Legal Practitioner v Council of the Law Society of the Australian Capital Territory - [2014] ACTSC 13

LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY
OF THE AUSTRALIAN CAPITAL TERRITORY
[2014] ACTSC 13 (21 February 2014)

APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal from the ACT Civil and Administrative Tribunal – Appeal referred to Supreme Court from the ACT Civil and Administrative Tribunal
APPEAL AND NEW TRIAL – In General and Right of Appeal – Legal Practitioner – Misleading and deceptive conduct constituting professional misconduct – Appeal against finding of professional misconduct – The fact that the Court was misled only for a short period is not an answer to a complaint of misleading the Court – Practitioner attempted to knowingly mislead the Court into thinking he had been instructed in a matter where he would have known he did not have instructions – Appeal dismissed
APPEAL AND NEW TRIAL – Excessive or Inadequate Penalty – Whether removal from the Roll is a harsh and excessive penalty – Whether the ACT Civil and Administrative Tribunal should have imposed a separate penalty for each finding of professional misconduct – No requirement for the ACT Civil and Administrative Tribunal should impose a separate penalty on each ground of the complaint that it upholds – There was one complaint with multiple particulars – One penalty can be imposed where there are particulars – Removal from Roll required.
APPEAL AND NEW TRIAL – Excessive or Inadequate Penalty – Whether removal from the Roll is a harsh and excessive penalty – Whether mitigating circumstances were sufficiently taken into account – Inexperience does not ameliorate the seriousness of a practitioner’s lack of understanding about a lawyer’s duties – Dishonesty is not a defect related to inexperience – In this instance the lapse showed a pattern of behaviour in that the practitioner attempted to cover his behaviour by lying to the Law Society
EVIDENCE – Generally – Disciplinary proceedings – Burden of Proof – Civil burden of proof to apply to the proceedings
EVIDENCE – Civil and Administrative Tribunal entitled to draw Jones v Dunkel inference from Practitioner not giving evidence in proceedings against him
PROFESSIONS AND TRADES – Lawyers – Disciplinary proceedings – Duties of participation by lawyer

Administrative Appeals Tribunal Act 2008 (ACT), ss 79, 81
Evidence Act 2011 (ACT), s 136
Legal Profession Act 2006 (ACT), ss, 27, 419, 425, 433(1)
Magistrates Court Act 1930 (ACT), s 216

Legal Profession (Solicitors) Rules 2007 (ACT), r 39.1

J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996) looseleaf (service 163)

Adler v Australian Securities and Investment Commission (2003) 46 ACSR 504
Adamson v Queensland Law Society Inc [1990] 1 Qd R 498
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Attorney-General v Bax [1999] 2 Qd R 9
Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236
Australian Securities and Investment Commission v Fortescue Metals Group Ltd (2009) 76 ACSR 506
Australian Securities and Investment Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364
Blundell v Leighton [2013] ACTCA 1
Briginshaw v Briginshaw (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148
Chamberlain v The Queen (No 1) (1983) 153 CLR 514
Coe v New South Wales Bar Association [2000] NSWCA 13
Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83
Council of the New South Wales Bar Association v Davison [2006] NSWSC 65
Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451
Council of the Queensland Law Society Inc v Whitman [2003] QCA 438
Council of the Queensland Law Society v Wright [2001] QCA 58
Crampton v The Queen (2000) 206 CLR 161
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Fingleton v The Queen (2005) 227 CLR 166
Foreman v Law Society of New South Wales (No 2) (1994) 34 NSWLR 408
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486
Giannarelli v The Queen (1983) 154 CLR 212
Gipp v The Queen (1998) 194 CLR 106
Guss v Law Institute of Victoria Ltd [2006] VSCA 88
House v King (1936) 55 CLR 499
In Re G Mayor Cooke (1889) 5 TLR 407
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Jones v Dunkel (1959) 101 CLR 298
Kerin v Legal Practitioners’ Complaints Committee (1996) 67 SASR 149
Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56
Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282
Law Society of New South Wales v Ciampa [1999] NSWADT 13
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Practitioners’ Complaints Committee v Trowell [2009] WASAT 42
New South Wales Bar Association v Meakes [2006] NSWCA 340
New South Wales Bar Association v Punch [2008] NSWADT 78
NSW Bar Association v Thomas (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Clarke JJA, 9 May 1989)
O’Donnell v Reichard [1975] VR 916
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
Re Fabricius and McLaren and Re Legal Practitioners Ordinance 1970 (1989) 91 ACTR 1 Rejfek v McElroy (1965) 112 CLR 517
R v Hook (1858) 169 ER 1138
Re Middle Harbour Investments Pty Ltd (in liq) (Unreported, New South Wales Court of Appeal, Moffit P, Mahoney and Glass JJA, 15 December 1976)
Re Nelson and the Legal Practitioners Act 1970 (1991) 106 ACTR 1
Re Newen; Carruthers v Newen [1903] 1 Ch 812
R v Richmond [1920] VLR 9
Re A Solicitor [1960] VR 617
Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWR 511
Smith v New South Wales Bar Association (1992) 176 CLR 256
Smith v Samuels (1976) 12 SASR 573
The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118
Thorpe v Legal Practitioners’ Complaints Committee [2007] WASCA 8
Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289
Vogt v Legal Practitioners’ Complaints Committee [2009] WASCA 202
Warren v Coombes (1979) 142 CLR 531
Xu v Council of the Law Society of New South Wales (2009) 236 FLR 480
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279

No. SCA 12 of 2012

Judge: Refshauge J
Supreme Court of the ACT

Date: 21 February 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCA 12 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

BETWEEN:LEGAL PRACTITIONER
APPELLANT

AND:COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
RESPONDENT

ORDER

Judge:  Refshauge J
Date:  21 February 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

The orders of the ACT Civil and Administrative Tribunal made on 19 October 2010 and on 23 August 2011 be confirmed.

The proceedings be remitted to the ACT Civil and Administrative Tribunal to give effect to its orders.

The Legal Practitioner pay the costs of the Council of the Law Society of the Australian Capital Territory.

The appellant, to whom I shall refer as “the Legal Practitioner”, was admitted as a legal practitioner of this Court on 10 November 2006 and issued with a restricted practising certificate on 16 November 2006.

On 28 July 2008, he entered the Magistrates Court during an application for bail by a defendant, who had been arrested and was in custody. I shall refer to the defendant as Ms V. Ms V had been charged with assault on her partner, to whom I shall refer as Mr G.

When the Legal Practitioner entered the courtroom during the hearing of the bail application, it was asserted that he announced to the court that he appeared for Ms V. After some discussion, the learned Magistrate refused to permit the Legal Practitioner to appear. Later, her Honour referred the matter to the Law Society of the Australian Capital Territory (the Law Society), which investigated this complaint

Following that investigation, the Council of the Law Society (the Council) applied to the ACT Civil and Administrative Tribunal (the ACAT) in relation to the complaint, under s 419 of the Legal Profession Act 2006 (ACT).

The complaint was that the Legal Practitioner, in purporting to act for Ms V on or about 28 July 2008, engaged in conduct that was misleading to the court and which would have placed the Legal Practitioner in a conflict of interest position and that the Legal Practitioner failed to comply with r 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) (the Solicitors Rules) and which failure was misleading and deceptive conduct.

The proceedings were heard by the ACAT on 19 June 2009. On 19 October 2010, the ACAT found that the Legal Practitioner had engaged in conduct that was misleading and deceptive and had breached r 39.1 of the Solicitors Rules and, that he was, as a consequence, guilty of professional misconduct.

On 23 August 2011, the ACAT recommended that the name of the Legal Practitioner be removed from the local roll, being the roll of people admitted to the legal profession under the Legal Profession Act, the roll being required to be kept by this Court under s 27 of that Act. I shall refer to this as the Roll.

On 20 September 2011, the Legal Practitioner commenced an appeal from the decisions of the ACAT. That appeal lay, under s 79 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (ACT) (the ACAT Act), to an appeal tribunal of the ACAT as constituted by s 81 of that Act.

On 22 September 2011, the Appeal President ordered that the appeal be removed to this Court. I have set out the relevant provisions and procedures for such removal in The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118. I do not need to repeat what I there said but rely on it in these reasons.

The Council’s complaint

The Application to the ACAT set out the complaint and the three grounds of the complaint as follows:

Complaint
The Society contends that the Respondent has, whilst purporting to act for [Ms V] on or about 28 July 2009, engaged in conduct which was misleading to the court, would have potentially placed the Respondent in a conflict of interest position, and, subsequently, the Respondent engaged in conduct in breach of Rule 39 of the Legal Profession (Solicitors) Rules 2007 as well as misleading and deceptive conduct.
The Society further contends that such conduct amounts to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal.
Legal Profession (Solicitors) Rules 2007
Rule 39.1 provides as follows:
“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.”

Grounds of Complaint
Ground 1
Misleading the Court
Particulars:
1.1The Respondent, deliberately or recklessly, misled the court when he appeared before Magistrate Doogan on 28 July 2009 purporting to act for Ms [V] on a bail application in circumstances were he had no actual instructions from Ms [V] at the time of his appearance.
Ground 2
Conflict of Interest
Particulars:
2.1The Respondent purported to act for Ms [V] upon instructions from Mr [G] who was the victim of the alleged assault on a bail application involving a charge of assault occasioning actual bodily harm and in circumstances were the Respondent had previously acted for Mr [G] in a separate matter, albeit as agent for another practitioner, in interlocutory proceedings where Mr [G] was the perpetrator of an alleged assault upon Ms [V].
Ground 3

Failure to be open and frank in dealings with the Law Society and misleading and deceptive conduct
Particulars:
3.1The Respondent deliberately or recklessly, made misleading representations to the Society that:
(a)he was unaware that Ms [V] was the victim of Mr [G]’s assault in circumstances were he knew that she was; and
(b)he was unaware that Mr [G] was a victim of Ms [V]’s assault in circumstances were he knew that she was the victim; and
(c)he was instructed by Ms [V] in the court cells prior to the hearing of her bail application when in fact he had no such instructions; and
(d)he held a signed legal application form when he appeared before Magistrate Doogan when this was not in fact the case.

The evidence

The Council relied on an affidavit of the Professional Standards Director of the Law Society, Robert Reis, an affidavit of the lawyer for the Law Society, Michael Phelps, an affidavit of a public prosecutor, Natasha Werner, and two affidavits of a lawyer, Darryl Raymond Perkins. It also tendered statements from Ms V and Mr G.

The Council called Ms Werner and Mr Perkins as witnesses. The Legal Practitioner filed an affidavit, but called no evidence.

The Evidence of Mr Reis

Mr Reis set out in his affidavit the formal matters relating to the admission of the Legal Practitioner, the grant of an unrestricted practising certificate to him and his employment. These matters are relevantly set out above (at [1]) and were not contested.

Annexed to the affidavit were some documents. The first was a letter of complaint from the learned Magistrate, which was received by the ACAT as a complaint but not admitted for the truth of its contents.

An extract from the local newspaper, The Chronicle, was annexed to the affidavit. It was not, however, tendered. I mention it because it appeared in the Appeal Book (though marked “not tendered”). The Legal Practitioner, of course, prepared the Appeal Book. I shall take no notice of the document.

The initial letter from the Law Society to the Legal Practitioner, dated 21 August 2008, referring the complaint to him and seeking a response, was next annexed. The paragraph referring to the newspaper extract was not tendered though, again, it appeared in the Appeal Book. Again, I shall take no notice of it.

