Lind v Legal Profession Conduct Commissioner

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
LIND v LEGAL PROFESSION CONDUCT COMMISSIONER
[2022] SASC 20
Judgment of the Honourable Justice Blue
PROFESSIONS AND TRADES - LAWYERS - PRACTISING CERTIFICATES
PROFESSIONS AND TRADES - LAWYERS - QUALIFICATIONS AND ADMISSION - FIT AND PROPER PERSONS
The applicant filed affidavits in March 2016 giving notice and providing a written statement in respect of a show cause event under subsection 20AH(2) of the Legal Practitioners Act 1981 (SA). The show cause event comprised 23 “tax offences” within the meaning of the Act, namely failing to lodge an income tax return in respect of the years ended 30 June 2009 to 30 June 2014 and failing to lodge a Business Activity Statement containing Goods and Services Tax (GST) information in respect of the quarters ended 31 December 2010 to 31 December 2014.
Between May 2017 and June 2021 there were a series of hearings during which the Court monitored, amongst other things, Ms Lind’s progress in relation to resolution of claims by the Australian Taxation Office for payment of tax and ongoing lodgement of income tax and BAS returns. Over much of this period the practitioner did not lodge BAS or income tax returns on time; the resolution of the tax debt claims by the practitioner was protracted; and the practitioner did not for various reasons comply on time with orders by the Court for filing material or providing information.
The question is whether the Court should make orders under section 20AI of the Act suspending or imposing conditions on the practitioner’s practising certificate.
Held:
1The practitioner is not a fit and proper person to practice under an unconditional practising certificate but is fit and proper to practise under a conditional practising certificate under conditions including that she practise only as a consultant to a law firm (at [96]).
2An order should be made under section 20AI imposing conditions on the practitioner’s practising certificate that she practise only as a consultant to Bellman Lawyers and on other conditions agreed between the parties in the event the Court were to make such an order (at [97]).

Legal Profession Conduct Commissioner v Fowler (2020) 136 SASR 252; The Legal Practitioners Act 1981 (SA) re David Peter Andrew Moen [2018] SASC 136; The Legal Practitioners Act 1981 (SA) Re Duncan James Fowler, A Practitioner [2019] SASC 64, considered.

LIND v LEGAL PROFESSION CONDUCT COMMISSIONER
[2022] SASC 20

BLUE J: The applicant, Katrina Lind, filed affidavits in March 2016 giving notice and providing a written statement in respect of a show cause event under subsection 20AH(2) of the Legal Practitioners Act 1981 (SA) (the Act). The show cause event comprised 23 “tax offences” within the meaning of the Act, namely failing to lodge an income tax return in respect of the years ended 30 June 2009 to 30 June 2014[1] and failing to lodge a Business Activity Statement (BAS) containing Goods and Services Tax (GST) information in respect of the quarters ended 31 December 2010 to 31 December 2014.[2]
[1] Taxation Administration Act 1953 (Cth) section 8C(1).
[2] Taxation Administration Act 1953 (Cth) section 8C(1).
The Legal Profession Conduct Commissioner (the Commissioner) and the Law Society of South Australia (the Law Society) were joined as intervenors and subsequently[3] as interested parties in the action as a result of their right to make representations under subsection 20AH(4) of the Act.
[3] After the Uniform Civil Rules 2020 (SA) substituted the role of interested party for the role of intervenor.
Between May 2017 and June 2021 there were a series of hearings during which the Court monitored, amongst other things, Ms Lind’s progress in relation to resolution of claims by the Australian Taxation Office for payment of tax and ongoing lodgement of income tax and BAS returns. After this process was completed, the question whether the Court should make orders under section 20AI of the Act was listed for hearing on 15 and 18 November 2021.
The ultimate issues are whether:
·Ms Lind has shown that she is a fit and proper person to hold a practising certificate and, if not, whether her practising certificate should be suspended or amended to impose conditions under subsection 20AI(1)(b) of the Act; and
·conditions should be imposed on Ms Lind’s practising certificate that she practise only as a consultant under subsection 20AI(1a) of the Act.
Background
Ms Lind was born in 1962. She was admitted as a legal practitioner in 1986. She was then employed by Poveys and then successively in other legal firms. She specialised initially in commercial litigation and then also in family law.
In about 1998 Ms Lind acquired an interest in a company operating a hotel in Port Adelaide, which she retained until 2013. At some stage she became a director of that company, which I infer continued until 2013. Ms Lind also had an interest in a property partnership that owned the hotel premises. Ms Lind apparently did not receive any income as a result of her interest in the hotel or land. She sustained losses either in respect of her interest in the hotel or land or in a subsequent hotel referred to at [27] below. The losses were able to be carried forward for tax purposes.
In 1999 Ms Lind and Ronald Bellman commenced practising as solicitors in partnership under the name Windevere Bellman. Ms Lind practised in family law, wills and estates and commercial matters. The partnership continued until it was dissolved with effect on 30 June 2010 as a result of disciplinary proceedings that by then had been brought against Ms Lind (referred to below).
