Legal Practitioner v Council of the Law Society of the ACT (No 2)
[2015] ACTSC 317
•5 November 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Legal Practitioner v Council of the Law Society of the ACT (No 2) |
Citation: | [2015] ACTSC 317 |
Hearing Date(s): | 3, 4 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 – whether practitioner’s conduct constituted unsatisfactory professional conduct – whether practitioner’s conduct constituted professional misconduct. |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2008 (ACT) ss 79, 83 Court Procedures Rules 2006 (ACT) r 5052 (1) (c) Legal Profession (Solicitors) Rules 2007 (ACT) rr 1.2, 36.1, 39.1 |
Cases Cited: | Fox v Percy (2003) 214 CLR 118 Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118 Tjiong v Tjiong [2012] NSWCA 201 |
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 26 of 2013 |
Decision under appeal: | Court/Tribunal: The ACT Civil & Administrative Tribunal Before: Ms L Donogoe SC, Senior Member; Mr Date of Decision: 28 June 2012; 8 February 2013 Case Title: Council of the Law Society of the ACT & The Legal Practitioner ‘Y’ (Occupational Discipline); The Council of the Law Society of the ACT & The Legal Practitioner Y (Occupational Regulation) Citation: [2012] ACAT 40; [2013] ACAT 8 |
BURNS J:
On 28 June 2012, the ACT Civil and Administrative Tribunal (the ACAT) found the appellant, who I will refer to as the practitioner, guilty of unsatisfactory professional conduct and professional misconduct. On 8 February 2013, the ACAT made orders recommending that the name of the practitioner be removed from the local roll, and that he pay the respondent Law Society of the ACT’s (the Society) costs of the application on a party/party basis.
The proceedings before the ACAT were based on a Second Further Amended Application for Disciplinary Action (the disciplinary application) dated 2 August 2011, which alleged that, as a consequence of acting for a party to a property transaction, the practitioner engaged in conduct in breach of rr 1.2, 36.1 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT), amounting to professional misconduct or unsatisfactory professional conduct.
The relevant provisions of the Rules are:
(a)Rule 1.2 provides:
A 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.
(b)Rule 36.1 provides:
A 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.
(c)Rule 39.1 provides:
Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
The following provisions of the Legal Profession Act 2006 (ACT) are relevant:
386 What 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 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.
(emphasis as per original)
The particulars of the Society’s complaint were set out in the four grounds in the application:
Ground 1
Failure to act with competence and diligence in breach of Rule 1.2
Particulars:
1.1The [practitioner] negligently failed to implement his clients’ instructions relating to the transfer of a property in the joint names of the clients and the refinancing of a loan on the property in a competent and timely manner resulting in loss to the complainants in a related matter in which the [practitioner] held concurrent instructions,
1.2The [practitioner] failed to provide the complainants with an accurate and complete settlement statement and tax invoices in respect of the two matters in which he had accepted instructions until after a period of two months of the transaction being settled.
Ground 2
Failure to administer his practice efficiently and properly in breach of Rule 36.1
Particulars:
2.1The [practitioner] failed to ensure that his practice was efficiently and properly administered to deliver the legal services for which he had been retained.
Ground 3
Failure to act honestly and fairly in breach of Rule 1.2
Particulars:
3.1The [practitioner] failed to act honestly and fairly in the service of his clients in blaming the ACT Revenue Office and his clients’ banks for the delay in the settlement of the matters in which he was instructed when that delay was attributable to his own lack of competence and diligence in arranging for the stamping of the transfer document in a timely manner.
Ground 4
Failure to be open and frank in his dealings with Society in breach of rule 39.1 and misleading and deceptive conduct
Particulars:
4.1The [practitioner], in his letter to the Society dated 18 August 2009, deliberately attempted to deceive the Society or in the alternative recklessly made a false representation to the Society, in breach of rule 39.1, by stating, in his letter to the Society dated 18 August 2009, with reference to the letter dated 3 July 2009 which was sent to the complainants, “During this period the writer was not in the country”; when in truth, the Practitioner was indeed as at 3 July 2009 when the letter was sent, in the country.
4.2The [practitioner] deliberately attempted to mislead this Tribunal, or alternatively recklessly made a false representation to this Tribunal, by confirming, by his affidavit sworn and filed on 2 February 2011, the correctness of his said letter of 18 August 2009 in that he attached to the said affidavit, relevantly, a copy of that said letter, and deposed to the matters set out in paragraphs 4 and 11 of the said affidavit, without correcting the false statement in the said letter that, “During this period the writer was not in the country”.”
The practitioner has appealed from the decisions of the ACAT on “liability” and “penalty” on the following grounds, as set out in the Further Amended Notice of Appeal filed in court on 13 November 2014:
5. The grounds of the appeal in respect of liability are that the ACAT fell into error by:
1) Refusing to admit the following documents into evidence:
i. The affidavit of Mr [Z].
ii. Two letters dated 3 July 2009 from the appellant to the complainants.
iii. The tax invoices from [the Firm] dated 19 June 2009 and 24 June 2009.
iv. The transfer document prepared for the ACT Revenue office and the accompanying printout of the file properties menu noting a modified date of 27 May 2009.
2) By limiting the use of the appellant’s affidavit affirmed 30 June 2011 to use as evidence of the appellant’s state of mind.
3) By refusing to permit the appellant to elicit supplementary evidence in chief from Mr Boyd.
4)By finding that the appellant had deliberately delayed the production of his passport to the Law Society, when the appellant had in fact sought directions from the Tribunal regarding the provision of pages from the passport.
5) By finding that the appellant’s distressed state of mind would have likely eased by 3 July 2009.
6) By finding that the appellant did not properly supervise his staff.
7) By finding that the appellant had recklessly or deliberately misled the Law Society as to his whereabouts on 3 July 2009.
8) By failing to find that the appellant had filed the transfer document with the ACT Revenue’s (sic) office on 9 June 2009.
9) By not finding that the Commonwealth Bank, Bank West and the ACT
Revenue Office contributed to the delay in the conveyance.
10) By finding that the appellant if he had misled the Law Society recklessly rather than deliberately, that his conduct would nonetheless amount to professional misconduct.
11) By taking into account the manner in which the appellant conducted his
defence in determining liability.
12) By finding that the appellant failed in his duty to be open and frank with the Law Society.
13) By confusing the refinancing of the complainant’s Lyneham property with the purchase of the complainant’s new property in Kaleen.
6. The grounds of appeal in respect of penalty are that the ACAT fell into error:
14) By failing afford (sic) adequate weight to the character references tendered in
support of the appellant.
15) By failing to afford adequate weight to the appellant’s evidence of the loss of his practice and his financial hardship.
16) By ruling that a previous disciplinary proceeding subject to a pending appeal could properly be taken into consideration adverse to the appellant in
determining penalty.
The practitioner sought orders that the appeal be upheld, the decisions of the ACAT be set aside, the complaint to the ACAT be dismissed and that the Society pay his costs.
The practitioner sought to place before me on this appeal what he referred to as “fresh evidence” by way of a number of affidavits and documents that were not before the ACAT. Some of this material was rejected by the ACAT and, with regard to the remainder of the material, no attempt was made by the practitioner, for various reasons, to place the material before the ACAT. A more accurate description for most of this material would be further evidence, rather than fresh evidence. I will describe it as such in these reasons. At the hearing of the appeal, I refused the application to lead this material, for reasons I will give in the course of this decision.
It is appropriate at the outset to briefly mention the process by which this appeal came before me. After the ACAT handed down its decisions, the practitioner appealed pursuant to s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act):
79Appeals 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 on a question of fact or law.
(emphasis as per original)
That appeal was subsequently removed into this Court pursuant to s 83 (2) of the ACAT Act:
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 it appropriate, order that the matter be removed to the Supreme Court.
(emphasis as per original)
The nature of the present appeal
I adhere to, without here repeating, what I said in Legal Practitioner v The Council of the Law Society of the ACT [2015] ACTSC 316 at [59] – [84]. In particular, I decline to follow the decisions of Penfold J in O’Donnell v Environment Protection Authority (2012) 268 FLR 48 and Foster J in PAAN Investments Pty Ltd (In Liquidation) v Commissioner for Revenue for the Australian Capital Territory (2014) 290 FLR 1 to the extent that they suggest that specific “questions” of fact or law must be identified by an appellant in an appeal such as the present.
On 11 February 2014, I determined that the appeal was to be dealt with as a review of the original decision of the ACAT: s 82 (b) of the ACAT Act. I agree with the decision of Refshauge J in Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118 that this is essentially an appeal by way of rehearing, requiring the practitioner to demonstrate error on the part of the ACAT. The original proceedings before the ACAT occupied four hearing days during which the practitioner had an opportunity to fully present his case. To the extent that the practitioner, in his grounds of appeal, alleges that evidence was wrongly excluded, or its use wrongly confined, by the ACAT, this may be adequately addressed in an appeal by way of rehearing.
Throughout these proceedings, and those in the ACAT, the practitioner has chosen to represent himself, except for a short period in this Court when Mr Crispin of counsel assisted him in preparing appropriate grounds of appeal, a task that seemed to be beyond the practitioner. I will not now go into details, but it took a considerable effort by the Society, and the Court (particularly the Deputy Registrar), to ensure that an appropriate appeal book was prepared. The failure of the practitioner to comply with his obligations to prepare a comprehensible notice of appeal and an appropriate appeal book generated significant delay in the progress of the appeal. I was prepared to allow the practitioner some latitude in this regard because of the importance of the appeal to him, and bearing in mind the fact that he was not in possession of a practicing certificate and, as such, was not practicing as a legal practitioner.
The general background to the complaint
At [18] to [31] of its reasons of 28 June 2012, the ACAT set out the general background to the application:
18.On 14 May 2009, the [practitioner’s] Firm was instructed to act for Mr N and Ms T, a married couple (the ‘Complainants’) on the purchase of a property at Kaleen (the ‘first retainer’). A costs agreement in relation to the Firm acting on that conveyance was entered into on 5 May 2009. Contracts were exchanged on 6 May 2009 and settlement was to take place on 15 June 2009.