The response of the Legal Practitioner, dated 5 September 2008, was also annexed. In it, he did not state that he had instructions from Ms V on 28 July 2008, but referred to further appearances he had made for Ms V and that Mr G was not a client of either of the two firms by which he was employed. He admitted, however, that he had appeared as agent by Mr Perkins for Mr G on at least one occasion. He offered an apology for any inappropriate or offensive behaviour. He sought an extension of two weeks in order to obtain a copy of the transcript of the relevant proceedings.

On 5 September 2008, however, he wrote again to the Law Society. This letter was also annexed to the affidavit of Mr Reis. In that letter, he stated that he forwarded transcripts of the hearings on 23 July 2008, when he appeared for Mr G an agent for Mr Perkins, and on 28 July 2008, the hearing from which arose of the complaint.

The first transcript showed that he announced his appearance as follows:

May it please the court, [the Legal Practitioner] acting as agent for Mr Perkins. Mr [G] is before the court.

For some reason that transcript was not annexed to the affidavit of Mr Reis, but it is elsewhere in the Appeal Papers.

The second transcript is the subject of the proceedings. It records that the proceedings commenced at 11:49 am. The charge of assaulting Mr G and occasioning him actual bodily harm was read to Ms V. She confirmed that she was applying for bail. The transcript then records

HER HONOUR: You haven’t got anyone representing you?
MS [V]: No, I didn’t – yeah, sorry.

Ms Werner, the prosecutor, stated that bail was opposed and then set out the views of Mr G as complainant. Ms Werner also advised that the informant did oppose bail. Reference was made to Ms V’s criminal record, which was tendered, and relied on, as to the risk of her re-offending, and her prior conviction for failing to appear in accordance with a bail undertaking, on 25 October 2005.

Ms Werner noted that Mr G was not concerned about his safety, but that the matter was a family violence matter. It appears that, while Ms Werner was making this submission, the Legal Practitioner had entered the courtroom, as the courtroom door can be heard closing. This seems confirmed by comments he made in his second letter of 5 September 2008. Shortly thereafter, the Legal Practitioner is recorded as speaking. The transcript shows the following:

[THE LEGAL PRACTITIONER]:       Your Honour, I apologise.
HER HONOUR:  [The Legal Practitioner].
[THE LEGAL PRACTITIONER]:       I’ve just been instructed in regard to this matter.
HER HONOUR:  What, just this instant? Because Ms ---
[THE LEGAL PRACTITIONER]:       I’ve been instructed by ---
HER HONOUR:  Ms [V] said she didn’t have anyone appearing for her.
[THE LEGAL PRACTITIONER]:       I’ve been instructed outside the court by Ms [V]’s partner ---
HER HONOUR:  Who’s that, Mr [G]?
[THE LEGAL PRACTITIONER]:       --- ho is the victim of the assault.
HER HONOUR:  Mr [G] I’m not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault representing the defendant.
[THE LEGAL PRACTITIONER]:       No. My only instruction was to speak to the defendant.
HER HONOUR:  Say no more, [the Legal Practitioner]. I’m proposing to grant her bail so ---
HER HONOUR:  I’ll put conditions on it. And it’s bizarre, [the Legal Practitioner], that you would – is that what you’re saying to me, that you’ve been instructed by – just sit for a moment.
[THE LEGAL PRACTITIONER]:       Your Honour, I was ---
[MS V]:Sorry, I was ---
[THE LEGAL PRACTITIONER]:       Your Honour, I was approached outside the court by the victim in the matter ---
HER HONOUR:  By Mr [G]?
[THE LEGAL PRACTITIONER]:       --- and asked if I would go downstairs and see the defendant. They were my instructions, your Honour. And it is bizarre your Honour.
HER HONOUR:  I think that’s ---
[MS V]:Yes, he needs to go to the ---
HER HONOUR:  It’s unbelievable, [the Legal Practitioner], that you would purport to act on behalf – that you are instructed by a victim to go and speak to a defendant in a matter.
[THE LEGAL PRACTITIONER]:       Your Honour.
HER HONOUR:  If that’s not a serious conflict of interest ---
[THE LEGAL PRACTITIONER]:       Yes, your Honour.
HER HONOUR:  --- what on earth in this court is? This is a family violence matter.
[THE LEGAL PRACTITIONER]:       Yes, your Honour.
[MS V]:It’s a mental case, it is.
HER HONOUR:  I’ll just pretend that you didn’t even appear, [the Legal Practitioner].
[THE LEGAL PRACTITIONER]:       Thank you, your Honour.

Although the printed transcript does not so show, the recording that was later tendered then shows that Ms V said

Thanks anyway for coming.

It appears that the Legal Practitioner said “That’s okay”. Ms V then said

But he’s very manipulative. I know that. I thought you were Legal Aid.

The Legal Practitioner said “No” and Ms V said “Thanks anyway”. The Legal Practitioner was then excused by the learned Magistrate.

In his covering letter, the Legal Practitioner made the following points:

1. He was not present when the charge was read to Ms V in which Mr G is named.

2. He submitted that the learned Magistrate “by way of a facial gesture and hand action” indicated that he could speak to her.

3. He noted that his “only instruction” was to speak to Ms V.

4. He refers to the comment of the learned Magistrate “I’ll just pretend that you didn’t even appear”.

He emphasised in the letter, however, that he had been “instructed outside the court by Ms [V]’s partner”. He then emphasised again that his “only instruction was to speak to the defendant”, ie Ms V. This, he noted, was because of what Mr G said to him outside the courtroom. He did not assert at this time that he had instructions from Ms V direct nor that he had already seen her in the court cells.

The Legal Practitioner also referred to an appearance on 23 July 2008, the transcript for which was included in the Appeal Papers as I have noted above (at [18], [20]). He also referred to an appearance on 20 August 2008 but, again, the transcript was not annexed and was not included in the Appeal Papers.

Finally, a further letter from the learned Magistrate, apparently responding to the Legal Practitioner’s response was attached. Its admission was objected to by the Legal Practitioner but it was admitted not for the truth of the assertions in it, but as the letter to which the Legal Practitioner further responded giving his letter context and meaning. The letter disputed some of the assertions of the Legal Practitioner.

The final annexure was the Legal Practitioner’s response in which he challenged the disputed matters raised by the learned Magistrate and asserted that he held signed statements from Ms V and Mr G and that at the time he appeared he had a signed application for Legal Aid from Ms V by whom, he stated, he was instructed in the cells prior to his appearance before the learned Magistrate.

Mr Reis was not cross-examined on his affidavit.

Statements of Ms V and Mr G

The statements of Ms V and Mr G were annexed to the affidavit of Mr Reis, but in a redacted form. The unredacted versions were tendered without objection.

The statement by Mr G was, relevantly, in the following terms:

I [Mr G] state that on Monday 28 July 2008 that I first saw [the Legal Practitioner] outside courtroom 1 at about 9.45 am he was rushing into court as he had just seen my partner [Ms V] in the court cells. I asked [the Legal Practitioner] to act for Ms [V] in regards to her bail application. [The Legal Practitioner] told me that as he had previously acted for me as agent for Mr Darryl Perkins that he had to confirm with me that there was no conflict of interest in the matter, he was also concerned that [Ms V] may be Darryl Perkins [sic] client and did not want to do the matter if she was Darryl’s client. I told him that Darryl only acted for me and that I wanted him to act for her. I told him there was no conflict of interest in the matter as far as I was concerned. [The Legal Practitioner] told me that he had just seen [Ms V] and was instructed to act for her in the bail application and in the regards to her current charges.
At no time did I tell [the Legal Practitioner] that I was the victim in the matter I did not think that it mattered, as it was only a bail application. And he did not have time to ask me as he rushed off to try to beat the Corrective Services officers who were bringing [Ms V] up. We only spoke for a few minutes possibly 90 seconds.

The statement by Ms V was, relevantly, in the following terms:

I [Ms V] ... state that I saw [the Legal Practitioner] in the Court cells at the ACT Magistrates Court on Monday 28 July 2008. I asked [the Legal Practitioner] to act for me in regards to my bail application and also in regards to the charge that I was facing that being AOBABH [sic] ...
At the time I saw [the Legal Practitioner] in the cells prior to court I did not have the time to tell him who the victim of the AOABH was as I was called up to court. I signed a legal aid application that [the Legal Practitioner] had put under the door and asked him to represent me.
At no time was [the Legal Practitioner] aware prior to entering the court that Mr [G] was the victim in this matter. I asked him to do my bail application I signed a legal aid form for his firm.

Both statements included references to the authors having no concerns about the alleged conflict of interest.

The evidence of Mr Phelps

The affidavit of Mr Phelps was then read. Annexed to his affidavit were the Magistrates Court bench sheet, the Police Statement of Facts, the criminal record of Ms V for her bail proceedings and a legal aid application form signed by Ms V and dated 28 July 2008.

Annexed also were communications with and from the Legal Practitioner. These included an email from the Legal Practitioner in response to the Law Society’s letter to Ms V about the complaint, in which he stated that his client, Ms V, did not wish to communicate with the Law Society. Mr Phelps’ reply on behalf of the Law Society is also annexed, in which he suggested that it was inappropriate for the Legal Practitioner to respond to the Law Society’s approach to Ms V and asking whether he still acted for Mr G. It also sought a copy of the statements of Ms V and Mr G. The Legal Practitioner’s response to that letter is also annexed, rejecting the concerns of the Law Society about his responding on behalf of Ms V, stating that he does not act for Mr G, that he last acted for him on 23 July 2008, that he continues to act for Ms V and attaching copies of an unredacted version of the statements of Ms V and Mr G.

I note in passing that the statement of Ms V forwarded with this letter is in fact a materially different one, though exhibiting the same date, to that tendered and said to have been forwarded with the earlier letter.

As noted above (at [37]), the application for legal aid signed by Ms V was also annexed. It is dated 28 July 2008 and on it has been written that the “next court date” is “28/7/08 ... 12 pm”. It also contains the statement that the “victim of the offence” is Mr G. It is signed by the Legal Practitioner who has annotated it, “I appeared today for an opposed bail app Bail was granted”.

In the letter, the Legal Practitioner stated that he “was not aware that [Mr G] was the victim until [he] appeared at the bar table”.

A letter in reply was also annexed. Mr Phelps was not cross-examined.

The evidence of Ms Werner

The Legal Practitioner’s counsel objected to Ms Werner’s affidavit in its entirety, though the first four paragraphs were admitted. Counsel for the Legal Practitioner sought that she give her evidence orally. She did so.

She confirmed the contents of the first four paragraphs of her affidavit, which stated that she had been employed in the Office of the Director of Public Prosecutions of the ACT since April 2007 and that she appeared in the subject proceedings on 28 July 2008. She deposed that Mr G had approached her before the hearing, stating that he did not want Ms V remanded in custody and that he had “no problem” with her being granted bail. She further deposed that, when the matter was called, Ms V was brought to the bar table and the matter commenced; Ms V had no legal representation.

Ms Werner then referred in her oral evidence to a file note she had made after the court appearance either the afternoon after she had appeared or the next day.

She stated that she told the Court that bail was opposed and that she had spoken to Mr G who did not wish Ms V to be remanded in custody. She referred to the previous offence of failing to appear in accordance with a previous bail undertaking. She referred to the learned Magistrate asking about the attitude of the informant, to which she said she told her Honour that the informant did oppose bail.

