New South Wales Bar Association v Butland

[2008] NSWADT 120

CITATION:	New South Wales Bar Association v Butland [2008] NSWADT 120
DIVISION:	Legal Services Division
PARTIES:	APPLICANT Council of the New South Wales Bar Association RESPONDENT Jan Peniston Butland
FILE NUMBER:	072012, 072013, 072014, 072046
HEARING DATES:	25-27 February 2008, 27-29 August 2008
SUBMISSIONS CLOSED:	29 August 2008
DATE OF DECISION:	23 September 2008
BEFORE:	McGuire J - ADCJ (Deputy President); Wright R, SC - Judical Member; Bennett C - Non-Judicial Member
CATCHWORDS:	Barrister – disciplinary application
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987 Legal Profession Act 2004
CASES CITED:	A solicitor v Council of the Law Society of New South Wales [2004] 216 CLR 253 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Council of the New South Wales Bar Association v Raphael [2007] NSWADT 201 Law Society of New South Wales v McNamara [1980] 47 NSWLR 72 Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 Nikolaidis v The Legal Services Commissioner [2007] NSWCA 130 The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145
REPRESENTATION:	APPLICANT P Brereton, barrister E Young, barrister
ORDERS:	That the proceedings be listed for Directions on 2 October 2008 at 9:30am for the purpose of fixing a date for a hearing on the appropriate orders to be made.

1 These reasons for decision relate to three Applications for Original Decision (File Numbers 072012, 072013 and 072014) and one Amended Application for Original Decision (File Number 072046) brought by the Council of the New South Wales Bar Association (the “Bar Association”) against a barrister, Jan Peniston Butland (the “Barrister”).

2 The parties were agreed that the hearings which have occurred to date should relate to the Bar Association’s claims that the Barrister had been guilty of professional misconduct or alternatively unsatisfactory professional conduct, with a separate hearing to follow on the question of penalty if we found that any of the charges had been made out. Accordingly, these Reasons for Decision do not deal with any question of what orders would be appropriate.

Constitution of the Tribunal

3 The Tribunal in this matter was originally constituted by Mr R Macfarlan QC, Mr R Wright SC and Prof R Fitzgerald. The Tribunal so constituted heard evidence on 25, 26 and 27 February 2008 and received submissions on liability. Subsequently, the Tribunal granted leave for the parties to adduce further evidence concerning the new complaint raised in the Amended Application filed in proceeding 072046 (the “16 November 2005 Letter matter”) and the issue of the effect, if any, of the Barrister’s medication on his conduct the subject of the proceedings.

4 For a number of reasons, Mr Macfarlan QC and Prof Fitzgerald became unavailable before the matters were determined. The parties consented to the replacement of those two members under section 79(1)(b) of the Administrative Decisions Tribunal Act 1997. Accordingly, the President replaced Mr Macfarlan QC and Prof Fitzgerald under section 79(1).

5 The Tribunal so reconstituted heard evidence and received submissions on 27, 28 and 29 August 2008. In reaching this decision, the Tribunal as presently constituted has also had regard to the evidence (including the transcript and exhibits) and the decisions (whether concerning procedural and evidentiary matters or otherwise) given or made before the Tribunal was reconstituted.

Relevant Statutory Provisions

6 The position so far as the application to these proceedings of the Legal Profession Act 2004 (the “2004 Act”) is as follows. With the exception of the complaint made in proceeding numbered 072013 (the “Client 2 matter”) and the 16 November 2005 Letter matter, that is complaint added by the Amended Application in proceeding numbered 072046, the conduct in question occurred prior to 1 October 2005, the commencement date of the 2004 Act. In respect of that conduct, the transitional provision contained in clause 17 of Schedule 9 to the 2004 Act applies. The effect of that provision is to render the 2004 Act applicable to the relevant conduct, subject to any determinations and orders which are made not being more onerous than those which could have been made under the Legal Profession Act 1987 (the “1987 Act”). It is appropriate in these circumstances for us to consider the conduct the subject of the Bar Association’s Applications by reference to the 2004 Act and then, before reaching any conclusion on the orders to be made, form a view as to whether the caveat just mentioned is applicable.

7 The 2004 Act is applicable without qualification to the conduct alleged in the Client 2 matter and the 16 November 2005 Letter matter as the conduct in both cases occurred after the commencement of the 2004 Act.

Professional Misconduct and Unsatisfactory Professional Conduct

8 In each proceeding, the Barrister has admitted that his conduct amounted to unsatisfactory professional conduct. Accordingly, the central issue for the Tribunal in each case is whether the Barrister’s conduct amounted to professional misconduct rather than merely unsatisfactory professional conduct.

9 Unsatisfactory conduct and professional misconduct are defined in the 2004 Act as follows:

“496 Unsatisfactory professional conduct

For the purposes of this Act:

"unsatisfactory professional conduct" includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

497 Professional misconduct

(1) For the purposes of this Act:

"professional misconduct" includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.”

10 As these definitions are inclusive in nature, it follows that conduct which amounts to professional misconduct under the general law will also fall within professional misconduct to which the 2004 Act applies.

11 The common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency – see The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 for medical practitioners.

The Barrister’s Mental Condition and the Medical Evidence

12 Before turning to consider each of the matters individually, we should address an issue that is raised in relation to all of the complaints before us, namely, the Barrister’s mental condition and the effect of his medication.

13 In the Reply in each matter, the Barrister sought to excuse his conduct by asserting that he had at the relevant times “undiagnosed psychological and behavioural problems”. During the hearing, the argument was developed that the Barrister’s psychological disorder and/or the medication which was prescribed for that disorder led to his conduct being properly characterised as “careless” or “impulsive” rather than deliberately dishonest. On this basis, it was submitted that the conduct should be categorised as unsatisfactory professional conduct rather than professional misconduct.

Mental Condition

14 It was common ground that at all relevant times the Barrister suffered from a Borderline Personality Disorder. Initially the Barrister relied upon two reports of Dr Michael Diamond, a consultant psychiatrist on whom the Barrister was requested to attend by the Bar Association. In his report of 4 December 2006 Dr Diamond said that while the Barrister did not suffer a discretely diagnosable psychiatric condition, the diagnosis should be that of Personality Disorder with Borderline features. Dr Diamond’s conclusion was based upon his own examination of the Barrister and upon the reports of Dr Jonathan Carne, a psychiatrist whom the Barrister had consulted for a number of years. The subsequent report of Dr Diamond of 19 February 2007 is consistent with this conclusion.

15 In the interval between the first hearing and the second, the Barrister obtained reports from Dr George Jacobs, a consultant psychiatrist, dated 30 March 2008 and 3 May 2008. Dr Jacobs’ reports were based upon his own examination of the Barrister and the material in the reports of Dr Diamond and Dr Carne. In his 30 March 2008 report Dr Jacobs expressed the view that the Barrister did fulfil the criteria for Borderline Personality Disorder and went on to say that the Barrister “has almost certainly fulfilled criteria for Dysthymic Disorder at times and certainly when he saw Dr Carne”.

