Legal Practitioner v Council of the Law Society of the ACT
[2015] ACTSC 316
•5 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Legal Practitioner v Council of the Law Society of the ACT |
Citation: | [2015] ACTSC 316 |
Hearing Date(s): | 2 February 2015 |
DecisionDate: | 5 November 2015 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Category: | Principal Judgment |
Catchwords: | PROFESSION AND TRADES – Lawyers – discipline – appeal from the ACT Civil and Administrative Tribunal – referral to the Supreme Court. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 79, 81, 82, 83, 84, 85, 86 Legal Profession Act 2006 (ACT) ss 386, 387 Legal Profession (Solicitors) Rules 2007 (ACT) rr 1.1, 1.2, 36.1 |
Cases Cited: | Allesch v Maunz (2000) 203 CLR 172 Balfour and Clark v Hollandia Ravensthorpe NL (1978) 18 SASR 240 The Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209 |
Parties: | Legal Practitioner (Appellant) Council of the Law Society of the ACT (Respondent) |
Representation: | Counsel Self-represented (Appellant) Mr N Beaumont SC with Ms T Power (nee Dinh) (Respondent) |
| Solicitors Self-represented (Appellant) Phelps Reid Lawyers (Respondent) | |
File Number(s): | SCA 25 of 2013 |
Decision under appeal: | Court/Tribunal: The ACT Civil & Administrative Tribunal Before: Ms L Crebbin, General President; Mr G Lunney SC, Senior Member; Ms J Westaway, Member. Date of Decision: 16 May 2012; 31 August 2012 Case Title: Council of the Law Society of the ACT & The Legal Practitioner X (Occupational Discipline); Council of the Law Society and Legal Practitioner X (Occupational Discipline) Citation: [2012] ACAT 34; [2012] ACAT 60 |
BURNS J:
On 16 May 2012, the Australian Capital Territory Civil and Administrative Tribunal (the ACAT) published its reasons for finding the practitioner guilty of one count of unsatisfactory professional conduct and two counts of professional misconduct. On 31 August 2012, the ACAT ordered that the practitioner not be granted a local practicing certificate for three months, and that he pay the respondent Law Society’s costs of the proceeding.
The practitioner appealed from the ACAT’s decisions on liability and penalty.
The practitioner was granted leave to file a Further Amended Notice of Appeal, which set out the grounds upon which the appeal was ultimately argued. The practitioner alleged the ACAT fell into error:
(a)by finding that he had acted negligently by failing to respond to the 18 February 2008 letter;
(b)by finding that he had acted negligently in forwarding the incorrect contract;
(c)by finding that he had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention;
(d)by finding that he both deliberately and recklessly misled the complainants in his letter dated 20 November 2008;
(e)by finding that his allegedly reckless misleading of the complainants in his letter dated 20 November 2008 amounted to professional misconduct;
(f)by not finding that the mortgagee’s solicitors contributed to the delay;
(g)by finding that he had threatened and intimated the complainants in his letter dated 12 December 2008;
(h)by finding that the complainants suffered economic loss; and
(i)by failing to properly consider the unsolicited offer of compensation made by him.
The proceeding in the ACAT
The practitioner was the holder of an unrestricted practicing certificate and the principal of a law firm practicing in the ACT. In 2007, he acted for two clients, referred to as SD and MG (the clients), on the joint purchase of a residential property in the ACT (the property). He also acted for MG on a separate sale of a property in her name. Settlement of the joint purchase occurred on 9 November 2007.
A problem arose preventing registration of the transfer of the title to the jointly purchased property. SD’s middle name was included in his description in the mortgage document, but it was not included in the transfer handed to the complainants’ mortgagee on settlement. As a result, the transfer and security documents could not be registered by the mortgagee.
The mortgagee’s solicitors wrote to the practitioner’s firm on 21 February 2008 saying, “we are still unable to register security documents” due to the difference in description of SD in the documents, and that an amended transfer incorporating SD’s middle name was required. For this purpose they required the original contract for sale, which was with the practitioner. The letter concluded, “Your urgent assistance on this matter would be appreciated”.
As the ACAT observed, there was controversy as to whether that letter was received by the practitioner, and no contract was forwarded by him prior to another letter being dispatched by the mortgagee’s solicitors on 21 April 2008. This letter referred to the previous letter of 21 February 2008 and stated that the mortgagee’s solicitors were still unable to register the security documents as they were still awaiting the original contract for sale from the practitioner. The letter referred to the need for the matter to be addressed urgently, as SD and MG were in breach of the terms of the loan contract. The letter concluded by requesting that the practitioner “rectify this matter” within seven days.
The practitioner sent a contract to the mortgagee’s solicitor on 28 April 2008, but unfortunately it was the wrong contract, and related to the separate transaction involving the sale of MG’s property.
The ACAT noted that there was controversy about what contact the mortgagee’s solicitors had with the practitioner’s firm from 28 April 2008 until early September 2008. The mortgagee’s solicitors alleged that they made phone calls to the practitioner’s firm, but the practitioner said no such calls were received.
MG and SD became aware that there was a problem on about 7 July 2008 when a rates notice in the name of the previous owner was sent to the property. They initially took this up with the mortgagee, but, on 19 August 2008, they sent a fax to the practitioner’s firm:
RE: SETTLEMENT ON 60 MARY KITSON STREET WATSON BLOCK 15
SECTION 104 – THE LANDS AND TITLES OFFICE WEREN’T NOTIFIEDSettlement on the above property was effected 9 November 2007. Our solicitor was [MH], who I believe left [the firm] shortly before settlement occurred. I recently received an overdue water/sewerage bill and a rates notice, both overdue and addressed to the previous owners, the Sewells. (Previously the bills had been going to the Sewells’ PO box, so the first time I saw the notices was when they started coming to our home address.) I rang the rates and land titles people about this and they said they hadn’t received the documentation of the change in ownership.
Could you please fax the documentation re the change the ownership on council rates and water notices to the lands and titles office immediately, and then email me to confirm this has occurred... ?
The situation is making us quite worried that our water is going to get cut off. The bills are also racking up since we haven’t been receiving them quarterly and we’re accruing interest on these bills. We’re now in the situation that we owe about $1500 which we’ll have to pay in one go – the bills are going to keep mounting if this situation isn’t resolved promptly.
There was evidence before the ACAT that the practitioner was “away” and did not receive the above fax. MG and SD sent a further fax to the practitioner’s firm on 25 August 2008:
RE: 60 MARY KITSON STREET WATSON BLOCK 15 SECTION 104
Hi,
As discussed on the phone this morning, settlement on the above property was effected 9 November 2007. I’ve recently become aware that ownership is still in the name of the previous owners (CJ and KL Sewell) meaning that we’re unable to pay the rates and water/sewerage bills. I’ve attached the rates notice as discussed. Our bank is Aussie Home Loans.
On 5 September 2008, the mortgagee’s solicitor wrote to the practitioner referring to the practitioner’s letter of 28 April 2008 and advising that the wrong contract had been sent and asking the practitioner to forward the correct contract “as soon as possible”.
On 30 September 2008 at 10.23 am, SD sent an email to the practitioner referring to a telephone conversation between MG and the practitioner on 27 August 2008 in which the practitioner was alleged to have told MG that he had sent the “relevant information” to the “ACT titles office”. The email said that SD had contacted the ACT titles office on 30 September 2008 and was told that it had not received the alleged fax from the practitioner. SD concluded the email by requesting that he be provided with a copy of the fax so that he could discuss the matter with the titles office.
At 11.09 am, the practitioner responded by email simply saying that he would attend to SD’s “enquiry” as soon as possible.
On 20 October 2008 at 10.59 am, the practitioner sent an email to SD saying that he was personally going to his archives on Sunday 26 October 2008 to locate the file. At 2.02 pm that day, SD responded, saying:
That would be good – we are very anxious to resolve this matter.
Another 6 days till Sunday 26/10 may not seem very long to wait, but it is already quite a long time since we raised this with [the firm]. [MG] first contacted [the firm] on 19 August about this issue (and was subsequently told the matter had been sorted), and I spoke to you in late September. In three weeks it will be the one year anniversary of settlement.
Can you let me know what steps you have been taking since you emailed me on 8 October, after you talked to Aussie Home Loans? We had hoped based on your emails that you were progressing our issue. What is the reason that our file hasn’t been obtained from archives already?
We would like you to give our matter more urgency, given the length of time we have already waited. We would like to hear the results of your inspection of the file soon after you receive it, with a successful resolution shortly after that. If you are able to obtain the file sooner than Sunday, this would also be appreciated.
At 2.38 pm, the practitioner responded, “I looked for your file in the archives this Sunday (and before as well); but was unable to locate it”.
Further emails were exchanged between 20 October and 28 October 2008. On 27 October 2008, SD emailed the practitioner asking if the file had been found. On 28 October 2008, the practitioner replied saying that the mortgagee’s solicitors “are attending to this matter. They have lodged the Transfer last Friday. The new title will be issued in your names very soon”.
On 29 October 2008 at 4.28 pm, the practitioner sent an email to SD saying:
By now the Land Titles Office may have registered the title in both of your names. I can check this by doing a Title Search, the cost is $20.00. If you want me to do the search please tell me. We sent the contract to [the mortgagee’s solicitors].
At 1.25 pm on 30 October 2008, SD sent an email to the practitioner stating that the mortgagee’s solicitors had not received the contract “as of 10.30 this morning”. He went on to say that he and his wife had conducted a title search that day and the title was still not in their names.
On 9 November 2008, SD sent an email to the practitioner complaining that the title was still not in their names, and advising that they had “spoken to the law society”. SD indicated an intention to seek a full or partial refund of fees paid to the practitioner.
