McLaren v Legal Practitioners Disciplinary Tribunal

McLaren v Legal Practitioners Disciplinary Tribunal & Anor

[2010] NTSC 02

PARTIES: MCLAREN, Asha
v
LEGAL PRACTITIONERS
DISCIPLINARY TRIBUNAL
AND
LAW SOCIETY OF THE NORTHERN
TERRITORY
TITLE OF COURT: SUPREME COURT OF THE NORTHERN
TERRITORY
JURISDICTION: SUPREME COURT OF THE TERRITORY
EXERCISING TERRITORY
JURISDICTION
FILE NO: 76 of 2009 (20917560)
DELIVERED: Wednesday 20 January 2010
HEARING DATES: 4, 5, 23 November and 1 December 2009
JUDGMENT OF: MARTIN (BR) CJ, Mildren and Riley JJ
CATCHWORDS:
APPEAL – APPEAL AGAINST DECISION OF DISCIPLINARY
BOARD
Professional misconduct – serious allegations that other legal
practitioners had breached their fiduciary duty to their clients – lack of
instructions and necessary evidentiary material in making allegations –
failure to withdraw allegations.
Jurisdiction of tribunal – investigation commenced under repealed Act – transitional provisions of legislation.
Appeal dismissed.
Legal Practitioners Act 1974 (NT), ss 45, 46, 46A, 46B, 47, 48B 49, 50
and 50(1A).
Legal Profession Act 2006 (NT), ss 464, 465, 466, 473, 488, 496, 497,
499, 513, 525, 533, 669, 743, 744, 745, 746, 747, 758, 759 and 761.
Legal Profession Regulations 2007 (NT), reg 96A.
Rules of Professional Conduct and Practice (NT), rr 12 and 17.21.
Supreme Court Act 1979 (NT), s 22.
Supreme Court Rules, rr 83.03, 83.20 and 95.01.
Clark v Barter (1989) NSW ConvR 55-483; Council of the New South
Wales Bar Association v Power (2008) 71 NSWLR 451; CDJ v VAJ
(1998) 197 CLR 172; Jones v Dunkel (1959) 101 CLR 298; Law Society
of New South Wales v Harvey [1976] 2 NSWLR 154; Minister
Administering the Crown Lands (Consolidation) Act & Western Lands
Act v Tweed Byron Aboriginal Land Council (1990) 71 LGRA 201;
Moody v Cox & Hatt [1917] 2 Ch 71; O’Reilly v Law Society of New
South Wales (1988) 24 NSWLR 204, referred.
REPRESENTATION:
Counsel:

Appellant: G Bigmore QC, J Kohn
Respondent: S Walsh QC
Solicitors:

Appellant: Vincent Close
Respondent: Hunt & Hunt Lawyers

Judgment category classification: A
Judgment ID Number: Mar1001
Number of pages: 130
IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN
McLaren v Legal Practitioners Disciplinary Tribunal & Anor

[2010] NTSC 02

No. 76 of 2009 (20917560)
IN THE MATTER of an appeal under
the Legal Profession Act 2006 (NT)
BETWEEN:
ASHA MCLAREN
Appellant

AND:
LEGAL PRACTITIONERS
DISCIPLINARY TRIBUNAL
First Respondent

AND
LAW SOCIETY OF THE NORTHERN
TERRITORY
Second respondent

CORAM: MARTIN (BR) CJ, Mildren and Riley JJ
REASONS FOR JUDGMENT
(Delivered 20 January 2010)

Martin CJ:
Introduction

This is an appeal against a finding by the Legal Practitioners Disciplinary
Tribunal (“the Tribunal”) that the appellant (“the practitioner”) engaged in

professional misconduct. In essence the Tribunal found that the practitioner
made serious allegations about the conduct of other legal practitioners
without the necessary instructions and without evidentiary material
supporting the allegations.

The practitioner submits that the Tribunal lacked jurisdiction to hear and
determine the charge of Professional Misconduct. In addition the grounds of
appeal assert that the Tribunal made a number of errors of fact and law.
For the reasons that follow in my opinion the Tribunal possessed
jurisdiction. Although errors occurred and some findings of fact should be

set aside, other factual findings should be confirmed and, on the basis of
those facts, the finding that the practitioner was guilty of professional
misconduct should be upheld and the appeal dismissed.
Background

In 1978 a legal firm known as Cridlands was retained by the Uniting Church

and the Uniting Church of Australia Property Trust (“the Church”) as
solicitors for the Church. By letter of 28 October 1994 Cridlands confirmed
their appointment as the “sole lawyers” for the Church in the Northern
Territory. The letter included a statement that it was an “implicit term” of
the relationship that Cridlands would not act against the Church.

On 2 July 2003 the practitioner wrote a letter to the Law Society of the
Northern Territory (“the Law Society”) making a number of assertions

concerning the conduct of Cridlands. These assertions included a statement
that Cridlands had “breached the ethical duty owed to the Church under
Rule 9A of the Professional Conduct Rules”. The letter is set out below.
Paragraphs 15 and 33 were central to the charge that the practitioner was
guilty of professional misconduct:
“Re Complaint by the Uniting Church of Australia Property Trust against
Cridlands
I act for the Uniting Church of Australia Property Trust (Church).
Background:
On or around 17 July 1978 Cridlands then known as Cridlands & Bauer was appointed by the Church as their Lawyers.
On 28 October 1994 Cridlands confirmed their appointment as Lawyers for the
Church in writing.
The Church owns among others the following valuable commercial property within The Darwin CBD more fully described below:-

A.

Lot 2280 Town of Darwin Certificate, Title Volume 640 Folio 940, in the corner of Knuckey Street and Mitchell Street.
B. Lot 7118 Town of Darwin 47 Cavanagh Street.

I am instructed by the Church to make the following complaint against
Cridlands:

A.

That Cridlands as the legal representatives of the Church breached the ethical duty owed to the Church under Rule 9A of the Professional Conduct Rules of the Law Society of the Northern Territory and approved by the Chief Justice of the Northern Territory.

B.

Cridlands failed or neglected to give its undivided fidelity to its client the Church.

C.

Cridlands failed or neglected to perform its duties and obligations unaffected by its own interests.

D.

Cridlands failed or neglected to perform its duties and obligations unaffected by the interests of persons and or clients other than the Church.

E.

Cridlands maintained the interests of other parties that were adverse or likely to be in conflict with the interests of the Church.

F.

Cridlands failed or neglected to withdraw from representing the Church in the circumstances set out in paragraph E above.

G.

Cridlands failed or neglected to fully inform the Church of the circumstances set out in paragraph E above and continued to act for the Church knowing that the Church had not voluntarily assented to Cridlands acting or continuing to act on its behalf.

H.

Cridlands represented and continued to represent conflicting interests of the Church and other clients in circumstances that were prejudicial to the interests of the Church.
I. Cridlands failed or neglected to inform the Church of the nature and implications of such conflict and continued to act for the Church knowing that the Church had not voluntarily assented to Cridlands acting or continuing to so act.

J. Further and in the alternative Cridlands acted and continues to act
for the other clients after it ceased to act for the Church having
failed or neglected to direct both of its clients to seek other
advice.

K.

Cridlands gave and continued to give legal advice to the Church knowing that the interests of the Church were in conflict with the interests of another existing client or clients other than advice to secure the services of another practitioner.

L.

Cridlands acted (and or continued to act) for the Church without keeping the Church fully informed and withheld information and advice from the Church because of conflicting duty owed to another client other clients.

Particulars – Lot 2280 Town of Darwin

1.        At all material times to this complaint the Church was and continues to be, the registered owner of Lot 2280 – Town of Darwin Mitchell Street, Darwin (Lot 2280).
2.        At all material times to this complaint, Cridlands legally represented the Church. The Church having appointed Cridlands and Bauer the predecessor of Cridlands on 17 July 1978 as lawyers of the Church.
3.        On or around 28 October 1994 Cridlands were retained by the Church as its lawyers. On 28 October 1994 Cridlands accepted and confirmed their appointment as Lawyers for the Church in writing inter alia:
‘That it is the Church’s sole lawyers in the Northern
Territory, and has been for many years. It is an
association that Cridlands values and hopes will
continue.’
‘That an implicit term of our relationship is that Cridlands
does not and will not act against the Church. This is
particularly relevant in the area of potential litigation, but
also has applicability on occasions, with respect to
commercial and property work.’

4.        By virtue of its retainer by and long association with the Church, Cridlands have always been and continue to be well acquainted with the facts and circumstances; including confidential and commercially sensitive information surrounding the commercial transactions entered into by the Church in respect of the above properties.
5.        Cridlands was and continues to be aware of the recitals in the registered lease deed dated 29/4/1974 entered into between the Church and the Australian Temperance and General Mutual Life Assurance Society Ltd. Cridlands having obtained such information by virtue of its position as the lawyer for the Church.
6.        Cridlands was aware of and continues to be aware among other things of the vesting of the right, title and interest of Lot 2280 in the Church on 13/1/1978.

7. At all material times to this complaint Cridlands was aware of
the transfer and the circumstances of the transfer of the lease to
National Mutual Life Association of Australasia as lessee of
Lot 2280 on 8 November 1984.
8.        At all material times to this complaint Cridlands was aware of the recitals and facts and circumstances surrounding the Deed of Assignment of lease from the tenant, National Mutual Life Association of Australasia Ltd to United Super Pty (United Super) as trustee of C+Bus Trust dated 21/3/2001.
9.        At all material times to this complaint Cridlands legally represented the Church during the negotiations and execution of the Deed of Assignment of Lot 2280 dated 21/3/2001 mentioned in paragraph 9 [sic] above.

10. At all material times to this complaint Cridlands were also
acting as legal representatives of Randazzo Investments Pty Ltd
(Randazzo).
11.      At all material times to this complaint Cridlands failed or neglected to advise the Church that it was acting for Randazzo in its dealings and negotiations with United Super, the lessee of Lot 2280 regarding the development of the said property.
12.      At all material times to this complaint Cridlands failed or neglected to keep the Church fully informed of the dealings and negotiations between Randazzo and United Super.
13.      At all material times to this complaint Cridlands continued to act for Randazzo knowing that to be a conflict of interest in the duty owed by Cridlands to the Church in respect to the Church property being Lot 2280.
14.      At all material times to this complaint Cridlands failed or neglected to advise the Church that Randazzo’s dealings and negotiations with United Super were aimed at developing Lot 2280 being land owned by the Church.

15. At all material times to this complaint Cridlands used
confidential and commercially sensitive knowledge and
information gained as legal representatives of the Church to
draft a ‘Development Deed’ for and on behalf of Randazzo
that was prejudicial to the interests of the Church with respect
to Lot 2280 Town Darwin.[my emphasis]
16.      Cridlands prepared the said Development Deed for and on behalf of Randazzo whilst still continuing to act for the Church.
17.      At all material times to this complaint Cridlands failed or neglected to inform the Church of the nature and implications of continuing to act for both the Church and Randazzo whilst the Church had not voluntarily assented to Cridlands acting or continuing to act for the Church.
18.      Thereafter on or around July 2002 Cridlands advised the Church that it will not be able to provide legal advice to the Church regarding the Development Deed and directed the Church to seek other advice but continued to act for Randazzo with respect to the ‘Development Deed’ relating to Lot 2280 Town of Darwin.

Particulars – Lot 7118 Town of Darwin

19.      Cridlands continued to act for Randazzo during all negotiations and registration of the Consent Deed between the Church and Randazzo and United Super. In and around January 2003 Cridlands represented Randazzo and secured the Registration of the Consent Deed relating to Lot 2280 executed between the Church and Randazzo and United Super.
20.      At all material times to this complaint the Church was the owner of and continues to be the registered owner of Lot 7118 Town of Darwin situated at 47 Cavanagh Street (Lot 7118).