19. On 18 May 2009, the Complainants instructed the Practitioner to act on their behalf on the refinance of their property in Lyneham, which involved the transfer of the title from the sole name of the Complainant husband to the Complainants’ joint names (the ‘second retainer’). Settlement of this transaction, the subject of the second retainer, was required to occur simultaneously with the settlement of the Kaleen purchase, the subject of the first retainer. In relation to that transaction (the second retainer), the Firm provided the Complainants with a costs agreement on or about 18 May 2009. The costs agreement appears to have been signed by the husband Complainant on 21 May 2009 and returned to the Firm at or about the same time. The costs agreement in relation to the second retainer described thirteen (13) tasks or ‘Works’ to be undertaken by the Firm. One of those was expressed as being:
Communicating and corresponding with the outgoing bank – arranging and attending to the discharge of mortgage and the incoming mortgage.
20. The second retainer required the stamping of the transfer by the ACT Revenue Office with nominal duty (the “exemption from stamp duty”) being a transfer of a principal residence from the sole name of the husband Complainant to the joint names of the Complainant husband and wife.
21.The transfer was required by ACT Revenue to be supported by a relatively simple Statutory Declaration attaching relevant documents.
22. On 3 June 2009, the Complainants signed a Statutory Declaration. It purported to attach a large number of supporting documents, which, as will become clear in due course, did not contain what was essential but did contain a lot of material which was probably surplus to requirements, bearing in mind the fact that the Complainants were married and had children. All that was required to support the stamp duty exemption in relation to the transaction was the Complainants’ marriage certificate.
23. On 23 June 2009, the Complainants signed yet another Statutory Declaration to which the same comments above are applicable. The statutory declaration was lodged with the Revenue Office on 23 June 2009.
24. On 24 June 2009, the Firm received a Notice to Complete and advised the Complainants.
25. On 26 June 2009, the Complainants advised the Firm that they attended to the stamp duty exemption personally that day and they pressed the Firm for settlement of the transactions, the subject of both retainers. Plainly, the settlement by the Firm of both transactions had now become urgent. The Complainants faced the prospect of forfeiture of their deposit and or penalty interest.
26. On 30 June 2009, both transactions, the subject of both retainers settled. On 3 July 2009, the Practitioner wrote to the Complainants advising them of a number of matters including the fact that the transactions had settled. There can be no doubt that the letter contained a number of errors and omissions, an important omission, amongst others, being that the Complainants had been charged penalty interest of $1,428.77 in respect in the delay in settling the purchase of the Kaleen property.
27. On 20 July 2009, the Complainants wrote to the Society complaining about the
manner in which the Practitioner had handled the transactions. On 29 July 2009, the Practitioner was advised of the complaint. And on 18 August 2009, the Practitioner responded to the Complainants’ complaint.
28. On 25 August 2009, the Complainant wife responded to the Practitioner’s response of 18 August.
29. On 4 September 2009, the Practitioner, through his employed clerk, responded to the Complainants in two letters, which purported to correct the earlier errors and omissions regarding the settlement of the two transactions.
30. On 8 September 2009, the Practitioner responded to the Complainant wife’s letter of 25 August 2009.
31. On 20 October 2010, the Society commenced these proceedings by way of lodging an Application for Disciplinary Action. The Application was further amended until the final version of the Application the Second Further Amended Application (the “Application”), dated 2 August 2011, was filed.
The outgoing mortgagee for the Lyneham property was BankWest, and the incoming mortgagee was the Commonwealth Bank.
The conduct of the proceedings before the ACAT by the practitioner
The hearing before the ACAT was poorly conducted by the practitioner on his own behalf. The ACAT was strongly critical of the practitioner and his conduct of the proceeding:
75. It is therefore relevant and important to comment upon the demeanour of the Practitioner throughout the hearing of these disciplinary proceedings. Despite the fact that the Tribunal found it necessary to remind him on many occasions that it had set out in directions the procedure that was to be followed for the preparation and hearing of this matter, the manner in which the proceedings would be conducted at hearing and the fact that proceedings were bound by the rules of evidence, the Practitioner contumaciously ignored and or declaimed the Tribunal’s directions, comments, advice and rulings. Regrettably, throughout the hearing, his demeanour and conduct appeared to the Tribunal to be recalcitrant at times and often combative at other times. Unfortunately, this was not helpful, (sic) to his interests.
76. He made lengthy, and often rambling, irrelevant and unhelpful speeches from the Bar table despite being asked to desist from doing so. He appeared to either have no understanding of the differences between evidence, more importantly, admissible evidence and submission or argument when the proceedings were at the evidentiary stage, despite being constantly reminded of them or chose, for reasons not apparent to the Tribunal, to ignore them and the Tribunal’s frequent attempts to help him understand and co-operate with the process. It was for that reason that most of his ‘evidence’ in his case was rejected or was given little weight by the Tribunal.
77. During the course of cross-examination by Mr Beaumont, the Practitioner refused to answer simple and reasonable questions or make concessions when they ought properly to have been made. When asked questions in cross-examination from Mr Beaumont or from members of the Tribunal, he gave unresponsive answers, engaged in what appeared to the Tribunal to be obfuscation, prevarication and resorted to irrelevant lengthy speeches, complaints and insulting remarks directed, not only at the Tribunal, but also at Mr Beaumont personally. In light of the foregoing, the Tribunal made the not unreasonable and fair assessment of the Practitioner’s evidence in cross-examination, namely that it unfortunately did not assist the case. The Tribunal will return to that point in more detail in due course.
(footnotes omitted)
In footnotes to the above passage, the ACAT provided numerous examples of the conduct described by reference to the transcript. A few examples will suffice for present purposes. At AB1392, the practitioner accused the ACAT of being “a Tribunal that gives deference to the Law Society, they are all the same people, that’s how I see it.” At AB1387, he accused the ACAT of “conniving” with a plot (presumably by the Law Society) to prejudice an appeal that was apparently then before this Court regarding a finding in an earlier disciplinary matter. Later, in the same vein, the following exchange occurred at AB1397:
That’s as I understand it. [Practitioner], just look at the letter as you’ve been asked to do so? - - - Yes I know but I’m going to prejudice my case. I know the Tribunal wants me to lose. It’s not good for the Tribunal because I’m taking you guys to the Supreme Court. Let the Supreme Court handle it. You have a vested interest in me losing that appeal.
Mr BEAUMONT: That’s a disgraceful - - -
MEMBER DONOHOE: It’s grossly, grossly insulting allegation? - - - If it’s insulting I’m sorry. I take it back. But anyway this Tribunal has made a decision. I have taken the Tribunal to the Supreme Court, which is a higher body, superior body. There are his Honours and her Honours sitting there. Let them decide it. I can’t mix ...(indistinct)... let the Supreme Court finish it. If we have to go to High Court we’ll go to High Court ...(indistinct)...
At AB1256, Mr Beaumont objected to the practitioner continually putting the same question to a witness, LS, in cross-examination, on the basis that it was “becoming oppressive”. The ACAT did not uphold the objection, but reminded the practitioner that the evidence did not “improve on repetition”. The practitioner immediately ceased his cross-examination and the following exchange occurred:
[PRACTITIONER]: If the Tribunal is going to treat me like this – I’m the one who’s facing this complaint. I should be able to at least defend my complaint.
MEMBER DONOHOE: [Practitioner], the Tribunal - - -
[PRACTITIONER]: While I’m getting warnings - - -
MEMBER DONOHOE: [Practitioner], may I finish what I’m saying? [Practitioner], the rules of evidence apply in this Tribunal. If you ask questions that are inadmissible in accordance with the rules of evidence or law of evidence they won’t be permitted. We’re not trying to shut you down.
[PRACTITIONER]: One thing that’s in evidence - - -
MEMBER DONOHOE: Pardon? Well, the questioning - - -
[PRACTITIONER]: ...(indistinct)...
MEMBER DONOHOE: [Practitioner], please listen to me. An objection was taken. I heard the objection and all I said to you was that I would give you a little more latitude but I gave you a warning that I agreed with Mr Beaumont that the questioning was becoming oppressive. And questioning that is oppressive will not be permitted.
It’s oppressive when you keep asking the same question over and over again and that is what you were doing, sir. She had answered it. We all understood what her evidence was and to keep on asking her the same question is simply unfair.
Now, I didn’t disallow your question. I simply warned you that if you persisted in asking the same question I would shut it down. You weren’t, the question wasn’t disallowed. Now, you chose to stop the questioning. You chose to - - -
[PRACTITIONER]: And I can’t work like this.
MEMBER DONOHOE: Well, yes you can, [Practitioner], because you have to do it in accordance with law.
[PRACTITIONER]: I wasn’t even allowed to finish the question, was stopped.
MEMBER DONOHOE: Well, I don’t believe that’s so, [Practitioner]. [Practitioner], - - -
[PRACTITIONER]: But I was told to - - -
MEMBER DONOHOE: [Practitioner], my recollection and please correct me if I’m wrong to both parties, an objection was made before your question was finished and I told Mr Beaumont or I said that you were to be permitted to finish your question and you were.
[PRACTITIONER]: I was going to - - -
MEMBER DONOHOE: Anyway, [Practitioner], I’m not going to argue about this. It was a proper warning - - -
[PRACTITIONER]: This is recording, these are threats. I take it as offence. You warned me. What’s going to happen next?
MEMBER DONOHOE: Well, it’s not a threat, Practitioner. I’m simply asking you to comply with the rules of evidence.
[PRACTITIONER]: But let me finish the question.
MEMBER DONOHOE: But, [Practitioner], I didn’t shut you down. In fact I allowed the question and said to you – but I gave you a warning that if you persisted in oppressive questions I would have to stop them and that’s perfectly proper, [Practitioner]. That is an end of the matter.
Where are we going from here?
MR BEAUMONT: I think, Madam Presiding Member, that this is the time for the – I think it’s a 40 minute adjournment.
MEMBER DONOHOE: Let’s make it 45.