On 11 November 2008, the practitioner emailed SD, relevantly saying:
If there is a bank, the post-settlement work is done by the Bank. In your case you had a bank. The bank should have attended to applying for a new certificate of title. The bank’s solicitors contacted us and requested the contract for sale. They did not do this immediately after the settlement, but only recently. We do not know why they wanted the Contract for Sale as it is not required to register the title in your names. As stated before the Contract for Sale is valid only until Completion. The terms therein merge at Completion. The document to register the title is the stamped Memorandum of Transfer, which the bank always had. They kept it at Completion.
After their request we provided them with the original Contract for Sale, I know it took sometime. We had difficulty in retrieving the file from our archives. However, we should reiterate that the Contract for Sale is not required to register the title in your name. The bank should have done this with the Memorandum of Transfer, and other associated documents.
...
We came to know about the problem (that the title was not transferred to your names) only recently. [The mortgagee’s solicitors], never told this to us, but merely requested from us the Contract for Sale. No one communicated with us only soon after the settlement. If there was a problem the bank should have contacted us immediately after the settlement, but they did not do so.
Until either the bank or you contacted us there was no way we could know that the title had still not been transferred to your names. Again, as stated before, attending to this work is the responsibility of the bank and their solicitors, and not us. This is the normal procedure of conveyancing, practiced everywhere universally. But when the Bank and you asked us to co-operate we co-operated in every possible way we could.
...
On 17 November 2008, SD emailed the practitioner:
In your email Tuesday 11 November, you mentioned that “We came to know about the problem (that the title was not transferred to your names) only recently. [The mortgagee’s solicitors] never told this to us, but merely requested from us the Contract for Sale. No one communicated with us only soon after the settlement. If there was a problem the bank should have contacted us immediately after the settlement, but they did not do so.”
I just wanted to check that you are sure that [the mortgagee’s solicitors] didn’t contact you before July 2008. Have you checked our file to confirm this? (In your email of 31 October, you said that you had recovered our file.)
The practitioner wrote to SD and MG on 20 November 2008 and said:
As far as we can remember the sequence of events are as follows:
· The matter was settled on 2 November 2007.
· Nearly 7 months after the settlement, on or about 28 April 2008, we were asked by [the mortgagee’s solicitors] to provide them with the original contract for sale. They did not give us a reason for the request.
· Immediately afterwards, we provided the contract for sale to them (we do not know the precise date).
· Unfortunately, we had provided the wrong contract for sale – contract for the sale of 162/395 Antill Street, Watson.
· More than 5 months afterwards, on or about 5 September 2008, we were told by [the mortgagee’s solicitors] that we provided the wrong contract for sale.
· We admit it took us some time to locate the contract for sale for 60 Mary Kitson Street, Watson. This is because the file, which had been sent to our archives, was unable to be located. We had to go to the archives several times to locate the file. We finally managed to locate the file.
· We sent the contract for sale for Mary Kitson Street, Watson to [the mortgagee’s solicitors], sometime in October 2008 (we cannot, at the moment, state the precise date).
· Had [the mortgagee’s solicitors] asked us to send the correct contract for sale much earlier (rather than waiting for 5 months), we would have provided so.
· You will agree most of the delays in relation to registration of the title has been due to the inaction of [the mortgagee’s solicitors].
On 20 November 2008 at 10.50 am, SD responded by way of email, questioning a number of the practitioner’s assertions in this letter. He said to the practitioner, relevantly for present purposes:
In fact, [the mortgagee’s solicitors] wrote to you on 21 April. In this letter, they referred to their previous letter sent to you on 21 February. The letter of 21 February explained that the Transfer had not occurred, because of an error that [you] made in the settlement paperwork. [The mortgagee’s solicitors] also made quite a few phone calls to [you] trying to gain your assistance. I think you will agree it is clear that [your firm] is responsible for all of the delay in the title transfer. [The mortgagee’s solicitors] have been extraordinarily helpful under difficult circumstances.
I am at a loss how you could inform us that you recovered our file, and yet you were apparently unaware of the details of [the mortgagee’s solicitors’] letter to you of 21 April, and you were apparently unaware of the existence of their letter of 21 February. We would appreciate an explanation of your behaviour. Have you found our file or haven’t you? If you have, where are your copies of those letters?
[The mortgagee’s solicitors’] letter of 21 April said that we were exposed and at risk, due to the non-registration of the security documents. They also said that we were in breach of the terms of our loan contract and that Aussie Home Loans may therefore be entitled to take action against us under our loan contract. Why did you fail to notify us of the very significant risk to us? Why did you fail to act promptly resolve the matter?
We have suffered considerable stress and loss time due to your persistent neglect and delay in handling our matter. We were at significant risk of much more substantial damage. We are drafting a letter to the Law Society and will forward you a copy.
The practitioner responded to this email by letter dated 21 November 2008 in which he stated:
(a)he did not have any record on his file of receiving letters from the mortgagee’s solicitors dated 21 February 2008 or 21 April 2008, but “(t)his does not mean we are saying that[the mortgagee’s solicitors] never sent these letters to us; what we are saying is that those letters are not in the file”;
(b)“(i)f we received the 21 February 2008 letter we would have promptly acted on it”;
(c)“(i)f I have read the 2 letters, I would have known the full particulars of the story, and I would have acted fast. I cannot recall reading them”;
(d)“(u)ntil recently (until you told us), we did not know the gravity of the problem”; and
(e)the delay was mostly the fault of the mortgagee’s solicitors.
This letter was followed by another from the practitioner on 23 November 2008 in which he said:
I can now say that [the mortgagee’s solicitors] have sent two letters to us on 21 February 2008 and 21 April 2008.
We agree that we have not acted promptly in attending to the requests made by [the mortgagee’s solicitors] in their 2 letters.
We agree that the issuance of your title deed was delayed owing to our lapse of attending to the matter.
We agree that you have suffered economic loss as a result, especially in regards to the rates payments, as interest has accrued for the non-payment of rates.
We agree to compensate you for the economic loss, and any other loss, suffered by you.
We apologise for our lapse, which was un-intentional (sic).
As was noted by the ACAT, this letter brought forth a very detailed reply from the clients in which they claimed refund of the practitioner’s fees, interest incurred on rates and water and sewerage charges, and compensation for the time SD and MG spent trying to resolve the issue.
The clients followed this letter by an email dated 4 December 2008 in which they pressed their claim for compensation and said that, if the practitioner did not pay the costs claimed, they would “write to the Law Society, and they can review the matter”.
The practitioner replied in a letter dated 9 December 2008, offering to settle the clients’ claim on the basis that he refund to them 75 per cent of the interest they had paid, the $20.00 title search fee and an “ex gratia” payment of $100.00. This was approximately 10 per cent of the amount claimed by SD and MG.
In his letter of 23 November 2008, the practitioner had said “I can now say that [the mortgagor’s solicitors] have sent 2 letters to us, on 21 February 2008 and 21 April 2008”. In his letter of 9 December 2008 he sought to qualify, or add to, this statement by saying that he was not sure whether the mortgagee’s solicitors did send those letters, and that he was not sure that he received them, but he would give the mortgagee’s solicitors “the benefit of the doubt” and accept “moral responsibility”. The practitioner, however, continued to place the blame on the mortgagee’s solicitors for the majority of the delay in having title to the property transferred into the names of the clients. The practitioner also contended that the Law Society may have given the clients “incorrect advice” about compensation, and that the Law Society was not a body capable of making a determination “that we were wrong” and should pay compensation.
By email dated 9 December 2008, the clients responded, “Possibly you are right that the Society will not be able to assist us with compensation. Our main objective is to prevent future clients from going through our experience”.
The practitioner responded by letter of 10 December 2008, effectively pleading with the clients to reconsider the matter and to accept his offer of compensation.
On 10 December 2008, the clients wrote to the Law Society complaining about the practitioner’s conduct.
By letter dated 12 December 2008, the Law Society advised the practitioner of the complaint and sought a response within 14 days. The practitioner claimed that he did not receive this letter until 18 December 2008, but it is clear that the practitioner was on notice of an intention on the part of the clients to make a complaint to the Law Society from 20 November 2008.
On 12 December 2008, the practitioner wrote to the clients reiterating his offer of settlement, and indicating that the offer would lapse at 5 pm on 16 December 2008. He went on to say:
We note you are claiming $53.0154 per hour from me for times allegedly spent by you attending to this matter. We note you have attached a copy of your wages statement from University of Wollongong. We note you have not given the same information to [MG]. Please note we are considering writing to University of Wollongong, enquiring whether you have also been paid wages by them for the times you were allegedly doing work on this matter. You will agree you cannot claim monies from two parties for the same times.
By letter dated 14 December 2008, the clients forwarded this letter to the Law Society, observing “the second half of the letter... appears to be an attempt to dissuade us from proceeding with our complaint, by trying to create embarrassment with (SD’s) employer”.
On 16 December 2008, the Law Society wrote to the practitioner notifying him of the further complaint made against him by the clients in their letter of 14 December 2008.
On 9 February 2009, the practitioner wrote to the Law Society responding to the complaints saying:
When [the mortgagee’s solicitors] wrote to us on or about 21 February 2008 I fully agree we should have responded promptly to [their] letter and provided them with the Contract they sought. Not providing the Contract as requested was an office administrative error; this is inexcusable.
It is true we must have acted on the request only after we received the 2nd request from [the mortgagee’s solicitors] dated 21 April 2008.
It is true I cannot remember seeing both of the letters and they are not on file. Yet, we accept the fact that [the mortgagee’s solicitors] did send these two letters. Our firm accepts the responsibility for not responding to both letters on time.