In 2000 a person who had worked as a legal secretary at Poveys when Ms Lind had been employed at Poveys died. The secretary named Ms Lind as an executor in her will. Probate was not obtained for 14 months. This was because Ms Lind gave priority to other work. Thereafter, Ms Lind took very few steps to administer the estate. She ultimately instituted a misguided action on behalf of the estate against a builder and then took few steps to advance that action. Solicitors for the secretary’s father wrote letters to Ms Lind, to which she did not reply. The father complained to the Legal Practitioners Conduct Board, which wrote letters to Ms Lind, to many of which she did not reply.
In 2010 the Conduct Board laid a charge of unprofessional conduct against Ms Lind in the Legal Practitioners Disciplinary Tribunal. After dissolution of the partnership with Mr Bellman in June 2010, Ms Lind commenced practising as a sole practitioner from her home. In general, she only had a limited number of files and worked less than 40 hours per week.
Ms Lind has since about 2006 retained a firm of accountants, Bentleys, to lodge her income tax returns. Her income tax return for the year ended 30 June 2009 was due for lodgement in the first half of 2010. She failed to lodge this return (or provide instructions and information to Bentleys to do so) and thereafter over the next five years she failed to lodge a tax return for the years up to and including the year ended 30 June 2014.
Ms Lind’s BAS return for the quarter ended 31 December 2010 was due by 28 February 2011. She failed to lodge this return and thereafter over the next four years she failed to lodge a BAS return for the quarters up to and including the quarter ended 31 December 2014.
In 2010 the Tribunal found Ms Lind guilty of unprofessional conduct relating primarily to her conduct of the secretary’s estate matter. This involved failure to attend to her professional duties in a timely manner, leading to a delay of nine years in resolution of the estate and action against the builder; failing to report or account to beneficiaries for several years; and failing to assist the Board with its inquiries or respond to repeated requests by the Board over several years. The Tribunal recommended that a disciplinary proceeding be instituted against Ms Lind in this Court.
In 2010 the Conduct Board instituted a proceeding in this Court seeking an order striking off the name of Ms Lind from the roll of legal practitioners.
In February 2011 Ms Lind saw a psychiatrist, Dr Chris Branson, for the purpose of Dr Branson providing a report in connection with the disciplinary proceeding in this Court. Dr Branson provided a report. He expressed the opinion that Ms Lind did not satisfy the criteria for any psychiatric illness diagnosis or any particular personality disorder at present or in the past. However, he expressed the opinion that she has a personality with prominent avoidant and possibly some obsessive-compulsive traits, which predisposed her to the professional difficulties she experienced. Her tendency had been to try to avoid dealing with problems even when she knew that serious consequences might flow. He said that, the worse it got, the harder it was for her to try to grasp control of the situation. He recommended that she structure her professional and personal life to render it less likely that she would experience such difficulties. He said that it was important that she continue to receive close supervision from another legal practitioner.
In September 2011 the Full Court made orders that Ms Lind be censured for her conduct, fined $20,000, subject to a condition on her practising certificate requiring supervision for three years and subject to a limitation on the number of files on which she may be permitted to act at any one time.[4]
[4] [2011] SASCFC 104.
Between September 2011 and September 2014 Ms Lind was supervised by another legal practitioner, Colin Dorrian. As observed above, during this period Ms Lind failed to lodge any income tax or BAS returns.
In December 2014 the Australian Taxation Office sent to Ms Lind a notice requiring her to lodge by 30 January 2015 outstanding income tax returns for the years ended 30 June 2009 to 30 June 2014. She did not comply with this notice.
In May 2015 the Commissioner of Taxation filed in the Magistrates Court a complaint and summons containing six counts of failing to lodge an income tax return and a second complaint and summons containing 17 counts of failing to lodge a quarterly BAS return. Ms Lind was required by the summons to attend at a first hearing on 10 July 2015.
In May 2015 Ms Lind received an email containing ransomware that locked her out of her computer. She engaged a computer expert to reset the computer but some information relevant to her tax affairs was lost.
In July 2015 Ms Lind lodged with the Australian Taxation Office BAS returns for the quarters ended 31 December 2010 to 30 June 2011. In December 2015 she lodged BAS returns for the quarters ended 30 September 2011 to 30 June 2013.
In December 2015 Bentleys on behalf of Ms Lind lodged with the Australian Taxation Office income tax returns for the years ended 30 June 2009 to 30 June 2014. The Australian Taxation Office issued credit assessments because in most of these years Ms Lind did not have sufficient taxable income to pay income tax[5] and in any event PAYG instalments exceeded the income tax that she was liable to pay.
[5] This may have been due to carry forward tax losses associated with the hotel referred to above.
On 19 February 2016 Ms Lind was sentenced by a Magistrate for the 17 offences to which she had at some earlier point pleaded guilty. She was fined a total of $11,000 and ordered to lodge the outstanding six BAS returns within 60 days.
By 4 May 2016 Ms Lind had lodged with the Australian Taxation Office BAS returns for the quarters ended 30 September 2013 to 30 June 2014.
