes of the Council and the appeal is a review as if de novo. Thus, the two matters not decided by the Council but now pressed can be considered by the Tribunal subject to any procedural fairness constraints. They have been met and the practitioner has filed an affidavit that deals with them.

The submissions, evidence and conclusions in respect of each of the eight (8) matters

The applicant’s evidence
The applicant’s affidavit dated 5 May 2019

70. The applicant is in his 70s. He has been in the law for over thirty (30) years. Prior to that he had worked in government agencies of the Commonwealth and Territory Government for twenty-five (25) years, of which about one half (1/2) was in the Senior Executive Service. He witnessed what he believed to be misconduct and unethical practices by politicians and public servants whilst working for Government. As a lawyer he has had experience in many areas but principally personal injury, mental health, worker’s compensation and employment law, criminal law, administrative law, debt recovery and aspects of commercial law. He estimates that at least fifty (50) % of his work was concerned with workers compensation and personal injury. He has given advice and acted in hundreds of worker’s compensation cases mainly for Government employees.
71. He had been asked by a previous Chief Executive of Comcare to meet with him after he had conveyed extensive client complaints about Comcare’s conduct. He met him twice and, at his request, prepared a taped audio recording his objections, which he believes was then sent to Comcare’s staff.
72. He has continued to make such complaints. He asserts that Comcare has a statutory obligation to act ethically; to determine claims quickly and accurately, in good conscience, without regard to technicalities and on the substantial merits of the case. The test, he says, is on the balance of probabilities and the legislation is beneficial.
73. In case there is any doubt, the Tribunal notes that section 72 of the Safety, Rehabilitation and Compensation Act1988 provides:
Manner in which claims are to be determined
In performing the function referred to in paragraph 69(a), Comcare:
a.    (a)       shall be guided by equity, good conscience and the substantial merits of the case, without regard to technicalities;
b.    (b)       is not required to conduct a hearing; and
c.     (c)       is not bound by the rules of evidence.
74. The applicant also asserts that Comcare is bound by the Commonwealth Model Litigant Guidelines. He attaches a submission of the Australian Lawyers Alliance (ALA) about the Model Litigant Guidelines which seems to suggest that this is not yet so and pointing out why it should be. It lists a number of examples of problems that arise in the conduct of Comcare claims.
75. The applicant further asserts that his clients have a legitimate expectation that he acts for them robustly and without fear or favour. These clients have no income, often have mortgages, and other debts. If insurers deny them compensation by practices that are not ethical or fair, their lawyer has a right and a duty to speak up for the injured claimant.
76. He submits that Comcare is an unaccountable Government owned insurer and there is no forum or authority that reviews its conduct. His adverse comments, about which this complaint relates, have often been known by the AAT and he has received no complaint from that tribunal about them.
77. The Tribunal notes that there is also a Commission that has oversight of Comcare as set out in section 89B of the Safety, Rehabilitation and Compensation Act 1988 as follows:
Functions
The Commission has the following functions, in addition to its other functions under this Act:
a.    (a)       to ensure that, as far as practicable, there is equity of outcomes resulting from administrative practices and procedures used by Comcare and a licensee in the performance of their respective functions;
b.    (b)       to advise the Minister about anything relating to the operation of this Act or to the Commission’s functions and powers;
c.     (c)        such other functions as are conferred on the Commission by any other Act.
Note: Functions have also been conferred on the Commission by the Work Health and Safety Act 2011.
78. The ALA suggests there could be better oversight but accepts that the Ombudsman has oversight but complains that it is not in real time.
79. Thus, the Tribunal does not accept that the applicant has completely accurately described the position but acknowledges that it is the experience of a respectable representative body of plaintiff lawyers that there have been problems with Comcare’s processes from time to time and that there is a need for better oversight of any such shortcomings.
80. The applicant refers to the concession that the respondent does not question his honesty. This was confirmed during the hearing by counsel.
81. The applicant observed that the complaint has redacted the names of his clients which make it difficult, time consuming and not always possible to put the specific matter into context. He asserts that there has been cherry picking by the respondent.
82. The applicant also points out that the criticisms have not been denied and that there is no evidence of complaint from any of the doctors or the employees concerned other than by the lawyer making the complaint on behalf of Comcare.
83. He says he is not alone in his criticism of Comcare’s unethical conduct referring to the ALA submission. It should be noted that the word unethical does not appear in that submission and it is not alleged. In fairness, it does assert failings by Comcare and relies on an earlier report of Peter Hanks QC indicating some systemic problems that arise from the way the institution is set up.