MR BEAUMONT: 45? Thank you, and then the next thing will be [the Practitioner’s] oral evidence.
MEMBER DONOHOE: Okay, well, let’s say, what, 10 to 12?
MR BEAUMONT: Yes.
MEMBER DONOHOE: Is that right?
MR BEAUMONT: Yes.
MEMBER DONOHOE: About 10 to 12? Sorry, too long. Numbers were not my strong suit.
MR BEAUMONT: 11.20.
MEMBER DONOHOE: 11.20, yes. Is that sufficient time for you, [Practitioner]. I’ve not extended it to 45 minutes.
[PRACTITIONER]: Yes I can see from the Tribunal faces and everything that I’m not getting a fair trial. People are making faces at me and body language and, you know, you don’t understand it. You have to be in my shoes to understand.
MEMBER DONOHOE: [Practitioner], we are bending over backwards to give you a fair hearing.
[PRACTITIONER]: ...(indistinct)... but treat me like everybody else. Don’t shout at, you shout at me. You have to shout at him too.
MEMBER CONWAY: I don’t think anyone has been shouting at you, [Practitioner]. I think you’re imagining that, quite frankly.
[PRACTITIONER]: That’s how I feel. That’s why – I’m entitled to my opinion.
MEMBER CONWAY: Well, you may feel it but we haven’t been doing that. The rules apply to Mr Beaumont and the rules apply to you.
[PRACTITIONER]: But when you address me it’s very harsh. Your tone is very harsh and you know - - -
MEMBER CONWAY: [Practitioner], that’s simply nonsense.
[PRACTITIONER]: That’s how I feel.
MEMBER CONWAY: Well, it may be what you feel, but it’s nonsense.
[PRACTITIONER]: I’m telling the board, the Bench, your part of the Bench it’s not objective analysis. But I am entitled to say honest opinion of how I feel about it.
MEMBER CONWAY: Yes.
[PRACTITIONER]: If I am going to be drowned and suppressed I can’t perform, I really can’t. I prepared do it my way. Everybody has their way of doing things so let me do it my way and, you know, just ...(inaudible)...
MEMBER DONOHOE: [Practitioner], your way must comply with the rules, your way must comply with the rules of evidence, sir. If they don’t your questions won’t be permitted.
MEMBER CONWAY: And the same thing applies to Mr Beaumont.
[PRACTITIONER]: I don’t think so.
MEMBER CONWAY: Well, maybe - - -
MEMBER DONOHOE: But it does, you’ve not made an objection. If you make an objection, [Practitioner] - - -
[PRACTITIONER]: When he was giving evidence on her behalf basically. He was telling her story.
MEMBER DONOHOE: Well, that’s just not so, [Practitioner].
The above examples are sufficient to give the flavour of the practitioner’s conduct of the proceedings before the ACAT. A fair reading of the transcript reveals that the ACAT members who heard the application showed remarkable restraint in the face of contumacious conduct and insulting comments by the practitioner. The ACAT went to great lengths to ensure that the proceedings were conducted fairly. The difficulties encountered by the practitioner, to the extent that they were not the result of the evidence against him, were largely of his own creation, and fundamentally rooted in his lack of legal competence.
The ACAT’s decision
Grounds 1 and 2
The ACAT found that the practitioner’s retainers were signed and returned on 21 May 2009. In a joint expert report dated 7 November 2011 tendered in the proceedings before the ACAT, the experts agreed that four weeks from the time the retainers were returned would have been adequate time for the practitioner to prepare, stamp and lodge the necessary documentation. The ACAT found that the practitioner did not lodge any statutory declaration or transfer in relation to the exemption form other than nominal stamp duty of the Lyneham transfer until 23 June 2009, more than four weeks later. The ACAT found that, even then, the statutory declaration lodged by the practitioner was deficient as it did not annex a copy of the complainants’ marriage certificate. The complainant, LU, herself rectified the situation by personally delivering the marriage certificate to ACT Revenue on 26 June 2009 and then delivering it to the practitioner. On the same day, ACT Revenue processed the assessment.
The ACAT did not accept “any speculative submissions” by the practitioner that he may have attached the marriage certificate to the statutory declaration, and that it may have been lodged on 9 June 2009 before being “returned” by ACT Revenue. The ACAT went on to say:
100. The documentary evidence from ACT Revenue was clear and unequivocal. In his oral evidence, the Society submitted that the Practitioner was quite unable to explain the documentary evidence from ACT Revenue. The practitioner purported to deal with it in his written submissions in chief. The Tribunal dismisses these submissions in as much as they allege some sort of conspiracy.
101. The Society summarised the evidence thus:
· The Notice of Assessment from the ACT Revenue Office referred to the ‘documents lodged on 23 June 2009’.
· The lodgement form filled out by the staff of the Firm was stamped as received on 23 June 2009.
· The Firm itself stated on the lodgement form that the ‘Date of first execution’ of the transfer was 23 June 2009. This is at complete odds with the claim of the Practitioner that the Transfer was earlier lodged on 9 June 2009 but then ‘returned’
· There was no letter on the file kept by the Practitioner recording or documenting the ‘return’ by the ACT Revenue Office of the transfer, nor any explanation as to why this would occur, and nor was there any explanation as to why, if the transfer was returned, the date of its first execution is stated by the Firm to be 23 June 2009;
· The transfer itself bears only one date, namely 23 June 2009, which appears not only initially, but also as the assigned date for the Contract for Sale;
· The statutory declaration, which was actually lodged, was the original statutory declaration executed on 5 June 2009. Again, if this had been ‘lost’ as alleged, then one asks rhetorically, how it found its way on to the ACT Revenue file? If it had been ‘returned’, then why was the document that is included among those accepted for lodging and stamped as lodged? Why again, one asks rhetorically, would it have been accepted the second time around, but not the first?
· The only relevant receipt from the Revenue Office on the Practitioner’s own file was for a document lodged on 23 June 2009. The Practitioner provided no explanation for the absence of a receipt for 9 June 2009, which should have been on his file had the Practitioner in fact lodged the statutory declaration and transfer at that time.
102. The Society submitted that the Practitioner’s various versions of the event are both contradicted by the documents (and the absence of documents from his file) and are internally inconsistent, as well as implausible. That is submission with which the Tribunal concurs (sic).
103. Thus, the Practitioner’s first version of the events was that the ACT Revenue Office ‘incorrectly returned’ the documents – he said this in his letter to ACT Revenue of 26 June 2009 and said nothing, notably, about the documents being lost. It is an unremarkable proposition that the documents could not be both lost and incorrectly returned. Nor did the Practitioner say anything explicit about the documents having been ‘rejected’ in this letter.
104. In his second version, in relation to his first letter to the Law Society, the Practitioner asserted for the first time (without any foundation that was obvious to the Tribunal) that ACT Revenue had ‘lost’ the ‘documents’ and that ‘thus’ they ‘returned the transfer to us’. That version does appear to the Tribunal to be implausible. As noted above, the Society submits, and the Tribunal agrees, that this is illogical, is not supported by the file, and does not explain why the actual transfer, being the only transfer appearing or referred to in the evidence, was stated by the Firm to have been first created on 23 June 2009. Nor, it was submitted by the Society, was the Practitioner able to account for this inconsistency in his oral evidence.
105. The Practitioner’s third version of events was that the clients did not return the 3 June 2009 statutory declaration until 9 June 2009 and that it was then lodged. The Society submits and the Tribunal agrees that this is patently false, as the Practitioner accepted in his oral evidence.
106. In truth, far from not being returned until 9 June 2009, the statutory declaration was signed in the Practitioner’s office and witnessed by the Practitioner on 5 June 2009. The Practitioner, it was submitted by the Society, had sought in his affidavit evidence to conceal this fact in his explanation of the events by pointing to the 3 June 2009 statutory declaration as the applicable one, and seeking to make mileage of the fact that it had the words ‘cancelled’ on it. But on his oral evidence, it emerged that this statutory declaration was ‘cancelled’ owing to a witnessing defect by the Practitioner himself.
107. The Complainants came in to see the Practitioner on 5 June 2009 and executed the statutory declaration on that date. The Practitioner asserted in his 30 June 2011 Affidavit that the ACT Revenue had misfiled the 3 June 2009 statutory declaration or lost it.
108.For emphasis, it is submitted that the Complainants did not receive the 3 June 2009 statutory declaration, because it was replaced by the 5 June 2009 version. In short, it is submitted by the Society that the Tribunal should comfortably conclude that the Practitioner has simply concocted a story about having ever lodging (sic) the application for stamp duty exemption, let alone transfer, with the ACT Revenue Office on 9 June 2009. The Tribunal is persuaded by the society’s (sic) submission in this regard.
109. The Society submitted the oral evidence led by the Practitioner from former employees and one present employee took the matter no further. The Tribunal agrees with this assessment of that evidence as we observed above.
(footnotes omitted)
The ACAT meticulously footnoted the evidence supporting each of the factual statements in the above passage. I am satisfied that it accurately stated the evidence.
The ACAT noted that all the practitioner needed to do was to supply ACT Revenue with a copy of the complainants’ marriage certificate. He failed to do this, resulting in LU heaving to personally rectify the problem as a matter of urgency after a notice to complete had been served. The statutory declaration prepared by the practitioner, the ACAT concluded, was inadequate as it did not annex a copy of the marriage certificate.
