LP 202111 (Kai Zhang) v Council of the Law Society of the Act (Appeal) - [2024] ACAT 70

ACT CIVIL & ADMINISTRATIVE TRIBUNAL

LP 202111 (Kai Zhang) v COUNCIL OF THE LAW SOCIETY OF THE ACT (Appeal) [2024] ACAT 70

AA 41/2023 (OR 11/2021)
Catchwords: APPEAL – occupational discipline – legal practitioner – finding of professional misconduct consequent on the practitioner’s dishonesty in his dealings with another legal practitioner and with the Law Society – appeal against orders including order the practitioner’s practising certificate be suspended for 12 months – no error proved in original tribunal’s reasons for decision – appeal dismissed

Legislation cited: ACT Civil and Administrative Tribunal Act 2008 ss 79, 82
Legal Profession Act 2006 ss 45, 425
Evidence Act 2011 ss 72, 76, 78

Subordinate
Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015

Cases cited:Comcare Australia v Lees (1997) 151 ALR 647
Council of Law Society of New South Wales v Zhukovska [2020] NSWCA 163
Council of Law Society of the ACT v Bandarage [2019] ACTSCFC 1
Council of the Law Society of the ACT v Legal Practitioner 201920 (David Chen) [2020] ACAT 31
Council of the Law Society of the Australian Capital Territory v Legal Practitioner 202111 (Kai Zhang) [2024] ACAT 66
Council of the Law Society of the Australian Capital Territory v Legal Practitioner 202111 (Kai Zhang) (No 2) [2024] ACAT 67
Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275
Khosa v Legal Profession Complaints Committee [2017] WASCA 192
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Legal Practitioner v Council of Law Society of the ACT [2011] ACTSC 207
Legal Profession Complaints Committee and Tang [2021] WASAT 117
LP 202012 (Hugh Ford) v Council of the Law Society of the ACT [2024] ACAT 12
Repatriation Commission v O’Brien (1985) 155 CLR 422
Stanoevski v Council of the Law Society of New South Wales [2008] NSWCA 93
XY v Council of the Law Society of New South Wales [2021] NSWSC 1263

Tribunal: Presidential Member G McCarthy

Date of Orders:  6 August 2024
Date of Reasons for Decision:      6 August 2024
Date of Publication:  10 September 2024
AUSTRALIAN CAPITAL TERRITORY          )
CIVIL & ADMINISTRATIVE TRIBUNAL     )          AA 41/2023
BETWEEN:
LP 202111
Appellant

AND:

COUNCIL OF THE LAW SOCIETY OF THE ACT
Respondent

TRIBUNAL:Presidential Member G McCarthy
DATE:6 August 2024

ORDER

The Tribunal orders:

Appeal dismissed.
The appellant pay the respondent’s costs of the appeal as taxed or agreed on a party-party basis.

………………Signed…………..

Presidential Member G McCarthy

REASONS FOR DECISION

This appeal[1] arises from an application for occupational discipline against the appellant, a legal practitioner. The original Tribunal (Original Tribunal) heard and determined the application in two parts, first on liability and then on sanction. The Original Tribunal’s earlier decision on liability (the liability decision)[2] was not the subject of challenge. In the hearing on sanction, the appellant gave evidence he accepted the liability decision[3] which concluded with the following paragraph:
85. When the charges are examined together, the Tribunal considers the practitioner’s conduct constitutes professional misconduct, being a substantial failure to maintain a reasonable standard of competence or diligence. In addition, it is considered that the totality of the conduct is such that the practitioner is not a fit and proper person to engage in legal practice. This is because his conduct would be reasonably regarded by professional colleagues of good repute and competency as disgraceful or dishonourable.[4]
[1] This decision was previously anonymised pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of delivery to the parties.
[2] Council of the Law Society of the Australian Capital Territory v Legal Practitioner 202111 (Kai Zhang) [2024] ACAT 66
[3] Affidavit of the practitioner affirmed 1 March 2023 at [12]
[4] [2024] ACAT 66 at [85]
The appellant appealed from the Original Tribunal’s decision on sanction (the sanction decision)[5] In the opening paragraph of its sanction decision, the Original Tribunal summarised the appellant’s conduct as follows:
1. On 9 January 2023, this Tribunal published a decision (the part 1 decision) finding that the respondent (the practitioner) had engaged in professional misconduct. In summary, this was due to the practitioner’s 2017 actions in electronically changing the directors and guarantors’ names in documentation (lease documentation) drafted by Bradley Allen Love Lawyers (BAL) without advising BAL, as they had requested. This had significant ramifications for the lessor when it tried to enforce the guarantees. The practitioner was also found to have misled the applicant (the Council) when he was asked about his conduct in 2020.
[5] Council of the Law Society of the Australian Capital Territory v Legal Practitioner 202111 (Kai Zhang) (No 2) [2024] ACAT 67
Arising from the appellant’s conduct, the Original Tribunal made the following orders:
1.       The practitioner is publicly reprimanded.
2.       The practitioner’s practising certificate is suspended for 12 months from 28 days after this decision is delivered.
3.       The practitioner undertake a course in ethics approved by the Council within 12 months.
4.       The practitioner pay the Councils’ party/party costs of the proceedings up to the delivery of the stage 1 decision as agreed or as assessed.
5.       The parties have 28 days from the date of this decision to file any written submissions with respect to costs of the stage 2 hearing. A decision on the costs of the stage 2 hearing will be made in chambers.
The appellant appealed from the orders on nine grounds:
1.       The Tribunal erred in failing to give appropriate and sufficient weight to the practitioner's insight, alternatively in rejecting that insight as too late in the piece. [D 61]
2. In the alternative to G1, the Tribunal erred in failing to give sufficient reasons for rejecting the practitioner's insight as relevant to the consequential orders to be made by the Tribunal under s 425 of the Legal Profession Act 2006 (sanction).
3.       The Tribunal erred in finding that suspension of the practitioner's practising certificate for a period of 12 months was required for the public to have full confidence in the legal profession and to deter other practitioners from engaging in dishonest conduct. [D 62]
4.       The Tribunal ought to have found that together with the other orders proposed by the practitioner, namely:
(a)that the practitioner be publicly reprimanded;
(b)that the practitioner's right to practice be restricted to that of an employee, with conditions, for a period between 6 and 12 months;
(c)that the practitioner undertake a course nominated or approved by the Law Society in the area of ethics and professional responsibility within 12 months;
(d)that the practitioner pay a fine (in the region of $7,000 - $8,000),
supervision of the practitioner's practice for a period of 12 to 24 months (as detailed in the practitioner's written submissions) would adequately protect the public and deter other practitioners, in circumstances where:
(e)The conduct in question occurred in 2017 (and, as to his response to the Law Society, in 2020);
(f)The practitioner had demonstrated insight into his conduct including reflecting on his conduct with professional colleagues;
(g)The practitioner has continued to practice and has not been the subject of a similar complaint since that time;
(h)The practitioner had taken numerous steps to alter his practice to ensure there would be no repetition of similar conduct; and
(i)Removing the practitioner from practice for 12 months would have a punitive effect on not only himself but his employees and ethnically Chinese clients whose first language is not English.
5.       In the alternative to G4, the Tribunal erred in failing to give sufficient reasons for concluding that supervision of the practitioner's practice would not adequately address the principles regarding protective orders. [D 65]
6. The Tribunal erred in rejecting the evidence given by Mr Chin regarding cultural values and practices (to which no objection had been taken) as not providing an exception to the opinion rule in sections 77-79 of the Evidence Act 2011 (ACT). [D 39]
7.       The Tribunal erred in finding that the practitioner and Mr Wong had merged their respective legal firms, being Australian Law Company Pty Ltd and Accuro Maxwell. [D 55]
8.       The Tribunal erred in finding there are solicitors in the practitioner's firm other than the practitioner who can receive instructions and provide legal services to Mandarin speakers [D 57] in circumstances where the evidence was that the employees of the practitioner's firm who speak fluent Mandarin are two solicitors, (both admitted in 2021), a law graduate, a conveyancing clerk and a migration consultant (not being an employee).
9.       The Tribunal erred in finding that by reason of the matters at G7 and GS there were options for the practitioner's firm to continue to employ staff and provide legal services to Mandarin speakers if the practitioner was unable to practice (by reason of the suspension of his practising certificate) for a period of time. [D 57]