The practitioner went on to accept that, on 28 April 2008, his firm had sent the wrong contract to the mortgagee’s solicitors. He also stated that there was no record on his file of subsequent telephone calls from the mortgagee’s solicitors requesting the correct contract, and that the mortgagee’s solicitors were to blame for a great deal of the delay in transferring title of the property into the names of the clients.
Regarding the complaint by the clients in their letter of 14 December 2008, the practitioner said:
Our letter of 10 December 2008 was not sent with the intention of threatening or intimidating the clients. We did not know that they had complained about us to the Law Society of the ACT at that time. The complaint was only hand delivered to us on 18 December 2008 at 4 pm.
...
Because the client attached his wage statement with his invoice to us for $2893.31, claiming damages from us at the rate of $53.02 per hour, which he stated were his wages, we were curious to know whether the employer had also paid for the same times. If that is the case [SD]was claiming for the same times from 2 different sources. Because of the fact that [SD] attached his wage statement with the invoice, and gave us full particulars of his employer, I believed that there was nothing wrong in verifying the situation from the employer...
The Law Society filed an application for disciplinary action in the ACAT on or about 19 November 2009 alleging that the practitioner had engaged in conduct in breach of rr 1.1, 1.2 and 36.1 of the Legal Profession (Solicitors) Rules 2007 (ACT), amounting to professional misconduct or unsatisfactory professional conduct. Some minor amendments to the grounds of the application were allowed by the ACAT immediately prior to the hearing of the application, so that the grounds as ultimately considered by the ACAT were:
Ground 1
Failure to properly and promptly discharge the retainer from his clients
Particulars:
The [practitioner] negligently:
1.1 failed to respond to the letter of 21 February 2008 from the mortgagee’s solicitors in circumstances where the matter required urgent attention.
1.2 forwarded to the mortgagee’s solicitors the incorrect contract.
1.3 failed to produce the correct contract for a period of eight weeks from 5 September 2008 to 21 October 2008 in circumstances where the matter required urgent attention.
Ground 2
Engaging in misleading conduct
Particulars
2.1 In a letter dated 20 November 2008 from the [practitioner] to the complainants, the [practitioner] deliberately or recklessly misrepresented to his client that:
2.1.1 he had not received a letter from the mortgagee’s solicitors dated 21 February 2008 in circumstances where a subsequent letter of 21 April 2008 refers to it;
2.1.2 the mortgagee’s solicitors did not provide a reason for the request which was made when the letter of 21 April 2008 clearly did;
2.1.3 most of the delays in the matter were attributable to the solicitors for the mortgagee in circumstances where the respondent knew that this was not the case; and
2.2 The [practitioner], by letters dated 21 November 2008 and 9 December 2008 to the complainants and his letter of 9 February 2009 to the applicant, deliberately or recklessly repeated the misrepresentation that most of the delays in the matter were attributable to the solicitors for the mortgagee.
Ground 3
Engaging in threatening and intimidating conduct
Particulars
3.1 By his letter dated 12 December 2008 to the complainants, the [practitioner] engaged in conduct which was intended to intimidate his clients to dissuade them from lodging a complaint with the Law Society by threatening to contact the employer of one of the complainants.
The relevant provisions of the Legal Profession (Solicitors) Rules 2007 (ACT) are:
1Acceptance of Retainer – (Instructions to Act or Provide a Legal Service)
1.1A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.
1.2A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.
36Conduct of Practice
36.1A practitioner should ensure that his or her practice is efficiently and properly administered and should take all reasonable and practicable steps to ensure that professional engagements are fulfilled or that early notice is given if they cannot be fulfilled.
The following provisions of the Legal Profession Act 2006 (ACT) are relevant:
386What is unsatisfactory professional conduct?
In this Act:
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
387What is professional misconduct?
(1) In this Act:
professional misconduct includes –
(a)unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
The hearing of the application for disciplinary action took place before the ACAT (constituted by General President Crebbin, Mr G Lunney SC and Ms J Westaway) over five days between April and July 2010, despite the fact that the issues were well defined and relatively narrow. The Law Society was represented by Mr Beaumont of senior counsel, and the practitioner was self-represented.. The practitioner filed affidavit material, which he briefly augmented by oral evidence before being extensively cross-examined.
As the Society submitted in these proceedings, the ACAT made a number of findings which reflected on the practitioner’s credibility. First, the ACAT rejected his evidence that he had not received or read the letter of 21 February 2008 from the mortgagee’s solicitors, or the subsequent letter of 21 April 2008. This was dealt with at [59] – [63] of the ACTAT’s reasons:
Both letters were sent by [the mortgagee’s solicitor] in the normal course of business. It is unlikely that the first letter was not received in the office of the [practitioner] and read by him. It is extremely unlikely that both letters were not received and were not read by the [practitioner].
The [practitioner] wrote a letter to the mortgagee’s solicitors enclosing a contract on 28 April 2008.... It is extremely unlikely that he spontaneously wrote that letter and attached a contract without having seen either or both of the letters of the mortgagee’s solicitor.
The [practitioner’s] letter of 28 April 2008 specifically refers to a letter of the mortgage’s solicitor (sic) dated 21 February 2008. It is extremely unlikely that the [practitioner] referred to that letter without receiving or reading it. It is almost inconceivable that he would have written the letter of 28 April 2008 had his doing so not been triggered by either or both of the mortgagee’s solicitor’s letters.
In a letter the [practitioner] wrote to the complainants on 23 November 2008, the opening paragraphs are as follows:
I can now say that (the mortgagee’s solicitor) have sent two letters to us, on 21 February 2008 and 21 April 2008.
We agree that we have not acted promptly in attending to the requests made by (the mortgagee’s solicitor) in their two letters.
The practitioner makes further reference to receipt of the letter of 21 February 2008 in a letter he wrote to the complainants of 9 December 2008. He says in the letter of 9 December 2008 the following:
Again I took the responsibility, but you will agree that (the mortgagee’s solicitor) only contacted us on 21 February 2008.
The [practitioner] returned to the same theme in a letter to the applicant of 9 February 2009. He said the following:
When (the mortgagee’s solicitor) wrote to us on or about 21 February 2008 I fully agree we should have responded promptly to (the mortgagee’s solicitor) letter and provided them with the Contract that they sought. Not providing the Contract as requested was an office administrative error; this is inexcusable.
Having regard to the evidence referred to above, the Tribunal is satisfied that the evidence establishes that the [practitioner] received the letter from the mortgagee’s solicitor dated 21 February 2008.
Secondly, and in relation to Particular 1.3, the ACAT rejected the practitioner’s evidence that he made a concerted effort between early September and late October 2008 to find and send the required contract. In this regard the ACAT said:
The evidence of the [practitioner] indicates that after he was advised by the mortgagee’s solicitor of his having sent the incorrect contract, he made many visits to his archives and went through many boxes of archived files in order to locate the relevant contract, but in spite of these concerted efforts, it was not until late October that he was able to locate and provide the contract.
The Tribunal rejects that evidence.
In his affidavit of 27 April 2010, [SD] deposes to a conversation that he had with the [practitioner] on approximately 29 September 2008. In that conversation [SD] says that he told the [practitioner] that there was an ongoing problem getting the property transferred. In response, the [practitioner] said: “This is the first time I have heard that there is a problem. I would need to look at the file to know anything about it. The file will be in archives and it will be some effort to get it out.” There was no challenge to this evidence in cross examination. The clear inference is that the [practitioner] had done nothing in response to the letter of 5 September 2008 at that stage.
It became apparent in cross examination that the [practitioner] used an outbuilding at his residence as a storage facility. His affidavit affirmed 11 June 2010, Para. 21 indicates that both sale and purchase files were closed on the same day, 21 November 2007. They were numbered consecutively 3405 and 3406 for archival purposes, and placed in the same box, numbered 154, and then placed in storage. He says the sale file was just below the purchase file. In those circumstances, the Tribunal cannot give any credibility to the claim that the purchase contract was difficult to find.
The complainants prepared what they describe as a timeline which appears in Annexure ‘A’ to Mr Reis’ affidavit of 7 December 2009, commencing at page 24. This sets out the actions taken by the complainants during September and October 2008, attempting to expedite registration of their transfer. This includes brief description of their communications with the [practitioner] and his responses.
This evidence indicates that the [practitioner] took no action to locate the contract referred to in the letter from the mortgagee’s solicitors of 5 September 2008 at least until 29 September 2008. The Tribunal is satisfied that thereafter his attempts to locate the contract were either non-existent or ineffective for another 4 weeks.
References in the emails that passed between the [practitioner] and the complainants in this period do not support his assertions that he had to go to the archives several times to locate the file. His correspondence makes it clear that an attitude that it was the responsibility of the mortgagee’s solicitors to protect his client’s (sic) interests by attending to rectification drove his inactivity. Even as late as 29 October 2008, he wrongly asserted that the correct contract had been delivered to the mortgagee’s solicitor.
It was not until the clamour from his clients had reached what apparently was an unbearable level that the contract was produced. He appears to have been untroubled by the assertion of the mortgagee’s solicitor that his own clients were in default throughout this period.
Thirdly, and in relation to Ground 3, the ACAT rejected the practitioner’s evidence that, by his letter of 12 December 2008, he was not intending to threaten or intimidate the clients, but was instead attempting to demonstrate to them that their claim for compensation was unreasonable. The ACAT concluded: “It is impossible to see that such an experience could in some way educate the client as to the unreasonableness of an offer...”
Ground 1
With respect to Particular 1.1, the ACAT, being satisfied that the practitioner had received the letter of 21 February 2008, was satisfied that his failure to respond to it for more than two months, not until 28 April 2008, was “more than an administrative error” and was negligent. As a result, the ACAT was satisfied that Particular 1.1 was made out.