The ACAT also concluded that the practitioner had undertaken to the complainants to attend to the discharge of the mortgage on the transfer of the Lyneham property from the male complainant’s name into the joint names of both complainants. This is apparent from the practitioner’s letter to the male complainant dated 18 May 2009 (AB633). The ACAT was satisfied that the practitioner knew from 29 April 2009 that the incoming mortgagee would want security over the Lyneham property, and that the complainants reiterated this to the practitioner on 4 May 2009. The practitioner asserted that it was his belief that the incoming mortgagee, the Commonwealth Bank, would attend to the discharge. The ACAT noted that the joint expert report said that there was no such presumption. The ACAT also noted that, when it was pointed out to him that attending to the discharge of the mortgage over the Lyneham property was one of the tasks that he undertook to complete in his letter to his clients of 18 May 2009, the practitioner replied, “That’s a standard costs agreement for the refinance client”. Whilst the practitioner undoubtedly intended in making this remark to diminish the importance of the letter of 18 May 2009, the ACAT noted that it had the opposite effect, as suggesting that it was “standard” for the practitioner to undertake that work. There was evidence that the Commonwealth Bank took some steps to commence the process of discharging the mortgage over the Lyneham property, but there was no documentary evidence that the practitioner’s responsibility for discharging the mortgage had passed to the Bank, or that the Bank had advised the practitioner that it would attend to it. In any event, having undertaken in the letter of 18 May 2009 to undertake the discharge of the mortgage over the Lyneham property, the ACAT noted that it was not available to the practitioner to purport to delegate that responsibility to anyone else, including the Bank. The ACAT also noted that a file note dated 10 June 2009 on the practitioner’s file said, “call CBA and ask if they are doing the discharge for the Lyneham property”, clearly indicating that there was no firm belief by the practitioner’s firm at that time that the Bank would undertake the work to discharge the mortgage over the Lyneham property.
The ACAT concluded that the practitioner:
...should have taken control of the discharge, ensured that it was ready, and not relied on unjustified and dubious assumptions and allowed, in his own words, “confusion” to exist until it was too late to act. His failure to do so was unsatisfactory.
The ACAT was satisfied that the initial final letter provided by the practitioner to the complainants on 3 July 2009 was “full of serious errors”. The statement advised that settlement occurred on 19 June 2009, whereas it did not occur until 30 June 2009; the total fees and disbursements were inaccurately stated; the cheque directions were substantially inaccurate; and there was no mention of the penalty interest payable or the vendor’s solicitors’ fees payable as a consequence of the delays. These findings were consistent with the opinions of the experts in the joint experts report.
The practitioner sent a correction letter on 4 September 2009, but the ACAT noted that, even then, the amount payable to the vendor’s solicitors was not referred to.
The Society submitted that the breaches pleaded in Ground 1, if found to be proved by the ACAT, would also evidence a breach of r 36.1 as pleaded in Ground 2. The ACAT agreed with this position.
The ACAT was satisfied that the practitioner’s conduct, as outlined above, demonstrated a failure to properly organise and administer his practice so as to ensure that his letter to the complainants dated 3 July 2009 was accurately drafted. Further, the ACAT was satisfied that the practitioner’s failure to attend to relatively straightforward matters, such as attending to the stamp duty exemption and the mortgage refinance, constituted a failure to comply with r 36.1.
The ACAT found that the breaches of r 1.2 (in the case of Ground 1) and r 36.1 (in the case of Ground 2), when viewed as a “collection of these shortcomings in the one transaction”, fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner. As such, the breaches set out in Grounds 1 and 2 were found to constitute unsatisfactory professional conduct.
Ground 3
The ACAT was satisfied in its findings on Ground 1 that the delay in settlement was the result of the practitioner’s failure to arrange for the stamping of the transfer document in a timely manner. It noted that the attempts by the practitioner to blame the ACT Revenue Office and the Banks for the delay included:
(a)a discussion with the complainants on 23 June 2009, in which he claimed that ACT Revenue had delayed the process; and
(b)in his letter to the Law Society of 18 August 2009, in which he repeatedly blamed the Banks and the ACT Revenue Office for the delays.
The ACAT concluded that it was wrong of the practitioner to falsely portray the responsibility for the delay as being that of ACT Revenue or the Banks when he knew that he was responsible. The ACAT was satisfied that this constituted unsatisfactory professional conduct.
Ground 4
It was not disputed that, in his letter to the Society of 18 August 2009, the practitioner said, referring to his letter to the complainants dated 3 July 2009, that “during this period the writer was not in the country”. The practitioner was required to produce to the ACAT the relevant pages of his passport, which demonstrated that he did not arrive at his overseas destination until 8 July 2009. There was evidence that, not only was the practitioner not overseas on 3 July 2009, but he was, in fact, in his office working for at least part of that day. The Tribunal noted that, on 3 July 2009, the practitioner signed a locum agreement with another practitioner, Mr Z, for Mr Z to take over the conduct of the firm while the practitioner was overseas, commencing 6 July 2009. Bearing in mind the closeness in time between the events of 3 July 2009 and the practitioner’s letter of 18 August 2009, the ACAT considered that, “It beggars belief that the Practitioner could possibly have forgotten that he was still in the office as of this day, and indeed that he did not arrive at his destination until 5 days later on 8 July 2009.” The ACAT rejected the proposition that the letter of 3 July 2009 was the responsibility of his locum, Mr Z.
The ACAT then turned to particular 4.2, alleging that the practitioner deliberately or recklessly attempted to mislead the ACAT by maintaining in an affidavit sworn 2 February 2011 that he was “not in the country” on 3 July 2009. There is no dispute that, in this affidavit, the practitioner confirmed the accuracy of the matters set out in his letter of 18 August 2009, which included the assertion that he was not in Australia on 3 July 2009. The true position only came to light when the Society challenged the practitioner about the accuracy of this statement, and required him to produce his passport. The ACAT set out the following chronology of events relevant to this particular:
(a)on 9 June 2011, the Society served a notice on the practitioner returnable at the hearing before the ACAT on 9 August 2011 to produce his passport which was current in and around June 2009, and in the interim sought that he provide the Society with a copy of the same. The practitioner failed to provide the copy as requested;
(b)on 16 June 2011, the practitioner corresponded directly with the General President of the ACAT and asserted that the passport was irrelevant and breached his “privacy and confidentiality”, and objected to being required to produce the passport; and
(c)agreed to provide the Society with the pages of his passport that “proves I have travelled overseas during early July 2009”.
On 17 June 2011, the Society requested a copy of the relevant pages of the practitioner’s passport indicating the period during which he was overseas in June or July 2009. The practitioner failed over the ensuing month to provide this material, even though he had previously agreed to provide it. The Society followed up by an email to the practitioner and, on 22 July 2011, he finally provided a copy of relevant pages of his passport. The ACAT noted that, in his evidence, the practitioner attempted to portray his ultimate disclosure of this material as demonstrative of his frankness and candour. The ACAT did not accept that proposition. The ACAT concluded:
156. The Practitioner’s oral evidence and his tone, demeanour, and characteristic evasiveness, reinforces the conclusion that arises from the surrounding circumstances... namely that he engaged in a deliberate act of dishonesty, or, in the alternative, at the very least was reckless in making on his affirmation a false statement to the tribunal.
157. The Tribunal is comfortably satisfied, as to the submissions in relation to each of Grounds 4.1 and 4.2. The Tribunal finds them proved.
The ACAT considered that the attempt to mislead the Society, and then the Tribunal, in affirmed evidence was, in each case, professional misconduct of a high order. It was satisfied that the same was true of recklessly making a false statement to the Society, and of recklessly giving false evidence in disciplinary proceedings. It concluded that either alternative justified a finding that the practitioner was not a fit and proper person to engage in legal practice.
The application to lead further evidence
On 1 October 2013, the practitioner filed an affidavit in support of an application to lead further evidence at the appeal. In this affidavit, he identified the following evidence that was not before the ACAT:
(a)the affidavits of Ms Yingzi Sun and Ms Danica Davies (nee Fellows, referred to in the practitioner’s affidavit as Danica Fleming), former employees of the practitioner;
(b)the affidavit of Mr Z, a locum at the practitioner’s practice;
(c)the affidavit of Mr Christopher Boyd, an accredited property law specialist from the NSW Law Society; and
(d)miscellaneous documents:
(i)subpoenas addressed to the Proper Officer of the ACT Revenue Office;
(ii)two bundles of documents referred to as Bundle of Documents (1) and Bundle of Documents (2);
(iii)the “Kaleen final letter” dated 3 July 2009;
(iv)the “Kaleen Tax Invoice” dated June 2009;
(v)the “Lyneham final letter” dated 3 July 2009;
(vi)the” Lyneham Transfer”;
(vii)the “Lyneham Tax Invoice” created 19 June 2009;
(viii)the “Lyneham Tax Invoice” created 28 June 2009;
(ix)email correspondence between the applicant and the ACAT; and
(x)correspondence between the applicant and the ACAT.
The affidavits of Ms Yingzi Sun and Ms Danica Davies were not adduced during the original ACAT proceedings. The practitioner attempted to rely on the affidavits of Mr Z and Mr Boyd and the miscellaneous documents in those proceedings, but they were rejected by the ACAT; as such, this material is not strictly further evidence, and the question of its admissibility is properly to be dealt with under Grounds 1 and 3 of the grounds of appeal. I will nevertheless, for the sake of completeness, apply the appropriate test governing the reception of further evidence to this material.
The application to adduce further evidence is governed by r 5052 (1) (c) of the Court Procedures Rules 2006 (ACT), which provides that the Court “may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way”. The application was opposed by the respondents.
The principles governing such an application are set out in Tjiong v Tjiong [2012] NSWCA 201 at [165] – [176], which suggests that there is a usual, but not invariable requirement that:
(1) it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; (2) the evidence must be such that there must be a high degree of probability that there would be a different verdict; (3) the evidence must be credible.
There must otherwise be an “insistent” interest of justice requiring the permission to adduce further evidence: Tjiong at [204].
The proposed affidavit of Ms Yingzi Sun
Could Ms Sun’s evidence have been obtained with reasonable diligence for use at the trial?
In his affidavit of 1 October 2013 (page 2 paragraph 6. i)), the practitioner stated that he had attempted personal service of two subpoenas on Ms Sun during the hearing before the ACAT, but had been unsuccessful. Beyond noting that he went to “enormous lengths” to effect service, the practitioner’s affidavit does not indicate what steps he took prior to the ACAT hearing to locate Ms Sun. The practitioner stated that, were he given leave to adduce further evidence, he believed he would be able to locate Ms Sun either via the ACT Electoral Roll or via assistance from Ms Sun’s parents, with whom he is friendly. In circumstances where the practitioner is a friend of Ms Sun’s parents, it is curious that his affidavit makes no mention of having sought assistance from Ms Sun’s parents to locate her prior to or during the hearing in the ACAT.