16 Dr Jacobs’ relevant conclusion in this regard is that Borderline Personality Disorder “may cause one to commit indiscretions, even when one is aware that it would be easy to be found out. Mood liability and poor self esteem may cause that.”

17 In response to Dr Jacobs’ reports, the Bar Association obtained 2 further reports from Dr Diamond. The conclusion in Dr Diamond’s report of 27 May 2008 is expressed perhaps more directly than Dr Jacobs and deals specifically with the Barrister’s situation but the conclusion is consistent with that of Dr Jacobs quoted above. Dr Diamond says on page 10 of that report:

“With regard to the four complaints and the variation before the Tribunal, the conduct of Mr Butland is affected by his personality disorder insofar as his personality vulnerabilities cause him to act impulsively and destructively. He is avoidant of conflict. …”

18 Nothing in cross-examination of either doctor tended to undermine these conclusions. On this basis, we conclude that the Barrister’s conduct which is relevant to these proceedings can be understood to have resulted, at least in part, from his Borderline Personality Disorder, and in particular from being more prone to act impulsively or carelessly and reacting poorly to stress.

19 As to the diagnosis of Dysthymia by Dr Jacobs, no particular consequence was attributed to this in Dr Jacobs’ reports. Dr Diamond (in his report of 27 May 2008 and in cross-examination) disagreed with Dr Jacobs’ diagnosis of Dysthymia but conceded that it was understandable that a psychiatrist could reasonably make such a diagnosis in respect of the Barrister in the period 2004 to 2006. Nothing, however, appears to turn on whether this diagnosis, in addition to the diagnosis of Borderline Personality Disorder, is correct.

The Effect of the Medication

20 In his 30 March 2008 report, Dr Jacobs raised what he described as “another issue which may explain his [the Barrister’s] conduct when on citalopram [the medication prescribed for him by Dr Carne]”. (underlining added)

21 The Barrister’s medication history is not in dispute. He began taking citalopram in April 2000 at a dosage of 20 mg/day. This was increased to 40 mg/day in May 2000, 60 mg/day in June 2000 and 80 mg/day in late August 2000. In June 2004, the dosage was reduced to 60 mg/day and it remained at that level until February 2006 when the Barrister ceased taking the medication. He resumed taking citalopram in May 2006, initially at 20 mg/day and then 40 mg/day from June 2006 until about November 2006 when he ceased taking the medication.

22 Relevantly, Dr Jacobs on page 4 of his 30 March Report says:

“Mr Butland was on large doses of citalopram at 80 mg a day, exceeding the manufacturer’s recommended maximum dose. Side-effects are more common as the dose of medication increases. During three matters before the Bar Association Mr Butland was taking large doses of citalopram and when the fourth one occurred he had recently recommenced medication. He could easily have been indifferent to his environment whilst on the citalopram at high doses. He could also have been unable to distinguish between right and wrong whilst on the citalopram. …” (underlining added).

23 Dr Jacobs conceded in cross-examination that he had in mind when he made the comment quoted above that the Barrister was on a dosage of 80 mg per day when in fact the maximum he was on at any relevant time was 60 mg per day (which did not exceed the manufacturer’s recommended maximum). Nonetheless, he described 60 mg/day as a high dose.

24 When Dr Jacobs was asked whether or not he was unable in his professional opinion to conclude that the Barrister was “indifferent” at the time of the relevant events because of the medication, he conceded that he could not because he was not seeing the Barrister at the time. His actual words were “I can't do that because I wasn't there”. Further, Dr Jacobs when it was suggested to him that the Barrister’s conduct could not be ascribed to his taking citalopram responded ”I think his behaviour could be ascribed to a combination of things: one is his personality style; and the other may have been medication.” (underlining added).

25 One matter that appears to us significant in relation to the finalisation of Dr Jacobs’ report of 30 March 2008 is that a draft of the report was given to the Barrister who provided comments and suggestions by way of a letter dated 1 April 2008 (which was in evidence) back to Dr Jacobs who amended his draft to include some of the suggestions. This matter is significant because one of the suggestions was not adopted by Dr Jacobs. In the first full paragraph on page 3 of the letter of 1 April 2008, the Barrister notes as follows:

“There is no statement that when I took the medication as prescribed by Dr Carne in the context of my behavioural problems and personality disorders that such medication caused me to behave indifferently and thus I was not able to self analyse whether what I was doing was wrong or inappropriate.”
When asked in cross-examination whether he was unable to draw that conclusion, Dr Jacobs said “Well, you can't make that conclusion three years down the track. It is possible but—”. He did not include in his report what the Barrister had implicitly suggested that he might say.

26 Accordingly, having regard to the way in which Dr Jacobs’ opinions in this regard are expressed as matters that “may” or “could” be the case and his refusal to draw the conclusion sought by the Barrister while noting that it was “possible”, we are of the view that Dr Jacobs’ opinion about whether the Barrister’s conduct was attributable to the medication or “indifference” caused by the medication does not reach any higher than a possibility. Dr Diamond’s conclusion on page 11 of this report of 27 May 2008 in this regard was that:

“Despite what Mr Butland told me during my most recent examination of him, I remain unconvinced that the behaviour that lies behind the four complaints before the Tribunal can be significantly ascribed to the effects of citalopram.”

27 Having regard to Dr Diamond’s reasoning, his measured and well considered responses in cross-examination and his thorough reports, we accept his conclusion that the Barrister’s conduct cannot to any significant extent be attributed to his taking citalopram.

28 One issue raised in relation to the effects of the Barrister’s medication deserves particular attention. Dr Jacobs’ suggested that the Barrister’s medication may have caused him to be incapable of differentiating right from wrong. We have already noted the way this is raised by Dr Jacobs as a possibility. It has been categorically rejected by Dr Diamond on pages 11 and 12 of his report of 27 May 2008.

29 Moreover, when asked whether the Barrister’s perception of right and wrong had in his opinion actually been impaired, Dr Jacobs eventually said “as a general concept, that's correct, his perception of right and wrong has not been fair [this is a transcription error and should be ‘impaired’]”. Dr Jacobs in this passage of evidence also acknowledged that even if the Barrister committed indiscretions, this did not mean that his perception of right and wrong was impaired.

30 Accordingly, we find that the Barrister’s ability to distinguish right from wrong was not impaired as a result of the medication at any relevant time.

Other Medical Matters

31 We note Dr Diamond’s conclusions on page 11 of his report of 27 May 2008 that the Barrister “has not suffered a frank psychiatric illness that has interfered with his perception of reality. He is not prone to psychiatric illness that causes delusional interpretations of his environment or circumstances.” As we understand it, Dr Jacobs did not express a contrary view and we accept these conclusions of Dr Diamond.

32 Finally, none of the medical evidence suggested that the Barrister’s mental condition was such that he was not able to control his actions so that he should not be held responsible for his conduct which is the subject of the various matters before us. Nor do we understand that this was a submission sought to be advanced on behalf of the Barrister.

Relevance of the Medical Evidence

33 In relation to the medical evidence, counsel for the Bar Association made the submission that the Barrister’s mental condition was irrelevant in determining whether or not he had engaged in professional misconduct or unsatisfactory professional conduct. Thus, for the purposes of determining liability, the Tribunal was not required to have regard to the evidence of Drs Diamond or Jacobs or any other medical practitioner. It was, nonetheless, said that such evidence would be relevant on the question of appropriate orders, should that become necessary.