21. In or around 1998 the Church decided to develop the land being
Lot 7118 Town of Darwin situated at 47 Cavanagh Street,
Darwin by constructing a shopping centre there on (CBD
Plaza).
22.      The Church also decided to secure Woolworths as an anchor tenant for the new shopping complex to be erected on the said land.
23.      At all times material to this complaint Cridlands were privy to these decisions as their legal advisors.
24.      At all times material to this complaint Cridlands was also privy to these decisions because Mr Gordon Berner, then Partner of Cridlands was a member of the Finance and Property Services Committee of the Church.
25.      At all times material to this complaint Cridlands also acted for Mr Manolos (Manolos) whilst acting as legal representatives of the Church. Manolas was and continues to be the owner of the building at the Corner of Knuckey Smith Street, which was and continues to be leased by Woolworths which was conducting

and continues to conduct a Supermarket from the property
leased to them by Manolas (Old Shop).
26.      At all times material to this complaint Cridlands were also acting for Woolworths as local agents for the legal firm called Clelands, Solicitors that is based in Adelaide.
27.      In or around late 1998 Mr Gordon Berner excused himself from Finance and Property Services Committee meeting during discussions at the meeting about Woolworths on the ground of conflict of interest.
28.      In fact on 9 December 1998, Mr Berner abstained from Finance and Property Services Committee of the Church for the same reason set out in Paragraph 28 [sic].
29.      On or around 8 February 1999 Cridlands advised the Church that they were also legal representatives of Manolas & Woolworths.
30.      At all times material to this complaint Cridlands continued in its role as the legal advisor for the Church knowing that the Church had not voluntarily assented to Cridlands continuing to act on its behalf as well as for Woolworths and Manolas.
31.      Cridlands failed or neglected to advise the Church by continuing to act for all three parties, the interests of the Church would be prejudiced especially, with respect to its decision to develop Lot 7118 and to secure Woolworths as an anchor tenant or at all.
32.      At all material times to this complaint Cridlands failed or neglected to inform the Church of the nature and implications of continuing to act for the Church and Woolworths and Manolas and the Church had not voluntarily assented to Cridlands acting or continuing to act for all three parties.
33.      At all times material to this complaint Cridlands used and passed on commercially sensitive information relating to bids from prospective anchor tenants received in confidence on behalf of the Church for the CBD Plaza to Randazzo for its development. [my emphasis]

34. Cridlands were negligent and alternatively not acting in the
best interests of the Church when they advised that there is
potential for Manolas to sue the Church for breach of Manolas’
Lease with Woolworths but continued to act for all three
parties.
35.      As a consequence of that advice, the Church in or around February 1999 instigated a meeting between Harris Scarfe, Woolworths and Manolas & the Church in an effort to placate Manolas and provide him with an alternate tenant replacing Woolworths.
36.      Cridlands at their offices arranged and facilitated for two (2) days, meetings between all and or some of the following parties: Cridlands – UCA – Harris Scarfe – Mr Jim Meirs of Woolworths, Mr Tony Vanstone of Clelands, Solicitors – representing Woolworths and Manolas. There were meetings between Harris Scarfe, Woolworths and Manolas at which the Church was not present. But Cridlands attended and or were privy to the discussions and outcomes of all the meetings.
37.      The meeting between Cridlands, Woolworths, Manolas and The Church were arranged at Cridlands office to discuss the nature of alternate tenants for the Old Shop.
38.      This above meeting was conducted by Cridlands at their offices where they acted as facilitator between and legal advisor of all three parties.
39.      Cridlands was present at all meetings and therefore were aware of the discussions taking place within each group. Cridlands failed or neglected to advise The Church of the substance of the meeting between Manolas and Woolworths during which The Church was not present.
40.      At all times material to this complaint Cridlands were aware that a number of meetings were also held between the Church and Woolworths on how the latter could extricate themselves from their lease of the Manolas Building and enter CBD Plaza on Lot 7118 as tenant of the Church. At all times material to this complaint Cridlands as legal advisors of the Church were aware of and privy to the details of the discussions and the outcome of the meetings.
41.      At all times material to this complaint Cridlands were aware that the following was the outcome of various meetings held between the Church and Manolas and Woolworths:

(a) Harris Scarfe did not take over the premises that were leased by Manolas to Woolworths.
(b) Woolworths and Manolas reached an agreement regarding the operation of the Old Shop.
(c) Woolworths agreed with The Church to be the anchor tenant at the CBD Plaza on Lot 7118. They also agreed to restrict their trading at the Old Shop to less than 1000 square metres.
42. Thereafter there were a number of meetings and discussions
and negotiations between Woolworths and the Church resulting
in an Agreement for Lease deed dated 4 August 2000 between
the parties.
43.      The Agreement for Lease deed dated 4 August 2000 between the Church and Woolworths was drafted and prepared by Cridlands including the Indemnity Clause no: 14 therein.
44.      At all material times during the meetings, discussions and negotiations referred to above, Cridlands acted for and advised the Church. At all material times during the said period Cridlands continued to act for Manolas, Woolworths and the Church.
45.      Cridlands also prepared the Lease between Woolworths and the Church dated 17 October 2001 including clause 5.5 [in] relation to a restriction on trade by Woolworths which is as follows:
‘The tenant must operate the Premises as a Supermarket in
a first class and efficient manner and shall not itself
operate or be concerned in the operation of or permit any
Related Corporation to operate or be concerned in the
operation of supermarket premises 1000 square metres or
more in size within two (2) Kilometres of the Premises.’

46. Woolworths has continued to operate at the Old Shop a supermarket premises that is 1000 square metres or more within the 2 kilometre radius of the new store in violation of the above clause 5.5.

47.      Cridlands failed or neglected to clearly define the words ‘Supermarket premises’ in the Lease Deed dated 17 October 2001.
48.      Cridlands knew or ought to have known that the failure to do so would lead to or have reasonably expected that the words ‘Supermarket premises’ being open to a different interpretation that would be detrimental and prejudicial to the Church but favorable to Woolworths and to Manolas. Such an event was foreseeable.
49.      On 12 April 2002, the Church raised the issue of conflict of interests with [practitioner] and [practitioner] of Cridlands who advised the Church that they were not in a situation of conflict of interest. They, also advised the Church that:

(a)

It was not worthwhile to pursue Woolworths regarding the breach of the lease, as it would be difficult to quantify damage in dollar terms.

(b)

There was, therefore, no gain in pursuing a claim for damages for breach of contract of the Lease, against Woolworths.
Liquor Licence:
50.      Prior to the execution of the Lease Deed dated 17 October 2001 there were numerous discussions between the Church and Woolworths regarding ‘Liquor Licence’ for the New Store.
51.      The outcome of those discussions and negotiations was that there would be only one Liquor Store within the Darwin Central Business District which, was agreed between Woolworths and the Church to be located in the CBD Plaza on Lot 7118. Woolworths agreed to transfer the liquor licence from the Old Store to the CBD Plaza.
52.      At all material times Cridlands was aware of those negotiations and discussions between the Church and Woolworths.
53.      Cridlands failed or neglected to protect the interests of the Church by not stipulating in the Lease Deed a clause that the sale of liquor should be conducted only from the CBD Plaza. That Woolworths shall make every endeavour to transfer the existing liquor licence shall be transferred to the CBD Plaza from the Old Shore forthwith.

54. In or around late 2002 Cridlands represented Woolworths
before the Liquor Licence Tribunal seeking to have a totally
different liquor licence from Stuart Park transferred to the CBD
Plaza.
55.      At all material times Cridlands was aware that the new store was built to Woolworths specifications for a liquor store to operate therein.
56.      The issue of conflict of interest was once again raised with [practitioner] and [practitioner] of Cridlands who advised the Church that there was no conflict of interest and in their view there was no monetary gain that would result.
57.      The CBD Plaza belonging to the Church has suffered and continues to suffer loss of revenue as a result of Woolworths not operating a Liquor Outlet within the CBD Plaza by Woolworths failing and or refusing to transfer the Liquor Licence from the Old Shop to the CBD Plaza.
Please contact the writer should you require further clarification of the matter.
I look forward to hearing from you in due course.”

On 13 August 2003 the practitioner filed with the Law Society a document
headed “Complaint against a legal practitioner” under seal of the Church
(“the Complaint”). The Complaint was made in the name of the Church and

specified Cridlands, together with three named practitioners, as the firm and
practitioners against whom the Complaint was made. The nature of the
complaint was identified as “Conflict of Interest” and, in a section headed
“Particulars of a complaint”, reference was made to the “letter of complaint”
dated 2 July 2003. In a paragraph headed “Action required (Please state
what action you consider should be taken by the Law Society or the
practitioner)”, the following words appeared:
“Investigate the complaint. Admonish the practitioners and fine them.”

By letter of 19 August 2003 to the practitioner, the Law Society

endeavoured to summarise the facts alleged by the Church and sought
additional information. The practitioner responded by letter of
15 September 2003. That response included the following paragraph

concerning use of confidential information and subparas (c), (e) and (f) were subsequently part of the particulars of the charge against the practitioner for professional misconduct:

“5. Commercially Sensitive Information:

(a) Cridlands were privy to all lease and allied negotiations between the Church and Woolworths and their competitor Coles in relation to becoming anchor tenants at the CBD Plaza which took place prior to the Development of Lot 2280.
(b) Cridlands were also aware of all negotiations over the rental rates, periods of discount, fit out arrangements with Specialty Shop Tenants at the CBD Plaza.
(c) Cridlands used the above information to R Is’ advantage by securing Coles as the anchor tenant in the Mitchell Street Development Centre at Lot 2280. This information was commercially sensitive information that allowed R I to negotiate with Coles and obtain a financial advantage. It also allowed R I to maximize the rental it obtained from Coles. [my emphasis]
(d) By bringing Coles into the Darwin CBD it created competition between the two supermarkets that resulted in the loss of revenue to the Church which has a rent based also on the Turnover of Woolworths.
(e) Cridlands also used the information to obtain a personal advantage for themselves to negotiate and obtain a commercial lease of office floor space within Mitchell Street Development Centre at Lot 2280. [my emphasis]
Alternatively

(f) By providing this commercially sensitive information to R I Cridlands were able to obtain a personal advantage for themselves by negotiating and obtaining a commercial lease of office floor space within Mitchell Street Development Centre at Lot 2280. [my emphasis]
(g) See also Paragraph 33 of my letter dated 2 July 2003.” [my emphasis].

On 6 October 2003 the Law Society wrote to the practitioner enclosing a

copy of a letter to the Law Society from one of the practitioners named in
the Complaint seeking particulars of the conduct of the individual
practitioners alleged to have constituted unprofessional conduct. The Law
Society requested that the practitioner provide particulars:
“Please provide specific instances of [A’s] conduct which the Church alleges
breach the Professional Conduct Rules. You will also need to do this in relation
to the other two named practitioners.”

In addition the letter referred to advice from A that instructions were

received by A from Reverend Hall and requested that a statement be
provided by Reverend Hall concerning the conduct of A and whether he had
raised any issue of conflict or other complaint with A.

[10] The practitioner responded by letter of 20 November 2003:

“Re Complaint against [B, C] and [A]
I refer to your letter dated 6 October 2003 and am instructed to respond as follows:

1. Although the original complaint is made against the firm Cridlands it was
the individual practitioners that committed some or all of the breaches
complained of and further explained in my letters dated 2 July 2003 and
15 September 2003. These practitioners have been named in the
complaint lodged by the church on 13 August 203.
[B]:
2. [B] was the Supervising Partner who had carriage and conduct of the
Church’s matters at all relevant times. Each and every allegation made
in the complaint dated 2 July 2003 was committed by [B]. Similarly the
conduct setout in my letter dated 15 September are attributed to [B].
[my emphasis]
3. On 1 March 2002 the Church wrote to [B] regarding the conflict of interest by Cridlands acting for Woolworths as well as the Church and requested a full disclosure of its dealings with Woolworths in regard to the Church. [B] and [C] advised the Church that there was no conflict of interest. The letter dated 1 March 2002 is attached.

[A]:

4.

[A] was a Senior Associate at Cridlands at all relevant times and as such [A] was privy to and was fully aware of the firm’s clients including the fact that the firm had acted and alternatively continued to act for Woolworths and Manolas. [A] was aware that the interests of the Church conflicted with the interests of the other two parties and vice versa.

5.

[A] acted on behalf of the Church with respect to Lot 7118 the CBD Plaza. [A] was involved with the matter up to about March 2001. The specific instances of conduct attributed to Cridlands is to be attributed to [A] until [A] ceased … involvement with the file. [my emphasis]
6. [A] was involved in preparing the Agreement to Lease and Lease Deed
between the Church and Woolworths. [A] was also involved with the file
and took part in the meetings and negotiations that took place between
the Church, Woolworths, Manolas and Harriscarfe.

7.

My instructions from Rev Gale Hall are that during dealings with [A, A] did not raise the issue of conflict of interest with him. [A] is guilty of the conduct set out in paragraphs A to L and the particulars set out in paragraphs 20 to 57 with the exception paragraph 33, 49 and 56 in my letter dated 2 July 2003. [A] is also guilty of the conduct set out in paragraphs 5(a) and 8 of my letter dated 15 September 2003.

8.

During [A’s] relationship with Rev Hall it appeared that he was getting good advice from [A]. This is, however, questionable in the light of the conflict of interest that was present at all times but never revealed to Rev
Hall or the Church. [A] has a conscience of [A’s] own and ought to have
informed the Church and its representatives of the nature and
implications of the conflict of interest. [A] never did. In view of the
underlying conflict of interest any relationship [A] had with Rev Hall
and the Church was fundamentally flawed.

9.