She then said, that after some time, the Legal Practitioner came to the bar table. Her impression was he “rushed up to the Bar Table” because the matter had started. She said that he stated that he appeared in the matter. She said that the learned Magistrate questioned him about that and that he replied that he had just received instructions from the complainant, Mr G. She said her Honour appeared to be displeased with that and made comments showing her disapproval.

Ms Werner said that Ms V made some interjections, but she did not hear what they were.

The file note of Ms Werner was then admitted. It was broadly consistent with her oral evidence, though it did record that Ms V interjected saying something like “he doesn’t act for me/I don’t want/never have wanted him” though none of this is on the transcript of, nor can it be heard on the recording of, the proceedings.

In cross-examination, Ms Werner confirmed that she was not completely sure when she made the file note, but that it would not have been days after the proceedings were heard.

She was asked to describe the layout of the Court, which she did. I do not need to set out that evidence. She confirmed that she had a “mention brief”, consisting of the charge sheet, a statement of facts and a criminal history. There may also have been a “police bail opposition form” and a copy of the first three documents for Ms V or her lawyer. She did not recall whether she handed any of them over and, if so, to whom she did so. These documents, however, were not, she said, handed over as a matter of course to litigants in person.

Ms Werner said that she had a memory of Ms V seated at the bar table when the Legal Practitioner spoke but no memory of her position prior to that. She could not recall if Ms V appeared to be affected by alcohol. She did say that she found it difficult to hear what Ms V said, but saw her nodding at what the learned Magistrate was saying.

She also said she had seen a copy of the transcript but only on the previous day, that is, after she had made her affidavit.

It was put to her that Ms V had not said of the Legal Practitioner that “[h]e doesn’t act for me. I don’t want/never have wanted him”. She agreed it was not recorded but said that she recalled Ms V saying something to that effect, by interjection, though she did not hear clearly what Ms V said. She maintained that Ms V said something along those lines. She conceded that she could have been mistaken.

In re-examination, Ms Werner was asked about whether what is said at the bar table is always recorded. She said that definitely not everything that is said at the bar table is recorded. She gave some examples. She stated that what the microphone picks up is different to what the transcriber chooses to transcribe, but she also acknowledged that the microphone does not always pick up what is said. She had, however, never had to listen to a tape but stated that, in her experience, “what ends up on the transcript is not always everything that’s said”.

The evidence of Mr Perkins

The affidavits of Mr Perkins were then read. He deposed that he would instruct the Legal Practitioner as his agent on occasion when he had matters listed in more than one of the Magistrates Courts at the same time. Most of the matters were legally aided.

He deposed that Mr G had been his client for the past nine years and he had represented him on many occasions in many courts. He further deposed that Mr G had, about four years previously, formed a relationship with Ms V, and that they had two children together. The relationship was not particularly healthy and resulted in “many Court appearances by both of them, involving drugs, alcohol and assaults upon one another”.

Mr Perkins deposed that he instructed the Legal Practitioner on 23 July 2008 to act as his agent in a Case Management Hearing on behalf of Mr G in proceedings where Ms V was the complainant.

He also referred to the proceedings involving Ms V as defendant where, he deposed, she had allegedly hit Mr G with a baseball bat on 27 July 2008. He had received a telephone call from Mr G that evening, who described what had happened. He deposed that he saw Mr G at court on 28 July 2008 but did not see the Legal Practitioner speak to him.

In a second affidavit, he annexed a copy of the Practice Direction which sets out the arrangements for Case Managing Hearings. It relevantly provides

4. Procedure at the Case Management Hearing
4.1Preparation for Case Management Hearing
By the time of the Case Management Hearing the defence must be fully instructed. Defendants must be present. Arrangements will be made by the Court to ensure in custody defendants are brought from the Remand Centre. If a defendant does not appear a warrant may issue for that person’s arrest.
The representative of the DPP must be authorised to take the decisions necessary to effectively participate in the Case Management Hearing.
4.2The Case Management Hearing
At the Case Management Hearing the presiding Magistrate may:
·Invite the DPP to elaborate upon the case summary if required;
·Require the DPP to briefly outline the nature of the evidence to be called in relation to the charges;
·Invite the defence (not compel) to indicate what the issues in the case are and what if any pleas are offered in respect of the charges or any replacement charges;
·Invite the defence (not compel) to indicate whether consent to jurisdiction is able to be indicated at the Case Management Hearing stage;
·Invite the defence (not compel) to indicate whether to what extent if any, the prosecution brief can be tendered, including at a committal hearing;
·Canvass with the DPP the acceptability of the pleas offered;
·Require the parties to identify witnesses required at hearing; and
·Establish the time required for the hearing.

He further deposed that when he instructed other lawyers, such as the Legal Practitioner, in Case Management Hearings, it was sometimes his practice to do so “verbally” when he handed the lawyer the relevant file and introduced the client to the lawyer at the same time, with appropriate instructions, such as naming the relevant witnesses required, whether or not the complainant was required, availability dates, a comment on the defence relied upon and some indication of “our preference” for jurisdiction. He further deposed that if issues arose outside these general instructions, his agent should seek to have the matter stood down until he could attend, though that rarely happened.

Mr Perkins was cross-examined. He explained that most of his legal work was in criminal law for legally aided clients. It was, he said, a busy practice. He described how he accessed clients in custody in the court cells, which required some time to access. He also commented that the purpose of the case management hearing process was to “streamline court processes so that case [sic] can be disposed of in a quicker, more appropriate manner”.

He confirmed that he acted for Mr G on 23 July 2008 in relation to a charge of assaulting Ms V that had been preferred against him. It was scheduled for a Case Management Hearing at 2:30 pm on that day when he was already required in the Supreme Court for a sentencing matter. He confirmed that he approached the Legal Practitioner to act on his behalf on that day at close to 2:30 pm.

He said that he had had a brief discussion with the Legal Practitioner; he discussed the evidence only to the extent of indicating the plea of not guilty, that the “defence that was present”, the witnesses required, namely two police witnesses and the complainant.

He was not completely sure if he introduced Mr G to the Legal Practitioner but was “90% sure ... I would have done that”. He noted that Mr G must have been present at some stage otherwise a hearing date would not have been set. He recalled receiving some typed notes from the Legal Practitioner at the end of the day. He did not request the Legal Practitioner to obtain any instructions from Mr G.

In re-examination, Mr Perkins said that he recalled giving the Legal Practitioner the brief of evidence obtained from the Director of Public Prosecutions (the DPP). He said he may also have given him the file.

Mr Perkins identified his file and noted a letter from the DPP on which he had made some notes which showed what he wanted to pass on. It included the date of the offences, a reference to the complainant and to two police officers, namely the witnesses he required to be called.

The letter listed the documents that had been supplied, including a reference to a typed record of a conversation between one of the police constables and Ms V.

In re-examination, Mr Perkins agreed that he likely provided the Legal Practitioner with a copy of the charge.

In further cross-examination, Mr Perkins said that the charge sheet and the statement of facts would have been “near the top of the file”.

The transcript of the proceedings in the Case Management Hearing was tendered by counsel for the Legal Practitioner. It showed the matter took two minutes. The Legal Practitioner indicated that the matter was ready to proceed and that the two named police witnesses were required. He agreed that the statements of corroborating police officers would be tendered and that the complainant would be required. He stated that it appeared to be “roughly [sic] a summary hearing”. He said that it was a factual issue. He noted the date from the hearing and stated that it would be suitable.

The other evidence

Neither party called Ms V or Mr G.

It was not entirely clear whether the affidavit of the Legal Practitioner was read. It was not marked as an exhibit, as were all the other affidavits, but it was included in the Appeal Book. It seems that it was not tendered.

The Legal Practitioner did not give evidence.

The Decision of the ACAT

On 19 October 2010, the ACAT delivered its decision on the issue of whether the complaint against the Legal Practitioner had been substantiated.

It set out the background of the complaint and the investigation by the Law Society. These matters are largely set out above. It set out the complaint in summary form. It referred to the relevant laws in a way not challenged on this appeal.

In brief, it referred to the definitions of “unsatisfactory professional conduct” and “professional misconduct” in ss 386 and 387, respectively, of the Legal Profession Act. As the definition of the latter term is an inclusive definition, it pointed out that the general law as to the meaning of “professional misconduct” as set out in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763-7 applied, namely that where a professional engages in behaviour that would reasonably be regarded as disgraceful or dishonourable by professional colleagues who are of good repute and competency that constitutes professional misconduct. That approach has been followed in Australia: Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515; Re A Solicitor [1960] VR 617 at 620; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203; Adamson v Queensland Law Society Inc [1990] 1 Qd R 498 at 507. It has expressly been held applicable in this Territory in Chamberlain v Law Society of the Australian Capital Territory (1993) 43 FCR 148 at 153, 168. Such conduct requires more than mere negligence, though it may be constituted by gross negligence or recklessness.

Unsatisfactory professional conduct includes conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.

The ACAT set out the material presented at the hearing.

It referred to the rule in Jones v Dunkel (1959) 101 CLR 298. It accepted that the rule applied to the proceedings, but only in appropriate cases and that the Council had still to prove its case.

Mr K Archer, counsel for the Legal Practitioner, had sought that the rule be applied to the evidence of the Council, which had not called Ms V or Mr G. It noted that their statements had been tendered by the Council only for the purpose of establishing the fact and the content of the response by the Legal Practitioner and not for the purpose of proving the facts asserted in them. The ACAT held that it was not reasonable to draw an adverse inference that the evidence of Ms V or Mr G would have been unfavourable to the Council in the circumstances if they had been called.

The ACAT then considered each ground of the complaint.

As to the first ground, it considered the transcript and the recording of the proceedings.

It noted that the Legal Practitioner had conceded that he purported to act for Ms V on the bail application, so that the only issue in dispute was whether Ms V had, in fact, instructed the Legal Practitioner in the court cells before the bail application. It was not clear whether the Legal Practitioner wished to withdraw from that concession on the appeal.

The findings of the ACAT about the evidence of the transcript and recording can be summarised as follows:

1. Ms V can be assumed to be familiar with criminal proceedings and bail applications because of her previous criminal record.

2. Ms V told the learned Magistrate that she was not represented and did so without hesitation or qualification.

3. The Legal Practitioner entered the court as Ms Werner said “but [Mr G] has indicated that he’s not concerned for his safety”.

4. Ms V did not say anything that indicated she recognised or acknowledged the Legal Practitioner when he entered the courtroom or that she had seen him in the court cells or given him instructions immediately before coming into Court.

5. Ms V clearly was following the course of her bail application and understood what was happening. Although not hesitant about interjecting, she said nothing in support of the attempts by the Legal Practitioner to appear for her.

6. Ms V did not appear affected by alcohol or other drugs nor other impairment that would explain a denial of being represented if she was, in fact, represented.

7. The exchange between Ms V and the Legal Practitioner at the end of the hearing was consistent with Ms V not knowing who the Legal Practitioner was and with her assuming that Mr G had manipulated a scenario in which the Legal Practitioner would be unable to appear for her.

8. The transcript disclosed that the Legal Practitioner did not assert or attempt to assert that he was appearing for, acted for, or had instruction to act for or had spoken to or seen Ms V. This is a somewhat odd articulation of the finding of fact in view of the concession by the Legal Practitioner and the ultimate finding of the ACAT.