84. He attaches to his affidavit a document that is an extract from a website called “Victims of Comcare” that contains complaints of hardship suffered in making claims on Comcare. It is not possible to assess the validity of the complaints and they appear directed at the employer and others as much as, if not more than, Comcare.
85. The applicant says he honestly believes what he wrote about Dr A. The Tribunal accepts that he does. In this context, it might be observed that in compensation and personal injury cases, it is not a novel proposition that there are doctors that are routinely used by one side in the expectation that the doctor might support their case. This applies to claimants as well as insurers. It is also well known that there are overuse injury sceptics. Whether Dr A falls into this category or not, the applicant clearly believes he does. It may not be too hard to tell if it was reasonable to believe if there were examples of the doctor’s opinions provided. None were.
86. It is instructive to consider the views of respected judges. In Vakauta v Kelly the High Court found the trial judge went too far in expressing his preconceived views so that bias was eventually found. Brennan, Deane and Gaudron JJ explained it as follows:
6. The learned trial judge’s adverse comments about Dr. L, Dr. R and Dr. D in the course of the trial of the present case were indeed strong: “that unholy trinity”; the G.I.O.’s “usual panel of doctors who think you can do a full week’s work without any arms or legs”; whose “views are almost inevitably slanted in favour of the GIO by whom they have been retained, consciously or unconsciously.” His Honour indicated that he regarded those three medical practitioners as falling within a “particular category of doctors” to whom he had an adverse attitude. He stated that he expressed his views “for the benefit of the present parties in the negotiations which were taking place.”
87. The applicant says that Dr A has written dozens or more medical reports that do not reflect an objective, independent expert witness approach to opinions requested. They reject a workplace overuse injury in any circumstance, seemingly designed to assist insurers to defeat meritorious claims. Clients have complained to the applicant that they were not asked or allowed to answer fully relevant questions by doctors that he describes as hired guns. It is assumed that Dr A is put into this category. It is impossible to form a view about these statements and whether they are reasonably based. It may be that Dr A might be unpersuaded that where there was no radiological evidence of frank injury and where the onset was preceded by light but repetitive work, such as word processing, he could not support that the symptoms of pain either existed or if they did that it was causally related to the work.
88. The applicant refers to the complaint about writing to Dr C. He explains that Dr C was new to reporting for Comcare and he wanted to alert him to the problems of being misled by it. He denies he intended the email as a threat.
89. He says that others hold the same views as him about Comcare but won’t say so publicly.
90. The applicant refers, also, to a complaint concerning Dr F. He says that Dr F was so offended by his briefing by Comcare that he expressed disgust to his client who told the applicant. The applicant assumed that there was pressure on Dr F to change his views expressed in an earlier report and it is to be inferred that Dr F did not. The applicant also says that he has not seen any more reports from Dr F and assumes that was because he did not do what Comcare wanted.
91. Ms D, the Comcare employee, to whom the remarks were made did not complain to him and he remained on good terms with her.
92. As stated above, he told the Tribunal that his use of the word “corrupt”, meant that the ethical mandates required of Comcare were corrupted by this conduct. He refers to inaccurately and incompletely briefing – often with wrong or no medical tests – and the supposed attempt to put pressure on Dr F. Corrupt, he later says, does not mean brown paper bags.
93. Of the complaint regarding Dr G, a psychiatrist, he says that Dr G, in his experience, conducts very short consultations and rarely supports a claimant. He says that the opinions of Dr G are often contradicted by every other doctor in the matter. He attaches a report of Dr G in a recent case involving the NDIS. In that report Dr G criticises, in strong language, three reports of the claimant. This is seen by the applicant as demonstrating that Dr G’s reports are out of step with reputable medical opinion. Notwithstanding the report, which the applicant obtained by an FOI request, the case was conceded by counsel for NDIS at the door of the Court and the report was never served.
Answers to requests by the respondent for information
94. The lawyers for the Council sought information by letters of 9 March 2018 and 22 May 2018. Responses were provided by letters of 22 March 2018 and an undated letter received on 1 June 2018 respectively.
95. In the first response the applicant lists what he says are ways in which Comcare has not acted in accordance with section 72 of the Act as well as model litigant guidelines. They include the following:
a.(a) Not providing medical practitioners with correct legal tests on which to base their opinions.
b.(b) Providing to medical practitioners inadequate histories including skewing them in favour of rejecting the claim.
c.(c) Choosing medical practitioners with the wrong specialties despite adverse comment from him and AAT Registrars.
d.(d) Choosing medical practitioners about whom he and his clients have complained due to their lack of bedside manner, failure to listen and rudeness.
e.(e) Refusing funding for medical reports.

