LP 202012 v Council of the Law Society of the Act (Appeal)
[2024] ACAT 12
•10 March 2023
ACT CIVIL & ADMINISTRATIVE TRIBUNAL
LP 202012 v COUNCIL OF THE LAW SOCIETY OF THE ACT (Appeal) [2024] ACAT 12
AA 64/2021 (OR 12, 13, 14 and 15/2020)
Catchwords: APPEAL – legal practitioner discipline proceedings – appeal against order recommending removal of the practitioner’s name from the roll – consideration of whether the Legal Profession Act 2006 governs the conduct of a legal practitioner in a federal court that happens in the ACT – consideration of whether a decision of the Council of the Law Society to cancel the practitioner’s practising certificate in 2018 had a bearing on the Council’s applications for disciplinary action filed in 2020 or the original tribunal’s determination of those applications – consideration of the practitioner’s claims that the original tribunal had no jurisdiction to hear the Council’s applications for disciplinary action; that the Appeal Tribunal had no jurisdiction to hear his appeal; and that the Supreme Court has no jurisdiction to review his conduct – consideration of whether the Council breached the rule in Browne v Dunn when not cross-examining the practitioner in relation to facts that were admitted – consideration of the practitioner’s claim of bias against the members of the original tribunal – consideration of whether the original tribunal’s finding that charge 1 of 19 charges laid in proceeding OR13 vindicated the practitioner in relation to all other charges – no error of fact or law on the part of the original tribunal established – practitioner’s lack of insight or understanding of his common law duty of honesty and candour confirmed by his conduct on the appeal – appeal dismissed
Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 7, 32, 79, 82
Judiciary Act 1903 (Cth) ss 55A, 55B, 55C, 86
Legal Profession Act 2006 ss 16, 51, 81, 387, 391, 410, 415, 425, 433
Migration Act 1958 (Cth) ss 486E, 486F
Subordinate
Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 r 19
Cases cited:Allied Pastoral Holdings Pty Ltd v The Commissioner of Taxation [1983] 1 NSWLR 1
APLA v Legal Services Commissioner (NSW) [2005] HCA 44
AXY17 v Minister for Immigration and Anor [2017] FCCA 2006
B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219
BNJ17 v Minister for Immigration and Border Protection [2018] FCCA 1359
Browne v Dunn (1894) 6 R 67 (HL)
Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished)
Council of the Law Society of the ACT v Legal Practitioner LP 202012 [2020] ACAT 80
Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union [2013] FCAFC 8
Drury v Maloney [2016] FCCA 2434
Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Harada v Barnes and Anor [2021] ACAT 66
Law Society of the ACT v Powrie [2017] [2017] ACTSCFC 4; (2017) 12 ACTLR 184
Legal Practitioner v Council of the Law Society of the ACT[2018] ACTCA 19
Legal Practitioner v Council of the Law Society of the ACT [2009] ACTSC 149
Michael Wilson & Partners Ltd v Nicholls [2011 HCA 48
Minister for Immigration and Multicultural Affairs v Bhardwaj 2002] HCA 11
Minister for Immigration and Citizenship v Li [2013] HCA 18
Oneflare Pty Ltd v Chernih [2017] NSWCA 195
Raben Footwear Ply Ltd v Polygram Records Inc [1997] FCA 370
Tam v Du [2019] ACAT 94
V v Elringtons Pty Ltd [2018] ACAT 23
Vakauta v Kelly [1989] HCA 44
List of
Texts/Papers cited: Address by McCallum CJ at the opening of the Law Term, 30 January 2023
Tribunal:Presidential Member G McCarthy
Senior Member Prof T Foley
Date of Orders: 10 March 2023
Date of Reasons for Decision: 10 March 2023
Date of publication: 2 February 2024
AUSTRALIAN CAPITAL TERRITORY )
CIVIL & ADMINISTRATIVE TRIBUNAL ) AA 64/2021
BETWEEN:
LP 202012
AppellantAND:
THE COUNCIL OF THE LAW SOCIETY OF THE ACT
RespondentAPPEAL TRIBUNAL: Presidential Member G McCarthy
Senior Member Prof T Foley
DATE:10 March 2023
ORDER
The Tribunal orders that:
1.The orders of the original tribunal made on 8 November 2021 and 22 December 2021 are confirmed.
2.The parties file and serve written submissions in relation to costs, limited to 2 pages and indicating any agreed orders as to costs, by 24 March 2023.
………………………………..
Presidential Member G McCarthy
For and on behalf of the TribunalContents
The role of the Appeal Tribunal
The grounds of appeal
Ground 1: the LP Act “has no jurisdiction in this matter”
Ground 2: “The decision of the Law Council was unlawful. The decision is void ab initio”
Ground 3: “The decision of the Law Society to refer the matter to the ACAT was unlawful”
Ground 4: “the decision of the original ACAT was unlawful”
The rule in Browne v Dunn
Bias
Unreasonable delay
Abuse of process
No separate hearing as to penalty
The charges
OR 12/2020
OR13/2020 - dismissal of charge 1
OR13/2020 - Charge 2
OR13/2020 - Charge 3
OR13/2020 - Charge 4
OR13/2020 - Charge 5
OR13/2020 - Charge 6
OR13/2020 - Charge 7
OR13/2020 - Charge 8
OR13/2020 - Charge 9
OR13/2020 - Charge 10
OR13/2020 - Charge 11
OR13/2020 - Charge 12
OR13/2020 - Charge 13
OR13/2020 - Charge 14
OR13/2020 - Charge 15
OR13/2020 - Charge 16
OR13/2020 - Charge 17
OR13/2020 - Charge 18
OR13/2020 - Charge 19
OR 14/2020
OR 15/2020
Ground 5: “the Appeals ACAT has no jurisdiction to hear this matter”
Ground 6: “the ACT Supreme Court has no jurisdiction to hear this matter”
Characterisation and penalty
Conclusion
REASONS FOR DECISION
1.This appeal arose from findings of the Tribunal (hereafter the original tribunal) in response to charges laid under the Legal Profession Act 2006 (the LP Act) that the appellant (hereafter the practitioner) is guilty of professional misconduct in respect of 22 charges and guilty of unsatisfactory professional conduct in respect of 2 other charges. The original tribunal provided the parties with its orders and written reasons for its decision[1] but has not published them, having regard to section 423A of the LP Act.
[1] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished)
2.We begin by outlining the framework of the initial proceedings.
3.By four separate applications for disciplinary action which became Tribunal proceedings OR12/2020 (OR12), OR13/2020 (OR13), OR14/2020 (OR14) and OR15/2020 (OR15), the respondent to the appeal (hereafter the Council) laid 28 charges against the practitioner alleging breaches of the LP Act, breaches of the Legal Profession (Solicitors) Conduct Rules 2015 (the Conduct Rules), breaches of his common law duty of honesty and candour to the Federal Circuit Court and breaches of his common law duty to inform and assist the ACT Law Society.
4.The Council laid 3 charges in proceeding OR12, 19 charges in proceeding OR13, 3 charges in proceeding OR14 and 3 charges in proceeding OR15. Particulars regarding the charges laid in each application are set out in paragraphs 9, 10, 11 and 12 of the original tribunal’s reasons for decision.
5.The original tribunal heard the applications on 15, 16 and 17 March 2021 and 6 May 2021. On 8 November 2021, the original tribunal made orders and provided reasons for its decision.
6.In proceeding OR12, the original tribunal found charge 1 not proved and charges 2 and 3 proved.[2] In proceeding OR13, it found charge 1 not proved and charges 2 – 19 proved.[3] In proceeding OR14, it found charges 1 – 3 proved.[4] In proceeding OR15, it found charges 1 – 3 proved.[5]
[2] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [66] – [68]
[3] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [214] – [268]
[4] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [291] – [297]
[5] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [324] – [332]
7.Arising from the charges found proved, the original tribunal recommended the practitioner’s name be removed from the roll of legal practitioners kept by the Supreme Court of the Australian Capital Territory. On 22 December 2021, the original tribunal ordered the practitioner to pay the Council’s costs.
8.By application dated 3 December 2021, the practitioner appealed from the original tribunal’s orders on six grounds:
(a)The LP Act “has no jurisdiction in this matter”. The practitioner explained this to mean a claim that the LP Act did not govern his conduct that was the subject of the charges.
(b)The “decision of the Law Council was unlawful” and “void ab initio”. The practitioner explained this to mean a claim that the Council’s decision to cancel his practising certificate on 18 June 2018 was unlawful and void ab initio.
(c)The “decision of the Law Society to refer the matter to the ACAT was unlawful”. The practitioner explained this to mean a claim that the Law Society “had no legal authority” to investigate his conduct; that the investigation was “conducted for an improper purpose”, that the investigation was “an abuse of process”; and that referral of the matter to the Tribunal was “an unlawful decision”.
(d)The “decision of the original ACAT was unlawful”, which was later alleged on grounds too many to count.
(e)The “Appeals ACAT has no jurisdiction to hear this matter”.
(f)The “ACT Supreme Court has no jurisdiction to hear this matter”.
9.The grounds of appeal were followed by a concluding statement:
There never was a decision to cancel the Applicant’s practicing certificate. The applicant is still the holder of a practicing certificate (sic).
10.The practitioner did not state what orders he sought: he simply repeated the grounds of appeal. However, it was implicit that the practitioner sought at least an order that the original tribunal’s orders be set aside. The practitioner attached to his application a 29-page document setting out his “reasons for appeal” (the practitioner’s preliminary reasons for appeal).
11.In his application for appeal, the practitioner also applied for interim orders that the decision of the Council to cancel his practising certificate on 18 June 2018 be stayed; that he be granted a practising certificate; that the original tribunal’s decision be stayed; and that “the appeals ACAT be the subject of a permanent stay”. The application for interim or other orders was listed for hearing on 16 February 2022.
12.At a directions hearing on 28 January 2022, the practitioner submitted that the cancellation of his practising certificate was void ab initio.[6] The practitioner relied on the High Court’s decision in Minister for Immigration and Multicultural Affairs v Bhardwaj[7] to submit that because the decision to cancel his practising certificate involved jurisdictional error, the decision is to be regarded as no decision at all.
