Livers v Legal Services Commissioner

[2018] NSWCA 319

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Livers v Legal Services Commissioner [2018] NSWCA 319

Hearing dates:

3 December 2018

Decision date:

14 December 2018

Before:

Gleeson JA at [1]
Barrett AJA at [94]
Simpson AJA at [95]

Decision:

(1)   Appeal allowed in relation to ground 1.

 

(2)   Set aside order 1 of the Tribunal made on 3 August 2017 and orders 1 and 2 made by the Tribunal on 7 September 2018 and in place order:

 

(a)   the proceedings be remitted to the Tribunal to be determined according to law;

 

(b)   costs of the proceedings before the Tribunal be determined by the Tribunal upon the remittal;

 

(3)   The order made by Beazley P on 22 October 2018 that the practitioner’s name be reinstated on the Roll of lawyers until further order, be continued until the determination of the rehearing by the Tribunal, or earlier further order.

 (4)   The first respondent to pay the appellant’s costs of the appeal.

Catchwords:

ADMINISTRATIVE LAW – procedural fairness – where solicitor applied for funding in respect of client’s workers compensation claim for hearing aids –where allegation that solicitor failed to disclose client’s previous claim – where Commissioner sought disciplinary action against solicitor – where Tribunal found solicitor guilty of professional misconduct and removed his name from the Roll of lawyers – Legal Profession Act 2004 (NSW), s 562(2)(a) – whether Tribunal denied solicitor procedural fairness by determining allegation not pleaded by Commissioner – whether Tribunal’s finding that solicitor altered date of client statement influenced its findings in respect of other matters – whether solicitor deprived of opportunity of a successful outcome – whether the matter should be remitted for re-hearing

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 23(1), cl 29(4)(a)
Evidence Act 1995 (NSW), s 140
Legal Profession Act 2004 (NSW), ss 553, 555, 562
Supreme Court Act 1970 (NSW), s 75A
Workers Compensation Act 1987 (NSW), ss 59A, 60, 66, 66A, 67
Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW), Sch 1, cl 28(1)(b)
Uniform Civil Procedure Rules 2005 (NSW), rr 42.1, 51.53

Cases Cited:

Annetts v McCann (1990) 170 CLR 596; [1990] HCA 57
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6
Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23
Smith v New South Wales Bar Association (1992) 176 CLR 256
Stead v State Government Insurance Commission (1986) 161 CLR 141; [1986] HCA 54
SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63

Category:

Principal judgment

Parties:

Peter James Livers (Appellant)
Legal Services Commissioner (Respondent)

Representation:

Counsel:
S E J Prince SC / E L Olivier (Appellant)
T L Wong / B Cameron (Respondent)

  Solicitors:
Moray & Agnew (Appellant)
The Office of the Legal Services Commissioner (Respondent)

File Number(s):

2018/299850

 Decision under appeal 

Court or tribunal:

The New South Wales Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

[2018] NSWCATOD 152; [2017] NSWCATOD 117

Date of Decision:

7 September 2018; 3 August 2017

Before:

O’Connor AM ADCJ, O’Meally ADCJ, JS Currie, B Thompson (7 September 2018) O’Connor AM ADCJ, JS Currie, B Thompson (3 August 2017)

File Number(s):

2016/378739

Judgment

1. GLEESON JA: This appeal involves disciplinary proceedings against a legal practitioner which resulted in a finding of professional misconduct and an order that the practitioner’s name be removed from the Roll of lawyers, pursuant to s 562(2)(a) of the Legal Profession Act 2004 (NSW) (the Legal Profession Act).

2. The appellant, Peter James Livers, is a legal practitioner who has practised as a solicitor since September 1974, becoming a principal of the firm Slattery Thompson in 1979 and its sole practitioner since 1989, specialising in workers compensation claims.

The complaint

3. On 9 March 2015, the WorkCover Independent Review Office (WIRO) complained to the Legal Services Commissioner (the Commissioner) about the practitioner’s conduct. WIRO manages the Independent Legal Advice Review Service (ILARS) which funds legal costs for workers to challenge insurers’ workers compensation decisions. The practitioner had entered into an agreement with WIRO in December 2012 to provide legal services to legally-assisted persons.

4. WIRO alleged that the practitioner had misled it in the answers he gave to two questions in a funding application submitted in September 2014, and had attached documents that had been falsified as to their true date (a client statement and an audiogram). WIRO alleged that the practitioner had failed to advise it of a prior claim for industrial deafness made by the client in July 2012 (when he was represented by the practitioner), and the resolution of that claim by consent orders made by the Workers Compensation Commission (the Commission) in November 2013.

5. Following that complaint, the Legal Services Commissioner applied to the New South Wales Civil and Administrative Tribunal (the Tribunal) for a finding that the practitioner had engaged in professional misconduct and an order under s 562(2) of the Legal Profession Act that the practitioner’s name be removed from the Roll of lawyers or alternatively that the practitioner be publically reprimanded or fined or for such other order as the Tribunal thinks fit.

