Potkonyak v Legal Services Commissioner (No 2) - [2018] NSWCA 173

Court of Appeal

Supreme Court

New South Wales

Summary available
Amendment notes

Medium Neutral Citation: Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173
Hearing dates: 5 April 2018
Decision date: 08 August 2018
Before: Beazley P at [1];
Payne JA at [203];
Simpson AJA at [204]
Decision:
Appeal dismissed with costs

Catchwords: OCCUPATIONS – legal practitioners – appellant found guilty of professional misconduct in respect of his conduct of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – appellant removed from roll – whether Tribunal should have considered proper interpretation of the Act – whether Tribunal denied appellant procedural fairness by failing to consider appellant’s evidence and submissions – whether Tribunal failed to give adequate reasons – whether Tribunal should have permitted appellant to adduce evidence regarding prior complaints – whether there was a reasonable apprehension of bias on the part of the Tribunal
Legislation Cited: Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 90, 91
Civil and Administrative Tribunal Act 2013 (NSW), s 62, Sch 5
Civil Procedure Act 2005 (NSW), s 99
Legal Profession Act 2004 (NSW), s 562
Legal Profession Uniform Law (NSW), ss 496, 497, 498, Sch 4
Professional Conduct and Practice Rules 2013 (NSW), rr 3, 4, 5
Revised Professional Conduct and Practice Rules 1995 (NSW), Advocacy Rules 23, A.36, A.37
Supreme Court Act 1970 (NSW), ss 48, 75A
Cases Cited: Akins v National Australia Bank (1994) 34 NSWLR 155
Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369
Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40
Department of Family and Community Services re GKD (Children’s Court of New South Wales, unreported, Magistrate Murphy, 26 April 2013)
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63
Ellis v Law Society [2008] EWHC 561
Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45
Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364
HK v Director General, Department of Family and Community Services (District Court of New South Wales, unreported, Balla DCJ, 7 August 2013)
JL v Secretary, Department of Family and Community Services [2015] NSWCA 88
Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59
Law Society of New South Wales v Walsh [1997] NSWCA 185
Lawrence v Gunner (No 3) [2016] NSWCA 18
Legal Services Commissioner v Potkonyak (No 2) [2017] NSWCATOD 134
Louise v Director General of Community Services [2011] NSWSC 1646
Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23
McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284
New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20
New South Wales Bar Association v Meakes [2006] NSWCA 340
Potkonyak v Legal Services Commissioner [2018] NSWCA 1
Preston v Green (1944) 61 WN (NSW) 204
Re Felicity (No 2) [2012] NSWSC 1561
Re Felicity; FM v Secretary, Department of Family & Community Services (No 4) [2015] NSWCA 19
Re Felicity; FM v Secretary, Department of Family & Community Services (No 3) [2014] NSWCA 226
Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36
Tjiong v Tjiong [2012] NSWCA 201
Walter v Council of Queensland Law Society Inc (1988) 77 ALR 228; [1988] HCA 8
Weaver v Law Society of New South Wales (1979) 142 CLR 201; [1979] HCA 35
Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category: Principal judgment
Parties: George Potkonyak (Appellant)
Legal Services Commissioner (Respondent)
Representation:
Counsel:
In person (Appellant)
C A Webster SC; P A Maddigan (Respondent)
Solicitors:
In person (Appellant)
Office of the Legal Services Commissioner (Respondent)

File Number(s): 2018/24893
Decision under appeal

Court or tribunal:

Civil and Administrative Tribunal

Jurisdiction:

Occupational Division

Citation:

Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74; Legal Services Commissioner v Potkonyak (No 3) [2018] NSWCATOD 8

Date of Decision:

17 May 2017; 9 January 2018

Before:

F Marks ADCJ Principal Member;C Ludlow Senior Member;M Bolt General Member

File Number(s):

2015/383950

Headnote

[This headnote is not to be read as part of the judgment]

The appellant was found guilty of professional misconduct by the Civil and Administrative Tribunal of NSW (the Tribunal) in respect of his conduct of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act). The Tribunal ordered that the appellant be removed from the roll of lawyers of the Supreme Court of NSW.

The respondent’s disciplinary application raised a number of complaints, central to which was the fact that the appellant continually propounded an interpretation of the Care Act that was contrary to authority. The respondent alleged that the appellant: conducted himself inappropriately in court by making various offensive and unsubstantiated statements about a Children’s Court magistrate and the opposing parties; breached his duties to the administration of justice and his clients; misled the court; and consistently engaged in conduct falling short of the standard of competence and diligence expected of a reasonably competent legal practitioner. The Tribunal held that it was satisfied that the complaints were made out.

On appeal, the appellant raised a number of issues with the manner in which the Tribunal came to its determination. The principal issues were:

1. Whether the Tribunal should have considered the correctness of the authorities on the construction and application of the Care Act, which the appellant contended were wrong (Ground 1);

2. Whether the Tribunal erred in finding that the impugned statements were offensive and that the appellant did not have reasonable grounds upon which to make them (Ground 2);

3. Whether the Tribunal failed to have regard to the appellant’s evidence and submissions, and thus denied him procedural fairness (Ground 3);

4. Whether the Tribunal failed to give adequate reasons for its findings (Ground 4);

5. Whether the Tribunal should have permitted the appellant to adduce evidence in respect of several prior complaints made against him (Ground 5);

6. Whether there was a reasonable apprehension of bias on the part of the Tribunal (Ground 6); and

7. Whether the Tribunal erred in finding that the appellant was guilty of professional misconduct and ordering that the appellant be removed from the roll (Ground 7).

The Court (Beazley P, Payne JA and Simpson AJA) held, dismissing the appeal:

In relation to Ground 1

Beazley P (Payne JA agreeing) and Simpson AJA (Payne JA agreeing)

(i) It was not the function of the Tribunal to conduct a review of the correctness of the authorities on the construction and application of the Care Act. Nor was it the function of the Court to do so on the appeal. Although a challenge may be made to existing statements of the law, it must be done so in accordance with well-established legal principles and procedures: [29], [31], [34]-[35], [181]-[183], [307], [313], [316]-[318], [335].

In relation to Ground 2

Beazley P (Payne JA agreeing)

(ii) The Tribunal did not err in finding that the impugned statements were offensive and that the appellant did not have reasonable grounds upon which to make them: [44]-[46], [55]-[56], [66], [71], [76], [86], [100].

In relation to Ground 3

Beazley P (Payne JA agreeing) and Simpson AJA (Payne JA agreeing)

(iii) The Tribunal gave sufficient consideration to the appellant’s evidence and submissions in respect of each ground of complaint, and thus the appellant was not denied procedural fairness in this regard: [47], [57], [121], [323]-[327].

In relation to Ground 4

Beazley P (Payne JA agreeing) and Simpson AJA (Payne JA agreeing)

(iv) The Tribunal gave adequate and comprehensive reasons for its findings. It made findings on material questions of fact, referring to the evidence and submissions of the parties, determined the matter on the basis of the applicable law and made clear why it came to the conclusions that it did: [188], [319].

In relation to Ground 5

Beazley P (Payne JA agreeing)

(v) The Tribunal did not err by not permitting the appellant to adduce evidence in relation to the prior complaints, which had been determined by the Legal Services Commissioner and in respect of which the appellant had not exercised his rights of appeal. Further, the appellant’s application for leave to adduce further evidence in this Court should be rejected: [164]-[169].

Preston v Green (1944) 61 WN (NSW) 204; McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70; Akins v National Australia Bank (1994) 34 NSWLR 155; Tjiong v Tjiong [2012] NSWCA 201; Lawrence v Gunner (No 3) [2016] NSWCA 18 considered.

Simpson AJA (Payne JA agreeing)

(vi) The appellant’s application for leave to adduce further evidence in this Court was unsupported by adequate material to establish a proper basis for the exercise of discretion in his favour: [337].

In relation to Ground 6

Beazley P (Payne JA agreeing)

(vii) The appellant failed to demonstrate that a fair-minded lay observer might reasonably apprehend that the Tribunal might not bring an impartial mind to the disciplinary proceedings: [172]-[175].

Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 considered.

Simpson AJA (Payne JA agreeing)

(viii) The Tribunal’s reasons do not disclose any prejudice on the part of its members: [339].

In relation to Ground 7

Beazley P (Payne JA agreeing)

(ix) The Tribunal did not err in finding that the appellant’s conduct amounted to professional misconduct. Nor did the Tribunal err in ordering that the appellant be removed from the roll: [151]-[153], [201].

Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284; Ellis v Law Society [2008] EWHC 561; Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369; Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 considered.

Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45; Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 referred to.

Simpson AJA (Payne JA agreeing)

(x) The evidence disclosed that the appellant’s conduct fell short of the standard of competence and diligence expected of him and justified a finding that he is not a fit and proper person to engage in legal practice: [342].

Simpson AJA

(xi) However, the separate instances of the appellant’s conduct do not, in isolation, amount to professional misconduct and may not amount to unsatisfactory professional misconduct: [304]-[307].

Judgment

BEAZLEY P: This case is an appeal by the appellant, George Potkonyak, from a decision of the Civil and Administrative Tribunal of NSW (the Tribunal), comprising F Marks ADCJ, C Ludlow and M Bolt, delivered on 17 May 2017: Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74 (referred to by the Tribunal, and in these reasons, as the Stage 1 proceedings). In that decision, the Tribunal found that the complaints made by the Legal Services Commissioner (the Commissioner) against the appellant had been made out and that the appellant was guilty of professional misconduct. On 9 January 2018, the Tribunal ordered that the appellant’s name be removed from the roll of lawyers of the Supreme Court of NSW: Legal Services Commissioner v Potkonyak (No 3) [2018] NSWCATOD 8 (the Stage 2 proceedings).
On 16 January 2018, the Tribunal’s orders were stayed by an order made by McColl JA pending the determination of the appellant’s appeal from the Tribunal’s orders: Potkonyak v Legal Services Commissioner [2018] NSWCA 1.

Background

On 13 December 2016, the Commissioner commenced disciplinary proceedings against the appellant in respect of complaints made about him in relation to two sets of proceedings.
The first, referred to as the Re Felicity proceedings, concerned a series of cases about a mother’s custody of and contact with her child. The appellant represented the mother in the proceedings, which were commenced in the Children’s Court and subsequently in the Supreme Court of NSW, and were the subject of appeals to the District Court and this Court.
The second, referred to as the Judge Knox proceedings, also concerned parental care arrangements for the child of a mother represented by the appellant. The Judge Knox proceedings were commenced in the Children’s Court and were then the subject of an appeal to the District Court.