34 This submission was based upon the decision of the Full Court of the Supreme Court of South Australia in Legal Practitioners Conduct Board v Ardalich [2005] SASC 478. In that case, the conduct of the legal practitioner had been investigated by the Legal Practitioners Disciplinary Tribunal. The Tribunal had concluded that the practitioner had been guilty of 27 counts of unprofessional conduct, ranging from failure to co-operate with the Legal Practitioners Conduct Board to failing to deal properly with trust moneys to knowingly creating a false document. The practitioner admitted the objective acts constituting the conduct but argued that his mental condition absolved him from liability. It was common ground that the practitioner was at all relevant times suffering from a mental condition known as bi-polar affective disorder. There was a dispute between the psychiatrists whether or not this condition was so serious that he was unable to control his conduct. The Tribunal found it was unable to conclude that the mental condition was such that the practitioner was not able to control his conduct. An application was made to the Full Court of the Supreme Court for an order that the practitioner’s name be struck of the Roll.

35 Perry ACJ (with whom Duggan J and Anderson J agreed) held:

“42 The admissions made by the practitioner as to his commission of the objective facts associated with each of the counts was sufficient to justify the finding of unprofessional conduct with respect to each count.

43 The practitioner's mental state, serious though it was, could not deflect the Tribunal from a finding that the charges of unprofessional conduct were made out once the objective facts were proved or admitted. What would otherwise amount to unprofessional conduct does not cease to be such, by reason of the existence of a mental illness on the part of the practitioner, which had the potential to establish a mental impairment defence under Part 8A of the CLCA.

44 The disciplinary provisions of the Act which come into play upon a finding of unprofessional conduct reflect the interests of the public in ensuring that legal practitioners answer to the high standards of probity and competence which must be observed if the integrity of the administration of justice is to be preserved.

45 Mental illness of a practitioner which may cause or contribute towards his commission of acts constituting unprofessional conduct cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary orders should be made.

46 I do not use the words "mitigating circumstance" in the sense in which they may be used in the context of the criminal sentencing process.

47 The primary function of disciplinary proceedings is not to punish the practitioner, but to protect the public and the administration of justice by ensuring that that practitioners live up to the high standards expected of them.

48 In determining the approach to be adopted in a particular case, it may be relevant to take into account the fact that the mental illness of the practitioner is of temporary duration and unlikely to recur, or may be successfully treated. Consideration could then be given to the question whether or not the practitioner should be permitted to resume practice, perhaps after a period of suspension, or subject to conditions.

49 There will be cases, however, where the offending conduct was so serious and particularly where it has persisted over a period of time, that evidence of a mental state or illness which explains the conduct cannot be permitted to deflect the court, acting in the public interest, from striking off the practitioner.”

(Footnotes omitted)

36 Views generally consistent with this approach have been expressed by this Tribunal in Council of the New South Wales Bar Association v Raphael [2007] NSWADT 201 at [40(s)], “It is [the] tendency of the Barrister’s conduct which is relevant, not what might have brought about that conduct”. A similar approach was also evident in the Court of Appeal in Law Society of New South Wales v McNamara (1998-9) 47 NSWLR 72 at 76 where the fact that the conduct and behaviour of the solicitor was “symptomatic of underlying defects in character and emotional instability” was not regarded as excusing the solicitor’s conduct but rather as being relevant to the nature of the orders that should be made.

37 We accept those statements of principle as they were applied in the circumstances of the various cases. To suggest, however, as the Bar Association submitted that medical evidence as to a legal practitioner’s mental health and ability to control his or her actions is entirely irrelevant to the question before us of whether there has been professional misconduct or unsatisfactory professional conduct appears to us to go too far.

38 The common law concept of professional misconduct, based upon the test in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 referred to above, involves a judgment of whether certain conduct would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. In making this judgment, it is essential that all material factors that affect that conduct be taken into account. For example, it would not be reasonable to regard submitting a false invoice knowing it to be false in the same way as submitted a false invoice because of an undetected typographical error. How the invoice came to be false is relevant to how the conduct would be characterised by professional colleagues.

39 Hence, the mental health of a legal practitioner answering a complaint of professional misconduct is likely to be relevant to forming a view as to whether the conduct would reasonably be regarded as disgraceful or dishonourable by reputable and competent colleagues. That is not to say, however, that any diagnosed mental or personality disorder will necessarily excuse or exonerate a legal practitioner whose conduct would otherwise amount to professional misconduct. Indeed, it might be anticipated that only those conditions which effectively deprive legal practitioners of the ability to control their actions would be likely to excuse what would otherwise be professional misconduct in the common law sense. Moreover, conduct in those circumstances may well fall within the definition of professional misconduct in section 497(1)(b) of the Act if it would justify a finding that the practitioner is not a fit and proper person to engage in legal practice as a result of his or her condition.

40 Accordingly, in the present case, the fact that the Barrister had at the relevant times, and perhaps still has, Borderline Personality Disorder is relevant to the question whether his conduct amounted to professional misconduct under the common law test. The other circumstances in which the conduct in question occurred are also relevant. We propose to take all of these circumstances into account in forming our view as to whether or not his conduct should be characterised as professional misconduct rather than unsatisfactory professional conduct.

41 In doing so, however, we also bear in mind that the primary function of disciplinary proceedings is the protection of the public and the administration of justice by ensuring that that practitioners live up to the high standards expected of them whatever their personal circumstances or difficulties.

Cumulative effect of conduct

42 One further matter to mention before embarking upon a consideration of the individual complaints is that it was submitted by the Bar Association that we were entitled to consider the complaints in the various proceedings together for the purpose of forming a view as to whether professional misconduct or unsatisfactory professional conduct had been demonstrated. While this is may be what is envisaged by section 497(1)(a) of the 2004 Act, we do not accept that this is appropriate in the present case. The complaints against the Barrister are framed as separate ones in each proceeding. There is no attempt made in the Applications or the Amended Application to allege that the cumulative effect of some or all of the conduct was to demonstrate professional misconduct or unsatisfactory professional conduct if the matters relied upon did not do so individually.

43 We shall accordingly proceed to consider each of the proceedings, which were before us.

Proceedings 072046 – Client 1

44 This matter relates to the submission by the Barrister to the Legal Aid Commission of an invoice in an amount of $957.00 including GST. The invoice was submitted in electronic form and related to the following individual items totalling $957.00:

Instructions and attendances	$484.00
Preparing Court documents	$363.00
Disbursement General	$110.00
Total:	$957.00

(These sums are inclusive of GST)

45 The form on which the invoice was electronically submitted was one, which provided for lump sum amounts in respect of the first two items and a “maximum non-itemised $100” (before GST) in respect of the third item. There were other items (for “preparation” and “court time”) on the form of invoice in respect of which the Barrister did not make any claim for fees.

46 This invoice was submitted on 22 July 2005. It related to a grant of legal aid, which had been made by the Legal Aid Commission to the Barrister on 27 April 2005 to represent Client 1 in connection with Care and Protection Proceedings. Those proceedings were resolved in late April or early May without any court appearance by the Barrister being necessary.

