Portale v Law Society of New South Wales (LSD) - [2003] NSWADTAP 5

No judgment structure available for this case.

Appeal Panel - Internal

CITATION: Portale -v- Law Society of New South Wales (LSD) [2003] NSWADTAP 5 revised - 12/03/2003

PARTIES: APPELLANT
Giuseppe Portale
RESPONDENT
Council of the Law Society of New South Wales

FILE NUMBER: 019020

HEARING DATES: 30/11/2001

SUBMISSIONS CLOSED: 11/30/2001

DATE OF DECISION:
03/07/2003

DECISION UNDER APPEAL:
Law Society of New South Wales -v- Portale [2001] NSWADT 68

BEFORE: Needham CA SC- (Deputy President); Cox R - Member; Hayes E - Member

CATCHWORDS: adequacy of reasons - consequence of disbelieving evidence

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 002003

DATE OF DECISION UNDER APPEAL: 05/04/2001

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Act 1987

CASES CITED: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 149
Donovan v Edwards [1922] V.L.R 87
De Iacono v Lacanale [1957] V.R. 553
Petttit v Dunkley (1971) 1 NSWLR 376
Donges v Ratcliffe (1975) 1 NSWLR 501
Carlson v King (1947) 64 W.N. (NSW) 65
Barwick v Law Society of New South Wales [2000] HCA 2
Beesley v Commissioner of Police [2001] NSWADTAP 8
Law Society of New South Wales v Foreman (1994) 34 NSWLR 408
Dornan v Riordan (1990) 24 FCR 564
Jack v Smail (1905) 2 CLR 684
Steinberg v Commissioner of Taxation (1975) 134 CLR 640

REPRESENTATION: APPELLANT
C Evatt, barrister
RESPONDENT
D Barton, solicitor

ORDERS: 1. The appeal on questions of law is allowed.; 2. Subject to any submissions from the parties, leave is granted to extend the appeal to the questions of fact identified in the Notice of Appeal and to a full review of the merits; 3. The appeal on questions of fact to be fixed for hearing on dates convenient to the parties; 4. Costs reserved.

1 The Appellant ("the Solicitor") appeals from a judgment of this Tribunal reported at [2001] NSWADT 68.

2 The Law Society by an Information filed 24 February 2000 alleges that the Solicitor was guilty of professional misconduct on the grounds that:

Particulars of the alleged misconduct are contained in the Schedule to the Information.

3 The Tribunal held the complaints were established in relation to all but one of the matters particularised. The Tribunal held that the Solicitor had committed statutory and general law professional misconduct of such nature and extent that he was not a fit and proper person to remain in practice as a legal practitioner and ordered that his name should be removed from the roll.

4 The Solicitor now appeals by Notice of Appeal dated 16 May 2001. The Appeal is made on questions of law. The Solicitor seeks leave to extend his appeal to a review of the merits of the Tribunal’s decision.

5 On 5 June 2001 the Law Society filed a Notice of Reply to the appeal.

6 Both parties were represented on the hearing of the appeal, the Solicitor by Mr C Evatt of counsel and the Law Society by Mr D Barton, solicitor. Both parties provided detailed written submissions and also made oral submissions. The Appeal Panel received the materials in the agreed Appeal Books.

7 At the hearing, the Solicitor relied on grounds 1, 4 and 5 of the Notice of Appeal. These are as follows:

8 The Solicitor submits that he admitted 10 of the 12 complaints and substantially admitted matters of fact as particularised in the Schedule to the Information. The Solicitor concedes for the purpose of this appeal only, that the remaining matters of Ellis and Bouradas were also established at the hearing.

9 The Solicitor submits that in his Reply, affidavits, prior statements to the Law Society and his evidence at the hearing, he was honest and frank in admitting and disclosing various matters, that his admissions were full and extensive and that the Tribunal failed to take this into account or alternatively, failed to give sufficient weight to his admissions and concessions when determining the appropriate order to be made.