With respect to Particular 1.2, the ACAT was satisfied that the practitioner did forward the wrong contract to the mortgagee’s solicitors; indeed, that was not disputed by the practitioner. The ACAT noted that the practitioner had not provided a “positive explanation” for sending the wrong contract, but had simply speculated how it may have happened and described it as a “genuine administrative error”. The ACAT concluded that, in the absence of a satisfactory explanation, the only inference was that the provision of the wrong contract was negligent. The ACAT rejected the proposition this was a “simple error”, saying:
Having received two letters correctly identifying the purchase transaction, the [practitioner] did not take sufficient care to ensure that he was complying with the mortgagee’s solicitor’s request, and provides no satisfactory explanation for failing to do so. Reference to the incorrect transaction in the covering letter of 28 April 2008, excludes the possibility of a ‘simple’ administrative error. Both letters from the mortgagee’s solicitor give the reason for requiring the contract, and stress the urgency of the situation as it affected the [practitioner’s] clients. There was a magnitude of risk for his clients and particular attention was required.
With respect to Particular 1.3, the ACAT, after rejecting the practitioner’s evidence that he had actively looked for the correct contract after he received the letter of 5 September 2008 (see [46] above), concluded this Particular was made out.
With respect to Ground 1 generally, the ACAT concluded:
The Tribunal finds that each particular of this ground is made out. What was a relatively simple error involving the mis-description of [SD], capable of relatively easy rectification, through mistake and subsequent inactivity became an unnecessary debacle. This was more than human error of a busy practitioner that it would be reasonable to excuse. It was conduct that fell short of the standard of competence and diligence that [the clients] were entitled to expect. The Tribunal accepts that the [practitioner’s] acts amounted to a contravention of each of the rules relied on and should be characterised as unsatisfactory professional conduct.
Ground 2
The ACAT considered Particulars 2.1.1 and 2.1.2 together, noting that they were based on statements made by the practitioner in his letter dated 20 November 2008 to the clients: see [23] above. The ACAT was satisfied that, in this letter, the practitioner made a number of representations: first, that it was nearly seven months after settlement that he was asked to provide the original contract for sale; secondly, that, by inference, the first such request was made on or about 28 April 2008; and, thirdly, that no reason was given for the request. The ACAT was satisfied that each such representation was incorrect. The ACAT had already concluded that the practitioner had received the letters of 21 February 2008 and 21 April 2008, so that it’s finding with respect to Particular 2.1.1 was consistent with its earlier finding. The ACAT went on to reject the practitioner’s submission that his letter of 20 November 2008 cannot be said to include any deliberate or reckless misrepresentation because the letter does not directly refer to the mortgagee’s solicitor’s letters of 21 February 2008 and 21 April 2008, describing this as “a simplistic analysis”. The ACAT concluded that, given its findings as to the practitioner’s knowledge of the letters of 21 February 2008 and 21 April 2008, the first and second representations were misrepresentations and were made deliberately.
With regard to the third representation, the ACAT observed that the mortgagee’s solicitor’s letter of 21 April 2008 contained, on its face, a reason for requesting the contract. It was satisfied, as such, that it was a misrepresentation by the practitioner to say that no reason had been given for the request for the contract. The ACAT determined that this was “[a]t the very least ... a reckless misrepresentation”.
The ACAT found that Particular 2.1.3 was not established on the basis that it was not satisfied that the practitioner did not genuinely hold the view that most of the delays were the fault of the mortgagee’s solicitors.
For the same reason, the ACAT found that Particular 2.2 was also not established.
With regard to Ground 2 generally, the ACAT concluded:
Particulars 2.1.1 and 2.1.2 are established and Ground 2 supported, notwithstanding that the [Law Society] has not discharged its onus in relation to particulars 2.1.3 or 2.2.
The conduct of the [practitioner] contravenes rules 1.1 and 1.2. Findings that the [practitioner] has made both deliberate and reckless misrepresentations to his clients have been made. The [Law Society] submits that this should lead the Tribunal to characterise the conduct as professional misconduct. This is not conduct that is about the standard of the practitioner’s work, his diligence or his competence, but about his candour when dealing with his clients. The Tribunal accepts, following the authorities referred to in Riley Solicitors Manual [35,040.5] that this is appropriately characterised as professional misconduct.
(citations omitted)
Ground 3
As the ACAT recognised, this allegation related to the final sentences in the practitioner’s letter of 12 December 2008 where he indicated that he was considering writing to SD’s employer to see whether SD had been paid wages by his employer for any of the periods for which SD was claiming compensation from the practitioner for his time and efforts. The ACAT considered the chain of correspondence leading up to the letter of 12 December 2008, concluding that the practitioner’s approach to his clients’ complaints changed once they mentioned a complaint to the Law Society. At that point, the ACAT said, the practitioner began to try to settle the dispute on terms that would result in the withdrawal of the complaint.
The ACAT then referred to the practitioner’s evidence on this issue, saying that he had admitted that he was angry when he wrote the letter of 12 December 2008 and wanted “to get the settlement thing happening”. The ACAT then went on to say:
This evidence strongly suggests that the [practitioner] threatened to contact [SD’s] employer in order to intimidate the complainants into dropping their complaint and accepting the [practitioner’s] offer. The making of the settlement offer immediately after the advice that a complaint to the Law Society is to be made, links the offer to the complaint, and indicates a hope on the part of the [practitioner] that a settlement would result in the complainant’s (sic) “calling off the whole thing completely”. This can only be read as a reference to the complainant (sic) calling off the foreshadowed complaint. When the complainants made it clear that compensation was not the main objective, a different tact (sic) was adopted by the [practitioner].
In his affidavit of 11 June 2010, the [practitioner] says that he was attempting to demonstrate to the complainants that they were being unreasonable in the quantum of their claim for compensation. The Tribunal rejects that evidence. Threatening to contact a client’s employer could only be at least embarrassing for the client. It is impossible that such an experience could in some way educate the client as to the unreasonableness of an offer he had made.
In the circumstances of the case, and particularly in view of the sequence of correspondence between the parties between 19 November and 23 November 2008, the Tribunal finds that Ground 3 is made out.
The threat was made by the [practitioner] on only one occasion and was not carried out. However, it must be viewed seriously since it was an attempt to coerce and manipulate his clients to avoid a complaint. The Tribunal takes the view that this conduct constitutes professional misconduct.
The present proceeding
On or about 28 September 2012, the practitioner filed an application for appeal from the ACAT decisions of 16 May 2012 (liability) and 31 August 2012 (penalty). On 20 March 2013, the Appeal President of the ACAT made an order removing the appeal to this Court pursuant to s 83 (2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). It is necessary to consider the nature of these proceedings in this Court, especially as there is conflicting authority on the subject.
The ACAT Act provides in s 79 for an internal appeal within the ACAT from first instance decisions:
79 Appeals within tribunal
(1) This section applies if –
(a)the tribunal has decided an application (the original application); and
(b)the original application was not an appeal from a decision by the tribunal.
(2) However, this section does not apply to an application for review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005.
(3) A party to the original application may, by application, appeal the decision to the tribunal on a question of fact or law.
Section 81 then provides for the constitution of an “appeal tribunal”, which is defined in the Dictionary to the ACAT Act as “a tribunal made up under section 81 to review a decision of the tribunal”.
Section 82 of the ACAT Act provides:
82Handling appeals
An appeal tribunal may, as the tribunal considers appropriate, deal with an appeal –
(a)as a new application; or
(b)as a review of all or part of the original decision on the application by the tribunal.
Division 8.2 of the ACAT Act is entitled “Supreme Court referrals and appeals”, and relevantly includes the following provisions:
83Removal of applications from tribunal to Supreme Court
(1) If the parties to an application or an appeal (a matter) jointly apply to have the matter removed to the Supreme Court, the tribunal must order that the matter be removed to the Supreme Court.
(2) If a party to a matter applies to have the matter removed to the Supreme Court, the tribunal may, if it considers appropriate, order that the matter be removed to the Supreme Court.
84Referral of questions of law to Supreme Court
(1) If the tribunal considers that a question of law that arises in considering an application or an appeal raises an issue of public importance, the tribunal may refer the question to the Supreme Court.
(2) The tribunal may act under subsection (1) on its own initiative or on application by a party.
85Tribunal may not deal with appeals more suited to Supreme Court
(1) This section applies if -
(a) a party to an application appeals the decision on the application to the tribunal under section 79; and
(b) an application has not been made under section 83 (Removal of applications from tribunal to Supreme Court) in relation to the appeal.
(2) The appeal president may decide not to deal with the appeal if the appeal president considers that –
(a) the appeal could be dealt with more conveniently or effectively by the Supreme Court; and
(b) it would be appropriate for the appeal to be dealt with by the Supreme Court.
(3) If the appeal president decides not to deal with the appeal, the appeal president must give the applicant for the appeal written notice that –
(a) the appeal will not be dealt with by the tribunal; and
(b) the applicant may appeal to the Supreme Court under section 86 (1) (c).
86Appeals to Supreme Court
(1) A party to an application, other than an application mentioned in subsection (2), for an appeal may appeal to the Supreme Court on a question of fact or law from –
(a) a decision of the appeal tribunal; or
(b) if the appeal president dismissed the appeal under section 80 – the original decision of the tribunal; or
(c) if the appeal president decides not to deal with the appeal under section 85 – the original decision of the tribunal.
(2) A party to an application in relation to a review of a decision under the Heritage Act 2004, the Planning and Development Act 2007 or the Tree Protection Act 2005 may appeal to the Supreme Court on a question of law from the original decision of the tribunal.
(3) However, the appeal may be brought only with the Supreme Court’s leave.