47 Earlier on 22 July 2005, the Barrister had appeared for the same client on a pro bono and direct access basis at a plea hearing in connection with unrelated criminal proceedings against the client.

48 In response to subsequent inquiries by the Legal Aid Commission in relation to the invoice, the Barrister, by letter of 22 August 2005, inter alia said the following:

“Unfortunately my partner found out that I had done a free job for a client. This sent her into a rage and she started to demand that I get some money from somewhere and why didn’t I use the unused Legal Aid invoice? My partner is much given to violence and is not to be denied. I filled in the unused invoice number for which I believe that I was entitled to something and this got sent in and paid. This placated my partner no end, at least once she got the money.

In respect of the amounts claimed. I certainly put in the time taking instructs with respect to item Instructions etc $440.00, however due to my actions there were in fact no Court appearances. With respect to preparing the Court documents the only documents that were actually produced where letters to DOCS which were prepared in respect of the then anticipated Court proceedings and which, had DOCS not decided to return the child would have formed part of (Client 1’s) case.

This invoice worries me because whilst, the issue of the criminal case aside, I believe that I was entitled to something in respect of the care proceedings, even though the proceedings fizzled out, but under the pressure of imminent violence I may have charged too freely on your invoice. I do not see the invoice in anyway as being payment for the Criminal Case no matter what the view was in at home.”(sic)

49 In his letter to the Bar Association of 16 November 2005, the Barrister said inter alia:

“I want to make it quite clear from the outset that I was paid money that I was not entitled to. This was made clear in my initial letter to Legal Aid on the subject prior to my even sending the files for audit.

I do not back away from my account as given in that letter however I do wish to make the account more coherent.

…

7. When I got back to my office (on 22 July 2005) I received a telephone call from my partner of 32 years. Diane was exceptionally angry because she had opened up my diary and found out that I had been at Burwood and then gone through my emails from Legal Aid and found out that I did not have a grant.

…

13. I had done, as I often do towards the end of the month, gone through the unclaimed invoices in my Legal Aid on line account. I was aware that there was one for (Client 1). I most likely would not have bothered to claim the Instructions section of $440.00 as the amount of work actually done was only about two hours on the care matter. Legal Aid advised me that they take a swings and roundabouts approach to these lump sums so that it is a moot point that I may in fact have been entitled to this amount for conferencing, reading the material, advising my client and some telephone negotiations even though the matter never actually went to Court.

14. I admit that whilst I was panicking I told my partner of the invoice and filled it out. I did claim for the $330.00 preparation, which I had not in fact done.

15. However as I stated to Legal Aid it was not my intention to submit the claim merely to save it in case it was ever demanded by my partner. Unfortunately I hit the ‘save and submit’ button instead.

…

18. I have now repaid the account in full an amount of $957.00 to legal aid …

19. I admit that I knew that I was not entitled to the money paid, I also maintain however that I acted under great duress and in the course of a panic attack I admit that I hit the wrong button by mistake.

…”

50 The Barrister said in oral evidence that his assertion in the passages quoted above to the effect that he had “hit the wrong button by mistake” was wrong and he conceded that he had in fact intended to submit the invoice to the Legal Aid Commission. He also conceded that his statement that the account had been repaid in full was false as at the date of the letter as it was not repaid until 15 December 2005.

51 In his letter to the Bar Association of 14 February 2006, the Barrister said:

“As outlined in my correspondence and submissions on this issue this was not a premeditated attempt to extract moneys which I was not entitled to from the legal aid commission; but was rather a panic reaction under extreme stress due to the very real likelihood of domestic violence in my home situation, because my partner discovered that I had gone and done free work for a client at Burwood Local Court.”

52 The Barrister wrote a further letter to the Bar Association on 13 March 2006 in which he implicitly confirmed his earlier description of his partner’s role in the submission of the invoice. However, he no longer asserted that the invoice had been submitted in error.

53 On 10 July 2007, the Barrister wrote another letter to the Bar Association in which he largely resiled from what he had said in the previous letters referred to above concerning his partner’s role. In the 10 July 2007 letter, the Barrister said:

“… As a result the views that I now hold about my conduct in this case are not those that I held in my three letters of 16 November 2005, 14 February 2006 and 13 March 2006.

…

I admit that I claimed for work that I had not done. I was entitled to the initial lump sum of $440. I however claimed for work on preparation of an affidavit that I had not done. In my earlier letters above mentioned I blamed this on my partner. My partner was not to blame I was. All I can say as to why I issued the incorrect invoice is that when I did this act I was disorganised, unreflective and impulsive.”

54 In his Reply filed on 5 February 2008 (which was verified by his affidavit sworn on the same date), the Barrister asserted that he was entitled to claim the amount of $484.00 (inclusive of GST or $440 exclusive of GST) because he had taken instructions from the client with respect to the Care and Protection proceedings, had made telephone calls to the Court and to DOCS in respect of the matter and on behalf of the client and had perused documents provided to him by the client.

55 Subject to that assertion, he concurred with the claim made in Particulars 10 of the Bar Association’s Application that:

“The Barrister knew at the time he submitted invoice number 5001300 and at all times thereafter that he had made a claim for work that he had not performed and was seeking payment of moneys to which he had no entitlement.”

56 The material quoted above might be thought to make it clear that the claim made for $363.00 (inclusive of GST or $330 exclusive of GST) for “preparing Court documents” was a false one, the Barrister knowing at the time he made the claim that he was not entitled to that amount.

57 Nonetheless, the case for the Barrister at the hearing was that whilst he was aware that he had prepared no court documents in the matter, at the time of submitting the invoice (which he did deliberately and not by mistake), he did not turn his mind to what work he had actually performed and he had no intention deliberately to claim money from the Legal Aid Commission to which he was not entitled.

58 At one point in his cross-examination the Barrister explained that:

“I would have known generally speaking that I had done no preparation of court documents in respect to the (Client 1’s) case. I do not recall that I actually pulled the file out and checked what I had done. I did the invoice in a hurry. I admit that I was careless, negligent, thoughtless in not checking the file and putting that item in, even though I knew overall that I had done no preparation. At the time, however, that I as far as I can tell about my mental state of mind at the time, I did not intend to steal $363, whatever it is, from the Legal Aid Commission.” (transcript page 27, 26 February 2008)

59 The question, which now has to be addressed, is whether we should, as the Barrister submitted we should, regard what occurred as carelessness or whether we should regard what occurred as the intentional submission of a false invoice to the Legal Aid Commission.

60 Our view is that the latter is the correct view to be taken. We consider that the Barrister’s correspondence clearly indicates that he was conscious, at the time he prepared the invoice that he had not done the work said to be “Preparing Court documents”. He sought to repel the inquiries made of him, not by alleging a lack of consciousness of entitlement to charge in respect of “Preparing Court documents” but by giving two excuses which he subsequently conceded to be false, namely that he did not intend to press the button which submitted the invoice and that the invoice was prepared by reason of pressure placed upon him by his partner. The fact that he gave these false excuses but implicitly accepted, very much against his own interests, that he was aware of the falsity of the invoice in this respect militates strongly in favour of acceptance of his implicit concession as reflecting the truth of the matter.