[B] and [A] sent a letter dated 8 February 1999 requesting the Church to obtain independent legal advice regarding one aspect of the Lease to Woolworths admitting that the interests of the Church conflict with Woolworths and Manolas. The letter dated 8 February 1999 is attached.
[C]:

10.

[C’s] carriage and conduct of the matters relating to the Church commenced after [A’s] involvement with it ceased. [C] was at all relevant times a Senior Associate at Cridlands and as such [C] was privy to and was fully aware of the firm’s clients including the fact that the firm had acted and alternatively continued to act for Woolworths and Manolas. [C] was aware that the interests of the Church conflicted with the interests of the other two parties and vice versa.

11.

[C] acted on behalf of the Church with respect to Lot 7118, CBD Plaza after March 2001. [C] was also involved with the matter relating to Lot 2280. Specific instances of conduct attributed to Cridlands is to be attributed to [C] during her involvement. [my emphasis]

12.

[C] provided legal advice to the Church with respect to the specialty shops leases within the CBD Plaza in Lot 7118. [C] was therefore privy to commercially sensitive information set out in paragraph 5(b) to (g) in my letter dated 15 September 2003. I understand that [C] was not actively involved in the case when the Agreement to Lease and Lease Deed was prepared. However, [C] became fully aware of the facts and circumstances of the case when [C] assumed carriage of the matter but failed to advise the Church of the conflict of interest between [the] clients. In fact [C] advised the Church that no conflict existed.
Rev Gale Hall left the Church in December 2000. He is not privy to the developments that took place after his Departure especially those leading up to this complaint. I have spoken to Rev Hall and he informs me that [A] never raised issues regarding conflict of interest with him at all. Please let me know
whether you still require a statement from Rev Hall.”

By letter dated 21 November 2003 to the Law Society, Cridlands denied any
inappropriate or improper conduct and set out particulars of their
involvement in the commercial matters identified in the practitioner’s letter

of 2 July 2003. Cridlands also asserted that the practitioner was alleging
that Cridlands had committed fraud:
“At paragraph 5 of Mrs McLaren’s letter of 15 September 2003 and at paragraph
33 of her letter of 2 July 2003 on behalf of the Uniting Church she alleges that
Cridlands have committed fraud.”

[12] Cridlands also denied the misuse of privileged and confidential information:

“The Uniting Church has claimed Cridlands used confidential and commercially
sensitive knowledge and information, which it gained in its capacity as lawyers
for the Uniting Church, that was prejudicial to the interests of the Uniting
Church.
…
Those allegations are totally denied and are without any factual basis
whatsoever.”

[13] Cridlands sought from the practitioner material supporting the assertions:

“Both the Uniting Church and Mrs McLaren must be asked to provide any
material in support of these defamatory and damaging assertions of fraudulent
conduct.”

Cridlands’ letter of 21 November 2003 was provided to the practitioner who

responded by letter of 10 May 2004. In essence the practitioner continued
to maintain the assertions set out in previous correspondence but
specifically denied that the Church was alleging that the practitioners had
committed fraud. Referring to the passage in Cridlands’ letter of
21 November 2003 concerning fraud, the practitioner wrote:
“Denied, not true.
It is false to say that the Church alleges that the Relevant Practitioner(s)
Complained Against committed fraud in at [sic] paragraph 5 of the letter dated
10/9/2003 from Mrs A McLaren Barrister and Solicitor and paragraph 33 of her
letter dated 2/7/2004 or at all.”

Although the denial referred to letters of 10 September 2003 and 2 July
2004, it is apparent that the practitioner was referring to her letters dated
15 September 2003 and 2 July 2003.
The practitioner’s letter of 10 May 2004 concluded with the statement that
she was “instructed to request you to proceed with the complaint”.

[17] Correspondence then followed concerning the possibility of conciliation.

Included in that correspondence was a repetition of the assertion by
Cridlands that “Ms McLaren has effectively accused Cridlands of fraud”.
Cridlands specifically referred to par 33 in the letter of 2 July 2003 and
par 5(f) of the letter of 15 September 2003. Cridlands also noted that the
practitioner had not provided any evidence to support the assertions in her
correspondence.

Eventually the parties consented to conciliation of the Complaint by the
Church and that conciliation was successful. By letter of 12 July 2005 the
Law Society advised the practitioner that following the successful
conciliation, the Professional Standards Committee of the Law Society (“the Committee”) had “determined to dismiss the complaint” by the Church. The
letter enclosed a copy of the Determination by the Committee and a separate
letter advised the practitioner of rights of appeal.
The letter of 12 July 2005 from the Law Society to the practitioner also

advised the practitioner that the Committee was concerned that aspects of
the practitioner’s conduct in making the Complaint on behalf of the Church
might amount to a breach of the Professional Conduct Rules. The aspects
about which the Committee was concerned were explained as follows:
“We refer specifically to the allegations of fraud, as outlined below. The
Committee is of the view that whilst the allegations of conflict were rightly
raised, there appears to be no such justification for the allegations of fraud.
We accordingly seek a detailed explanation from you as to the basis for making the following complaints, which in our view amount to allegations of serious misconduct and/or fraud. We say this because the allegations assert that Cridlands used confidential and commercially sensitive information:

a. In breach of its ethical obligations to it’s client;
b. To achieve a benefit for a third party also a client of Cridlands;
c. To the detriment of the Uniting Church; and
d. To Cridlands personal advantage.

Specifically the particulars of these allegations are set out as follows:
By complaint 2 July 2003
At paragraph 15 it is alleged that:
‘At all material times to this complaint Cridlands used confidential and
commercially sensitive knowledge and information gained as legal
representatives of the Church to draft a development deed for and on
behalf of Randazzo Investments that was prejudicial to the interests of
the Church with respect to lot 2280 Town of Darwin.’

At paragraph 33 it is alleged that:
‘At all times material to this complaint Cridlands used and passed on commercially sensitive information relating to bids from prospective anchor tenants received in confidence on behalf of the Church for the CBD Plaza to Randazzo Investments for its development.’

By letter to Law Society of the Northern Territory 15 September 2003
At paragraph 5(c) it is alleged that:
‘Cridlands used the above information to RI’s advantage by securing
Coles as the anchor tenant in the Mitchell Street Development Centre at
Lot 2280. This information was commercially sensitive information that
allowed RI to negotiate with Coles and obtain a financial advantage. It
also allowed RI to maximise the rental from Coles.’

At paragraph 5(e) it is alleged that:
‘Cridlands also used the information to obtain a personal advantage for
themselves to negotiate and obtain commercial lease of office floor
space within Mitchell Street Development Centre at Lot 2280.’

At paragraph 5(e) it is alleged that:
‘By providing this commercially sensitive information to RI, Cridlands were able to obtain a personal advantage for themselves by negotiating and obtaining a commercial lease of office floor space within Mitchell Street Development at Lot 2280.’

We observe that your previous responses of 10 May 2004 and 25 August 2004 to the concerns raised that these allegations are tantamount to allegations of fraud, are simple denials and in the context of the allegations particularised above do not make sense. Without further explanation these denials are not considered sufficient in the context of your detailed complaints.
Whether the allegations are tantamount to fraud or serious misconduct they are
of a very serious nature which on the material before us do not have any factual
basis. Nor does it appear that there was any attempt by you, prior to lodging
the complaint, to raise these issues and seek a response directly from Cridlands.
We seek that you provide a detailed explanation setting out the basis upon which you made the allegations particularised above within thirty days of this date.”

On 5 August 2005 Cridlands wrote a letter of apology to the Church. The
letter maintained that Cridlands did not breach any legal or professional
duty to the Church, but apologised for not being able to act for the Church
in its proceedings against Woolworths and stated that Cridlands were

embarrassed by the creation of a document “that may have given the
appearance that Cridlands had advised parties other than the Church in
relation to the Lease from the Church over Lot 2280 Mitchell Street.”

On 31 March 2007 the Legal Practitioners Act was repealed (“the repealed
Act”) and the Legal Profession Act 2006 (“the LPA”) commenced operation.
Although there is no material before the Court to identify what was
happening with respect to the question of charges against the practitioner,
the hearing before this Court was conducted on the basis that as at 31 March
2007 the investigation of the question was continuing.
By letter of 31 October 2007 the Attorney-General for the Northern
Territory consented to the laying of charges against the legal practitioner in
accordance with s 50(1A) of the repealed Act.
Charges and Response

The charges brought to the Tribunal were presented in a document headed

“Disciplinary Application - Charges for Professional Misconduct” dated
21 November 2007 and signed by the Chief Executive Officer of the Law
Society (“the Application”). The charges were expressed to be made
pursuant to s 496 of the LPA and reg 96A of the Legal Profession
Regulations 2007 (“the regulations”).
[24] The practitioner was charged with “professional misconduct”, but detailed
particulars were provided in the Application. It is a lengthy document more
in the nature of a pleading than particulars of a charge. As it is necessary to

refer to the particulars in some detail, a copy of the Application is annexed
to these reasons.

Although somewhat prolix, the Application clearly identified the basis of the

charge that the practitioner had been guilty of professional misconduct.
Three specific “allegations” made by the practitioner were identified and the
case for the Law Society as to the “meaning and effect” of each allegation
were specified. Further, the particular failures of the practitioner with
respect to each allegation were identified.

In summary, the Application gave the following particulars of the

“allegations” made by the practitioner and why the making of the allegations
amounted to professional misconduct:

• Paragraph 3 of the Application stated that the Complaint by the Church
dated 13 August 2003 incorporated the statements made in the
practitioner’s letter of 2 July 2003 and para 4 stated that two
“allegations” were made in that letter:

(i) The “first allegation” was that Cridlands, “when acting for a client
Randazzo Investments Pty Ltd (“Randazzo”) in drafting a deed
affecting the development by Randazzo of land in which [the Church] was interested (“the Mitchell Centre site”), had used
confidential and commercially sensitive knowledge and information
gained by it as the solicitors for [the Church] prejudicially to the
interests of [the Church].”
(ii) The “second allegation” was that Cridlands, “when acting for [the
Church] in relation to the development of land in which [the
Church] was interested (“the CBD Plaza site”) had used and
passed on to Randazzo, for use to Randazzo’s advantage in
respect of Randazzo’s development of the Mitchell Centre site, commercially sensitive information relating to bids received by [the Church] from prospective anchor tenants for the Woolworths
site.”

• Further details of the “second allegation” were found in the letter of
15 September 2003, “the substance of which was that the commercially

sensitive information in question related to the detail of lease
negotiations respectively between [the Church] and Woolworths, and
[the Church] and Coles, for a lease of retail premises at the CBD Plaza
site, which information was used to Randazzo’s advantage when Randazzo negotiated with Coles a lease of retail premises at the
Mitchell Centre site.” (Application para 5(a)).

• The “third allegation” was made in the letter of 15 September 2003,
“the substance of which was that Cridlands had secured for itself a lease
from Randazzo of commercial premises at the Mitchell Centre site
either by using the information referred to in [the second allegation] or
by providing that information to Randazzo.” (Application para 5(b)).
• The natural meaning and effect of the allegations were set out in
paras 6, 7 and 8 of the Application. As to the second and third

allegations, such meaning and effect was that Cridlands or the Cridlands
practitioners “had deliberately acted so that the commercial interests of
other clients were preferred to the commercial interests of [the
Church].”
• The natural meaning and effect of the third allegation was that
Cridlands or the Cridlands practitioners “had deliberately acted so that the commercial interests of … Cridlands itself [was] preferred to the
commercial interests of [the Church].

• The natural meaning and effect of each of the three allegations was:

(i) Cridlands or the Cridland’s practitioners “had engaged in
conduct that involved intentional and contumelious breaches of
their fiduciary obligations to [the Church].”
(ii)         Cridlands or the Cridlands practitioners “had deliberately

misused confidential information obtained by Cridlands in the
context of acting for and on behalf of [the Church].”
(iii)       Cridlands or the Cridlands practitioners “had deliberately acted
in a manner calculated to prejudice the interests of [the
Church].”
(iv)         Cridlands or Cridlands practitioners “were guilty of serious and
wilful professional misconduct.”

• The practitioner “well knew and intended” that each of the three
allegations “have the meanings and effects” alleged in paras 6 – 8.
(Application para 9).
• By letter dated 20 November 2003 the practitioner made “personal
allegations” against the Cridlands practitioners alleging that the
practitioners “committed the conduct the subject of each of the first,
second and third allegations” or such of the conduct contained in those
allegations as occurred when the practitioners were acting for the
Church. (Application para 10).
• At the time of making each of the three allegations and the personal
allegations, the practitioner:

(i)

“had not seen evidentiary material capable of supporting those allegations or any of them;”

(ii)

“did not reasonably believe that evidentiary material capable of supporting those allegations or any of them was available;”

(iii)

“had not obtained instructions from [the Church] to make those allegations or any of them;”
(iv) in the alternative, “had not obtained instructions from [the
Church] to make those allegations or any of them having first
advised [the Church] that those allegations should not be made
unless evidentially material capable of supporting them was
available.” (Application para 12).