10 We note that there is reference in the transcript to a document handed up at the commencement of the hearing by counsel for the Solicitor, apparently to clarify the extent of the admissions or concessions made, however that document is not included in the agreed Appeal Papers and was not relied upon by counsel in this appeal.

11 The Society submits that the Tribunal did take the admissions into account and did give sufficient weight to them, that the admissions were not full or extensive, that the Solicitor was not frank or candid with the Tribunal and that, given the limited extent of the admissions made, it was a factor of little if any weight in connection with the appropriate order to be made.

12 The Solicitor submits that he admitted ten of the twelve complaints of wilful breach of the trust account provisions, in the sense that he admitted he had applied or used trust funds in the ways alleged in the particulars, and admitted that in so doing there had been a breach of the relevant provisions. However the admissions did not extend to an admission of professional misconduct by a "wilful" breach of the provisions, being conscious that he was acting in breach of the regulations or recklessly careless of whether he was in breach or not. There was no admission that the Solicitor had deliberately prepared any false document or intentionally committed the other professional misconduct alleged. On the contrary, the Solicitor put forward affidavit evidence explaining his conduct on innocent grounds and was extensively cross-examined upon this evidence at the hearing. The admissions were limited, in the main, to matters readily provable by the tender of documents such as accounting records, file notes and letters. In these circumstances the making of admissions did not produce any substantial saving of hearing time or legal costs.

13 For example, if one takes the first matter, the estate of Towler, the Solicitor admitted that while acting for an executor he caused the proceeds of the deceased’s bank accounts to be deposited into his trust account, then withdrew the money and caused it to be deposited into his office account. He did not admit that he had no instructions or authority to transfer those funds to his general account, nor did he admit that he prepared a false diary note of an alleged conversation with the executor authorising the transfer of funds, which the Law Society alleged was a deliberate fabrication to give the appearance of legitimacy to what he had done. In his Reply, the Solicitor asserted that he believed that he was entitled to the funds and said the transfer was a careless but not a wilful act. He explained the diary note as an aide memoire of matters he intended to discuss with his client.

14 This left the Solicitor’s motivation and intent very much in issue at the hearing in relation to the allegations of "wilful" breach of sections 61 and 62 of the Legal Profession Act. The purpose for and circumstances in which the diary note was prepared also remained in issue. We do not accept the Solicitor’s submission that, absent an allegation of "deliberate" preparation of false documents, no corresponding admission could have been made. An allegation of professional misconduct by the preparation of false documents clearly means intentional misconduct. This was made clear in opening by senior counsel for the Law Society. The Solicitor’s case at the hearing shows there was no misunderstanding about the nature of the complaints. Nonetheless admissions were made and this factor cannot be overlooked.

15 The Society submits that a failure to give sufficient weight to the making of admissions, as opposed to a failure to take that factor into account, constitutes an error of fact and falls outside section 113 of the Administrative Decisions Tribunal Act. We accept this submission. A failure to accord sufficient weight to the making of admissions is not an error of law, unless the Tribunal’s conclusion is so plainly wrong as to constitute an error of law, or shows that the Tribunal misunderstood the relevance of the admissions or reaches such a perverse decision as to suggest that an error of law occurred in its reasoning process: Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 149. This is not such a case, indeed the Solicitor did not submit that it is.

16 We now consider whether the Tribunal failed to take into account, as a factor relevant to the appropriate order to be made, the fact that the Solicitor had made early admissions and concessions.

17 The Reasons for Decision make reference to the making of admissions by the Solicitor in paragraphs 3, 60, 64 and 65. Additionally one can deduce from the summary of facts appearing under each of the headings in the Reasons that the Tribunal was certainly aware of the nature and extent of the admissions that were made. A comparison of the summary of facts for each matter with the Reply, shows that the summary repeats the admissions made in the Reply, with the addition of a few non-contentious details such as amounts and dates.

18 The admissions were taken into account by the Tribunal in determining whether each of the complaints had been established by the Law Society. However the Reasons do not disclose that the making of admissions was taken into account when considering what order should be made. The Reasons fail to indicate that the Tribunal addressed its mind to the making of admissions by the Solicitor or what weight (if any) was placed on that factor in the Solicitor’s favour when exercising its discretion in deciding the appropriate order to be made.