61 Likewise, we think that the Barrister’s Reply at least implicitly accepted consciousness at the time of submission of the invoice of lack of entitlement to make the relevant claim. It defies common sense to think that the Barrister could have made an express and unqualified admission of knowledge in his Reply if he then had it in mind to assert that, whilst he had relevant knowledge, that knowledge was not present to his mind at the time that he submitted the invoice.

62 In his evidence before us the Barrister did not provide any adequate explanation as to why he had earlier made such strong concessions against his own interests. His evidence, which for the first time propounded a case of lack of consciousness, was in our view unconvincing and not such as should be accepted in light of the positions previously adopted by the Barrister.

63 Even during the course of his cross-examination, the Barrister’s evidence as to his state of mind changed. Near the commencement of the cross-examination he said:

“I accept that I made a claim for fees for which I was not entitled. I now say I know that I was not entitled. My state of mind at the time, however, I might have well had a different belief or been careless of the fact. Generally speaking I’d have to agree that I was not entitled to those fees and I was well aware of the Legal Aid fee structure, after all I’d used it for a decade.”

64 Later in his cross-examination he said:

“I knew generally overall that I shouldn’t have done it, but at the time that I did that invoice I do not believe that I was thinking about that knowledge, I just did it.”

“At the moment I submitted that invoice I do not believe that that consideration was in my mind. I was being careless and negligent.”

65 We have no doubt that the conduct “would reasonably be regarded as disgraceful or dishonourable by his professional brethren of good repute and competency” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 and the many decisions which have adopted this general law test of professional misconduct, such as The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54]). In reaching this conclusion, we have taken into account the evidence as to the Barrister’s Borderline Personality Disorder. This evidence goes some way to explaining how the conduct occurred but, in our view, the fact that the Barrister may have been prone to be impulsive or even careless as a result of his condition would not lead his professional colleagues to regard submitting the false invoice to the Legal Aid Commission as other than disgraceful or dishonourable in the circumstances.

66 The Barrister’s personality disorder does not excuse his conduct. The extraction of money from a public body by a legal practitioner making a false claim that work had been done when the legal practitioner knew that it had not been done amounts in our view to a clear case of professional misconduct by the practitioner.

67 For the reasons following, we consider that the claim by the Barrister for $110.00 (inclusive of GST or $100 exclusive of GST) in respect of disbursements is in the same position as the claim for preparing court documents.

68 At the hearing before us, the Barrister asserted that the fact that he had made some telephone calls justified the claim for disbursements. In our view no reasonable practitioner would in the circumstances have regarded the cost of a few local telephone calls as representing disbursements for which a claim of $110 could be made on a client or, in this case, the Legal Aid Commission.

69 In any event, it is important to note that unlike, for example, the amount of $484 (inclusive of GST) which is expressed to be a lump sum amount and which might therefore be the subject of an honest claim if some significant work had been done even if it did not amount in value to $484, the amount for “Disbursement General” was expressed to be a “Maximum non-itemised” amount of $110 inclusive of GST. Thus, in respect of this item, only the cost of the disbursements incurred was able to be claimed. The cost of the telephone calls referred to by the Barrister would have gone no significant way to justify the amount claimed of $110 (inclusive of GST).

70 Furthermore, the Barrister himself did not, at least until the hearing before us, assert an entitlement to make the claim for disbursements. In his letter of 22 August 2005 to the Legal Aid Commission and in that of 16 November 2005 to the Bar Association, the Barrister specifically sought to justify the charge of $440.00 for “Instructions” by reference in part to “some telephone negotiations” but did not seek to rely on these telephone calls in respect of the claim for disbursements. Likewise, his Reply filed in the proceedings sought to justify only that amount of $484.00 and conceded in respect of the remainder that they were amounts to which the Barrister was not entitled.

71 Our conclusion of professional misconduct does not extend to the claim for the amount of $484.00 for “Instructions and Attendances”. The Barrister has sworn to having performed work, which falls under this head, and there is no basis in the evidence for us to conclude that what he says about that is incorrect. As the item in the electronic form of invoice in respect of “Instructions & Attendances” was for a lump sum of $484.00, it was unnecessary for the Barrister to establish that he did any particular amount of work, so long as some significant work falling under that head was done.

72 We should add that we do not regard the Barrister’s claim that he feared violence from his partner if he did not submit the false claim to the Legal Aid Commission as in any way justifying his conduct. At the hearing before us, the Barrister conceded that it was for him to determine what amounted to a proper compliance with his professional duties and he was not able to blame what occurred on his partner.

73 Accordingly, we find that the Barrister was guilty of professional misconduct by submitting the electronic invoice claiming sums for “Preparing Court documents” and “Disbursements General” to which he was not entitled.

Proceeding 072046 – the “16 November 2005 Letter” matter

74 This matter was added to proceeding numbered 072046 by the Amended Application for Original Decision dated 22 July 2008. The allegation was that in his letter of 16 November 2005 in relation to the Bar Association’s investigation of the Client 1 matter, the Barrister made statements to the following effect knowing them to be false or misleading:

a. that he had then repaid to the Legal Aid Commission the full amount of the invoice, namely, $957;

b. that it was not his intention to submit the claim merely to save it but he hit the “save and submit” button by mistake.

75 In his Additional Reply dated 27 August 2008, the Barrister admitted that the conduct alleged amounted to unsatisfactory professional conduct but denied that it was professional misconduct.

76 The letter of 16 November 2005 contained the following statements:

“15. However as I stated to Legal Aid it was not my intention to submit the claim merely to save it in case it was ever demanded by my partner. Unfortunately I hit the ‘save and submit’ button instead.

…

18. I have now repaid the account in full an amount of $957.00 to legal aid …”

77 As has been noted in relation to Client 1’s matter, the Barrister resiled from these statements in later correspondence and in oral evidence before the Tribunal. The transcript records the following evidence given by the Barrister in cross-examination:

“Q. Do you see there that you said to the Bar Association that, "I've now repaid the account in full, an amount of $957 for legal aid".

A. Yes, in fact, it wasn't till a month later that I actually got things together enough to write out a check and take it down to them but that, in fact, was a statement that wasn't a hundred per cent true because I hadn't actually repaid it until December.

Q. It was a hundred per cent false, wasn't it?

A. Yeah, I hadn't paid it in full at the time I wrote that letter, I agree.

Q. And you knew that when you wrote the letter, didn't you?

A. Yes. Intended to pay it but I didn't get around to doing it.

Q. You lied to the Bar Association, didn't you?

A. I admit the statement wasn't true at the time I wrote it. I fully intended to send the money off but I just didn’t do it. That was fairly typical of what went on in my life at that time - not doing things.

Q. You're not prepared to characterise it as a liar [sic], Mr Butland?

A. It's not true, but it's not a deliberate lie in the way that I was trying to influence the Bar Association in any way, no. I think there's a difference, but there may not be in the minds of people.

Q. Let's go back up to paragraph 15. "So, however, as I stated to Legal Aid it was not my intention to submit the claim, merely to say that in case it was ever demanded by my partner and unfortunately you hit the savings remit button instead." That's also untrue, isn't it?