• By making each of the three allegations and the personal allegations in
the circumstances identified in the Application:

(i)

“the practitioner substantially failed to meet the standards of professional conduct reasonably to be expected of a competent
legal practitioner and is guilty of professional misconduct;” and
(ii) “further or alternatively, the practitioner [was] guilty of professional misconduct in that she wilfully or recklessly failed,

when exercising the forensic judgments called for in the conduct
of the Complaint, to take care to ensure that allegations or
suggestions made by her on behalf of [the Church] … were
reasonably justified by the material then available to her
(contrary to rule 17.21 of the Rules of Professional Conduct and
Practice).” (Application para 13).

• From December 2003 the practitioner was aware that each of the three
allegations and the personal allegations were strenuously denied by
Cridlands and the individual practitioners and Cridlands regarded the
second and third allegations as allegations of fraud. (Application
para 14).
• Notwithstanding knowledge of those denials, and notwithstanding that
the practitioner had not seen evidentiary material capable of supporting
the allegations and did not reasonably believe that such material was

available and had not obtained instructions from the Church to maintain
the allegations, the practitioner continued to maintain each of the three
allegations and the personal allegations or failed to have them
withdrawn. In this maintenance and failure the practitioner was guilty
of professional misconduct. (Application paras 15 and 16).

On 28 February 2008 the practitioner responded in writing to the
Application (“the Response”). In essence she admitted the correspondence
and lodging the Complaint on behalf of the Church, but denied the natural meanings and effects alleged in the Application. Specifically as to paras 4 and 5 of the Application which set out the three allegations, the Response

stated they were “denied as to the ‘natural meaning and effect’ alleged” as
set out in the Application.

The Response also denied para 9 which asserted that the practitioner well
knew and intended that the allegations have such meanings and effects.
The Response admitted para 10 of the Application which contained the
“personal allegations”.
In her Response the practitioner denied the essence of the charge that she
had made each of the three allegations and the personal allegations without

seeing evidentiary material or believing evidentiary material was available
and without obtaining instructions or advising that the allegations should not
be made unless evidentiary material capable of supporting the allegations
was available.

Prior to the hearing before the Tribunal, a number of matters were admitted

by the practitioner. Of particular importance were admissions that at the
relevant times the practitioner did not have evidentiary material capable of
supporting the first and third allegations, the “further details” of the second
allegation or the personal allegations. The terms of the admissions were as
follows:

• At the time of lodging the Complaint, “the practitioner did not have any
evidentiary material capable of supporting allegations that Cridlands,
when acting for a client Randazzo in drafting a deed affecting the
development by Randazzo of land in which [the Church] was interested
(‘the Mitchell Centre site’), had used confidential and commercially

sensitive knowledge and information gained by it as the solicitors for
[the Church] prejudicially to the interests of [the Church] (‘the first
allegation’).”

• “At the time of forwarding the correspondence dated 15 September 2003 the practitioner did not have evidentiary material capable of supporting
the further details in respect of the second allegation, the substance of
which was that the commercially sensitive information in question related to the detail of lease negotiations respectively between [the Church] and Woolworths, and [the Church] and Coles, for a lease of

retail premises at the CBD Plaza site, which information was used to
Randazzo’s advantage when Randazzo negotiated with Coles a lease of
retail premises at the Mitchell Centre site (‘the further details’).”

•

“At the time of forwarding the correspondence dated 15 September 2003 the practitioner did not have any evidentiary material capable of
supporting a further allegation the substance of which was that
Cridlands had secured for itself a lease from Randazzo of commercial
premises at the Mitchell Centre site either by using the information

referred to in paragraph 4(b) of the application before the Disciplinary
Tribunal or by providing that information to Randazzo (‘the third
allegation’).”

• “At the time of forwarding the correspondence dated 20 November 2003 the practitioner did not have evidentiary material capable of supporting
any of the following allegations:

18.1 specifically that [practitioner] committed the conduct the subject
of each of the first, second and third allegations;
18.2 in substance that [practitioner] committed such of the conduct
the subject of the first, second and third allegations as occurred
prior to about March 2001; and

18.3 in substance that [practitioner] committed such of the conduct
the subject of the first, second and third allegations as occurred
after about March 2001.”
The Hearing

In view of the practitioner’s attack upon the reasons of the Tribunal, and her

contention that there was confusion as to the “allegations” that were said to
have been made without instructions and without an evidentiary basis, it is
necessary to consider the conduct of the hearing and to identify the primary
issues presented to the Tribunal.

In opening to the Tribunal, the Law Society advanced a case that a search of
the records of the Church and enquiries of people involved “found no

evidence to support the allegations that Cridlands had made any improper
use of commercially sensitive information to benefit themselves, Randazzo
or anybody else”, and that the person who conducted the search was
satisfied that “no-one from the church had given specific instructions” to
make the allegations. The Law Society also relied upon the admissions
made by the practitioner as to the absence of evidentiary material.

The case for the Law Society was presented in counsel’s opening on the
basis that the practitioner was guilty of professional misconduct because she
had alleged “serious misconduct, dishonesty [and] serious professional

misconduct” against Cridlands and the practitioners without being in
possession of a sufficient evidentiary basis for the allegations and without
specific instructions to make them. As to whether the allegations made by
the practitioner amounted to allegations of fraud, and as to what counsel
described as the “apparent defence” that fraud was not alleged, while

maintaining that the allegations amounted to assertions of fraud, counsel put
to the Tribunal that even if fraud was not alleged the allegations were of
serious professional misconduct and, therefore, came within the Professional
Conduct Rules.

The Law Society tendered the practitioner’s file and called two witnesses.
First, the General Secretary of the Church Synod who had searched the

records of the Finance and Property Services Committee. The relevant
minutes were tendered for the purpose of establishing the absence of any
resolution to make the Complaint or the “allegations”.

The second witness was a person who had previously held the position of
General Secretary of the Synod. He had been involved in the reconciliation

and had made himself familiar with the nature of the allegations contained
in the correspondence. He checked the records of the Church and was
unable to find any record of discussion of the matters raised in the
practitioner’s correspondence and, in particular, no reference to the conduct

that was the subject of the statements in paras 15 and 33 of the letter of 2 July 2003 or to concerns of that nature. Similarly, he did not find any
evidence in the Church files that Cridlands had used commercially sensitive
information to their own advantage or had passed confidential information
to Randazzo. As to a possible conflict of interest, the witness said:
“I was unable to find any documentation that we had that would say ‘Here’s a
serious conflict of interest with Cridlands and we should do something about it’.
I didn’t find anything specifically suggesting that there was any evidence on our
files that Cridlands had anything that would suggest there was a conflict of
interest.”

It appears to be common ground that contrary to the evidence of the second

witness, the Church records contained references to a possible conflict of
interest, but the witness had not seen those records.

The witness also spoke with Mr John McLaren, the Chairman of the Finance

and Property Services Committee and the Secretary of that Committee,
Ms Julie Watts.

At the conclusion of the evidence, counsel for the practitioner sought an

opportunity to obtain instructions as to whether the practitioner wished to
call evidence. The following morning counsel advised the Tribunal that no
evidence would be called.

In written closing submissions to the Tribunal, counsel for the Law Society
identified the specific statements in the correspondence which were
identified in the Application as the first, second and third allegations. She
also referred to the specific terms of the letter of 20 November 2003 which introduced the “personal allegations”. Relying on admissions made by the
practitioner as to the absence of evidentiary material, counsel put to the
Tribunal that on the basis of the admissions alone the practitioner had been
guilty of professional misconduct.
In respect of the allegation against each of the individual solicitors of

obtaining a personal advantage for the individual solicitor and partners by
securing a lease through direct use of confidential and commercially
sensitive information, counsel characterised the allegation as one of “gross
professional misconduct involving actual dishonesty”. The written
submissions identified the features of the evidence from which counsel
urged that the Tribunal could infer that the practitioner did not have
instructions to make the specific allegations against the individual
practitioners.

The oral submissions of counsel for the Law Society followed the course of

written submissions. In addition, counsel relied upon the failure of the
practitioner to give evidence and the election not to call other evidence, for
example, the practitioner’s husband who was the Chairman of the
Committee. Mr McLaren was recorded in the practitioner’s file as having
given instructions concerning the Complaint and had been present
throughout the proceedings.

The transcript suggests that a written outline of closing submissions was
provided by counsel for the practitioner. The parties have not been able to
locate a copy of that document. In oral submissions as to the merits of the

charges, counsel for the practitioner said very little. He maintained that the
document under seal established the existence of instructions to make the
Complaint and submitted that the language of the correspondence fell short

of an allegation of fraud. The primary attack was addressed to the section
relied upon in laying the Application, the question of privilege and the
inapplicability of r 17.21 of the Rules of Professional Conduct and Practice.
Counsel also asserted that there was confusion as to the precise charges

being faced by the practitioner.
Ground 1
“The Tribunal erred in fact and law in holding at [27] that [the
practitioner] acted without authority in making the complaint to [the
Law Society].”

In support of this ground, counsel for the practitioner submitted that there

was confusion in the proceedings as to the “allegations” made by the
practitioner which were the subject of the charge of professional
misconduct. As a consequence, urged counsel, the parties presented
different cases to the Tribunal that were like “ships passing in the night”.
Counsel contended that this confusion arose because paras 4 and 5 of the
Application misquoted the statements made in the letter of 2 July 2003 and
the meaning and effect set out in paras 6 – 8 of the Application

misrepresented the contents of the correspondence from the practitioner to
the Law Society. The practitioner denied making allegations of fraud and it
necessarily followed that she did not have instructions to make such
allegations. The Tribunal did not address itself to the correct question.

I do not agree with these contentions. First, para 4(a) of the Application

accurately conveyed the substance of the assertion made in para 15 of the
letter of 2 July 2003. This assertion was specifically identified as the “first
allegation”.

Secondly, para 4(b) of the Application correctly stated the substance of the

assertion in para 33 of the letter of 2 July 2003, as particularised in the
letter of 15 September 2003. This assertion was specifically identified as
the “second allegation”.

Thirdly, para 5(b) of the Application correctly stated the effect of paras 5(e)

and (f) of the letter of 15 September 2003. The substance of the assertions
made in those paragraphs of that letter was specifically identified as the
“third allegation”.

Fourthly, the essence of each of the three allegations, and the attribution of
the conduct at the heart of each of those allegations to the individual
practitioners, was stated in the Application.
Fifthly, the paragraphs from the correspondence that were said to contain

each of the three allegations were identified in the course of the
proceedings.

Sixthly, from the outset of the hearing the Law Society presented its case on
the basis that each of the three allegations, and the personal allegations,

were allegations of serious professional misconduct made without
instructions and without an evidentiary basis. This was stated as being the
case for the Law Society regardless of whether the allegations were properly
characterised as allegations of fraud.

The description in the Application of the meaning and effect of each of the

specific allegations did not lead to any confusion. The practitioner could
not have been under any misapprehension as to the specific statements in her
correspondence that were the subject of the three allegations identified in
paras 4 and 5 and attributed to the individual solicitors by her letter of
20 November 2003. Nor could she have been under any misapprehension
that, regardless of whether the statements amounted to allegations of fraud,
they were said to be allegations of serious professional misconduct which
the Law Society asserted were made without instructions when the
practitioner was not in possession of evidentiary material to support the
statements. This was not a case of ships passing in the night. It was a case of the practitioner in her slow and leaky vessel endeavouring unsuccessfully to slip past the opposing ship in order to avoid being sunk by its heavy fire.

In the reasons for decision, the Tribunal correctly identified each of the
individual statements specified in the Application as the three allegations by
quoting from paras 15 and 33 of the letter of 2 July 2003 and from the

relevant paragraphs of the letter of 15 September 2003. Having quoted the
actual words of the relevant parts of those letters, together with reference to
the relevant sections of the letter of 20 November 2003 attributing the
conduct to the individual practitioners, the Tribunal correctly noted that
“these allegations” were set out in paras 4 and 5 of the Application and that
the meaning to be derived from “those allegations” was contained in paras 6
– 8 of the Application. The Tribunal then correctly summarised the essence
of the allegations in the following terms:

“12. The essence of the allegations is that the three practitioners used information obtained from the Uniting Church in Australia to the advantage of another client and of themselves. …
The allegations by [the practitioner] are that the three practitioners used information gained in the course of acting for a client to the benefit of themselves and another party and to the disadvantage of the client. …”

As to the characterisation of the allegations, the Tribunal correctly observed
that they were “serious allegations that the practitioners contravened the
fiduciary duty owed to their client, the loyalty which they are expected to
demonstrate to their client (whether then currently acting for them or not)
and their obligations to the legal profession to act in a manner in keeping with the honour of the profession.” The Tribunal then noted that the Law Society argued that the allegation of use by the three practitioners of
information for their benefit amounted to an allegation of fraud.
In my opinion, there was no confusion when the Tribunal spoke of the

“allegations”. The Tribunal was speaking of the statements made in the
relevant paragraphs of the practitioner’s correspondence as accurately
reflected in the description of the three allegations contained in paras 4 and
5 of the Application. In the following passage the Tribunal distinguished
the “allegations” from the issue as to the meaning to be given to the
allegations:
“[T]he response raises issues with the meaning to be derived from the
allegations (the meaning described in paragraphs 6, 7 and 8 of the Disciplinary
Application), [and] denies that the respondent intended the allegations to have
the meaning so derived”.