What, then, is the nature of an appeal commenced pursuant to s 79, but removed into this Court pursuant to s 83? In TheAppellants v Council of the Law Society of the ACT (2011) 252 FLR 209, Refshauge J said at [17] of such a proceeding:
The removal of an appeal from the ACAT into the Supreme Court does not attract the jurisdiction of the Court of Appeal. It is, in this court (sic), simply the exercise of its original jurisdiction in place of the internal appeal process of the ACAT. The ACAT Act is not helpful in deciding the nature of the proceedings, but it seems to me that, in this instance, this Court is hearing the appeal from the decision of the ACAT on the original application that the ACAT in its appellate jurisdiction under Div 8.1 of the ACAT Act would otherwise have heard and it is, therefore, the exercise of the appellate jurisdiction of the ACAT but within the jurisdiction of a single judge, as the appellate jurisdiction of this Court is exercised by a single judge from a decision of a Magistrate. The hearing should be conducted within the procedural framework of this Court.
His Honour expanded on this view in Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118 at [36] – [41]:
The answer to the first issue depends on the nature of the removal of the appeal to this court under s 83 of the ACAT Act; that is to say, whether the removal thereby effected merely a replacement of one deciding body with another or is it a truncation of the process, as it were “leapfrogging” the internal appeal, so that the internal appeal is overtaken by this process to become converted into an appeal to the Court under s 86 of the ACAT Act.
The answer is not easy to determine because of the multifarious ways in which the proceedings from the ACAT can end up in the Supreme Court:
(a) removal under s 83;
(b) referral of questions of law under s 84;
(c) refusal of appeal hearing under s 85 and invitation to appeal under s 86;
(d) direct appeal under s 86.
In many ways s 83, especially s 83(2), is very similar to s 85, though, unlike s 83(2), s 85 permits the appeal president unilaterally to make the decision not to deal with the appeal. There is, however, a significant difference, in that s 83 refers to ‘removal’ of the proceeding to the Supreme Court (either an application or an appeal) and, presumably, once removed, the Supreme Court has jurisdiction and must exercise it, whereas in s 85 (and, therefore, s 86) the appellant has actually to take the step of commencing an appeal.
This difference seems to me to make it clear that there is a difference in what is occurring. In my view, s 83 simply requires that, once the proceedings are removed, the Supreme Court exercise the jurisdiction of the ACAT, whereas, s 86 is a true appeal to this Court. I add that, insofar as the latter, the appeal under s 86, is concerned, the approach of the Law Society Council is, in my view, correct and the appeal will be a rehearing.
The submissions of the law Society Council as to the nature of the removed proceedings would be persuasive were the matter not otherwise dealt with by the ACAT Act.
In respect of s 83, however, what is removed is the appeal. It was not an appeal to this Court under provisions such as s 84 or s 86 of the ACAT Act. It was simply the replacement of one body (the appeal tribunal in the ACAT) with another (this Court) to decide the appeal.
Later, at [46] – [48], he said:
It seems to me that s 83 of the ACAT Act operates, a little like s 44 of the Judiciary Act, as a statutory power to cause this Court to exercise the jurisdiction of the appeal tribunal of the ACAT. The right of the party to have fair consideration of the statutorily provided alternative method of hearing the appeal under s 82 of the ACAT should not be denied by the removal.
The removed appeal, then, must attract the relevant provisions of the ACAT Act which directly apply to such a proceeding, though, of course, the Court has and may apply the procedures applicable in this Court and its processes so long as they are not inconsistent with or ousted by the relevant legislation.
...I consider that this Court, as, effectively, the appeal tribunal, is obliged to make the decision under s 82 of the ACAT Act as to how the appeal should be conducted, if it has not been made by the ACAT prior to removal.
Refshauge J rejected a submission by the Law Society that s 82 did not apply, stating “this is part of the jurisdiction that the Court exercises on removal”. His Honour concluded that the Court could determine to conduct an appeal removed into the Court as a hearing de novo or as a rehearing.
In O’Donnell v Environment Protection Authority (2012) 268 FLR 48, Penfold J considered the appeal provisions of the ACAT Act at [47] – [49]:
Under s 79(3) of the ACAT Act, the internal appeal from an ACAT decision is an appeal on a question of fact or law. Under s 82, an appeal tribunal may “deal with an appeal” as a new application or as a review of all or part of the original decision. It is hard to see what purpose is served by requiring the appeal to be “on a question of fact or law” if the appeal process may then be conducted, “as the tribunal considers appropriate”, as either a hearing de novo or a rehearing. The significance of these various forms of appeal was discussed in Turnbull v Medical Board (NSW) [1976] 2 NSWLR 281 and approved in Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [57]. Having regard to issues raised later in this judgment, it is useful to set out the explanations provided in those cases.
In Turnbull, Glass JA said (at 297C-298A):
Appeal is a term loosely employed to denote a number of different litigious processes which have few unifying characteristics. They vary greatly in the extent to which the appellate court may interfere with the result below. Graded in ascending order, in accordance with the width of the corrective power exercised by the appeal court, they are as follows: (a) Appeals to supervisory jurisdiction. Only errors going to jurisdiction or denials of natural justice can be ventilated.
(b)Appeals on questions of law only, e.g. from the Workers’ Compensation Commission. Undetermined or wrongly determined issues of fact must be remitted.
(c)Appeals after a trial before judge and jury. The result below will be disturbed if the judge fell into error of law, or if the jury’s errors of fact transcend the bounds of reason. But, except for the assessment of damages, issues of fact must be redetermined in a new trial.
(d)Appeals from a judge in the strict sense, e.g. appeals to the High Court. If the judge has fallen into error of law, or has made a finding of fact which is clearly wrong, the appellate court will substitute its own judgment. Only such judgment can be given as ought to have been given at the original hearing. Later changes in the law are disregarded and additions to the evidence are not allowed: Victorian Stevedoring and General Contracting Co Pty Ltd and Meakes v Dignan.
(e)Appeals from a judge by way of rehearing, e.g. appeals under s 75A of the Supreme Court Act 1970. Judicial opinion differs on whether a power to receive fresh evidence is implied: Ex parte Currie; Re Dempsey. Almost invariably, however, it is expressly conferred. If errors of law or wrong findings of fact have occurred below, the appellate court will try the case again on the evidence used in the court below, together with such additional evidence as it thinks fit to receive. Since it will decide the appeal in light of the circumstances which then exist, changes in the law will be regarded: Ex parte Currie; Re Dempsey; Edwards v Noble.
(f)Appeals involving a hearing de novo, e.g. appeals from a Court of Petty Sessions to a Court of Quarter Sessions. All the issues must be retried. The party succeeding below enjoys no advantage, and must, if he can, win the case a second time: Sweeney v Fitzhardinge.
In Lacey, French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ said at [57] that “Appeals being creatures of statute, no taxonomy is likely to be exhaustive”, footnoting Glass JA’s remarks set out above as a “useful list of processes loosely designated ‘appeals’”. Their Honours went on:
Subject to that caveat, relevant classes of appeal for present purposes are:
1.Appeal in the strict sense – in which the court has jurisdiction to determine whether the decision under appeal was or was not erroneous on the evidence and the law as it stood when the original decision was given. Unless the matter is remitted for rehearing, a court hearing an appeal in the strict sense can only give the decision which should have been given at first instance.
2.Appeal de novo – where the court hears the matter afresh, may hear it on fresh material and may overturn the decision appealed from regardless of error.
3.Appeal by way of rehearing – where the court conducts a rehearing on the materials before the primary judge in which it is authorised to determine whether the order that is the subject of the appeal is the result of some legal, factual or discretionary error. In some cases in an appeal by way of rehearing there will be a power to receive additional evidence. In some cases there will be a statutory indication that the powers may be exercised whether or not there was error at first instance.
(citations omitted)
I interpolate to note that the majority in Lacey observed that appeals are statute based, and that “the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context”: [56].
Penfold J considered what was encompassed by an appeal “on a question of fact or law” as permitted, with the leave of the Court, under s 86 of the ACAT Act, concluding at [72] that “an appeal on a question of law (or indeed a question of fact) is properly pursued by identifying the question concerned rather than by simply pointing to errors made by the decision maker”. Her Honour expressed the opinion that an appeal on a question of law or fact as permitted by s 86 was designed to provide an answer to the question “which could usefully be referred back to the ACAT with a direction to consider the matter in the light of that answer”.
A somewhat different approach to that taken by Refshauge J, but similar in some respects to that taken by Penfold J, was taken by Foster J in PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the Australian Capital Territory (2014) 290 FLR 1, which concerned an appeal from a first instance decision in the ACAT which was removed into this Court pursuant to s 83 (2) of the ACAT Act. Foster J noted that s 79 (3) provides that a party to a first instance decision of the ACAT may appeal that decision on a question of fact or law. His Honour concluded that s 82 does not apply to the conduct of an appeal to this Court after the removal of the appeal pursuant to s 83 (2) because of the definition of “appeal tribunal” in the Dictionary to the ACAT Act. His Honour was of the view that s 82 gives an appeal tribunal within ACAT, and constituted under s 81 of the ACAT Act, additional powers and discretions not available to the Court under s 82.