Is there a high degree of probability that there would be a different verdict if Ms Sun’s evidence were adduced?
Ms Sun is a former employee of the practitioner. She was given carriage of the purchase of the property in Kaleen and the refinance of the property in Lyneham. Given that she was heavily pregnant at the time, she was unable to personally lodge the documents with the ACT Revenue Office. However, she wrote file notes in relation to the matter, noting that the documents had been lodged and resubmitted.
In the affidavit of 1 October 2013, the practitioner stated that Ms Sun would be able to provide specific information about the lodgement of documents with the ACT Revenue Office and how the Commonwealth Bank, Bank West and the ACT Revenue Office each contributed to delays in settlement. However, the practitioner also indicated that Ms Sun may only be able to give evidence about an “attempt” to lodge the statutory declaration on 9 June 2009.
Despite this uncertainty in the practitioner’s written submissions, during oral submissions, he acknowledged that Ms Sun did not lodge the documents herself. At most, Ms Sun could state that she gave the documents to someone else with a direction that they were to be lodged and that she wrote file notes based on what she had been told.
However, Ms Sun’s proposed evidence must also be weighed against the factual finding made by the ACAT, which held, at [98], that, “regardless of whether the Practitioner lodged or attempted to lodge any statutory declaration on 9 June 2009, the statutory declaration (and each version thereof) was at all material times defective” There is no indication that Ms Sun’s proposed evidence would challenge this finding. In the circumstances, there was no real prospect that the evidence of Ms Sun would result in a different outcome to the present proceedings.
Conclusion
By his own admission, the appellant failed to issue subpoenas prior to the trial. Instead, he waited until the trial was underway. The appellant does not indicate the methods that he used at the time to attempt to locate Ms Sun, but the methods he now proposes are those that were open to him prior to the ACAT hearing. As a result of this, I was satisfied that Ms Sun’s proposed evidence could have been obtained by reasonable diligence prior to the trial.
The appellant also acknowledged the limits of Ms Sun’s proposed evidence, agreeing that, at best, Ms Sun would be able to provide evidence about what she was told by another employee. Even if this evidence were to be admitted, the ACAT’s finding that the statutory declaration was defective renders Ms Sun’s evidence moot. Given the limited nature of Ms Sun’s proposed evidence and the factual finding made by the ACAT, there is no insistent interest of justice that Ms Sun’s evidence be admitted, nor is there a high degree of probability that there would be a different verdict were her evidence to be admitted.
The Proposed affidavit of Ms Danica Davies
Could Ms Davies’ evidence have been obtained with reasonable diligence for use at the trial?
Throughout the course of the ACAT proceedings, the practitioner attributed authorship of the letter of 3 July 2009 to different employees at his firm, before finally identifying Ms Davies as the author. The practitioner pointed to this confusion to explain, in his affidavit of 1 October 2013, why he made no attempt to secure Ms Davies’ evidence prior to the trial.
Is there a high degree of probability that there would be a different verdict if Ms Davies’ evidence were adduced?
Ms Davies is a former employee of the appellant who worked on a part-time basis between 2008 and 2009. In his affidavit of 1 October 2013, the practitioner states that Ms Davies’ would be able to provide evidence that she drafted and signed the 3 July 2009 letter, which incorrectly advised that the purchase of the property in Kaleen was settled on 19 June 2009. The appellant also states that Ms Davies would be able to confirm that Mr Z was the locum in the appellant’s practice on the day that the letter was sent.
Although the practitioner’s ongoing misidentification of the author of the letter of 3 July 2009 was the subject of criticism by the ACAT, the letter writer’s identity was not a matter of substance for it. Merely identifying that Ms Davies wrote the 3 July 2009 letter would not be sufficient to produce a different outcome.
Under s 59 (1) of the Evidence Act 2011 (ACT),
Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.
In paragraph 5 of her affidavit, Ms Davies states that:
(a)3 July 2009 was the first day of Mr Z’s locum; and
(b)Mr Z was the solicitor on duty at the time.
As the respondents correctly identified, neither of these two statements are admissible.
Once this has been taken into account, the remnants of Ms Davies’ affidavit merely places Mr Z in the office on 3 July 2009, a matter that is in accordance with the ACAT’s original findings.
Conclusion
It may be accepted that the practitioner was not aware of the need to call evidence from Ms Davies until the hearing in the ACAT had already begun. However, this evidence would almost certainly have been available to the practitioner prior to the hearing if he had made appropriate enquiries. During cross examination, the practitioner stated that he was ultimately able to identify the author of the letter because one of his employees recognised Ms Davies’ signature. In a circumstance where an unidentified employee was responsible for drafting a letter that was a point of contention in the ACAT proceedings, asking his employees if they recognised the signature is an obvious step that was readily available to the practitioner prior to trial.
Neither the identity of the letter writer nor Mr Z’s presence in the appellant’s office on 3 July 2009 were matters of contention. As a result, there is neither a high likelihood of a different result, nor an insistent interest of justice that would require the Court to exercise its discretion to receive this evidence.
The proposed affidavits of Mr Christopher Boyd and Mr Z
Could Mr Boyd’s evidence have been obtained with reasonable diligence for use at the trial?
The practitioner submitted that “once [he] indicated his intention to tender evidence from Mr Z and Mr Boyd, ACAT was required by statute to receive that evidence.” In particular he points to s 56 (1) of the Evidence Act 2011 (ACT), which provides that evidence that is relevant in a proceeding is admissible in those proceedings. He asserted that the ACAT fell into error by failing to admit these two affidavits. I deal with those asserted errors later in these reasons, but it is still necessary to give reasons for refusing to allow the practitioner to rely upon these affidavits in the present appeal.
Mr Boyd is an accredited conveyancing specialist whose evidence was not only available for use at the trial, but was incorporated into a joint experts report. The Tribunal did not refuse to admit the affidavit of Mr Boyd; rather, it held that his affidavit had been superseded by the joint expert report.
Is there a high degree of probability that there would be a different verdict if Mr Boyd’s evidence were adduced?
In his affidavit of 1 October 2013, the practitioner asserted his desire for Mr Boyd to adduce evidence on matters that were not covered by this joint expert report. He does not indicate what these matters are. Other than stating that Mr Boyd’s evidence is relevant to Grounds 1 to 3 of the complaint, the practitioner does not specify how this proposed evidence would result in a high probability of producing a different verdict, particularly since the bulk of Mr Boyd’s evidence had already been admitted as part of the joint experts’ report.
Could Mr Z’s evidence have been obtained with reasonable diligence for use at the trial?
The practitioner sought to rely upon an affidavit from Mr Z that was sworn on 7 November 2011, although, in his written submissions on this appeal, the practitioner asserted that the affidavit was not executed until approximately 19 November 2011. The taking of evidence in the ACAT finished on 10 November 2011. The practitioner applied to reopen his case in the ACAT to read this affidavit on 13 February 2012, the date appointed for the hearing of oral closing submissions.
In his affidavit of 1 October 2013, the practitioner stated that he attempted to issue a subpoena to Mr Z during the hearing, but it failed. The practitioner’s affidavit did not provide any explanation as to why he was unable to secure Mr Z’s evidence prior to the hearing.
When questioned by the respondent during cross-examination, the practitioner agreed that there was nothing stopping him from issuing a subpoena to Mr Z prior to the hearing. He also agreed that he told the ACAT on 13 February 2012 that he had prepared a subpoena for Mr Z, but that he did not want to subpoena a fellow practitioner.
Given that Mr Z swore his affidavit on 7 November 2011, it appears that the practitioner had time in the period leading up to the hearing to make arrangements to ensure Mr Z was able to attend the ACAT hearing. This, in combination with the practitioner’s statements under cross examination, indicate that the decision not to present evidence from Mr Z until the hearing was well underway was a deliberate decision made by the practitioner. For these reasons, I was satisfied that it is likely that the practitioner could have obtained Mr Z’s evidence with reasonable diligence for use at the hearing.
Is there a high degree of probability that there would be a different verdict if Mr Z’s evidence were adduced?
The practitioner sought to adduce the evidence of Mr Z to demonstrate that he was the practitioner’s locum and was present working in the practitioner’s offices on 3 July 2009. The purpose of adducing this evidence was to suggest that the practitioner was not responsible for the letter of 3 July 2009, as Mr Z has taken over responsibility of conducting the practice at that time. The affidavit affirmed by Mr Z, however, does not go that far. Whilst Mr Z says that he was present at the practitioner’s offices on 3 July 2009, he does not attest to having sole responsibility for the conduct and administration of the firm on that day. There was evidence, including evidence from the practitioner himself, that he was in his office working for at least part of the day on 3 July 2009. The important question was not whether Mr Z was present and working in the practitioner’s offices on that day, but whether he had assumed sole responsibility for conducting the practice. In his affidavit, Mr Z makes no such claim, which is unsurprising given that the written locum agreement, which is dated 3 July 2009, provided for Mr Z to commence his locum duties, involving professional responsibility for the firm, from 6 July 2009.
I was not satisfied that the evidence of Mr Z was such that, if received, it could result in a different outcome in these proceedings.
Miscellaneous documents
The balance of the material that the practitioner sought to tender on this appeal was documents that were rejected by the ACAT. In neither the practitioner’s affidavit of 9 December 2014, which identified the further evidence the practitioner would seek to tender on the appeal, or the practitioner’s written submissions, did the practitioner identify the relevance of these documents, or how they would be likely to result in a different outcome on this appeal. The most significant document, in my opinion, is a letter dated 16 June 2011, written, quite improperly, to the General President of the ACAT and headed “Private and Confidential”, in which the practitioner objected to the Society’s notice to produce his passport. The practitioner, however, is in error in suggesting that this letter was not before the ACAT; indeed, as noted by the Society, the practitioner was cross examined on the letter and it was the subject of express findings by the ACAT.