6. The primary basis of the Commissioner’s application to the Tribunal was that in making the funding application in 2014, the practitioner had deliberately sought to conceal from WIRO an earlier claim for workers compensation for industrial deafness made by the client in 2012, including by altering the date on an audiogram that was submitted in support of the funding application. Alternatively, the Commissioner alleged that the practitioner had been recklessly careless in making the funding application, which was misleading as to the existence of the earlier claim by the client in 2012 and that the audiogram was “recent”.

7. The practitioner’s response was that he believed that there was a proper basis for the client to make a claim for hearing aids in 2014. While he admitted negligence in respect of some of his conduct, he denied any knowing or recklessly careless conduct in misleading WIRO about the 2012 claim or that he falsified any document.

8. On 3 August 2017, the Tribunal found Mr Livers guilty of professional misconduct: Legal Services Commissioner v Livers [2017] NSWCATOD 117 (the Stage One decision).

9. On 7 September 2018, after a hearing on penalty, the Tribunal ordered that the practitioner’s name be removed from the Roll of lawyers, pursuant to s 562(2)(a) of the Legal Profession Act and that he pay the Commissioner’s costs of and incidental to the filing and hearing of the application: Legal Services Commissioner v Livers (No 2) [2018] NSWCATOD 152 (the Stage Two decision).

10. On 22 October 2018, a judge of this Court ordered that the practitioner’s name be reinstated on the Roll of lawyers pending further order.

The appeal

11. The appeal to this Court is an appeal by way of re-hearing, governed by s 75A of the Supreme Court Act 1970 (NSW) (the Supreme Court Act): Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), Sch 5, Cl 29(4)(a). Accordingly, this Court may exercise the powers available to the Tribunal: Supreme Court Act, s 75A(5), (6) and (10).

12. The essential complaint on appeal is that the Tribunal denied the practitioner procedural fairness by determining an allegation adverse to him not pleaded by the Commissioner, namely, that the practitioner had altered the date of the client statement (ground 1). Grounds 2-5 also challenge three factual findings made by the Tribunal in the Stage One decision.

13. Grounds 6 and 7 are directed to challenging the Stage Two decision. Ground 6 may be put aside as senior counsel for the practitioner accepted that no submission of the type advanced in this Court (contending that the Tribunal should revisit and reconsider the findings made in the Stage One decision) was put to the Tribunal and this ground does not practically go anywhere. Ground 7 contends that the Tribunal erred in findings leading to its conclusion that the practitioner’s name must be removed from the Roll of lawyers.

14. The relief sought in the amended notice of appeal filed 3 December 2018 includes setting aside the orders of the Tribunal made on 7 September 2018 and in place that this Court order:

The practitioner is reprimanded for professional misconduct involving a substantial failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, in that he was negligent in signing an application for WIRO funding without reviewing the correctness or accuracy of the matters recorded in the application.

15. Relief in those terms reflects the position ultimately taken by the practitioner before the Tribunal.

Background

The 2011-2012 claim

16. In November 2011, the practitioner commenced acting for Mr Zouhair Souaid after an earlier application which Mr Souaid had lodged with the Commission on 9 August 2011, via his previous solicitors, for an industrial hearing loss claim, was unsuccessful. The practitioner requested a loss of hearing assessment by Dr Stanley Stylis, who conducted an audiogram on 1 March 2012. The practitioner also drafted a statement for Mr Souaid to sign, which he did on 1 March 2012.

17. On 22 March 2012, the practitioner made a claim on the insurer, Allianz, under ss 66 and 67 of the Workers Compensation Act 1987 (NSW) (the WC Act) for industrial deafness whole person impairment in the sums of $13,750 for permanent impairment and $10,000 for pain and suffering and the cost for the manufacture and fitting of hearing aids under s 60 of the WC Act relating to expenses. That claim was denied by the insurer on 26 April 2012.

18. On 4 July 2012, the practitioner lodged with the Commission on behalf of Mr Souaid an application to Resolve a Dispute. That application, which was in the approved form, had been signed by the practitioner on 5 May 2012. In Pt 1, “Matters in Dispute”, under the heading “1.1 Claim to which dispute relates, 1.1A For referral for determination by the Commission”, only the box “Lump sum compensation where liability in dispute” was marked with an “X” (referred to as a s 66 claim). The box “Medical expenses” (a s 60 claim) and the box “Compensation for pain and suffering” (a s 67 claim) were left blank. Nonetheless, as the Tribunal found, the later part of the application was completed inconsistently with the markings under heading “1.1A”. In Pt 5 of the application under the heading “5.6 Permanent impairment including pain and suffering”, a claim was made for industrial deafness whole person impairment of 11 percent and the amount claimed was $13,750. A claim was also made for pain and suffering and the amount claimed was $10,000.

19. On 11 June 2013, an arbitrator gave a direction (in par 3) that the matter be referred back to the arbitrator following the issue of the medical assessment certificate, to determine the question of whether hearing aids were reasonably necessary and the question of the s 67 entitlements.

20. On 8 November 2013, Mr Souaid signed a Complying Agreement under s 66A of the WC Act resolving his claim for permanent impairment ($15,400) and pain and suffering ($5,000). On the same day the Commission issued a Certificate of Determination – Consent Orders in respect of those claims. The Complying Agreement and the Consent Orders did not deal with the claim for hearing aid expenses.