On 4 March 2016 Ms Lind filed an affidavit in this Court under section 20AH(2)(a) of the Act giving notice of the show cause event. The notice should have been filed by 26 February 2016, being seven days after the happening of the event. Ms Lind explained the delay by saying that, although she had previously been advised that the notice was required to be given within seven days, she mistakenly believed that she had 14 days.
On 18 March 2016 Ms Lind filed an affidavit in this Court under section 20AH(2)(b) of the Act explaining why, despite the show cause event, she considered herself to be a fit and proper person to hold a practising certificate. At that stage, Australian Taxation Office records showed that Ms Lind owed $86,679.[6] Ms Lind said in the affidavit that she disputed the accuracy of the Australian Taxation Office records.
[6] All dollar figures are rounded to the nearest whole dollar unless otherwise shown.
The Commissioner and the Law Society filed affidavits in response to Ms Lind’s notification. There were then communications between the Law Society and the Commissioner and Ms Lind. These included a letter from the Commissioner to Ms Lind dated 22 September 2016, to which Ms Lind did not provide a substantive response.
Between 2016 and 2018 Ms Lind had an interest in, and was a director of, a company operating a hotel. She apparently did not receive any income as a result her interest in the hotel. Her partner worked in the hotel business. She sustained losses either in respect of her interest in this hotel or in the earlier hotel referred to at [6] above. The losses were able to be carried forward for tax purposes.
On 9 May 2017 the matter came before me. I made directions that Ms Lind respond by 20 June 2017 to the Commissioner’s 22 September 2016 letter and file an affidavit exhibiting the income tax and BAS returns by 23 May 2017.
In May 2017 Ms Lind’s father died.
Ms Lind responded to the Commissioner’s 22 September 2016 letter on 28 June 2017 but did not file an affidavit until 27 June 2017, which exhibited some of the returns, and filed an affidavit on 8 September 2017 exhibiting the balance of the returns.
In her letter dated 28 June 2017, Ms Lind said that she was refraining from lodging further income tax or BAS returns while she sought to address issues with her integrated client account with the Australian Taxation Office. She did not lodge income tax returns for the years ended 30 June 2015 to 30 June 2018 until July 2019. She did not lodge quarterly BAS returns for the quarters ended 30 June 2015 to 30 September 2018 until February 2019.
Between 29 June 2017 and 3 June 2021 there were various hearings largely awaiting Ms Lind’s dealings with the Australian Taxation Office.
On 25 July 2018 an order was made that Ms Lind file an affidavit by 8 August 2018 setting out the steps that she had taken to resolve the issues with the Australian Taxation Office. She did not file that affidavit until 10 April 2019.
In September 2018 Ms Lind’s partner died unexpectedly. She was required to deal with his estate and with the hotel business in which he had worked and in which they had an interest.
In December 2018 the Australian Taxation Office sent an email to the solicitor acting for Ms Lind saying that not much could be progressed in relation to the issue of the claimed outstanding tax debt until Ms Lind’s compliance issues had been addressed, referring to the fact that she had not lodged an income tax return since the return for the year ended 30 June 2014 or a BAS return since the return for the quarter ended 31 March 2015.
In February 2019 Ms Lind lodged her outstanding quarterly BAS returns for the quarters ended 30 June 2015 to 30 September 2018.
On 12 April 2019 Ms Lind reported to the Court that her outstanding quarterly BAS returns up to 30 September 2018 had been lodged but her outstanding income tax returns for the years ended 30 June 2015 to 30 June 2018 had not yet been lodged. She was ordered to provide to the Commissioner and the Law Society a report by 10 May 2019 concerning the lodgement of her taxation returns and the preparation of a letter to the Australian Taxation Office setting out her position in respect of the state of her indebtedness and a meeting with the Taxation Office to discuss outstanding issues including indebtedness and a further report by 7 June 2019. Those reports were not provided.
In May 2019 Ms Lind’s laptop computer, which contained various documents, was stolen.
On 3 July 2019 Ms Lind was ordered to provide to the Commissioner and the Law Society a report by 13 August 2019 concerning the matters the subject of the order made on 12 April 2019. That report was not provided.
In July 2019 Bentleys lodged Ms Lind’s outstanding income tax returns for the years ended 30 June 2015 to 30 June 2018.
On 15 October 2019 Ms Lind was ordered to file an affidavit by 22 October 2019 exhibiting the returns that she had recently filed. That affidavit was filed on 22 October 2019.
On 14 September 2020 Ms Lind was ordered to file an affidavit by 28 September 2020 concerning her dealings with the Australian Taxation Office and client matters. That affidavit was not filed.
In October 2020 Ms Lind was admitted to hospital for an arthroscopy.
On 2 November 2020 the time for filing the affidavit ordered on 14 September was extended to 16 November 2020. That affidavit was not filed.
On 7 December 2020 Ms Lind gave oral evidence and was cross-examined. She was ordered to provide fortnightly reports, commencing on 14 December 2020, to the Law Society concerning client matters and the progress of her dealings with the Taxation Office. Ms Lind provided those fortnightly reports in relation to client matters but provided little information in relation to her dealings with the Taxation Office.