Commissioner’s grounds of complaint

Re Felicity proceedings

Complaint ground 1

The Commissioner’s first complaint was that the appellant “conducted himself inappropriately at the hearing in the Parramatta Children’s Court from 2 to 4 April 2013”. The substance of this complaint was that the appellant made the following offensive and unsubstantiated statements to the presiding magistrate, Magistrate Murphy:

He stated that:

“… whether we consented or not it was already pre-determined that leave would be granted so this was pointless to argue anything and then we wouldn’t have right to appeal to the District Court …”

even though he had withdrawn the mother’s application pursuant to the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care Act), s 90.

He submitted that the Director-General of the Department of Family and Community Services (the Director-General) was engaging in an abuse of process and stated that it was below his dignity to take part in proceedings of this kind.
He submitted that the Director-General and the other parties had a motive to:

“… get rid of me … because I do not comply with the standard practice in this court by the lawyers who put pressure on their clients to consent to everything what (sic) the Director-General asked for in order to appease [them].”

He submitted that “[m]y impression is that your Honour has really made up his mind and we are wasting our time and money here” and that “overruling my objection so easily off the cuff tells me that well your Honour is bent”.
He submitted “[w]hy doesn’t your Honour make the orders that we go home, wasting everybody’s time” and that “I said I have much more to say but I will refrain on this occasion, I will do it somewhere else”.
He stated that Magistrate Murphy had requested Legal Aid to discontinue considering the application of the step-sister of the child the subject of the proceedings for legal aid.

Before the Tribunal, the appellant, in large part, accepted that he had made these statements, but stated that he could prove that they were justified.
The Commissioner particularised the statements and allegations made by the appellant as both “offensive” and “unsupported by evidence”. The Commissioner also alleged that the effect of these statements was that the appellant breached the Revised Professional Conduct and Practice Rules 1995 (NSW), Advocacy Rules 23, A.36 and A.37, which each relate to matters of fact.

Complaint ground 2

The second ground of complaint was that the appellant:

“… conducted himself inappropriately at the hearing in the District Court on 18, 19 and 21 to 23 November 2013 in that he described the potential disqualification he faced as the solicitor for the mother when he was also a witness as ‘the plot by the father or the other parties to disqualify me’.”

The substance of this complaint was that this statement was both “offensive” and “unsupported by evidence”. A breach of Advocacy Rules 23, A.36 and A.37 was also alleged. Before the Tribunal, the appellant accepted that he “made the statement to the said effect and honestly believe that it was the case”.

Judge Knox proceedings

Complaint ground 3

The third ground of complaint was that the appellant “breached his duty to the administration of justice by criticising the Children’s Court”. The substance of this complaint was that the appellant made statements that the Children’s Court was engaging in “unlawful practice” and “illegitimate practice”, and thereby brought the administration of justice into disrepute, in breach of his duty to the administration of justice. Before the Tribunal, the appellant accepted that he made these statements, but contended that:

“… it is not [the appellant] who brought the administration of justice into disrepute but rather the conduct of the judicial officers, lawyers and those that are conducting their training in the interpretation of the child protection laws”.

Complaint ground 4

The fourth ground of complaint was that the appellant “misled the District Court”. The substance of this complaint was that the appellant prepared and filed an affidavit sworn by his client, the mother, which did not contain all relevant evidence in circumstances where he knew or ought to have known that evidence to the contrary was available in the subpoenaed documents of the mother’s former solicitor. Before the Tribunal, the appellant accepted that this was a “blunder”, but that it was made “under extreme time pressure brought about by the delay of the production of the material in response to the subpoena”.

Complaint ground 5

The fifth ground of complaint was that the appellant “breached his duty to his client”. The substance of this complaint was that the appellant pursued proceedings based upon:

“… his personal view of the proper interpretation of [the Care Act] despite judicial criticism and rejection of his interpretation of the law by other courts including the District Court, the Supreme Court and the Court of Appeal, without proper regard to the interests of his client.”

The Commissioner submitted that the appellant continued to propound his argument regarding the purported “unlawful practice” and “illegitimate practice” of the Children’s Court in “consent without admissions” matters, failed to adduce relevant evidence on behalf of his client, and had lost objectivity. Before the Tribunal, the appellant replied, in essence, that each complaint was “ridiculous” or “baseless”. The appellant contested this complaint ground largely on the basis that other courts had allegedly supported his interpretation of the Care Act.

Complaint ground 6

The sixth ground of complaint was that the appellant:

“… consistently engaged in conduct 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 particulars of complaint grounds 1 to 5 were repeated.

The Stage 1 proceedings

On 17 May 2017, the Tribunal delivered its reasons as follows:

In relation to complaint ground 1, the Tribunal found that all of the particulars were made out, except for that described at [6](2) above and, accordingly, the ground was established.

In relation to complaint ground 2, the Tribunal found that the ground was established.

In relation to complaint ground 3, the Tribunal found that the ground was established.

In relation to complaint ground 4, while the Tribunal was satisfied that the appellant had misled the District Court, it concluded that he did not do so deliberately, but rather as a result of inappropriate carelessness.

In relation to complaint ground 5, the Tribunal found that the ground was established.

In relation to complaint ground 6, the Tribunal found that the ground was established.

As a result of the above findings, the Tribunal found that the appellant was guilty of professional misconduct. The Tribunal stood over the proceedings for the Stage 2 hearing to 22 August 2017.

The Stage 2 proceedings

On 11 September 2017, the Tribunal granted an adjournment of the Stage 2 hearing until 13 November 2017, to accommodate the appellant’s pro bono counsel (who did not ultimately appear for the appellant at the Stage 2 hearing), and made an interim order imposing certain practice conditions on the appellant: Legal Services Commissioner v Potkonyak (No 2) [2017] NSWCATOD 134. The Tribunal dismissed an application made by the appellant to refer the matter to the Supreme Court concerning a question of law.

On 9 January 2018, the Tribunal delivered judgment in the Stage 2 proceedings. The Tribunal found that the appellant was not a fit and proper person to engage in legal practice because he had engaged in conduct which demonstrated a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence.
In determining the consequences of that finding under the Legal Profession Act 2004 (NSW), s 562, the Tribunal ordered that the appellant be removed from the roll of lawyers of the Supreme Court of New South Wales. The Tribunal found that the appellant had no insight, comprehension or understanding of the misconduct findings made against him, particularly because he continued to argue that his interpretation of the Care Act was correct. The Tribunal found that the appellant:

“… fervently believes that injustice has been visited upon his clients, who have wrongly been denied access to or the custody of their children and that the court system has contributed to this by incorrectly interpreting and applying the relevant legislation. Such a person is unlikely to change his beliefs without encountering something in the nature of an epiphany. Thus far, pronouncements by the Court of Appeal, Supreme Court, District Court, the Children’s Court and this Tribunal have failed to convince [the appellant] that he is wrong.”

On this basis, the Tribunal concluded that the appellant’s unfitness to practise law was “probably permanent” and, accordingly, the appropriate protective order was his removal from the roll.

Grounds of appeal and orders sought

On 19 January 2018, the appellant filed a notice of appeal. The grounds of appeal were as follows:

“1   The final orders of the Tribunal are based on false premises therefore void ab initio:
(a)   most of the findings at the [Stage 1 proceedings] are based on the obiter dicta of the judicial officers who conducted the proceedings involving laws other than the laws relating to the professional conduct;
(b)   [the Commissioner] and the Tribunal failed to properly inform themselves in the matters involving laws that are outside of their jurisdictional competence;
(c)   as a result, the finding that the Appellant is guilty of the professional misconduct and not fit and proper person to practice law are invalid.

2   Failure to give adequate reasons for most of the findings at the [Stage 1 proceedings]: the reasons are mere repetition of what the judicial officers conducting the proceedings from which the complaints arose stated.
3   Denial of the procedural fairness to the Appellant: even though the Appellant was present at every hearing in the Tribunal, his evidence (bar a small part) has been admitted and he was allowed to present written and oral arguments, the overall effect was as if the proceeding were an ex parte proceeding; the Appellant’s evidence and arguments were almost entirely ignored at the [Stage 1 proceedings].
4   In relation to [complaint grounds] 1 and 2 of the Further Amended Application filed by [the Commissioner] in the Tribunal:
(a) the Tribunal ignored the provisions of s 90 of [the Care Act];
(b)   the Tribunal ignored the Appellant’s evidence and arguments in support of his defence.

5   In relation to [complaint grounds] 3 to 5 of the Further Amended Application filed by [the Commissioner] in the Tribunal, [Knox DCJ] misinformed [the Commissioner], and the Tribunal accepted the information as if correct, in relation to:
(a)   the evidence filed by the Appellant’s client;
(b)   the prospect of success of the Appellant’s client;
(c)   the interests of the Appellant’s client;
(d)   the proceedings collectively known as Re Felicity, in which [Knox DCJ] was not involved;
(e) the state of the relevant law, in particular the Care Act, and its interpretation by the Appellant.

6   [The Commissioner] and the Tribunal failed to identify a member or a class of members of the public who have been or are likely to be adversely affected by the Appellant’s conduct.
7   In its Reasons for Judgment of 9 January 2018 the Tribunal refers to the outcomes of the three previous complaints against the Appellant and [the Commissioner’s] findings, yet the Appellant had been denied his request to present evidence and arguments in relation to those complaints …
8   In its Reasons for Judgment of 9 January 2018 the Tribunal deviated from the subject matter of its decision by publicly insulting the cognitive capacity of the Appellant in its statements that the Appellant:
•   is ‘probably permanently unfit to practise law’;
•   that ‘leads to a consideration of the insight, comprehension and understanding possessed by [the appellant] concerning the misconduct which we have found proven’;
•   Appellant is ‘Such a person [who] is unlikely to change his beliefs without encountering something in the nature of an epiphany’;
thus likely to cause an independent, intelligent bystander to conclude that his Honour has brought a prejudiced mind to the proceeding.”

The appellant seeks orders that the appeal be allowed and that the orders and findings of the Tribunal be set aside. The appellant also seeks that the Court declare that he is a fit and proper person to practise law. In addition, the appellant seeks the following declarations:

“3 The Appellant’s interpretation of the main provisions of the (NSW) Children and Young Persons (Care and Protection) Act 1998 is not incompetent.
4 Declaration that the interpretation of the (NSW) Children and Young Persons (Care and Protection) Act 1998, as found by the Court in the course of hearing this appeal, becomes the authority governing the proceedings in the New South Wales care and protection jurisdiction, until overturned.”