21. The practitioner gave evidence before the Tribunal that he was not aware of a deadline to make a claim for hearing aids and his failure to pursue the claim for hearing aids before 30 December 2013 was an oversight.

22. The practitioner sought to agitate Mr Souaid’s hearing aid claim, first with the insurer’s solicitor on 20 January 2014, which the insurer did not accept, relying on s 59A of the WC Act, and then by re-listing the matter before the Commission. Section 59A of the WC Act, introduced with effect from 1 October 2012, relevantly provides:

59A Limit on payment of compensation

(1) Compensation is not payable to an injured worker under this Division in respect of any treatment, service or assistance given or provided more than 12 months after a claim for compensation in respect of the injury was first made, unless weekly payments of compensation are or have been paid or payable to the worker.

(2) If weekly payments of compensation are or have been paid or payable to the worker, compensation is not payable under this Division in respect of any treatment, service or assistance given or provided more than 12 months after the worker ceased to be entitled to weekly payments of compensation.

23. Following a teleconference on 30 April 2014, the arbitrator referred the matter back to the Commission as it was determined that the claim for s 60 expenses for hearing aids ceased on 30 December 2013 and accordingly, Mr Souaid was not entitled by law to claim the expense.

24. On 6 May 2014, the Commission issued a further Certificate of Determination – Consent Orders, which noted that the “applicant [Mr Souaid] elects to discontinue the Application to Resolve a Dispute” and dispensed with the need to file a Notice of Discontinuance.

September 2014 – Funding application

25. In his affidavit sworn 2 November 2016, the practitioner deposed (pars 32-37) to the circumstances in which he amended the 2012 client statement. The practitioner explained that in early 2014 he decided to prepare a second client statement in preparation for a possible future claim for s 60 expenses anticipating the possibility that the law would be amended to permit such a claim in the future. The practitioner said that he amended the 2012 client statement by hand as follows:

• in par 7 he added the words “for hearings [sic]” as follows:

7. I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test.

• a new par 9 was added as follows:

9. I have not been fitted with hearing aids before.

26. It seems from a file note of the practitioner that the amendments were made at a conference with Mr Souaid on 28 February 2014 at which time Mr Souaid was given the amended statement to take away and consider. The amendment to par 7 was initialled in the margin by Mr Souaid. Another file note of the practitioner dated 3 March 2014 records that Mr Souaid returned the signed statement to the practitioner on 3 March 2014. The practitioner deposed (par 37) that he believed that the date of the client statement had been amended by Mr Souaid such that “1 March 2012” read “1 March 2014”.

27. The practitioner deposed (par 42) that in or about early September 2014, he formed the view that Mr Souaid should make an application to WIRO for an ILARS grant in respect of a s 60 expenses claim for hearing aids. He said that he formed this view in large part having learned upon reading a WorkCover Fact Sheet of legislative changes made on 3 September 2014 by the introduction of the Workers Compensation Amendment (Existing Claims) Regulation 2014 (NSW) (the 2014 Regulation), and having considered the terms of s 59A of the WC Act. Clause 28(1)(b) of Sch 1 of the 2014 Regulation provides:

Medical and related expenses

(1) An existing claim is exempt from the operation of section 59A (Limit on payment of compensation) of the 1987 Act in respect of the following compensation until the injured worker reaches retiring age:

…

(b) compensation payable in respect of the provision of crutches, artificial members, eyes or teeth and other artificial aids or spectacles (including hearing aids and hearing aid batteries).

28. It is not necessary for present purposes to detail the two bases on which the practitioner asserted that he held a belief that a valid claim to WIRO for hearing aids could be made.

29. On 19 September 2014, the practitioner made an application to WIRO for ILARS funding on behalf of Mr Souaid in respect of a proposed claim for hearing aids for industrial deafness. Included in that application was:

1. an audiogram prepared by Dr Stylis purportedly dated 1 March 2014. The audiogram contained an alteration in the form of a mark through the date of the document so that the year “2012” read “2014”;

2. a signed statement of Mr Souaid purportedly dated 1 March 2014. (The Commissioner accepted before the Tribunal that the alteration to the date of that document from “2012” to “2014” was made by Mr Souaid and not in the presence of Mr Livers.)

30. WIRO approved the grant of funding on 24 September 2014. Also on that date, the practitioner sent a letter to Dr Stylis requesting a formal medico-legal report.

31. On 23 October 2014, Dr Stylis examined Mr Souaid and issued a detailed report assessing whole person impairment due to exposure to industrial noise at 12 percent and recommended a hearing aid. That report referred to the previous claim for industrial deafness settled in 2013, and stated that “because of altering regulation and confusion of new laws and their protocol, the question of hearing aids could not be finally concluded”.

32. On 28 October 2014, the practitioner made a claim on the insurer for the cost of the manufacture and fitting of hearing aids under s 60 of the WC Act in the amount of $5,534.33. That claim attached copies of the report of Dr Stylis dated 23 October 2014 and his earlier report dated 19 March 2012.