After reviewing the appeal processes and provisions found in the ACAT Act, Foster J concluded that the Court does not have a “general merits review function” in respect of ACAT decisions. His Honour then went on to consider the meaning of the expression “a question of fact or law” by reference to Federal Court jurisprudence addressing the term “a question of law”, and distinguishing that term from “a question of fact”, before concluding at [55]:
In my view, s 79(3) of the ACAT Act is intended to provide to a disappointed party before ACAT a right to have a first instance decision of ACAT reconsidered by an appellate bench within ACAT or, through the mechanism of removal provided for in s 83, to have such a decision reconsidered by this Court. As is the case with an “appeal” under s 44(1) of the [Administrative Appeals Tribunal Act 1975 (Cth)], a s 79(3) appeal is, strictly speaking, not an appeal at all. It provides for a limited reconsideration of the first instance decision of ACAT by means of the determination of one or more questions of fact or questions of law. These questions must be precisely formulated in the appeal application. These questions will be the subject matter of the appeal. Once they have been determined, the Court can give consideration to the appropriate orders to be made in light, in particular, of the specific powers given to it by r 5052 [Court Procedures Rules 2006 (ACT)].
I regret that I am unable to agree with the conclusion by Foster J that the appeal under s 79 (3) removed into this Court pursuant to s 83 provides for a limited review of a first instance decision of the ACAT by reference to precisely formulated questions of law or fact (or perhaps mixed law and fact). In the approach adopted by Foster J, adapted from Federal Court jurisprudence regarding the term “a question of law”, the primary meaning of the word “question” is “The interrogative statement of some point to be investigated or discussed” (Oxford English Dictionary, 2nd ed) or “a sentence in an interrogative form, addressed to someone in order to elicit information” (Macquarie Dictionary, 5th ed). In my opinion, there is much to be said for the proposition that the word “question” is used in a slightly different sense in Division 8.1 and 8.2 of the ACAT Act, as meaning “the subject matter” of the appeal (Oxford English Dictionary) or “a subject of dispute or controversy” (Macquarie Dictionary). In my opinion, s 79 (3) says nothing about the nature of an internal appeal within the ACAT, and only addresses the subject matter of the appeal, emphasising that such an appeal may encompass matters of fact and law. The nature of that appeal is determined by s 82, which gives the appeal tribunal a discretion to deal with the appeal as a new application or as a review, in whole or in part, of the original decision. I agree with Refshauge J in Legal Practitioner v Council of the Law Society of the ACT that these alternatives broadly equate to a hearing de novo and a rehearing.
It is difficult to accept that the legislature intended that an appeal from a first instance decision maker in the ACAT to a single judge of this Court was to be restricted to the determination of specifically formulated questions of fact or law as suggested by Foster J. Sadly, as observed by Refshauge J, little assistance in determining the legislative intent is derived by reference to the Explanatory Statement to the ACAT Act or the presentation speech of the relevant Minister. It is a feature of the ACAT Act that it does not provide for the orders which may be made by an appeal tribunal hearing an appeal under s 79 (3), with s 57 providing that an “authorising law” may set out the powers of the tribunal and the decisions it may make on an application made under the authorising law. The Dictionary to the ACAT Act provides that:
(a)an authorising law means a territory law that provides that an application may be made to the tribunal; and
(b)tribunal, for an appeal, means an appeal tribunal; and
(c)an application means a matter referred or appealed to the tribunal under any authorising law.
The ACAT Act itself is an authorising law to the extent that s 79 (3) permits an appeal to an appeal tribunal, but little assistance in determining the nature of appeals under the provisions of the ACAT Act is derived by considering the nature of the orders that may be made on appeal.
In summary, to this point, I disagree with Foster J’s approach, which would seem to require specific questions of law or fact to be formulated for an appeal pursuant to s 79 (3), subject to the operation of s 82, and I agree with Refshauge J that the nature of the appeal to an appeal tribunal pursuant to s 79 (3) is to be determined by the appeal tribunal pursuant to s 82. I also disagree with the approach of Penfold J to the extent that it accords with that of Foster J.
What then, is the effect of removal of an appeal pursuant to s 79 (3) to this Court by virtue of s 83? Of most significance is whether the Court, in considering an appeal under s 79 (3) removed pursuant to s 83, is required or permitted to deal with the appeal as permitted by s 82. In the decision of Refshauge J to which I have referred, his Honour concluded that s 82 was part of the jurisdiction “picked up” by this Court by virtue of the removal under s 83.
On the other hand, Foster J concluded that s 82 can have no application to an appeal removed to this Court under s 83 because of the definition of “appeal tribunal”.
In my opinion, the approach taken by Refshauge J is to be preferred for a number of reasons. First, it results in appeals under s 79 (3) of the ACAT Act being dealt with consistently, whether they are heard by an appeal tribunal constituted under s 81 or by this Court. Secondly, it would be plainly unjust for an appellant to lose the opportunity of arguing that an appeal should be by way of a fresh hearing (s 82 (a)) simply because the parties considered it convenient, perhaps for reasons of factual or legal complexity, to have the appeal determined in this Court rather than the appeal tribunal.
Were it not for the applicability of the provisions of s 82, I would have concluded, by reference to the principles stated by the majority (Gleeson CJ, Gaudron and Hayne JJ) in Coal and Allied Operation Pty Ltd v Australian Industrial Relations Commission (2000) 203 CLR 144, that the appeal provided by s 79 (3) was a rehearing, requiring error to be demonstrated in the decision appealed from. The provisions of s 82, however, require an appeal tribunal, or this Court exercising the jurisdiction otherwise exercisable by an appeal tribunal, to determine whether the appeal will be by way of hearing de novo or rehearing.
On 11 February 2014, I determined that these proceedings would proceed by way of a review of the original decision by the ACAT; essentially a rehearing. I did so because the practitioner had the benefit of a full hearing on the merits before the ACAT, which extended over some five days and in which he had a full opportunity to adduce relevant evidence.
The principles governing a rehearing are well known. In the absence of wider statutory powers, the appellate court may only intervene to change the decision appealed from where, having regard to all the evidence, the appellant demonstrates some legal, factual or discretionary error by the original decision maker: Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ. In conducting such an appeal, the appellate court proceeds on the basis of the record and any fresh evidence it may admit: Fox v Percy (2003) 214 CLR 118 at [22] per Gleeson CJ, Gummow and Kirby JJ. The appellate court is obliged to conduct a real review of the trial and the first instance reasons, and, within the constraints of the appeal process, to give the judgment that should have been given at first instance.
Among the constraints marked out by the appellate process is the need to bear in mind that the appeal court has not seen or heard the witnesses. It is only if, making proper allowance for the advantages of the first instance tribunal, the appellate court concludes that an error has been demonstrated that it is authorised to exercise its appellate function: Fox v Percy at [27]; Lukatela v Birch [2008] ACTSC 99 at [21].
The circumstances where an appellate court will overturn findings of fact based on findings of credibility were discussed in Fox v Percy at [28] – [29]:
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the present case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.
(footnotes omitted)
Consideration
Ground 1 – the finding of unsatisfactory professional conduct
Particular 1.1
The practitioner’s submissions
The practitioner provided lengthy written submissions that were largely argumentative and discursive. In considering his submissions with respect to all of the Grounds, I will only address those matters which appear to me to be significant. The practitioner submitted that he had consistently stated his position as being that he could not remember reading the letters of 21 February 2008 and 21 April 2008, but that he accepted they had been sent. He submitted that he had no motive not to act on the letters if he had seen them. He submitted that the letter of 21 February 2008 did not give a “specific reason” for the urgent assistance requested, and it was not until the letter of 21 April 2008 that the mortgagee’s solicitors gave any reason for the urgency of the matter.
In his written submissions, the practitioner contended that he had no duty to act on behalf of the clients in resolving the issues referred to in the letters of 21 February 2008 and 21 April 2008, as he could not recall receiving those letters. He submitted that, as soon as he became aware of the problem concerning the registration of title, he acted properly.
The Law Society’s submissions
The Law Society submitted that the finding of the ACAT that the practitioner received the letters of 21 February 2008 and 21 April 2008 was “undoubtedly correct” and based on contemporaneous written communications from the practitioner (dated 28 April 2008, 23 November 2008, 9 December 2008 and 9 February 2009) which referred to the 21 February 2008 letter, without any suggestion that it had not been received or read at the time. The Law Society further submitted that the practitioner’s submission did not refer to or engage with the ACAT’s reasons or findings, and simply re-asserted his evidence which the ACAT had not accepted.
Conclusion
There was evidence before the ACAT which entitled it to conclude that both the letters of 21 February 2008 and 21 April 2008 were dispatched by the mortgagee’s solicitors to the practitioner. The ACAT clearly accepted they had been dispatched. The practitioner asserted he could not remember reading those letters, from which he asked the ACAT to infer that he had not read them and, further, that he may not have received them. The practitioner’s credibility was of central importance to the resolution of this issue. The practitioner did not, for example, produce a “correspondence register” for his firm showing what correspondence was received by the firm, and demonstrating the absence of the letters in the register. The assertion by the practitioner that he could not remember reading the letters, and by inference that he may not have received them, depended entirely on the ACAT accepting the practitioner’s credibility. The ACAT made adverse findings regarding the practitioner’s credibility, and based its determination on contemporaneous written communications by the practitioner himself. As a result of this process, the ACAT found that the practitioner had received and read the letters. This process and conclusion were available to the ACAT, and no error has been demonstrated by the practitioner.
The practitioner argued that there would have been no reason for him not to have acted immediately if he had received the letter of 21 February 2008, thereby suggesting that, as he did not act, he did not receive the letter. In some cases this reasoning may carry some weight. In the present case, however, there was ample evidence that the practitioner took the view that the registration of the title and security documents post-settlement was not his responsibility, but was a matter for the mortgagee’s solicitors. In a practical sense, this belief on the part of the practitioner was correct, in that the mortgagee’s solicitors would ordinarily attend to those matters. Nevertheless, the ACAT was entitled to find, as it did, that the practitioner viewed the mortgagee’s solicitor’s difficulties as not his problem. That this was the practitioner’s state of mind receives support from the fact that, when he did ultimately act, he sent the wrong contract to the mortgagee’s solicitors. The finding by the ACAT that the practitioner received and read the letter of 21 April 2008 was inevitable, considering the uncontested fact that the practitioner dispatched a contract (the wrong contract) to the mortgagee’s solicitors on 28 April 2008. The obtaining and dispatching of the wrong contract speaks of a laxity of approach by the practitioner, consistent with a belief that the matter was not really his problem.