Even if one accepts that these miscellaneous documents are, in some way, peripherally relevant, I was satisfied that there was no prospect that the reception of this material would result in a different outcome to this appeal.
Consideration
I will now consider the grounds of appeal raised by the practitioner. I note that Ground 13 was not pressed by the appellant in his written submissions.
Grounds of Appeal 1 and 3
It is convenient to consider these grounds together, as they both alleged error on the part of the ACAT by failing to receive evidence.
These grounds of appeal were based upon the proposition that the provisions of s 56 (1) of the Evidence Act required the ACAT to receive the material once it was established that it was relevant to a fact in issue in the proceedings, unless one of the exclusionary provisions of the Evidence Act applied. The practitioner submitted that, as none of the exclusionary provisions of the Evidence Act were referred to by the ACAT, there was a statutory obligation on the ACAT to receive the evidence. In my opinion, there is no merit to this submission. If the practitioner is correct, a party to litigation could utterly ignore directions given by a court or tribunal concerning the filing and service of evidence, and tender evidence at any time during proceedings, even if the taking of evidence has been completed, so long as the evidence sought to be adduced is in some way relevant. The practitioner did not attempt to read the affidavit of Mr Z until he was in the process of making final submissions to the ACAT. The ACAT quite correctly saw this as an application by the practitioner to reopen his case. It applied conventional principles to the application and refused it. In any event, as I have noted above, the contents of that affidavit do not establish that the practitioner was not present at, and in charge of, his firm on 3 July 2009. The practitioner has not demonstrated any error by the ACAT in refusing him leave to reopen his case and read the affidavit of Mr Z.
The practitioner also did not attempt to tender the tax invoices from his firm said to have been created on 19 June 2009 and 28 June 2009 until he was in the process of making final submissions to the ACAT. I use the expression “said to have been created” because the documents produced to this Court by the practitioner are in fact dated 24 June 2009 and 30 June 2009 respectively. Each of the documents produced by the practitioner to this Court has written upon it, in handwriting, that it was created at the earlier date. I presume that the handwriting is that of the practitioner. I must confess that the relevance of these documents eludes me. In his written submissions on this appeal, the practitioner does not explain how these documents are relevant, and how they would have been likely to have made any difference to the outcome of the proceedings before the ACAT. The practitioner has not demonstrated any error on the part of the ACAT in refusing him leave to reopen his case and tender these documents.
The same is true with respect to the other miscellaneous documents referred to in Ground 1 of the grounds of appeal.
The practitioner complained that the ACAT erred by refusing him leave to reopen his case and to rely upon the affidavit of one of the experts, Mr Boyd. Each of the parties in the ACAT obtained a report from an expert concerning conveyancing practice and the adequacy of the professional conduct of the practitioner with respect to the transactions in which he was instructed. At the behest of the ACAT, and with the consent of the parties, the experts produced a joint report noting where there were areas of agreement and areas of disagreement between them. In the context of the reception of that report by the ACAT, counsel for the Society made it clear that he did not require Mr Boyd for cross-examination. The practitioner, curiously, said that he required his own expert, Mr Boyd, to attend to give evidence. Objection was taken to this course by the Society on the basis that the experts had produced a joint report. The issue was not pressed by the practitioner at that time, and he made no attempt to read the affidavit of Mr Boyd. In the course of making his closing submissions, the practitioner referred to the contents of the affidavit of Mr Boyd. It was, at that time, pointed out to the practitioner that the affidavit of Mr Boyd was not in evidence before the ACAT. The practitioner asserted that he believed that Mr Boyd’s affidavit was part of the evidence before the ACAT because he had filed it in the ACAT registry. It is difficult to believe that a legal practitioner would not understand the difference between filing a document in the registry of a court or tribunal, and placing that document (or its contents) before the court or tribunal as evidence. The first is simply an administrative step which is not part of the hearing. The hearing is for the purpose of taking evidence, and determining what evidence is relevant and admissible. The filing of a document in the registry is not the equivalent of tendering the document at the hearing; it simply ensures that the document is available to be tendered (or, more commonly in the case of an affidavit, read).
If there are any significant differences between the contents of the affidavit of Mr Boyd and the contents of the joint experts report, they are generally explicable based on the difference between the exercises being undertaken by the experts at different times. Mr Boyd prepared his affidavit based upon information provided to him by the practitioner, and expressed opinions based upon that information. In the joint report, the experts expressed general propositions of conveyancing practice, particularly with respect to who would have responsibility for discharge of the mortgage over the Lyneham property. To the extent that there is a difference of substance between the opinion expressed by Mr Boyd in his affidavit concerning the adequacy of any statutory declaration prepared by the practitioner’s firm for the purposes of obtaining discounted stamp duty on the transfer of the Lyneham property into the complainant’s joint names, and that expressed by him in the joint report, this clearly reflects a change of opinion by Mr Boyd. It was not open to the practitioner to call Mr Boyd to cross-examine him with a view to having him retract the opinions expressed in the joint report. It is not clear what other purpose there could have been for the practitioner to want to question Mr Boyd.
The affidavit of Mr Boyd was directed towards identifying aspects of conveyancing practice that may have, or should have, directed the actions of the practitioner in acting pursuant to his retainers. He expressed the opinion that an incoming mortgagee will often prefer to prepare the discharge of mortgage; this was not the subject of dispute in the joint experts’ report. He also expressed the opinion that there were adequate circumstances revealed on the practitioner’s file to justify the practitioner in concluding that the Commonwealth Bank would prepare the discharge of mortgage for the Lyneham property. The other expert did not share this opinion, but Mr Boyd’s opinion was nevertheless expressed in the joint report. Both experts agreed that there was no convention that the incoming mortgagee would be responsible for preparing the discharge, and that a prudent lawyer would confirm whether the incoming mortgagee was preparing the discharge. This was the crux of the matter. The practitioner had undertaken to his clients that he would attend to the discharge of the mortgage as part of his retainer. His professional obligations did not extend to carrying out that work personally, but he did have an obligation to confirm that the incoming mortgagee was taking responsibilities for it, and, if not, to prepare the discharge himself. This is the gravamen of the allegation against him, namely that he did not take the necessary steps to confirm that the Commonwealth Bank was taking responsibility for the preparing the discharge, but simply assumed that was the case. To the extent that the ACAT did not accept that the practitioner was entitled to make the assumption, it did not accept the evidence of Mr Boyd as set out in the joint report.
The practitioner has not demonstrated any error on the part of the ACAT concerning its reception of the joint expert report and its refusal to allow the practitioner to reopen his case and read the affidavit of Mr Boyd. Similarly, to the extent that there was a refusal by the ACAT to allow the practitioner to question Mr Boyd, the practitioner has not demonstrated any error on the part of the ACAT.
Grounds 1 and 3 of the appeal are unsuccessful.
Ground 2
The practitioner alleged that the ACAT erred by limiting the use of his affidavit affirmed 30 June 2011 as evidence of his state of mind only. This ground is misconceived. It is very clear from a reading of the transcript of the proceedings in the ACAT that there were a number of objections raised by the Society to the contents of the practitioner’s affidavit. Examination of the affidavit in question reveals that much of the material is clearly inadmissible as hearsay, speculation, opinion and comment. As the ACAT noted, it would have been a time-consuming task to deal with all of the objections to the contents of the affidavit taken by the Society. The ACAT proposed a sensible course of receiving all of the material in the affidavit, but where material was otherwise inadmissible it would be received for the limited purpose of establishing the practitioner’s state of mind with respect to that particular matter. There can be no question of prejudice to the practitioner as a consequence of the ACAT adopting this approach; indeed, it was an approach favourable to the practitioner and constituted an indulgence by the ACAT in his favour. No error has been demonstrated by the practitioner with respect to the approach adopted by the ACAT to the reception of this affidavit.
This ground of appeal must fail.
Ground 4
In this ground, the practitioner complained that the ACAT erred in finding that he had deliberately delayed the production of his passport to the Society, when he had in fact sought directions from the ACAT regarding the provision of pages from the passport. I am satisfied that there is no merit in this complaint. It was open to the ACAT to find that the course adopted by the practitioner concerning the requirement to produce his passport demonstrated a reluctance to produce the appropriate material in circumstances where he was well aware that the contents of the passport would not support the proposition that he was overseas on 3 July 2009. In any event, the practitioner’s reluctance to provide the relevant documents was not a significant issue in the ACAT’s reasoning process with respect to Particular 4.2. The attempt to mislead the ACAT alleged in this particular was his evidence in the ACAT adopting his earlier statement in his letter of 18 August 2009 to the Society that he was “not in the country” on 3 July 2009. The reluctance of the practitioner, or otherwise, to produce his passport did not feature prominently in the reasoning of the ACAT that the practitioner had attempted to mislead the ACAT.
It is clear that the practitioner was aware of the contents of his passport. In his letter to the ACAT on 16 June 2011 agreeing to provide the relevant pages of his passport to the Society, the practitioner said that the pages prove that he “travelled overseas during early July 2009, a fact I have stated previously”. The practitioner, of course, in his letter of 18 August 2009 to the Society, did not state that he travelled overseas in early July 2009, but stated that he was “out of the country” on 3 July 2009. He now accepts that he was in Australia on that day, and in fact was in his office. The ACAT was entitled to find that the practitioner, in his dealings with it and the Society, was attempting to “prevaricate both as to the facts and as to how he... characterised them”.
Ground of Appeal 5
The practitioner’s father died on 1 July 2009. The practitioner complained that the ACAT fell into error by finding that his distressed state of mind would have likely eased by 3 July 2009. In his written submissions, the practitioner described this “finding” as callous, stating that it should not have been made. It is important to consider precisely what was said by the ACAT, and the context in which the statement was made. The ACAT said, at [90]:
The Tribunal thus finds itself, in respect of the evidence it must assess and the submissions it must consider in relation to the Practitioner’s case in the position of having virtually no evidence before it in support of the Practitioner’s case, and written and oral submissions, which were not particularly helpful for the reasons set out above. However, the Tribunal considered with some care and indeed sympathy, the evidence from the Practitioner as to his state of mind as at early July 2009. His father had just died and he gave evidence, which the Tribunal accepted that he was extremely close to his father and very distressed that he could not be at his dying father’s bedside. However, the Practitioner’s evidence also revealed that the urgency to see and comfort his father before he died had passed by 3 July 2009 and the earlier distressed state of mind of the Practitioner before his father died, one might reasonably infer, had likely eased by 3 July 2009 as his father had died some days prior to that. That, in the view of the Tribunal, is further evidenced by the fact that the Practitioner did not arrive in the overseas country until 8 July.