[6] Transcript of proceedings, 28 January 2022 page 28, lines 14 – 17
[7] [2002] HCA 11
13.The practitioner contended that the decision to cancel his practising certificate was void ab initio, notwithstanding his reliance on the cancellation in the original proceedings. He did so, first in support of an interim application that the original tribunal lacked jurisdiction because - by reason of the cancellation - he was no longer an “Australian practitioner”[8] and second, in his submissions on penalty to submit that the cancellation provided sufficient protection of the public and that a fine and retraining were sufficient penalties.[9]
[8] Council of the Law Society of the ACT v Legal Practitioner LP 202012 [2020] ACAT 80
[9] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [356]
14.The practitioner also stated that on 16 February 2022 he would seek an order that the Appeal Tribunal grant him a practising certificate[10] because the original tribunal’s errors of law “were so heinous that it means that there never was a decision”;[11] a finding that he had “no case to answer”[12] because the original tribunal’s errors of law were jurisdictional errors; and a finding that the Supreme Court did not have jurisdiction to review his conduct.[13]
[10] Transcript of proceedings, 28 January 2022 page 28, lines 14 –17
[11] Transcript of proceedings, 28 January 2022 page 28, lines 44 – 46
[12] Transcript of proceedings, 28 January 2022 page 29, lines 4 – 39
[13] Transcript of proceedings, 28 January 2022 page 32, lines 30 – 43
15.The grounds of appeal and his submissions on 28 January 2022 led the Appeal Tribunal to indicate to the practitioner it was considering whether his application should be dismissed under section 32 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act) as lacking in substance.
16.In response, on 12 February 2022, the practitioner filed a 39 page document, single-spaced, unsigned, undated and neither paginated nor paragraph numbered, entitled “Submissions on Section 32 of the ACAT Act” (the practitioner’s first written submission) in which he made detailed submissions expanding on the grounds of appeal. He also raised many issues beyond the grounds of appeal. Having regard to the practitioner’s first written submission, on 15 February 2022 the Appeal Tribunal informed the practitioner it would no longer be considering whether his application should be determined pursuant to section 32. We instead considered the practitioner’s first written submission, together with his other submissions written and oral, for the purpose of determining the appeal pursuant to section 79 of the ACAT Act.
17.On 16 February 2022, we heard the practitioner’s application for interim orders following which we determined that the appeal proceed as a review of the original decision. We dismissed the application for interim orders, although acknowledging that the original tribunal’s decision was implicitly stayed whilst under appeal. We also stated we were prepared to hear argument as to why the cancellation of the practitioner’s practising certificate in 2018, or the manner of its cancellation, had a bearing on the lawfulness of the original tribunal’s findings and/or decision in 2021.[14]
[14] Transcript of proceeding, 16 February 2022, page 28, lines 20 – 23
18.On 23 February 2022, in an unsuccessful effort to enable the appeal to be heard in an orderly manner, the Appeal Tribunal made the following procedural orders, among others:
1 By 11 April 2022 the appellant file and serve:
(a)a list of the errors of fact, errors of law or discretionary errors that affected the decision of the original Tribunal made on 8 November 2021 (the decision);
(b)any application for leave to adduce further evidence at the hearing of the appeal;
(c)any document and a statement of any intended evidence to be given by an intended witness which the appellant intends to seek leave to adduce as further evidence at the hearing of the appeal;
(d)written submissions, using numbered paragraphs, in support of any application for leave to adduce further evidence at the hearing of the appeal; and
(e)written submissions, using numbered paragraphs, directed seratium to each listed error of fact, error of law or discretionary error.
19.On 11 April 2022, the practitioner filed:
(a)a 40 page document, unsigned and undated, containing 432 numbered paragraphs, headed “errors of law jurisdictional errors” (the practitioner’s second written submission); and
(b)a 102 page document, unsigned and undated, containing 896 numbered paragraphs, headed “list of errors of law ACAT decision jurisdictional errors introduction” (the practitioner’s third written submission).
20.In response to orders 1(b) and (c) made on 23 February 2022, the practitioner filed a 4 page document, containing 28 paragraphs, headed “Application for leave to adduce further evidence” to which the practitioner annexed copies of the documents he wanted to adduce.
21.In April 2022, the practitioner caused the Tribunal to issue a subpoena directed to the proper officer of the Council requiring the officer to produce, in summary, all documents concerning the decision to cancel the practitioner’s practising certificate on 18 June 2018 including documents which would disclose the names of the members of the Council who made that decision.
22.On 10 May 2022, PM McCarthy, sitting as the Appeal Tribunal, heard and dismissed the practitioner’s application for leave to adduce the further documentary evidence that the practitioner had attached to the application for leave. For some documents, leave was not necessary because they were before the original tribunal. For other documents, leave was refused because the documents were not relevant. These documents were newspaper articles quoting the Prime Minister, the Minister for Defence and others about the presumption of innocence in circumstances of war; extracts from the Victorian Legal Services Board and Commissioner website commenting on its responsibility for regulation of the legal profession in Victoria; and an extract from the Law Society of NSW website commenting on the right to practice in a federal court or a court exercising federal jurisdiction in NSW.
23.PM McCarthy, sitting as the Appeal Tribunal, also set aside the subpoena directed to the Council on the grounds that the documents the subject of the subpoena were not relevant to the practitioner’s appeal from the original tribunal’s findings of guilt in relation to the charges found proved.
24.The practitioner did not comply with order 1(c) made on 23 February 2022 requiring him to file a statement of any intended evidence to be given by an intended witness which he intended to seek leave to call. Instead, the practitioner filed a document headed “Intended Witnesses” which stated only the names of three witnesses he intended to call and the following words:
All of the witnesses will be attesting to conversations which they had with [the practitioner]. They will also attest to conversations [the practitioner] had with Ms [R].
25.In relation to the practitioner’s stated intention to call the three named witnesses, at the hearing on 10 May 2022 PM McCarthy noted the practitioner had not given any indication of what the intended witnesses’ evidence would be about what was said in the conversations. Where the practitioner had not provided a witness statement from any of the intended witnesses, PM McCarthy offered the practitioner further time to do so.
26.On 11 May 2022, the practitioner filed a single page document, unsigned and undated, which stated (in the case of each intended witness) that the witness had overheard conversations between the practitioner and Ms R and had had conversations with the practitioner about what Ms R had told the practitioner. The document stated nothing about was said in any of the conversations. Also, the document was not a witness statement from any of them. This left unanswered questions about why the practitioner did not lead the intended evidence in the original proceedings, why he should be given leave to do so on appeal and the probative value of the intended evidence.
27.On 20 May 2022, PM McCarthy ordered the practitioner’s application for leave to call the three intended witnesses be dismissed.
28.On 17 May 2022, the Council filed a document entitled “Respondent’s submissions” dated 16 May 2022 in response to the practitioner’s second and third written submissions (the Council’s written submission).
29.On 6 June 2022, the practitioner filed another 40 page document, unsigned and undated, containing 352 numbered paragraphs, headed “Reply to submissions” (the practitioner’s fourth written submission).
30.We have considered the practitioner’s submissions, written and oral, and the Council’s submissions, written and oral, for the purpose of determining the appeal.
The role of the Appeal Tribunal
31.Pursuant to section 79(3) of the ACAT Act, a party to an original application may appeal to the Tribunal on a question of fact or law. Pursuant to section 82(1) of the ACAT Act, an appeal may be dealt with as a new application, or as a review of the original decision, as the Tribunal considers appropriate. In this case, the Appeal Tribunal determined that the appeal be dealt with as a review, which should be understood as a rehearing[15] to use a term that has received judicial interpretation and is “tolerably well understood”.[16]
[15] See Legal Practitioner v Council of the Law Society of the ACT [2009] ACTSC 149 at [67] – [78]; B & T Constructions (ACT) Pty Ltd v Construction Occupations Registrar and the Owners-Units Plan 3324 [2013] ACTSC 219 at [12]
[16] Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [13]-[14]
32.The Appeal Tribunal’s role on an appeal conducted by way of a rehearing is well settled. The principles were set out by President Neate in V v Elringtons Pty Ltd[17] as follows:
In Excel Intelligent Pty Ltd v Thompson, the Tribunal considered the judicial authorities discussing the role of an appeal court or tribunal. It is not necessary to repeat the full discussion in that decision. However, it is relevant to note the following propositions drawn from judgments about the nature of a rehearing:
(a) An appeal court (or an appeal tribunal) must determine whether the decision appealed against is wrong because the court at first instance (or an original tribunal) fell into an error of law, made a finding of fact that is clearly wrong or exercised a discretion on a wrong principle or in a way that is clearly wrong.
(b) Ordinarily, if there has been no further evidence admitted or no relevant change in law, a court in entertaining an appeal by way of rehearing (or an appeal tribunal) can exercise its appellate powers only if satisfied that there was an error on the part of the court below (or an original tribunal).
(c) The appellate court (or an appeal tribunal) will give proper allowance to the advantage of the court of first instance (or an original tribunal) who saw and heard the witnesses, so that, ordinarily, facts found based on the assessment of witnesses will not lightly be overturned.
(d) The appellate court (or an appeal tribunal) is obliged to conduct a real review of the trial and the reasons of the court of first instance (or an original tribunal).
(e) In an appeal by way of rehearing, once error below has been found (after making proper allowance for the advantages of the trial judge or original tribunal), the appellate court (or appeal tribunal) can substitute its own decision based on the facts and the law as they now stand.[18]
[17] [2018] ACAT 23
[18] V v Elringtons Pty Ltd [2018] ACAT 23 at [23]
33.In short, the practitioner must show that the original tribunal made an error of fact or law and that the error material affected the result.[19]
[19] Tam v Du [2019] ACAT 94 at [22] citing Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [29]-[39] (per Refshauge J); Excel Intelligent Pty Ltd v Thomson [2018] ACAT 4 at [46]-[55]
34.In Harada v Barnes, the Tribunal said:
The onus is on an appellant to show, specifically, where the original tribunal went wrong. Normally, that requires an appellant to point to an error of fact or an error of law in the written or oral reasons for decision of the original tribunal and to explain to the appeal tribunal how that error affected the result.[20]
The grounds of appeal
[20] Harada v Barnes and Anor [2021] ACAT 66 at [8]
35.The practitioner’s written submissions amounted to lengthy and repetitive narratives alleging literally hundreds of errors of fact and law. The practitioner challenged every finding of guilt and seemingly every material paragraph of the original tribunal’s reasons for decision. Most allegations were repeated assertions of jurisdictional error. Many were assertions of “no evidence” to support a finding of fact (notwithstanding the practitioner admitting most facts in the original proceedings), a “failure to take into account a relevant consideration”, “taking into account an irrelevant consideration” and the like. The practitioner made repeated claims that the Council’s applications were “an abuse of power” and brought for “an improper purpose”.