“Authority” – “Instructions”

Ground 1 includes a complaint that the Tribunal erred in finding that the

practitioner acted “without authority” in making the “complaint”. It appears
that notwithstanding the presentation of the case on the basis that the
practitioner did not have instructions to make each of the three allegations,
the distinction between instructions to make each of the three allegations

and authority to make the Complaint to the Law Society dated 13 August
2003 became blurred.

In the following passage, the Tribunal correctly identified the case for the
Law Society with respect to the obtaining of instructions:

“17. The case against the [practitioner] was, as Ms Kelly SC, counsel for the
Law Society, pointed out, a case in the negative. What the Law Society
sought to prove was that at the relevant time of making the complaint the
respondent did not have instructions from the Uniting Church in
Australia to make the allegations contained in the complaint against the
three practitioners …”

In that passage, the Tribunal was referring to the “allegations” contained in
the Complaint to the Law Society, namely, the three allegations identified in
paras 4 and 5 of the Application. The Tribunal was treating the third

allegation found in para 5(c) of the letter of 15 September 2003 as part of
the Complaint dated 13 August 2003 because the letter of 15 September
2003 was by way of particulars of matters found in the letter of 2 July 2003

which had been incorporated into the Complaint. In this passage the
Tribunal correctly identified the case for the Law Society that the
practitioner did not have instructions to make “the allegations” contained in
the Complaint.

Immediately after this passage, the language of the Tribunal moved from a
question of “instructions” to make the allegations to a question of “authority
to make the complaints”:

“18. To support the allegations that the respondent had no authority to make
the complaints and had no evidence upon which to support those
complaints, the Law Society called two witnesses.”

After referring to the evidence of the two witnesses, and to the failure of the
practitioner to give evidence or call other witnesses, the Tribunal returned to
“allegations” when it addressed itself to the question in the following terms:

“22. The question of whether the respondent had authority from the Uniting
Church to make the allegations against Cridlands and the three
practitioners remains unanswered. The respondent chose to either deny
or not admit that she did not have the authority of her client to make the
allegations contained in the complaint.”

The Tribunal then discussed the affixing of the Common Seal to the
Complaint of 13 August 2003. After observing that it was not known

whether those who witnessed the seal had the “authority” of the Church to
make the “complaint against the three practitioners or against Cridlands”,
and that it would have been an easy matter to call the signatories, the
Tribunal observed that it had not been “invited” by the practitioner to find
that she relied upon the fact of the seal as “evidence of her instructions”.
The Tribunal then used the failure to rely upon the execution under seal or
to call evidence as “persuasive indicia that the respondent could not
establish that she had the authority of her client to make the allegations in
the complaints”. The Tribunal continued:

“25. However, can the Tribunal be satisfied that the respondent acted entirely
by herself in making the complaint? It seems that others connected with
the Property Trust witnessed the application of the seal to the complaint.
In addition it seems moderately clear to the Tribunal that the
respondent’s husband, Mr John McLaren, the chairman of the Property
Trust, was interested in making the complaint, as his letter to the Law
Society demonstrates.
26. The Tribunal is left in an unsatisfactory position on this question. The
Tribunal might find that the respondent acted entirely on her own
volition, as unlikely as that might seem. Alternatively, the Tribunal
might accept that there is indirect evidence of the involvement of some
of those who held positions in the Property Trust apparently instructing
the respondent to make the complaint. For instance, there are entries in
the respondent’s file that she was taking instructions from John McLaren.
…
Without the evidence of John McLaren or the respondent on this
question, the Tribunal cannot be sure whether the instructions of John
McLaren carried the authority of the Uniting Church or the Property
Trust. The unexplained absence of that evidence combined with the lack
of any evidence in relation to the implications of using the Property
Trust seal suggest that the respondent was aware that she was acting
without the authority that she required to make the complaint when she
did so. [my emphasis]
27. The Tribunal must resolve this question against the respondent and find
that although there appeared to have been some involvement of office
holders of the Property Trust, notably John McLaren, and the witnesses
to the affixing of the common seal all of whom may have provided some
instruction or encouragement to the respondent to make the complaints,
there is insufficient evidence to show that the respondent was acting with
the authority of the Property Trust to make the complaints against the
three practitioners, and further, that she knew that to be the case.” [my
emphasis]

It is in these passages that, in my opinion, error occurred. It was necessary
to maintain a distinction between the question of instructions to make each

of the three allegations and instructions to lodge the Complaint with the Law
Society. Further, the question of authority to affix the Church seal to the
Complaint is a separate question from whether instructions were given to the
practitioner to file the Complaint. In the passages to which I have referred,

the Tribunal failed to maintain these distinctions and concentrated upon
whether the instructions of Mr McLaren “carried the authority” of the
Church, that is, whether the seal was affixed with the authority of the
Church.

The question whether the seal was properly affixed with the authority of the
Church was not raised in the course of the hearing. Nor was it suggested
that the instructions of Mr McLaren did not carry the authority of the
Church. In the only discussion that occurred concerning the affixing of the

seal, in response to a suggestion by the Chairman of the Tribunal that the
presence of the seal was capable of supporting an inference that the Church
gave instructions to lodge the Complaint and intended that it be a Complaint
concerning the matters raised in the letter of 2 July 2003, counsel for the
Law Society accepted that proposition in a “formal sense”. Counsel argued,
however, that the presence of the seal was not sufficient “to say this that
someone from the church actually had their attention drawn to the fact that
there were these particular paragraphs making particular accusations of
dishonest conduct against practitioners and then said yes, okay, go ahead”.
Counsel submitted that it would be necessary for instructions to exist to
make “those particular allegations as distinct from a general complaint”.
Counsel then identified the essence of the case for the Law Society that such
instructions were not given:
“And the likelihood is that that didn’t occur for all the reasons that I’ve just
outlined. If there is no evidence in the church files to support those allegations
why on earth would anybody instruct her to make them as distinct from saying
yeah, yeah, the letter looks fine go ahead.”

It is clear from the transcript that counsel for the Law Society was drawing a
distinction between instructions to file a “general complaint” with the Law
Society and instructions to make the specific allegations found in paras 15

and 33 of the letter of 2 July 2003. In subsequent discussion, counsel
accepted that the file documentation and order of correspondence left open
the inference that there were instructions to move along the path of a
complaint about a conflict of interest. Counsel again drew a distinction between a general complaint about a conflict of interest and the specific
“accusations” found in paras 15 and 33 of the letter of 2 July 2003.

As this summary demonstrates, there was no discussion in the hearing and

no issue raised concerning the authority of Mr McLaren to give instructions.
Nor was any issue raised as to the authority of the signatories to affix the
seal on behalf of the Church. In these circumstances, the evidence before
the Tribunal was to the following effect:

• There was reference in the files to a possible conflict of interest affecting
Cridlands.

• Mr McLaren was the Chairman of the Church Property Trust.
• Mr McLaren gave instructions to the practitioner in respect of “drafting
complaint to Law Society”.

• The Church seal, applied with two signatories, one of whom was
Ms Watts, was affixed to the Complaint to the Law Society of 13 August
2003.

• The Complaint incorporated the letter of 2 July 2003.
• There was no evidence to suggest that Mr McLaren did not have the
“authority” of the Church to give instructions to the practitioner in
connection with a complaint to the Law Society about Cridlands and a
conflict of interest.
• There was no evidence that the seal was not affixed to the Complaint
with the authority of the Church.

• There was no evidence as to whether Mr McLaren or anyone who gave
instructions to the practitioner appreciated the significance of the
particular statements found in paras 15 and 33 of the letter of 2 July
2003.

In my opinion there was no basis upon which the Tribunal could find that
Mr McLaren did not have the authority of the Church to give instructions to
lodge the Complaint with the Law Society and, therefore, no basis for a
finding that the practitioner did not have the authority of the Church to do

so. In the absence of evidence to the contrary, the Tribunal should have
presumed that the seal was affixed to the Complaint with the authority of the
Church. It would follow, therefore, that the Tribunal should have found that the Complaint was filed with the authority of the Church. At the least, the
burden resting upon the Law Society to prove to the contrary had not been
discharged.

In these circumstances, in my opinion the Tribunal erred in concluding that
the practitioner did not have the “authority” or instructions of the Church to
lodge the Complaint with the Law Society.
Further, there appears to have been a reversal of the onus of proof. The
Tribunal concluded that there was “insufficient evidence to show that the

respondent was acting with the authority of the Property Trust”. This
conclusion came after the observation that the Tribunal could not be sure
whether “the instructions of John McLaren carried the authority” of the
Church. As I have said, there was no evidence of a lack of authority to file
the Complaint and the presumption of regularity attending the affixing of the

seal applied. The burden was on the Law Society to prove a lack of
authority and to rebut the presumption of regularity. In these circumstances,
in the absence of even a prima facie case concerning a lack of authority,
there was no burden, evidential or otherwise, resting on the practitioner in
this respect.

In addition, the Tribunal erred in finding that the practitioner was aware that

she was acting without authority in lodging the Complaint. There was no
evidence from which such a conclusion could be drawn. The evidence of the
provision of instructions by Mr McLaren and the affixing of the seal tended
to establish otherwise. Again, it appears there was a reversal of the onus of
proof.

In different passages, the Tribunal spoke of instruction or authority to make

“the complaint” and “the complaints against the three practitioners”. It is
unclear whether the Tribunal was intending on each occasion to refer to the
Complaint lodged with the Law Society or whether, at times, it was
addressing itself to authority or instructions to make the three allegations specified in paras 4 and 5 of the Application and the personal allegations.

As I have said, the evidence failed to establish a prima facie case that there

was no authority or instruction to lodge the Complaint with the Law Society.
The Law Society contended that instruction to make a “general complaint”
about conflict of interest did not necessarily include instruction to make the
three allegations. However, although there was no positive evidence that
those instructing Ms McLaren and affixing the seal were aware of the

contents of the letter of 2 July 2003, it must be recognised that the seal of
the Church was affixed to the Complaint which specifically incorporated the
letter of 2 July 2003.

The Law Society relied upon the absence of any record within the Church
files of any concern being expressed or of an evidentiary basis for the three

allegations that were the subject of the charge. As counsel put it to the
Tribunal, if the Church was not in possession of any information suggesting
misconduct of the type found in the three allegations, it is hardly likely that
instructions would be given to make those allegations (as opposed to making
a complaint about a conflict of interest). Counsel urged that in these
circumstances, the failure of the practitioner to give evidence or to call
evidence of the content of her instructions was significant.

There is a further matter of significance. The practitioner admitted that at
the time she lodged the Complaint with the Law Society, she was not in
possession of evidentiary material capable of supporting the first allegation
found in para 15 of the letter of 2 July 2003 that Cridlands used confidential
and commercially sensitive knowledge and information prejudicially to the interests of the Church. Secondly, the practitioner admitted that at the time
of providing the further details of the second allegation by letter of 15 September 2003, and in particular in para 5(c) of that letter, the
practitioner did not have evidentiary material capable of supporting the

allegation that Cridlands used commercially sensitive information to the
advantage of Randazzo. Thirdly, the practitioner admitted that at the time
of her letter of 15 September 2003 she did not have evidentiary material
capable of supporting the third allegation that Cridlands had used
information to the personal advantage of Cridlands.

In my opinion, in the absence of any evidence in the file identifying a

concern on the part of the Church about any of the three allegations, and in
view of the admissions to which I have referred concerning the absence of
evidentiary material with respect to the allegations, a prima facie case was
raised that the appellant did not have specific instructions to make those
particular allegations. This prima facie case exists notwithstanding that the
letter of 2 July 2003 became part of the Complaint to which the seal was

affixed. Paragraphs 15 and 33 contained serious assertions of misconduct
by Cridlands which took the allegations well beyond a mere conflict of

any of them;

(d) Alternatively to 12(c), had not obtained instructions from UCAPT to
make those allegations or any of them having first advised UCAPT that
those allegations should not be made unless evidentiary material
capable of supporting them was available.