a.96.         These complaints are in general terms and give no specific case examples.
b.97.         The applicant was asked for instances of conduct that was unethical, corrupt or dishonest, dishonourable or otherwise established a basis for his criticisms of Comcare and particular doctors. He was asked for them by reference to some of the examples in the letter of complaint.
c.98.         The applicant does not provide any specific instance but says in the case of some he cannot tell what the matter is so cannot respond further. He does criticise Dr G and Dr A as earlier set out. Dr A, he says, almost never supports a worker. He provided an unflattering review of Dr A that was posted online. He refers to two cases where other doctors were preferred to Dr G by Master Harper in the ACT Supreme Court. These have been referred to earlier.
d.99.         He cites critical remarks of Comcare by Deputy President Humphries in Koker v Comcare. The AAT used the words “unconscionable” and “unethical tactics” about the conduct of Comcare. Comcare, we are told rejected this criticism and asserted in public that it was unfair. It related to an unusual case regarding mistaken payments to a worker that it sought to recover. It is not similar to the matters raised by the applicant.
e.100.       He also attached a South Australian Legislative Assembly Hansard, where a question was raised about Dr G being a hired gun. The Minister said he would investigate the matter but there was no resolution of the assertions. In addition, he provided a list of comments online concerning Dr G that were in a number of instances critical of him.
Oral Evidence
a.101.       The applicant was cross examined about the eight instances relied on by the respondent.
b.102.       In respect of the first matter, the email of 20 November 2015, in cross examination he said he would not still have an email record but had not checked. He agreed that he might be able to identify the file by reference to email records on the office computer, if they were there, but had not looked for them. Some criticism was made that he was not complying with his duty to cooperate with the Council by not looking or making the effort. The Tribunal does not accept that is fair. The duty is not one sided and it should have been easy enough to get the names of the files from the complainant, if need be as the emails were annexed to the complaint. In any event it was conceded that the applicant was not hampered in his response by not knowing the context.
c.103.       In summary, the applicant accepted that the expression ‘hired gun’ was a serious criticism in so far as it indicated a willingness not to comply with the AAT expert evidence code requiring independence. He asserted that the doctor is an advocate against injured workers with occupational overuse injuries in every report he writes. He indicated that he did not suggest that this was not an honest belief by the doctor. He adverted to a general practice in medico-legal matters of there being doctors usually called by one side or the other.
d.104.       The applicant was asked why he needed to add this complaint as it ought to be sufficient to point out that the client did not have a rheumatological condition, there was no promise to pay for the travel and the delay was unnecessary. He maintained he thought it was appropriate.
e.105.       He was also asked about the opportunity he had to form his beliefs by observation or reading cases. He could not identify a case where the Court or the AAT had described the doctor as a hired gun or where he had seen the doctor give such evidence although he thought he had seen it on one occasion. He relied on what he had been told by barristers and others.
f.106.   Although not explained, he must have read a number of reports from that doctor as well and is likely to have formed the view that there was a consistent pattern of rejection of occupational overuse injuries based on a preconceived view about such matters.
g.107.       The applicant also said that Comcare’s knowledge of this after his complaints and continuing to use such a doctor “is a serious ethical breach by Comcare of their duties under their legislation”.
h.108.       In respect of the second matter similar questioning took place. The applicant was not hampered here by not seeing the file. He was not aware of any finding or decision to the effect that Comcare was dishonest.
i.109.   The cross examination followed the same line of questions in respect of each matter. It was not apparent that there was any particular problem in identifying context that might prevent the applicant from dealing with the complaint. The Tribunal has, in respect of one matter, concluded that more context might have assisted.
j.110.   It is not proposed to set out the evidence further here, but the Tribunal has referred to it where relevant in its consideration of the decision to be made.
Submissions
a.111.       The Council’s decision was accompanied by detailed reasons that are well set out and have been of assistance. The respondent’s counsel has also provided lengthy and thoughtful submissions that explain the legal principles well. They also go through each case and detail what was wrong, in the Council’s submission, with the statements made by the applicant. We do not propose to repeat them here but have considered them in dealing with each matter.