The nature of the appeal

The appellant appealed pursuant to section 79 of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act), which entitles a party to the original application to appeal “on a question of fact or law”.
Pursuant to section 82(1) of the ACAT Act, the appeal tribunal is able to deal with the appeal as a new application or as a review of all or part of the original decision as it considered appropriate. In this case, the Appeal Tribunal ordered the appeal proceed as a review of the original decision. In Legal Practitioner v Council of Law Societyof the ACT, the Supreme Court per Refshauge J commented that the phrase “review of all or part of the original decision” should be understood as what is usually called a “rehearing”.[6]
[6] [2011] ACTSC 207 at [13]-[14]. See also Giusida Pty Ltd v Commissioner for ACT Revenue [2016] ACTSC 275 at [37]
In LP 202012 (Hugh Ford) v Council of The Law Society of the ACT,[7] the appeal Tribunal said:
[7] [2024] ACAT 12
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 …
33.    In short, the practitioner must show that the original tribunal made an error of fact or law and that the error material[ly] affected the result…
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.[8]

Grounds 1 and 2: the practitioner’s insight

[8] [2024] ACAT 12 at [32]-[33]

The appellant contended the Original Tribunal failed to give sufficient weight to his insight into his wrongdoing or, in the alternative, failed to give sufficient reasons for rejecting his insight as relevant to the consequential orders. Both grounds were drawn from paragraph 61 of the Original Tribunal’s sanction decision, which states:
61. The Tribunal is satisfied that the practitioner has gained insight into why his conduct was so serious and commends him for now appearing to have accessed support and advice from other experienced practitioners. This insight has come late in the piece.
In support of the alleged errors, the appellant submitted that at the commencement of the hearing on liability on 11 July 2022, the Original Tribunal “commended the appellant for his insight”[9] and for the admissions he had made. The appellant noted also his evidence at the liability hearing on 12 July 2022 that he had “come to term[s] that I have done the wrong thing” and “made the wrong assumption”[10] in relation to the changes to the lease documentation. The appellant referred to his evidence in his affidavit affirmed 1 March 2023 for the purpose of the sanction hearing about further development of his insight.
[9] Appellant’s written submissions dated 6 December 2023 at [12]
[10] Appellant’s written submissions dated 6 December 2023 at [13]
With reliance on the Original Tribunal’s “commendation” of the appellant for his insight, the appellant contended the Original Tribunal nevertheless “gave scant credit”[11] for the appellant’s insight, noting it came “late in the piece”. The appellant drew on actions demonstrating his remorse and regret, for example undertaking further learning and advice from more experienced practitioners and practical steps taken to safeguard his legal practice from future misconduct.
[11] Appellant’s written submissions dated 6 December 2023 at [16]
The appellant drew on a decision of the Western Australian Court of Appeal, Khosa v Legal Profession Complaints Committee (Khosa), in which the Court stated that “[r]emorse is mitigating. The absence of remorse is not aggravating”.[12]
[12] [2017] WASCA 192 at [58]
The appellant contended his insight and remorse should have been viewed as a mitigating factor in considering the appropriateness of the sanction to be ordered.
By reference to these factors, the appellant contended the Original Tribunal failed to give appropriate weight to his insight. He contended his insight had been “apparently dismissed”[13] as being “late in the piece”.[14] The appellant submitted “that timing alone is an insufficient reason to have so deprecated the appellant’s insight and remorse as a mitigating factor”.[15]
[13] Appellant’s written submissions dated 6 December 2023 at [29]
[14] Appellant’s written submissions dated 6 December 2023 at [29]
[15] Appellant’s written submissions dated 6 December 2023 at [29]
The respondent referred to a settled principle that belated or “new-found” insight can generally only be given limited weight.[16] The respondent then referred to the appellant’s evidence and its timing to submit the appellant did not demonstrate any sustained, credible or meaningful insight into his conduct until after the Original Tribunal had given its decision on liability and made findings of dishonesty against him.
[16] Dupal v Law Society of NSW [1990] NSWCA 56 page 22; Singh v Legal Services Commissioner [2013] QCA 384 at [23]
The respondent noted that in Khosa, the majority and minority judgments both recognised that where a matter is contested, the practitioner is not entitled to the mitigation that a plea of guilty would have brought. Where the appellant’s insight came only after delivery of the liability decision, the respondent said, it could only have been given limited weight by the Original Tribunal.
Accordingly, the respondent submitted, the Original Tribunal did not err in characterising the insight as having arisen “late in the piece” and gave it appropriate and sufficient weight.
The parties’ respective submissions about whether the Original Tribunal erred or did not err in the weight it gave to the appellant’s insight and remorse were difficult to assess because the Original Tribunal made no comment about the weight it gave. It simply made an observation that the insight came “late in the piece”. That is a finding of fact, nothing more.
Where the Original Tribunal made no comment about the weight it gave to the appellant’s insight it became difficult, if not impossible, for the appellant to prove the Original Tribunal gave “scant credit”, as he claimed, for the appellant’s insight and remorse. In particular, the appellant does not point to anything (nor, as best I can ascertain, could he) to demonstrate one way or another whether the appellant’s insight was “apparently dismissed”. Given it is for the appellant to prove, grounds 1 and 2 could be dismissed at this point.
Nevertheless, I reviewed the sanction decision and the evidence to ascertain whether the Original Tribunal was correct to find that the appellant’s insight came “late in the piece”. The results concerning the appellant’s conduct and his representations on this ground of appeal were disturbing.
The appellant’s submission, referenced to the transcript, that the Original Tribunal “commended the appellant for his insight” at the commencement of the hearing on 11 July 2022 was inaccurate. The transcript records that at the beginning of the liability hearing the Original Tribunal commented that it had looked at the respondent’s defence and commended him “for that, there is a lot that is admitted … the response … does admit much of what is actually pleaded”.[17] In my view, it is tolerably clear the transcript incorrectly records the word “actually” and should have recorded “factually”. Counsel for the respondent said in response “Senior member, I agree. In terms of the factual matters, a lot is agreed. Most of the agreement - sorry, most of the disagreement concerns the respondent’s state of mind when he made representations to Bradley Allen Love and to the Law Society.”[18]
[17] Transcript of proceeding, 11 July 2022, page 4, lines 34-36