19 The making of admissions, especially at an early stage, is a relevant and important factor bearing upon the order to be made, and must be taken into account. For this reason it is customary and necessary in Reasons to refer to the circumstance that admissions were made and to indicate what weight, if any, has been given to that factor. A failure to consider a relevant factor, in the proper context, is an error of law.

20 The omission is not cured by the statement in paragraph 72 that:

"In light of these principles the Tribunal has given careful consideration to the competing contentions as to the appropriate orders to be made having regard to the whole of the evidence before it".

The "contentions" are not identified in the Reasons.

21 Compendious statements of this level of generality do not sufficiently disclose the Tribunal’s reasoning process. There is no identification of the factors that were taken into account by the Tribunal in reaching its ultimate decision, or the weight that was accorded to each factor. It is impossible to know what if any consideration was given by the Tribunal to the circumstance that admissions were made at an early stage and to any further concessions made at the hearing.

22 In Donovan v Edwards [1922] V.L.R 87 at 88 Irvine CJ spoke of the "duty which attaches to every judicial officer to state, to the best of his ability, the facts he finds and the reasons for his decision".

23 DeIacono v Lacanale [1957] V.R. 553 on an appeal from the Victorian Fair Rents Board, Monahan J. observed:

"From what I have said it should be clear that it is my view that in regard to determinations such as those now appealed from it is eminently desirable that the Board’s reasons for its decisions should be explicitly stated at the time of the determinations whether or not any request for those reasons be made by the parties or their legal representatives...it is also my view that for a magistrate to content himself with saying ‘I have reached my decision after having considered all of the matters which the statute requires me to consider’ is not a proper fulfilment of the obligation which rests upon him as a judicial officer to see that reasons are explicitly stated".

24 These observations were quoted with approval in Petttit v Dunkley (1971) 1 NSWLR 376 at 380 and Donges v Ratcliffe (1975) 1 NSWLR 501 at 506. Although those cases dealt with decisions of judges and magistrates, they apply with equal force to decisions of this Tribunal.

25 So too do the observations of Jordan CJ in delivering the judgment of the Full Court in Carlson v King (1947) 64 W.N. (NSW) 65 that:

"It has long been established that it is the duty of a court of first instance, from which an appeal lies to a higher court, to make, or cause to be made, a note of everything necessary to enable the case to be laid properly and sufficiently before the appellate court if there should be an appeal. This includes not only the evidence and the decision arrived at, but also the reasons for arriving at the decision."

The Administrative Decisions Tribunal Act grants a right of appeal to the Appeal Panel and then to the Court of Appeal. That right would be rendered nugatory if the Tribunal at first instance fails to state its findings on facts in issue and necessary to establish the complaint, or relevant to the order made, or upon contested matters of law, together with its reasons for so finding or deciding. Additionally a complete statement of findings and reasons is necessary for the information of the parties. This is the general rule, and although there may be some exceptional cases, this is not one of them.

26 The Reasons do not disclose that the Tribunal gave consideration to the fact that admissions had been made by the Solicitor or that this factor was taken into account in the proper context.

27 We uphold the appeal on ground 1.

Ground 4 - Character Evidence

28 Ground 4 alleges that the Tribunal failed to take into account or give sufficient weight to the character testimonials and other matters identified in the Notice of Appeal. These matters were identified in the Solicitor’s oral submissions as:

Barwick v Law Society of New South Wales

29 The Solicitor submits that the Tribunal failed to consider the entire case on mitigation put by the Solicitor, and failed to consider the above relevant matters in reaching its decision on the appropriate order to be made. The submissions focussed upon the nine testimonials which the Solicitor submits provided strong evidence of his good character, yet were not considered by the Tribunal when deciding the appropriate order to be made.