b.112.       The applicant has also provided a statement and submission filed on 14 March 2019 and, more recently, another set of submissions, dated 6 May 2019. The latter deal with the right of free speech, the right and duty to advance the clients’ interests robustly where required, the need for intellectual honesty and the disadvantages and vulnerabilities of the clients who make the compensation claims. He has explained in the hearing how some are destitute, have marriage problems induced by injury and impoverishment, lose careers and have aggravated health outcomes. He maintains that as a lawyer of many years’ experience in the area and as a former upper level public servant, he has special knowledge of the problems that might arise in the bureaucracy.
c.113.       He cites the ACT Supreme Court decision in Lander as authority for his right to proceed as he did. He says that if the law has changed since Lander, he should be judged on what he might reasonably have understood it to be based on Lander.
d.114.       He relies heavily on his opinion and asserted experience over many years and maintains he need not be required to regurgitate each complaint that led him to his opinions. He rephrases the test for justification as having a rational basis for the assertions. Except for a few matters that have been identified, he has not produced any concrete instances that might warrant his general views. He maintains he is not required to prove these matters conclusively.
e.115.       The applicant admits he sent the communications that are said to support the decision. He honestly believes what he has said. He is motivated by a wish to stand up for his clients, many of whom are disadvantaged and seriously affected by a delay in receiving compensation or its refusal. It is conceded he is honest and diligent. He believes he is within his rights to make the comments because of the Lander decision.
f.116.   The respondent does not disagree with the general submissions to the effect that, on occasion, the duty to the client will override courtesy. It does not dispute that the applicant is genuine in his views or that he is honest. It does not dispute that he is otherwise diligent.
g.117.       It does not say that the law has changed since Lander but rather explains it as we have set out earlier. The test is objective, based on the particular knowledge held by the practitioner and it is necessary to establish a reasonable basis for such assertions and they ought to be for a non-extraneous purpose. The respondent goes through each case and argues that there is no reasonable basis for the comments complained of and that, in some instances, they are outside any legitimate purpose.
h.118.       The respondent addressed the onus of proof. It says that, here, the evidential onus has shifted to the applicant to show the facts that constitute a reasonable basis and that it is not adequate to make a generalised statement that they occurred on numerous occasions.

119. In respect of serious allegations made by the practitioner such as dishonesty, corruption, deception and the like, it draws attention to the need to identify, with particularity, the facts that might constitute it. The respondent refers to Rejfek v McElroy and Banque Commercial SA (en Liq) v Akhil Holdings Ltd. These cases concern allegation of fraud and the respondent argues that many of the allegations here are as serious. It submits that clear, cogent and strict proof is necessary citing Neat Holdings Pty Ltd v Karajan Pty Ltd.

j.120. Referring to each case, the respondent submits that the applicant has not considered, as he should, that there may be another point of view (citing McDonald).