33. The insurer rejected that claim in a letter to Mr Souaid sent, care of the practitioner, on 7 November 2014. In its letter, the insurer drew attention to s 59A of the WC Act and asserted that the entitlement to medical and related expenses for industrial deafness ceased on 31 December 2013, as had previously been conveyed to Mr Souaid in the insurer’s letter of 27 August 2013. A copy of that letter was attached.

34. On 21 January 2015, Ms Trish Biordi, a secretary in the employ of the practitioner sent an email to the insurer requesting a response to the practitioner’s letter dated 28 October 2014. The insurer responded by email to Ms Biordi on the same day attaching two attachments: a copy of its letter sent to the practitioner on 7 November 2014, and the 27 August 2013 attachment.

35. On 22 January 2015, Ms Biordi sent an email to WIRO attaching a copy of Allianz’s letter of 7 November 2014, including the attachment, together with an invoice for the practitioner’s costs totalling $3,845.67 and confirmed that the matter “is now closed”. WIRO responded in an email to Ms Biordi on 22 January 2015 noting that the prior claim for hearing loss had not been disclosed in the practitioner’s funding application, that if the prior claim had been disclosed WIRO would not have provided any funding due to s 59A of the WC Act and requesting that care be taken in future applications to disclose all relevant information.

36. Following correspondence with WIRO, the practitioner furnished an amended tax invoice for $2,280.23 on 25 May 2015. This amount was paid by WIRO to the practitioner in or about May 2015. Subsequently, the practitioner sent an email to WIRO on 9 September 2016, authorising WIRO to deduct the sum of $2,280.23, being the fees paid for Mr Souaid’s matter from the next payment of fees due to the practitioner. The materials before the Court do not disclose whether this deduction was ever made by WIRO.

37. As indicated, following the complaint by WIRO in March 2015, the Commissioner investigated the matter and ultimately applied to the Tribunal for disciplinary action on 13 July 2016.

The grounds of the application for disciplinary findings and orders

38. The application for disciplinary findings and orders filed by the Commissioner contained a single ground with three sub-grounds:

Ground 1 – Misleading and/or attempting to mislead [WIRO] to obtain a grant of funding by:

1.1 Altering the date on an audiogram dated 1 March 2012 to read 1 March 2014;

1.2 Drafting and relying on his client’s statement dated 1 March 2014, which he knew was false, or he was recklessly careless as to whether or not the statement was false in a material particular namely that his client did not make a claim earlier for hearing aids;

1.3 Preparing and/or relying on an application for an ILARS Grant dated 19 September 2014, which contained material omissions and/or false assertions.

39. The “Particulars” given under this single ground included the history of the first claim in 2012 and that the practitioner had lodged the funding application with WIRO on or about 19 September 2014, which contained as attachments the amended audiogram and the amended client statement. The particulars continued in pars 15-18 as follows:

15. The Application including the attachments contained the following statements, each of which the Respondent knew was false, or the Respondent was recklessly careless as to whether or not the statements were false, in a material particular:

15.1 Mr Souaid had not made a claim prior to 19 June 2012 relating to the injury the subject of the Application - answer to question 3, page 1 of the Application;

15.2 Mr Souaid's current employer was North Sydney Tafe - answer to Part A question 3 and Part B question 2 of the Application;

15.3 There was no dispute with the insurer - answer to Part B question 1(c) of the Application;

15.4 No dispute had been notified to the insurer - answer to Part B question 1(d) of the Application;

15.5 Proceedings had not been filed in the Workers Compensation Commission - answer to Part B question 1(e) of the Application;

15.6 This was a preliminary investigation - answer to Part C question 1 (a) of the Application;

15.7 Mr Souaid wanted to apply for hearing aids only – answer to Part C, question 1 (b) of the Application;

15.8 There had not been any past section 66 / 67 claims or payments - answer to Part C, question 3(a) of the Application;

15.9 No prior claims for industrial deafness had been made - answer to Part C, question 3(g) of the Application;

15.10 A recent audiogram from a qualified audiologist was attached - answer to Part C, question 3(g) of the Application;

15.11 No prior claims for industrial deafness had been made - answer to Part C, question 5(e) of the Application;

15.12 A recent audiogram from a qualified audiologist was attached - answer to Part C, question 5(e) of the Application;

15.13 The audiogram attached to the Application was purportedly dated 1 March 2014;

15.14 Mr Souaid had not made a claim earlier for hearing aids as he was not aware he had industrial deafness until a friend of his introduced him to the Respondent who arranged a hearing test - paragraph 7 of the statement of Mr Souaid dated 1 March 2014 (being one of the attachments).

16. The Audiogram referred to in particulars 14 and 15.13 was an identical copy of the Audiogram referred to in particular 3, however the Respondent altered the date to read " 1.3.14".

17. The Respondent certified on 19 September 2014 that the contents of the Application were true and correct and the Respondent was not aware of any other relevant material subject to the Application for an ILARS grant.

18. The statements in the Application set out in particular 15 were false and/or misleading.

Tribunal’s reasons

Stage One decision

40. After setting out the Commissioner’s allegations and the practitioner’s position, the Tribunal accepted a Briginshaw submission the Commissioner made when noting that the civil standard applied to the making of findings: Evidence Act 1995 (NSW) (Evidence Act), s 140(1) and (2); Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 (Dixon J); [1938] HCA 34.