30 The Law Society refers to the transcript which shows that the testimonials were read and considered by the Tribunal and further submits that the Tribunal is not obliged to adopt or even take into account the views expressed by character witnesses, but must make its own assessment as to the legal practitioner’s character. It is submitted that the character evidence is in any event of little if any weight, since the deponents were not fully informed of the nature and extent of the Solicitor’s misconduct, with the possible exception of his aunt who attended the first day of the hearing.

31 The factors identified by the Solicitor are relevant factors to be taken into account in deciding what order should be made. As we have said in relation to ground 1, a failure to take a relevant matter into account is an error of law for which an appeal will lie.

32 A failure to accord sufficient weight to one or more relevant factors is an error of fact, which we do not consider further at this stage of the appeal.

33 It is clear from the Reasons for Decision, paragraph 5, and from the transcript, especially pages 126 and 142, that the Tribunal read and closely considered the testimonials as to the solicitor’s character. Indeed the members of the Tribunal addressed specific questions concerning that evidence to the Solicitor’s counsel at the hearing below. In closing submissions at the hearing, counsel for the Solicitor drew the Tribunal’s attention to the importance and weight of that evidence, which was also covered in the submissions for the Law Society at the hearing below.

34 However this does not necessarily mean that those matters were present in the Tribunal’s mind when considering what order should appropriately be made. Unless the Reasons disclose the factors that were taken into account, and the weight given to them, one simply does not know the reasoning process leading to the Tribunal’s decision. This is why the authorities require that tribunals such as this must clearly disclose their reasons for making each finding and order.

35 Character references are a relevant and important factor. They must not be overlooked. If they are of little or no weight, it is customary to say so and to identify why this is so.

36 Except for the request to practise as an employed solicitor, the Reasons do not disclose that the Tribunal considered the character evidence when deciding what order would be appropriate, or the other factors upon which the Solicitor relied in his favour, whether they were discounted or what weight was given to each factor. As we have said above, the formula in paragraph 72 is not a sufficient statement of Reasons.

37 We uphold the appeal on ground 4.

38 At the hearing the Solicitor put a further submission relating to the matters of Towler and Walton. The submission is that the Tribunal failed to make a make a specific finding on whether the file note was prepared deliberately, this being relevant to the Tribunal’s decision on the appropriate order to be made. We deal with this submission under ground 5.

Ground 5 - Findings and Reasons

39 Ground 5 alleges that the Tribunal failed to give sufficient or proper reasons for its finding of professional misconduct. The Solicitor submits the Tribunal failed to make specific or detailed findings in relation to each of the allegations particularised in the Schedule and has erred in law by making compendious findings of wilful breach and professional misconduct and by failing to give any proper reason for its findings.

40 The Law Society submits the Tribunal did make adequate findings on contested facts and that specific findings were unnecessary in relation to admitted facts. The latter submission is clearly correct. We did not understand the Solicitor’s submission to extend to admitted facts.

41 In addition, the Society submits that a failure to give sufficient reasons, as compared to a failure to give any reasons, constitutes an error of fact and not of law so as to fall outside section 112 of the governing Act: Beesley v Commissioner of Police [2001] NSWADTAP 8 at par 25. We accept this submission.

42 We now consider whether the Tribunal erred in law by failing to make findings on contested facts or failing to give reasons for its decision.

43 Section 89(1) of the Administrative Decisions Tribunal Act requires the Tribunal to serve a copy of its decision on each party. Subsections (2) and (3) permit reasons to be given orally, but provide that in this event written reasons must be provided upon request. Subsection (5) provides:

44 Although s.89(5) is directed only to decisions where prior oral reasons have been given, this is apt to mislead. As we have indicated, the general law makes it clear that a Tribunal of this nature has a broader obligation to give reasons, irrespective of the form in which the decision is delivered, although in practice less detail is expected in an ex tempore or interlocutory decision. The legislature displays no intention to displace the general law in this regard and the obligation to give reasons for decision applies with full effect to this Tribunal.

45 At the hearing of the appeal it was common ground that the Tribunal is obliged as a matter of law to make necessary findings of fact or law, to state its findings of fact with clarity and to give reasons for its findings and its decision. The contest is whether the Tribunal met that obligation in these proceedings.