[191] The findings of the Tribunal in relation to Count 1 were:

1. The appellant was not acting with the authority of UCAPT to make any
of the allegations and knew that to be the case.
2.       The appellant had not seen any evidentiary material capable of
supporting any of the allegations.
3.       The appellant knew that she was unable to produce any evidence in
support of the allegations.
4.       The personal allegations were “of a very serious breach of ethical
conduct amounting to fraudulent conduct”.
5.       The appellant “knew, or ought to have known, the seriousness of the

allegations against the practitioners and that those allegations amounted
to fraud”.
6.       The allegations were made to the Law Society on an occasion where at
the very least qualified privilege arose.
7.       “The obligation carried by a legal practitioner is to take care when making serious allegations of impropriety against another on behalf of a client. The obligation arises not only when making allegations or preparing pleadings in a court proceeding but in other situations where
the practitioner is protected by privilege and, indeed, in all
circumstances, to maintain standards of decency and fairness”.
8.       The appropriate standard of care is exercised by ensuring that there is
evidence upon which allegations might be made and in the light of that evidence by seeking specific instructions in relations to the allegations.
9.       The appellant breached the obligations set out in Clause 12 of the
Conduct Rules which reinforced the Tribunal’s view as to the care
which should be exercised. The breaches arose from findings that she had “failed to demonstrate that she had instructions from her client to

make the allegations against the three practitioners and her failure to
determine that there existed factual material to substantiate the
allegations”.
10.    It was unfair and improper for the appellant to “make the complaint” in

the light of finding (3), “and to have adopted that course in the
expectation that the allegations against the practitioners were serious
enough that to suggest a lesser penalty would somehow have the affect
of inveigling the Law Society to accept the allegations without proper
proof or for the practitioners to concede the allegations and reduced
penalty against whatever eventuality they have feared, such as the costs
to be incurred in defending the complaint” (sic).
11.    The ultimate finding was that the appellant’s conduct amounted to
professional misconduct within the meaning of s 465(1)(b) of the Legal
Profession Act 2006. The findings particularly referred to in this

regard are findings (1), (2) and (3), a finding that the appellant
“continued to make the allegations on three further occasions and in the
course of doing so expanded upon the conduct complained of”; a
further finding that “the allegations made by the respondent were to
accuse the three solicitors of a very serious breach of ethical conduct
amounting to fraudulent conduct. Lastly, the respondent had ample
opportunity to withdraw the allegations and chose not to do so”. The
alternative count was not addressed.

[192] Count 2 was a charge of professional misconduct by maintaining the first,

second and third allegations and the personal allegations or, failing to cause
those allegations to be withdrawn or qualified in the circumstances alleged
in paragraph 15 of the charge sheet. Alternatively, there was a charge in
identical terms to the alternative charge to count 1.
[193] Paragraph 15 of the charge sheet essentially repeated the allegations in
paragraph 12.
[194] The difference between count 1 and count 2 was that whereas count 1 related
to the making of the allegations, count 2 dealt with the maintenance of the

allegations after December 2003 in circumstances where Cridlands and the
Cridlands practitioners had denied the allegations.
[195] The Tribunal considered that this charge did not amount to a separate
instance of professional misconduct. Although the Tribunal did not, in so
many words, dismiss count 2, it may be assumed that this is what happened.
[196] Count 3 was in identical terms to count 2, but related to the period after
August 2004. It was dealt with by the Tribunal in the same way as count 2.
Jurisdiction of the Tribunal – ground 6
[197] A number of grounds of appeal were maintained in this Court. The first
ground attacked the jurisdiction of the Tribunal to hear and determine the
Law Society’s complaint. In order to consider this argument, it is necessary
to consider the transitional provisions of the Legal Profession Act and also
reg 96A of the Legal Profession Regulations made under the Act.
[198] As noted earlier, the investigation into the professional conduct of the

appellant was commenced by the Law Society of its own motion under s 46B
of the repealed Act. As the investigation was not completed by the
commencement date of the Legal Profession Act, s 745 of that Act required
that the investigation “be completed under the repealed Act as if it had not
been repealed”.
[199] The Law Society’s submission was that the investigation having been

completed, reg 96A authorised the proceedings to be brought in the
Disciplinary Tribunal.
[200] Counsel for the appellant submitted that reg 96A was invalid. Section 761

of the Legal Profession Act, it was submitted, only permitted a regulation to
be made where the Act did not make provision or sufficient provision for
transitional matters and the Act did not make sufficient provision. It was

submitted that the proceedings were invalidly instituted in the Tribunal
because conditions precedent to the taking of those proceedings as required
by s 473 of the Legal Profession Act had not been fulfilled.
[201] The relevant provisions of the Act and of reg 96A are set out in paras [110]
and [113] of the Chief Justice’s judgment and I will not repeat them.
[202] Clearly, the Tribunal had jurisdiction if reg 96A was valid. The argument
that it was invalid was that the Act did make provision or “sufficient
provision” to allow or facilitate the doing of anything (in this case, starting
disciplinary proceedings after completion of the investigation under s 46B

of the repealed Act). It was put that the provision in question was s 747,
which enables a complaint to be made and dealt with under the Act in
relation to conduct which happened before the commencement date of the
Act and which had not been the subject of a complaint under the repealed
Act. It was put that although the Law Society had conducted an
investigation on its own motion under s 46B(a) of the repealed Act, there
had been no “complaint” under the repealed Act.
[203] The appellant’s argument was that “complaint under the repealed Act”

referred to a complaint under s 46. It is clear that there was no complaint
under that provision.
[204] I do not consider that the expression “complaint under the repealed Act” is
confined to a complaint under s 46 of the repealed Act. First, it is to be noted that s 744 of the Act deals with a situation where “a complaint has been made to the Law Society under s 46 of the repealed Act” but an
investigation has not started before the Act came into force. In s 744, the
draftsman has used the expression “complaint… under s 46”, whereas the

expression “complaint under the repealed Act” is not so confined. Section
744 of the Act also deals with a direction to the Law Society by the
Attorney-General to conduct an investigation in circumstances where the
investigation has not started. In both of those situations, s 744(2) provides
that Chapter 4 of the Act applies, with the consequence that the
investigation of the complaint and any charges which arise from the

complaint must follow the procedure set out in the Act and each of the
charges would then be heard by the Tribunal. The difference in the
expressions used suggests that “complaint” is not to be given a confined
meaning.
[205] Secondly, the structure of the transitional provisions of Division 12 of the
Act supports this view. Section 745 is the only provision which specifically
deals with a situation where an investigation had already been started under
the repealed Act, but had not been completed. Under s 46B, an investigation
could have been the result either of a complaint under s 46, or as the result of a direction from the Attorney-General. In both of these situations, if the investigation was not started, Chapter 4 applies with the necessary

modifications (s 744). If a charge has already been laid before the old
Complaints Committee under s 50 of the former Act and the Complaints
Committee had not completed its hearing into the charge, the Complaints

Committee continues in existence and must hear and determine the
complaint (Section 745). Presumably, this would still be the case if the
Complaints Committee had not even begun its hearing.
[206] The other possibility, which is that there is an investigation underway which
has not been completed, is dealt with by s 745. This section applies to all
investigations, whether as the result of a formal complaint or a direction of
the Attorney-General or an investigation by the Society of its own motion.
Clearly, s 745 contemplated that when the investigation is completed the
Law Society could exercise its powers under s 49 of the repealed Act,
because s 745 specifically confers a right of appeal against a “decision of
the Society on the investigation…” One of the powers of the Society on

completion of its investigation is a power to lodge a charge, subject to
obtaining the consent of the Attorney-General under s 50(1A) of the
repealed Act if necessary, with the Complaints Committee. However, unlike
s 746(3), s 745 does not provide that the Committee still continues in
existence for this purpose. Nor is there the equivalent of s 746(5) providing
for a right of appeal from the Complaints Committee to the Supreme Court.
The absence of these provisions suggests that although the general powers

and functions under s 49 of the repealed Act continue to exist, there is no
power to lodge an appeal to the Complaints Committee because it no longer
had jurisdiction in that kind of matter; its jurisdiction was confined to

“completing a hearing in respect of a charge which had been lodged before
the date of the repeal” vide s 746. That being so, there was either no
provision, or at least, no sufficient provision, made to deal with that
situation and therefore reg 96A is valid.
[207] Section 759 provides that if a provision of the repealed Act continues to
apply under this Part, other provisions of the repealed Act continue to apply to the extent necessary to give effect to the continued provision. It could be

argued that provisions of the former Act relating to the jurisdiction and
existence of the Complaints Committee continued on to give effect to
s 47(1)(d) of the repealed Act. Presumably, the appeal provisions would
not, because they are not necessary to give effect to the continued provision.
Attractive as that may sound, it is difficult to conceive that it was intended
that the Complaints Committee would continue to have jurisdiction via such a circuitous route, particularly as the appeal provisions are not enlivened. It is one thing to keep a body which has jurisdiction once its jurisdiction has
been enlivened for the limited purpose of dealing with that matter; it is

another thing entirely to keep it in existence for the mere possibility that its
jurisdiction might be enlivened at some future time. Further, s 758(3)
suggests that it would apply to assist the Law Society’s argument as the
Chief Justice points out in para [130] of his judgment. The general policy of
the Act seems to be that, except in the limited circumstances to which s 746
refer, the Complaints Committee’s jurisdiction has come to an end.
[208] In conclusion, in my opinion, reg 96A was valid and the Tribunal did have
jurisdiction to entertain the complaint.
[209] Alternatively, if I am wrong in this conclusion and reg 96A is invalid, I

agree with the Chief Justice that by virtue of s 758(3) of the Act s 496
applies and the same result is achieved: jurisdiction is conferred on the
Tribunal.
Application to call evidence
[210] At the hearing before the Tribunal, the appellant did not give evidence or
call any evidence.

[211] The appellant sought to call evidence at the hearing of the appeal.

[212] The power to receive further evidence which was relied upon by the
appellant is Supreme Court Rule 83.20(2) which provides that “where an appeal is by way of rehearing, either party may call new evidence at the hearing”.
[213] Rule 83.20 is contained in O.83 which deals with “appeals to the Supreme
Court”.
[214] Rule 83.03 provides that O.83 applies to an appeal to the Court to the extent
that:

“(a) No other procedure is provided under the Acts; and

(b) It does not conflict with any other law now in force or in the future to
be in force in the Territory”.

[215]

“Acts” is defined to mean, “subject to r 83.03, any other Act of the Territory
or of the Commonwealth which provides for a procedure in relation to
appeals to the Court”.

[216] In my opinion, s 22 of the Supreme Court Act provides for the procedure on
the hearing of an appeal of this kind and therefore r 83.20 does not apply.
Therefore, there is no absolute right in the appellant to call further evidence.
The Court has a power to permit further evidence to be called under s 22(4)

of the Supreme Court Act. That power does not confer a right and must be
exercised judicially.
[217] A provision similar to s 22(4) was considered by the High Court in the case
CDJ v VAJ.3 In the light of that decision, the following propositions may be
stated:

1. The Court is not restricted by the common law rules which restrict the
power to "fresh evidence”.
2. There is nothing which restricts the power to those cases where the
object of the appeal is to set aside the decision of the Tribunal.
3. The power is remedial in nature. It is designed to facilitate the

avoidance of errors which cannot otherwise be remedied by the
conventional process. A subsidiary purpose is to allow the Court to
admit evidence to buttress the findings made by the Tribunal.

3 (1998) 197 CLR 172 at [50]-[57]; [100]-[103]; [186].

4.       The provision should be construed liberally.
5.       The Court is not merely exercising appellate jurisdiction because the

appeal is from the Tribunal and not a court. In this sense, the Court is
exercising original jurisdiction.
6.       Nevertheless, the distinction between original and appellate jurisdiction
should not be altogether obliterated.
7.       The power exists to serve the interests of justice.
8.       Further evidence would be not be admitted if it will not affect the
result.
9.       The Court will not admit the evidence merely because it is useful.
10.    Further evidence is more readily admitted if it will avoid a rehearing,
particularly if it is not in dispute.
11.    Further evidence will be more readily admitted where it relates to
events after the hearing.
12.    Where there is no need for a new trial or the extensive taking of

evidence, factors such as the availability of the evidence at trial and the
need for finality in litigation are likely to be more relevant to the
exercise of the discretion.
13.    The failure to adduce the evidence at the hearing is a variable factor,
the weight of which will depend on all the factors pertinent to the case.
14.    Where the evidence has been deliberately withheld, the failure to
adduce it will ordinarily weigh heavily in the exercise of the discretion.
15.    Where the evidence could have been discovered by reasonable
diligence, this may be of little significance.
16.    No invariable rule should be laid down or can be made concerning the
failure to call the evidence.