9. The Legal Practitioner must be taken to have used the word “instructed” in relation to his interaction with Mr G and not be taken to have used the word loosely to mean “asked”.

The ACAT was prepared to draw these inferences especially in the light of the failure of the Legal Practitioner to give evidence. It relied on what Tobias JA said in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70] where his Honour, with whom Bryson and Basten JJA agreed, referred with approval to the following comment of Meagher JA in Coe v NSW Bar Association [2000] NSWCA 13 at [21] of a legal practitioner the subject of a complaint that

If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then it is our view he has an obligation to meet the situation by explanation on oath.

The ACAT assessed Ms Werner’s evidence. It noted that her file note and her evidence were not quite accurate when compared with the transcript, but that it was clear that both she and the learned Magistrate were under the clear impression that the Legal Practitioner was announcing an appearance for Ms V. It also noted that Ms Werner agreed in cross-examination that she was somewhat mistaken in her recollection that Ms V had overtly denied that the Legal Practitioner was acting for her.

The ACAT was not assisted by her impressions.

The ACAT then assessed the responses by the Legal Practitioner in correspondence with the Law Society. It noted that his first response made no mention of having spoken to Ms V in the cells and only referred to his interaction with Mr G outside the court.

It noted that his first reference to being instructed by Ms V in the cells was in his letter of 18 October 2008. It enclosed the redacted statements of Ms V and Mr G, though they pre-date his first letter of response. It was, the ACAT found, reasonable to infer that they were prepared for the purpose of responding to the complaint. In the case of Ms V, she says she signed a legal aid application form in the cells before she was called up to court. The ACAT remarked that the failure of the Legal Practitioner to refer to Ms V’s instructions in his first response called for an explanation; it was a matter wholly within his knowledge. He gave no explanation.

The letter also failed to explain why he did not explain, in Court to the learned Magistrate, that he had actually been instructed by Ms V, if that were the case, and subsequent correspondence did not explain these matters.

As to the legal aid application form, it was submitted by Mr N Beaumont, who appeared for the Council, that it was “filled out, it’s plain enough, by [the Legal Practitioner] but signed by Ms [V]”. That is certainly how it appears. The ACAT said that Mr Archer acknowledged that. That seemed to be the case but only by inference that he acknowledged this, but it is not a ground of appeal that the ACAT erred in so finding.

The ACAT did not accept that the form was signed before the bail application had been made, and found that the statement on it that the Legal Practitioner appeared on the opposed bail application was false. While this was not the subject of a charge, it was relevant to the truthfulness generally of the Legal Practitioner.

The ACAT then considered the statements of Mr G and Ms V.

As to Ms V’s statement, the ACAT found that there were a number of concerns about the statement. These may be summarised as follows:

1. The assertion by Ms V that she “really did not understand what was going on” was not consistent with her behaviour as recorded in the transcript.

2. Ms V’s assertion that she had requested that the Legal Practitioner be contacted to act for her is not consistent with her recorded assertion that she thought he was “Legal Aid”.

3. Her suggestion that she was granted bail “thanks to [the Legal Practitioner]” was quite incorrect as he had no involvement in the hearing before the learned Magistrate and her Honour’s decision to grant bail, as must have been obvious to her.

4. There was no explanation as to why Ms V told the Court that she was not represented.

5. There were unexplained differences between the various versions of her statement.

As to Mr G’s statements, the ACAT declined to attach any weight to it because of problems it identified which may be summarised as follows:

1. The assertion in it that Mr G saw the Legal Practitioner at 9:45 am on 28 July 2008 when “he was rushing into court as he had just seen [Ms V]” was inconsistent with the transcript showing that the bail application commenced at 11:49 am.

2. Mr G’s statement that the Legal Practitioner had just seen [Ms V] in the cells was not within Mr G’s knowledge.

3. The statement that Mr G left the Court after Ms V was bailed and did not enter the courtroom is inconsistent with Ms Werner’s statement to the learned Magistrate that Mr G was present in court.

At its highest, the ACAT held, the statement confirmed that Mr G spoke to the Legal Practitioner and told him that Mr G wanted him to act for Ms V.

The ACAT then proceeded to make findings on the three grounds.

On Ground 1, the ACAT was comfortably satisfied that the ground was made out, finding that the Legal Practitioner was not instructed by Ms V before the bail application to appear or act for her on the bail application.

It took, at face value, the statement of the Legal Practitioner recorded in the transcript that he was “instructed” by Mr G to act for Ms V. It rejected the suggestion that Ms V was impaired in any way when she denied that she had any legal representation. The application form for legal aid provided no support for the case sought to be made by the Legal Practitioner.

In the absence of any explanation on oath by the Legal Practitioner, the ACAT found that the Legal Practitioner deliberately or knowingly misled the Court, and such misleading was not negligent. Such conduct, it found, was professional misconduct, relying on authorities such as Kyle v Legal Practitioners’ Complaints Committee (1999) 21 WAR 56 (Kyle); Council of the Queensland Law Society v Wright [2001] QCA 58 and Guss v Law Institute of Victoria Ltd [2006] VSCA 88.

On Ground 2, the ACAT noted that the Legal Practitioner conceded that he purported to act for Ms V on the bail application. It found that he did not have those instructions, though he purported to act on the instructions of Mr G. Mr G was the complainant in respect of the charge laid against Ms V.

The Legal Practitioner had acted for Mr G as agent for Mr Perkins five days previously in a Case Management Hearing.

The ACAT referred to the general principle that lawyers owe a fiduciary duty to give undivided loyalty to their clients and that this cannot be fulfilled if they owe the duty to two or more parties whose interests are in opposition.

That the Legal Practitioner acted as agent for Mr Perkins in respect of the Case Management Hearing involving Mr G on 23 July 2008 did not mean, as the Legal Practitioner seemed to imply, that Mr G was not the client of the Legal Practitioner. I note that there may have been no privity of contract between the Legal Practitioner and Mr G, but as Farrell J pointed out in In Re Newen; Carruthers v Newen [1903] 1 Ch 812 at 819-20, there is the same solicitor-client relationship as far as the proceedings were concerned as between Mr Perkins and Mr G.

It found that a conflict of interest could have arisen if the Legal Practitioner had confidential information as a result of acting for Mr G at the Case Management Hearing, but noted that the Legal Practitioner contended that he had no such information.

It relied on the evidence of Mr Perkins, to which I have referred above.

The ACAT was not satisfied, however, that there was any such information known to the Legal Practitioner and found that Ground 2 was not made out.

On Ground 3, the ACAT noted the four alleged misleading representations made by the Legal Practitioner in response to the investigation by the Law Society.

It referred to the requirement for a practitioner to be frank in communications with the professional regulatory body and to co-operate with investigations into complaints, an extension of the duty of lawyers and officers of the court. See NSW Bar Association v Thomas (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Clarke JJA, 9 May 1989) at p 19; Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6; Law Society of New South Wales v Ciampa [1999] NSWADT 13 at [33]; Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 at [36]. To mislead such an investigation may be professional misconduct as found in Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282 at 294-5; [42]-[44]; Kerin v Legal Practitioners’ Complaints Committee (1996) 67 SASR 149 at 163-4, 167. See also r 39.1 of the Solicitors Rules.

The first representation was that the Legal Practitioner was unaware that Ms V was the complainant to the assault charge laid against Mr G, for whom he had earlier acted, as agent for Mr Perkins.

The ACAT accepted that the Legal Practitioner was not specifically told by Mr Perkins that Ms V was the complainant. Ms V’s name was not mentioned in court. The ACAT found that the Legal Practitioner paid little attention to the details of the case, though it was rightly critical of such careless and imprudent practice. The ACAT did not uphold this complaint by the Council.

The second representation was that the Legal Practitioner was unaware that Mr G was the complainant of the assault offence charged against Ms V until he appeared at the bar table.

The ACAT noted, however, that the Legal Practitioner mentioned this fact almost as soon as he announced his appearance in Court. There was nothing to show how he would have discovered this before he spoke. Since the ACAT found he did not speak to Ms V in the cells, he could not have found out from her. Mr G is noted – in the handwriting of the Legal Practitioner – as the victim in the legal aid application form. Mr G, in his statement, denies telling the Legal Practitioner that he was the complainant.

The ACAT found that the Legal Practitioner had a responsibility to find out who the complainant was, so as to be alert to possible conflicts of interest.

Nevertheless, it could not conclude that the representation he had made to the Law Society was misleading and the ground was not upheld.

The other two representations were that the Legal Practitioner was instructed by Ms V in the cells and that he held an application form for legal aid both prior to the bail application.

It followed from the finding on ground 1, and the ACAT so found, that these representations were misleading. It also found that the making of them was properly characterised as professional misconduct.

Proceedings on penalty and costs

The ACAT then proceeded to hear submissions on sanctions. I had the written submissions but no transcript of any oral hearing.

The Council submitted that the ACAT should recommend that the name of the Legal Practitioner should be removed from the Roll.

The Legal Practitioner acted for himself at this point. His submissions tended to controvert the ACAT’s findings, suggesting at a number of points that there was no misleading of the court or, at least, no intentional misleading of the court. These submissions were inconsistent with the findings of the ACAT.

Leaving that aside, the Legal Practitioner’s submissions raised a number of other matters. He submitted that the finding of the ACAT that the court “was not misled to any significant extent and that the Court did not act on [the Legal Practitioner’s] misleading actions” was relevant and had to be taken into account.

He referred to a number of authorities where decisions of courts and tribunals had imposed sanctions less severe or drastic than the removal of a legal practitioner’s name from the Roll for occasions where the court has been misled. He submitted that any penalty should be at the lower end of the scale.

Indeed, in relation to the sanction for the third ground (for which only two statements of the four alleged were found to be misleading), he submitted that a sanction other than “a small fine” would be an “appellable error”.

As to costs, he submitted that since the Council had been unsuccessful in its complaint on ground 2 and two of the four statements that constituted ground 3, it was only successful on half its complaint. He submitted that each party should pay its or his own costs.

Reference was made, in the Council’s submissions, to the fact of other disciplinary proceedings, in which a differently constituted ACAT had also found that the Legal Practitioner guilty of professional misconduct and of professional conduct. The Legal Practitioner noted that these charges were currently on appeal and, as such, should not be taken into account.

He raised a number of subjective matters, including his heavy workload and limited professional experience and set out his personal circumstances. In cases of dishonesty, these are, perhaps, not so relevant for, as McPherson JA observed in Attorney-General v Bax [1999] 2 Qd R 9 at 13

basic honesty is not a quality that is ordinarily acquired through experience, or by lengthy practice of trying one’s best to be honest.

He also submitted that the charges should be dealt with separately as they were “separate courses [sic] of action on different dates and under different circumstances”.

Findings of the ACAT on penalty and costs

The ACAT delivered its decision on the sanction to be imposed on 23 August 2011. It is not clear why there was such a delay, save from the undoubted heavy workload the ACAT has had to endure.

It recommended that the name of the Legal Practitioner be removed from the Roll and that he pay the Council’s costs on the Supreme Court scale on a party and party basis.

It set out the findings it had made and referred to the possible orders that it could make under s 425 of the Legal Profession Act. It also referred to the purposes of the Act set out in s 6 and of the disciplinary regulations as set out in s 384, noting the relevance of specific deterrence and general deterrence.