41. The Tribunal then summarised the facts in relation to the 2011 and 2012 claims and the 2014 funding application before first turning to ground 1.3 of the Commissioner’s allegations and then addressing grounds 1.1 and 1.2. The Tribunal found all three grounds of complaint were proved and that each justified a separate finding of professional misconduct: at [144].

Ground 1.3

42. Starting with ground 1.3, the Tribunal noted that the practitioner ultimately conceded that par 7 of the client statement as he had redrafted it was wrong when it said there had been no prior claim for hearing aids: at [79]. The Tribunal also noted the practitioner’s concession in cross-examination that the adjective “successful” should have been inserted in par 7 before the word “claim”.

43. The Tribunal proceeded to make the following findings. First, the practitioner’s evidence in relation to his failure to advise WIRO of the true history of the matter was evasive, and even if the expenses claimed could be pursued outside the new 12-month bar apparently set by s 59A, that did not justify a complete failure to refer to the prior claims history in the funding application: at [83].

44. Second, the practitioner’s explanations were entirely unsatisfactory given it is unlikely that an experienced practitioner as he was would have overlooked the need to finalise the expenses component of a medical expenses element (hearing aids) of a claim as part of the overall settlement of the claim, particularly taking into account that the assessing specialist had made a specific recommendation for the provision of hearing aids and the arbitrator’s interim determination in June 2013 made reference to this issue: at [84]-[85].

45. Third, it was improper of the practitioner to recycle the client statement of 2012 and the audiogram of 2012 in the way he did and was satisfied that the amendment made to the client statement (par 7), which the practitioner acknowledged he drafted and made, was designed to hide from view the prior claims history and reflected a consciousness on the part of the practitioner to seek to hide from view the earlier hearing aid claim’s history, both in relation to the insurer and the Commission: at [87].

46. Fourth, that the practitioner’s consciousness of the significance of non-disclosure of the prior history is reflected also in the omissions and inaccuracies in the funding application which did not disclose that the 2012 claim was an industrial deafness claim and the practitioner gave no credible response to the failure to answer correctly particular questions in the funding application directed to the existence of any prior claim: at [88].

47. The Tribunal rejected as “spurious” the practitioner’s explanation that the funding application related to a new injury, as compared to the 2012 application: at [90]. The Tribunal also rejected as “specious” the practitioner’s explanation that his failure to include greater detail in the answers in relation to the prior claim and its outcome was because the funding form did not give sufficient space to make submissions: at [93].

48. The Tribunal was satisfied that the practitioner intentionally suppressed information about the nature and scope of the prior claim of a kind that any competent practitioner would have recognised as relevant to the decision to be made by the funding authority, WIRO: at [94].

49. In finding ground 1.3 proven, the Tribunal said:

[103] We find proven Ground 1.3, in that he prepared and relied on an application for an ILARS grant which contained material omissions. The result was that he misled WIRO in obtaining the grant of funding.

[104] In addition, we are satisfied that the following statements and omissions particularised in Particular 15 were made by him with knowledge of their falsity, or, if we are wrong in that regard, with careless recklessness as to their truth: those referred to at points 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14. The findings in respect of point 12 and 13 follow from the findings we make below in relation to Ground 1.1. The finding in relation to point 14 follows from the finding made in respect of Ground 1.2.

[105] We have not made any adverse findings in relation to point 13.

[106] We have not made an adverse finding in relation to point 2. The nomination of the employer as North Sydney TAFE may have occurred through reliance on recollection that was mistaken. The claimant had, as we understand the evidence, spent a significant time working there, though the position was that he was employed by a private contractor. On the other hand, the record of the previous claim shows the employer correctly.

[107] In making these findings, we have kept in mind the gravity of them for the practitioner, an experienced practitioner of more than 40 years’ standing in the profession, and the principles to which we referred above in relation to the drawing of inferences.

Ground 1.1

50. Turning to ground 1.1, the Tribunal did not accept the practitioner’s explanations that the mis-statements that appeared in the funding application might have been due to error on the part of his secretary, Ms Effie Anthony, or that she engaged in any copying process with respect to the supporting documents that might have created a streak which changed the appearance on the audiogram of “2012” to “2014”: at [117].

51. Nor did the Tribunal accept the practitioner’s evidence that he personally had no reason to alter the date on the audiogram given he was satisfied, based on his construction of s 59A of the WC Act that such a claim could be made, and based on past practice, it was acceptable to rely on an old audiogram: at [118]. The Tribunal reasoned as follows:

[119] The amendments promoted the idea that the hearing aids issue remained outstanding, and unresolved, and was open to be pursued. The amendments had as their context the recent history of the case. The new claim would, necessarily be seen and considered by the insurer. At that point, the insurer would review the circumstances surrounding the settled claim. A person highly experienced in this jurisdiction, as the practitioner was, would have recognised that possibility. Such a practitioner, would we think, have recognised a need to give the statement a more contemporary date.