36.The practitioner also repeatedly submitted that the original tribunal “acted for an improper purpose” without identifying the purpose or referring to any material that could justify the allegation.
37.Many of the alleged errors had no connection with the grounds of appeal stated in the practitioner’s application for appeal.
38.We have done our best to address the primary alleged errors, the alleged errors in relation to each charge found proven and other alleged errors, where appropriate, but acknowledge that we have not addressed all the minutiae that extends over hundreds of pages of submissions. We concluded it was not necessary to do so because it would not have affected the result.
39.The ratio of the original tribunal’s decision is that the practitioner cannot be trusted in respects that are essential to the practice of law; has no insight into, or understanding of, the seriousness of his misconduct; and has no insight into, or understanding of, the importance of honesty and candour in his conduct as a legal practitioner.[21]
[21] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [353] and [357]
40.In his submissions on the appeal, written and oral, the practitioner repeatedly demonstrated that the original tribunal’s conclusions about him are correct. It was bewildering to read the practitioner’s submissions on appeal that were so lacking in honesty and candour - written in response to multiple findings that the practitioner breached his common law duty of honesty and candour.
Ground 1: the LP Act “has no jurisdiction in this matter”
41.Many of the charges related to the practitioner’s conduct in a federal court or a federal tribunal. The practitioner submitted that the LP Act does not govern his conduct in a federal court.[22] He submitted that his conduct in a federal court was governed by provisions of the Judiciary Act 1903 (the Judiciary Act) and other Commonwealth Acts that “cover the field”[23] regarding regulation of legal practitioners’ conduct in federal courts. He referred to section 55A of the Judiciary Act 1903, which provides:
Right of barristers and solicitors admitted in federal courts to practise in those courts
A person who has been admitted to practise as a barrister or solicitor, or as both, under rules made in pursuance of paragraph (ga) of section 86 of this Act is, subject to those rules, entitled to practise in any federal court as a barrister or solicitor, or as both, as the case may be.
[22] Practitioner’s third written submission at [32]
[23] Transcript of proceedings, 14 June 2022, page 43, lines 25-28
42.The practitioner said the LP Act, being an ACT Act, regulates the conduct of legal practitioners in the ACT only where their conduct is in the ACT Supreme Court or the ACT Magistrates Court.[24]
[24] Practitioner’s third written submission at [30]
43.The practitioner submitted that a person who has been admitted to practice as a barrister or solicitor, or both, in any federal court under rules made pursuant to section 86(1)(ga) of the Judiciary Act is, subject to those rules, entitled (without more) to practise in a federal court, as a barrister or a solicitor, or both, as the case may be.
44.The practitioner said that where possible discipline of a practitioner arises consequent upon their conduct in a federal court, the body to adjudicate upon that conduct is a federal court.[25] Accordingly, he said, his conduct in a federal court “is beyond the jurisdiction of the ACT Law Society”.[26]
[25] Transcript of proceedings, 14 June 2022, page 43, lines 34 – 39
[26] Practitioner’s third written submission at [32]
45.The practitioner said his alleged conduct in a federal court or a federal tribunal is also beyond the jurisdiction of the LP Act and, in turn, the Conduct Rules made under the LP Act.
46.The practitioner submitted, for the same reason, he does not need a practising certificate to practise in a federal court. The practitioner said:
Now, the requirement to practice is that, (1) be admitted to practice, not the holder of a practising certificate. If [there was] an intention to cut off people - a requirement for people to hold a practising certificate, then section 55 would specifically make reference to it. Hence, exclusio alterius, the fact that it doesn't refer to the requirement to possess a practising certificate means that you do not need a practising certificate.[27]
[27] Transcript of proceedings, 14 June 2022, page 42, lines 22-27
47.The practitioner said this confirms that the LP Act –
just has to butt out. It’s got no role to play.[28]
[28] Transcript of proceedings, 15 June 2022, page 115, lines 35-36.
48.In support, the practitioner said the NSW Law Society has “stated on its website that to practice (sic) in a Federal Court or a Court exercising federal jurisdiction in New South Wales you only need to be admitted to the Australian legal profession.”[29] (emphasis added). This statement about what is written on the NSW Law Society website is simply not true. At [37] of his third written submission, the practitioner quotes (we presume) from the website. It does not state that being admitted to the Australian legal profession is the “only” requirement to practise in a federal court.
[29] Practitioner’s second written submission at [8]
49.The need for a practising certificate to practise in a federal court is consistent with a passage the practitioner quoted (we presume) from the Federal Court of Australia website: “A person who is entitled to practise as a barrister, solicitor or as both in the Supreme Court of a state or territory has the same entitlement to practise [in] the Federal Court of Australia provided his or her name appears in the register of practitioners kept by the Chief Executive Principal Registrar of the High Court of Australia”.[30] A requirement of an entitlement “to practise as a barrister, solicitor or both in the Supreme Court of a state or territory” is the holding of a practising certificate.
[30] Transcript of proceedings, 15 June 2022, page 114, line 45 - page 115, line 2
50.The practitioner’s submission also caused us to draw his attention to section 16(1) of the LP Act, which provides that a person commits an offence if the person engages in legal practice in the ACT and the person is not an Australian legal practitioner. ‘Australian legal practitioner’ is defined in the LP Act as someone with a practising certificate. In response, the practitioner relied on section 16(3) of the LP Act which provides that section 16(1) does not apply to legal practice “engaged in under a territory law or a law of the Commonwealth”. As the practitioner put it, referring to section 16(3) –
Read it and weep.[31]
[31] Transcript of proceedings, 28 January 2022, page 39, line 45
51.The practitioner submitted that because (he said) he was engaged under the Migration Act 1958 (the Migration Act), being “a law of the Commonwealth”, when he appeared in the Federal Circuit Court, he did not need a practising certificate to do so. He agreed “entirely”[32] that, on his submission, nobody requires a practising certificate to appear in a federal court.
[32] Transcript of proceedings, 14 June 2022, page 45, line 26
52.On enquiry as to why he was so anxious to have a practising certificate if he did not need one, the practitioner said –
Ethically, I think that's probably the right thing to do.[33]
[33] Transcript of proceedings, 14 June 2022, page 45, line 34
53.He said a practising certificate was “something I think that I should have”, but (in response to our enquiry) said he could not explain why.[34]
[34] Transcript of proceedings, 14 June 2022, page 45, line 46 – page 46, line 3
54.The Council submitted the practitioner’s submissions gave rise to two issues. The first was whether the practitioner needs (or needed) a practising certificate to appear in a federal court or tribunal. The second was whether the LP applied to his conduct in a federal court or a federal tribunal.
55.As to the first issue, the Council said it did not arise on the appeal because the practitioner was not charged with engaging in practice without a practising certificate. The Council submitted in any event it would be perverse if section 16(3) had the effect of making section 16(1) redundant. The Council submitted that section 16(3) is directed at a situation where there is a law specifically authorising someone to appear without a practising certificate.
56.The Council also noted the decision of the Federal Circuit Court of Australia in Drury v Maloney[35] citing the decision of the High Court in APLA v Legal Services Commissioner (NSW)[36] in which the High Court held that sections 55B and 55C of the Judiciary Act make the right of appearance in a federal court dependent on being admitted to practise in a State or Territory and holding a current practising certificate.
[35] [2016] FCCA 2434
[36] [2005] HCA 44
57.As to the second issue, the Council referred to section 391(1) of the LP Act, which provides that the whole of Chapter 4 headed ‘Complaints and discipline’ applies to conduct “happening in the ACT”. The Council noted that all of the conduct of the practitioner that was the subject of the charges happened in the ACT, arguably save for the conduct that became the subject of charge 3 in OR15 which arose from his conduct in the BNJ17 proceeding filed in the Melbourne registry of the Federal Circuit Court.[37]
[37] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [307] – [319]
58.In the BNJ17 proceeding, the practitioner appeared before Judge McNab. The charge related to an alleged misstatement in an affidavit prepared by, and affirmed by, the practitioner on 7 April 2017. In the affidavit, the practitioner provided an ACT address as his address for service. The Council contended that chapter 4 of the LP Act therefore applied also to charge 3 in OR15.
59.In response to the Council’s submissions on the first issue and to the High Court’s decision in APLA v Legal Services Commissioner, the practitioner submitted –
The High Court is wrong on this matter.[38]
[38] Transcript of proceedings, 16 June 2022, page 78, line 23
60.He submitted the High Court incorrectly referred to section 55B, and that section 55A is the relevant provision.[39]
[39] Transcript of proceedings, 16 June 2022, page 78, lines 22-25
61.As to the second issue, the practitioner returned to his claim that practice and procedure in federal courts “is beyond the jurisdiction”[40] of the LP Act. He submitted that the statement in section 391(1) of the LP Act that Chapter 4 of the LP Act applies to his conduct because it happened in the ACT does not mean it does so. The practitioner likened the LP Act to “American legislation [that] tries to regulate sex trafficking in Thailand”.[41] The practitioner said:
The fact that it's written down and says that you can't do certain things in Thailand, doesn't mean that it's got jurisdiction in Thailand, it has no jurisdiction in Thailand. The fact that the ACT Legal Profession Act attempts to, purports to, claim jurisdiction [sic] over the Federal Court and the preparation of forms, the lodgment of forms, practice and procedure in the Federal Court, doesn't mean that it does.[42]
[40] Transcript of proceedings, 16 June 2022, page 77, line 13
[41] Transcript of proceedings, 16 June 2022, page 77, lines 31 – 32
[42] Transcript of proceedings, 16 June 2022, page 78, lines 22-25
62.The practitioner’s submissions on both issues were, to say the least, unpersuasive.
63.It was surreal to find ourselves having to say to a legal practitioner that a High Court ruling, which he agreed[43] was directly on point, is binding on this Tribunal: a practitioner needs a practising certificate to appear in a federal court.