[18] Transcript of proceeding, 11 July 2022, page 4, lines 40-44
Having reviewed the appellant’s response in the original application, it makes many admissions of fact but does not admit his conduct was dishonest or that his conduct breached the Legal Profession (Solicitors) Conduct Rules 2015 (the Rules).
The appellant’s reliance on his evidence during the hearing on liability, that he had “done the wrong thing” and “made the wrong assumption”, also does not withstand scrutiny as evidence in support of insight. These comments were made by way of admissions that he should have told BAL “about the amendments”[19] to the lease documentation, but at that point he still regarded his conduct to be only “a serious error of judgement”.[20]
[19] Transcript of proceeding, 12 July 2022, page 165, lines 16-17
[20] Affidavit of the practitioner affirmed 14 June 2022 at [8]
At the appeal hearing, senior counsel for the appellant accepted there was no acknowledgement of dishonesty until 1 March 2023,[21] but contended the Original Tribunal failed “to give any credit in a real sense [for the appellant’s earlier] recognition of wrongdoing”[22] going back to April 2021 when the appellant's solicitor wrote a letter to the respondent on his behalf.
[21] Transcript of proceeding, 19 December 2023, page 24, lines 34-37 and page 25, lines 34-35, lines 16-17
[22] Transcript of proceeding, 19 December 2023, page 26, lines 30-31
With respect, there is a world of difference between acknowledgement of an error of judgement, serious or otherwise, and dishonesty. Many practitioners and others recognise in hindsight an error of judgement in what they did or said, but that does not entail dishonesty.
As the Original Tribunal pointed out, it was not until after the liability decision that the appellant affirmed a further affidavit on 1 March 2023 for the purpose of the sanction hearing stating he “now” accepts his actions were “dishonest”.[23]
[23] Affidavit of the practitioner affirmed 1 March 2023 at [33]
Given the conduct in question occurred in 2017 and 2020, and the appellant did not acknowledge his dishonesty until 1 March 2023 after the charges had been found proved, I am well satisfied the Original Tribunal’s observation that the appellant’s insight came “late in the piece” was correct.
Notwithstanding the above, I had regard to the appellant’s submission that orders he submitted as “appropriate” should be made in substitution for the orders made. The orders he submitted as appropriate did not include suspension of his practising certificate and instead included a fine (in the region of $7,000-$8,000) and a period of supervised practice.

In support of the orders he proposed, the appellant relied on his “demonstrated insight into his conduct”, among other things, and that “the timing alone” (inferentially the late timing of his insight and remorse) is an insufficient reason for the Tribunal “to have so deprecated the appellant’s insight and remorse as a mitigating factor”.[24]
[24] Appellant’s written submissions dated 6 December 2023 at [29]
There were several difficulties with this submission.
First, the starting point is for the appellant to prove error. Absent proved error, it is not the appeal tribunal’s function to consider or decide what sanctions it considers appropriate and to substitute them accordingly if they differ from the sanctions imposed at first instance. As mentioned, where there is nothing to show what weight the Original Tribunal gave to the appellant’s insight, late in the piece or otherwise, and so no error is proved regarding weight, any basis for setting aside the Original Tribunal’s sanctions falls away.
Second, as discussed above, the appellant’s insight and remorse was not stated until very late in the piece, and only after the Original Tribunal had found the charges proved. If the Original Tribunal gave the appellant’s insight limited weight by reason of it coming at the “11^th hour”, I see no error in it doing so by reference to the authorities noted by the Original Tribunal.[25]
[25] Sanction decision at [46]
Third, the implication of the submission seemed to be that the Original Tribunal did not give appropriate weight to the appellant’s demonstrated insight because, if it had, lesser sanctions (of the kinds proposed by the appellant) would or should have been imposed.
Whichever way the Original Tribunal’s decision on sanction is construed, and irrespective of the respondent’s submissions as to why limited weight should be given to the appellant’s claimed insight, after considering the sanctions imposed, I am not persuaded insufficient weight was given to the appellant’s insight or remorse.
When considering what “credit” should be given on penalty by reason of insight and/or remorse, the starting point is the seriousness of the charges found proved.
In this case, the appellant changed or caused to be changed the directors and guarantors in the draft lease documentation from persons based in the ACT, to persons based in Hong Kong, without informing the solicitors for the lessor of those proposed changes (as requested), knowing that enforcement of a guarantee against an overseas-based director and/or guarantor would be difficult to enforce. In an email from his client, Ms Chu, about which the appellant was aware, Ms Chu stated “this way the director guarantee will become quite meaningless”.[26]
[26] Liability decision at [50]-[51]
On any view, in a commercial lease to a corporate tenant, to substitute the proposed guarantors with guarantors in Hong Kong was a very significant change which the lessor, in all probability, would never have accepted. Understandably, having made the switch, the appellant did not inform the solicitors for the lessor of the change (as requested) and left it for them to “pick up”,[27] knowing “the conventional practice between solicitors was to expressly draw attention to any proposed changes to a document.”[28]
[27] Liability decision at [47]
[28] Liability decision at [49]
The Original Tribunal characterised the appellant’s conduct, correctly in my view, as “extremely serious.”[29] It noted the appellant’s dishonesty “was not a spur of the moment action. Rather, this conduct was part of a series of actions taken over several months”.[30] It found the appellant’s actions “were dishonest and compromised his integrity as provided in the [R]ules.”[31] It noted the appellant’s:
…objective in not raising the change [to the lease documentation] was to ensure the lessor did not realise the amendment to the lease documentation which potentially had and transpired did have, such significance for the lessor. This is considered to demonstrate dishonesty and would likely bring the profession into disrepute.[32]
[29] Liability decision at [47]
[30] Liability decision at [53]
[31] Liability decision at [58]
[32] Liability decision at [59]
There was no challenge to anything in the liability decision. As mentioned, the appellant accepted the decision.
I agree with the Original Tribunal’s characterisation of the appellant’s conduct. He proved himself to be a person who cannot be trusted in his practise of the law or in his dealings with other legal practitioners. His conduct was the antithesis of what it means to be a legal practitioner.
Even if significant weight was given to the appellant’s remorse, demonstrated or otherwise, in my view the sanctions imposed by the Original Tribunal were modest.
For these reasons, grounds 1 and 2 fail.