A. That is totally untrue. I was saying anything to get myself out of trouble, that was the stupidity of it.” [sic] (transcript pages 32 and 33, 26 February 2008)

78 In fact the Barrister did not draw the cheque for $957 to the Legal Aid Commission until 15 December 2005 on which date he sent the cheque under cover of a letter dated that date to the Commission.

79 The statement that the $957 had been repaid was false at the time the letter was written. Further, in the transcript quoted above, the Barrister said that at the time he wrote the letter he knew the statement was false. While it can be accepted that he intended to repay the money, the fact remains that he had not done so at that time and he knew this. We do not accept that the statement should be seen as equivalent to “the cheque is in the mail” which Dr Jacobs suggested meant, “in every day life”, that the person intended to send a cheque in the near future (see Dr Jacobs’ report of 3 May 2008).

80 The statement in paragraph 15 of the same letter that “it was not my intention to submit the claim … . Unfortunately I hit the ‘save and submit’ button instead” was also admittedly false. Moreover, the Barrister’s evidence that he was “saying anything to get myself out of trouble, that was the stupidity of it.” indicates an awareness that it was not correct at the time of writing the letter.

81 Further evidence on the subject of paragraph 15 was permitted on 27 February 2008 which is recorded in the following passage of the transcript (at page 6):

A. … certainly when I sent the claim in I certainly hit the submit button and that was as much as anything else, it wasn't a case of automatism, obviously I had intention. That paragraph is yet another example of me trying to talk my way out of what should have been a simple commercial correction of a inaccurate invoice.

Q. Do you agree that it was your intention to submit the claim?

A. As I said I wasn't acting as an automaton, I hit that saved button because I wanted the claim to go in. May have been careless and negligent but I certainly sent in.

82 There is nothing to suggest that the Barrister was acting under a misapprehension, was deluded or was otherwise unaware of the true state of affairs when he wrote paragraph 15 of the letter of 16 November 2008.

83 We also reject the submission that the statements to the effect that the money had been repaid and that hitting the “save and submit” button was an unfortunate mistake were careless errors such that they could not amount to professional misconduct. We do so for at least 2 reasons. First, the Barrister’s own evidence is inconsistent with the errors being careless rather than deliberate. If they can properly be described as “trying to talk [his] way out of’ the situation in which he found himself or “saying anything to get [himself] out of trouble”, that tends to confirm the deliberateness of the conduct. At best, it demonstrates recklessness as to whether what was said was true or false rather than mere carelessness.

84 Secondly, even if the Barrister’s conduct was careless and not deliberate, this constitutes no sufficient excuse in the circumstances. When a barrister is responding to a Bar Association request for information and assistance in respect of a complaint being investigated by the Bar Association, the barrister owes a duty of candour. Carelessness, or perhaps more properly recklessness, as to whether or not the information supplied in those circumstances is correct will not satisfy the barrister’s obligation to co-operate and to respond with candour.

85 We are entirely satisfied that reputable and competent practitioners would reasonably regard making the statement in the letter of 16 November 2005 that the money had been repaid in full, when the Barrister knew that to be false, as dishonourable and disgraceful in the circumstances. We believe this to be so notwithstanding the Barrister’s Borderline Personality Disorder and the role it may have played in his conduct.

86 In our view, making the statement in paragraph 15 of the same letter of 16 November 2005 that he did not intend to submit the claim but hit the “save and submit” button in an unfortunate mistake, would be similarly regarded.

87 Accordingly, we find that the Barrister engaged in professional misconduct by sending the Bar Association the letter of 16 November 2005 containing paragraphs 15 and 18.

Proceedings 072013 – Client 2

88 This matter involved an allegation that the Barrister had overcharged the Legal Aid Commission for work done by the Barrister.

89 On or about 18 May 2006 a grant of legal aid had been made by the Legal Aid Commission to the Barrister to represent Client 2 in a Care and Protection matter at the Campbelltown Children’s Court.

90 The grant of legal aid provided for payment in respect of the hearing of the matter at the rate of $130.00 per hour up to a maximum of six hours.

91 It was common ground that the hearing, which occurred on 1 June 2006, lasted for less than one hour.

92 Nevertheless, the Barrister submitted an electronic invoice to the Legal Aid Commission in respect of the hearing claiming $780.00 including GST for six hours attending the hearing of the matter.

93 The form of invoice contained an express statement that the Barrister certified that the claim was correct and accurately reflected the services undertaken.

94 In response to a subsequent inquiry from the Legal Aid Commission, the Barrister asserted by letter of 1 August 2006 that the error was inadvertent. Likewise in his Reply filed in the proceedings he asserted that the claim was made “without careful thought about how I had spent the day and what time I had actually spent at Campbelltown in respect of the client’s case”. In his affidavit of 8 August 2007, the Barrister said that he issued the incorrect invoice “when I was disorganised, unreflective and careless in the management of my affairs”.

95 Whilst the Application does allege that this conduct amounted to professional misconduct there is no allegation by the Bar Association that the Barrister knew at the time that he submitted the invoice that it was false. Clearly, if the Barrister had taken a few moments to remind himself of what had happened only three days before he submitted the invoice, he would have been conscious that the hearing had occupied less than one hour. However, it is not alleged that he did this and in our view the charge of professional misconduct in respect of this invoice fails in the circumstances of this case in the absence of an allegation, and proof, of consciousness of or at least recklessness as to falsity on the part of the Barrister. We should add that the Barrister gave some evidence of a mistaken belief as to the correctness of the claim at the time it was submitted and we do not see any basis for rejecting this evidence.

96 As has been noted above, the 2004 Act states that “unsatisfactory professional conduct” includes:

“Conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner”.
The non-exhaustive definition in the 1987 Act was to similar effect.

97 The Barrister conceded in his Reply that his conduct constituted unsatisfactory professional conduct. In his evidence, he said that he was “careless” and “very negligent” (transcript 26 February 2008, page 41). Bearing in mind the short time between the hearing and the submission of the invoice, the fact that the Barrister was expressly required by the electronic form of invoice to certify that his claim correctly reflected the services undertaken and that the Barrister had earlier in 2006 been dealing with concerns of the Legal Aid Commission and the Bar Association as to the correctness of claims by the Barrister for payment in the Client 1 matter, we consider that the Barrister’s concession that he was guilty of unsatisfactory professional conduct was well founded. We accordingly find that that is how the Barrister’s conduct should be characterised.

98 We do not consider that any of the matters contained in the medical reports relied upon by either of the parties excuse the Barrister’s conduct or provide any reason not to be satisfied that the conduct amounted to unsatisfactory professional conduct.

99 The Application in this matter related to conduct of the Barrister in connection with a brief received by him on a direct access basis on or about 24 December 2003 from Client 3. The brief was to represent Client 3 in proceedings concerning the allocation of parental responsibility for Client 3’s child.