Consideration

a.121.       What we have to decide, based on a comfortable satisfaction on the balance of probabilities, is whether there is a reasonable likelihood that the ACAT would find the applicant guilty of unsatisfactory conduct.
b.122.       The Tribunal has come to a decision that the decision of the Council should be confirmed. It is important that the applicant understands why that is so, not just for the usual reasons, but because it is concerned that he refrains from continuing such conduct given his strongly held views expressed to the Council, its lawyers and to the Tribunal.
c.123.       Firstly, there is no appreciable difference in assessing the conduct between the 2007 Rules and the current rules in this case. The principles in the cases discussed above apply to both. The Tribunal acknowledges that the likelihood of injury to the reputation of the profession has to be to a material degree under the 2015 rules. This might, in some cases, allow some leniency. In concluding that there is a reasonable likelihood that the ACAT will find, so the rule is breached, we have considered that the conduct would impact on the reputation of the profession to a material degree.
d.124.       Secondly, in one matter the instance of the M test is not made out.
e.125.       Thirdly, the complaint that the context was not able to be assessed by reason of the redaction of names is not made out.
f.126.   Fourthly, the Tribunal accepts the respondent’s submissions that:
a.(a) the applicant bears an evidential onus of proof concerning his subjective knowledge on which he made the accusations of dishonesty, deception, corruption and unethical behaviour in communications which were the subject of the complaint. The applicant is, in effect, the only source of such information and he has a general duty to disclose it as explained in Re Veron; Ex parte Law Society of New South Wales; and
b.(b) there is a need to identify, with particularity, the facts that might constitute such language.

127. The Tribunal must determine whether the applicant’s knowledge, or the information available to him, that he says justified accusations of dishonesty, deception, corruption and unethical behaviour were an objectively reasonable basis for such accusations.
128. The further question for the Tribunal is whether it could be satisfied to the relevant standard that there is a reasonable likelihood that the applicant will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct).

Case 1

129. The problem here is the use of the words ‘hired gun’. Without the context, it would be a very serious assertion about a medical expert. It implies that he is ready to say what he may not believe as it is what the party hiring them wants. It implies a breach of the requirement of independence. As the applicant says, a barrister might be so described and that may not be disparaging as the barrister is supposed to take up the cudgels for the client. An expert witness is in a different category. The applicant explained in his evidence that what he meant was something less than that, namely, an honestly held, but wrong-headed, preconceived view that occupational overuse injury does not exist. Whilst there was no direct evidence that this was so, it is likely that the applicant has read a number of reports by the doctor and either seen or been told by other reliable lawyers that it is so. The Tribunal is not satisfied that there is no reasonable basis for the assertion that the doctor has this view. Whilst it is argued that the situation did not require it, the Tribunal is not satisfied that it would be inappropriate also to object to the use of the doctor given his asserted preconceived view.
130. Whilst, with the benefit of the applicant’s evidence, it can be seen that the words used were intended to convey such a defensible assertion, the words used go further than that. The use of the words ‘hired gun’ means more than that. The applicant also asserts that the doctor has little or no compassion for the injured client and his asserted preconceived view goes to almost all workplace injuries. The statement that he has a capacity to discount even the most logical workplace injuries also adds to the imputation that he tailors his views to suit the person paying him. There is no direct or even indirect evidence that might establish a reasonable basis for saying these things. If that was what was intended, it would need to be done in a professional manner by advancing the evidence for it and basing the assertions on that evidence. The Tribunal can see in a broad sense that, if this was so, there might well be a non-extraneous reason for saying it, as was explained in Lander. In Lander, the basis was never examined. Here it has been.
131. It is important to point out, as well, that the rules of evidence must be taken into account. Section 420 of the Act applies them to applications made in that part. Those applications are what would be brought by the Council, if a summary procedure was not followed under section 413. In considering the M test, this Tribunal must postulate what the ACAT would be reasonably likely to do if an application was made under the part. It should be made clear that section 420 does not apply to this appeal directly but rules of evidence do inform the cogency of any of material adduced.
132. Statements of opinion with no evidence of the facts on which they are based would be strictly inadmissible, at least, to prove the assertions are true or there is a reasonable basis for saying they were true. They can be admissible to show the state of mind of the lawyer.
133. In this matter the applicant has repeatedly sought to make good what he has said by referring to his own prior complaints and opinions. This is sometimes described as ipse dixit. Whilst the applicant is right that he need not prove conclusively that what he has said is true, these assertions are no more than that and are not any proof.
134. As is submitted by the respondent, it is not possible to tell objectively whether in any of the unparticularised earlier cases the opinion of the applicant could have been reasonably reached.
135. It is also complained that Comcare has been disparaged by saying its motives, in choosing the doctor, may be because of his predilection. Because the disparaging remarks about the doctor go further than the applicant may have really meant, the same goes for the assertion that this is why the doctor may have been chosen by Comcare. This is a less serious aspect of the various cases complained about.
136. Finally, there is no apparent legitimate purpose in sending a copy to the AAT. The AAT have no role until there is an appeal and then it is inappropriate to send, uninvited, such material to it. If it is seen from the AAT perspective, it can do no more than ignore the communication or bin it.