Ground 3: the need for suspension

The appellant relied on the settled principle that disciplinary orders made pursuant to section 425 of the Legal Profession Act 2006 (the LP Act) must be protective not punitive. In this sense, orders are to protect clients and the public, to maintain the reputation and standards of the profession and to avoid similar conduct by other practitioners. They are not to punish the practitioner.[33]
[33] Appellant’s written submissions dated 6 December 2023 at [31]
The appellant submitted the Original Tribunal’s sanction decision does not demonstrate why, in the circumstances, suspension was a necessary or appropriate sanction. The appellant submitted the Original Tribunal’s decision to suspend the practitioner “appears to be the need for deterrence”, referring to paragraphs 62, 64 and 65 of the sanction decision, where, by contrast, (the appellant submitted) an order for suspension “ordinarily reflects a conclusion that a practitioner is not presently fit to practice (sic), but is expected to become fit to practice (sic) by the end of the suspension period.”[34]
[34] Appellant’s written submissions dated 6 December 2023 at [37]
The appellant relied on a decision of the NSW Court of Appeal in Council of Law Society of New South Wales v Zhukovska (Zhukovska),[35] in which the appellant said the Court found the New South Wales Civil and Administrative Tribunal (the NCAT) erred by not making any findings to justify an order that the appellant should be suspended for 12 months.[36]
[35] [2020] NSWCA 163
[36] [2020] NSWCA 163 at [125]
The appellant then cited Stanoevski vCouncil of the Law Society of New South Wales (Stanoevski),[37] and Law Society of New South Wales v McNamara,[38] as authority for the proposition that suspension should “only be ordered if the view was formed the practitioner is presently unfit to practice (sic) but at the termination of the proposed period of suspension would no longer be unfit.”
[37] [2008] NSWCA 93
[38] (1980) 47 NSWLR 72 at [76]
From there, the appellant submitted suspension is “a very serious sanction and should be reserved for the most serious matters where it has been found that the practitioner is presently but not permanently unfit to practise. This is not one of those circumstances.”[39]
[39] Appellant’s written submissions dated 6 December 2023 at [39]
The respondent challenged the appellant’s submission that suspension can only be ordered where a practitioner is found to be presently unfit to practice, but may or will become fit to practice in future. The appellant relied upon Khosa, in which the Court said:
A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person [to practise]. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine.[40]
[40] [2017] WASCA 192 at [194]
The respondent submitted, by reason of the seriousness of the appellant’s wrongdoing, the Original Tribunal did not need to be satisfied that the appellant was presently unfit to practise to make a suspension order, and that in any event it could not be satisfied the appellant was fit to practise at the time of the sanction hearing. The respondent noted the authorities relied upon by the Original Tribunal about the importance of honesty and that the administration of justice depends upon the judiciary, practitioners and the public being able to trust practitioners in their representations and dealings.[41]
[41] Sanction decision at [23]-[27]
I do not accept determination of an appropriate penalty, and in this case suspension, is so structured that it can only be ordered where the practitioner is found to be presently unfit to practise, but may in future be fit to practise. None of the authorities relied upon by the appellant support that proposition. The comments of the Courts in Zhukovska and Stanoevski were made in the context of whether a practitioner should be struck from the roll. In summary, the Courts were saying that for serious professional misconduct which may result in strike off, and where the relevant regulator was seeking that outcome, if the lesser penalty of suspension is to be ordered, there needs to be a basis for concluding the practitioner will in the future be fit to practise and (referring to Zhukovska) how and why that change will be achieved.
That scenario has little to do with this case. There was no suggestion of a recommendation that the appellant’s name be removed from the roll. The respondent submitted suspension from practice for two years was warranted,[42] and the Original Tribunal concluded suspension for one year was appropriate. I do not accept the authorities relied upon by the appellant can be ‘turned on their head’ as a limitation to when suspension could be ordered, especially where Khosa is authority to the contrary.
[42] Sanction decision at [13]
In any event, the appellant’s submission overlooks the Original Tribunal’s finding in its liability decision, which the appellant accepts:
In addition, it is considered that the totality of the conduct is such that the practitioner is not a fit and proper person to engage in legal practice.[43]
[43] Liability decision at [85]
In other words, even on his own case, ground 3 fails.