46 The Reasons for Decision commence with an introductory section which recites the grounds of complaint in the Information, the Solicitor’s admission of all but three complaints, identifies the affidavits that were in evidence and records that the Solicitor gave oral evidence at the hearing.

47 Separate headings then follow for each client particularised in the Schedule to the Information, and for the section 62 breaches. Each heading commences with a narrative of facts, followed by a summary of the specific evidence or explanation given by the Solicitor in relation to the matter. As we have already said, the narrative section corresponds with the facts admitted in the Reply, with the addition of certain non-contentious details such as dates and amounts.

48 The section entitled "The Tribunal’s Findings" follows. This comprises paragraphs 61-64 which set out the meaning of "wilful" in sections 61 and 62 of the Legal Profession Act (paragraph 61), the Tribunal’s finding as to the Solicitor’s credit and a rejection of his "explanations" (paragraph 62), a compendious finding that the Law Society had established the complaints in the matters of Towler, Tan, Petersen, Tonkin, Ellis, G Tan, Khoury, Walton, Hanna, Bouradas, Chadaeng and Freixas ("the twelve matters") and a finding of professional misconduct in relation to those complaints (paragraph 62), a compendious finding in relation to the immigration matters that the complaint was made out (paragraph 64) and a negative finding in the matter of Francica (paragraph 63).

49 Then follows a section entitled "Professional Misconduct Generally" comprising paragraphs 65-66. This contains an analysis of the relevant principles and a finding that the Solicitor’s conduct satisfies the common law test of professional misconduct.

50 Then follows a section headed "the Solicitor" which summarises his career history, the appointment of a receiver to his practice and rejects the submission that he lacked an understanding of his trust account regulations or sections 61 and 62 of the Act.

51 The "Conclusion" discusses the principles in Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, addresses and rejects the Solicitor’s request to remain in practice as an employed solicitor and an order for removal from the roll is made.

52 The Solicitor submits that the compendious expression of findings in paragraph 62 does not meet the Tribunal’s duty to make findings and that the Tribunal is obliged to make specific findings of fact in relation to each of the innocent explanations or evidence of the Solicitor given in his affidavits and at the hearing. Reliance is placed on Pettit v Dunkley [1971] 1 NSWLR 376 and Dornan v Riordan (1990) 24 FCR 564. In particular the Solicitor submits the Tribunal erred in law by failing to make a specific finding, in each matter, of whether the Solicitor acted wilfully in breach of the trust account provisions and, in the two matters alleging preparation of a false documents, failed to make a finding on whether the conduct was deliberate.

53 The Solicitor further submits the Tribunal erred in law by failing to make any findings at all on whether the Solicitor acted deliberately in preparing false documents. While conceding that it was not necessary to find the Solicitor acted deliberately to establish those complaints (absent an allegation of deliberate conduct in the Information), the Solicitor submits that it was relevant for the Tribunal to determine whether the Solicitor deliberately prepared the documents or not, before deciding what order should be made in the proceedings and by failing to do so, the Tribunal failed to take into account a relevant factor.

54 We are not sure that the concession is not overgenerously made by the Solicitor’s counsel. A complaint of professional misconduct by preparing a false document carries the connotation that it was deliberately prepared. The opening to the Tribunal by the Law Society made it clear that what was alleged was deliberate fabrication of a false document and intentional misconduct in all matters. However if we are wrong on this, we agree with the Solicitor’s submission that it is relevant to the issue of the appropriate order, to make a finding on whether or not the Solicitor deliberately prepared the documents complained of.

55 The Solicitor also submits that the Reasons fail to disclose the factors taken into consideration by the Tribunal in reaching its decision and that there has been a clear failure to give reasons for the decision.

56 The Society submits that the Tribunal is not obliged to express its findings of fact or on credit with the degree of specificity for which the Solicitor contends, that the form in which findings and reasons are presented is a matter of form and style not of substance, and that paragraph 62, although expressed compendiously, covers all the issues on which findings needed to be made.