The appeal to this Court

A party has a statutory right to appeal to the Supreme Court in respect of a “profession decision” under the Civil and Administrative Tribunal Act 2013 (NSW), Sch 5, cl 29(2). A “profession decision” includes a decision for the purposes of the Legal Profession Uniform Law (NSW): the Civil and Administrative Tribunal Act, Sch 5, cl 29(1)(e).
Under the Civil and Administrative Tribunal Act, a reference to the Legal Profession Uniform Law includes a reference to the Legal Profession Act: the Civil and Administrative Tribunal Act, Sch 1, cl 21(a). The Legal Profession Uniform Law, Sch 4, cl 2 provides, in substance, that things done under provisions of the Legal Profession Act that correspond to provisions of the Legal Profession Uniform Law that were done before the commencement of the Legal Profession Uniform Law continue in effect as if they were done under the Legal Profession Uniform Law. Hence an investigation that commenced before 1 July 2015 is taken to have been done under the Legal Profession Uniform Law. It is by virtue of the Legal Profession Uniform Law, Sch 4 that provisions in the Legal Profession Act continue to apply.
The matter is assigned to this Court under the Supreme Court Act 1970 (NSW), s 48(1)(a)(viii): Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 at [15]. The appeal to this Court is by way of rehearing under the Supreme Court Act, s 75A: the Civil and Administrative Tribunal Act, Sch 5, cl 29(4)(a).
It is also desirable to record that in conducting the rehearing, the Court must be astute to ensure that evidence and submissions made by the appellant in this Court, which on one view may have supported the findings of the Tribunal, are not taken into account in reaching any decision adverse to the appellant as to do so, in the absence of a clear warning from the Court, would amount to a denial of procedural fairness: Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 at 267-269 per Brennan, Dawson, Toohey and Gaudron JJ.
It is also appropriate, at this point, to make the following further observation. The right of a practitioner to challenge the law as it has been interpreted and applied is fundamental to the common law system and its evolving nature. However, there are accepted and legally competent ways in which that may be done. If the law, including the proper construction of a statute, has been determined by a court, that decision must be followed by other courts lower in the legal hierarchy. Critically, so far as the complaints about the appellant’s conduct here are concerned, it is not acceptable professional conduct for allegations of bias or impropriety to be made against judicial officers and fellow practitioners merely for adhering to decisions of courts in the judicial hierarchy whose decisions bind them. A challenge may be made to an existing statement of the law, but in accordance with well-established legal principle and procedures.

Overview

The way in which the appellant’s written and oral submissions were structured tended to focus upon what he asserted was the correct interpretation of the Care Act. In this regard, the appellant’s overarching complaint about the manner in which the Tribunal came to its determination of professional misconduct was that he should have been permitted to explain to the Tribunal why various judicial decisions on the construction and application of the Care Act were wrong and why his construction should be accepted. He sought to explain his conduct by saying that while his manner of expression may not have been appropriate, his view of the law was correct and the views of the judicial officers before whom he appeared were not. He contended that his appeal from the Tribunal’s orders would enable this Court authoritatively to declare the law in relation to the Care Act.
At best for the appellant, however, his arguments in respect of the Care Act are ultimately a peripheral issue and tended to obscure the real issues in this case. A review of the correctness of the authorities relating to care matters is not the subject of this appeal. Rather, what is in issue is whether the appellant has established error in the Tribunal’s findings. Even if the appellant’s construction of the Care Act were correct, I would have concluded that it did not provide an adequate excuse or even an adequate explanation for his conduct.
As a result of his focus upon the wrong issues, the appellant addressed the reasons of the Tribunal and the grounds of appeal in a confusing and unhelpful way. In order to give my reasons a cohesive structure, I have found it convenient to address the grounds of appeal in the following order: first, appeal ground 4(a); secondly, appeal grounds 3 and 4(b) to the extent that those grounds overlap; thirdly, appeal ground 5; and fourthly, the balance of the appeal.

Appeal ground 4(a)

In relation to complaint grounds 1 and 2 of the further amended application filed by the Commissioner in the Tribunal, the Tribunal ignored the provisions of the Care Act, s 90

Appeal ground 4(a) challenged the Tribunal’s determination in respect of complaint grounds 1 and 2, which related to the manner in which the appellant had conducted himself in the Parramatta Children’s Court from 2 to 4 April 2013 and in the District Court on 18, 19 and 21 to 23 November 2013 in the Re Felicity matter.
The appellant submitted that the Tribunal could not determine the Commissioner’s disciplinary application without considering his interpretation of the Care Act, s 90. He submitted that “the ‘applicable’ law in this unusual case turned out not to be the law and rules governing the legal profession but the law totally foreign to the Tribunal”. However, as I have already indicated, that was neither the nature of the disciplinary proceedings, nor was it the function of the Tribunal to do so in the determination of the Commissioner’s disciplinary application. What was in issue before the Tribunal was the appellant’s conduct in failing to represent his clients having regard to the law as it has been determined by this Court and applied in other courts, and whether the appellant engaged in the inappropriate conduct particularised in the Commissioner’s disciplinary application.
Contrary to the appellant’s submissions, it was not necessary for the Tribunal to undertake for itself the construction of the Care Act in addressing the Commissioner’s complaints. The construction of the relevant provisions of the Care Act have been determined by this Court.
Accordingly, appeal ground 4(a) is rejected.

Appeal grounds 3 and 4(b)

Denial of the procedural fairness to the appellant: even though the appellant was present at every hearing in the Tribunal, his evidence (bar a small part) has been admitted and he was allowed to present written and oral arguments, the overall effect was as if the proceeding were an ex parte proceeding; the appellant’s evidence and arguments were almost entirely ignored at the Stage 1 proceedings

In relation to complaint grounds 1 and 2 of the further amended application filed by the Commissioner in the Tribunal, the Tribunal ignored the appellant’s evidence and arguments in support of his defence

In appeal ground 3, the appellant contended that he was denied procedural fairness on the basis that his evidence and submissions were ignored by the Tribunal. In appeal ground 4(b), the appellant challenged the Tribunal’s determination on the basis that the Tribunal ignored the appellant’s evidence and submissions, specifically in respect of complaint grounds 1 and 2. As the Tribunal dealt with each particular separately in its reasons, it is appropriate to take the same approach on the appeal.

Complaint ground 1: the appellant conducted himself inappropriately at the hearing in the Parramatta Children’s Court from 2 to 4 April 2013

Complaint ground 1, particular 1.1:

“[The appellant] stated that ‘whether we consented or not it was already pre-determined that leave would be granted so this was pointless to argue anything and then we wouldn’t have right to appeal to the District Court …’ despite the fact that [the appellant] had withdrawn the mother’s application.”

The incident the subject of this particular occurred during the course of a hearing of an application pursuant to the Care Act, s 90, in the Children’s Court on 2 April 2013. Section 90 provides that an application for the rescission or variation of a care order may be made with the leave of the Children’s Court.
The Tribunal considered that the appellant’s statement the subject of this particular implied that Magistrate Murphy was biased in favour of the Director-General. The Tribunal noted that the appellant relied upon “his ‘experience’” in the Children’s Court as the basis for making this statement. The Tribunal also referred, at [22], to the appellant’s evidence before it and observed that, in that evidence, the appellant said that he believed that Magistrate Murphy was “definitely” biased in favour of the submissions of the Director-General.
The Tribunal considered that not only did the appellant’s statement constitute an allegation of serious misconduct against Magistrate Murphy, it also constituted a breach of Advocacy Rules 23, A.36 and A.37.
The Tribunal noted, at [20], that at the time that the appellant made the statement the subject of this particular, he was:

“… clearly participating in the proceedings and was clearly intending to make submissions about whether the leave had been validly granted, presumably on behalf of both the mother and the stepsister.”

With respect to the appellant’s reliance on his “experience”, the Tribunal stated, at [21], that:

“No matter what the experience of [the appellant], and there is simply no evidence about this, the allegations made which we have found to be demonstrative of the assertions contained in this Particular cannot be justified by reference to the experience of one practitioner, in circumstances where we are unaware of the nature and extent of that experience.”

The appellant’s first submission was that he had reasonable grounds upon which to make the statement the subject of this particular, as evidenced by the fact that a costs order was made by Magistrate Murphy against his client, paying “lip service” to the principles governing the requirement of “exceptional circumstances” under the Care Act, s 88. The appellant contended that an understanding of the facts in the matter justified his making the statement. He submitted that this was demonstrated by the circumstance that the Children’s Court had allowed the Director-General’s s 90 application, but had declined leave to the mother, the appellant’s client, to bring an application based on the same facts. Secondly, the appellant submitted that “there is not one word about my evidence and written submissions” in the Tribunal’s reasons. He contended that by ignoring his evidence, the Tribunal created a “false premise for its decision”.
The appellant’s first submission should be rejected. The Care Act, s 88 provides that the Children’s Court “cannot make an order for costs in care proceedings unless there are exceptional circumstances that justify it in doing so”. The father of the child, who had retained lawyers to appear for him in the proceedings before Magistrate Murphy, sought an order that the mother pay his costs of the s 90 proceedings in the sum of $3,900. Magistrate Murphy heard the costs application on 24 June 2013 and gave judgment on 17 July 2013, making the order sought by the father.
Magistrate Murphy found that while the mother had been unsuccessful in seeking orders pursuant to s 90 from the Children’s Court, the Supreme Court and this Court, that did not cause her to reflect “that she was not going about things the right way”. Magistrate Murphy found that the mother’s evidence was “lacking credibility and honesty” and that “not … a single argument advanced by [the appellant had] found favour at any level of court”.
The Tribunal was not concerned with a review of or an appeal from Magistrate Murphy’s decision. Nor is this Court concerned with such a review or appeal. Rather, the matter in issue is the appellant’s submission that he had reasonable grounds upon which to make the impugned statement. He did not. The appellant did not adduce evidence before the Tribunal to support his allegation that the Director-General “was merely doing the father’s bidding” or that Magistrate Murphy was biased. I have referred to Magistrate Murphy’s costs judgment as that was the focus of the appellant’s submissions on particular 1.1. Magistrate Murphy had regard to the evidence, the submissions of the parties and the relevant legislation. Nothing in his Honour’s judgment indicates that he had pre-determined the matter.
The appellant’s second complaint, that the Tribunal failed to have regard to his evidence and submissions, should also be rejected. An application under s 90 for rescission or variation of a care order requires the leave of the Children’s Court. In the proceedings before Magistrate Murphy, the appellant’s client had consented to the grant of leave in respect of the Director-General’s application. Although the Tribunal did not set out the appellant’s evidence about the allegation of bias, it is apparent from its reasons, at [21]-[22], that it had regard to his evidence. Relevantly, the Tribunal referred to his evidence that “he believed that Magistrate Murphy was ‘definitely’ biased in favour of the submissions of the Director-General”. Further, as I have noted, the Tribunal referred, at [21], to the appellant’s “reli[ance] upon his ‘experience’ in the Children’s Court”, but noted that the appellant had not adduced any evidence in that regard. It is also apparent from the Tribunal’s reasons, at [20], that it had regard to the transcript of the proceedings before Magistrate Murphy. The Tribunal determined that there was no justification for the serious allegation of bias made against Magistrate Murphy, based as it was on the appellant’s own view of the conduct of the Magistrate in care matters involving the Director-General.
The Tribunal was correct to conclude that there was no basis or justification for the statement made by the appellant.