Ground 4: supervision an adequate penalty

Ground 4 was presented in the appellant’s written submissions as the orders the appellant submitted were appropriate to be made in substitution for the orders of the Original Tribunal.[44] At hearing, senior counsel acknowledged ground 4 was more an outcome she submitted should be ordered if another ground or grounds of appeal were upheld, rather than a ground in itself.[45]
[44] Appellant’s written submissions dated 6 December 2023 at [85]-[86]
[45] Transcript of proceeding, 19 December 2023, page 33, lines 7-14, page 78, lines 8 – 13
Accordingly, the respondent’s position was that where none of the alleged errors is proved, ground 4 falls away.
Where I am satisfied no error has been established, it is unnecessary to address ground 4 further.

Ground 5: failure to give reasons for why supervision would be inadequate

The appellant contended there was no explanation for the Original Tribunal’s conclusion in paragraph 65 of its sanction decision that supervision of the practitioner’s practice would not adequately address the concern raised in this case, “being his honesty in dealings with third parties”.[46]
[46] Sanction decision at [65]
The appellant contended there was “only one other meaningful mention”[47] of the supervision orders he proposed, namely in paragraph 64 where the Original Tribunal records its reliance on the decision of the Tribunal, per SM Meagher, in Council of the Law Society of the ACT v Legal Practitioner 201920 (David Chen) (Chen)[48] which, the Original Tribunal said, “raises some similarities with the present matter”.
[47] Appellant’s written submissions dated 6 December 2023 at [42]
[48] [2020] ACAT 31
The appellant contended this reliance was “misplaced”.[49] First, the appellant said, his circumstances “are wholly unlike” those considered in Chen. Second, the practitioner in Chen was not proposing supervision conditions, but was suggesting suspension for 12 months was sufficient. The Tribunal in Chen ordered suspension for five years, with provision for the practitioner to obtain a restricted practising certificate if he met a number of conditions. The question of supervision conditions instead of suspension was not proposed or considered.
[49] Appellant’s written submissions dated 6 December 2023 at [46]
From there, the appellant developed an argument for why there was a “real value” in the supervision order he proposed. He submitted the proposed supervision would protect the public, preserve the public’s confidence in the legal profession and provide “an added dimension of further and continued learning to the appellant”.[50]
[50] Appellant’s written submissions dated 6 December 2023 at [47]-[49]
The respondent referred to the Original Tribunal’s reasons for rejecting a supervision order, as stated in paragraphs 64 and 65 of the sanction decision, and submitted those reasons are sufficient. It noted the Courts have repeatedly emphasised the importance of the honesty of legal practitioners,[51] and submitted dishonesty necessitates a more severe disciplinary response than other disciplinary action. This, the respondent submitted, was met by the Original Tribunal’s rejection of supervision in favour of a period of suspension.
[51] Council of Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [163]; Council of theNew South Wales Bar Association v Sahade [2007] NSWCA 145 at [58]
The respondent then developed an argument for why supervision was not an appropriate response to proven dishonesty.
Ground 5 alleges error by the Original Tribunal for not giving reasons or sufficient reasons for not making an order it did not make, namely supervision. The appellant did not cite any authority for why the Original Tribunal had such an obligation, nor could I find any authority to that effect. Whilst the ambit and structure of an obligation to provide reasons can vary according to the court, tribunal or other body that is making a decision and according to the statutory context (if any) in which it is made, at its core the obligation is to provide reasons for the decision made, not a decision not made, so that a person adversely affected by the decision is told why the decision has been made.[52]
[52] Comcare Australia v Lees (1997) 151 ALR 647 pages 656-657; Repatriation Commission v O’Brien (1985) 155 CLR 422 at 445-446
I accept reasons need to be given with sufficient detail for the person to determine whether there has been some reviewable error in the decision made, but they do not need to deal with every detail of the evidence or every argument provided.
The obligation requires reference to the evidence relied on for why the decision was made, and in this case why a suspension for 12 months was ordered. The appellant does not submit the Original Tribunal failed in this regard: the sanction decision details why the Original Tribunal considered the appellant’s conduct to be “extremely serious due to the dishonesty demonstrated in his dealings with BAL in 2017 and the Law Society in 2020.”[53] Ground 5 could be dismissed at this point.
[53] Sanction decision at [28]
Nevertheless, I considered the substance of the appellant’s claim. It is, in my view, self-evident that the factual details explaining why the Original Tribunal regarded the appellant’s dishonesty as “extremely serious” underpin its conclusion that a supervision order would not adequately reflect the disapproval that should be demonstrated, or address the appellant’s dishonesty in his dealings with third parties. Also, it is implicit from the Original Tribunal’s unchallenged finding that the appellant “is not a fit and proper person to engage in legal practice” that him continuing to practice under supervision is not an adequate or appropriate penalty.
Nor do I think it fair for the appellant to contend the Original Tribunal gave no explanation or reasons for why it considered a supervision order to be inadequate. The appellant’s submission overlooks paragraph 60 of the sanction decision which repeats the Original Tribunal’s conclusion at paragraph 28 that the appellant’s dishonesty was “extremely serious” for the reasons given elsewhere in the decision. It also overlooks paragraphs 61 and 62 which are, in substance, statements of conclusion regarding the appellant’s dishonesty built upon the earlier paragraphs of the decision. Paragraph 63 then begins “taking all these factors into consideration”, and then states the orders made.
Implicit in the reasons for making the orders, and in particular the suspension order, is the Original Tribunal’s conclusion that other possible orders not made, whether less or more severe, are not adequate, necessary or appropriate as the case may be. Upon being told in detail why a suspension order was necessary and appropriate, it is artificial for the appellant then to contend he does not know why the alternative lesser order he proposed was not accepted.
Nor do I think the Original Tribunal’s reliance on Chen was misplaced. Contrary to the appellant’s claim, Chen did raise “some similarities with the present matter”, namely the practitioner’s dishonesty in his practice of the law and in his dealings with others, in particular the Law Society. Also, the appellant’s circumstances are not “wholly unlike” those of Chen. True, the dishonesty occurred on more occasions in Chen, but that is of limited relevance. The key similarity is the appellant’s dishonesty, not only in his dealings with BAL, but then continued in his communications and dealings with the Law Society.
The appellant’s contention that Chen is wholly unlike his own circumstances because, among other reasons, the practitioner was the subject of “two previous disciplinary matters resulting in two separate public reprimands”[54] was simply wrong. The appellant was also the subject of two previous disciplinary matters resulting in two separate public reprimands.[55]
[54] Appellant’s written submissions dated 6 December 2023 at [43(b)]
[55] Sanction decision at [4]-[5]
Also, in my view, the appellant’s submission that Chen was concerned with the length of the suspension order, rather than whether to make a supervision order, misses the point. The Original Tribunal was drawing on the statements of principle in Chen, which similarly involved a dishonest practitioner, for why a supervision order was inadequate. Indeed, the appellant’s reference to the whole of paragraph 182 in Chen,[56] in which SM Meagher concluded a 12 month suspension was not adequate and a longer period of suspension was required, underscores why a supervision order in this case would be inadequate.
[56] [2020] ACAT 31 at [182]
Ground 5 fails.