On 3 February 2021 Ms Lind was ordered to file by 3 March 2021 the affidavit she had previously been ordered on 14 September 2020 to file. That affidavit was not filed. On 9 April 2021 the time to file that affidavit was extended to 7 May 2021 but it was not filed until 3 June 2021.
In February 2021 Bentleys sent a submission to the Australian Taxation Office seeking remission of general interest charges and penalties. They did not take issue with the Taxation Office’s calculation of the debt. Ms Lind in her evidence said that she had wanted to take issue but Bentleys sent the letter without first consulting her.
In April 2021 the Australian Taxation Office sent a letter to Bentleys granting a partial remission of penalties and general interest charges, which reduced the debt by $29,333 at that point to $5,309. On 31 May 2021 Ms Lind paid the debt (although she gave evidence that she still does not accept that she had this liability).
On 3 June 2021 the Commissioner and the Law Society were directed to send a joint letter to Ms Lind identifying deficiencies in her 2 June 2021 affidavit and she was ordered to file an affidavit in response by 22 July 2021. That affidavit was not filed until 4 August 2021.
In October 2021 Ms Lind saw a psychiatrist, Dr Jules Begg, for the purpose of Dr Begg providing a report in connection with this proceeding in this Court. Dr Begg provided a report. Dr Begg recorded in his report that Ms Lind told him that the reason that she did not keep up with lodging her taxation returns was that she gave priority to keeping her clients’ files up to date over her personal needs. She told him that her strategies for preventing a recurrence involved not doing too much work for clients; confining her work to areas of the law in which she had expertise; and taking action rather than just thinking about work.
Dr Begg expressed the opinion that Ms Lind does not suffer a psychiatric disorder, although there are some mild depressive features. He characterised her as not being very emotional. He expressed the opinion that avoidant behaviour is often a mechanism to minimise strong emotions and there is a small risk of such behaviour recurring, which would be reduced by her engaging in psychotherapy. He expressed the opinion that Ms Lind has a tendency to be motivated by external factors as opposed to internal drive.
The hearing

I briefly summarise aspects of the oral and documentary evidence adduced without being comprehensive.
Ms Lind tendered her affidavits sworn on 4 March 2016, 18 March 2016, 27 June 2017, 7 September 2017, 10 April 2019, 22 October 2019, 13 September 2020 (unsworn), 2 June 2021 and 4 August 2021. Those affidavits exhibited various documents, including Dr Branson’s report. Ms Lind tendered the documents provided to Dr Branson for the purpose of his providing a report. Ms Lind also gave oral evidence.
Ms Lind gave evidence in some detail concerning her health, both currently and historically, and other events in her life. I have referred to some aspects of her health and life above. Although I have not set out other details, I take into account all of the evidence adduced.
Ms Lind said that she presently works up to 20 to 30 hours per week. It appears that she has been working such hours for a number of years. She said that she presently has three ongoing files (leaving aside files that are turned around very quickly) and has had three or four such ongoing files since at least December 2020. She said that she intends to keep the number of files at any one time to a manageable level but cannot say what that number is because it will vary with the complexity of the files and other contingencies. She said that, if she is able to progress the files in a reasonable fashion, that is a manageable level. She said that she presently practises in the fields of family law, wills and estates and commercial disputes and in general terms she intends to stay within those parameters.
Ms Lind said that she has lodged her income tax return for the year ended 30 June 2020 and her income tax return for the year ended 30 June 2021 is not yet due. She said that she has lodged her BAS statements for the quarter ended 30 June 2021, although it transpired that she only lodged it on the night before the hearing (that is, on 14 November 2021). I observe that this was some three months late.
Ms Lind tendered affidavits by Mr Bellman sworn on 18 and 25 August 2021. Mr Bellman also gave oral evidence.
Mr Bellman expressed the opinion that Ms Lind is highly intelligent, is not lazy and is a sound commercial and family lawyer. He said that she was a good partner in the firm Windevere Bellman. He said that, following the dissolution of the partnership in 2010, he has continued to engage her to advise on and undertake specific actions on selected family law files for his firm and she has always delivered a quality product in a timely manner. Recently, he has asked her to work on a family law matter with, and mentor, a young family lawyer in his firm.
Mr Bellman said that in 2018 he became the principal of Johnson Lawyers (now called Bellman Lawyers) (Bellman Lawyers). That firm employs four solicitors (including Mr Bellman), one of whom works part-time. The firm’s fields of practice are primarily commercial litigation and commercial matters, including construction matters, property matters and estate matters.
Ms Lind tendered Dr Begg’s report. Dr Begg also gave oral evidence.
Dr Begg said that Ms Lind is aware of her tendency to display avoidant behaviour but is not aware of the deeper drivers for that avoidant behaviour (which in his experience are often emotional) and he did not ascertain during the consultation what those deeper drivers are. He agreed with the opinion expressed by Dr Branson that Ms Lind has a personality with prominent avoidant and possibly some obsessive-compulsive traits.