[43] Transcript of proceedings, 16 June 2022, page 78, lines 15-20
64.Referring to the practitioner’s reliance on section 16(3) of the LP Act, the practitioner might have referred to the Migration Act when providing migration law services to his clients, but he was not himself “engaged” under the Migration Act: he was engaged by his client under the terms of engagement between himself and his client. Section 16(3) was therefore not applicable.
65.In any event, as the Council pointed out, the first issue did not arise for consideration on the appeal because none of the charges alleged that the practitioner had practised without a practising certificate.
66.As to the second issue, it was similarly surreal to find ourselves responding to a submission from a legal practitioner that his conduct in the ACT is not governed by Chapter 4 of the LP Act, where section 391(1) of the LP Act states that it is. We, as a subordinate tribunal established under statute, have a duty to uphold legislation as stated. Also, the comparison with American legislation governing sex trafficking in Thailand is misconceived. Pursuant to section 391(1), Chapter 4 is stated to apply to conduct happening “in” - not outside - the ACT. We are satisfied that the LP Act applies to conduct of a practitioner that happens in the ACT, irrespective of whether it occurs in a federal courtroom that is in the ACT.
67.For these reasons, we are satisfied that the LP Act and its discipline provisions in Chapter 4 applied when the original tribunal heard and determined the charges concerning the practitioner’s conduct as alleged. Ground 1 fails.
Ground 2: “The decision of the Law Council was unlawful. The decision is void ab initio”
68.The second ground of appeal entailed a challenge to the decision of the Council made on 18 June 2018 to cancel his practising certificate pursuant to section 55 of the LP Act. The practitioner submitted that the decision to cancel was void ab initio, notwithstanding his earlier reliance on the cancellation to submit that the Council lacked jurisdiction to investigate and make decisions about the complaints leading to the four applications for disciplinary action.[44]
[44] Council of the Law Society of the ACT v Legal Practitioner LP 202012 [2020] ACAT 80
69.In an effort to capture the substance of the argument, SM Foley put the following proposition to the practitioner:
So, as I understand it, in outline, you're argument, essentially, is this, is that the starting point for your argument is a letter that you received from the Law Society, on 21 June 2018, which was the – I think it's called an information letter, advising you that your practising certificate had been cancelled, and you say, in that letter, and that letter I've reviewed, said, essentially, 'Our investigations into your conduct will continue'.
So you say, as I understand it, to use the vernacular, your assertion is that the Law Society jumped the gun in cancelling your certificate, given that those investigations were continuing and you say cancelling prior to completion of the investigations was unlawful. You say, as I understand it, any further investigation as a consequence of that is unlawful. You say that any finding was void ab initio, and the Briginshaw principle as a consequence and therefore, with respect to these proceedings, therefore the filing of the disciplinary procedures in these matters was similarly unlawful.
What flows from that, the decision of the original tribunal, their decision with respect to finding of guilt and penalty were void, on the basis that there was no jurisdiction, given the assertions that you've made previously. What then flows from that is there's no decision to appeal and this tribunal has no jurisdiction.
I know that reduces it to the bones, but have I captured the essence of that, essentially?[45]
[45] Transcript of proceedings, 14 June 2022, page 13, line 36 – page 14, line 12
70.In reply, the practitioner said:
Senior Member ... I must congratulate him for the first time in this matter, coming to grips with the real issue. What you've said is an extremely good summary of what's happened.[46]
[46] Transcript of proceedings, 14 June 2022, page 14, lines 14-16
71.We were not persuaded that the cancellation of the practising certificate, lawful or otherwise, had any bearing on the lawfulness of the Council bringing its four applications for disciplinary action against the practitioner or the lawfulness of the original tribunal hearing and determining them. Nor did it have any bearing on the Appeal Tribunal’s jurisdiction to review the original tribunal’s decision for error.
72.As the Council pointed out, section 55(1)(a) of the LP Act (within Chapter 2 of the LP Act) empowered the Council to cancel the practitioner’s practising certificate. The Council’s decision was conveyed to the practitioner by letter dated 21 June 2018 from Ms O’Hara, Chief Executive Officer of the ACT Law Society.[47] The letter records the Council proceeded pursuant to section 55(1)(a).
[47] A copy of the letter is attached to the affidavit of Mr Robert Reis, sworn on 25 August 2020 in the original proceedings, see paragraph 8 and pages 28-36. Mr Reis' affidavit was in evidence in response to the practitioner's application for interim or other orders dated 5 August 2020 in the original proceedings. See Council of the Law Society of the ACT v Legal Practitioner LP 202012 [2020] ACAT 80 at [8], fn 1
73.Section 81(1)(b) of the LP Act entitled the practitioner to appeal to the Supreme Court against the decision of the Council to cancel his practising certificate. The practitioner exercised that right of appeal in 2018. Midway through the hearing of his appeal, the practitioner consented to an order that his appeal be dismissed and an order that he pay the Council’s costs. As we understood it, the Supreme Court made those orders.
74.The Council submitted that the Tribunal does not have jurisdiction to review a decision made under section 55 of the LP Act: the only pathway for review or appeal from a decision under section 55 is to the Supreme Court pursuant to section 81 - and the practitioner has exercised that right.
75.The practitioner submitted that the outcome in the Supreme Court did not preclude him from challenging, in this proceeding, the lawfulness of the Council’s decision to cancel his practising certificate. He noted, and we accept, the Supreme Court did not make any findings about the lawfulness or otherwise of the Council’s decision to cancel his practising certificate: his application under section 81 was dismissed by consent. He submitted he was therefore not estopped from raising grounds as to why the cancellation was unlawful and that he had “every right”[48] to raise those grounds irrespective of the Supreme Court’s orders. As the practitioner put it:
Now, this [Supreme Court decision] has got no utility in repealing the decision [of the Law Council] and that I’m somehow getting a review via the back door when it should be dealt with by the Supreme Court. That may well be, but the point is that in order for you, the law - the ACAT to make a proper decision, a lawful decision, and one that is in the interests of achieving justice per section 7 of the [ACAT] Act in order for you to make that finding you don’t have any choice.
You need to look at the decision of the ACAT – the Law Council and decide if, in fact, it’s valid or not. Now, it’s not simply the purview of the Supreme Court to do [that]. You’re not precluded from doing that by virtue of the fact that the Supreme Court does it. The fact that the Supreme Court can review, it doesn’t preclude you from doing it because you cannot review the decision of the ACAT without looking at the initial decision of the Law Council.[49]
[48] Transcript of proceedings, 10 May 2022, page 19, lines 46-47
[49] Transcript of proceedings, 10 May 2022, page 19, lines 4-16
76.We accept the general proposition that if cancellation of the practitioner’s practising certificate was a jurisdictional precondition to the laying of the charges in proceedings OR12, OR13, OR14 and OR15 and/or their determination, then we would have jurisdiction to consider whether the cancellation was lawful. We would also accept that if the original tribunal relied on the cancellation of the practising certificate for the purpose of determining the charges or any of them, then we would have jurisdiction to review that reliance.
77.The practitioner’s submission failed at the first hurdle. The lawfulness of the Council bringing its four applications for disciplinary action against the practitioner was not dependent on the decision to cancel the practitioner’s practising certificate in 2018. Nor was the original tribunal’s jurisdiction to hear and determine the charges conditional on the cancellation of the practitioner’s practising certificate. The practitioner did not refer us to any statutory provision or principle of common law to the contrary. Nor did the original tribunal rely on the cancellation for any purpose. Nor was there any suggestion the practitioner raised the cancellation of his practising certificate or the lawfulness of the cancellation in the original proceedings, save to rely on the cancellation in his submissions on penalty.
78.We agree with the original tribunal’s finding that the fact that, during the course of its investigations into the complaints giving rise to the four applications for disciplinary action, the Council exercised its power under section 56 of the LP Act to cancel the practitioner’s practising certificate is irrelevant. The right removed was the practitioner’s right to practise in the ACT, not his right to remain admitted as a legal practitioner in the ACT.[50]
[50] Council of the Law Society of the ACT v Legal Practitioner LP 202012 [2020] ACAT 80 at [34] – [38]
79.All that can be said is that some of the factual matters giving rise to some of the charges were also relevant to the Council’s decision to cancel the practitioner’s practising certificate.
80.The original tribunal determined all the charges, including those that involved facts relevant also to the cancellation of the certificate, according to its findings of fact (made by reference to admissions made and evidence presented) and (having regard to the parties’ submissions) its application of the applicable law to its findings of fact. The decision to cancel the practising certificate formed no part of its reasons for decision. It was not mentioned, save for an early background comment as part of an overview chronology.[51]
[51] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [7]
81.Where we were not persuaded that the cancellation of the practitioner’s practising certificate in 2018, or the lawfulness of the cancellation, had any bearing on the original tribunal’s jurisdiction to hear and determine the charges that were laid or its determination of the charges, it follows that the original tribunal did not err by not considering that decision or the lawfulness of it.
82.For this reason, it was neither necessary nor appropriate for us to engage with the practitioner’s lengthy submissions challenging the lawfulness of the Council’s decision to cancel his practising certificate. Indeed, where our function under section 79 of the ACAT Act was to review the original tribunal’s decision for error and where we were not persuaded that the original tribunal erred by not considering the cancellation of the practising certificate, we (on appeal) had no role to consider the cancellation. Ground 2 fails.
Ground 3: “The decision of the Law Society to refer the matter to the ACAT was unlawful”
83.The practitioner submitted that because the lawful cancellation of his practising certificate was a jurisdictional precondition or in some way underpinned the laying of the discipline charges, and the cancellation was unlawful, it follows that the Council was not empowered “to refer the matter to the ACAT”.
84.The practitioner also submitted, seemingly in the alternative, that because his practising certificate had already been cancelled, the Council had “no legal authority to make an application for disciplinary action”.[52]
[52] Practitioner's third written submission at [249]
85.The practitioner also submitted that the original tribunal had no jurisdiction to deal with matters that were not connected with the cancellation of his certificate. He submitted:
79. The ACAT had no jurisdiction.
Particulars
80. A number of new matters were the subject of an application for disciplinary action. The new matters were not however the subject of a decision by the Law Council.
81. …. The ACAT has no jurisdiction to deal with those matters which have not been the subject of a decision of the Law Council.