Complaint ground 1, particular 1.3:

“[The appellant] submitted that the Director-General, the Independent Legal Representative and [the father’s] solicitor had a motive to ‘get rid of me … because I do not comply with the standard practice in this court by the lawyers who put pressure on their clients to consent to everything what (sic) the Director-General asked for in order to appease’ them.”

The Tribunal dealt with particulars 1.2 and 1.3 together. As the Tribunal was not satisfied that particular 1.2 was made out, it is not necessary to consider it.
In respect of particular 1.3, the Tribunal observed that the appellant admitted he made the statement, but said that he would be able to justify it. The Tribunal considered, at [31], that prima facie, the statement involved an allegation of serious misconduct against the other practitioners in the matter, namely, that they were motivated by a personal vendetta against him. The Tribunal stated that the appellant’s comment was “per se, offensive” and that he did not have reasonable grounds for his belief that there was material available to provide a proper basis for the allegations: see Advocacy Rule 23, A.37. The Tribunal continued:

“No doubt [the appellant] had a belief that his opponents were not favourably impressed by his competency or the manner in which he was conducting the proceedings on behalf of his clients, but this does not constitute a factual basis for the statements made by him. Furthermore, there is simply no evidence concerning the wishes of the client in this regard, and on the basis of the prevarication which [the appellant] engaged in, there must be some doubt about the nature and extent of the precise instructions which the stepsister had given [the appellant] about the matter.”

The appellant submitted that, as was apparent from the transcript in the Children Court’s proceedings, “no matter what option I offered they wanted something different”. The appellant again submitted that his evidence and arguments had been ignored by the Tribunal, thus creating a false premise upon which the Tribunal found that he had no reasonable grounds to say what he did.
The evidence upon which this particular was based was accurately summarised by the Tribunal at [25]-[29]. However, having regard to the appellant’s submissions, I consider it appropriate to examine the transcript where the impugned comment (being the bolded portion in the extract below) was made.
The matter that was being agitated before Magistrate Murphy at the time that the appellant made the particularised statement related to two questions: first, whether the appellant’s client and the child’s step-sister were available for cross-examination; and secondly, whether the appellant acted for the step-sister. Related to the latter question was whether an affidavit of the step-sister could be “withdrawn” by the appellant. The relevant parts of the transcript were as follows:

“[APPELLANT]:   … There is one relevant issue that [the step-sister] will be withdrawing from the proceedings and her affidavit shouldn’t be read and she’s not available for cross-examination anyway.
…
HIS HONOUR:   She withdraws so does that mean you’re acting for her or you’re not?
[APPELLANT]:   No I’m not acting for her.
…
HIS HONOUR:   So you won't be urging any orders to be made in relation to [the step-sister], is that your position?
[APPELLANT]:   No not necessarily.
[SOLICITOR 1]:   The difficulty your Honour that I see at this point is that [the step-sister] was joined as a party to the proceedings. We were then told that [the appellant] was representing the mother and [the step-sister] I think in recent times. [The appellant] can withdraw as her legal representative, but she’s still theoretically, a party to the proceedings and she’s filed an affidavit
…
[APPELLANT]:   Well the Court can make orders or should make orders for contact between child and the parents and any other significant person and [the step-sister is] a significant person. Now whether [the step-sister] is a party to the proceeding is not, it’s really irrelevant …
…
[APPELLANT]:   So if her affidavit is not read there is no need for her cross-examination, as far as I understand.
HIS HONOUR:   Well what’s your position, are you acting for her or not?
[APPELLANT]:   In that case no.
HIS HONOUR:   In what case no?
[APPELLANT]:   No, if her affidavit is not read or if she withdraws from the case, I’m not representing her, because there’s nothing to represent.
…
[SOLICITOR 2]:   Well your Honour that then leads us into the bigger question that I think there’s dispute as between the parties and [the appellant]. And that goes to the issue of whether or not either the mother or [the step-sister], having been given notice by both myself, by way of my case outline document and the Director-General are going to make themselves available for cross-examination.
I understand from [the appellant] that neither the mother or [the step-sister] is willing, on his advice, to mount the witness box to give evidence in these proceedings. If that’s going to be the case, there’s certain applications that I will be making to your Honour. About how their evidence that’s before the Court by way of affidavits can be dealt with and various inferences that flow from their failure to mount the witness box.
[APPELLANT]:   The mother and I discussed that, we considered her position and she is available for cross-examination on relevant matters.
HIS HONOUR:   She’s available for cross-examination.
[APPELLANT]:   On relevant matters.
HIS HONOUR:   Who determines relevance?
[APPELLANT]:   The Court will determine eventually or we all.
…
[SOLICITOR 3]:   Your Honour can I just clarify exactly what’s happening because I’m a little confused. [The appellant] is saying that he seeks leave to withdraw in so far as that relates to his appearance on behalf of [the step-sister].
…
[APPELLANT]:   Yes.
[SOLICITOR 3]:   If my friend is seeking leave to withdraw, then if that application is dealt with in advance of a decision being made by this Court that the affidavit is not formally being withdrawn, then the affidavit remains on foot. [The step-sister] is then still required for cross-examination, notwithstanding the fact that she is an unrepresented party in the proceeding.
…
[APPELLANT]:   Well look my friends insisted that [the step-sister’s] affidavit not be read because she’s not available for cross-examination. Now they want the affidavit back in because I am out.
…
[APPELLANT]:   Well officially I’m still in because I haven’t put written as your Honour requested, written withdrawal. In that case, I am withdrawing on behalf of [the step-sister], her affidavit that she has sworn in these proceedings.
[SOLICITOR 1]:   Well I’m still confused … If he’s withdrawn the affidavit’s still on foot. It’s a matter for [the step-sister] to either arrange for another lawyer to represent her or attend Court in person.
[APPELLANT]:   No she will probably withdraw affidavit herself and there is nothing to cross-examine her on. Look these people, I know what they are after. As I said, this is actually below my dignity to take part in a proceedings of this kind. But nevertheless for the sake of these clients I am doing this, I am going through all of this in dignified assault on me personally and your Honour is aware of this from other proceedings and they are questioning my ethical position, professional position, I am questioning theirs.
Their motives are they want to get rid of me, not of [the step-sister] or not of her mother, they want to get rid of me because I do not comply with the standard practice in this Court by the lawyers, who put pressure on their clients to consent to everything what Director-General asked for in order that to appease some –
[SOLICITOR 3]:   Your Honour I object to this –
[APPELLANT]:   You object as much as you want but this is 95% of all –
…
[SOLICITOR 2]:   Just for the record, my friend [the appellant] indicated to the Court that there was pressure borne on him by the other legal representatives for [the step-sister’s] affidavit not to be read. For the purpose of clarity, can I indicate that the discussions were to the effect of if the mother and or [the step-sister] were not willing to make themselves available for cross-examination, our position before the Court would be that their affidavits could not be read in these proceedings and that would be the application we will be making to your Honour. There was no other pressure put on my friend in any other way.” (emphasis added)

This transcript demonstrates that the legal representative for the Director-General had indicated to the appellant that the mother and step-sister were required for cross-examination on their respective affidavits. Whilst the Children’s Court is not bound by the rules of evidence, unless it determines otherwise, in a contested case relating to contact with a child who has been removed from the care of a parent, it would be expected that a party seeking an order for contact would give evidence, including by way of cross-examination. The step-sister, whose affidavit was the subject of the exchange extracted at [53], had initiated the s 90 application. As the legal representative for the Director-General made apparent to Magistrate Murphy, his position was that if the step-sister’s affidavit was to be read in the proceedings, he would seek to cross-examine her.
There is nothing in the exchange from which it could be inferred that the position being taken by the other practitioners, to require the mother and step-sister for cross-examination, was designed to “get rid of” the appellant. What is apparent is that the legal representative for the Director-General was seeking clarification as to whether the appellant was withdrawing as the step-sister’s solicitor, or whether the step-sister was withdrawing her application.
The appellant has failed to establish that the Tribunal erred in finding that the statement the subject of particular 1.3 was “per se, offensive” and that he had adduced no evidence to demonstrate that his belief was held on reasonable grounds that there was factual material available to him to provide a proper basis for the allegations made by him.
Finally, contrary to the appellant’s submission that the Tribunal did not refer to his evidence and submissions, the Tribunal expressly referred, at [31], to the appellant’s submission contained in his “reply document”, that although “he made the statements … he would be able to prove that his opinion was justified”.
The appellant’s challenge to the Tribunal’s finding in respect of particular 1.3 is therefore rejected.

Complaint ground 1, particular 1.4:

“[The appellant] submitted to the court that ‘My impression is that your Honour has really made up his mind and we are wasting our time and money here’ and that ‘overruling my objection so easily off the cuff tells me that well your Honour is bent’.”

The Tribunal, after setting out the context in which the remark the subject of this particular, as recorded in the transcript, was made, referred, at [34], to the appellant’s evidence that he vehemently denied accusing Magistrate Murphy of being “bent”, in the sense of being “crooked or dishonest”, and to the appellant’s contention that an examination of the transcript would reveal that the assertion was to the effect that the magistrate was “bent on finding in a particular manner”.
Although this particular was based on the transcript as recorded, the Tribunal, at [35], proceeded on the basis that the appellant had asserted that Magistrate Murphy:

“… had made up his mind concerning the determination of the proceedings without having heard all of the evidence and the submissions of the parties, and that the Magistrate was determined to ensure that a particular outcome was achieved.”