It noted the relevant factors included:

the nature of, and the circumstances surrounding, the acts found to constitute misconduct; the level of understanding demonstrated by the practitioner of the nature of his conduct; the attitude of the practitioner especially whether he demonstrates any remorse or regret for the conduct; the likelihood of a future re-occurrence of behaviour warranting disciplinary action and any previous adverse findings in relation to the practitioner’s professional conduct.

It continued:

These factors are to be considered in the context of the purposes of disciplinary proceedings. The Tribunal’s sanction should aim to uphold the administration of justice and, so far as is possible, protect the public from the risk of future acts of professional misconduct or unsatisfactory professional conduct.

It analysed and summarised the submissions of the Legal Practitioner and of the Council.

It considered that the Legal Practitioner had misunderstood the relevant law and the significance of its findings.

It found that both of its findings were matters of serious breaches of the conduct required of lawyers. It emphasised that the fact that the court was not misled to any significant degree did not mean the matter was trivial. It noted that the misleading statements involved a significant degree of deception.

It accepted the Council’s submission that it should consider the findings as a whole and not separately. It also noted that the Legal Practitioner, by contesting the complaint, had shown no remorse or regret for his misconduct, but placed no weight on that.

It decided that it should take the earlier matter into account, even though they were later incidents, but found that they did not add anything to its consideration of penalty. It rejected the submissions about workload or limited professional experience as not shown to be related to the actions involved.

The ACAT then concluded:

When considered together and when considered in the light of the apparent misunderstanding of the seriousness of those matters, the findings lead to the conclusion that the respondent’s character is such that he is not a fit and proper person to engage in legal practice. This in turn, leads the Tribunal to conclude that it is appropriate to recommend that the respondent’s name be removed from the roll of local practitioners.

As to costs, it noted that s 433(1) of the Legal Profession Act required that if it found that a legal practitioner is guilty of professional misconduct, it must order the Legal Practitioner to pay the costs of the Council unless it finds exceptional circumstances exist.

It concluded that the fact that some grounds are not made out in a complaint to the requisite degree is not an exceptional circumstance. Accordingly, it ordered that the Legal Practitioner pay the costs of the Council.

The Appeal

The Legal Practitioner clearly prepared the Notice of Appeal himself. It was in some ways an extraordinary document which included a very wide range of grounds, many overlapping.

In his written submission, the Legal Practitioner did not address each of the grounds clearly. He appeared to have addressed all of the so-called “Questions of law” but many of them collectively, suggesting a careless drafting of them, which tended to obscure rather than identify the real issues. Some were then addressed twice or more but in conjunction with others. It was very difficult to follow the submissions, which were confusing and largely unhelpful. It did not appear from what I could see that the questions of fact were identifiably addressed separately.

This was certainly not a helpful way to approach the appeal. That this was clearly true became apparent in the oral submissions, which barely addressed the grounds of appeal, and certainly not all of them.

Nevertheless, it is appropriate that I deal with the issues that I consider were properly before the Court from the material presented.

I set out, therefore, the grounds of appeal as follows:

A.Questions of law
1.The Tribunal erred as a matter of law in holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.

2.The Tribunal erred as a matter of law in holding that it was bound by the line of authority relied upon by the respondent.
3.The Tribunal erred as a matter of law in finding ground 1 proven when in fact the appellant could not have ‘misled the court when he appeared before Magistrate Doogan on 28 July 2008. The Tribunal could not be ‘comfortably satisfied that this ground is made our’. The finding is impossible.
4.The Tribunal erred as a matter of law in finding that the practitioner ‘deliberately or recklessly misled the court’ as referred to in Kyle v Legal Practitioners’ Complaints Committee [1999] WASCA 115 at 58. The charge laid was that of misleading the court not that of attempting to mislead the court and as it has been found that the appellant did not appear and did not represent anyone this charge as made has to fail and is an incorrect finding.
5.The Tribunal erred as a matter of law in finding grounds 3 a and d proven ‘it follows from the findings in relation to Ground 1’.
6.The Tribunal erred as a matter of law in finding that at 64 ‘It is trite to say that it should only be applied in appropriate cases and that the applicant must prove its case’. Or in the alternative the Tribunal erred as a matter of law in its findings on the failure to cross examine V and G by the applicant.
7.The Tribunal erred as a matter of law in holding that in order to be satisfied that the appellant had not been open and frank with the respondent (grounds 3 (c) and (d)) it was required to be only ‘comfortably satisfied’ that its findings ‘that the respondent was not instructed by V in the cells before her bail application was heard, and that the respondent did not hold a signed legal aid application form when he appeared before the magistrate’.
8.The Tribunal erred as a matter of law in holding that in finding ground 1 proven that it was required to be only ‘comfortably satisfied’ that this ground is made out.
9.The Tribunal in making its findings on Grounds 1 and 3 (c) and (d) applied the incorrect standard of proof required for these findings.
10.The Tribunal erred as a matter of law in assessing the evidence of the two witnesses V and G whose evidence was not challenged.
11.The Tribunal erred as a matter of law in holding that negative inferences could be drawn from the appellant’s failure to give evidence.
12.Alternatively to para 11 above the Tribunal erred as a matter of law in not finding that a Jones v Dunkel inference should be made as a consequence of the applicant not cross examining G and V.
13.The Tribunal erred as a matter of law in finding that there is an expectation that legal practitioners will enter the witness box to provide some explanation for their conduct.
14.The Tribunal erred as a matter of law in proceeding upon the basis that a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body and that duty applied to the proceedings before the Tribunal and that the appellant’s failure to give evidence in the hearing and to subject himself to cross examination justified the Tribunal in making adverse findings.
15.The Tribunal erred as a matter of law in its reasoning at para 67 of its judgement in considering that an adverse inference could not be drawn against the respondent by way of its counsels actions in not calling V and G after subpoenaing the witnesses.
16.The Tribunal erred as a matter of law in finding that at para 66 the statements of V and G were ‘not for the purpose of proving the facts asserted in the response documents’.
17.The Tribunal erred as a matter of law in finding that the only two witnesses V and G who had any direct knowledge of the instructions prior to the bail hearing apart from the appellant were not given ample weight.
18.The Tribunal erred as a matter of law in finding that the inference to be drawn from the facts is that the appellant’s evidence would not have assisted his case and that this inference is more readily drawn from his failure to give evidence. Whilst finding the reverse from the respondent in the above ground 17.
19.The Tribunal erred as a matter of law in finding that the text to be applied in respect of an allegation of professional misconduct was whether the misconduct could be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable. Instead of applying the definition contained in section 387 of the Legal Profession Act 2006 (the LP Act).
20.The Tribunal erred as a matter of law in finding that although ‘the court was not misled to any significant extent and that the court did not act on the respondent’s misleading actions but, misleading a court is a serious matter that is properly regarded as disgraceful.’ Notwithstanding that the court was not significantly misled in any way a finding of professional misconduct was entered. There is significant case law on penalty that indicated the Tribunal erred in classifying the conduct as professional misconduct.
21.The Tribunal erred as a matter of law in finding that the misconduct found amounted to professional misconduct.
22.The Tribunal erred as a matter of law in having regards to irrelevant matters.
23.The Tribunal erred as a matter of law in not having regards to a number of relevant matters. The evidence of V and G, the incorrect evidence of Ms Werner etc.
24.The Tribunal erred as a matter of law in finding that it did not attach any weight to G’s statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
25.The Tribunal erred as a matter of law in finding that it did not attach any weight to V’s statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
26.The Tribunal erred as a matter of law in finding that although Ms Werner’s evidence was incorrect that the only other evidence given by V and G was given no weight.
27.The Tribunal erred as a matter of law in the delay in making the findings and in imposing the penalty so much so that the proceedings amounted to a denial of natural justice and an abuse of process.
28.The Tribunal erred as a matter of law in allowing the delay to interfere with any benefit to be allowed to the appellant for his first offence as no such consideration has been considered or given.
29.The Tribunal erred as a matter of law in finding that ‘the only interpretation that can be placed on the words and actions of the respondent and of V during the bail application’ this is an unsafe finding as the evidence and the submissions clearly support another interpretation. p.27 at 116. She did not say when asked the obvious answer to question being ‘No’, ‘I don’t’ or no I haven’t all three being present tense and obvious answers. Instead she replies past tense ‘I didn’t.
30.Or in the alternative the Tribunal erred as a matter of law in its findings in that ‘the words used by both the respondent and V should be taken to mean what they say’. The Tribunal erred in that the it ruled that the words should be taken to mean what they say and then did not follow that ruling. ‘I didn’t’ not that ‘I don’t’. p.27 at 117. I didn’t is past tense and taking the word to mean what it says means I didn’t but now I have. Further V answers the question she answers it in two distinct parts. ‘No, I didn’t’ – then she follows up with ‘yeah, sorry’. When taken as two distinct parts the response is clear when put together the response is equally as clear. Didn’t and yeah to a layperson do not mean no and no. V says nothing further from p.2 at 16 about her representation.
31.The Tribunal erred as a matter of law in finding that there is no evidence to refute the proposition that V was confused or affected by drugs or alcohol as there is no evidence to show she was not. p.27 at 118.
32.The Tribunal erred as a matter of law in not taking into account the evidence contained in Exhibit A Annexure A specifically the Statement of facts at p.2 para 7 and p.3 at para 4 which confirm V’s level of intoxication at about 11.50pm 26/07/08 p.2 at para 7 and 1.57am 27/07/08 p.3 at para 4.
33.The Tribunal erred as a matter of law in finding that there was no evidence to refute the proposition that she had no legal representation. p.27 at 118. Her words taken to mean what they say are clear and at no time does she say anything to the practitioner about him not having the right or her authority to represent her. The transcript is contrary to all of Ms Werner’s evidence and V thanks the practitioner for coming p.5 at 24.
34.The Tribunal erred as a matter of law in finding that G’s statement adds nothing relevant. p.27 at 119.
35.The Tribunal erred as a matter of law in finding that the legal aid application does not provide any evidence. p.27 at 119.
36.The Tribunal erred as a matter of law in finding that an inference can be drawn from the appellant’s failure to give evidence. p.28 at 121.
37.The Tribunal erred as a matter of law in finding that there is clear evidence set out in the transcript and audio recording. p.28 at 121. Or in the alternative the Tribunal erred in not understanding that ‘the words used by both the respondent and V should be taken to mean what they say’ with regards to the transcript and audio recording.
38.The Tribunal erred as a matter of law in having regard to irrelevant matters in deciding the penalty.
39.The Tribunal erred as a matter of law in not having regard to a number of relevant matters in deciding the penalty.
40.The Tribunal erred as a matter of law in not having regard to the excessive delay in making its findings on the matter and the penalty when deciding the penalty.