82. The Law Council made no decision in the matters of C7, CAG18, CAG19 and Short.
83. It was unreasonable for the ACAT to deal with these new matters.
84. The referral of new matters was an abuse of process.[53]
[53] Practitioner's third written submission at [79] – [84]
86.The practitioner’s submissions were confused and confusing. For the reasons given, we reject the proposition that lawful cancellation of the practitioner’s practising certificate had any bearing on the Council’s power, and arguably its duty, to lay the charges set out in the four applications or on the original tribunal’s findings in response to the charges. It is simply nonsensical for the practitioner to contend the Council could not lay charges arising from the practitioner’s conduct if the conduct alleged in the charges had not been previously considered in its decision made years earlier to cancel his practising certificate or in any other decision. The fact that some of the factual matters stated in some of the charges gave rise to the Council’s decision to cancel the practitioner’s certificate is irrelevant. Ground 3 fails.
Ground 4: “the decision of the original ACAT was unlawful”
87.In his second and third written submissions, the practitioner alleged literally hundreds of errors, mostly characterised as jurisdictional errors. In his second written submission, many alleged errors were bare assertions that there was “no evidence” to support a finding of fact or “no evidence” to support a conclusion in the original tribunal’s reasons for decision. On even a cursory examination, many of the alleged errors misrepresented the original tribunal’s findings or were factually untrue.
88.In his second written submission, the practitioner also made many allegations that the “ACAT “engaged in an abuse of process”[54] or “acted for an improper purpose”[55] without particularising or substantiating any of the allegations. On the face of the document, the allegations were scandalous.
[54] Practitioner’s second written submission at [71] and [73]
[55] Practitioner’s second written submission at [76], [102], [137], [233], [325] and [381]
89.In the last half or so of the third written submission, from say paragraph 514, the practitioner debates the original tribunal’s findings and reasons. He frequently interposes comment that he does not recall facts alleged against him (notwithstanding him admitting the facts in the original proceedings), poses rhetorical questions about different person’s motives and adds comment about what he says occurred in relation to each charge. Nothing is referenced to evidence that was before the original tribunal, or to submissions made to the original tribunal, in support of an alleged error.
90.The same thing occurred towards the end of the appeal hearing when the practitioner gave a long and generalised claim from the Bar table, without reference to any of the evidence, about what he contended occurred in relation to facts and circumstances that became the subject of charges.
91.The practitioner agreed that much of his account from the Bar table about what occurred was “completely different”[56] from the account he gave in the original proceedings. For example, on the final day of the appeal hearing, in his oral submissions in reply, the practitioner agreed he was advancing a new version of events from the Bar table in response to the Singh v Minister for Immigration and Border Protection and Anor[57] (Singh) proceeding that led to charges 2 and 3 in proceeding OR14 that had never been mentioned before.[58] The same thing happened at the close of the practitioner’s submissions in reply, in relation to OR15, where he agreed his account of what he says occurred was his “new version of events” and that this was the first time this version had “ever been mentioned”.[59]
[56] Transcript of proceedings, 15 June 2022, page 208, line 24
[57] [2018] FCCA 1081, Exhibit G in the original proceeding, pages 55-87
[58] Transcript of proceedings, 16 June 2022, page 86 line 6 – page 87, line 28
[59] Transcript of proceedings, 16 June 2022, page 86, line 38 – page 87, line 28
92.As to why these new versions of events arose for consideration on appeal, the practitioner reverted to an argument that he was not given the opportunity to put his version of events in cross examination contrary (he said) to the rule in Browne v Dunn[60]. For the reasons discussed below, we reject that submission.
[60] (1894) 6 R 67 (HL)
93.The practitioner contended it was appropriate for him to proceed in this way because the Tribunal is not a court. He submitted that section 7 of the ACAT Act requires proceedings to be informal and permits him to “just talk from the Bar table”[61] about what he says happened. This led us to ask what we should do with his statements from the Bar table. The practitioner said he was putting these matters as “submissions” or “statements” and that we should deal with them as we liked.[62]
[61] Transcript of proceedings, 15 June 2022, page 208, line 41
[62] Transcript of proceedings, 15 June 2022, page 208, line 24 – page 209, line 36
94.In our view, we neither can nor should do anything in response to these submissions. Section 7 of the ACAT Act concerns the Tribunal’s procedures. It permits informality “as is consistent with achieving justice” but does not permit the Tribunal to proceed otherwise than according to law. In particular, as discussed above, the Appeal Tribunal’s function is to review the original tribunal’s decision for error as alleged. That entails a consideration of the alleged error, referenced to what occurred in the original proceeding including evidence provided and tested by the parties, to determine whether error occurred.
95.Where the practitioner advanced no more than a generalised debate about events that were the subject of the charges, without reference to the evidence and including wholly new claims about what occurred, we do not accept it was for us, on appeal, to explore the original tribunal’s reasons for decision for error in such a vague manner. To do so would also be procedurally unfair to the Council.
96.From the practitioner’s submissions, we have addressed what appear to be the main alleged errors. We have also addressed some of the more precise alleged errors and references to evidence establishing that the alleged errors are not made out as a matter of objective fact.
97.The sheer number of facts asserted in the practitioner’s documents and in his statements to us in the course of the appeal hearing, where the facts were plainly otherwise, was extraordinary. We lost all confidence in the correctness of anything the practitioner said or wrote unless it was independently corroborated.
The rule in Browne v Dunn
98.The practitioner submitted that pursuant to the rule in Browne v Dunn[63] if a proposition contrary to a person’s interests is not put to them in cross examination the proposition cannot later be relied on in submission as to why a finding contrary to the person’s interests should be made. The practitioner gave his understanding of the rule as follows:
THE PRACTITIONER: Browne v Dunn says that irrespective of whether I make concessions, irrespective of whether I make any sort of admissions, that the allegation has got to, firstly, be put to the applicant, in cross examination, not at some other point in time, and then further, in cross examination the applicant, myself - - - [64]
THE PRACTITIONER: Further, in addition to that, in cross examination, the applicant has got to be given a chance to explain the matters, in cross examination. Now, if the applicant – that's the second limb of Browne v Dunn. If the applicant is not given the opportunity, in cross examination, to explain the circumstances, irrespective of whether he makes admissions or not, irrespective of whether there were charges or not, the applicant must be given the opportunity to comment on the allegations put to him, in cross examination, not afterwards or not before.[65]
[63] (1894) 6 R 67 (HL)
[64] Transcript of proceedings, 14 June 2022, page 55, lines 17-21
[65] Transcript of proceedings, 14 June 2022, page 55, line 42 – page 56, line 2
99.The practitioner submitted the Council breached the rule in Browne v Dunn because he had not been given the opportunity, in cross examination, to respond to many of the factual matters that were the subject of the charges. Accordingly, he said, the charges involving factual matters that had not been put to him in cross examination should have been dismissed. Specifically, he said, the Council was precluded from asserting any wrongdoing in the three proceedings (OR12, OR14 and OR15) because none of the alleged wrongdoings in those proceedings had been put to him in cross examination.
100.He further said that while he did not dispute that the allegations the subject of charges in proceeding OR13 were put to him in cross examination, what he characterised as the second limb of the rule in Browne v Dunn was not complied with because he was not given a chance to explain his version of events as alleged in those charges in cross examination. The practitioner said he was denied this chance because he was overborne by the Council’s counsel.
101.In response, the Council first noted that each of the charges was particularised in the applications for disciplinary action in considerable detail. It then said that those of the factual matters set out in the charges not put to the practitioner in cross examination were not put because he had previously admitted them. Cross-examination of the practitioner focused on the allegations of fact that were not admitted.
102.The Council said the effect of the practitioner’s admission of an alleged fact was that the fact was no longer an “allegation”. As such, even accepting the practitioner’s “second limb of Browne v Dunn”, there was no longer an allegation to which the practitioner must be given a chance to explain his version of events.
103.In response to the Council’s submissions, in his third written submission the practitioner said at paragraph 324:
The Applicant does not recall making admissions. If the Applicant did make admissions, then the applicant retracts those admissions.
104.For the practitioner to claim he does not “recall making admissions” was disingenuous.
105.The practitioner admitted the majority of the factual allegations in the four applications in his document entitled “Respondent’s Reply to Section 149 Applications” dated 18 September 2020, signed by his solicitor (the practitioner’s admissions dated 18 September 2020). He made more admissions in his document entitled “Amended Reply to Section 149 Applications” dated 15 March 2021 (the practitioner’s admissions dated 15 March 2021). Both documents were signed by the practitioner’s solicitor and filed in the original proceedings.
106.The practitioner repeated his admissions in his document dated 15 March 2021, save for one, in another document also entitled “Amended Reply to Section 149 Applications” but dated 16 March 2021 (the practitioner’s admissions dated 16 March 2021) filed with the Tribunal which he signed personally.
107.Comparing the practitioner’s admissions dated 16 March 2021 with the practitioner’s admissions dated 15 March 2021 signed by his solicitor the day before, it is clear the practitioner gave precise and deliberate consideration to the allegations he was admitting and those he was not. He made only one change from ‘admit’ to ‘not admit’, that being the allegation at paragraph 63(f) of the application for disciplinary action in proceeding OR15 that he commenced the BNJ17 matter with no reasonable prospect of success.
108.The practitioner made further admissions in his document entitled “Respondent’s Reply to Applicant’s Statement of Facts” dated 8 April 2021 and in his further document entitled “Amended Respondent’s Reply to Applicant’s Statement of Facts” dated 22 April 2021 filed in the original proceedings (the practitioner’s amended reply to facts dated 22 April 2021). In both documents, the practitioner (through his counsel) quotes the text of the Council’s document entitled “Applicant’s Statement of Facts” dated 26 March 2021 filed in the original proceedings and adds in bold text his responses to the Council’s stated facts. Almost every statement of fact is followed by the word “Admitted”.
109.With reliance on the practitioner’s admissions, the original tribunal said, correctly, “as a result of the amended response, to a very large extent in all four matters, the primary facts are not in dispute”.[66]
[66] Council of the Law Society of the Australian Capital Territory v LP202012 (unpublished) at [30]
110.By reference to the above-mentioned documents, most of the material facts in proceedings OR12, OR14 and OR15 were admitted. The bulk of the non-admissions related to allegations of dishonesty, specifically the charges in OR13 involving dishonest conduct in the practitioner’s dealings with the Law Society. We reject the proposition that the practitioner “does not recall” making admissions, having regard to his repeated and carefully written documents signed and filed in the original proceedings.