The Tribunal found that, so understood, the statement was “highly offensive”, and that a reading of the transcript gave no hint that the magistrate had predetermined the matter. The Tribunal found that, in circumstances where the appellant had failed to point to any other evidentiary material which could provide reasonable grounds for the assertion or that he had any belief on reasonable grounds that the magistrate had engaged in such serious misconduct, it was comfortably satisfied that this particular had been made out.
The appellant’s submissions to this Court sought to take issue with the Commissioner’s argument before the Tribunal that as a matter of “common knowledge”, the word “bent” means “dishonest”. As that is not the basis upon which the Tribunal determined the allegation in this particular, it is not necessary to deal further with this aspect of the appellant’s submissions.
Although the appellant accepted that the Tribunal referred, at [34], to his evidence in relation to the meaning of the word “bent”, he submitted that there was no further mention of his submissions. In his written submissions to the Tribunal, after stating that he “must have been interrupted while trying to say that [Magistrate Murphy] was ‘bent on determining the matter in favour of the Director-General’”, the appellant added “I suppose, the rest of my arguments will show that I was justified in concluding that the matter had been pre-determined”.
The appellant also referred to another of his appearances before Magistrate Murphy. He contended that Magistrate Murphy’s “repeated remarks” during those proceedings may be interpreted as “Who are you, Mr Potkonyak, to question the competence of an experienced solicitor and barrister?”. The “remarks” to which the appellant referred to, as I understand it, are as follows:

“[APPELLANT]:   Apparently the parents consented without admission and according to my understanding of the law, which I have given them advice, that is not according to law because they have not admitted any of the allegations, none of the allegations has been proven. Now we would go to the next stage where they have to convince the Court that there is a realistic possibility of restoration by proving to the Court they can address the issues that never have been admitted or proven. We cannot proceed, simply there is no way that we can proceed on that one. The issues have to be established according to law, and the evidence has to be tested according to law and then once the evidence is established or by then admitted, which they will admit some, then the Court will be in a position to decide where the children are, or are not – or child is –
HIS HONOUR:   You’ve received advice yourself, have you, to this effect?
[APPELLANT]:   Sorry, your Honour?
HIS HONOUR:   You’ve received legal advice yourself?
[APPELLANT]:    No, I gave them legal advice.
HIS HONOUR:   You gave them advice. They were represented by … counsel.
[APPELLANT]:   So what?
HIS HONOUR:   So what?
[APPELLANT]:   So what? I can read the law as much as they can. I know that much English.
[SOLICITOR]:      Your Honour, re Alistair makes clear that a party, even though a consent to a finding is what occurs on a without admissions basis, that does not prevent a party from challenging any factual issues at the final disposition hearing. We say the finding has been properly made on the basis that the parents were present, there were instructing lawyers on that occasion.
If the Court were to now entertain revisiting that issue, it would need to do so with cogent evidence to say why the parents now no longer would consent to that finding being made. Nothing has been filed in support of the application. All the while this child is in limbo in terms of a final decision being made. The Secretary has been hampered in terms of casework, given the parents’ attitude. It’s very unfortunate for [child].
…
HIS HONOUR:   What about the domestic violence between them?
[APPELLANT]:   That’s allegation, your Honour. This is my point, your Honour; this is my point. Allegations are made and what is written here by somebody who –
HIS HONOUR:   Are you going to file evidence, you are going to file evidence, are you, that there’s no domestic violence between them?
[APPELLANT]:   I have ordered the transcripts of the proceedings, your Honour, that will show probably more light. But somebody who has written here, an outcome form court liaison officer from Parramatta Children’s Court, has said on second line, he said, ‘Mother does not concede all matters in the material’ which means she does not agree with what was written there.
HIS HONOUR:   No it doesn’t mean that. It means what it says.
[SOLICITOR]:      I should say, your Honour, the document that my friend is referring to was sent to him in error. It’s a court –
HIS HONOUR:   Sorry, it was what?
[SOLICITOR]:      It was sent to him in error by the caseworker. It was a court outcome form that’s prepared for caseworkers, but I’m not troubled by what it says, your Honour. My records reflect that the parents consented on a without admissions basis. I accept that the parents may not agree with every allegation but nonetheless the finding was made. In addition, both parents indicated that they were seeing counsellors, the mother and father separately, and that as far as the Secretary was concerned, that was a positive step that they were both taking to address the issues of concern.
I have a real concern, your Honour, that my friend does not understand how these proceedings work. He’s indicating that he’s not going to file any material. If that’s the case, I’d ask your Honour to dismiss the application forthwith and make fresh directions for a care plan.
[APPELLANT]:   Your Honour, I would like to ask my friend to tell these parents what is it they need to address in order to prove to this Court that there is a realistic possibility of restoration.
HIS HONOUR:   We’re not dealing with the realistic possibility of restoration.
[APPELLANT]:   That’s next stage, your Honour.
HIS HONOUR:   We are dealing with whether the intervention was appropriate at the time.
[APPELLANT]:   But it is not sufficient, it won’t be sufficient if this Court –
HIS HONOUR:   Are your clients going to file any evidence?
[APPELLANT]:   We have direction I believe, to file by 31 September.”

Having referred the Tribunal to the transcript of the proceedings before Magistrate Murphy extracted above, the appellant concluded this aspect of his written submissions to the Tribunal with the comment, “That is the attitude of CM Murphy”.
Accepting, as the Tribunal found, that the appellant’s intended meaning was that Magistrate Murphy had pre-determined the matter, such a remark made about a judicial officer is, as the Tribunal found, “prima facie, highly offensive”. As the Tribunal observed, at [35], the appellant adduced no evidence to support his view that Magistrate Murphy had in fact pre-determined the matter. A consideration of the transcript of the proceedings and Magistrate Murphy’s reasons for judgment on the s 90 application makes any such allegation untenable.
The appellant’s challenge to the finding in respect of particular 1.4 is therefore rejected.

Complaint ground 1, particular 1.5:

“[The appellant] submitted to the court, ‘Why doesn’t your Honour make the orders that we go home, wasting everybody’s time’ and ‘ – I said I have much more to say but I will refrain on this occasion, I will do it somewhere else.’”

The statement the subject of this particular was made in proceedings before Magistrate Murphy on 3 April 2013, when the appellant objected to a question asked by the legal representative for the Director-General during cross-examination. The relevant portion of the transcript is as follows:

“[APPELLANT]:   Come on, give me a break. The question was to mother, ‘how do you think that [the child] would felt when the police came in the middle of night’.
HIS HONOUR:   I said I am allowing the question. The issue now is what [counsel] is saying, inappropriate objections and interruptions to the flow of evidence from the mother.
[APPELLANT]:   Why doesn't your Honour make the orders that we go home, wasting everybody's time.

HIS HONOUR:   I think that is an absolutely inappropriate comment.
[APPELLANT]:   I know.
HIS HONOUR:   And much less than one might be entitled to expect from a professional.
[APPELLANT]:   I know I have much more to say but I will refrain.
HIS HONOUR:   What was that?
[APPELLANT]:   I said I have much more to say but I will refrain on this occasion, I will do it somewhere else.
[SOLICITOR]:      Well your Honour I think it is outrageous.
[APPELLANT]:   It is yes.
[SOLICITOR]:      Your Honour it is outrageous that my friend would make comments to this court along the lines of, ‘we will deal with the matter somewhere else’ and I infer from that, from what he is saying, that there is some suggestion that irrespective of the outcome in this matter, that he will go elsewhere. That is certainly been the track record in this matter and I think that is an outrageous submission to make or comment. I wouldn't even class it as a submission your Honour, and I would ask that he refrain from doing so.
HIS HONOUR:   It’s much less than the standard behaviour one would expect from a legal representative. That’s the way it is. We will move on.” (emphasis added)

The Tribunal found, at [38], that the appellant’s statements directed to Magistrate Murphy were clearly offensive and breached Advocacy Rules 23, A.36 and A.37. It further found that the appellant had not satisfied the exculpatory provisions of the Advocacy Rules. Accordingly, the Tribunal was comfortably satisfied that the particular had been made out.
The appellant’s submissions addressed both particulars 1.4 and 1.5 together. However, the submissions did not specifically refer to the appellant’s statement the subject of particular 1.5. The appellant also contended that the Tribunal failed to consider his evidence and submissions.
It is sufficient to observe that the remarks made about Magistrate Murphy were “prima facie, highly offensive”. The appellant adduced no evidence to support his view that his Honour had in fact pre-determined the matter. Accordingly, the appellant’s challenge to particular 1.5 is rejected for the same reasons as I have set out above in relation to particular 1.4.

Complaint ground 1, particular 1.6:

“[The appellant] stated that the Magistrate had requested Legal Aid to discontinue considering [the step-sister’s] application for legal aid when he said the following:
… your Honour actually said, if I can recall correctly and if I heard correctly, that you would ask Legal Aid to discontinue considering [the step-sister’s] application for Legal Aid and that I can represent her. I practically was pushed into it because she had no representative. Your Honour told us here and we can get transcripts, if I understood correctly – again I apologise if I didn’t – that your Honour would actually ask Legal Aid to discontinue considering [the step-sister’s] application for Legal Aid and …
… ‘I say again the reason why [the step-sister] didn’t have her own representation apart from me was that her obligation to Legal Aid has been cancelled, whether by – refused, whether by Legal Aid, whether by information of your Honour or not, I do not know.”

The Tribunal, after referring to the extracts of the transcript upon which particular 1.6 was based, referred, at [39], to the appellant’s reply to the Commissioner’s disciplinary application, which was in the following terms:

“I have made the statement to the said effect and believe that my reference to what his Honour previously stated was true, with a proviso that I could have misunderstood him. The words ‘her obligation’ was wrongly transcribed; it was ‘her application’ [for legal aid].”

The Tribunal noted, at [40], that in the proceedings before Magistrate Murphy, after the appellant had made reference for the first time to his Honour asking Legal Aid to discontinue considering the step-sister’s application for legal aid, Magistrate Murphy suggested to the appellant that he had not heard him correctly. The Tribunal considered that, in circumstances where that had been drawn to the appellant’s attention, the appellant’s second reference to Magistrate Murphy’s involvement in the cancellation of legal aid “was clearly offensive”. The Tribunal further noted, at [40], that the appellant “had absolutely no evidence to support the assertion, even if stated on the grounds of possibility only”.
The appellant’s submission to this Court in support of his challenge to the Tribunal’s finding in respect of particular 1.6 was as follows:

“11 … [In] the transcripts of the proceedings before Magistrate Murphy of 11 March 2013 … discussion took place about the grant of legal aid to the very client referred to in the complaint. The conclusion … was that his Honour was satisfied that the Legal Aid should be notified about the identical position of the daughter and the mother, without directing anyone in the courtroom to notify the Legal Aid. A reasonable intelligent observer would have drawn the conclusion as I did: his Honour directed someone to inform the Legal Aid of the matter, or he did it himself. Legal aid had been refused.”