52. The Tribunal found that the dates of the supporting documents referred to in the funding application as the audiogram and the client statement were typed as “01/03/14” by Ms Anthony, and it was highly likely these were the dates on the documents as given to her by the practitioner: at [120]. The Tribunal did not accept the practitioner’s alternative explanation of a photocopying mark on the audiogram, which he had advanced in his submissions during the investigation by the Commissioner and in his amended reply and said:

[121] … He suggested that the downstroke that appears in the base line of the number ‘2’ to make it look like a ‘4’ might have resulted from a paper stain in the photocopying process. He did not furnish any independent evidence which might persuasively support such a possibility. The suggestion was not actively pursued at hearing.

53. The Tribunal continued:

[122] Despite the practitioner’s strenuous denials, we infer that he altered the date of the audiogram in the same way to read ‘1/3/14’. While it is not pleaded as part of the charge laid by Ground 1.2, we infer that he also altered the date of the client statement. By synchronising the two dates, the likelihood that any suspicion might be raised in the minds of WIRO officers over the history of the claim was minimised. Making those date changes also avoided a debate in relation to what was meant by the form’s request for a ‘recent’ audiogram.

54. The Tribunal concluded that ground 1.1 was proven in that by altering the date of the audiogram, the practitioner falsified the document, with the result that he misled or attempted to mislead WIRO in order to obtain a grant of funding.

Ground 1.2

55. As to ground 1.2, the Tribunal noted that the practitioner had altered par 7 of the client statement of 1 March 2012 in the manner set out at [25] above.

56. After referring to the practitioner’s explanation that it would have been more accurate to have inserted the word “successful” before the word “claim” in par 7 of the client statement, the Tribunal found:

[129] In our view, he made that statement knowing it to be false. He had a significant past involvement in the matter over a long period of time. He was, we consider, well aware of a claims history and that it had included a hearing aids issue. If formed part of the initiating claim to the insurer, was raised by the arbitrator in the compensation proceedings, and he sought to revisit it after final orders were issued that did not cover the point, orders made by consent. His amendment to paragraph 7 hid that history entirely from view.

[130] We do not accept his evidence that he decided to make the application solely on the basis of a genuine misunderstanding of the relevant law and felt such a claim remained open under the amendment, and was not foreclosed by the prior history of the matter.

Stage Two decision

57. The Tribunal commenced by summarising the background to the complaint against the practitioner and the Tribunal’s findings and orders in the Stage One decision, including that the practitioner had altered the date of the client statement (at [15(6)]), before referring to the further evidence adduced and the parties’ submissions and its approach to the onus and standard of proof, and the meaning of “permanently unfit to practice”.

58. The Tribunal recorded its finding that the practitioner had been found guilty of professional misconduct, given that his conduct constituted a grave and substantial failure to meet the standards of honesty, probity and fair dealing expected of a member of the profession: at [44].

59. The Tribunal went on to set out a non-inclusive list of the findings in the Stage One decision, including:

[45(1)] The Practitioner was found to have deliberately altered the date of the audiogram, and his client’s statement and thereby to have falsified the document.

60. The Tribunal then considered various matters relevant to the appropriate penalty before making the following findings (at [69]):

(1) the Practitioner is not of good fame and character;

(2) the Commissioner has satisfied his onus of demonstrating to our satisfaction that the Practitioner is not a fit and proper person to be allowed to continue in practice;

(3) the Practitioner has not satisfied his onus of establishing to our satisfaction that the situation has changed; that is, that he is currently fit to remain in practice;

and

(4) he is likely to be unfit to practice for the indefinite future and therefore is permanently unfit to practice, on the basis of the tests discussed above and particular those applied in Stanoevski as noted at [34].

61. The Tribunal concluded that the practitioner’s name must be removed from the Roll of lawyers: at [70].

62. As to costs, the Tribunal referred to cl 23(1) of Sch 5 to the NCAT Act and found that there was no evidence of any circumstances that could properly be described as exceptional and which would otherwise warrant a departure from the usual order in disciplinary proceedings where the practitioner has been found guilty of professional misconduct, namely, that a costs order be made against the practitioner: at [71].

Ground 1

Practitioner’s submissions

63. The practitioner complained that the Tribunal found that he had altered the date of the client statement, notwithstanding that it had accepted that this allegation was not pleaded by the Commissioner. The submission continued that the Tribunal had failed to afford procedural fairness to the practitioner before making any finding against him. Reference was made to Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268; O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 231.

64. The practitioner submitted that this finding influenced the Tribunal’s findings in respect of other matters, in particular that the practitioner had altered the date of the audiogram to synchronise the dates of the two documents. In addition, complaint was made that the Tribunal took this finding into account in its Stage Two decision when it ordered the removal of the practitioner’s name from the Roll of lawyers.

65. The practitioner submitted that the denial of procedural fairness deprived him of the possibility of a successful outcome. Reference was made to Stead v State Government Insurance Commission (1986) 161 CLR 141 at 147; [1986] HCA 54 at [16].

66. Although not the preferred outcome for the practitioner, senior counsel for the practitioner accepted in argument that if the procedural fairness ground was established then this Court could remit the matter to the Tribunal for a rehearing.

Commissioner’s submissions

67. The Commissioner accepted that the practitioner did not have an opportunity to be heard on the allegation that he was responsible for the alteration to the date of the client statement, but submitted that the Tribunal did not find that such conduct itself constituted misconduct or dishonest behaviour.