The Commissioner and the Law Society submit that Ms Lind has not discharged the onus on her to satisfy the Court that she is a fit and proper person to hold a practising certificate and the appropriate order is to suspend her practising certificate. In the alternative, they submit that it is appropriate that conditions be imposed on her practising certificate that she practise only as an employee or alternatively only as a consultant.
Ms Lind submits that she has discharged the onus of satisfying the Court that she is a fit and proper person to hold a practising certificate. She submits that it is not necessary to impose any conditions on her practising certificate.
I invited the parties to attempt to agree on the conditions that should be imposed if that were to be the appropriate course and invited Mr Bellman to indicate through counsel whether, if I imposed conditions of the type suggested by the Commissioner and the Law Society in their alternative submission, he would be willing to engage Ms Lind to work for his firm either as an employee or consultant.
After the conclusion of the hearing, I was informed that Mr Bellman would be willing to engage Ms Lind as a consultant. A draft proposed memorandum of understanding was produced. The parties agreed on the wording of conditions that would be appropriate if, contrary to their respective primary submissions, I were to find that Ms Lind’s practising certificate should not be cancelled or suspended but should be the subject of conditions involving her being engaged by Bellman Lawyers as a consultant.
The statutory provisions
Division 2B of Part 3 was introduced into the Act in July 2014 by the Legal Practitioners (Miscellaneous) Amendment Act 2013 (SA). It creates a regime under which, amongst other things, a holder of a practising certificate must give to the Court notice of the happening of a show cause event and a written statement explaining why, despite the show cause event, the holder considers themself to be a fit and proper person to hold a practising certificate. If the Court is not satisfied that the holder has shown that they are fit and proper to hold a practising certificate, the Court is empowered amongst other things to cancel, suspend or amend the practising certificate. Regardless of whether the Court is so satisfied, the Court is empowered to impose conditions on the practising certificate relating to legal practice of the holder.
Sections 20AH and 20AI provide:
20AH—Holder of practising certificate—show cause event
(1)This section applies to a show cause event that happens in relation to the holder of a practising certificate.
(2)The holder must provide to the Supreme Court both of the following:
(a)     within 7 days after the happening of the event—notice, in the form approved by the Court, that the event happened;
(b)     within 28 days after the happening of the event—a written statement explaining why, despite the show cause event, the person considers himself or herself to be a fit and proper person to hold a practising certificate.
(3)If a written statement is provided after the 28 days mentioned in subsection (2)(b), the Supreme Court may accept the statement and take it into consideration.
(4)A notice and written statement provided to the Supreme Court under this section must be served by the holder on the Commissioner and the Society, each of whom may make written representations to the Court in relation to the holder of the practising certificate within the time, and in accordance with the procedure, prescribed by rules of the Court.
20AI—Refusal, amendment, suspension or cancellation of practising certificate—failure to show cause
(1)The Supreme Court may refuse to issue or renew, or may amend, suspend or cancel, a practising certificate if the applicant or holder—
(a)     is required by section 20AG or 20AH to provide a written statement relating to a matter and has failed to provide a written statement in accordance with that requirement; or
(b)     has provided a written statement in accordance with section 20AG or 20AH but the Court does not consider that the applicant or holder has shown in the statement that, despite the show cause event concerned, he or she is a fit and proper person to hold a practising certificate.
(1a)If an applicant for, or holder of, a practising certificate has provided a written statement in accordance with section 20AG or 20AH, the Supreme Court may make an order imposing conditions on the practising certificate—
(a)relating to the legal practice of the applicant or holder; or
(b)     requiring that the applicant or holder, within a specified time, complete further education or training, or receive counselling, of a specified type.
(2)For the purposes of this section only, a written statement accepted by the Supreme Court under section 20AH(3) is taken to have been provided in accordance with section 20AH.
(3)If the Supreme Court makes a determination under this section, the Court must, as soon as practicable, give the applicant or holder written notice of the determination.
Subsection 5(1) defines a “show cause event”, and the associated terms “serious offence” and “tax offence”, as follows:
show cause event, in relation to a person, means the person—
(a)becoming bankrupt or being served with notice of a creditor's petition presented to the Court under section 43 of the Bankruptcy Act 1966 of the Commonwealth; or
(b)presenting (as a debtor) a declaration to the Official Receiver under section 54A of the Bankruptcy Act 1966 of the Commonwealth of his or her intention to present a debtor's petition or presenting (as a debtor) such a petition under section 55 of that Act; or
(c)applying to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounding with his or her creditors or making an assignment of his or her remuneration for their benefit; or
(d)being convicted of a serious offence or a tax offence, whether or not—
(i)the offence was committed in or outside this State; or
(ii) the offence was committed while the person was practising the law as a legal practitioner or was practising foreign law as an Australian-registered foreign lawyer, as the case requires; or
(iii)other persons are prohibited from disclosing the identity of the offender;
serious offence means an offence, whether committed in or outside this State, that is—
(a)an indictable offence against a law of this State, the Commonwealth or a State or Territory of the Commonwealth (whether or not the offence is or may be dealt with summarily); or
(b)an offence against a law of a State or Territory of the Commonwealth that would be an indictable offence against a law of this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State); or
(c)an offence against a law of a foreign country that would be an indictable offence against a law of the Commonwealth or this State if committed in this State (whether or not the offence could be dealt with summarily if committed in this State);
tax offence means an offence under the Taxation Administration Act 1953 of the Commonwealth, whether committed in or outside this State;
In The Legal Practitioners Act 1981 (SA) re David Peter Andrew Moen[7] the show cause event was the bankruptcy of the practitioner. At that time section 20AI did not contain subsection (1a) expressly empowering the Court to impose conditions on a practitioner’s practising certificate. Nicholson J held that, on its proper construction, section 20AI(1)(b) empowers the Court to amend by imposing conditions on a certificate when it is satisfied that the practitioner would be a fit and proper person to practice in accordance with those conditions. Nicholson J concluded that Mr Moen would be a fit and proper person to practise if certain conditions were imposed in respect of his practising certificate and imposed those conditions.