The discussion regarding legal aid contained in the transcript of the proceedings before Magistrate Murphy, to which the appellant referred in support of his submission, arose in circumstances where the appellant was acting for the child’s step-sister. There was no appearance by the mother on that occasion and the appellant informed the court that the mother’s Legal Aid solicitor had “quit on her”. There was further discussion as to whether the hearing should be adjourned, as the mother had not filed her evidence as directed. The exchange between Magistrate Murphy, the appellant and the legal representative for the father, continued as follows:

“[APPELLANT]:   … what I want sought will be joint orders sought by the mother and [the step-sister] … But as I said, the mother and the daughter and [the step-sister], they have identical positions, they will submit identical arguments, they will submit identical proposed orders.
HIS HONOUR:   So, if that’s the case, it would have been a waste of money for Legal Aid to fund the mother, wouldn't it?
…
HIS HONOUR:   But why would they fund it separately if her position’s exactly the same?
…
HIS HONOUR:   Has Legal Aid been told the mother’s position is identical to [the step-sister’s]?
[SOLICITOR]:      Well, they’ll be told now, your Honour, I can assure you, because it just seems to me that this is becoming beyond a joke in terms of the mother’s case and [the step-sister’s] case.
[APPELLANT]:   I agree with that, it is beyond joke. This case is beyond joke, honestly.
…
HIS HONOUR:   Just let me clarify so it's on the record, Mr Potkonyak, that the mother’s position is identical to [the step-sister’s]?
[APPELLANT]:   Yes.
HIS HONOUR:   Right. So, Legal Aid can be told that?
[APPELLANT]:   Yeah, this is what I –
HIS HONOUR:   Yes, Legal Aid can be told that?
[APPELLANT]:   Yes.
HIS HONOUR:   Good. Right.”

Contrary to the appellant’s submission, an examination of the transcript reveals that Magistrate Murphy did not direct anyone to inform Legal Aid of the matter. Rather, the legal representative for the Director-General indicated that he proposed to inform Legal Aid that the cases of the mother and step-sister were identical. It is apparent that Magistrate Murphy was seeking to ensure that the position was clear, that is, that the cases were identical. Magistrate Murphy’s remarks cannot sensibly be understood as indicating that he was going to report the matter to Legal Aid.
As the appellant has not established that the Tribunal erred in its finding in respect of particular 1.6, this challenge to the Tribunal’s reasons is rejected.

Complaint ground 1, particular 1.7:

“The statements and allegations made by [the appellant] about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to [1.6] inclusive were offensive.”

Complaint ground 1, particular 1.8:

“The statements and allegations made by [the appellant] about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to [1.6] inclusive were unsupported by evidence.”

Complaint ground 1, particular 1.9:

“The statements and allegations made by [the appellant] about Magistrate Murphy and the opposing parties as set out in particulars 1.1 to [1.6] inclusive were in breach of Advocacy Rule 23, A.36 and A.37 of the Revised Professional Conduct and Practice Rules 1995.”

Particulars 1.7, 1.8 and 1.9 were catch-all grounds based on particulars 1.1 to 1.6. Based on its findings in respect of those particulars, the Tribunal was comfortably satisfied that particulars 1.7 to 1.9 were also made out. The appellant did not separately challenge these findings.

Complaint ground 2: the appellant conducted himself inappropriately at the hearing in the District Court on 18, 19, and 21 to 23 November 2013 in that he described the potential disqualification he faced as the solicitor for the mother when he was also a witness as ‘the plot by the father or the other parties to disqualify me’

Complaint ground 2, particular 2.1:

During the hearing, the appellant asked Olsson DCJ whether he would be disqualified as the solicitor for the mother, in circumstances where he was a witness, and described his potential disqualification as “the plot by the father or the other parties to disqualify me”.

Complaint ground 2, particular 2.2:

“The statement and allegation made by [the appellant] as set out in particular 2.1 was offensive.”

Complaint ground 2, particular 2.3:

“The statement and allegation made by [the appellant] as set out in particular 2.1 was unsupported by evidence.”

Complaint ground 2, particular 2.4:

“The statement and allegation made by [the appellant] as set out in particular 2.1 was in breach of Advocacy Rule 23, A.36 and A.37 of the Revised Professional Conduct and Practice Rules 1995.”

Particular 2.1 related to statements made by the appellant during the course of the District Court appeal, which was heard by Olsson DCJ, from Magistrate Murphy’s decision on the s 90 application. The context in which the appellant made the remark was that the father had sought to cross-examine the appellant in circumstances where the appellant had filed an affidavit in the Children’s Court proceedings which had been included in the tender bundle on the appeal to the District Court.
The Care Act, s 91(1) provides for appeals to the District Court as follows:

“A party to proceedings who is dissatisfied with an order (other than an interim order) of the Children’s Court may, in accordance with the rules of the District Court, appeal to the District Court against the order.”

Section 91(2) provides that any appeal is to be by way of a new hearing and fresh evidence, or evidence in addition to or in substitution for the evidence on which the order was made, may be given on the appeal. Instead of taking fresh evidence, and without limiting s 91(2), the District Court may, pursuant to subs (3), decide to admit as evidence the transcript of proceedings before the Children’s Court and any exhibit tendered during those proceedings. Accordingly, the appellant could be cross-examined on his affidavit filed in the Children’s Court, as the affidavit had been admitted in the District Court.
The appellant’s affidavit was sworn and filed in the Children’s Court on 19 October 2011. The appellant deposed in his affidavit that he was the solicitor on the record for the mother and was also the solicitor on the record for the mother in intended proceedings in the Federal Magistrates Court. The appellant further deposed that his attempt to commence proceedings in the Federal Magistrates Court without a certificate under the Family Law Act, s 69ZK had failed and that he had been unable to obtain such a certificate. Section 69ZK provides that an order must not be made under the Family Law Act unless, relevantly, the order is made in proceedings to which a child welfare officer has given written consent. The appellant concluded his affidavit with a “submission” that the orders made by the Children’s Court on 16 October 2009 “will no longer be valid after 5 November 2011 and must be rescinded”.
The relevant portion of the transcript that was the basis of complaint ground 2 is bolded in the extract below:

“HER HONOUR:   … Mr Potkonyak, would you take the witness box, please?
…
HER HONOUR:   You’ve better take a copy of the affidavit, yes.
[APPELLANT]:   Which affidavit?
HER HONOUR:   Not [the father’s] copy. You take your own. It’s tab 19.
[FATHER]:      Your Honour, I also have another affidavit that he’d written. Not in the tender bundle. It’s just one that I found last night. Am I able to use that?
HER HONOUR:   You can ask him questions that are relevant to the case, let me put it that way.
[FATHER]:      All right.
HER HONOUR:   If the affidavit is not read it makes it a little bit difficult, but there might be a fact contained in it that you may wish to ask him about, if that makes sense.
[APPELLANT]:   If I just may say, that affidavits probably something in the Supreme Court. It says ‘in relation to these proceedings’.
HER HONOUR:   It might be, but it might have a fact in it that [the father] can ask about. I don’t know.
[APPELLANT]:   Can I just make one remark. I’m not going to be disqualified as a representative of the mother?
HER HONOUR:   I can’t do that. It’s a matter for you. Anyway, go on. You’re the one that’s filed the affidavit in the proceedings.
[APPELLANT]:   Because it would be the plot by the father or the other parties to disqualify me.
HER HONOUR:   I’m not here to advise you. Will you take an oath or an affirmation?” (emphasis added)

The Tribunal dealt, at [43]-[44], with particulars 2.1 to 2.4 together. The Tribunal found that the appellant’s comments the subject of this complaint ground were offensive. The Tribunal also found that there was no evidence of any factual basis for the statement. Further, it concluded that there was no evidence of any reasonable grounds for a belief that the statement was true, and no indication that the appellant’s client wished the allegation to be made. It followed on the Tribunal’s reasoning that complaint ground 2 had been made out.
The appellant invited the Court to read the cross-examination conducted by the child’s father, the child’s legal representative and counsel for the Director-General. His complaint was threefold in respect of this cross-examination: first, he contended that the cross-examination had little or no relevance to the content of his affidavit; secondly, he said that the cross-examination by counsel for the Director-General demonstrated his “contempt of a ‘mere’ solicitor”; and thirdly, he claimed that the cross-examiners pursued irrelevant questions designed to intimidate and embarrass him. The appellant contended that a fair reading of the transcript led to the conclusion that his “‘insight’ into the purpose and intent of the pending cross-examination was correct”.
That submission must be rejected. Although it is difficult to discern the relevance of the appellant’s affidavit, Olsson DCJ expressly stated that any potential conflict created by the appellant being both a witness in the proceedings and the solicitor on the record was a matter for him. No application was made by the father or the other parties to “disqualify” the appellant as the solicitor on the record. Whilst it is apparent from the transcript that counsel were seeking to cast doubt upon the appellant’s competence, there is nothing in the cross-examination to indicate any “plot by the father or the other parties to disqualify [the appellant].”
The appellant has not demonstrated any error in the Tribunal’s determination of complaint ground 2 and it follows that appeal ground 4, insofar as it relates to complaint ground 2, is rejected.

Appeal ground 5

In relation to complaint grounds 3 to 5 of the further amended application filed by the Commissioner in the Tribunal, Knox DCJ misinformed the Commissioner, and the Tribunal accepted the information as if correct, in relation to:

(a) the evidence filed by the appellant’s client;

(b) the prospect of success of the appellant’s client;

(c) the interests of the appellant’s client;

(d) the proceedings collectively known as Re Felicity, in which Knox DCJ was not involved;

(e) the state of the relevant law, in particular the Care Act, and its interpretation by the appellant

Appeal ground 5 related to complaint grounds 3 to 5, which concerned the Judge Knox proceedings. The appellant made both general submissions in respect of this appeal ground and specific submissions in respect of each of the complaint grounds. It will be convenient to deal first with the specific challenges to the Tribunal’s findings in respect of complaint grounds 3 to 5 before dealing with the appellant’s overall submission.
The appellant contended that appeal ground 5 and the complaint grounds to which it was directed went “to the core of the issues raised in the Tribunal and its utter disregard for [his] submissions”. The appellant’s submissions continued:

“17 … The grounds cover, directly or indirectly, nearly all of the major provisions of the Care Act; it is hoped that this Court will take time to examine, (a) my exposition of the law as it is; (b) current practices in the care and protection jurisdiction; and (c) judge between the two …
18 As a result of the suggested exercise this Court will be able to set the record straight declaring with authority what is the law in relation to each of the major provisions of the Care Act that ought to be followed before they are overturned by this Court or by the High Court. If the matter is not settled now – and this is a unique opportunity – the state of the law in the care and protection jurisdiction will remain in the state of flux, if not chaos, with authorities strewn all over the place and cherry-picked by the key players at their pleasure, while the 'minor' players (as I am) will try to hit a moving target.”