68. The Commissioner further submitted that whether it was the practitioner or the client who altered the date on the client statement was not critical to the determination of the proceedings. The submission continued that the inference drawn by the Tribunal from the synchronicity between the two dates on the audiogram and the client statement was put to the practitioner during cross-examination, in addition to the proposition that he had made false and misleading statements to WIRO, and therefore he was on notice that everything he said in support of his case was in issue. Reference was made to SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 228 CLR 152; [2006] HCA 63 at [47]. According to the submission, there was no breach of the requirements of procedural fairness.

69. Alternatively, the Commissioner submitted that any breach of the requirements of procedural fairness did not deprive the practitioner of the possibility of a successful outcome given the weight of the evidence in relation to ground 1.1 and the Tribunal’s conclusions on grounds 1.2 and 1.3 were separate and independent from its findings on ground 1.1 and were sufficiently grave to have justified the Tribunal’s conclusion.

Procedural fairness

70. Whether the observance of the principles of natural justice is a condition attached to the statutory power of the Tribunal under s 562 of the Legal Profession Act, is a question of statutory construction. The starting point is a consideration of the nature of the power, and whether the exercise of that power has the potential to destroy, defeat or prejudice a person’s rights or interests. If so, it is necessary to consider whether the operation of the rules of natural justice is excluded by “plain words of necessary intendment”: Annetts v McCann (1990) 170 CLR 596 at 598; [1990] HCA 57. See generally the summary of principles in Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; [2010] HCA 23 at [11]-[14].

71. A failure by the Tribunal to observe the principles of natural justice with respect to the exercise of power in s 562 of the Legal Profession Act renders the exercise of the power inefficacious, that is, the decision cannot be said to be authorised by the statute and for that reason is invalid: Saeed v Minister for Immigration and Citizenship at [13].

72. Here, the nature of the power in s 562 of the Legal Profession Act concerns professional disciplinary action against a legal practitioner. Plainly, the Tribunal’s exercise of the power to make protective orders under s 562(2) has the potential to destroy or prejudice a legal practitioner’s rights or interests.

73. Accepting that the principles of natural justice regulate the exercise of the power in s 562, it was not suggested by either party that those principles are excluded by “plain words of necessary intendment” in Pt 4.8 or elsewhere in the Legal Profession Act: Annetts v McCann at 598.

70. Turning to what procedural fairness requires in a case such as the present, two matters require attention. The first is the statutory framework within which a decision-maker exercises statutory power is of critical importance. The second is that the particular content to be given to the requirement to accord procedural fairness will depend upon the facts and circumstances of the particular case: SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs at [26].

71. As to the statutory framework, two matters are significant. One is that the Legal Profession Act, s 553, obliged the Tribunal to conduct a hearing into each allegation particularised in the disciplinary application made to the Tribunal. Importantly, there was no allegation that the practitioner had altered the date of the client statement.

72. The other matter is that the Legal Profession Act, s 555(1), permits the Tribunal to vary a disciplinary application, on the application of the person who made the disciplinary application (in this case, the Commissioner) or on its own motion, so as to omit allegations or to include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances. But in this case, neither the Commissioner nor the Tribunal sought to include an additional allegation that the practitioner had altered the date of the client statement.

73. As to the facts and circumstances of this case, the most significant matter is that counsel for the Commissioner expressly confirmed at the Stage One proceeding that no allegation was made that the practitioner had altered the date of the client statement.

74. The requirement to accord procedural fairness to the practitioner in this case is sufficiently stated in SZBEL v Minister for Immigration and Multicultural and Indigenous Affairs, where the plurality referred (at [32]) with approval to the following statement by the Full Court of the Federal Court in Commissioner for ACT Revenue v Alphaone Pty Ltd (1994) 49 FCR 576 at 590-591 (Northrop, Miles and French JJ):

It is a fundamental principle that where the rules of procedural fairness apply to a decision‑making process, the party liable to be directly affected by the decision is to be given the opportunity of being heard. That would ordinarily require the party affected to be given the opportunity of ascertaining the relevant issues and to be informed of the nature and content of adverse material. (Emphasis in original)

79. Plainly, this did not occur before the Tribunal. The allegations that the practitioner had altered the date of the client statement and that the synchronicity of the dates of the client statement and audiogram was for the purpose of minimising suspicion by WIRO over the history of the claim, and avoiding debate as to whether the audiogram was “recent”, was not put to the practitioner before the Tribunal, nor was the practitioner given an opportunity to respond to the relevant issues raised by these allegations.

80. Further and contrary to the Commissioner’s submissions, the practitioner was not on notice that what he said in his affidavit (par 37) concerning the alteration of the date of the client statement by Mr Souaid, was in dispute or in issue. Nor was the specific finding by the Tribunal concerning the synchronicity between the two dates on the audiogram and the client statement put to the practitioner in cross-examination for him to respond to.