100 The conduct in question comprised the sending by the Barrister of a letter dated 25 October 2004 to Client 3 at a time when she was a prisoner at Emu Plains Correctional Centre. The letter contained the following passages:

“Enclosed with this letter is a letter that I have received from the Court outlining the steps that must be taken for the final hearing of this case in early March next year. The time for this is good as it gives us a chance to place you in Guthrie or Phoebe House and then get (the child) with you well before the final hearing.

You should have panic attacks and annoy welfare to ensure that you get to speak to Phoebe and Guthrie as soon as possible so that a place becomes available for you as soon as possible after 17 December 2004.

Please telephone me if you need to discuss anything or if anything happens that I should know about.”

101 Phoebe House and Guthrie House are residential treatment centres for women with children.

102 The letter was opened by custodial staff at the prison. It was referred by them to the Legal Services Commissioner who initiated a complaint pursuant to section 134(2) of the 1987 Act.

103 In the proceedings before us, the Bar Association alleges that by the letter the Barrister “advised a client to act in a false and misleading manner” and was, in consequence, guilty of professional misconduct or unsatisfactory professional conduct.

104 When asked about the letter, the Barrister said in his letter of 28 February 2005, inter alia:

“Like many young mothers (Client 3) was capable of immense emotional distress would readily and enthusiastically agree to a course of action suggested to her but then do nothing.”(sic)

“The panic attacks referred to had been discussed with (Client 3) in a similar manner that I discuss with all my clients, as a way of stressing to them that they must take steps to implement my recommendations, especially with respect to rehabilitation programmes well in advance of anticipated Court dates”.

“There was no intention on my part to subvert the smooth, efficient and secure operation of Emu Plains Correctional Centre. I was merely trying to motivate my client to do legitimate things to enhance her chances of a restoration of her daughter to her care. My client took these steps and now she will be getting her child back”.

105 In his Reply filed in the proceedings, the Barrister denied that his conduct constituted professional misconduct but admitted that it did amount to unsatisfactory professional conduct.

106 He said that he acknowledged that he wrote the letter “in an inappropriate manner” and that he “should not have written the letter in this tone and manner of speaking. The letter was written in haste and not appropriately worded”.

107 Counsel for the Barrister submitted that the wording “you should have panic attacks” was an infelicity of expression that did not amount to professional misconduct.

108 The wording of the Barrister’s letter of 25 November 2004 so far as it relates to “panic attacks” was unambiguous. In plain and simple terms, the Barrister suggested that Client 3 should have such attacks. The letter was clearly not suggesting, for example, that if she had any such attacks she should ensure that the authorities became aware of them. In our view the letter contained a clear recommendation by the Barrister to Client 3 that she should act in a false and misleading fashion in relation to the prison authorities by pretending to have “panic attacks”.

109 The likelihood of this advice being acted upon to the detriment of the proper and efficient operation of the Correctional Centre was increased by the fact that it was given to someone who, as the Barrister described the position in his letter of 28 February 2005, “would readily and enthusiastically agree to a course of action suggested to her …”

110 We have great difficulty understanding how this conduct by the Barrister can have been anything other than deliberate. Indeed, the night before he wrote the letter he told his non-lawyer partner that he thought he would write to Client 3 “and tell her to [have] panic attacks and to annoy welfare” and his partner responded by saying “Don’t you dare do that”, “that’s not professional” (transcript 26 February 2008, page 50). The next day he wrote and sent the letter. We do not believe doing so can be characterised as “careless” or “impulsive”. Nor do we accept that the Borderline Personality Disorder from which the Barrister suffered at all relevant times would excuse such conduct or render it unsatisfactory professional conduct rather than professional misconduct.

111 In our view, this conduct constituted conduct which was deliberate and which in all the circumstances would be regarded as “disgraceful or dishonourable” by members of the legal profession of good repute and competency (see the reference to Allinson above). For a legal practitioner to advise a client to act in a dishonest manner for the purposes of obtaining an advantage from lawful authorities is little, if at all, different from the practitioner himself or herself so acting for that purpose. Each betokens dishonesty. Dishonesty is antithetical to the adherence by a barrister and other legal practitioners to appropriate standards of conduct.

112 Accordingly, we find that the Barrister engaged in professional misconduct in respect of the Client 3 matter.

Proceedings 072014 (the “Bar Association investigation” matter)

113 In the course of the Bar Association’s investigation of the Client 3 matter, the Bar Association sought various items of information from the Barrister. The questions put to and requests made of the Barrister in the Bar Association’s letter of 8 April 2004 included the following:

“4. Have the proceedings in which you appeared for (Client 3) concluded? If yes, please advise the outcome and include a copy of any judgment(s). If not, please advise the current status of the matter(s) and provide a copy of any judgment(s) delivered or orders made to date.

5. Please provide a brief chronology of your involvement in (Client 3) matter(s).

6. Has a psychiatric report been prepared in respect of (Client 3)?

7. If yes to Question 6:

(i) Who arranged for preparation for that report?

(ii) When and in what circumstances were the arrangements made for its preparation?

(iii) What, if any, use was made of the report in the proceedings? And

(iv) Please provide a copy of any report(s) prepared.”

114 The responses given by the Barrister were as follows:

“4. The proceedings are concluded after a contested hearing during which it transpired that (Client 3) had been less than forthright with myself, DOCS and Dr Newlyn who prepared a psychiatric report on her at my request. There is no copy of Judgement. The problems that (Client 3) had were her self harm, her being unable to convince the Court that she had severed her contact with her previous boyfriend and the fact that she was still on methadone and was going back, on her own evidence, to same area where she had lived before.

5. I picked (Client 3) up as a client on Christmas Eve 2003 when her child was removed from her on an Emergency Protection Order. The case was established and (Client 3) then disappeared. I later learned that she was in jail. The case progressed to a Care Plan where DOCS wanted to place the child with (Client 3’s) mother. A clinic report was ordered and I obtained a report from Dr Newlyn. As a result DOCS late in 2004 came up with a plan that (the child) be restored to (Client 3) which of course we agreed with. The matter was set down for hearing on Tuesday 8 March 2005. In the meanwhile the Child’s Representative subpoenaed documents from corrective services that showed that Client 3 was still depressed, which we knew, that she had tried to commit suicide and as a result had someone sharing a cell with her, I knew about the someone but no the reason why the someone was there, and that Client 3’s former boyfriend, not the father of the child, had been to visit her and was intending to collect her upon release. As the boyfriend was also a drug addict this was the end of Client 3’s case.

6. Yes by Dr Tom Newlyn St John of God Burwood.

7. (i). I arranged for the report at legal aid rates. (ii). The report was prepared in late 2004. Dr Newlyn visited Client 3 at Emu Plains and interviewed her there. (iii) The report was used to influence DOCS to change their mind about no restoration in the case. However DOCS visited Client 3 themselves and then made up their own mind on what they should do. Copy of report is enclosed. In respect of this report please note that Corrective Services Medical Services do not under any circumstances proved copies of patient medical reports even when requested with an authority to do so sign by ones client. This they say is because of the excessive demands placed on them by the Drug Court” (sic).