[218] In my opinion, the evidence should not be admitted in the exercise of the
Court’s discretion because it will not affect the result of this appeal for the

reasons which follow. The evidence could have been readily called at the
hearing before the Tribunal and no explanation has been given for it not
being called.
Grounds 1, 4 and 4A
[219] These grounds challenge the finding by the Tribunal that the appellant acted

without authority in making “the complaint” to the Law Society and knew
that to be the case. I agree with what the Chief Justice has said in his
judgment at paragraphs [44]-[51].
[220] In my opinion, there was no prima facie case made out against the appellant
that the appellant was not authorised to make any of the allegations and
knew that to be the case.
[221] The particulars of the complaint allege that the appellant had not obtained
instructions from UCAPT to make the allegations or any of them. There is
no allegation that she knew that to be the case.
[222] The Law Society called two witnesses from the Uniting Church. The first

was Mr James, the General Secretary of the Uniting Church Northern Synod.
Mr James produced the minutes of the Finance and Property Services
Committee. What relationship this Committee had to do with the Uniting
Church of Australian Property Trust, which appears to be an incorporated
body, is not clear. Mr James gave no evidence to explain the relationship.
[223] The next witness was Mr Davis, the General Secretary of the Northern
Synod of the Uniting Church. Mr Davis gave evidence that he was not the
General Secretary until 2005. His evidence was that he had no knowledge
of the letters written by the appellant until 2005. His involvement in the matter arose at a time when the complaints against the practitioners were going to conciliation. He searched “the records” and the minutes of the
Financial and Property Services Committee and could find no reference to
an allegation of the nature alleged in paragraph 15 of the letter of 2 July 2003. He gave evidence that Mr John McLaren was the Chairman of this
Committee and that Ms Julie Watts was the Secretary of that Committee as

well as the senior auditor. What relationship he had, or the Finance and
Property Services Committee had, to the UCAPT was not explained.
[224] The letter of 2 July 2003 begins with “I act for the Uniting Church Property
Trust”. When the Law Society rejected the letter, presumably because it

was not on the appropriate form, the appellant lodged a complaint on a form
supplied by the Law Society, which was apparently executed under the
common seal of the UCAPT, countersigned apparently by Ms Watts and a
Mr Rowland. No evidence was called by the Law Society from either
Ms Watts or Mr Rowland. Attached to the complaint was the letter of 2 July
2003. The form, in answer to the question requiring particulars of the

complaint states: “see letter of complaint dated 2 July 2003”. That letter
was attached to the formal complaint.
[225] No evidence was led that the formal complaint was not properly executed

under the common seal of the UCAPT. There was no evidence led that
Ms Watts and Mr Rowland had no authority to fix the seal to the formal
complaint. There was no evidence that the appellant had any knowledge one
way or the other about the authority of those persons to execute the formal
complaint under seal. In the absence of any such evidence, no inference
could be drawn that the appellant was not entitled to assume that the seal
had not been duly affixed and was not entitled to assume that the letter
attached to the complaint was not authorised by the UCAPT. No prima facie
case had been made out on that question in relation to the letter of 2 July
2003 or the complaint dated 13 August 2003. In my opinion, an inference
can be drawn that the UCAPT was aware of all of the complaints made on its
behalf and did nothing to correct the appellant if the complaints contained
errors or allegations which are not in accordance with the practitioners
instructions. I, therefore, do not think that a prima facie case was made out

about the question of the appellant’s authority or instructions.
[226] It is well established that in disciplinary proceedings of this nature, the
burden of proof is on the Law Society and the standard of proof is the civil

standard applying the Briginshaw test.4 The Tribunal drew an adverse
inference against the appellant because the appellant did not call any
evidence. The Tribunal said in relation to the formal complaint:
“It is not known whether those who witnessed the seal had the
authority of the Property Trust to make the complaint against the
three practitioners or against Cridlands. It should have been an easy
matter to call the signatories to give evidence concerning the
circumstances surrounding the fixing of the seal and whether that
step had been authorised by the Property Trust or some other official
of the Uniting Church. The Tribunal was not told of any practical
difficulties in calling that evidence. Nor was the Tribunal invited by
the respondent to find that she relied upon the fact that the seal of the
Property Trust was affixed to the complaint for evidence of her
instructions or to infer that because the seal was affixed it was
unnecessary for her to make further inquiries about her authority to
make the complaint.
The failure of the respondent to rely upon the execution of the
complaint under common seal or to call evidence to assert that she
had the authority of the Property Trust to make the complaints
against the three practitioners is persuasively indicative that the
respondent could not establish that she had the authority of her client
to make the allegations in the complaint.
However, can the Tribunal be satisfied that the respondent was entirely by herself in making the complaint? It seems that others connected with the Property Trust witnessed the application of the seal to the complaint. In addition, it seems moderately clear to the Tribunal that the respondent’s husband, Mr John McLaren, the

4 O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 220.

Chairman of the Property Trust, was interested in making the complaint, as his letter to the Law Society demonstrates.
The Tribunal is left in an unsatisfactory position on this question.
The Tribunal might find that the respondent acted entirely on her
own volition, as unlikely as that might seem. Alternatively, the
Tribunal might accept that there is indirect evidence of the
involvement of some of those who held positions in the Property
Trust apparently instructing the respondent to make the complaint.
For instance, there are entries in the respondent’s file that she was
taking instructions from John McLaren…
Without the evidence of John McLaren or the respondent on this question, the Tribunal cannot be sure whether the instruction of John McLaren carried the authority of the Uniting Church or the Property Trust. The unexplained absence of that evidence combined with the lack of any evidence in relation to the implications of using the Property Trust seal suggest that the respondent was aware that she was acting without the authority that she was required to make the complaint when she did so.
The Tribunal must resolve this question against the respondent and find that although there appear to have been some involvement of office holders of the Property Trust, notably John McLaren, and the witnesses to the affixing of the common seal, all of whom may have provided some instruction or encouragement to the respondent to make the complaints, there is insufficient evidence to show that the respondent was acting with the authority of the Property Trust to make the complaints against the three practitioners, and further, that she knew that to be the case.”

[227] I agree with the judgment of the Chief Justice that there is no basis for a
finding that the appellant acted without the authority of the UCAPT in
lodging the complaint letter of 2 July 2003. Further, I agree with his
Honour that there is no basis for a finding that the appellant acted without
the authority of the UCAPT in lodging the complaint under seal dated
13 August 2003 and that the findings of the Tribunal to the contrary reverse

the onus of proof. As to the letter of 15 September 2003 and the letter of
20 November 2003, there is no separate analysis by the Tribunal of the facts
concerning the authority of the appellant to lodge these letters. The
conclusion drawn is a compendious one which the Tribunal expressed this
way:
“… there is insufficient evidence to show that the respondent was
acting with the authority of the Property Trust to make the
complaints against the three practitioners, and further, that she knew
that to be the case.”

[228] Plainly, the Tribunal again reversed the onus of proof in relation to the
lodging and drafting of those letters as well, unless there was a prima facie
case. The so-called rule in Jones v Dunkel5 applies to proceedings before the Tribunal.6 However, before an inference can be drawn there must be a
prima facie case and the standard of proof overall must still pass the
Briginshaw test. The requirement to give evidence as expressed in Power

and other cases applies only when excuses are offered from the Bar Table.
Further, the rule in Jones v Dunkel only applies where the witnesses
concerned are not available or not reasonably available to the Law Society
and would be available to the appellant. Whilst it may be said that John
McLaren was in the appellant’s camp, bearing in mind that he was her
husband, no such inference can be drawn in relation to Julie Watts or to
Mr Rowland who were the signatories to the Property Trust’s seal.

5 (1959) 101 CLR 298.

6 Council of New South Wales Bar Association v Power (2008) 71 NSWLR 451.

[229] I do not agree that the admission that the appellant had not seen any

evidentiary material capable of supporting the allegations is a sufficient
basis upon which to draw an inference that the Law Society had made out a
prima facie case that she knew that she had no instructions to make any of
the allegations. Further, there was evidence in the appellant’s file that she
had sent copies of the letters to the UCAPT.
[230] I would therefore uphold ground 1 of the appeal. However, this does not

necessarily alter the result, as in order to succeed the appellant must also
establish the remaining grounds.
Ground 2
[231] This ground asserts that the Tribunal erred in fact and law in holding that
there was no basis for making the first allegation, the second allegation, the
further details of the second allegation, the third allegation or the alternative
form of the third allegation set out in the letters of 2 July 2003 and
15 September 2003.
[232] The actual finding was that “the appellant knew that there was no evidence
to substantiate either the initial complaint or the further particulars”. This
finding cannot be supported in this form because the case against the

appellant was limited to “the allegations”, not the whole complaint or the
particulars. However, the Tribunal later found that “those allegations
[presumably limited to the allegations complained of] were made without a

foundation in fact or any evidence that might lead to the establishment of
those allegations” and that “after the practitioner was clearly aware that
there was no foundation of fact or no evidence likely to establish the

allegations, the respondent continued to make the allegations on three
further occasions and in the course of doing so expanded upon the conduct
complained of”.
[233] It is very clear from the appellant’s file that the appellant had not obtained
any statement, signed or otherwise, from any witness to substantiate any of the relevant allegations, and had no other documentary evidence to support
them. Further, the appellant admitted that at the time of sending the letter

of 23 September 2003, she had no evidentiary material capable of supporting
the allegation that commercially sensitive information had been used by
Cridlands to the advantage of Randazzo; that she did not have any

evidentiary material capable of supporting an allegation that Cridlands had
used confidential information to assist them in obtaining a lease of the
office premises at the Mitchell Centre; and that she did not have any
evidentiary material to support the same allegations against the three
practitioners concerned.
[234] Counsel for the appellant submitted that the Tribunal erred in finding that
there was no basis for the making of the allegations because it was an

available inference arising from the fiduciary duty owed by Cridlands to its
various clients to use the information that was alleged. I take this to mean
that where a practitioner serves different clients in the same matter, there is
an obligation to make full disclosure to all clients.7 Therefore, so the
argument went, it was an available inference that because Cridlands were
acting for Randazzo, any information it received from the UCAPT was
required to be disclosed to Randazzo.
[235] However, as Mr Walsh QC for the Law Society submitted, there was no

evidence that the appellant drew any such inference, or that this was the
evidentiary basis upon which she relied. Furthermore, there were a number
of possible explanations which would have had to have been considered
before such an inference could have been drawn. For example, Cridlands
may have informed Randazzo of the conflicting duties, and obtained an
agreement from that client that it would not have to perform the full duties
of disclosure.8 Further, the matters upon which Cridlands were acting for
Randazzo may not have required any disclosure at all if the matters which it
undertook bore no relationship to the interests of the UCAPT.
[236] In relation to the allegation concerning the use of confidential information
to obtain the lease for its own premises in the Mitchell Centre, it was
submitted likewise that this was an available inference from information derived by Cridlands from its instructions from UCAPT. However, there

was no evidence that the appellant drew any such inference; nor was there in
fact any evidence from which she could have drawn such an inference. The
facts asserted by the appellant, at the highest, would not have supported

7 Clark v Barter (1989) NSW Conv R 55-483 at 58,504 per Clarke JA.

8 Moody v Cox & Hatt [1917] 2 Ch.71 at 81.

such an inference and any such inference was in my opinion entirely
baseless.
[237] Counsel for the appellant submitted that the finding of the Tribunal that
these allegations were tantamount to allegations of fraud could not be

sustained. He submitted that there was no suggestion in the letters of
complaint that either Cridlands or the solicitors concerned deliberately
intended to deceive or gain a personal advantage for either Randazzo or
themselves. Further, it was submitted that the charge did not allege that the

appellant made accusations amounting to fraud. Counsel for the Law
Society submitted that the Law Society never contended at the hearing
before the Tribunal that the appellant had alleged that Cridlands or its
practitioners intended to deceive, or to obtain a secret profit at the expense

of the UCAPT. In those circumstances, the finding by the Tribunal that the
allegations were tantamount to allegations of fraud cannot be sustained.
[238] Irrespective of whether or not the appellant was in effect alleging fraud by
Cridlands or its practitioners, the allegations were of serious misconduct

such as to require the appellant to ensure that there was evidence upon
which such allegations could be made. As to the seriousness of the
allegation that Cridlands used confidential information from the UCAPT to
obtain a personal advantage, I need only refer to the Law Society of New
South Wales v Harvey.9

9 [1976] 2 NSWLR 154 at 172.