111.Also, for the purposes of the appeal, the practitioner’s claimed withdrawal of admissions made is misconceived. Our function on appeal was to consider the original tribunal’s decision for alleged error. We were not taken to any reference, orally or in writing, to withdrawal of an admission in the proceeding before the original tribunal. There was no suggestion of any withdrawn admission, save for withdrawal of the admission of the facts alleged in paragraph 63(f) of the application in proceeding OR15.
112.It follows that the original tribunal was entitled to hear and determine the charges with reliance on the admissions made. That the practitioner wished, on appeal, to withdraw admissions made in the original proceedings does not mean the Council or the original tribunal erred by relying on the admissions made and not withdrawn.
113.The practitioner’s submissions regarding his admissions in the original proceeding exemplified the mischief of his submissions generally. Having claimed that he does not recall making admissions, at paragraph 326 of his third written submission, the practitioner stated:
The important point is that the admissions occurred after cross examination had been completed, not before.
114.That statement is simply not true. The practitioner’s admissions dated 18 September 2020, 15 March 2021 and 16 March 2021 all predate completion of his cross examination which occurred on 17 March 2021 at 3:08pm.[67]
[67] Transcript of proceedings before the original tribunal, 17 March 2021, page 198, line 30
115.In any event, we reject the practitioner’s submissions regarding the rule in Browne v Dunn. The rule is essentially one of procedural fairness. The Council directed us to the decision of the Federal Court, per Justice Tamberlin, in Raben Footwear Ply Ltd v Polygram Records Inc (Raben)[68] in support of its submission that the application of the rule depends on the manner in which a case is conducted. In Raben, Justice Tamberlin relied on Allied Pastoral Holdings Pty Ltd v The Commissioner of Taxation[69] and other cases when stating “the rule is designed to ensure fairness to the witness so as to enable the witness to deal with the disputed matter and perhaps to give further evidence in corroboration or to contradict any inference which may be sought to be drawn”.
[68] [1997] FCA 370
[69] [1983] 1 NSWLR 1
116.The obligation of fairness is to give a witness (here the practitioner), when “disputed matters” are put to him, an opportunity to refute what is put or to refute an inference which is sought to be drawn. The practitioner said all matters alleged against him should have been put, not just those matters he disputed. We disagree. The proposition is contrary to the above-mentioned judicial statements about the rule. In Director, Office of the Fair Work Building Industry Inspectorate v Construction, Forestry, Mining and Energy Union,[70] a Full Court of the Federal Court found there is no breach of the rule in Browne v Dunn if the matter in respect of which there was no cross examination was not in issue in the proceeding.[71] We accept the Council’s submission that the rule does not require undisputed facts to be put.
[70] [2013] FCAFC 8
[71] [2013] FCAFC 8 at [111] and [134]
117.Perhaps anticipating that his contention as to the breaching of the rule in Browne v Dunn would not be accepted, the practitioner contended that irrespective of the rule, in the interest of fairness more broadly and as required by section 7 of the ACAT Act and Minister for Immigration and Citizenship v Li (Li),[72] he should have been cross-examined on the admitted allegations.
[72] [2013] HCA 18
118.He said “let’s jettison the rule in Browne v Dunn, we’re back to Li”[73] which, he said, created an obligation of fairness to put all allegations to him in cross examination even if they were not in dispute. He said his allegations of procedural error in the original tribunal is a ‘fairness argument’ based on “all three” – the rule in Browne v Dunn, Li and section 7 of the ACAT Act.[74]
[73] Transcript of proceedings, 14 June 2022, page 56, lines 39 – 40
[74] Transcript of proceedings, 14 June 2022, page 57, lines 27 – 30
119.We were not taken to any passage in Li to support the practitioner’s claim. Nor could we find any such passage. Arising from Li, we accept (of course) that a proceeding must be conducted in a procedurally fair manner. That is consistent with section 7(b) of the ACAT Act. Section 7 provides:
7 Tribunal principles
In exercising its functions under this Act, the tribunal must—
(a)seek to ensure the procedures of the tribunal—
(i)are as simple, quick, inexpensive and informal as is consistent with achieving justice; and
(ii)are implemented in a way that facilitates the resolution of the issues between the parties so that the cost to the parties and the tribunal is proportionate to the importance and complexity of the subject matter of the proceeding; and
(b)observe natural justice and procedural fairness.
120.However, nothing in section 7, or Li, supports the practitioner’s proposition that he should have been cross-examined on facts he had admitted. Indeed, in our view, section 7 supports the contrary view. It is simply nonsensical to think section 7 requires cross examination on facts that are not in dispute.
121.Also, the practitioner’s argument simply ignores the comprehensive nature and substance of the pleaded charges, which put him on notice as to what he was alleged to have done. He thus had ample opportunity to put on evidence as to his version of the events surrounding those allegations. That is all the rule required.[75] There was no error of procedure by the Council or by the original tribunal that prevented him from doing so.
Bias
[75] Oneflare Pty Ltd v Chernih [2017] NSWCA 195 at [42] – [45]]
122.The practitioner alleged bias on the part of both members of the original tribunal. He alleged that SM Orlov “bullied and intimidated” him and that SM Brennan “appeared to fall asleep”.[76] Why these actions, even if true, constituted bias (actual or apprehended) was not stated.
[76] Practitioner's third written submission at [344] and [338]
123.We were not persuaded that the claim of bias is made out.
124.First, the practitioner did not take us to any passage of the transcript of the original tribunal proceedings, or any part of the oral recording, in support of his claim. He did not seek to tender a witness statement from someone who observed the members’ conduct. To this, the practitioner acknowledged that he “cannot prove”[77] his claims but this “doesn’t mean ... these things did not happen”. He submitted that “the Appeals ACAT should investigate the claims and come to its own conclusions”.[78] He likened himself to a woman who has been sexually assaulted who may “make claims” about what occurred.[79] The practitioner posed the questions, what would a “person in the street” conclude if the person “was told” that SM Orlov yelled at the practitioner or “was told” that SM Brennan fell asleep.[80]
[77] Practitioner's fourth written submission at [211]
[78] Practitioner's fourth written submission at [211]
[79] Practitioner's fourth written submission at [212]
[80] Practitioner's fourth written submission at [213] – [215]
125.The submission is misconceived. The practitioner makes his claim: it is for him to prove. He makes no attempt to do so. It is not for the Appeal Tribunal to conduct an investigation, as the practitioner seeks. Its function is to determine a claim by reference to the evidence put forward in support of it. No evidence was put forward.
126.Second, the practitioner accepted that no allegation of bias was made until after he filed his application for appeal.[81] As best we can ascertain, the first time the practitioner alleged bias was in his written submissions on the appeal filed on 11 April 2022. In this situation, the law of bias is clear. In Vakauta v Kelly,[82] the High Court observed that a party to a civil proceeding cannot “wait to see whether the outcome of a case is favourable to him before raising an objection, the availability of which he was previously aware, on the grounds of bias.”[83]
[81] Transcript of proceedings, 16 June 2022, page 270, line 19
[82] [1989] HCA 44
[83] [1989] HCA 44 at [10]
127.In Michael Wilson & Partners Ltd v Nicholls,[84] the High Court confirmed the principle stated in Vakauta v Kelly, noting that if a party to civil proceedings knows of the circumstances that give rise to the claim that a decision-maker should be disqualified on the grounds of bias “but acquiesces in the proceedings by not taking objection, it will likely be held that the party has waived the objection”.[85]
[84] [2011] HCA 48
[85] [2011] HCA 48 at [76]
128.So it is in this case. If the practitioner or his legal representative in the original proceedings thought the conduct of either member of the original tribunal gave rise to an apprehension of bias, the claim should have been promptly made at that stage. It was not. We are satisfied that the practitioner cannot, now, properly allege bias where the alleged grounds for the claim occurred in his presence during the original hearing and no objection was taken.
Unreasonable delay
129.The practitioner alleged unreasonable delay in two contexts. First, he said there was unreasonable delay on the part of the Council in making the applications for disciplinary action.[86] He further said the original tribunal was guilty of unreasonable delay in that it “took another seventeen months in which to make a decision … [and as a consequence] the decision is void ab initio because of unreasonable delay.”[87]
[86] Practitioner's third written submission at [233] – [243]
[87] Practitioner's second written submission at [105]
130.The delay on the part of the Council on which the practitioner relied is the period between when the Council cancelled his practising certificate on 21 June 2018 and when it filed its applications for disciplinary action on 1 July 2020.
131.The practitioner said the effect of this delay on him was to destroy his practice and his health.[88] He cited the High Court’s decision in NAIS v Minister for Immigration and Multicultural and Indigenous Affairs where the Court referred to the “likely effects” of delayed decision-making rather than the delay itself as the relevant consideration.[89] Regardless of whether there was delay on the part of the Council, and whether these effects flowed from that delay, this is simply not a ground of appeal with respect to the decision of the original tribunal.
[88] Practitioner's third written submission at [242]
[89] [2005] HCA 77 at [78]
132.The alleged delay on the part of the original tribunal is simply not true. There was not a delay of 17 months. The original tribunal reserved on 6 May 2021 following 4 days of hearing. It gave its decision on 8 November 2021, a period of 7, not 17, months later. The matter was of considerable factual and legal detail and complexity and generated a myriad array of affidavit evidence and submissions from the parties. The original tribunal’s decision was 102 pages in length. In our view, to reserve for seven months was not unreasonable.
133.This ground is not made out on either allegation.
Abuse of process
134.The practitioner alleged the applications for disciplinary action were an abuse of process on the part of the Council and/or made by the Council for an improper purpose.[90] The practitioner said the applications did not seek a penalty and in those circumstances the original tribunal could not impose a penalty given that his practising certificate had already been cancelled.[91] The practitioner said the Council made its applications for an improper purpose, namely solely to obtain a costs order against the practitioner. The practitioner said the LP Act only provides for an order for costs in circumstances where the original tribunal has made a finding of misconduct.[92] This, he said, was the Council’s sole or prime reason for filing the applications for disciplinary action.