Case 2

137. The assertion that Comcare is a grubby, dishonourable and dishonest insurer is, on any view, a serious breach of the rule. In its context, it serves no purpose at all. It is no better than the abuse in the case of Karageorge. There is no direct evidence capable of establishing any of these epithets and there is no reasonable basis shown for them. The catalyst for the email was the application of what might be argued to be impractical bureaucratic templates that obscure common-sense outcomes. Given the client’s long fight up until then, an angry reaction was understandable. However, the failings, if any, in this matter do not warrant such language and there is insufficient, if negligible, direct evidence of earlier instances that might warrant such extreme language. No doubt Comcare will not always act in a praiseworthy manner and even more certain is the fact that this will be the view of those disappointed by its decisions from time to time. However, that falls well short of any justification for such extreme language. It is clearly conduct that satisfies the test explained in M.
138. Comcare complains that it was appropriate to make a general complaint to the Chief Executive but not to the case officer. Whilst that may be a better way to proceed with a legitimate complaint, the Tribunal does not see that as adding to the seriousness of the breach.
Case 3
139. It is unusual for a lawyer for an adverse party to write to a proposed expert witness for the other side. There is no general embargo on doing so, however, and it can be in the course of seeking to advance the interests of the client.
140. The statement that Comcare is engaged in what can be only described as systemic unethical conduct has not been shown to have any reasonable basis and it suffers from the same failings as the statements in Case 2. The Council was correct in its finding under section 413 of the Act.
141. In addition, the reference to cross examination, viewed objectively, is a threat. The applicant gave evidence that he did not intend this and did not think it was a threat. He agreed that it would be wrong to make a threat. However, viewed from the point of view of the recipient, there is an unspoken implication that the cross examination would not be nice. The Tribunal accepts that this was not what was intended. The capacity for intimidation is certainly conduct that the ACAT is likely to find to be unsatisfactory professional conduct but is not as serious as the disparaging remarks about Comcare.

Case 4

142. Here the complaints are that the decision is not only wrong, but it is dishonest, dishonourable and shameful and asserts that the Chief Executive presides over corrupt practices. The applicant explained that he meant something less disparaging in his use of the word corrupt. Whilst it can be used in the way the applicant intended, objectively, without explanation, it is far more disparaging. There is no evidence that Comcare is corrupt in its usual meaning nor does the applicant maintain that there is. The other epithets suffer from the same lack of any objective evidence that could justify them and there is no reasonable basis for them.

Case 5

143. The evidence about this was, at first, confusing. It might be thought that the applicant had some feedback from his client about the content of the letter from Comcare to the doctor. He says he would not have seen that letter at that time. He says he did not get the feedback until later. It seems the first report from the doctor was favourable to the client. It may well be the case that, based on that and other reports from the Comcare doctors, the applicant might reasonably infer that Comcare wanted the doctor to reconsider his first report. There is nothing inherently wrong about doing so. It may be that the letter suggested something improper. The chances of this are not high, as it is clear that the letter would have to be served with any further report. As it happens, after the email was sent, the practitioner got the feedback from the client about the doctor being cross about the letter. This might support the possibility that the letter did cross some line. The letters have not been produced. This may be an instance, unlike the other matters, where the lack of identification of the client could hinder an investigation. However, the applicant in his evidence seemed to be able to identify the client.
144. At the time he wrote the email there was no material that might justify the statement that the Comcare employee was unethical other than his view that Comcare usually was. As has been seen in the earlier cases, there is no demonstrated reasonable basis for such an assertion.
145. An additional matter is the statement that the employee, to her credit, continued to deal with the applicant on an amicable basis. It may be she had grown immune to such jibes and made allowances for the fact that the applicant was prone to making such remarks. It is difficult to assess how seriously the remarks should be viewed. It is certainly the case that they should not be made unless a reasonable basis for them can be shown but it could be that, in all the circumstances, it was not offensive.
146. The test in M is such that in a close case the Tribunal may not be sufficiently satisfied as to the likelihood of an ACAT finding. Here, although this practice is not condoned, the Tribunal is not comfortably satisfied that there is a reasonable likelihood that the ACAT would find that, in context, the remarks were offensive. In respect of this aspect the applicant succeeds.