57 We are not at this stage of the appeal considering whether the findings accord with the weight of evidence, that is a question of fact for any merits appeal.

58 The appeal raises the question of the form and specificity with which findings of fact or credit must be expressed. The Tribunal’s obligation is to make a finding on each contested issue of fact, credit or law, which is relevant to establish the complaint and properly exercise its discretion in deciding what order should be made. The Tribunal must then set out its findings together with the reasons why it made those findings and reached the decision that it did.

59 In this case, the Tribunal did not state specific findings of fact, or express its findings by reference to each complaint. Paragraph 62 states:

"The overall impression that the Tribunal gained of Mr Portale’s evidence was that he was not a straightforward witness and when tested on his own evidence he was at times unwilling to make an admission against his own interest. His explanations tended to be inconsistent with his own evidence, evasive or lacked credibility. As a consequence the Tribunal does not accept his explanations and finds that the Society has satisfactorily made out its complaints in relation to [the twelve] matters and the Solicitor is hereby found guilty of professional misconduct in relation to those complaints."

60 The Tribunal held that in each of the twelve matters, the Society had established its complaints. The complaints in those matters were:

61 By holding the complaints established, the Tribunal has by inference found against the Solicitor on each contested issue of fact necessary to establish the complaints. The contested facts are ascertainable by reference to the earlier discussion in the reasons under each of the client headings and by reference to paragraph 61 which directs attention to the requirement of "wilful" breach. By reading paragraphs 61 and 62 together with the summary of facts given earlier in the Reasons for each matter, it is possible to determine what findings are rolled up in paragraph 62.

62 The Solicitor submits that the obligation to state findings requires that each finding should be stated separately. Certainly this would be of assistance to the parties and any appellate tribunal or court. However this is a matter of style and form and not one of substance. Provided all relevant findings are disclosed in some way, it is not necessary that they be separately enumerated or presented specifically in relation to each ground or each complaint. Pettit v Dunkley does not go so far.

63 The Tribunal’s reasons for its findings are also expressed compendiously in paragraph 62 as follows (underlining added): "As a consequence the Tribunal does not accept his explanations and finds that the Society has satisfactorily made out its complaints [in the twelve matters]".

64 The Tribunal has made its findings of wilful breach and deliberate misconduct by rejecting the Solicitor’s explanations of innocent intent or carelessness. It is not permissible to find that a fact is established by disbelieving the Solicitor’s evidence to the contrary, indeed this is generally an error of law: Jack v Smail (1905) 2 CLR 684 at 698 per Griffith CJ; Steinberg v Commissioner of Taxation (1975) 134 CLR 640 at 694 per Gibbs J (as he then was), 7 ALR 491 at 504.

65 The consequence of disbelieving the evidence or explanation given by a witness or a party is to leave the particular issue as one on which there is no evidence. An adverse finding can only be made if there is other evidence to support the finding. This is particularly so given the degree of satisfaction called for by the Briginshaw test which the Tribunal must apply.

66 The Tribunal has failed to identify any evidence or circumstances upon which it relied in reaching its findings of fact, other than to state that it did not accept the Solicitor’s explanations. Accordingly the Tribunal has either given no reasons for its findings, or has followed an erroneous reasoning process. In either case, the Tribunal has failed to give any proper reasons and has erred in law.

67 We note that in paragraphs 65 and 66 under the heading "Professional Misconduct Generally" held:

Allison v General Counsel of Medical Education and Registration

68 The concession referred to did not extend to an admission of wilful or deliberate conduct and accordingly does not cure the lack of proper reasons for the findings of statutory professional misconduct.

69 We also note the reasons given in paragraph 70 which says:

"[T]he offences complained of commenced very shortly after the Solicitor went into sole practice ...Whilst this was not put forward as an excuse for his behaviour, it was offered by way of explanation for the Solicitor’s lack of understanding of his obligations as far as the trust account was concerned. The Tribunal finds it difficult to accept that a Solicitor of 6 years standing and one whom had recently undertaken the compulsory preparatory course to prepare him for sole practice did not understand the basics of s61 and s62 of the Act. Furthermore the offences continued until December 1994 shortly before the Solicitor’s practising certificate was cancelled".