The above passage is found in a portion of the decision of the ACAT in which it considered the demeanour and credit of the practitioner as revealed by his conduct during the course of the hearing. The ACAT observed that much of the evidence and of the submissions by the practitioner at the hearing were not particularly helpful. It then went on to say that, in considering the practitioner’s evidence of what occurred on 3 July 2009, it took into account the fact that the practitioner’s father had only recently died and that he was distressed. The practitioner gave evidence that, in the days leading up to his father’s death, he had been “desperately trying” to arrange to travel to be with his father before he died, but because of work commitments he was unable to go. The comments of the ACAT set out above are based on nothing more than the proposition that by 3 July 2009 the desperate need of the practitioner to travel to the overseas country where his father had been living in order to be with his father before he died had passed. There is nothing particularly remarkable about this observation by the ACAT.
In any event, the practitioner has not demonstrated that this conclusion by the ACAT had any effect on any ultimate finding of fact it made. As the Society observed, the conclusion of the ACAT objected to by the practitioner could not be relevant to the finding that the practitioner misled the Society some six weeks later, or that he misled the ACAT at an even later time.
This ground of appeal fails.
Ground of Appeal 6
In this ground, the practitioner complains that the ACAT erred by finding that he did not properly supervise his staff. Particular 2.1 of the application alleged that the practitioner had breached r 36.1 of the Rules by failing to ensure that his practice was efficiently and properly administered to deliver the legal services for which he had been retained. The Society submitted before the ACAT that any breach alleged in Ground 1 of the application found proved by the ACAT also evidenced a breach of r 36.1. The ACAT accepted that submission. With respect to the letter of 3 July 2009, the ACAT said, “[the practitioner] rightly characterised the errors as “inexcusable””. It then went on to say at [126] to [127]:
If, as he claimed, he did not see the letter, then he plainly failed to organise his practice so as to ensure that the author accurately drafted what was an important letter in an important context.
Likewise, the failures with respect to the relatively straightforward matters of attending properly to the stamp duty exemption and the mortgage refinance evidence were the same failure to comply with rule 36.1.
In his written submissions on appeal, the practitioner complained that the ACAT had ignored or wrongly failed to receive file notes produced by the staff of the practitioner. Other than making this bold assertion, the practitioner did not attempt to take me to any of the file notes to demonstrate how the contents of the notes were inconsistent with the findings of the ACAT. It is clear from the reasons of the ACAT that it took into account the contents of the file notes that were in evidence before it; for example, the ACAT noted that the file note dated 10 June 2009 (see [24] above) revealed that the practitioner simply did not know, as at that date, who was responsible for preparing the discharge of the mortgage over the Lyneham property. I have carefully considered the file notes that were in evidence before the ACAT, and the file notes the practitioner sought to tender as further evidence on this appeal, and, in my opinion, they do not establish error on the part of the ACAT.
The practitioner made a further bold assertion in his written submissions on appeal that, in his affidavit material before the ACAT, he gave evidence as to the nature and extent of work carried out by his staff, and attested to the steps he took in attempting to carry out his instructions regarding the conveyances in question. He did not, however, make any reference to the evidence before the ACAT on this issue, or to the reasons of the ACAT. Simply asserting that there was such evidence before the ACAT does not establish error on its part. The ACAT was entitled to infer from the proven litany of errors committed by the practitioner or his firm that the practitioner’s firm was not efficiently and properly administered.
In his written submissions on appeal, the practitioner also asserted that he had “employed two experienced conveyancing clerks” who had carried out a very considerable number of conveyances under his supervision. This submission also did not refer to any evidence before the ACAT concerning the experience of the conveyancing clerks employed by the practitioner, or to any finding of the ACAT.
Finally, the practitioner submitted that, even if his standard of supervision of his staff fell short of what was required, it did not follow that he therefore committed an act of professional misconduct. This submission is misguided. It was not alleged by the Society that any breach of r 36.1 of the Rules by the practitioner amounted to professional misconduct. In addition, the ACAT made no finding of professional misconduct against of the practitioner based upon its finding that he had breached r 36.1. The ACAT made findings of fact with respect to Grounds 1 and 2 of the application and determined that the established conduct of the practitioner with respect to both of these grounds, considered together, constituted unsatisfactory professional conduct.
The practitioner has not demonstrated any error on the part of the ACAT with respect to this ground of appeal. This ground of appeal fails.
Grounds of Appeal 7 and 12
Ground 7 alleged that the ACAT erred by finding that the appellant had recklessly or deliberately misled the Society as to his whereabouts on 3 July 2009. Ground 12 alleged that the ACAT erred by finding that the appellant failed in his duty to be open and frank with the Society. It is convenient to deal with these grounds together.
In his written submissions on appeal, the practitioner did not dispute that his initial letter to the Society on 18 August 2009 was incorrect in stating that he was not in Australia on 3 July 2009, but argued that it was open “for the Court” (presumably this Court) to find that this was an innocent error which would not have occurred if not for the impact of his father’s illness and death. To the extent that the submission of the practitioner is that it is open to this Court to make a different finding to that of the ACAT, it misconceives the nature of an appeal by rehearing. The obligation cast upon the practitioner is to demonstrate error on the part of the ACAT. To say that a different finding to that made by the ACAT was available to it is not to demonstrate error of a relevant kind. Where there is a challenge to a finding of fact, the practitioner must demonstrate that the impugned finding was “glaringly improbable” or “contrary to compelling inferences”: Fox v Percy (2003) 214 CLR 118 at [28] – [29].
In his written submissions, the practitioner said that, in his letter of 18 August 2009, he had written that he had departed Australia on 3 July 2009. This is incorrect. What the practitioner said in his letter was that “During this period the writer was not in the country”, thereby representing that he was not in Australia on 3 July 2009. This statement was clearly false. The question which the ACAT had to consider was whether this was an innocent mistake, as claimed by the practitioner, or whether it was an attempt by him to mislead the Society and to place the blame for the errors in the letter of 3 July 2009 on someone else. There was ample evidence upon which the ACAT was entitled to conclude that it was an attempt by the practitioner to mislead the Society. The letter written by the practitioner to the Society was written in the context of a complaint against him. It may be inferred from that fact that the practitioner was aware of the need to accurately state the relevant facts in his letter. The practitioner had a number of documents available to him to assist him in that regard. He had his passport, which demonstrated that he did not arrive in the overseas country until 8 July 2009. More importantly, he had a copy of the locum agreement, which was signed on 3 July 2009 and was expressed to come into effect on 6 July 2009. The practitioner presumably also had access to documents concerning his travel in July 2009. It was not surprising, in this context, that the ACAT rejected the practitioner’s submission that his statement was an innocent error. Certainly, no relevant error on the part of the ACAT has been demonstrated by the practitioner.
These grounds of appeal must fail.
Ground of Appeal 8
This ground of appeal alleges that the ACAT erred by failing to find that the practitioner had filed a transfer document with the office of ACT Revenue on 9 June 2009. I have set out at [21] above the findings of the ACAT concerning the timing of the lodgement of the transfer and supporting documentation in the Office of ACT Revenue. The reasons given by the ACAT for rejecting the proposition that an attempt may have been made to lodge the transfer documents on 9 June 2009 are compelling. In his written submissions on the appeal, the practitioner asserts that he gave evidence that he had arranged to file a transfer document with ACT Revenue on 9 June 2009, and that this is supported by evidence from the female complainant that she and her husband had been contacted to “redo” the statutory declaration, and also by evidence from a former employee of the practitioner, Lisa Furlong. He also submitted that the affidavit of Ms Sun of 3 February 2014 also supported this assertion.
The practitioner provided no reference in his written submissions to any evidence he gave before the ACAT to the effect that he had arranged to file a transfer document on 9 June 2009. I note there is no mention of such an assertion in the practitioner’s letters to the Society dated 18 August 2009, 8 September 2009 and 8 October 2010. There is no mention of any such assertion in his affidavits sworn 2 February 2011 and 30 June 2011, although there is a reference in the annexures to the latter affidavit to a file note that a statutory declaration had been filed at the offices of ACT Revenue on 9 June 2009. I have been unable to identify any other evidence given by the practitioner to the effect that he arranged for a transfer document to be lodged with ACT Revenue on 9 June 2009.
The evidence given by Ms Furlong did not assist the practitioner. Ms Furlong was a very inexperienced clerk working in the practitioner’s office in June 2009; she only commenced working there on 15 June 2009. She was taken to a file note which stated “Re-submited (sic) stat dec on (Note: in the file note, “22/06/09” is crossed out) 23/06/09”, and she agreed that it was her handwriting. She went on to say that she had written the note in the form it was because another member of staff, “Carly”, told her to write it. It was clear from the evidence of Ms Furlong that she had no personal knowledge of any supposed attempt to lodge transfer documents on 9 June 2009 (she was not even employed by the practitioner at that time) and referred to the statutory declaration as being re-submitted in the file note as that was what she was told to write.
In her evidence, the female complainant did refer to having to “redo” the statutory declaration, but this evidence does not assist the practitioner in establishing that a transfer document had been lodged on 9 June 2009. There was evidence accepted by the practitioner that the complainants initially signed a statutory declaration for the purposes of stamp duty exemption on 3 June 2009, but the practitioner cancelled this declaration because of a witnessing defect by the practitioner himself. The second statutory declaration is dated 5 June 2009 and is clearly the statutory declaration referred to by the female complainant in her evidence. The evidence, therefore, does not support a proposition that some attempt to lodge the transfer documents had been made prior to 5 June 2009 and that they had been lost by the Revenue Office; nor does it support a proposition that the practitioner had arranged for transfer documents to be lodged on 9 June 2009.