Complaint ground 3: the appellant breached his duty to the administration of justice by criticising the Children’s Court

Complaint ground 3, particular 3.1:

“By stating at the hearing on 30 March 2015 that the Children’s Court engaged in ‘unlawful practice’.”

Complaint ground 3, particular 3.2:

“By stating the Children’s Court engaged in ‘illegitimate practice’”

The Tribunal identified, at [45]-[47], the particular submissions that the appellant made to Knox DCJ in the District Court, in which the appellant made the statements the subject of particulars 3.1 and 3.2 respectively. The Tribunal observed, at [45], that the appellant, in describing the nature of the proceedings before Knox DCJ, had anticipated a “legal argument” directed to the jurisdiction of the Children’s Court, which was required to be satisfied that a child was “in need of care and protection”.
It was in the course of that argument that the appellant described the practice of the Children’s Court in the following terms:

“Now my understanding is about 95% or probably 90% of cases the parents are advised or sometimes even coerced into consent without admission. My reading of the law it is unlawful practice because if the parent consents that the child is in need of care or protection but without admitting any facts then when we come later on for instance s 90 application or when we come later on for the placement proceeding where the parent has to prove that he or she has addressed all the issues that led to the removal. There are no issues because nothing has been proven by the director-general or the secretary and nothing has been admitted by the mother. So this is my argument.
…
When I raise at issue it is this illegitimate practice people jump on me straight away, but the client is represented, it is beyond the point. No. Clients can be represented by 16 barristers and God knows how many solicitors ...” (emphasis added)

The Tribunal noted, at [48], that the appellant had stated to Knox DCJ that his Honour was “not very familiar with the [Care Act]”, before referring his Honour to a number of provisions of the Act. The Tribunal commented that contrary to the appellant’s surmise as to his Honour’s unfamiliarity with the Act, it appeared from the transcript that his Honour was aware of the relevant provisions of the legislation, as he pointed out to the appellant that the attack on the jurisdiction of the Children’s Court should have been directed to the orders that had originally been made in 2010, rather than in 2012 and 2014 when those orders had been varied.

99. Furthermore, the unsatisfactory professional conduct involves the substantial and consistent failure to reach or maintain a reasonable standard of competence, and to justify as a finding, that we make, that the [appellant] is not a fit and proper person to engage in legal practice. The conduct of the [appellant] which we have found proven demonstrates that he has engaged in a continued pattern of misconduct over a period of time which excludes any consideration that the [appellant] was guilty of any momentary lapse of professional judgment, or that there was an isolated instance of professional negligence. The mere recitation of the conduct of the [appellant] is, without more, sufficient to justify this conclusion.”

The Tribunal therefore found the appellant guilty of professional misconduct.

The Stage 2 proceeding

It then became necessary that the Tribunal proceed to determine what consequences should follow its conclusions. This was the stage 2 proceeding which (after some delay) took place on 13 November 2017. Section 562 of the 2004 Act left it open to the Tribunal to “make such orders as it thinks fit”, but specified a number of available orders, including an order that the name of the practitioner be removed from the local roll, suspension of a practising certificate, and that specified conditions be imposed on a practising certificate or that the practitioner be reprimanded.
The Commissioner sought an order of the first kind, that is that the appellant’s name be removed from the local roll.
As recorded by the Tribunal in its Stage 2 decision, the appellant tendered twenty character references, provided principally by clients or former clients, and a statutory declaration provided by the convenor of what appears to be a support group for persons involved in care and protection cases. These, it seems, (they are not reproduced in the appeal papers), uniformly spoke glowingly of the appellant and the legal service he provided.
In addition, the appellant called nine witnesses to give oral evidence, some of whom (it seems) were those who had provided documentary material. The Tribunal noted that, although most of the witnesses were aware that the appellant was in danger of being disciplined, there was no evidence that any of them were informed about the nature and extent of the complaints brought against the appellant, or of the findings contained in the Stage 1 decision.
The Tribunal then referred to a number of prior complaints made against the appellant.
The Tribunal then said:

“The determination which we make concerning the protective orders which should appropriately be made following these findings is based on the totality of the proven professional misconduct.
…
25. In the course of submissions during the Stage 2 hearing the [appellant] sought to describe the proven misconduct as matters arising out of two sets of proceedings only which, presumably, represented a small part of his overall practice. This submission misrepresents the nature and extent of his professional misconduct. It is true that Grounds 1 and 2, and Grounds 3, 4, 5 and 6 respectively arose out of two sets of proceedings.
26. However, the proceedings the subject of Grounds 1 and 2 covered misconduct which occurred in April 2013 before the Children’s Court and in the District Court in November 2013. The inappropriate conduct of the [appellant] included disparaging and offensive comments made by the [appellant] concerning the presiding judicial officer, the Director-General, and legal representatives. In addition to this inherent misconduct, the [appellant] breached certain Advocacy and Professional Conduct Rules by which he was bound.”

The Tribunal went onto make similar observations about conduct the subject of Grounds 3, 4, 5 and 6.
The Tribunal described the appellant’s conduct as involving “a substantial and consistent failure to reach and maintain a reasonable standard of competence and diligence” and concluded that “his conduct justifies a finding that he is not a fit and proper person to engage in legal practice.” (at [31]). The Tribunal went onto hold that those findings:

“34. …create a significant basis for removal from the roll of practitioners because they are incompatible with the qualities expected of a legal practitioner by the courts, the public and fellow practitioners.”

The Tribunal recognised (at [36]) that removal of the name of a practitioner from the roll should occur only if it was persuaded that the practitioner was probably permanently unfit to practise law.
The Tribunal then said:

“37. It is clear from submissions made to this Tribunal by the [appellant] in connection with his applications for a stay of these proceedings and for referral to the Supreme Court, in the course of submissions before us in these proceedings and as the basis for his application for Review by the Court of Appeal that the respondent does not accept that his approach to the construction and application of the relevant provisions of the [Care & Protection] Act is incorrect. And because he holds such a view he does not appreciate and accept that his criticisms and complaints about the judicial officers and courts, the Director-General and legal practitioners involved in those proceedings are unjustified and inappropriate. Such an approach demonstrates that the [appellant] has no insight, comprehension and understanding of the misconduct found proven against him. There can be no confidence that the [appellant] would conduct himself in any other fashion if permitted to continue to practice.”

The Tribunal then extracted transcripts of oral submissions made by the appellant during the Stage 2 hearing, in which the appellant is recorded as saying, inter alia:

“Again, I was accused of having consistent view. My view is based on a solid and firm interpretation of the law. I can’t change my view unless I have persuaded that I am wrong and/or if a higher court makes decision contrary to my interpretation of the law I will follow it. I have no choice but to follow it. Neither any other lower court has choice but to follow it. But I cannot – “

He went onto say that his first duty was to the law.
As a consequence of the conclusions extracted above, the Tribunal ordered that the appellant’s name be removed from the roll of lawyers of the Supreme Court of NSW.

The Notice of Appeal

It is necessary to set out, in full, the grounds pleaded in the Notice of Appeal filed by the appellant.

1. The final orders of the Tribunal are based on false premises therefore void ab initio:
(a) most of the findings at the Stage 1 proceeding are based on the obiter dicta of the judicial officers who conducted the proceedings involving laws other than the laws relating to the professional conduct;
(b) the [Commissioner] and the Tribunal failed to properly inform themselves in the matters involving laws that are outside of their jurisdictional competence;
(c) as a result, the finding that the Appellant is guilty of the professional misconduct and not fit and proper person to practice law are invalid.

2. Failure to give adequate reasons for most of the findings at the Stage 1 hearing: the reasons are mere repetition of what the judicial officers conducting the proceedings from which the complaints arose stated.
3. Denial of the procedural fairness to the Appellant: even though the Appellant was present at every hearing in the Tribunal, his evidence (bar a small part) has been admitted and he was allowed to present written and oral arguments, the overall effect was as if the proceeding were an ex parte proceeding; the Appellant's evidence and arguments were almost entirely ignored at the Stage I hearing.
4. In relation to the complaint covered by Grounds 1 and 2 of the Further Amended Application filed by the [Commissioner] in the Tribunal:
(a) the Tribunal ignored the provisions of s 90 of the Children and Young Persons (Care and Protection) Act 1998 ("the Care Act");
(b) the Tribunal ignored the Appellant's evidence and arguments in support of his defence.

5. In relation to the complaint covered by Grounds 3 to 5 of the Further Amended Application filed by the [Commissioner] in the Tribunal, the Complainant misinformed the [Commissioner], and the Tribunal accepted the information as if correct, in relation to:
(a) the evidence filed by the Appellant's client;
(b) the prospect of success of the Appellant's client;
(c) the interests of the Appellant's client;
(d) the proceedings collectively known as Re Felicity, in which the Complainant was not involved;
(e) the state of the relevant law, in particular the Care Act, and its interpretation by the Appellant.

6. The [Commissioner] and the Tribunal failed to identify a member or a class of members of the public who have been or are likely to be adversely affected by the Appellant's conduct.
7. In its Reasons for Judgment of 9 January 2018 the Tribunal refers to the outcomes of the three previous complaints against the Appellant and the [Commissioner’s] findings, yet the Appellant had been denied his request to present evidence and arguments in relation to those complaints where the Appellant would have shown that:
(a) In relation to the complaint 38659:
(i) the Appellant had an arguable case based on provisions of the (NSW) Commonwealth Powers (Family Law—Children) Act 1986
(ii) the Appellant could not inform the other parties' lawyers about his request for a particular judicial officer to hear the matter, because there were no legal representatives appointed at that stage of the proceeding;
(iii) the Appellant would prove that he was justified in stating that (some) of the practices in the Children's Court were not in accordance with law.

(b) In relation to the complaint 37981 the Appellant would have shown that:
(i) the [Commissioner] had been misled about the applicability of the: Children's Court Practice Note No.6 which, in fact, does not apply to the District Court proceedings; District Court has its own relevant practice note (Practice Note No.5) which the Appellant followed;
(ii) the Appellant had not misled the clinician about the fresh material that he was required to read;
(iii) most questions in the care and protection jurisdiction are "sensitive questions" and the lawyer questioning an expert witness cannot avoid asking relevant questions without placing the interests of his or her client in jeopardy.

(c) In relation to the complaint 35871 the Appellant would have shown that his offending comments were based on the evidence in the Court and the interlocutory orders by the presiding Judge where the Appellant's client's opponent:
(i) was working in his father's business six days a week;
(ii) was receiving undeclared fringe benefits;
(iii) was able to pay a solicitor and a barrister to represent him;
(iv) the presiding Judge ordered that he pays the cost of expert witness.