The practitioner complained that the ACAT did not set out “how it found negligence – a duty existed, it was breached, standard of care, causation and damage; it failed to do this crucial task”. If the proceedings in the ACAT had alleged that the practitioner had committed the tort of negligence, then his complaint may have had some merit. The allegation of negligence in the particulars to the grounds alleged in the Law Society’s Application for Disciplinary Action is not an allegation that the practitioner is tortiously liable to the Law Society, or his clients, in negligence. The term, instead, conveniently, picks up and describes the requirement found in the Legal Profession Act 2006 (ACT) that the practitioner’s conduct the subject of the proceedings be measured against a “standard of competence and diligence that a member of the public is entitled to expect of a competent Australian legal practitioner”: s 386.
The use of the word “negligently” in a particular also conveniently distinguished the allegation from that where it is alleged that the conduct is a deliberate and intentional breach of professional standards, such as misappropriation of trust monies. It described a mental state on the part of the practitioner less egregious than a deliberate and intentional breach, and based upon a lack of reasonable care and attention measured against the standard to be expected of a competent Australian legal practitioner.
In any event, the practitioner himself accepted that he had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position vis a vis the mortgagee. There can be no real argument that, if the practitioner was aware of the problem with registration set out in the mortgagee’s solicitor’s letter of 21 February 2008, then this failure to act until 28 April 2008 was a breach of his duty to his clients, and was conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The question, therefore, which the ACAT had to resolve, was whether the practitioner had received and read the letter of 21 February 2008. The ACAT determined this issue by a conventional process, but, unfortunately, not in the practitioner’s favour.
The practitioner has not demonstrated any error of fact or law with respect to Particular 1.1.
Particular 1.2
The practitioner’s submissions
The practitioner submitted that the ACAT “failed to consider the positive explanation given by [him] for sending out the wrong contract”, and in particular did not consider his explanation given in his affidavit of 11 June 2010. In that affidavit, the practitioner effectively said that the file for the purchase of the Watson property had been stored in the wrong archive box, and that “when I saw the name [MG], “Watson”, and a settlement date in November 2007, I may have thought that that was the correct file”. He submitted that this was “human error” which “does not amount to serious negligence”. The practitioner also submitted that his clients did not sustain any damage as a result of his mistake.
The Law Society’s submissions
The Law Society noted that the ACAT had recognised that the practitioner had been acting for one of his clients (SD) on the sale of a residential property at about the same time as he was acting for both clients (SD and MG) on their joint purchase of a property. The ACAT had regarded this as more than a simple administrative error as “[t]here was a magnitude of risk for his clients and particular attention was required”.
Conclusion
It follows from the ACAT’s finding that the practitioner received and read the letter of 21 February 2008, that he was aware that the mortgagee’s solicitors required the original contract for the joint purchase transaction in order to register the transfer and security documents. This was also made clear in the letter of 21 April 2008. The fact that there was a risk to his clients should have been exceptionally clear to the practitioner. In these circumstances, it was astonishing that the practitioner obtained and forwarded the wrong contract. The contract that he forwarded differed from the requested contract in a number of obvious and material particulars:
(a)it related to a different property;
(b)it only involved one of the practitioner’s clients; and
(c)it was a sale by that client, not a purchase.
The ACAT was entitled to find that the failure of the practitioner to identify and forward the correct contract to the mortgagee’s solicitors was not adequately explained by the practitioner. Contrary to the practitioner’s submission, he did not provide a “positive explanation” for this failure. His evidence was a mixture of speculation and assumption.
The practitioner’s assertion that his clients suffered no loss as a consequence of his failure to identify and forward the correct contract must be rejected. The practitioner’s actions significantly contributed to the delay in registering the transfer, which left the clients liable to pay interest on some accounts, in particular their rates account. The potential for harm to his client’s interest was great, so that any suggestion that this was a minor error must be rejected.
The practitioner has not demonstrated any error of fact or law by the ACAT with regard to this particular.
Particular 1.3
The practitioner’s submissions
The practitioner submitted that the ACAT “without any reason” unfairly concluded that he had done nothing to look for the correct contract, after it was brought to his attention that he had forwarded the wrong contract, until late October 2008. The practitioner said that he had given evidence in the proceedings in the ACAT that he and his staff were constantly looking for the correct contract, but that it was like “looking for a needle in a haystack” as there were “thousands of files” in his archive. He submitted that the ACAT “made an assumption that [he] started looking for the file very late” as it had taken eight weeks to locate it.
The Law Society’s submissions
The Law Society pointed out that the ACAT did not accept the practitioner’s evidence concerning his attempts to locate the correct contract on the basis that his evidence was inconsistent with:
(a)unchallenged evidence given by SD that, in a conversation he had with the practitioner on or about 29 September 2008 concerning the ongoing difficulty in having title in the property transferred, the practitioner said: “This is the first time I have heard there is a problem. I would need to look at the file to know anything about it. The file will be in archives and it will be some effort to get it out”;
(b)the practitioner’s own evidence in his affidavit of 11 June 2010 as to the way in which the files were numerically stored. In that regard, the practitioner deposed that both the joint purchase file and SD’s sale file were closed on 21 November 2007, with the files being allocated file reference numbers of 3405 and 3406 respectively, and placed in box number 154; and
(c)the chronology of events and correspondence provided by the clients setting out their attempts to expedite the registration of the transfer and their dealings with the practitioner.
Conclusion
The practitioner’s assertion that the ACAT “assumed” he did not commence searching for the correct contract until “very late” is a misrepresentation of the ACAT’s reasons. The ACAT carefully analysed the evidence and concluded that it did not accept the practitioner’s evidence that he and his staff searched for the contract throughout September and October 2008. There was ample evidence upon which the ACAT could reach this conclusion, particularly the evidence of SD.
In his written submissions, the practitioner accused the ACAT of “making a grave error” by stating at [82] that his evidence had been that the “sale file was just below the purchase file” in archive box 154. This submission is incorrect. At [21] in his affidavit of 11 June 2010, the practitioner, after providing the file numbers and the archive box number, said: “Sale file was just below the [clients’] purchase file”. Contrary to the practitioner’s submission, the ACAT did not ignore the following paragraphs of that affidavit in which he referred to the purchase file being stored in “a different box”; it simply did not accept his evidence on that issue. At [21] of his affidavit, the practitioner deposed to the sale file and the purchase file being placed in archive box 154, and to the fact that the sale file was “just below” the purchase file. There is then a bold assertion, which on its face contradicts the detailed information provided in [21], that the purchase file was placed in the wrong box. The ACAT was entitled to reject the unexplained suggestion that the purchase file had been difficult to find because it had been placed in the wrong archive box.
The practitioner has not demonstrated any error on the part of the ACAT regarding this particular.
Conclusion – Ground 1
The practitioner submitted that the cumulative effect of these “mere lapses/innocent mistakes” fell short of “serious negligence” and constituted “mere negligence” so that a finding of unsatisfactory professional misconduct was not open to the ACAT. The practitioner referred me to a number of authorities for the proposition that not every error or omission on the part of a practitioner will constitute unsatisfactory professional conduct. So much may readily be accepted; but the question is, did the practitioner’s conduct, as found by the ACAT, amount to unsatisfactory professional conduct as defined in s 386 of the Legal Profession Act 2006 (ACT)? The ACAT concluded that it did, and I agree with that finding. The practitioner’s conduct in failing to act upon the letter of 21 February 2008, providing the wrong contract to the mortgagee’s solicitors after receiving the letter of 21 April 2008, and his failure to take adequate steps to provide the correct contract after the mortgagee’s solicitor’s letter of 5 September 2008 until late October 2008 constituted a serious failure to properly and promptly discharge the retainer from his clients. This conduct fell well short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
No error has been demonstrated in the ACAT’s findings on Ground 1, and the appeal concerning that ground is dismissed.
Ground 2 – Engaging in misleading conduct
Particulars 2.1.1 and 2.1.2
The practitioner’s submissions
The practitioner submitted that the ACAT made “a grave error” by stating that his letter of 20 November 2008 to his clients mentioned the 21 February 2008 letter “when it did not”. He submitted that the evidence did not support the “charge”, and that the ACAT should have dismissed particular 2.1.1 “for want of prosecution”. He submitted that, when he sent the letter of 20 November 2008, he honestly believed he had not received the letter of 21 February 2008. Regarding particular 2.1.2, the practitioner reiterated his position that he did not recall seeing the letter of 21 April 2008.
The Law Society’s submissions
The Law Society submitted that the practitioner had not demonstrated any error on the part of the ACAT, and that his submissions merely repeated his assertions at trial.
Conclusion
The practitioner’s submission that he could not be found to have made a misrepresentation to his clients about not receiving the letter of 21 February 2008 in his letter of 20 November 2008 because the latter letter did not, in terms, refer to the former letter must be rejected as sophistry. It has long been accepted that a partial statement of the truth may constitute a misrepresentation: Re Hoffman; Ex parte Worrell v Schilling (1988-89) 85 ALR 145; Balfour and Clark v Hollandia Ravensthorpe NC (1978) 18 SASR 240.