[90] Practitioner's third written submission at [244] – [260]
[91] Practitioner’s third written submission at [244]
[92] Practitioner’s third written submission at [247] – [248]
135.As the Council pointed out, the practitioner’s claims that the applications for disciplinary action were brought for an improper purpose and were an abuse of process were addressed and dismissed in an interim decision by the original tribunal published on 7 October 2020.[93] The practitioner neither acknowledged the original tribunal’s earlier decision nor made any attempt to identify an error in that decision. He simply repeated the claims. We have considered the claims and the original tribunal’s consideration of those claims. We see no error in the original tribunal’s finding that the Council did not bring the applications for an improper purpose.
[93] Practitioner's submissions on penalty dated 23 April 2021 at [7.2]; Council of the Law Society of the Australian Capital Territory v LP202012 [2020] ACAT 80 at [20], [28] and [30]-[35]
136.The purposes of Chapter 4 of the LP Act include, per section 384(c), providing “a means of redress for complaints about lawyers”. If the allegations contained in the applications for disciplinary action were made out, the original tribunal was required by section 425(1)(a) to determine if it was appropriate to make one or more orders under sections 425(3)-(5). These included an order recommending that the practitioner’s name be removed from the roll pursuant to section 425(3)(a). Given this statutory scheme, there was the upmost utility in determining whether the practitioner was guilty of professional misconduct or unsatisfactory professional conduct. We are satisfied the applications were brought for a proper purpose.
No separate hearing as to penalty
137.The practitioner alleged the original tribunal erred by not conducting a separate hearing in relation to penalty.[94]
[94] Practitioner's third written submission at [268] – [272]
138.The practitioner’s counsel made closing submissions on his behalf at the final day of the original tribunal hearing on 6 May 2021. He also filed a document entitled “Submissions on Breach, Characterisation and Penalty” dated 23 April 2021 (practitioner’s submissions on penalty dated 23 April 2021). Part 5 of the submissions was devoted to penalty.[95]
[95] Practitioner's submissions on penalty dated 23 April 2021 at [8.1] – [8.5]
139.The original tribunal asked the parties to address it on whether a separate hearing in relation to penalty was required.[96] The transcript records the original tribunal asking the practitioner’s counsel if he had a “preference about that”; the original tribunal being “strongly inclined to deal with everything at one time”; in the interests of “efficiency and trying to save costs”; and the practitioner’s counsel saying “yes” to those propositions.[97]
[96] Council’s submissions on appeal dated 16 May 2022 at [8.2]
[97] Transcript of proceedings before the original tribunal, 17 March 2021, page 209, lines 14 - 32
140.We are satisfied that the practitioner was allowed ample time and opportunity to make both written and oral submissions as to penalty. A separate hearing as to penalty was not warranted and not sought. This ground is not made out.
The charges
141.As part of his fourth ground of appeal, the practitioner submitted there was “no evidence” to support any of the charges proved. We have therefore reviewed the original tribunal’s findings by reference to the evidence and the practitioner’s admissions of fact in the original proceedings with respect to each of the charges found proved.
OR 12/2020
142.In proceeding OR12, the Council laid 3 charges against the practitioner arising from his conduct in five different proceedings brought in the High Court, the Federal Court and the Federal Circuit Court for review of applications for protection visas on behalf of four different clients. More specifically, the Council alleged he repeatedly (on at least 5 occasions) made an argument without merit (charge 1); failed to comply with court orders (charge 2); and knowingly or recklessly misled the Federal Circuit Court in his oral submissions (charge 3). The original tribunal found charge 1 not proved. It found charges 2 and 3 proved.
143.As to charge 2, it was an admitted and objective fact that in the C7 transfer proceeding the practitioner was before the Federal Circuit Court on 26 September 2017 when Judge Neville ordered him to file a transfer application and written submissions in support of the application on behalf of his client. It was also an admitted[98] and objective fact that, contrary to the order, he did not file either document within time or at all. On 2 March 2018, in the absence of a transfer application or written submissions, his Honour dismissed the application in the C7 transfer proceeding.[99] By reference to these admitted facts, the original tribunal found charge 2 proved.
[325] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [331]
[326] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [331] – [332]
371.Once the substance of charge 3 is understood, the practitioner’s submission on appeal that he was “completely honest” with the Court is disingenuous. Just the fact that he filed an amended application, substituting “migration agent” with “a friend”, and the Court’s exchange with the practitioner[327] demonstrates that he was not “completely honest”.
[327] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [316].
372.His earlier submission on appeal that his substitution of ‘a migration agent’ with ‘a friend’ “does not mean that [he] was in some way misleading the Court” and that “the title of the person” had no bearing on the outcome and was “an irrelevant consideration” is equally disingenuous. As Judge McNab pointed out, which the practitioner accepted when it was pointed out,[328] an error by a paid representative is “a different species of error to a layperson attempting to help someone and messing it up … that is a different species of error and is treated differently by courts”.[329] Judge McNab explained the seriousness of the error, and why he therefore made a cost order against the practitioner, personally, in his ex tempore reasons for judgement that were subsequently published.[330]
[328] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [316]. Exhibit H in the original proceeding, page 35; transcript, page 14, line 19
[329] Council of the Law Society of the ACT v Legal Practitioner LP 202012 (unpublished) at [316]. Exhibit H in the original proceeding, page 35
[330] Exhibit H in the original proceeding, pages 76 – 85
373.But for the Minister’s representative pointing out to the Court that a migration agent had never been involved, and the practitioner then filing an amended application to remove the claim, the Court would have been seriously misled. Far from being an “irrelevant consideration”, the claim that a migration agent (rather than a friend) had failed the applicant regarding proceedings in the AAT was an important consideration when assessing the alleged error.
374.We see no error in the original tribunal finding charge 3 proved by reference to the practitioner’s reckless indifference as to the truth of that claim.
Ground 5: “the Appeals ACAT has no jurisdiction to hear this matter”
375.Ground 5 built upon the practitioner’s submission that the decision of the Council to cancel his practising certificate was unlawful and that the lawfulness of the cancellation was a jurisdictional precondition to the original tribunal hearing and determining the disciplinary charges.
376.The submission was as follows:
The failure of the Law Council and the original ACAT to determine their own jurisdiction was and is a jurisdictional error. The decisions of the Law Council and the ACAT are void ab initio.
Because the original ACAT did not have jurisdiction to deal with the matter, the appeals ACAT (sic) also does not have jurisdiction to deal with the matter.[331]
[331] Practitioner’s third written submission at [23] – [24]
377.The practitioner’s submission repeated his contention that the LP Act does not regulate the conduct of a practitioner in a federal court.
378.Where we are satisfied that the LP Act regulated the practitioner’s conduct as charged, it follows the original tribunal had jurisdiction to hear and determine the charges. We were also satisfied that we, as the Appeal Tribunal, had jurisdiction to hear the practitioner’s appeal. Ground 5 fails.
Ground 6: “the ACT Supreme Court has no jurisdiction to hear this matter”
379.As we understood it, ground 6 built upon the practitioner’s earlier submissions that the LP Act did not apply to him; that the decision to cancel his practising certificate was void ab initio; that the Council acted unlawfully when filing its applications for disciplinary action; that the original tribunal had no jurisdiction to hear or determine the applications; and that we, as the Appeal Tribunal, therefore had no jurisdiction to hear his appeal. For the purposes of ground 6, the submission seemed to be that, by extension, the Supreme Court “has no jurisdiction to hear this matter”.
380.It was, in our view, somewhat ambitious to submit that the Supreme Court has no jurisdiction to hear an application concerning the conduct of a practitioner of the Court. Also, we have no role or jurisdiction to determine such a claim: it is for the Court to decide what is and is not within its jurisdiction.
381.In any event, where we reject the layered propositions underlying the practitioner’s claim, ground 6 fails.
Characterisation and penalty
382.The parties before the original tribunal agreed it was appropriate to characterise the practitioner’s conduct globally rather than separately in respect of each charge or each discipline application.[332] We agree with that approach.
[332] Practitioner’s submissions on penalty dated 23 April 2021 at [7.1]
383.Given most of the charges found proved were extremely serious, we agree with the original tribunal’s conclusion that the practitioner’s conduct should be regarded as professional misconduct.
384.The practitioner’s conduct had many of the hallmarks of the zealous advocate, but without regard to his overriding duty of honesty and candour to a court or tribunal. He voiced this in the appeal proceeding before us, making statements such as “justice … has a much wider connotation than simply acting lawfully.”[333]
[333] Transcript of proceedings, 16 June 2022, page 300, lines 17 – 18
385.It is apparent from his conduct before courts and tribunals that the practitioner’s approach has ramifications that are gravely negative. His mode of practice flies in the face of his overriding duty of honesty and candour to the courts and tribunals in which he appeared.
386.Not only was this a theme running through many of the charges, it continued to be much on view in the proceedings before the original tribunal and in the appeal proceeding before us. It was extraordinary to observe the practitioner make statements that were misleading or untruthful in an appeal against findings of guilt arising from his misleading or untruthful conduct. His whole approach was to manipulate or misrepresent facts and the law in the interests of trying to obtain a forensic advantage. We have given many examples but give another that occurred in the course of the appeal.
387.Section 410 of the LP Act provides that after finishing an investigation of a complaint against a person, the Council must (i) dismiss the complaint, (ii) take action under section 413 involving summary conclusion of the complaint or (iii) make an application to the Tribunal.
388.Section 415 of the LP Act provides that the complainant and the person about whom the complaint is made are entitled to receive a statement of reasons from the Council if it decides to dismiss the complaint or to make an application to the Tribunal. In this case, arising from the complaints received, the Council decided to make four applications to the Tribunal.
389.On day 2 of the appeal hearing, the practitioner said:
I have not been provided with a statement of reasons and it would appear for the purpose of section 415 that in the circumstances where the matter is going before the original ACAT that the Law Council has got to provide me with a statement of reasons.[334]
[334] Transcript of proceeding 15 June 2022, page 176, lines 13 – 16
390.On the following day, the practitioner was shown a letter dated 1 July 2020 from the Council’s solicitor addressed to the practitioner’s solicitor which began:
… at its December 2019 meeting, the Council resolved to file four applications for disciplinary action in the [Tribunal] against your client. Pursuant to section 415 of the Act, we enclose four Statements of Reasons for the decisions.[335]
[335] Exhibit R1 on the appeal
391.Four lengthy Statement of Reasons each dated 17 June 2020, each headed “Statement of Reasons provided pursuant to section 415(b) of the Legal Profession Act 2006 (ACT) for the decision of the Council of the Law Society of the Australian Capital Territory made on 9 December 2019”, were attached to the letter. This exchange then took place about the letter and the attached statements of reasons:
SENIOR MEMBER FOLEY: Just one other question, …. Now having looked at it, have you seen it before?