70 Had this reasoning been adopted at an earlier stage of the Reasons for Decision, in deciding whether the [twelve] complaints were established, it may well have constituted evidence capable of supporting the findings. The Tribunal might have reasoned that the Solicitor, being aware of his obligations under the trust account provisions, necessarily acted "wilfully" when he acted in the way he admitted he had done. However paragraph 70 appears in a later part of the Reasons for Decision and in a different context, so that it does not serve to cure the failure to give proper reasons in reaching its findings or decision.

71 We uphold the appeal on ground 5.

Leave to appeal on the merits

72 The Solicitor has established that the Tribunal has erred in law in several ways. Each error of law vitiates the Tribunal’s decision.

73 Accordingly there must be a fresh examination of the whole of the evidence. Subject to hearing any submissions to the contrary which either party wishes to make, we propose to grant leave to extend the appeal to an appeal on the merits.

74 We request the parties to inform the Registry if they wish to be heard further on the application for leave to extend the appeal to an appeal on the merits. If not, the merits appeal will be fixed for hearing on dates convenient to the parties.

75 If the parties do wish to be heard on the leave application, written submissions may be made within 4 weeks together with any request to present oral submissions on the leave application.

Orders

1. The appeal on questions of law is allowed.

2. Subject to any submissions from the parties, leave is granted to extend the appeal to the questions of fact identified in the Notice of Appeal and to a full review of the merits.

3. The appeal on questions of fact to be fixed for hearing on dates convenient to the parties.

4. Costs reserved.

Revision - 11 March 2003

Par 54 3rd last line, should be "relevant to THE issue"

Par 55 3rd line should be "decision AND"

Par 58 2nd last line should be "reasons WHY it made"

Par 61 4th line should be "earlier discussion IN THE Reasons"

Par 64 3rd line should be "Carelessness" instead of "careless conduct"

Par 64 4th line should be "find that A fact is established"

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Citations

Portale v Law Society of New South Wales (LSD) [2003] NSWADTAP 5

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CITATION:	Portale -v- Law Society of New South Wales (LSD) [2003] NSWADTAP 5 revised - 12/03/2003
PARTIES:	APPELLANT Giuseppe Portale RESPONDENT Council of the Law Society of New South Wales
FILE NUMBER:	019020
HEARING DATES:	30/11/2001
SUBMISSIONS CLOSED:	11/30/2001
DATE OF DECISION:	03/07/2003
DECISION UNDER APPEAL:	Law Society of New South Wales -v- Portale [2001] NSWADT 68
BEFORE:	Needham CA SC- (Deputy President); Cox R - Member; Hayes E - Member
CATCHWORDS:	adequacy of reasons - consequence of disbelieving evidence
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	002003
DATE OF DECISION UNDER APPEAL:	05/04/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 1987
CASES CITED:	Azzopardi v Tasman UEB Industries (1985) 4 NSWLR 149 Donovan v Edwards [1922] V.L.R 87 De Iacono v Lacanale [1957] V.R. 553 Petttit v Dunkley (1971) 1 NSWLR 376 Donges v Ratcliffe (1975) 1 NSWLR 501 Carlson v King (1947) 64 W.N. (NSW) 65 Barwick v Law Society of New South Wales [2000] HCA 2 Beesley v Commissioner of Police [2001] NSWADTAP 8 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Dornan v Riordan (1990) 24 FCR 564 Jack v Smail (1905) 2 CLR 684 Steinberg v Commissioner of Taxation (1975) 134 CLR 640
REPRESENTATION:	APPELLANT C Evatt, barrister RESPONDENT D Barton, solicitor
ORDERS:	1. The appeal on questions of law is allowed.; 2. Subject to any submissions from the parties, leave is granted to extend the appeal to the questions of fact identified in the Notice of Appeal and to a full review of the merits; 3. The appeal on questions of fact to be fixed for hearing on dates convenient to the parties; 4. Costs reserved.