(3) Questions of fact
The evidence adduced at the hearing provides a too fragile a base to sustain the Tribunal’s finding of fact which are against the weight of evidence. The Tribunal’s finding of fact are unsafe and unsatisfactory. There are only three people that are able to give evidence as to the fact V, G and the practitioner. V and G have given unchallenged evidence and the practitioner has utilised his right not to give evidence.
1.The Tribunal erred in finding that V’s answer was responsive and without hesitation at para 74. Or in the alternative failed to apply its ruling that ‘the words used by both the respondent and V should be taken to mean what they say’.
2.The Tribunal erred in finding that V spoke without hesitation and that her words were clear and that she understood and was following the discussion at para 75. Or in the alternative failed to apply its ruling that ‘the words used by both the respondent and V should be taken to mean what they say’.
3.The Tribunal erred in finding that V was familiar with criminal bail applications at para 83. And failed to take into account that her criminal record as at 27/07/08 that was tendered disclosed that she had two FTA and a record composed of mainly breaches of recog and failures to abide by court orders.
4.The Tribunal erred in finding that the transcript shows that ‘no one was representing her and her response to the Magistrate’s question was made without hesitation or qualification at para.84 the words stated were MAGISTRATE ‘You haven’t got anyone representing you?’ V ‘No, I didn’t – yeah, sorry’. She did not say when asked the obvious answer to the question being ‘No’, ‘I don’t’ or no I havn’t all three being present tense and obvious answers. Instead she replies past tense ‘I didn’t. Or in the alternative failed to apply its ruling that ‘the words used by both the respondent and V should be taken to mean what they say’.
5.The Tribunal erred in finding that V did not say anything indicating that she recognised or acknowledged the appellant when he entered the room it fails to take into account that V did not say or indicate anything to stop the appellant from acting on her behalf as the Tribunal has found that she was following the proceedings para 85.
6.The Tribunal erred in finding that although V did not say anything in support of the appellant’s attempt to appear for her she also did not say anything to stop him or object to the prosecutor or Magistrate para 86.
7.The Tribunal erred in finding that although V did not say anything in support of the appellant’s attempt to appear for her she also did not say anything to stop him or object to the prosecutor or Magistrate the Tribunal has evidence in regards to V’s drug use and as such it would be an unsafe finding for it to decide that there is no objective evidence that she was affected by drug or alcohol use and the reverse applies in that there is objective evidence to say she was affected referring to the Statement of Facts.
8.The Tribunal erred in finding that there is an alternate explanation and meaning on the words used between V and the appellant as opposed to the meaning submitted by Mr Archer. The failure by the Tribunal to consider the alternative is an error and is further compounded by the fact that it found that although V was lucid non drug affected and following the proceedings and was not shy about speaking out despite hearing what the appellant had said to the court she did not correct him or speak out. Para 88.
9.The Tribunal erred in finding that ‘It was consistent with V assuming that G had manipulated a scenario in which the practitioner would not be able to appear for her’. This is not the evidence para 88.
10.The Tribunal erred in finding that ‘the exchange is consistent with V’s statement to the Court that she was not represented’. Para 88.
11.The Tribunal erred in its finding at para 89 as there is evidence in the transcript at p.4 at 15 ‘my only instruction was to speak to the defendant’. p.4 at 40 ‘and asked if I would go downstairs and see the defendant’.
12.The Tribunal erred in not taking into account the evidence at p.4 at 40.
13.The Tribunal erred in not taking into account the transcript at p.4 at 15.
14.The Tribunal erred in finding that despite the only applicant witness Ms Werner being found not to assist the Tribunal it disregards the two witnesses V and G’s uncontested evidence.
15.The Tribunal erred in finding that the dates and the time written on the form, that the form was signed before the bail application occurred. The failure to accept this fact is an error of fact and no other evidence has been given about the signing of the firm apart from the exhibit and V’s uncontested statement that she signed it in the cells prior to the bail application. p.23 at 102.
16.The Tribunal erred in finding that G’s statement at 25 para 107 was inconsistent.
17.The Tribunal erred in finding that G’s statement at p.25 para 108 was inconsistent.
18.The Tribunal erred in finding that it did not attach any weight to G’s statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.
19.The Tribunal erred in finding that the statements made by V in her statement were inconsistent.
20.The Tribunal erred in finding that it did not attach any weight to V’s statement as a result of inconsistencies. This is an impossibility as the statements are in evidence and unchallenged.

Consideration of the grounds of appeal

In order to deal properly with the appeal, which essentially addressed a small range of issues, but which had been pleaded so expansively, I think it is easiest to address the arguments addressed to the Court serially and deal with each.

Because, as noted, the oral submissions were not really related to specific grounds of appeal, I will try to articulate the issue and relate it where I can to the written grounds of appeal.

It is convenient to deal with the oral submissions first.

On the findings of fact of the ACAT, the first ground of the complaint could not be made out (apparently the chapeau to the Questions of Fact and some of the grounds thereunder specified together with Question of Law grounds 3 and 4)(a)

The Legal Practitioner initially submitted that “there’s an issue in regard to the impossibility of the charge.” That seemed to mean that because the terms of the complaint (at [10] above) comprehended in its formal articulation all three of the grounds and because the ACAT had dismissed one of the grounds, namely that relating to an alleged conflict of interest, the complaint could not be made out.

I do not consider that this is the way to approach the pleading of the complainant. The complaint has three grounds, the last having four separate representations. It is not a criminal charge where, if one element is not proved, the offence the subject of the charge is not proved. The grounds of the complaint are not elements but particulars. Any of the particulars of the complaint, if made out to the requisite degree of proof, would be sufficient to found an appropriate disciplinary finding because they would show some departure from the conduct to be expected of a legal practitioner.

The Legal Practitioner, however, submitted that Smith v New South Wales Bar Association (1992) 176 CLR 256 required that all the elements of the pleaded complaint had to be made out. He referred to the following passage in the judgment of Deane J at 270:

Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct. Two of those requirements in such proceedings are relevant for present purposes. The first is that the allegation against the particular practitioner must be specifically identified. The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them. (Citations omitted).

This does not support the submission. The Legal Practitioner was made very aware of the allegations against him and could have been under no misapprehension. That the particulars of the complaint were cumulative but separate was clear in the way the grounds were specified. There was nothing at all to suggest that only if all three grounds were proved could a complaint sounding in disciplinary action be upheld.

When confronted with this, the Legal Practitioner then changed tack and submitted that none of the grounds had actually been made out as a matter of fact. That led to a lengthy consideration of the first ground, namely that the Legal Practitioner deliberately or recklessly misled the court.

The Legal Practitioner’s submission was that he could not have been guilty of this ground because the ACAT had found that the Court was not misled. He submitted that the complaint was not that he attempted to mislead the Court, but that he did so.

Mr N Beaumont, who appeared for the Council, submitted that, construed properly, the Legal Practitioner did mislead the Court, though ultimately it was not misled, as found by the ACAT.

He submitted that, at least, the initial remark made by the Legal Practitioner achieved this.

The Legal Practitioner interrupted the proceedings. He, of course, had no right to do so unless he had an interest in the proceedings, that is, because he was acting for someone entitled to be heard.

The Legal Practitioner then said: “I’ve just been instructed in regard to this matter”. That, it was submitted, could only have meant that he was instructed by Ms V.

What is complicated is that, in his subsequent, but not immediate, correspondence with the Law Society, that is what he says is the position; his position was that he spoke to Ms V in the court cells, obtained her signature on an application for legal aid and was instructed to appear for her. That is why, apparently, he was rushing into Court and interrupted the proceedings.

At issue here were matters that were factual and of which the Legal Practitioner had peculiar knowledge. For example, how the variations in the form of the two statements each made by Ms V and Mr G came about and what involvement he had in the making of the statements.

Further, the Tribunal in Council of the Law Society of New South Wales v Clapin make no reference to decisions of courts by which it was bound and which had come to somewhat different views of this matter. For example, in Coe v New South Wales Bar Association [2000] NSWCA 13 at [21] Meagher JA, with whom Priestley JA agreed, said

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

A differently constituted Court of Appeal held in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70], Tobias JA, with whom Bryson JA agreed and, on this issue Basten JA also agreed, said

70In my opinion, the Tribunal also erred in declining to criticise the respondent’s decision not to give sworn evidence at the hearing. It is true that in professional disciplinary proceedings the onus of proving misconduct lies with the party bringing the charges and, it should be noted, a practitioner is not required to give evidence. However, as this Court observed in Coe v NSW Bar Association [2000] NSWCA 13, there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying upon evidence from the Bar table.

His Honour then set out the passage I have quoted above (at [261]) with apparent approval.

I note that Hall J in Council of the New South Wales Bar Association v Davison [2006] NSWSC 65 distinguished such cases and held that in that case the lawyer was not obliged to give evidence, but that his failure to do so left the evidence amenable to the rule in Jones v Dunkel.

That the failure of the Legal Practitioner to give evidence or to call Ms V or Mr G, who were clearly available, left open the application of the rule in Jones v Dunkel is, in my view, unarguable. It is supported by authority. The New South Wales Court of Appeal held that, in appropriate cases, the rule applies in legal profession disciplinary proceedings in Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451 at 459-67; [13]-[29].

See also Thorpe v Legal Practitioners’ Complaints Committee [2007] WASCA 8 at [44]-[46] and New South Wales Bar Association v Punch [2008] NSWADT 78 at [52]-[56].

The ACAT was entitled to rely on the fact that the Legal Practitioner did not give evidence, and did not call Ms V or Mr G, to draw an inference that the evidence given by all three would not have been favourable to the Legal Practitioner, even though it was not necessary ultimately to rely on any such inferences.

This ground is not made out and there is no error in the findings of the ACAT on this issue.

The ACAT erred as a matter of law in finding that the Legal Practitioner ‘deliberately or recklessly’ misled the court (Question of Law ground 4)(e)

This was, in the written submissions, largely, a repeat of earlier submissions, but was barely addressed in oral submissions.

The first point was that the charge could only have been a charge of attempting to mislead and not of actual misleading. I have dealt with this earlier (at [150]-[185]). The Council submitted correctly that this issue was not raised at the hearing and so should not now be permitted to be raised. There is force in that submission for, as noted, the Council could have, if it considered it necessary, sought to amend the particulars of the complaint.

I have found that this would not have been necessary. It does seem to me, however, that in a matter as significant as to whether, on the findings of the ACAT, the Legal Practitioner could have been found guilty of the complaint as particularised by the Council, the fact that the issue was not raised at the hearing may not preclude it being raised on appeal. The principles, though in respect of criminal matters, established in Fingleton v The Queen (2005) 227 CLR 166 at 174; [6]; Crampton v The Queen (2000) 206 CLR 161 at 170-1; [5]-[10]; 182-4; [47]-[52]; Gipp v The Queen (1998) 194 CLR 106 at 153-5; [134]-[138]; Giannarelli v The Queen (1983) 154 CLR 212 at 221, seem to favour such an approach.

Nevertheless, this issue does not avail the Legal Practitioner.

He submitted that the essence of the charge of misconduct constituted by misleading the court is that the lawyer has done something dishonourable. He referred to what Lord Esher MR, with whom Fry and Lopes LJJ, agreed said in In Re G Mayor Cooke (1889) 5 TLR 407 at 408. As Lord Denning said in Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, the dishonourable quality lies in knowingly misleading the court.

What it appears that the Legal Practitioner was suggesting was that he had innocently misled the court.

The difficulty for the Legal Practitioner is that his approach to the facts in this case has been inconsistent and confusing. His ultimate position was that he was actually instructed by Ms V whom he had seen in the court cells immediately prior to the court hearing of the bail application and that he held an application for legal aid signed by Ms V as his instructions to act for her.

This makes the construction of his initial actions (obtaining the statement of facts) and announcing his appearance (“I’ve just been instructed in regard to this matter”) consistent, and only consistent, with him announcing an appearance for Ms V by whom he was implicitly and necessarily asserting that he had been instructed.