In the light of the ACAT finding that the practitioner had received and read the letter of 21 February 2008, its finding that a number of the representations in the practitioner’s letter of 20 November 2008 were misrepresentations was virtually inevitable. The context in which that letter was sent is important. It follows an email by one of his clients, SD, on 17 November 2008, questioning the practitioner’s earlier statement, in his email of 11 November 2008, that he had “only recently’ become aware of a problem with the transfer of title to his clients. SD said in the email of 17 November 2008: “I just wanted to check that you are sure that [the mortgagee’s solicitor] didn’t contact you before July 2008. Have you checked our file to confirm this?” The practitioner’s response that “Nearly 7 months after settlement, on or about 28 April 2008, we were asked by [the mortgagee’s solicitors] to provide them with the original contract for sale” makes no reference to the letter of 21 February 2008 received by the practitioner, and is clearly calculated to create the impression that the first request for the purchase contract was made by the mortgagee’s solicitors on or about 28 April 2008. It also misrepresents the contents of the letter of 21 April 2008, because that letter did contain a reason for the mortgagee’s solicitors request for the purchase contract; it referred to the earlier letter of 21 February 2008 and to the need to have the transfer amended and stamped.
The practitioner has failed to demonstrate any error in the reasoning or conclusion of the ACAT regarding this particular. There can be no doubt that the practitioner’s conduct under this Ground constituted unsatisfactory professional conduct.
Ground 3 – Engaging in threatening and intimidating conduct
Particular 3.1
The practitioner’s submissions
The practitioner submitted that the ACAT erred by finding that, in his letter of 12 December 2008, he “dissuaded his clients” from lodging a complaint against him when he was only “charged” with attempting to dissuade them from making a complaint. As such, he submitted, he was “convicted for the wrong charge”. He further submitted that Ground 3 alleged against him an intention to intimidate his clients, and that the ACAT erred in finding that he had, in fact, intimidated them. The practitioner then went on to submit that Ground 3 was “incorrect” because “It is unable to charge anyone for an intention only. A person cannot be charged for having an intention (mens rea). A person must commit an act (actus reus) to charge”. He submitted that the ACAT, by finding that he did intimidate his clients, had effectively amended the charge without notice to him, in breach of the principles of natural justice. Further, he submitted that the ACAT had failed to consider his evidence that he was only considering writing to SD’s employer, and that this was different to having formed an intention to write to SD’s employer. He said that the ACAT failed to understand that “considering” and “intending” were different.
The practitioner also submitted that the ACAT “conveniently ignored” the issue of “double dipping” by his clients, which he asserted was the reason he wrote to them. He continued that the ACAT “tried to pick and choose facts that only suited for its Reasons for Decision to find the appellant guilty”. He then went on to say that the ACAT “made mere assumptions without fair and just reasoning that the appellant was making an offer of compensation to the clients to dissuade them from lodging a complaint”, and that the ACAT “wrongfully considered that the offer of compensation to settle the matter was improper”.
The practitioner’s final submission of substance was that the ACAT erred by “believing” that the client mentioned the Law Society to the appellant on 20 November 2008 when the first reference to the Law Society by his client was on 9 November 2008.
The Law Society’s submissions
The Law Society submitted that the practitioner’s submissions at [112] above reveal a fundamental misunderstanding of the ACAT’s findings, and that it is clear from those findings that the ACAT found the allegation that the practitioner had intended to intimidate his clients was made out.
The Law Society further submitted that the practitioner’s evidence that he really had no intention of writing to SD’s employer meant that his statement to that effect in the letter of 12 December 2008 was false, supporting the proposition that his intention was to intimidate his clients.
Conclusion
The finding by the ACAT that the practitioner wrote his letter of 12 December 2008 to his clients intending to intimidate the clients into accepting his offer of settlement and to drop their complaint against him was not, as the practitioner suggested, based on assumption. The ACAT inferred the intention of the practitioner in writing the letter from facts which it found proved. This is not, as the practitioner suggested, an inappropriate attempt to “read his mind”, but is a process commonly adopted by fact finding bodies required to determine a person’s state of mind. The practitioner gave evidence before the ACAT that his intention had been to teach his clients a lesson about “double dipping”, but this explanation was unsurprisingly rejected by the ACAT. There is no suggestion in the evidence that the practitioner was acquainted with the work arrangements of either of his clients, so there was no basis for a belief on his part that his clients were attempting to claim compensation from him for work undertaken when they were being otherwise remunerated by their employers. The context in which the letter was written is also important. The practitioner was angry with the clients’ refusal to resolve the matter in the way he wanted; they instead escalated the matter by making a complaint to the Law Society. Having rejected the practitioner’s evidence about his intention in writing the letter, the ACAT was entitled to infer his intention from the surrounding circumstances. This does not reveal error by the ACAT.
The practitioner’s complaint that the ACAT “convicted” him of “the wrong charge” is without merit. The focus of Ground 3 was the practitioner’s purpose in advising his clients that he was considering contacting SD’s employer. The ACAT found that his intention in writing to his clients as he did was to intimidate them into accepting his offer of settlement and withdrawing their complaint against him.
It is also incorrect to assert, as the practitioner did, that the ACAT found that his offer to settle “the matter” was improper. What the ACAT found was that, in advising his clients that he was considering contacting SD’s employer, he engaged in improper conduct, as his motive for writing the letter was to intimidate his clients.
The attempt by the practitioner to draw upon criminal law concepts such as mens rea and actus reus was misconceived. There was no attempt by the Law Society to allege that the practitioner had engaged in some offence constituted only by an intention. The allegation against the practitioner was that he engaged in conduct (writing and sending the letter of 12 December 2008) with the intention of intimidating his clients. In this context, intention and motive have the same meaning.
The ACAT did not, as suggested by the practitioner, confuse the concepts of “considering” and “intending”. It was obliged to address what the practitioner had intended to convey to his clients when he said he was considering writing to SD’s employer; it also had a separate obligation to determine the practitioner’s intention in writing as he did, and specifically whether he intended to intimidate his clients.
The submission by the practitioner that the ACAT ignored evidence, and selectively accepted evidence for the purpose of finding him guilty, is outrageous and was made without the slightest basis in fact. It is a submission that should not have been made.
The practitioner’s submissions that the ACAT erred by failing to recognise that his clients had spoken of referring the matter to the Law Society on 9 November 2008 is also without merit. The ACAT made specific reference to the email of 9 November 2008 at [119] when considering Ground 3. When the reasons of the ACAT regarding Ground 3 are read in their totality, it is clear that it did not make the error alleged.
The ACAT concluded that the practitioner’s conduct as established concerning Ground 3 was an attempt by him to coerce and manipulate his clients to avoid a complaint. It concluded that this conduct amounted to professional misconduct. No error has been demonstrated by the practitioner in the fact finding of the ACAT, and, on the basis of those facts, the finding that the practitioner had engaged in professional misconduct was well open to the ACAT.
The grounds of appeal
For completeness, I will address each ground of appeal individually.
(a) Error by finding that the practitioner had acted negligently by failing to respond to the 18 February 2008 letter.
There is, I believe, an error in this ground of appeal in that it refers to a letter of 18 February 2008. I assume that what the letter the practitioner intended to refer to was that of 21 February 2008.
For the reasons I have given at [88] – [93] above, this ground must fail.
(b) Error by finding that the practitioner had acted negligently in forwarding the incorrect contract.
For the reasons I have given at [96] – [99] this ground must fail.
(c) Error by finding that the practitioner had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention.
For the reasons I have given at [102] – [104] above, this ground must fail.
(d) Error by finding that the practitioner both deliberately and recklessly misled his clients in the letter of 20 November 2008.
For the reasons I have given at [109] – [111] above, this ground must fail.
(e) Error by finding that the practitioner allegedly reckless misleading of his clients in his letter dated 20 November 2008 amounted to professional misconduct.
For the reasons I have given at [109] – [111] above, this ground must fail.
(f) Error by not finding that the mortgagee’s solicitors contributed to the delay.
In one sense, any delay occasioned by the mortgagee’s solicitors was irrelevant to the function performed by the ACAT. The ACAT was concerned with the practitioner’s conduct in the circumstances that existed at the time. It is very clear that the ACAT was aware of the initial delay between settlement and the mortgagee’s solicitor’s letter of 21 February 2008 and no criticism was levelled at the practitioner about that delay. The ACAT was also aware of the fact that there was a delay between the practitioner forwarding the wrong contract on or about 28 April 2008 at the mortgagee’s solicitors writing to the practitioner to this effect on 5 September 2008. There was evidence, which the practitioner disputed, that telephone calls were made to his firm by the mortgagee’s solicitors during this period, but no finding was made by the ACAT on that issue. The practitioner cannot, however, be absolved of all responsibility for the delay between 28 April and 5 September 2008 as it was his failure to forward the correct contract in the first place that ultimately led to that delay.
This ground of appeal must fail.
(g) Error by finding that the practitioner had threatened and intimidated his clients in his letter dated 12 December 2008.
For the reasons I have given at [117] – [124] above, this ground must fail.
(h) Error by finding that the practitioner’s clients suffered economic loss.
There is no merit to this ground of appeal. It is beyond argument that the practitioner’s clients suffered some loss as a result of the practitioner’s conduct. The practitioner himself recognised this in his correspondence with his clients. At the very least, they suffered loss by having to pay interest on overdue rates accounts.
(i) Error by failing to properly consider the unsolicited offer of compensation made by the practitioner.
The ACAT made particular reference to the practitioner’s offer in its reasons regarding penalty on 31 August 2012 at [36]. It was required to do no more. This ground of appeal must fail.
Orders
The practitioner’s appeal is dismissed.
Unless either party seeks a different order within 14 days, the practitioner is to pay the respondent’s cost of the appeal.
| I certify that the preceding one-hundred-and-thirty-eight [138] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 November 2015 |
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