Ground 6: the evidence of Mr Chin

The appellant submitted the Original Tribunal wrongly found the evidence of Mr Chin was not an exception to the opinion rule in section 76 of the Evidence Act 2011 that excludes evidence of an opinion to prove the existence of a fact about the existence of which the opinion was expressed, and that the exception in section 78 applied.[57] The appellant submitted Mr Chin’s evidence was “wrongly rejected” in circumstances where his opinion was based on his perceptions as an ethnic Chinese legal professional and was “necessary to understand why the appellant struggled to outwardly demonstrate his insight into his peers including the respondent and the [original] tribunal.”[58]
[57] Appellant’s written submissions dated 6 December 2023 at [53]
[58] Appellant’s written submissions dated 6 December 2023 at [63]
The appellant then went on to contend Mr Chin’s evidence was necessary and relevant to understand his difficulty in giving evidence in cross-examination and in confiding with his professional peers.

The respondent pointed out that Mr Chin’s evidence was not rejected in the sense of not being admitted as evidence in the hearing: the Original Tribunal quotes at length from Mr Chin’s affidavit,[59] and states it has “considered this evidence, given by a very experienced legal practitioner”.[60] The Original Tribunal also acknowledged Mr Chin’s evidence “provided some insight into the practitioner’s conduct”.[61]
[59] Sanction decision at [38]
[60] Sanction decision at [39]
[61] Sanction decision at [39]
The respondent went on to make submissions as to why section 78 of the Evidence Act was not applicable to make Mr Chin’s opinion evidence admissible as an exception to the exclusion under section 76.
The respondent also submitted that even if the Original Tribunal erred in finding Mr Chin’s evidence was not an exception to the opinion rule, the appellant does not explain how this error affected the outcome. In particular, the respondent submitted, it was “difficult to see how cultural values can be regarded as a significant mitigating factor in view of the paramountcy which a solicitor’s professional obligations must play in determining conduct”.[62]
[62] Respondent’s written submissions dated 15 December 2023 at [8.14]
For at least two reasons, in my view ground 6 was misconceived.
Debate about whether Mr Chin’s opinion evidence was admissible under section 78, as an exception to the exclusion of lay opinion evidence under section 76, is materially irrelevant because the Original Tribunal admitted it,[63] quoted from it in its sanction decision and took it into account. In particular, whether the Original Tribunal was right or wrong to state in its reasons that the evidence was not an exception to the opinion rule is beside the point: the evidence was admitted and taken into account.
[63] Exhibit R4, transcript of proceeding, 16 June 2023, page 5, lines 5-8
Turning then to the appellant’s submission that Mr Chin’s evidence was “wrongly rejected”, which I will construe for the benefit of the appellant to mean not given the weight or consideration it deserved rather than rejected as part of the evidence in the case, the submission is not borne out by the Original Tribunal’s decision.
The Original Tribunal acknowledges Mr Chin’s opinion about the appellant’s cultural circumstances and accepted it “provided some insight” into the appellant’s conduct.[64] All that can be said is that the Original Tribunal considered (or determined) that the requirements in the LP Act and the Rules must prevail “whatever a solicitor’s background”,[65] and in this case whatever the appellant’s cultural circumstances may have been, per Mr Chin’s lay opinion.
[64] Sanction decision at [39]
[65] Sanction decision at [39]
I cannot see any error in the Original Tribunal’s conclusion and agree with it. In particular, the practitioner’s claimed difficulties for cultural reasons in being honest and forthright in his dealings with third parties (supported by Mr Chin’s evidence or otherwise), particularly other practitioners, the Law Society and the Original Tribunal, does not diminish his professional obligation as a legal practitioner to be honest and forthright. I agree with the Original Tribunal that his professional obligations must prevail and in this case were not met.
Ground 6 fails.