It makes his subsequent statement to the Court, that he was instructed by Mr G, misleading (though not particularised by the Council, for their position, ultimately accepted by the ACAT, was that he had not been instructed by Ms V) and a lie to the Court, for he had not been, on his final position, as stated in his letter to the Law Society of 18 October 2008, instructed by Mr G merely to speak to Ms V.

The Legal Practitioner completely failed to reconcile these two inconsistent scenarios, trying, indeed, to hold to both of them.

It seems to me that, having found that the ACAT did not err in finding that the Legal Practitioner had not been instructed Ms V, he must have known he had not been instructed by Ms V when he obtained the statement of facts and announced his appearance; it is not possible to find that he did so innocently. Thus, the grounds of the complaint are made out and this ground of appeal is not made out.

The evidence could not have sustained the findings of the ACAT (Questions of law grounds 29, 30, 31, 32, 33, 34, 35 and 36)(f)

These grounds, not addressed orally, added little to what has already been said earlier.

The Legal Practitioner summarised these by making two points, both unarguable propositions, though not maintainable on the facts of this case. He submitted:

1. “There is no cure for a weak case by way of submissions from the bar table on the acceptance of competing available and reasonable inference being directed to only the [Council]”; and

2. It is “not up to the [Legal Practitioner] to disprove the case against him it was up to the [Council] to prove its case”.

The written submissions, however, broadly traverse issues that have already been considered:

(a) The Council did not call Ms V or Mr G and put to them “any questions about their credit or statements”;

(b) There were no discrepancies in the statements of Ms V and Mr G; and

(c) The response of the Legal Practitioner was consistent and unchallenged.

None of these matters can be maintained and must be rejected for reasons already given.

The Legal Practitioner then attempted to construe the transcript in a way that is consistent with one of his scenarios. I shall briefly refer to these issues.

The Legal Practitioner made the following submissions:

1. Ms V’s response to the question of the learned Magistrate about whether she had legal representation, namely “No, I didn’t – yeah, sorry”, were not responsive nor made without hesitation. I reject that submission. Having regard to the recording of the evidence, I conclude that the finding of the ACAT about these matters was open to it and certainly there was no error of law.

2. Ms V’s response “No, I didn’t – yeah sorry”, the Legal Practitioner submitted, “imply the alternative”. I do not understand that submission. I have earlier discussed this response and concluded that it does not help the Legal Practitioner.

3. The Legal Practitioner then submitted that the learned Magistrate in her statement “It’s unbelievable [the Legal Practitioner] that you would purport to act on behalf – that you are instructed by a victim to go and speak to a defendant” shows she was not misled. Her Honour, however, was making it clear that she was initially misled, for it is clear that she was going to say “to act on behalf of the defendant”, namely the first position taken by the Legal Practitioner but corrected herself, for the Legal Practitioner, having been chided by her Honour, had changed his story and (inconsistently with what he told the Law Society) told her Honour he had only been instructed by Mr G to speak to Ms V, not that he had been instructed by Ms V. That is of no help to the Legal Practitioner and, indeed, re-inforces the case of the Council.

4. The Legal Practitioner then submitted that his earlier response namely “No” to the earlier comment of her Honour, who stated “I’m not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault to representing the defendant”, means that what her Honour said was not the case. He seems to suggest he was agreeing that he had not been instructed by Mr G. That is unbelievable, because he did actually say to her Honour that this was the case, though he then tries to ameliorate it by saying that his “only instruction was to speak to the defendant”. This is inconsistent with his later response to the Law Society in which he said he had instructions from Ms V – the instruction to speak to Ms V not being his “only instruction”. I can only conclude that the Legal Practitioner is capable of holding inconsistent and diametrically opposed views, swapping from one to another when it suits his purpose or when he fears that one is prejudicial to his interests. I hesitate to conclude that this amounts to rank dishonesty, but it is difficult to think of a rational but innocent explanation.

5. The Legal Practitioner submitted that when he said he used the word “instruction” in respect of his discussion with Mr G, that was a careless use of words; it only meant “asked”. If, however, this is what he meant, it is incredible that, on his version, he did not refer at any stage at all to what he later stated were his “instructions” (properly meant) from Ms V.

6. The Legal Practitioner then made the surprising submission that, had he been allowed to finish his second statement to her Honour, namely “I’ve been instructed by ...”, he “would have said ‘instructed by [Ms] V’”. That, it seems to me, proves the case made by the Council. The Legal Practitioner’s only lame response is that he was not allowed to finish. He has, however, conceded that he was actually going to say what everyone in the Court assumed he was saying. Their assumptions were correct and amounts to an admission of the case made against him. It is, therefore, unsurprising that his counsel made the concession before the ACAT that he did appear for Ms V before the Court.

7. The Legal Practitioner then submitted that Ms V made no statement contradicting the statement of the Legal Practitioner “about being asked to go downstairs and see [Ms V]”. He submitted that Ms V made no contradictory statement. One would not, however, expect a contradictory statement, for the Legal Practitioner never said anything which Ms V could contradict. He did not say that he had gone downstairs. In fact, Ms V said “Yes, he needs to go to the ---”, which is only consistent with Ms V having no idea what is going on and no recognition of the Legal Practitioner, nor having seen him, on the case ultimately put by the Legal Practitioner, only a few minutes earlier.

8. The Legal Practitioner made the rather extreme submission that if Ms V’s failure to support the Legal Practitioner’s appearance for her expressly and in words is held against him, then “[i]f this is now a prerequisite for appearances then perhaps other practitioners should be advised”. I do not know if the Legal Practitioner is deliberately misconstruing the position or not. It is clear here that there is a challenge to his retainer; that is very unusual. It is, of course, relevant when there is such a challenge as to whether the alleged client confirms the retainer. It is, of course, unnecessary for a client to affirm a lawyer’s retainer when there is no challenge to it.

9. The Legal Practitioner submitted that the finding by the ACAT that the formal exchange with Ms V was consistent with Ms V assuming that Mr G had manipulated a scenario in which the Legal Practitioner could not act for her “makes absolutely no sense”. I reject that. Indeed, it is only consistent with Ms V’s reference to “he’s very manipulative” as referring to Mr G; there was, apart from the Legal Practitioner, no other relevant male involved and Ms V would not refer to the Legal Practitioner as “he” if talking to him. Given the events, namely that the Legal Practitioner could not, on the direction of the learned Magistrate, act for Ms V that day at least, the finding by the ACAT was at least open to that interpretation if not, as I conclude, the most likely meaning to be given to the words.

10. The Legal Practitioner submitted that the evidence of Ms Werner was quite wrong and of no value. Indeed, he submitted she was not a witness of truth. The ACAT accepted that Ms Werner made errors in her recollection but, as it was entitled to do, accepted some parts of her evidence and rejected other parts. It is relevant that it was never put to Ms Werner in cross-examination by counsel for the Legal Practitioner that her recollection was faulty or that she was unreliable; indeed, the Legal Practitioner’s counsel sought to adduce relevant evidence from her which he did not challenge and on which he appeared to rely. As often is a mark of an honest witness, Ms Werner conceded that she could be wrong about matters she recorded in her note which were not included in the transcript of the hearing. There was no occasion for the ACAT to reject all the evidence of Ms Werner; it was open to it to accept those parts of her evidence on which it did rely.

11. The Legal Practitioner reported several times the submission that the statements of Ms V and Mr G were not challenged. That is simply wrong. It was crystal clear that the Council tendered them only as part of the Legal Practitioner’s response and that it challenged them vigorously and, in my view, successfully.

12. The Legal Practitioner submitted that there was “a very strong inference” that the application for legal aid was signed before the bail application was made. He principally relied on the fact that the question “When is the next court date (if you know)?” was answered “28/7/08 ... 12 pm” which was the hearing to which the Legal Practitioner says he then directly went after seeing Ms V in the court cells. It is consistent with this, but it is also consistent with the Legal Practitioner seeking to have the grant of aid dated from that day so that his appearance on the bail application would be paid for by Legal Aid. That latter construction is supported by his false annotation on the application form that he had appeared from Ms V and managed to obtain bail for her. There was no particularly strong inference either way and the ACAT was entitled to make the finding that it did.

These grounds of appeal cannot be upheld; there is no error shown to have been made by the ACAT.

The evidence of the statements of Ms V and Mr G should have been accorded significant weight (Questions of Law grounds 16, 22, 23, 24 and 26)(g)

The Legal Practitioner submitted that the statements of Ms V and Mr G were unchallenged and were strong evidence in support of his response to the complaint. It was, he submitted, an error for the ACAT to have rejected them and not to have relied on them.

I have addressed much of this above. I have shown how Mr G’s statement is so confusing, internally inconsistent, inconsistent with facts established independently and inconsistent with the response of the Legal Practitioner that the ACAT was entitled to find it of no weight. There is no basis on which the ACAT could reasonably have relied on it. It was, I repeat, not unchallenged; it was strongly challenged and effectively so.

Ms V’s statement was similarly unreliable. It stated that she asked the Legal Practitioner to act for her when he saw her in the court cells just before her bail application. It states that she asked him to act on that application. Indeed, she further states that she had requested that he be contacted to act for her.

This is simply inexplicably inconsistent with her response to the questions from the learned Magistrate about whether she was represented. It is also inconsistent with her later statement recorded in the transcript that she thought the Legal Practitioner “was Legal Aid”.

It also went further than Ms V could possibly go. She stated that the Legal Practitioner was not aware that Mr G was the complainant before he entered the Court. She could not know that. Indeed, it was inconsistent with the more likely interpretation of the Legal Practitioner’s statement to the learned Magistrate about the fact that Mr G was the “victim” which must have been known to him before he entered the Court. In any event, it was also inconsistent with the disclosure on the application form for legal aid which disclosed who the “victim” was.

The statement states that Ms V “was bailed thanks to him”. That is not so, and even Ms V could not reasonably have believed that.

It was, at the very least, open to the ACAT to reject the statement; indeed, there was every reason to do so.

The Legal Practitioner challenged the finding of the ACAT that there was “no evidence that [Ms] V was confused or affected by drugs or alcohol when she denied that she had legal representation”. He did not refer to any basis for this in his submissions. It is not my function to hunt for such a basis or speculate on what it might be. The ground must be rejected.

The ACAT delayed its decision (Question of law ground 28)(h)

The Legal Practitioner submitted that there was delay. That is so. The incident giving rise to the complaint occurred on 28 July 2008. The proceedings were heard on 19 June 2009. I do not consider that this is unreasonable, given the need for proper investigation, especially as the affidavit of the Legal Practitioner himself, though not read, was only filed on 12 May 2009.

The ACAT did not deliver its decision until 19 October 2010. That is a regrettable delay. The Legal Practitioner, however, made no submission as to how that affected the decision. I do not consider it did so. See Blundell v Leighton [2013] ACTCA 1 at [22]-[29].

The ACAT erred in finding ground 3(c) and (d) proven (Questions of law grounds 5 and 7)(i)

For some unaccountable reason, the Legal Practitioner addressed submissions on grounds 3(a) and (b), on which the ACAT had found that the complaints could not be upheld. I do not need to address these submissions.

As to grounds 3(c) and (d), the Legal Practitioner relied on the proposition that there is a difference between the rejection of a person’s evidence and the finding that he or she deliberately lied. That is not difficult to accept. If authority is needed, see Smith v New South Wales Bar Association at 268 and O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 208, 230. A rejection of such evidence may, however, lead to such a conclusion.