81. It has been said that underlying the principles of procedural fairness is the concern of the law to avoid practical injustice: Re Minister for Immigration and Multicultural Affairs; Ex parte Lam (2003) 214 CLR 1; [2003] HCA 6 at [37] (Gleeson CJ). The Court will not order a new hearing exercising its powers under s 75A of the Supreme Court Act unless it appears to the Court that some substantial wrong or miscarriage has occurred: Uniform Civil Procedure Rules 2005 (NSW) (UCPR), r 51.53. Accepting that the practitioner was denied procedural fairness before the Tribunal, it is necessary to consider whether it would be futile to order a new hearing because to do so would inevitably result in the making of the same orders as made by the Tribunal: Stead v State Government Insurance Commission at 145.

82. In this context all that the practitioner needs to show is that the denial of procedural fairness deprived him of the opportunity of a successful outcome. To negate that possibility, the Commissioner must demonstrate that a properly conducted hearing could not possibly have produced a different result: Stead v State Government Insurance Commission at 147.

83. Notwithstanding the weight of the evidence concerning the change of the date of the audiogram (which the practitioner denied making), I do not accept the Commissioner’s submission that a favourable finding that the practitioner had no involvement in altering the date of the client statement would have had no material effect on the outcome of ground 1.1 of the complaint.

84. First, the seriousness of the finding of the Tribunal (at [122]) that the practitioner altered the date of the client statement cannot be underestimated. The Tribunal found that the practitioner had deliberately falsified a document. It is not to the point that the Tribunal did not go on to say expressly that this conduct involved misconduct by the practitioner, given the absence of a pleaded complaint in relation to the alteration to the date of the client statement.

85. Second, the Tribunal’s related finding that the practitioner synchronised the two dates of the client statement and the audiogram for the purposes referred to above, is cumulative upon the finding that the practitioner altered the date of the client statement. It is not possible to separate or unscramble the impugned finding from the Tribunal’s other findings in respect of ground 1.1 concerning the change of the date of the audiogram.

86. Nor do I accept the Commissioner’s submission that the Tribunal’s findings in relation to grounds 1.2 and 1.3 of the complaint can be treated as separate and independent of the finding that the practitioner altered the date of the client statement.

87. Ground 1.2 involved the charge that the practitioner amended and relied upon the client statement dated 1 March 2014 knowing it was false, or recklessly careless as to whether or not it was false in a material particular, so as to mislead and/or attempt to mislead WIRO to obtain a grant of funding. The adverse inference that may be drawn from the finding of the practitioner’s involvement in the falsification of the date of the client statement cannot be separated from the Tribunal’s assessment of the circumstances in which the practitioner made the amendment to par 7 of the client statement, in particular whether that amendment was made knowing it to be false, or recklessly careless, with a view to misleading and/or attempting to mislead WIRO to obtain a grant of funding.

88. As to ground 1.3, again the finding as to the synchronicity of the dates of the two documents provided the foundation for the finding by the Tribunal that the practitioner knowingly sought to deceive WIRO by concealing the prior claim in the funding application in order to obtain a grant of funding.

89. Further and importantly, the Commissioner’s submission that the impugned finding was not taken into account by the Tribunal in its Stage Two decision cannot be accepted. As indicated, the Tribunal twice referred in its Stage Two decision to its earlier finding that the practitioner had altered the date of the client statement and described the practitioner’s conduct as deliberate and involving the falsification of a document. It is not possible to separate or unscramble the cumulative effect of this finding from the other findings of the Tribunal which led to its characterisation of the practitioner’s professional misconduct as justifying removal of the practitioner’s name from the Roll of lawyers.

Grounds 2-5 and 7

90. Given the conclusion in relation to ground 1, it is not necessary to address the other grounds of appeal.

Conclusion and Orders

91. The practitioner has succeeded in demonstrating that he was not afforded procedural fairness by the Tribunal and that he has been deprived of the opportunity of a successful outcome in the sense of obtaining a finding of professional misconduct by reason of negligence and carelessness with respect to the funding application, rather than the finding made by the Tribunal of deliberate concealment or reckless carelessness. Contrary to the practitioner’s submission, it is not appropriate that this Court go on to consider the merits of the Tribunal’s actual decision. That is because the practitioner has succeeded in establishing that the Tribunal’s decisions cannot be said to be authorised by the Legal Profession Act, s 562 and for that reason are invalid. The matter must be remitted to the Tribunal to be determined according to law.

92. As to costs, there is no reason why the costs in this Court should not follow the event: UCPR, r 42.1. The costs orders in the proceedings below should be set aside and the costs of those proceedings be determined by the Tribunal upon the outcome of the remittal.

93. Accordingly, I propose the following orders:

1. Appeal allowed in relation to ground 1.

2. Set aside order 1 of the Tribunal made on 3 August 2017 and orders 1 and 2 made by the Tribunal on 7 September 2018 and in place order:

1. the proceedings be remitted to the Tribunal to be determined according to law;

2. costs of the proceedings before the Tribunal be determined by the Tribunal upon the remittal;

3. The order made by Beazley P on 22 October 2018 that the practitioner’s name be reinstated on the Roll of lawyers until further order, be continued until the determination of the rehearing by the Tribunal, or earlier further order.

4. The first respondent to pay the appellant’s costs of the appeal.

94. BARRETT AJA: I agree with Gleeson JA.

95. SIMPSON AJA: I agree with Gleeson JA.

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Decision last updated: 14 December 2018