For the reasons set out at [43] – [49] above, the affidavit of Ms Sun, which the practitioner sought to adduce on this appeal, would not have assisted the practitioner.
In any event, even if there had been an attempt to lodge transfer documents with the ACT Revenue Office on 9 June 2009, the ACAT found that the statutory declaration prepared by the practitioner and signed by the complainants was deficient.
The practitioner has not demonstrated any error on the part of the ACAT and this ground of appeal must fail.
Ground of Appeal 9
In this ground of appeal, the practitioner complains that the ACAT erred by not finding that the Commonwealth Bank, Bank West and the ACT Revenue Office had contributed to the delay in the conveyance. In his written submission on appeal, the practitioner appears to suggest that he had an expectation that the incoming mortgagee (the Commonwealth Bank) would arrange for the discharge of the outgoing mortgagee’s (Bank West) mortgage. In support of this proposition, the practitioner quoted from the affidavit of Mr Boyd, which, of course, was not in evidence before the ACAT. After quoting from that affidavit, the practitioner submitted: “From the above, it is clear that at least in Mr Boyd’s expert opinion, the appellant was entitled to expect that the Commonwealth Bank would attend promptly to its responsibilities. It only became incumbent upon the appellant to take further action once it became clear that the Commonwealth Bank had failed to meet that expectation”.
It is important to recognise that, in his affidavit, Mr Boyd did not suggest that it was clearly the responsibility of the incoming mortgagee to discharge the mortgage of the outgoing mortgagee. What Mr Boyd said was that, in his experience, it was not unusual for that to occur. He then stated that a solicitor who has been informed that an incoming mortgagee had requested the form of discharge would not have a further duty to request a discharge from the outgoing mortgagee. Mr Boyd then expressed the opinion that the practitioner had sufficient confirmation that the Commonwealth Bank had taken responsibility to arrange the discharge of the outgoing mortgage so as to relieve him of the obligation to prepare the discharge. Mr Boyd essentially maintained these opinions in the joint expert report.
The difficulty for the practitioner is that the file notes before the ACAT reveal that he and his staff did not know, as late as 10 June 2009, whether the Commonwealth Bank was preparing the discharge. The ACAT also noted the lack of any written confirmation from the Commonwealth Bank that it was attending to the discharge. I note for completeness that there were no file notes of any conversation between staff of the practitioner and staff of the Commonwealth Bank clearly indicating that the Bank was to be responsible for preparing the discharge. The ACAT found that the practitioner should have taken control of the discharge and ensured that it was prepared In the absence of a clear assumption of the responsibility for preparing the discharge by the Bank, the practitioner’s professional obligation to his clients was to prepare the discharge himself. This is consistent with the view expressed by the experts in their joint report.
The submissions advanced by the appellate on appeal are, in any event, misconceived because of the nature of the allegation in Ground 3.1 of the disciplinary application. That ground, in essence, alleges that the practitioner wrongly blamed the Revenue Office and the banks for the delay in the settlement when, in truth, that delay was caused by his own failure to arrange for the stamping of the transfer document in a timely manner. It is obvious that no settlement could occur until the transfer was duly stamped. It was not until 26 June 2009 that the female complainant personally addressed the requirements of the Revenue Office to allow the transfer to be stamped. Settlement occurred only four days later.
The practitioner has not demonstrated any relevant error by the ACAT and this ground of appeal must fail.
Ground of Appeal 10
The practitioner alleges that the ACAT erred by finding that, if he had misled the Society recklessly rather than deliberately, his conduct would nonetheless amount to professional misconduct. In his written submissions on appeal, the practitioner said that the ACAT held that he had misled the Society either deliberately or recklessly, but that the reasons did not differentiate between the two. He submitted that there is a significant difference between deliberately misleading and recklessly misleading the Society. In my opinion, there is no merit in this submission. It is apparent from the reasons of the ACAT, at [156], that the primary finding was that the practitioner deliberately misled the Society. The ACAT then went on to say that, in the alternative, he was reckless “at the very least”. Whilst there is a difference between recklessly and deliberately misleading, the Tribunal was correct, in these circumstances, to conclude that recklessly misleading the Society, and recklessly giving false evidence in an attempt to mislead the Tribunal, would nonetheless justify a finding of professional misconduct.
This ground of appeal fails.
Ground of Appeal 11
The practitioner alleges that the ACAT fell into error by taking into account the manner in which the practitioner conducted his defence before the Tribunal in determining liability. In his written submissions, the practitioner refers to the ACAT’s criticism of his conduct in the reasons for decision, describing it as “extraordinarily critical” and “gratuitous”. The practitioner submits that, even if those criticisms were “accepted as true, it was neither necessary nor appropriate for the Tribunal to make such comments in its reasons”.
It is not clear to me that the ACAT in fact took into account the way in which the practitioner conducted his defence when determining liability. At [43] of the reasons, the ACAT qualified their observations and comments relating to the practitioner’s conduct during the proceedings as such:
The Tribunal’s observations and comments above and ones that follow in these respects are relevant and warranted. While the Tribunal has approached its difficult task of assessing all the evidence and the comprehensive written and oral submissions made by both parties in a purely objective and impartial manner, the behaviour of the Practitioner throughout these proceedings was very often inconsistent with his professional duty to cooperate reasonably in the process and avoid an unduly combative approach.
It is not unusual in disciplinary proceedings for the ACAT to comment on the conduct and attitude of the legal practitioner subject to the proceedings. Indeed, the practitioner correctly concedes that such a consideration is relevant when determining an appropriate penalty. The fact that the ACAT noted their concern about the practitioner’s conduct in proceedings in the judgment on liability merely gave the practitioner an opportunity to address those concerns at the later penalty hearing.
The determinations made regarding liability are clearly based on the evidence that was before the Tribunal and not reliant upon any finding as to the practitioner’s conduct in the running of his defence. This ground of appeal fails.
Grounds of Appeal 14 and 16
Ground 14 alleges that the ACAT fell into error by failing to afford adequate weight to the character references tendered in support of the practitioner. Ground 16 alleges that the ACAT fell into error by ruling that a previous disciplinary proceeding subject to a pending appeal could properly be taken into consideration adverse to the practitioner in determining penalty. It is convenient to deal with these grounds together.
In his written submissions, the practitioner alleges that the ACAT refers in its judgment to the practitioner’s appeal from a separate decision of the ACAT, which challenges the ACAT’s findings in respect of the practitioner’s conduct. The practitioner alleges that the ACAT determined that the practitioner’s decision to challenge those findings as to his conduct “does not sit comfortably” with the practitioner’s expressions of remorse for that very same conduct. The practitioner further alleges that it is for this reason that the ACAT assigned “little weight” to his character references. The practitioner submits that this amounts to “penalising the appellant for exercising his right to appeal an unrelated proceeding”, is “grossly improper” and “fundamentally undermines the integrity of the appeal process”.
This demonstrates a misunderstanding of the ACAT’s reasons. In the penalty hearing before the ACAT, the practitioner filed a number of letters from persons purporting to give character references as well as newspaper clippings and other material in support of the practitioner. The ACAT noted those references, however, it noted that only one character referee acknowledged the two Tribunal decisions on liability. Plainly, the fact that the other character referees failed to acknowledge both decisions in their reports renders their references “of little weight”, as they are clearly not comprehensive or fully informed opinions of the practitioner’s character.
As to the referee who did acknowledge both Tribunal decisions, the report had some concerning internal inconsistencies. On the one hand, the referee notes that the practitioner was “remorseful in respect of his conduct giving rise to” matters subject to the separate proceedings, but on the other hand, also “rejects and challenges” each of the findings relating to the same conduct for which the practitioner apparently expresses remorse. These positions are clearly inconsistent and irreconcilable. It is unremarkable that the ACAT could not give significant weight to this character reference.
For completeness, I also note that a complaint of a failure to afford “adequate weight” to a discretionary factor does not demonstrate an error of the kind recognised in House v the King (1936) 55 CLR 499 at 504 – 505.
This ground of appeal fails.
Ground of Appeal 15
Ground 15 alleges that the ACAT fell into error by failing to afford adequate weight to the practitioner’s evidence of the loss of his practice and financial hardship. In his written submissions, the practitioner submits that the Society’s refusal to issue him with a practising certificate “in the absence of a judicial finding to the effect that a practitioner is no longer fit for practice” constitutes “extra-curial punishment”. The practitioner also submits that the consequential financial hardship caused by the loss of his practice exacerbated the “strain and difficulty already associated with such proceedings”. The practitioner submits that these factors should have been taken into consideration in determining an appropriate penalty.
Again, I note that the same defect referred to above at [118] is also found in this Ground.
The fact is, once the Tribunal had concluded that the practitioner was not fit and proper to remain on the roll of practitioners, the inevitable outcome was an order recommending the removal of the respondent’s name from the roll. This outcome would be unchanged regardless of how much weight the ACAT gave to the practitioner’s financial hardship and the loss of his practice.
Despite this, it is clear that the ACAT did acknowledge the hardship suffered by the practitioner. Indeed, the reasons for the ACAT’s decision on penalty contains an entire section headed “Loss and Hardship suffered by the [practitioner]”. Whilst acknowledging that, “strictly speaking”, the loss and embarrassment suffered by a lawyer as a result of their own wrongdoing is not relevant in determining a penalty, the ACAT notes that the Society’s refusal to issue the practitioner with a practising certificate would have caused the practitioner significant financial loss and embarrassment. However, the ACAT also concludes that the very serious nature of the findings against the practitioner meant that such considerations could not be given very significant weight. The practitioner has not demonstrated any error in this approach.
This ground of appeal must also fail.
Orders
The practitioner’s appeal is dismissed.
Unless either party seeks a different order within 14 days, the practitioner is to pay the respondents’ costs of the appeal.
| I certify that the preceding one-hundred-and-twenty-six [126] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 5 November 2015 |
3
6
5