The Legal Practitioner referred to the problem of rejecting sworn evidence as mentioned by Cussen J in R v Richmond [1920] VLR 9 at 12 and that a person who deliberately lies when giving evidence is guilty of perjury, as held by R v Hook (1858) 169 ER 1138 at 1142. These submissions, however, are irrelevant, for the Legal Practitioner never gave sworn evidence in these proceedings.

The submissions under this heading rehearsed many of the points already made by him and addressed above. It is not clear why there was such needless repetition in his submissions; repetition did not make bad submissions any better.

The Legal Practitioner did submit that if “there is an allegation or inference that [the Legal Practitioner] had lied to [the Law Society] then ... [he] should be given the opportunity of giving evidence to explain his position”. What the Legal Practitioner strangely did not seem to realise was that he had, at the hearing, been given that opportunity, as was his right, but he had chosen not to avail himself of it.

Again, in his submissions, the Legal Practitioner admitted the facts in relation to ground 1 by asserting that he had announced his appearance for Ms V, his client.

Other than on the basis of his challenge to the ACAT finding on ground 1, which, were it otherwise, would not have meant that the letters of the Legal Practitioner to the Law Society, were not lies, and which challenge I have rejected, there was no relevant submission on these grounds.

There was no error in the finding made by the ACAT as challenged under this ground.

The conduct was not professional misconduct (Question of law grounds 19, 20 and 21)(j)

It is hard to see what submission the Legal Practitioner makes in support of these grounds.

There are two grounds for disciplinary action under the Legal Profession Act 2006 (ACT) unsatisfactory professional conduct and professional misconduct – they are both defined in the Act as follows:

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 of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

387 What 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.

I note that both are “inclusive” definitions. In my view, that means that the common law definitions are not necessarily excluded, unless, of course, they are inconsistent with the statutory definitions.

I have referred earlier (at [77]) to the common law, where professional misconduct has been defined in Allinson v General Council of Medical Education and Registration, an approach followed in Australia.

Misleading a court is serious misconduct for it strikes at one of the pillars of the success of the common law system of the administration of justice, namely the confidence that the courts can place on the honesty and candour of their officers, the lawyers who appear before them. The administration of justice would proceed more slowly and at a greater cost were the courts not able to rely on the honesty and candour of those lawyers, as noted by Mahoney JA in Foreman v Law Society of New South Wales (No 2) (1994) 34 NSWLR 408 at 445-6.

It has long been considered that misleading the court is a grave and serious offence amounting to professional misconduct. See O’Reilly v Law Society of New South Wales at 208. As Higgins and Foster JJ said in Re Nelson and the Legal Practitioners Act 1970 (1991) 106 ACTR 1 at 23

It would be a grave matter reflecting adversely on the solicitor’s fitness to practice, if, rather than frankly facing deficiencies in his conduct, he gave false evidence to this court or made false denials or assertions to the Law Society to avoid disciplinary action (or, indeed, for any other reason).

Similarly, misleading the Law Society is usually considered to be professional misconduct, as the Full Court held in Law Society of the Australian Capital Territory v Burns at 294-5; [42]-[44].

The Legal Practitioner made no substantive submissions on these grounds. It appears that he was inferentially submitting that his behaviour in court was “incredibly sloppy” work, rather than a serious breach of his duty of honesty and candour. That, he appeared to be inferentially submitting, was because it involved innocent false representations. He relied on Xu v Council of the Law Society of New South Wales (2009) 236 FLR 480. That was, however, a completely different case. There, the complaint did not involve any kind of dishonesty (at 486; [23]) and involved very poor conveyancing practice and the improper exercise of a lien.

The court described the conveyancing work as “incredibly sloppy” and irresponsible (at 491; [50]). It held that, if repeated, then that could amount to professional misconduct but, by itself, it was an isolated departure from proper professional responsibility and amounted only to unprofessional conduct.

Here, the Legal Practitioner has committed acts that are substantively more serious; they involve dishonesty and strike at the integrity of the administration of justice and the proper relations with the legal profession. Not only that, the offences were not isolated; the misleading of the court continued to involve misleading the Law Society as well.

I have no doubt that the behaviour constituted professional misconduct. Therefore, I find no error in the decision made in this respect by the ACAT.

The penalty imposed by the ACAT was too severe (Questions of law grounds 28, 38, 39, and 40)(k)

The Legal Practitioner made three submissions; he submitted that the ACAT should have imposed a separate penalty for each finding, he submitted that the ACAT erred in taking his prior disciplinary history into account when deciding the penalty and he submitted that the penalty was too severe.

I shall deal with each of these submissions in turn. It should, however, be noted that the decision of the ACAT is, as submitted by the Council, a discretionary decision. It must, therefore, be set aside only if there are errors of the kind identified by the High Court in House v King (1936) 55 CLR 499 at 504-5.

It seems to me that there is no requirement that the ACAT should impose a separate penalty on each ground of a complaint which it upholds. Indeed, I am not at all convinced that, were there to have been separate complaints, there should have to be a separate penalty on each complaint.

The Legal Practitioner cited no authority. Indeed, the authority to which he had earlier referred, Xu v Council of the Law Society of New South Wales, showed the court acted inconsistently with his submission by, in fact, imposing one undifferentiated fine for the two charges.

In any event, his submission appears wrong in principle. As Deane J said in Smith v New South Wales Bar Association at 270,

Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner.

This must mean that the disciplinary body, whether court or tribunal, must retain the right to evaluate that separate acts of professional misconduct might, individually, not require the striking off of a practitioner’s name from the Roll, but, cumulatively, that may be required to meet the purpose of the proceedings.

In this case, in any event, there was one complaint; the grounds were in the nature of particulars of the complainant. This would further justify one penalty for the whole of the conduct actually found.

There is no basis for this appeal ground and no error is shown in the findings by the ACAT.

The ACAT, differently constituted, had previously made findings against the Legal Practitioner in other disciplinary proceedings brought by the Council. The ACAT had there found the Legal Practitioner to have been dishonest and recommended the removal of his name from the Roll.

The ACAT found

23.We do not accept the respondent’s submission that the earlier case should not be considered because it was not a ‘prior’ case. We note that the earlier case involved incidents that took place in the second half of 2007 and in early 2008. This application involves an incident that took place in July 2008 and representations made during the course of investigations in late 2008. They were later incidents. We also do not accept, as a matter of principle, that the earlier case should not be considered just because it is the subject of an appeal to the Supreme Court. However, the view we have taken of the seriousness of the findings in this matter is such that the earlier case does not add anything to our consideration of penalty.

Again, no authority was cited in support of the submission by the Legal Practitioner that the earlier matter should not be considered.

The fact is that a duly constituted body has found the Legal Practitioner to have been guilty on another occasion of professional misconduct. It is very relevant that there is no automatic stay on appeal (cf s 216 of the Magistrates Court Act 1930 (ACT)) and, in fact, no stay has been granted pending this appeal.

In Re Middle Harbour Investments Pty Ltd (in liq) (Unreported, New South Wales Court of Appeal, Moffit P, Mahoney and Glass JJA, 15 December 1976) Mahoney JA, with whom Moffit P and Glass JJA agreed, pointed out

Prima facie, a successful party is entitled to the benefit of the judgment obtained by him [sic] and is entitled to commence with the presumption that the judgment is correct.

This is consistent with the nature of an appeal as explained in Warren v Coombes (1979) 142 CLR 531 at 552-3.

It is also echoed, though in a criminal context, by what Brennan J said in Chamberlain v The Queen (No 1) (1983) 153 CLR 514 at 519-20

To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should only take effect after all the channels of appeal have been exhausted ... To grant bail in such a case is to whittle away the finality of the jury’s finding and to treat the verdict as merely a step in the process of appeal.

In my view, the ACAT was entitled to have regard to its earlier findings of professional misconduct against the Legal Practitioner. In any event, it found that it could still arrive at the same penalty without such reliance, thereby making any finding of error, though I have not done so, not determinative of the appeal.

The final matter is that the Legal Practitioner sought to show that the penalty was too severe. He did that by reference to other cases where dishonesty was shown in various ways, including the misleading of a court, yet where the penalty was not that the solicitor’s name should be struck off the Roll.

There was, however, no analysis of the cases by the Legal Practitioner to show any principle or approach to penalty that would be relevant to an assessment of the appropriateness of the penalty that the ACAT had recommended.

It may help to identify some relevant factors.

The Legal Practitioner had been admitted for less than two years at the date of the matters the subject of the complaint. He was, however, a mature man who had come to law later in life; he was 57 at the time of the ACAT hearing.

The level of experience, however, has two aspects. On the one hand, inexperience and a general lack of understanding of a solicitor’s duties to a client may ameliorate the seriousness of conduct, as in Re Fabricius and McLaren and Re Legal Practitioners Ordinance 1970 (1989) 91 ACTR 1 at 9-10. This seems hardly to apply here, for dishonesty to a court is as fundamental an issue as one could imagine.

The other aspect is that a defect in character such as dishonesty is not something related to inexperience. I have already referred to what McPherson JA said in Attorney-General v Bax above (at [127]).

The Legal Practitioner has, by his submissions on the present appeal, shown that he is neither contrite nor remorseful. He continues to challenge the findings of fact and penalty and, in his submissions on penalty, continued to traverse the findings of the ACAT.

The findings of the ACAT also show that the Legal Practitioner attempted to cover up the behaviour by lying to the Law Society. Thus, the lapse was not an isolated instance, but an ongoing pattern of behaviour. This pattern of behaviour is how the earlier proceedings are relevant, though the ACAT decided it did not need to take them into account.

The Legal Practitioner referred in his submissions to the ACAT to three of its earlier decisions in relation to other legal practitioners; one was a quite different case, and the other two did not disclose any penalty. They were odd authorities to rely on for penalty.

In the appeal, he referred to Vogt v Legal Practitioners’ Complaints Committee [2009] WASCA 202. That was also a case of misleading the court. The WA Court of Appeal held, with respect quite properly, that an order removing a practitioner’s name from the Roll was not an inevitable order for such conduct.

The mitigation there, however, was substantial. Here there were no references from fellow practitioners, the conduct was not an isolated incident. The lawyer in that case had an unblemished record, he had put into place specific arrangements to prevent the situation that led to the conduct arising again and he had carried out substantial pro bono work.

Nevertheless, the Court held that a suspension was still appropriate.

Intentionally misleading the court is a very serious matter. See Vogt v Legal Practitioners’ Complaints Committee. It applies even where the misleading is for a short time and is soon discovered. See Kyle.

The attempt to resort to dishonesty to conceal misconduct is also very serious. See Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 at 80.

The Legal Practitioner has disclosed no error in the decision of the ACAT as to penalty.

These grounds of appeal do not succeed.

Conclusion

The appeal of the Legal Practitioner cannot succeed. It is appropriate that the appeal be dismissed with costs.

The proceedings should be remitted to the ACAT to implement its orders.
I certify that the preceding three hundred and forty-nine (349) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 20 February 2014

Counsel for the appellant:  In person
Solicitor for the appellant:  In person
Counsel for the respondent:  Mr N Beaumont
Solicitor for the respondent:  Phelps Reid Lawyers
Date of hearing:  26 April 2012
Date of judgment:  21 February 2014