Ground 7: the merger of the firms

The appellant took issue with the Original Tribunal’s statement in its sanction decision that he and his business partner, Mr Wong, “merged their respective legal firms”.[66] The appellant explained that Mr Wong founded a law firm, KH Legal Pty Ltd, and that he (the appellant) held shares in that company. The appellant said KH Legal Pty Ltd traded as Maxwell & Co in Sydney, and merged with Accuro Legal to form Accuro Maxwell NSW. The appellant stated he is the principal lawyer at the law firm, Maxwell and Co, which he “developed and built” himself.[67] The appellant submitted that whilst “he has a business relationship with Mr Wong and their respective firms refer work to one another” they are separately owned and managed.
[66] Sanction decision at [55]
[67] Affidavit of the appellant, affirmed 1 March 2023, at [41]-[45]
With reliance on the Original Tribunal’s alleged error, the appellant then submitted that because the firms “are not one and the same”[68] it would not be simple or practical for Mr Wong “to fill any gap”[69] caused by the appellant’s inability to practise for a period of suspension. Whilst not stated in the appellant’s submissions, this consideration seemed to go to the “significant impact” the appellant’s suspension would have on the employees in his firm and on his Mandarin-speaking clients.[70]
[68] Appellant’s written submissions dated 6 December 2023 at [68]
[69] Appellant’s written submissions dated 6 December 2023 at [68]
[70] Sanction decision at [54]
As the respondent pointed out, the appellant’s claim is contradicted by the evidence of Mr Wong who speaks about his firm, the appellant’s firm, the appellant taking shares in KH Legal Pty Ltd in 2014, and “eventually, in 2020 we merged our firms to form Accuro Maxwell.”[71] Mr Wong also speaks about “the running of our businesses together with each other”.[72]
[71] Affidavit of Alexander Wong affirmed 1 March 2023 at [13]
[72] Affidavit of Alexander Wong affirmed 1 March 2023 at [17]
The respondent also noted that in cross-examination, the appellant accepted that Mr Wong’s statement of a merger between the appellant’s firm and Mr Wong’s firm “is accurate”, but contended the statement was “missing the context and background”.[73]
[73] Transcript of proceeding 16 June 2023, page 18, lines 26-27
The respondent submitted that where the factual premise underpinning ground 7 is wrong, the ground of appeal should be rejected.
In my view, whatever the contractual or corporate relationship between Mr Wong’s firm and the appellant’s firm may be or have been, the appellant accepted there is a business relationship between the two firms. Further, in my view, the Original Tribunal was entitled to accept Mr Wong’s affidavit evidence that the firms were “merged” and the appellant’s oral evidence that that descriptor was “accurate”. Ground 7 fails at that point.
In any event, in my view the nature or extent of any relationship between the two firms, and whether Mr Wong and/or his firm could “fill any gap” caused by the appellant’s suspension was irrelevant for the purpose of the application before the Original Tribunal. I reject the whole idea that a practitioner found guilty of professional misconduct and found not to be a fit and proper person to engage in legal practice should be able to continue to practise because their clients and/or their staff need their services. In my view, in such circumstances, the needs of clients and staff is an irrelevant consideration.
Whilst ground 7 fails for these reasons, of far greater concern is the reasoning that underpins this ground of appeal. Central to this matter is the appellant’s dishonesty and his inability to appreciate the importance of being honest and forthright regarding facts and circumstances and how he represents them. To contend, as a ground of appeal, that the Original Tribunal erred in finding there to be a merger between his firm and Mr Wong’s firm, despite Mr Wong’s direct evidence on oath to that effect which the appellant accepted was accurate when brought to his attention, regardless of context and background, demonstrated the appellant still does not have any real insight into what honesty entails.
But for the respondent referring to Mr Wong’s affidavit evidence and the appellant’s evidence in cross-examination, this Tribunal on appeal would have been seriously misled.
The appellant’s whole approach was to refer to facts but not the complete facts, and then leave the respondent and this Tribunal on appeal to “pick up” the full picture.

Ground 8: solicitors to provide legal services to Mandarin speakers

The appellant referred to paragraph 57 of the sanction decision, where the Original Tribunal notes the appellant conceded in cross-examination that several of his employees speak Mandarin. The appellant contended this finding must have been with reliance on the evidence of six Mandarin-speaking people employed by or associated with his firm.[74]
[74] Appellant’s written submissions dated 6 December 2023 at [69]
The appellant then referred to the Original Tribunal’s further statement in paragraph 57 that “there appear to be options for his firm to continue to employ staff and provide legal services to Mandarin speaking clients if he was unable to practice for a period of time”.[75]
[75] Appellant’s written submissions dated 6 December 2023 at [70]
From there, the appellant submitted the Original Tribunal erred in “concluding that the existing Mandarin-speaking employees would be able to take carriage of the appellant’s matters”.[76] The appellant submitted the identified employees would not be able to successfully continue to provide legal services to Mandarin-speaking clients because they were either not admitted, newly admitted or not employees of his firm and did not have the “seniority or standing” of the appellant in the Canberra legal community.[77]
[76] Appellant’s written submissions dated 6 December 2023 at [71]
[77] Appellant’s written submissions dated 6 December 2023 at [72]
The appellant also relied on the evidence of Ms Harkess in her affidavit affirmed 17 November 2023, admitted in the appeal without objection, that five of the six Mandarin-speaking people associated with the firm at the time of the sanction hearing subsequently resigned from the firm.
In summary, the appellant submitted his firm is not equipped to continue to provide legal advice to Mandarin-speaking clients if he were suspended.[78]
[78] Appellant’s written submissions dated 6 December 2023 at [74]
The respondent relied on the “close business arrangement” between Mr Wong’s firm and the appellant’s firm to contend it was “difficult” to see how the Original Tribunal erred as alleged. The respondent relied on the appellant’s evidence that Mr Wong speaks Mandarin and that he and his staff could provide legal services to Mandarin-speaking clients.
The respondent also contended there is no evidence as to why Mandarin-speaking staff could not assist in dealing with clients being supervised by non-Mandarin speaking staff. The respondent submitted ground 8 should therefore be rejected.
Ground 8 inaccurately describes the Original Tribunal’s statement and overlooks important relevant evidence. In particular, the Original Tribunal did not, as the appellant submitted, conclude “that the existing Mandarin-speaking employees would be able to take carriage of the appellant’s matters”. Rather, it observed by reference to the appellant’s business arrangement with Mr Wong and their being “several lawyers in [the appellant’s] firm with unrestricted practising certificates”,[79] that there “appear to be options for his firm to continue to employ staff and provide legal services to Mandarin speakers”.
[79] Sanction decision at [57]
Neither circumstance relied on by the Original Tribunal was in dispute. The appellant accepted he had a business arrangement with Mr Wong and deposes in his affidavit that there are a “number of lawyers with unrestricted practising certificates [in his firm] who are available for junior team members to seek out for support”.[80]
[80] Affidavit of the appellant affirmed 1 March 2023 at [46]
The evidence of Ms Harkess is irrelevant. This appeal is concerned with error on the part of the Original Tribunal. The fact that Mandarin-speaking staff resigned from their employment subsequent to the sanction hearing does not demonstrate error on the part of the Original Tribunal on the evidence before it. Also, there is no evidence as to why they resigned, despite evidence that each of the employees resigned in writing, nor evidence as to any employees who have subsequently been employed. Nor was I taken to any evidence that there has been a decline in Mandarin-speaking clients.
In any event, as discussed in response to ground 7, I reject the proposition that suspension for professional misconduct should not have been imposed by reason of a prospective loss of the appellant's services to clients.
Ground 8 fails.