[7] [2018] SASC 136.
In The Legal Practitioners Act 1981 (SA) Re Duncan James Fowler, A Practitioner[8] Nicholson J adopted the same construction of section 20AI(1)(b) and concluded that Mr Fowler would be a fit and proper person to practise if certain conditions were imposed in respect of his practising certificate and imposed those conditions. Nicholson J said:
[8] [2019] SASC 64.
I provide the following summary of relevant principles.
(i)The Court must decide whether the practitioner, notwithstanding the show cause event, is a fit and proper person to practise law. However, this is to be determined within the context of the power to impose conditions that may limit the manner by which the practitioner is to practise.
(ii)The purpose of the exercise is not to discipline the practitioner; the LPA makes separate provision for this.
…
The practitioner has emphasised that the imposition of conditions as sought by the intervener would be extremely damaging to his practice and to his future as a legal practitioner…
Whilst these are matters to be taken into account, they cannot prevail if the protection of the public or the wider public interest requires otherwise. The exercise before the Court does not involve a conventional discretionary decision arrived at after weighing the advantages and disadvantages of different courses of conduct. An evaluative judgment is called for. The focus must be on a proper assessment of that which the public interest requires. If it be the case that the protection of the public and the ensuring of public confidence in the administration of justice requires the imposition of conditions in the nature of those propounded by the interveners, then so be it and notwithstanding that this might cause significant hardship to the practitioner.
…
In a show cause case, the Court is being asked by the practitioner, in effect, to make a finding that the practitioner is a fit and proper person to hold a practising certificate. If such a finding were to be made unconditionally, that would be the end of the matter... However, the position is different if the finding were to be that the practitioner is a fit and proper person to practise but only subject to conditions. In such a case, the practitioner’s rights will have been restricted for a particular reason and it is only when that reason no longer pertains that the position should change…
…
The overarching requirement is for the Court to be satisfied that the public (particularly clients) will be adequately protected and public confidence in the administration of justice adequately maintained. In this respect, this matter raises three primary considerations. The first is whether the circumstances are such as to call into question the practitioner’s honesty. The second is whether the Court can be satisfied that the practitioner is competent to manage, on his own, a legal practice and, in particular, its financial aspects. The third is whether the Court can be satisfied that the practitioner is competent to practice on his own account as a legal practitioner, that is, to properly conduct client legal affairs, in the absence of the supervision or assistance that might be expected when practising as an employee.[9]
[9] At [56]-[58], [86], [91].
The three matters to which Nicholson J referred in the last paragraph extracted above were apposite to the circumstances in that case (bankruptcy) but without being comprehensive, will generally be apposite in respect of other show cause matters.
In Legal Profession Conduct Commissioner v Fowler[10] the Full Court dismissed the Commissioner’s appeal against the orders made by Nicholson J. Kourakis CJ (with whom Parker and Bleby JJ agreed) said:
For the first and third reasons given by Nicholson J [in Moen], I too would hold that the power [conferred by section 20AI(1)(b)] to amend is, or at least includes, a power to impose conditions if the Court ‘is satisfied that the practitioner would be a fit and proper person to practise in accordance with those conditions’.[11]
[10] [2020] SASCFC 65, (2020) 136 SASR 252.
[11] At [24].
In May 2020 the Legal Practitioners (Foreign Lawyers and Other Matters) Amendment Act 2019 (SA) inserted subsection (1a) into section 20AI to confer expressly on the Court a power to impose conditions regardless of a finding as to fitness and propriety to practice.
Determination
As was held by Nicholson J and the Full Court, the question whether a practitioner is a fit and proper person to hold a practising certificate is contextual (depending on the conditions if any imposed in respect of the practising certificate) and the potential answers are not binary. The potential answers are:
·the practitioner is not a fit and proper person to hold a practising certificate regardless of the category or conditions imposed in respect of the certificate;
·the practitioner is not a fit and proper person to hold an unlimited, unconditional practising certificate but is a fit and proper person to hold a limited practising certificate or a practising certificate subject to conditions; or
·the practitioner is a fit and proper person to hold an unlimited, unconditional practising certificate.