Case 6

147. This relates to Dr G.
148. There is some material that Dr G might be an expert whose approach is not consistent with mainstream thinking. The Tribunal has referred to the evidence provided by the applicant in respect of the online reviews, the South Australian Legislative Council, the non-preference of his evidence and the report he provided, that attacks other doctors in what might be argued to be an unconvincing manner.
149. Without saying that the basis for some criticism is true, in this instance there is some material that would provide a reasonable basis for criticism of the doctor’s reports. It is a legitimate purpose to make such criticisms to Comcare.
150. However, the language used is unrestrained and offensive. It goes much further than the grounds for criticism could warrant. It is, in short, unprofessional language and, if left unchecked, would lower the reputation of the legal profession to a material degree. The applicant’s challenge to this aspect fails.
Case 7
151. This is in the same category as Case 4. It asserts corruption, without qualifying what that means. It asserts deception and dishonesty.
152. It seems there was a reasonable basis for complaint about a report by a medical practitioner, commissioned by Comcare, as it was said to contain statements incorrectly attributed to a Mr H who treated the client. It was a legitimate occasion to complain. The extent of the complaint is far beyond any demonstrated basis. It amounts to abuse as in the Karageorge case. There is no reasonable basis for these extreme statements. It is offensive and highly unprofessional to make them. Whilst the cases make plain that poor advocacy is not in itself a breach, this sort of communication is not only unsatisfactory professional conduct but is counterproductive to the clients best interests. The applicant’s challenge to this ground fails.

Case 8

153. This, again, is an occasion where there may well have been a legitimate purpose to complain to the Chief Executive. The Complaint may have addressed the asserted incompetence of the Melbourne office. The extreme language such as “corrupt” and “unethical” and “rarely honest” are in the same category as Case 4 and Case 7.
154. This challenge by the applicant also fails.

The penalty

155. No challenge to the penalty was made. It would be open to the Tribunal to revisit this on such an appeal, but no submissions were made that we should, and we do not.

Conclusion

156. The Tribunal concurs with counsel for the respondent and is satisfied that making accusations of reprehensible conduct or serious wrongdoing without a reasonable basis or other than in the legitimate pursuit of a client’s interests is likely, to a material degree, to bring the legal profession into disrepute. As the plurality said in a joint judgment in Clyne v NSW Bar Association:
The last thing we would wish to do would be to say anything which might be thought to curtail this freedom of speech, which public policy demands. Cases will constantly arise in which it is not merely the right but the duty of counsel to speak out fearlessly, to denounce some person or the conduct of some person, and to use such strong terms as seem to him in his discretion to be appropriate to the occasion. From the point of view of the common law, it is right that the person attacked should have no remedy in the courts. But, from the point of view of a profession which seeks to maintain standards of decency and fairness, it is essential that the privilege, and the power of doing harm which it confers, should not be abused. Otherwise grave and irreparable damage might be unjustly occasioned.

157. The decision of the Council dated 5 December 2018 is confirmed.
………………………………..
Presidential Member E Symons
For and on behalf of the Tribunal
HEARING DETAILS

FILE NUMBER:	OR 1/2019
PARTIES, APPLICANT:	Legal Practitioner LP201901
PARTIES, RESPONDENT:	Council of the Law Society of the Australian Capital Territory
COUNSEL APPEARING, APPLICANT	N/A
COUNSEL APPEARING, RESPONDENT	Mr DA Moujalli
SOLICITORS FOR APPLICANT	N/A
SOLICITORS FOR RESPONDENT	McInnes Wilson Lawyers
TRIBUNAL MEMBERS:	Presidential Member E Symons Senior Member B Meagher SC
DATES OF HEARING:	7 May 2019