115 In his letter of 16 May 2005 to the Bar Association, the Barrister said:

“In respect to your letter of 8 April 2005 I said in my letter of 11 May 2005 that a report was prepared by Dr Newlyn. Dr Newlyn attended Emu Plains and interviewed (Client 3) but then the report went into limbo whilst we tried to find out from the jail medical service the exact nature of the medication that (Client 3) was prescribed and why she was prescribed it. Such information was not forthcoming.

…

There was no report therefore from Dr Newlyn to send to you in the first place …”

116 In his letter of 6 October 2006, the Barrister said that “it is clear that the content of my letter of 11 May 2005 was misleading however I am presently at a loss to explain the content of that letter”.

117 In its Application filed in these proceedings, the Bar Association alleged that the Barrister made certain statements in his letter of 11 May 2005 knowing that they were false and misleading, these statements being as follows:

“(a) Dr Tom Newlyn, psychiatrist, produced a psychiatric report in respect of the Barrister’s client, (Client 3);

(b) the Barrister obtained a report from Dr Newlyn;

(c) the report was prepared in late 2004; and

(d) the report was used to influence the Department of Community Services to change its mind about no restoration of the Client’s child to the Client”.

118 In his Reply filed in the proceedings, the Barrister accepted that Dr Newlyn did not write a report but said that “a lot of preparatory work had been done by him including a visit to Emu Plains Correctional Centre to interview Client 3”. He said that whilst he ordered the report from Dr Newlyn it was never finalised and he said that there was “no connection what so ever between the activities of myself and Dr Newlyn, and the DOCS caseworker that led to the DOCS caseworker changing her recommendation about restoration of Client 3’s child to her.”

119 In his verifying affidavit of 8 August 2007, the Barrister admitted that the matters in the Barrister’s letter complained of by the Bar Association were incorrect. He said also “I do not know why I would have said such words to mislead the Bar Association”.

120 It is clear from the above quoted responses of the Barrister that the statements to the Bar Association, which are the subject of its Application, were made, were false and must have been known to be false by the Barrister.

121 We have taken into account that it is conceivable that whilst the true facts were “known” by the Barrister in the usual sense of that word, the true position was not present to the Barrister’s mind at the time that he wrote the letter. As was suggested in submissions, it is possible for something to be known yet not to be present to one’s mind at a particular point of time, such that a mistake is made in stating the position.

122 In addition, we have considered what motivation the Barrister might have had for consciously misstating the position as to the report from Dr Newlyn. It might be thought that the misstatements by the Barrister to the Bar Association, in a limited way, promoted the Barrister’s interests in that the statements suggested that the Barrister had been active in causing a psychiatric report to be obtained and that that action produced a favourable outcome for his client. Nonetheless, it is difficult to see how on any objective basis they could have been of more than limited assistance to the Barrister in repelling a complaint as to the content of his 25 October 2004 letter to Client 3 which said that she should have panic attacks.

123 These considerations have caused us to hesitate before making a finding of professional misconduct in relation to this matter. Ultimately however we have not found them decisive as, first, the Barrister did not contend that he did not know the true facts, or give any convincing evidence that he was actually mistaken as to the facts when he wrote the letter. Secondly, it was clear from the Barrister’s evidence that he was prepared in his dealings with the Bar Association to tell lies in an indiscriminate fashion to do whatever he could to promote what he saw as his interests. In this regard, he gave evidence as follows:

Q. Let's go back up to paragraph 15 [of his letter of 16 November 2005 to the Bar Association]. … That's also untrue, isn't it?

A. That is totally untrue. I was saying anything to get myself out of trouble that was the stupidity of it. (transcript 26 February 2008, page 32).

124 Later in his evidence about the Client 1 matter he said:

“I know why I said that, I was trying to improve my position as I did with a lot of the other things in there. I was just saying anything focusing (?) to get the blame away from me”. (transcript 26 February 2008, page 39).

125 This evidence suggests to us that a belief that he would derive even only limited assistance from a misstatement of facts was regarded by the Barrister as sufficient to justify a misstatement being made.

126 In connection with this Bar Investigation matter itself, the Barrister gave evidence that:

“I obviously was aware a report hadn’t been prepared but when I wrote this letter I thought that I’d answered the Bar Association, they’d be satisfied and everything would go away …”. (transcript 26 February 2008, page 60).
This evidence gives some additional, implicit support for what we have concluded above concerning the Barrister’s motivation.

127 At times during submissions, it was put on the Barrister’s behalf that he deluded himself into thinking that the contents of his letter were true or that he was deluded that writing such a letter would benefit him. Further, the submission was made that holding a delusional belief is not professional misconduct. While it is difficult to understand the workings of the Barrister’s mind when he came to write the letter of 11 May 2005, the medical evidence does not support a conclusion that the Barrister was delusional in any psychiatric sense. We have already noted above Dr Diamond’s uncontested conclusions on page 11 of his report of 27 May 2008 that the Barrister “has not suffered a frank psychiatric illness that has interfered with his perception of reality. He is not prone to psychiatric illness that causes delusional interpretations of his environment or circumstances.” We accept that evidence.

128 Reputable and competent practitioners would reasonably regard the sending of the 11 May 2005 letter, containing the false statements concerning the non-existent report of Dr Newlyn, as dishonourable and disgraceful. We believe that would be so notwithstanding the Barrister’s Borderline Personality Disorder. In other words, we do not believe that carelessness or impulsiveness can be relied upon to excuse the conduct the subject of this complaint. Further, the Barrister had a duty of candour in his dealings with the Bar Association and its breach amounts to professional misconduct: see A Solicitor v Council of the Law Society of New South Wales [2004] 216 CLR 253 at [30]. In that case, the Court was concerned with non-disclosure to the Law Society by a solicitor. Positive and knowing misstatement, as here, is a fortiori.

129 We accordingly find that the Barrister made knowingly false statements to the Bar Association in the course of the Bar Association’s investigation of the Client 3 matter and was, as a result, guilty of professional misconduct in respect of this matter also.

Conclusion

130 Our conclusion is the Barrister was guilty of professional misconduct in respect of the conduct alleged in the Client 1 matter, 16 November 2005 Letter, Client 3 and the Bar Association Investigation matters. He was guilty of unsatisfactory professional conduct in respect of the matters alleged in the Client 2 proceedings.

131 We do not consider that the replacement of the 1987 Act by the 2004 Act is of any present significance as our findings of professional misconduct are based upon the common law meaning of that expression. Professional misconduct in the sense understood at common law falls within the ambit of professional misconduct under both of these statutes. So far as unsatisfactory professional conduct is concerned, there is no presently material difference between the definitions in the two statutes.

132 In reaching these conclusions we have kept in mind the requirement in Briginshaw v Briginshaw (1938) 60 CLR 336 that the matters be proved to the reasonable satisfaction of the Tribunal having regard to the seriousness of the allegations made against the Barrister, the inherent unlikelihood of conduct of this nature occurring and the gravity of the consequences flowing from our findings.

133 The four applications should be listed for Directions on 2 October 2008 at 9:30am for the purpose of fixing a date for a hearing on the appropriate orders to be made.

I HEREBY CERTIFY THAT THIS IS A TRUE AND ACCURATE RECORD OF THE REASONS FOR DECISION OF THE ADMINISTRATIVE DECISIONS TRIBUNAL.

REGISTRAR