In respect of the second type of answer, it will be necessary to consider the contemplated conditions on the practising certificate and the answer is likely to depend upon the content of those conditions.
In the present case, Ms Lind contends that the question should be answered in the third manner and the Commissioner and Law Society contend that the question should be answered in the first manner.
On the one hand, I am not satisfied that Ms Lind is a fit and proper person to hold an unlimited unconditional practising certificate. Such a practising certificate would permit her to practise as a principal, either as a sole practitioner (as currently) or in partnership.
The chronology set out under the Background heading above shows that, over the great majority of the period since she commenced practising as a principal in 1999, Ms Lind has engaged in avoidant conduct of one type or another in breach of duties of one type or another.
Between 2000 and 2009, over a period of nine years, Ms Lind breached her professional duties in acting for the estate of the secretary and during the latter part of that period she breached her professional duty to cooperate with the Conduct Board.
Between 2010 and at least 2019 Ms Lind breached her legal duty to lodge income tax and BAS returns on time. This is compounded by the fact that, after she was charged and convicted of tax offences for failing to lodge returns up to 2014, and after she lodged returns for that period, she failed to lodge further returns until 2019. She failed to lodge her BAS return for the quarter ended 30 June 2021 until the night before the hearing of this matter on 15 November 2021. Her failure to lodge returns after the first hearing of this matter in May 2017, when attention was being given to her compliance with her taxation obligations, also compounds her conduct over that period.
Between 2017 and 2021 Ms Lind breached various Court orders as to the filing of affidavits and provision of information to the Commissioner and the Law Society.
Ms Lind’s breach of duty in each of these three areas is fundamentally due to what has been diagnosed by Dr Branson and Dr Begg as an avoidant personality.
I accept that Ms Lind has suffered tragedies and unfortunate events since May 2015 and some of these explain to a degree some delay in relation to her tax affairs and compliance with court orders and I take them into account. However, they do not explain all of the breaches over the period since May 2015 and they do not explain breaches before May 2015.
I accept also that breaches in relation to Ms Lind’s tax affairs and compliance with court orders relate to her own affairs rather than the affairs of her clients and that there is no evidence that she has breached her duty to clients since 2010. Those breaches are nevertheless relevant to the protection of the public, and in particular Ms Lind’s clients, to which the Court must have regard, for several reasons. First, problems experienced by Ms Lind in relation to her personal affairs may have consequential effects on the manner in which she manages client matters. Secondly, if Ms Lind cannot satisfactorily manage her own taxation affairs and comply with court orders, this cannot be quarantined from a risk that she will not satisfactorily manage her client matters (even taking into account her evidence that she gives priority to client matters). Thirdly, the underlying cause of all of the breaches is Ms Lind’s avoidant personality, which has the potential to impact in future on her management of client matters.

If Ms Lind’s practising certificate permits her to continue to practise as a principal, it will remain her sole responsibility to manage her clients and client matters. I am not satisfied that the strategies she identified will avoid the risk in respect of future client matters. Those strategies are relatively vague and aspirational and are dependent on being implemented during future periods of stress. For example, it would be very difficult for her to ensure that her caseload will always be manageable because it is often very difficult to predict how much work will be required when instructions are first received.
On the other hand, I do not accept the submission by the Commissioner and the Law Society that Ms Lind is not a fit and proper person to hold a limited or conditional practising certificate. If conditions were imposed on Ms Lind’s practising certificate such that she could not practise as a principal but could only practise as an employee of or consultant to a law firm subject to the supervision of that law firm, the situation would be very different to her practising as a principal.
If Ms Lind is an employee of or consultant to a law firm, the relationship would be between the law firm and the client. The law firm would owe duties to the client in respect of the client’s matters. The law firm would have an interest in ensuring that Ms Lind satisfactorily performs work on the file, because it owes a duty to the client, it has an interest in the client paying for the work and it also has a reputational interest. The law firm would have control of Ms Lind’s file load, would have a similar self-interest in ensuring that it was not excessive and would have the means to allocate work to other solicitors within the firm in the interests of the client. The law firm would be in a position to supervise, in a general sense, Ms Lind’s work.
The difference between practising as a principal and practising as an employee or consultant is recognised in the different categories of practising certificate that are issued. It is also recognised in the issue of restricted practising certificates to new practitioners in their first two years which preclude them from practising as principals.
I note that the various breaches by Ms Lind referred to above have all occurred while she has been a principal (partner or sole practitioner) and there is no evidence of breaches during the period when she was an employee before 1999.
Having regard to all of the evidence, I am satisfied that, if appropriate conditions are imposed in respect of her practising certificate, Ms Lind is a fit and proper person to hold a practising certificate.
The Commissioner and the Law Society contended during the hearing that, if conditions were to be imposed in respect of Ms Lind’s practising certificate, there should be a condition confining her entitlement to practise to practise as an employee. After that contention was put, the parties agreed on the terms of an order in the event that the Court determined that (contrary to each party’s primary contention) conditions should be imposed in respect of Ms Lind’s practising certificate. My understanding is that this superseded the proposal for a condition that Ms Lind practise only as an employee. In any event, it is not appropriate to confine Ms Lind’s entitlement to practice to practising as an employee as opposed to a consultant to a law firm.