Ground 9: options for the appellant’s firm to continue

The appellant contended the Original Tribunal erred in “determining that the [appellant’s] firm would be able”[81] to continue providing legal services to Mandarin-speaking clients if the appellant were suspended.
[81] Appellant’s written submissions dated 6 December 2023 at [75]
The appellant then referred to his evidence that there are few Mandarin-speaking practitioners in his firm, and their limited post-admission experience, to support his claim that his suspension would have a detrimental impact on Mandarin-speaking clients as there is “limited scope” within his firm “and the ACT” for others with similar experience to the appellant to take carriage of their matters.
The appellant contended his suspension would present an “access to justice” issue for the Mandarin-speaking community within the ACT. He relied on his unchallenged evidence that he is “one of the few Mandarin-speaking solicitors in the ACT region” and has “a very strong Mandarin-speaking client base”.[82] He contended the Original Tribunal erred in its consideration of the public interest by failing to give weight to the impact of the appellant’s suspension on Mandarin-speaking clients’ access to justice.
[82] Affidavit of the appellant affirmed 1 March 2023 at [53], quoted in the appellant's written submissions dated 6 December 2023 at [77]
In support, the appellant relied on a decision of the Supreme Court of NSW, per Adamson J, in XY v Council of the Law Society of New South Wales(XY), in which the Court acknowledged that clients “who may have difficulty finding another local solicitor who will take their cases on at short notice” is a factor counting against the grant of a stay of a practitioner’s practising certificate, pending the outcome of criminal charges brought against the practitioner.[83]
[83] [2021] NSWSC 1263 at [105]
The appellant also drew on the decision of the Western Australian State Administrative Tribunal (the WASAT) in Legal Profession Complaints Committee and Tang (Tang), in which the WASAT commented by way of a mitigating factor that the character references in evidence indicated the practitioner “is competent and that his legal services are valued by his clients. In particular, the practitioner’s ability to speak Cantonese and Mandarin has been of assistance to Chinese-speaking clients and clients wishing to do business in China.”[84]
[84] [2021] WASAT 117 at [65]
The respondent submitted that where the Original Tribunal was entitled to conclude the appellant’s firm and Mr Wong’s firm had merged, or at least had a close business relationship, which gave Mandarin-speaking clients access to alternative legal services, ground 9 largely repeated grounds 7 and 8 and should be rejected for the same reasons.
Referring to XY, the respondent submitted detriment to the Mandarin-speaking community within the ACT cannot outweigh the public interest at large as to whether a suspension order should be made. The respondent also noted Adamson J referred to the difficulty of clients finding another solicitor as “only one factor” to be weighed against the danger posed by the practitioner.
Referring to Tang, the respondent noted the WASAT went on in the same paragraph to comment there was “no evidence that the practitioner has unique or highly specialised competence or ability such that, if his name were removed from the roll … his clients could not obtain comparable legal services from other practitioners.” The respondent also noted that, notwithstanding the mitigating factor, the WASAT recommended the practitioner’s name be removed from the roll consequent on his “serious dishonesty”.[85]
[85] [2021] WASAT 117 at [69]
The respondent also contended this Tribunal on appeal is unable to assess the extent to which the Mandarin-speaking community will be affected by the appellant’s suspension notwithstanding the appellant’s submissions that that would be so. The respondent referred to many aspects of the evidence throwing doubt on that claim.
I begin by noting the Original Tribunal did not determine the appellant’s firm “would be able” to continue providing legal services to Mandarin-speaking clients if the appellant was suspended: it said, for the reasons given, “there appear to be options” for it to do so.
Turning to the reasons underpinning the ground 9, in my view the respondent’s submissions are plainly right. As mentioned, I do not accept that detriment to the appellant’s Mandarin-speaking clients is a reason not to suspend him. Nor is there evidence, save for the appellant’s assertion, that any material detriment would occur. It is inherently unlikely there are not sufficient other practitioners who can provide legal services to Mandarin-speaking persons in the ACT. Mr Wong’s firm is evidence that there are such services. The claimed prospect of a denial of access to justice if the appellant were suspended therefore falls away.
The Supreme Court’s decision in XY does not assist the appellant’s case. That decision concerned an application for a stay, pending the outcome of criminal charges, and where the balance of convenience lay. The Court found potential detriment to clients was not a sufficient basis to grant the stay. This appeal is against a final determination on penalty, not a stay.
The decision in Tang similarly does not assist the appellant. Indeed, the decision further confirms my view that suspension for 12 months was a modest penalty. In Tang, the practitioner solicited a “kick back” of $12,500 in cash for the benefit of a company controlled by his father, then misled the Complaints Committee in his statements to the Committee about not receiving the kick back, and did not correct his statements until provided with direct evidence that he solicited the kick back. Consequent on the practitioner’s dishonesty, and despite the mitigating factor relied on by the appellant in this case, the Committee recommended the practitioner’s name be removed from the roll.[86]
[86] [2021] WASAT 117 at [75]
Ground 9 fails.

Conclusion

For these reasons, the appeal will be dismissed with costs.
I think it necessary to make a concluding remark.
The seriousness of dishonesty on the part of a legal practitioner cannot be overstated. In Ford, the Appeal Tribunal quoted from several decisions of Courts about the system for administration of justice relying heavily upon the integrity of the profession and the importance of practitioners being trustworthy.[87]
[87] [2024] ACAT 12 at [394]-[398]
Given the comments of Justice Mossop about “the temptations to be other than scrupulously honest are so great that this point has to be made expressly and often”, quoted by Chief Justice McCallum at the opening of the 2023 Legal Term, I repeat her Honour’s statement:
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”.[88]
[88] [2024] ACAT 12 at [398]
Applying these observations of principle to this case, a legal practitioner with any semblance of insight into the importance of honesty, had they been as dishonest as the practitioner was in this case, in my view would recognise their good fortune in being suspended for only 12 months and ‘move on’ as quickly and quietly as they were able.

In this case, notwithstanding his acceptance that his conduct was professional misconduct and that he is not a fit and proper person to practise, the appellant appealed on a host of grounds none of which, in my view, was seriously arguable, and several times inaccurately described statements of the Original Tribunal and overlooked relevant evidence for the purpose of pressing a claim that he should be able to continue to practise.
What was truly incongruous was the appellant advancing as his most significant ground of appeal[89] that the Original Tribunal failed to give sufficient weight to his insight into the seriousness of his misconduct. In my view, the appellant’s very bringing of the appeal, the grounds on which it was brought and the outcome he sought demonstrated to me that the appellant still has no real insight into the seriousness of his misconduct.
[89] Transcript of proceeding, 19 December 2023, page 32, lines 42-45

………………………………..

Presidential Member G McCarthy

Date of hearing:         19 December 2023
Solicitors for the Appellant:           Mills Oakley
Counsel for the Appellant:              C Webster SC
Solicitors for the Respondent:       Mills Oakley
Counsel for the Respondent:          D Moujalli