THE PRACTITIONER: No.
SENIOR MEMBER FOLEY: You've never seen it.
THE PRACTITIONER: Well, when the Law Council cancelled - made its decision to cancel pursuant to section 56, they said, 'We're writing to advise you that your certificate has been cancelled,' and attached to that was, I believe, this document.
SENIOR MEMBER FOLEY: So you have seen it.
THE PRACTITIONER: I have seen this document before. I believe it's the same document as the document in section 56.[336]
[336] Transcript of proceedings, 16 June 2022, page 14, lines 12 – 27
392.The practitioner’s responses were nonsensical, given that his practising certificate was cancelled in June 2018 two years prior to the date of the letter. When this was pointed out to him,[337] we asked why he told us the previous day he had never received a statement of reasons for the purposes of section 415. The practitioner replied:
Because a statement of reasons has a particular format and that document there is not in the format of a statement of reasons.[338]
[337] Transcript of proceedings, 16 June 2022, page 15, lines 5 – 27
[338] Transcript of proceedings, 16 June 2022, page 15, lines 37 – 38
393.The exchange typified the practitioner’s lack of understanding even as to what honesty and candour is, much less the importance of it. His response, at best, was to overlook the difference between stating he did not receive a statement of reasons pursuant to section 415 and a submission that the statement he received did not comply with the section. The practitioner’s claims would have led us into error regarding the Council’s compliance with sections 410 and 415 of the LP Act, but for the Council’s correction of the fact on the following day by producing the letter and the attached statements of reasons.
394.In our view the practitioner’s first instinct, when seeing an opportunity for possible forensic advantage or when placed at a potential forensic disadvantage, is to be untruthful.
395.The seriousness of the practitioner’s misconduct cannot be understated. In Legal Practitioner v Council of the Law Society of the ACT,[339] the Court of Appeal said:
72.There are numerous statements which detail the role played and position occupied by a solicitor in the proper administration of justice. It is clear that the system for administration of justice relies heavily upon the integrity of the profession and the discharge of the duties falling upon members of the profession. Members must be able to command the confidence of all the participants in the administration of justice. Elements of that confidence are that the word of the member must be able to be trusted to be true and that the member will not make false statements or create misleading impressions.
73.The conduct engaged in by the appellant, justifies a finding that the appellant is not a fit and proper person to engage in legal practice. This is so whether the conduct is measured directly against the statute or the test derived from conduct which “would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750).[340]
[339] [2018] ACTCA 19
[340] [2018] ACTCA 19 at [72] – [73]
396.Likewise, in Law Society of the ACT v Powrie, a Full Court of the Supreme Court said:
88.We consider the finding by the ACAT that the practitioner knowingly misled the Magistrates Court in his application for an adjournment of the proceedings before that Court to be the most serious finding (Ground 2A). In Brett v Solicitors Regulation Authority [2014] EWHC 2974 (Admin); [2015] PNLR 2, Lord Thomas CJ said, at [111]:
[M]isleading the court is regarded by the court and must be regarded by any disciplinary tribunal as one of the most serious offences that an advocate or litigator can commit. It is not simply a breach of a rule of a game, but a fundamental affront to a rule designed to safeguard the fairness and justice of proceedings. Such conduct will normally attract an exemplary and deterrent sentence. That is in part because our system for the administration of justice relies so heavily upon the integrity of the profession and the full discharge of the profession’s duties and in part because the privilege of conducting litigation or appearing in court is granted on terms that the rules are observed not merely in their letter but in their spirit. Indeed, the reputation of the system of the administration of justice... and the standing of the profession depends particularly upon the discharge of the duties owed to the court.[341]
[341] [2017] ACTSCFC 4; (2017) 12 ACTLR 184
397.These authorities were cited by the Tribunal in Council of the Law Society of the ACT v Legal Practitioner v 201920 (David Chen).[342]
[342] [2020] ACAT 31 at [46] – [47]
398.Remarks of Chief Justice McCallum on 30 January 2023 at the opening of the 2023 Legal Term are, we think, apposite:
Next, and this should go without saying, the Court expects honesty. In a speech on the occasion of an admission ceremony last year, Justice Mossop said that the temptations to be other than scrupulously honest are so great that this point has to be made expressly and often. His Honour said:
“The operation of the legal system generally, and the court system in particular, is fundamentally dependent upon the honesty of lawyers. It is the fundamental value behind your appointment as an officer of the court. If there is nothing else you understand about being an officer of the court it is that you can be depended upon to be honest. Scrupulously honest.”
Justice Mossop concluded by commending “four words” you should understand about being a lawyer, “Be honest. Don't lie”.
399.The practitioner’s conduct underpinning all the charges, and during the appeal, confirmed for us that he is a practitioner who cannot be trusted to tell the truth. On Day 2 of the appeal hearing, the following exchange occurred with the practitioner about his duty of honesty and candour:
SENIOR MEMBER FOLEY: … so we talked this morning about you agreeing that you had an obligation during the course of the Law Society - the Law Council’s investigations - an obligation of candour and honesty.
PRACTITIONER: Yes
SENIOR MEMBER FOLEY: Was that obligation, in your mind, carry over to the disciplinary proceedings?
PRACTITIONER: I don’t know. I don’t think I can answer that question. I simply don’t know.
SENIOR MEMBER FOLEY: You’re uncertain whether you have to be candid and honest.
PRACTITIONER: Well, I don’t know if that might – well from a legal point of view, it seems that the duty of candour seems to apply to your dealings with the Law Society, right? But I don’t know whether it applies to proceedings in an ACAT. I’m just simply saying I’m not aware of what the legal position is about these duties of candour, right?
PRESIDENTIAL MEMBER MCCARTHY: You don’t know whether a legal practitioner should be candid at the tribunal?
PRACTITIONER: Well, I think – I believe [if] I was under oath. And so therefore if I was under oath then I’m under a duty to tell the truth.[343]
[343] Transcript of proceedings, 15 June 2022, page 194, lines 27 – 40
400.There is something to be said for the insights of the practitioner’s counsel in the proceedings before the original tribunal. He identified “the aggravating features of [the practitioner’s] temperament and personality [as] lead[ing] him into error”.[344] He captured those features by saying the practitioner has “a dogmatic certainty that whatever he says [is] correct”.[345]
[344] Practitioner’s submissions on penalty dated 23 April 2021 at [4.1]
[345] Practitioner’s submissions on penalty dated 23 April 2021 at [7.4]
401.This was reflected in the following exchange during the appeal hearing, which seemed to be about sections 486E and 486F of the Migration Act 1958 to which Judge McNab referred in his decision, AXY17 v Minister for Immigration and Anor [2017] FCCA 2006 at [33] – [56]:[346]
THE PRACTITIONER: – if you take a case to court without any prospect of success, you are liable for a personal costs order. And I should say, as an aside, that provision is drafted to attack me only. It was drafted to attack me only. I know that's a big call, but I've worked in the Department for a long time - - -
PRESIDENTIAL MEMBER McCARTHY: I'm sorry, what was drafted to attack you?
THE PRACTITIONER: The Migration Act was amended to stop migration lawyers from representing refugees in the Federal Circuit Court, with a personal costs order. It's an extreme disincentive, which is relied on by the government to stop people representing refugees in the court. At the time the Minister for Immigration was most concerned about my representation of refugees in the court and made every effort to try and stop me from representing refugees in the court and introduced this law, about personal costs orders, to destroy my career.
PRESIDENTIAL MEMBER McCARTHY: You say Commonwealth legislation was amended to address you personally and no-one else.
THE PRACTITIONER: Yes. Unfortunately there are five legal practitioners in Australia who are the best migration lawyers in the country. I'm one of them and ministers, successive ministers, have been very concerned about people like me abusing the process and taking - - -
[346] Exhibit B in the original proceeding, pages 54 – 62
402.These comments prompted us to note the observation of Judge McNab in the BNJ17 proceeding:
27. [The practitioner] was given an opportunity to be heard in relation to the [proposed] costs orders.[347] amongst other things, he submitted that because the costs order had been made against him personally by Judge Neville on this Court sitting in Canberra, he was being subjected to workplace bullying in breach of the Fair Work Act 2009 (Cth). He also asserted that the [Minister’s] solicitor was acting in breach of codes of professional conduct (bullying) by seeking a cost order against him personally. I reject these submissions.
28. He also stated that he was a practitioner with particular expertise in the field of migration law and had been a leader in the field for about 30 years. That comment was made in response to a comment from the Court that he should consider obtaining some assistance from his professional body in relation to his approach to practising.[348]
[347] The proposed orders were that that the practitioner, personally, pay the Minister’s costs, that any costs incurred by his client were not payable to the practitioner and that the practitioner repay any costs already paid by his client
[348] BNJ17 v Minister for Immigration and Border Protection [2018] FCCA 1359 at [27] – [28]; Exhibit H in the original proceeding, page 85
403.The practitioner’s misconduct has gone beyond that which might be remedied by retraining and supervision. The practitioner’s conduct might once have been amenable to redirection in a collegiate practice structure, rather than his essentially solo method of practice, but that opportunity has long gone. There is no evidence of remorse, let alone insight, as might suggest retraining or supervision could ever work.
Conclusion
404.We are satisfied there is no error of fact or law made by the original tribunal in its recommendation under section 425(3) of the LP Act that the practitioner’s name be removed from the roll of legal practitioners kept by the Supreme Court of the ACT. We think that recommendation is appropriate.
405.The appeal is dismissed. Pursuant to section 433, the practitioner must pay the Council’s costs of the appeal unless we are satisfied that exceptional circumstances exist. We will give the parties until 24 March 2023 to explore any agreed order as to costs and, if no agreement is reached, to file written submissions regarding costs.
………………………………..
Presidential Member G McCarthyFor and on behalf of the Tribunal
Dates of hearing: 14, 15, 16 June 2022 Appellant: In person Counsel for the Respondent: Mr D Moujalli Solicitors for the Respondent: Ms K Binstock – McInnes Wilson Lawyers
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