From the perspective of clients and the public, there is no material difference between a solicitor practising as an employee of a law firm or a consultant to a law firm. In both cases, the law firm has the relationship with and owes duties to the client and exercises control over the solicitor. The material difference is not one from the perspective of clients, but the solicitor’s taxation affairs.
If a solicitor practises as an employee, their income will be characterised as wages for taxation purposes and (unless they are carrying on a non-legal business) they will not be required to lodge BAS returns but they will be required to lodge income tax returns. If a solicitor practises as a consultant, their income will be characterised as business income for taxation purposes and they will be required to lodge BAS returns.
It is true, as the Commissioner and Law Society submit, that Ms Lind has defaulted in the past in relation to BAS returns. However, this is not a sufficient reason to preclude her from practising as a consultant (as opposed to an employee) in circumstances in which Bellman Lawyers are prepared to engage her as a consultant but not an employee and her prospects of engagement by other law firms as an employee are relatively remote. The proposed conditions include a condition that Ms Lind comply with her taxation obligations (including filing business activity statements and income tax returns) and report to the Commissioner and the Law Society in relation to their lodgement. This provides a greater level of assurance that a simple condition confining Ms Lind’s entitlement to practice to practise as an employee.
It is appropriate to make an order that conditions be imposed on Ms Lind’s practising certificate in the terms agreed between the parties in the event the Court were to determine that conditions should be imposed. Those conditions are set out in the proposed order below.
Conclusion
Ms Lind has not demonstrated that she is a fit and proper person to hold an unlimited unconditional practising certificate. However, she has demonstrated that she is a fit and proper person to hold a conditional practising certificate containing the conditions set out below.
Subject to hearing the parties, I will make the following orders:
1The Practitioner shall within fourteen (14) days from the date of this order enter into an exclusive consultancy agreement with Ronald David Windevere Bellman, Principal of Bellman Lawyers (Consultancy Agreement).
2From the date of this order until further order conditions are imposed upon the Practitioner’s current practising certificate, and on any subsequent certificate that is issued to her, as follows:
(a)The Practitioner may practise only as a consultant to Bellman Lawyers within the terms of the Consultancy Agreement, which shall be exclusive as between the Practitioner and Bellman Lawyers.
(b)In her practice as a consultant pursuant to the Consultancy Agreement the Practitioner will be subject to supervision by legal practitioner, Ronald David Windevere Bellman.
(c)The Practitioner must notify the Legal Profession Conduct Commissioner and the Law Society of South Australia in writing of the commencement of the Consultancy Agreement and of the Consultancy Agreement coming to an end or ceasing to operate, such notification to be provided within seven (7) days of the commencement or cessation of the Consultancy Agreement.
(d)The Practitioner must comply with all taxation obligations, including but not limited to the filing of Business Activity Statements and Income Tax Returns with the Australian Taxation Office.
(e)The Practitioner must provide to the Legal Profession Conduct Commissioner and the Law Society of South Australia proof of lodgement of all Business Activity Statements and Income Tax Returns within seven (7) days of lodgement together with reasons for any delay in lodgement.
(f)The Practitioner must provide such information in relation to her practice of the law as may be reasonably required from time to time by the Legal Profession Conduct Commissioner or the Law Society of South Australia.
(g)The Practitioner must provide to the Legal Profession Conduct Commissioner and to the Law Society of South Australia by no later than 8 September 2022, and thereafter at intervals of 6 months, a written report from Ronald David Windevere Bellman about the Practitioner’s practice during the reporting period including:
(i)     details of the areas of law in which the Practitioner has practised;
(ii)    the number of client matters that the Practitioner has conducted, or assisted with, including any matters in which the Practitioner has acted as a mentor or supervisor to another legal practitioner;
(iii)   the average number of hours that the Practitioner has reported to Mr Bellman as having worked each week;
(iv)   details of any complaints about delay by the Practitioner made either to the Practitioner directly or to Bellman Lawyers; and
(v)    any concerns that Mr Bellman has, or has had, as Principal of Bellman Lawyers, regarding the Practitioner’s conduct of client matters or of any issues that have impacted on the Practitioner’s ability to practise and/or to comply with her professional obligations.
(h)Within fourteen (14) days of the termination of the Consultancy Agreement Ronald David Windevere Bellman provide to the Legal Profession Conduct Commissioner and to the Law Society of South Australia a final report about the Practitioner’s practice since the previous report, if any, and incorporating the matters identified at paragraphs (g)(i) to (v) above.
3Any application by the Practitioner to discharge or vary the conditions imposed by this order, including but not limited to an application to practise other than in accordance with the Consultancy Agreement, must be made with notice to the Legal Profession Conduct Commissioner and to the Law Society of South Australia and must be supported by affidavit.
4Liberty to the parties to apply.

[2022] SASC 20

8 March 2022