[239] Counsel for the Law Society submitted also that its case was not only that
the appellant made the allegations without any evidence to support them, but

also that she did not have “strict” instructions from the client to make them.
Presumably what it meant by this, is that the appellant, before making
allegations of this nature, needed to draw to the client’s attention the
specific allegations and advise the client that such allegations are serious
allegations which cannot be made without proper evidence to support them,
and of the possible consequences to the client if they are not made out.10
[240] To the extent that the Tribunal found that the appellant had not obtained

such specific instructions, in my opinion it was open to the Tribunal to infer
from all of the evidence that the appellant had not sought “strict
instructions”. There was nothing in the appellant’s file to suggest that the

appellant had obtained such instructions and, in view of the admissions
made as to the evidence available to her, it is unlikely that she did;
moreover, it is unlikely that UCAPT would have instructed her to proceed to
make the allegations if such advice had been given and even more unlikely
that the appellant would have accepted such instructions in those
circumstances.
[241] In my opinion, ground 2 of the appeal has not been made out. The conduct
of the appellant in making the allegations which were, on any view of the matter, serious allegations which required evidence to support them. This

10 Minister Administering the Crown Lands (Consolidation) Act & Western Lands Act & Ors v Tweed

Byron Aboriginal Land Council (1990) 71 LGRA 201 at 203-204; c.f. Rules of Professional Conduct, r 12.3.

was in itself sufficient to warrant a finding by the Tribunal that the
appellant’s conduct amounted to professional misconduct.
Conclusion
[242] Although not all of the Tribunal’s findings have been upheld, as there is no
appeal against the penalty imposed, I would dismiss the appeal with costs.
Riley J:

[243] I agree with the Chief Justice.

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Citations

McLaren v Legal Practitioners Disciplinary Tribunal [2010] NTSC 02

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Cases Citing This Decision

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Council of the NSW Bar Association v Power [2008] NSWCA 135

Fox v Percy [2003] HCA 22

Luxton v Vines [1952] HCA 19

“25.	However, can the Tribunal be satisfied that the respondent acted entirely by herself in making the complaint? It seems that others connected with the Property Trust witnessed the application of the seal to the complaint. In addition it seems moderately clear to the Tribunal that the respondent’s husband, Mr John McLaren, the chairman of the Property Trust, was interested in making the complaint, as his letter to the Law Society demonstrates.
26.	The Tribunal is left in an unsatisfactory position on this question. The Tribunal might find that the respondent acted entirely on her own volition, as unlikely as that might seem. Alternatively, the Tribunal might accept that there is indirect evidence of the involvement of some of those who held positions in the Property Trust apparently instructing the respondent to make the complaint. For instance, there are entries in the respondent’s file that she was taking instructions from John McLaren. …
Without the evidence of John McLaren or the respondent on this question, the Tribunal cannot be sure whether the instructions of John McLaren carried the authority of the Uniting Church or the Property Trust. The unexplained absence of that evidence combined with the lack of any evidence in relation to the implications of using the Property Trust seal suggest that the respondent was aware that she was acting without the authority that she required to make the complaint when she did so. [my emphasis]
27.	The Tribunal must resolve this question against the respondent and find that although there appeared to have been some involvement of office holders of the Property Trust, notably John McLaren, and the witnesses to the affixing of the common seal all of whom may have provided some instruction or encouragement to the respondent to make the complaints, there is insufficient evidence to show that the respondent was acting with the authority of the Property Trust to make the complaints against the three practitioners, and further, that she knew that to be the case.” [my emphasis]

PARTIES:	MCLAREN, Asha
v
LEGAL PRACTITIONERS DISCIPLINARY TRIBUNAL
AND
LAW SOCIETY OF THE NORTHERN TERRITORY
TITLE OF COURT:	SUPREME COURT OF THE NORTHERN TERRITORY
JURISDICTION:	SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION
FILE NO:	76 of 2009 (20917560)
DELIVERED:	Wednesday 20 January 2010
HEARING DATES:	4, 5, 23 November and 1 December 2009
JUDGMENT OF:	MARTIN (BR) CJ, Mildren and Riley JJ
CATCHWORDS:

Appellant:	Vincent Close
Respondent:	Hunt & Hunt Lawyers
Judgment category classification:	A
Judgment ID Number:	Mar1001
Number of pages:	130
IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

A.	Lot 2280 Town of Darwin Certificate, Title Volume 640 Folio 940, in the corner of Knuckey Street and Mitchell Street.
B.	Lot 7118 Town of Darwin 47 Cavanagh Street.

A.	That Cridlands as the legal representatives of the Church breached the ethical duty owed to the Church under Rule 9A of the Professional Conduct Rules of the Law Society of the Northern Territory and approved by the Chief Justice of the Northern Territory.
B.	Cridlands failed or neglected to give its undivided fidelity to its client the Church.
C.	Cridlands failed or neglected to perform its duties and obligations unaffected by its own interests.
D.	Cridlands failed or neglected to perform its duties and obligations unaffected by the interests of persons and or clients other than the Church.
E.	Cridlands maintained the interests of other parties that were adverse or likely to be in conflict with the interests of the Church.
F.	Cridlands failed or neglected to withdraw from representing the Church in the circumstances set out in paragraph E above.
G.	Cridlands failed or neglected to fully inform the Church of the circumstances set out in paragraph E above and continued to act for the Church knowing that the Church had not voluntarily assented to Cridlands acting or continuing to act on its behalf.
H.	Cridlands represented and continued to represent conflicting interests of the Church and other clients in circumstances that were prejudicial to the interests of the Church.

J.	Further and in the alternative Cridlands acted and continues to act for the other clients after it ceased to act for the Church having failed or neglected to direct both of its clients to seek other advice.
K.	Cridlands gave and continued to give legal advice to the Church knowing that the interests of the Church were in conflict with the interests of another existing client or clients other than advice to secure the services of another practitioner.
L.	Cridlands acted (and or continued to act) for the Church without keeping the Church fully informed and withheld information and advice from the Church because of conflicting duty owed to another client other clients.

(f)	By providing this commercially sensitive information to R I Cridlands were able to obtain a personal advantage for themselves by negotiating and obtaining a commercial lease of office floor space within Mitchell Street Development Centre at Lot 2280. [my emphasis]
(g)	See also Paragraph 33 of my letter dated 2 July 2003.” [my emphasis].

1.	Although the original complaint is made against the firm Cridlands it was the individual practitioners that committed some or all of the breaches complained of and further explained in my letters dated 2 July 2003 and 15 September 2003. These practitioners have been named in the complaint lodged by the church on 13 August 203.
[B]:
2.	[B] was the Supervising Partner who had carriage and conduct of the Church’s matters at all relevant times. Each and every allegation made in the complaint dated 2 July 2003 was committed by [B]. Similarly the conduct setout in my letter dated 15 September are attributed to [B]. [my emphasis]

[A]:
4.	[A] was a Senior Associate at Cridlands at all relevant times and as such [A] was privy to and was fully aware of the firm’s clients including the fact that the firm had acted and alternatively continued to act for Woolworths and Manolas. [A] was aware that the interests of the Church conflicted with the interests of the other two parties and vice versa.
5.	[A] acted on behalf of the Church with respect to Lot 7118 the CBD Plaza. [A] was involved with the matter up to about March 2001. The specific instances of conduct attributed to Cridlands is to be attributed to [A] until [A] ceased … involvement with the file. [my emphasis]
6.	[A] was involved in preparing the Agreement to Lease and Lease Deed between the Church and Woolworths. [A] was also involved with the file and took part in the meetings and negotiations that took place between the Church, Woolworths, Manolas and Harriscarfe.
7.	My instructions from Rev Gale Hall are that during dealings with [A, A] did not raise the issue of conflict of interest with him. [A] is guilty of the conduct set out in paragraphs A to L and the particulars set out in paragraphs 20 to 57 with the exception paragraph 33, 49 and 56 in my letter dated 2 July 2003. [A] is also guilty of the conduct set out in paragraphs 5(a) and 8 of my letter dated 15 September 2003.
8.	During [A’s] relationship with Rev Hall it appeared that he was getting good advice from [A]. This is, however, questionable in the light of the conflict of interest that was present at all times but never revealed to Rev
Hall or the Church. [A] has a conscience of [A’s] own and ought to have informed the Church and its representatives of the nature and implications of the conflict of interest. [A] never did. In view of the underlying conflict of interest any relationship [A] had with Rev Hall and the Church was fundamentally flawed.
9.	[B] and [A] sent a letter dated 8 February 1999 requesting the Church to obtain independent legal advice regarding one aspect of the Lease to Woolworths admitting that the interests of the Church conflict with Woolworths and Manolas. The letter dated 8 February 1999 is attached.
[C]:
10.	[C’s] carriage and conduct of the matters relating to the Church commenced after [A’s] involvement with it ceased. [C] was at all relevant times a Senior Associate at Cridlands and as such [C] was privy to and was fully aware of the firm’s clients including the fact that the firm had acted and alternatively continued to act for Woolworths and Manolas. [C] was aware that the interests of the Church conflicted with the interests of the other two parties and vice versa.
11.	[C] acted on behalf of the Church with respect to Lot 7118, CBD Plaza after March 2001. [C] was also involved with the matter relating to Lot 2280. Specific instances of conduct attributed to Cridlands is to be attributed to [C] during her involvement. [my emphasis]
12.	[C] provided legal advice to the Church with respect to the specialty shops leases within the CBD Plaza in Lot 7118. [C] was therefore privy to commercially sensitive information set out in paragraph 5(b) to (g) in my letter dated 15 September 2003. I understand that [C] was not actively involved in the case when the Agreement to Lease and Lease Deed was prepared. However, [C] became fully aware of the facts and circumstances of the case when [C] assumed carriage of the matter but failed to advise the Church of the conflict of interest between [the] clients. In fact [C] advised the Church that no conflict existed.

a.	In breach of its ethical obligations to it’s client;
b.	To achieve a benefit for a third party also a client of Cridlands;
c.	To the detriment of the Uniting Church; and
d.	To Cridlands personal advantage.

•	The “third allegation” was made in the letter of 15 September 2003,
“the substance of which was that Cridlands had secured for itself a lease from Randazzo of commercial premises at the Mitchell Centre site
either by using the information referred to in [the second allegation] or by providing that information to Randazzo.” (Application para 5(b)).
•	The natural meaning and effect of the allegations were set out in

allegations, such meaning and effect was that Cridlands or the Cridlands practitioners “had deliberately acted so that the commercial interests of
other clients were preferred to the commercial interests of [the Church].”
•	The natural meaning and effect of the third allegation was that

•	The practitioner “well knew and intended” that each of the three
allegations “have the meanings and effects” alleged in paras 6 – 8. (Application para 9).
•	By letter dated 20 November 2003 the practitioner made “personal
allegations” against the Cridlands practitioners alleging that the practitioners “committed the conduct the subject of each of the first, second and third allegations” or such of the conduct contained in those allegations as occurred when the practitioners were acting for the Church. (Application para 10).
•	At the time of making each of the three allegations and the personal

•	From December 2003 the practitioner was aware that each of the three
allegations and the personal allegations were strenuously denied by Cridlands and the individual practitioners and Cridlands regarded the
second and third allegations as allegations of fraud. (Application para 14).
•	Notwithstanding knowledge of those denials, and notwithstanding that

•	At the time of lodging the Complaint, “the practitioner did not have any
evidentiary material capable of supporting allegations that Cridlands, when acting for a client Randazzo in drafting a deed affecting the development by Randazzo of land in which [the Church] was interested

•	“At the time of forwarding the correspondence dated 15 September 2003 the practitioner did not have any evidentiary material capable of
supporting a further allegation the substance of which was that Cridlands had secured for itself a lease from Randazzo of commercial

18.3	in substance that [practitioner] committed such of the conduct
the subject of the first, second and third allegations as occurred after about March 2001.”

“12.	The essence of the allegations is that the three practitioners used information obtained from the Uniting Church in Australia to the advantage of another client and of themselves. …
The allegations by [the practitioner] are that the three practitioners used information gained in the course of acting for a client to the benefit of themselves and another party and to the disadvantage of the client. …”

•	Mr McLaren was the Chairman of the Church Property Trust.
•	Mr McLaren gave instructions to the practitioner in respect of “drafting

•	The Complaint incorporated the letter of 2 July 2003.
•	There was no evidence to suggest that Mr McLaren did not have the
“authority” of the Church to give instructions to the practitioner in connection with a complaint to the Law Society about Cridlands and a conflict of interest.
•	There was no evidence that the seal was not affixed to the Complaint

(d)	Alternatively to 12(c), had not obtained instructions from UCAPT to
make those allegations or any of them having first advised UCAPT that those allegations should not be made unless evidentiary material

[2010] NTSC 2

20/01/2010

“(a)	No other procedure is provided under the Acts; and
(b)	It does not conflict with any other law now in force or in the future to