8. In its Reasons for Judgment of 9 January 2018 the Tribunal deviated from the subject matter of its decision by publicly insulting the cognitive capacity of the Appellant in its statements that the Appellant:
- is "probably permanently unfit to practise law";
- that "leads to a consideration of the insight, comprehension and understanding possessed by the respondent [ie the appellant] concerning the misconduct which we have found proven";
- Appellant is "Such a person [who] is unlikely to change his beliefs without encountering something in the nature of an epiphany”.

thus likely to cause an independent, intelligent bystander to conclude that his Honour has brought a prejudiced mind to the proceeding.”

He sought orders that the appeal be allowed and the orders and findings of the Tribunal be set aside. Significantly, he also sought the following declarations and orders:

“The Appellant’s interpretation of the main provisions of [the Care & Protection Act] is not incompetent.
4. Declaration that the interpretation of the [Care & Protection Act] as found by the Court in the course of hearing this appeal, becomes the authority governing the proceedings in the NSW Care & Protection jurisdiction, until overturned.
5. Declaration that the Appellant is fit and proper person to practice law.
6. The [Commissioner] pays the Appellant’s costs and a symbolic compensation for his losses, including loss of reputation, caused by the [Commissioner’s] actions against the Appellant.”

Discussion

Before proceeding to deal with the pleaded grounds of appeal, it is appropriate to make some general observations about the conduct of the proceedings in the Tribunal and the reasons of the Tribunal.
First, the manner in which the application was presented was cumbersome and confusing. It can readily be seen from what has been said above that the nub of the Commissioner’s case was that the appellant had shown himself, in a series of instances, over a course of conduct, to be incompetent – that is, in the language of s 497 of the 2004 Act, to have consistently demonstrated that his practice of the law falls short of the standard of competence expected of a reasonably competent practitioner (it will be observed that “diligence”, which also appears in s 496, is omitted. There has never been any suggestion that the appellant lacks diligence).
That contention could be assessed on the totality of the conduct as particularised by the Commissioner. It was unnecessary, and confusing, to plead separately six grounds of the application. It was confusing because it deflected attention from the totality of the appellant’s conduct, and compartmentalised that conduct, such that it might be thought that any of the “grounds”, if factually proven, would support a finding of professional misconduct or unsatisfactory professional conduct.
Yet, it must be stated, the separate instances of conduct particularised in ”Ground 1” and “Ground 2”, while rude, discourteous and sometimes offensive, could hardly, in isolation, be held to reach the threshold required for a finding of professional misconduct, and may not have reached the threshold for a finding of unsatisfactory professional conduct.
Nor could the conduct particularised as “Ground 3” be so characterised. It is not unsatisfactory professional conduct or professional misconduct to contend that practices, even long standing practices, are contrary to law. Indeed, it is sometimes the duty of a practitioner to do so, although standards of professional courtesy ought always to be observed. Fearless advocacy sometimes requires the advocate to advance an unpopular or novel proposition, and even to assert entrenched error. No better example can be found than the decision of the High Court in Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23, in which advocates urged the reversal of decades of accepted law. To do so is not, as the Tribunal said, necessarily “deplorable”. The advocate who makes such a submission must, of course, keep a firm eye on the doctrine of stare decisis.
A further observation concerns the reliance by the Commissioner, adopted by the Tribunal, on “the Advocacy Rules”. It is at least arguable that those rules are directed to the assertion of factual matters relevant to the litigation between the parties involved. Yet the Commissioner asserted, and the Tribunal accepted, that the various statements attributed to the appellant in the proceedings before Magistrate Murphy and Olsson DCJ were in breach of those rules. By way of example, whether the statement:

“… whether we consented or not it was already predetermined that leave would be granted so this was pointless to argue anything and then we wouldn’t have right to appeal to the District Court …”

could be construed as an allegation of fact for the purposes of the Advocacy Rules is doubtful. It is not an allegation of fact in the inter partes litigation. Similarly, to characterise a position taken by another party as an abuse of process does not appear to be an allegation of fact for the purposes of the Advocacy Rules.

It is necessary to flag this as a matter of concern, lest it be concluded that this Court accepted that the Advocacy Rules extended so far. But it is neither necessary nor appropriate to go further, because:

although the Commissioner’s contention was expressly accepted by the Tribunal, it does not appear to have carried a great deal of weight in the ultimate determination;

the appellant did not contest the proposition in the Tribunal;

the appellant has not raised the Tribunal’s reliance on the Advocacy Rules as a ground of appeal;

this Court has therefore not had the benefit of argument on the question.

Those observations having been made, the grounds of appeal pleaded may be disposed of succinctly.

Ground 1

Just what is intended by Ground 1 is obscure. On one available interpretation, Ground 1(a) appears to assert that the findings of the Tribunal depend substantially, if not exclusively, on the previous decisions of the various courts referred to above, decisions not related to professional conduct; by Ground 1(b) the appellant appears to contend that the Commissioner and the Tribunal were not competent to determine issues concerning the appellant’s professional conduct, presumably because that conduct involved the specialised care and protection jurisdiction. By Ground 1(c) the appellant appears to contend that the consequence of the first and second propositions is that the decision of the Tribunal is “invalid”.
The first proposition is simply incorrect. There are passages in the Tribunal’s reasons where the previous decisions are discussed but that discussion relates only to “ground 5” and “ground 6” of the Commissioner’s application. The balance of the reasons is directed to the discourteous and offensive content of the appellant’s submissions, and his stubborn refusal to accept the rulings of superior courts. Indeed, the appellant opened his written submissions in respect of Ground 1 of the appeal by conceding “several allegations of improper language used by me”, which, he accepted, “border on unacceptable”.
In his written submissions the appellant argued that the Tribunal was “jurisdictionally incompetent” to deal with matters arising out of the Care & Protection Act. Of course, the Tribunal was not making determinations under the Care & Protection Act. It was dealing with the appellant’s conduct of proceedings under that Act. Specifically, the Tribunal recognised that, whatever was his own view of the construction of the Care & Protection Act, the appellant was bound by decisions of superior courts (as were all courts lower in the judicial hierarchy) and that he was obliged to advise his clients accordingly, and to limit any action he took on their behalf in accordance with those decisions. This is not to say that as an advocate, he was not entitled, appropriately, to challenge the decisions he contended were erroneous; but, as a qualified lawyer, he ought to have known that he could do so only in a court of equivalent or superior jurisdiction.
Ground 1 of the appeal should be rejected.

Ground 2: (inadequate reasons)

By Ground 2 of the appeal the appellant asserts a failure on the part of the Tribunal to provide adequate reasons for “most of the findings at the Stage 1 hearing”. He asserts that the reasons were “were repetition” of findings of the judicial officers in the proceedings under consideration.
In his written submissions directed to Ground 2 the appellant acknowledged that the fundamental facts were not generally in dispute, since they were either recorded in transcripts or given in judgments of the courts where the proceedings were conducted. His complaint of inadequate reasons was not of failure by the Tribunal to explain why it had made the decisions it did, but was of failure to determine issues of construction of the Care & Protection Act. Those issues were not before the Tribunal.
The appellant asserted that:

“The Tribunal failed to make its own determination if those statements (allegations) were the ‘facts’ on which the Tribunal was to make the finding of my misconduct.”

and that the “applicable law” was not the law and rules governing the legal profession but “the law totally foreign to the Tribunal”.

In other words, the appellant asserted that the role of the Tribunal was to make determinations with respect to the construction and application of the Care & Protection Act. This is fundamentally wrong.
Examination of the reasons given by the Tribunal establishes clearly that the Tribunal did explain the reasons for its decision. It is true, as the appellant acknowledges, that the underlying facts were not in dispute. It was the characterisation of the conduct revealed by those underlying facts, and the conclusions that should be drawn from that conduct, that were in issue. As to these, the Tribunal gave comprehensive reasons, in the passages extracted above, specifically, paras 90, 92, 93, 98 and 99 of the Reasons.
There was no failure to give adequate reasons for the decision. This ground must be rejected.

Ground 3: (denial of procedural fairness)

In his written submissions the appellant pointed out that the first “twenty or so” pages of the Tribunal’s reasons set out the application by the Commissioner and the appellant’s responses.
The appellant’s complaint in respect of this ground is that, although the Tribunal then proceeded to set out the Commissioner’s complaint, it did not also set out his response.
By way of example, at [16]-[23] the Tribunal considered the allegation contained in ground 1, particular 1.1 (referred to above). As indicated, there was no dispute that the appellant had made the remark attributed to him.
The appellant’s response was that he would be able to prove that his opinion was justified, based on his experience in the Children’s Court. He added that, as there was no application by the mother in that proceeding, there was nothing to withdraw. The application was an application under s 90 of the Care & Protection Act by the Director-General.
It is not correct to say, as the appellant does, that:

“There is not one word about my evidence and written submissions.”

At [21] the Tribunal said:

“21. The respondent relies upon his ‘experience’ in the Children’s Court as the basis for the statement made. Whatever his experience, each case determined by the Court must reflect the individual circumstances before the Court. No matter what the experience of the [appellant], and there is simply no evidence about this, the allegations made which we have found to be demonstrative of the assertions contained in this particular cannot be justified by reference to the experience of one practitioner, in circumstances where we are unaware of the nature and extent of that experience.”

It would not be productive to go through the same exercise in relation to each of the particulars pleaded in the application. It is clear that the Tribunal gave appropriate consideration to everything raised by the appellant, both in his written submissions, and in his evidence.

Ground 4

Ground 4 concerns the Re Felicity proceedings.
It can be seen from the way in which Ground 4(a) is framed that the appellant again contends that at least part of the task of the Tribunal was to consider the meaning of s 90 of the Care & Protection Act. This has been dealt with above.
The appellant’s written submissions throw no light at all on this ground. For example, in relation to the complaint that the appellant had asserted that the Director-General and other practitioners had a motive to “get rid of him” because he did not comply with the standard practice in the Children’s Court, the appellant submitted:

“The parts of the transcripts referred to in the complaint in the Reasons show that other practitioners involved did not know what they wanted. No matter what option I offered they wanted something different.”

The position adopted by the appellant is patently wrong. It is unnecessary to add anything to what has been said above. This Ground should be rejected.

Ground 5

This Ground concerns the reference by Judge Knox. As formulated it is difficult to interpret. However, the appellant filed lengthy (10 plus pages) submissions in relation to this ground, which he described as:

“…go[ing] to the core of the issues raised in the Tribunal and its utter disregard for my submissions.”

He went on:

“17. … The grounds cover, directly or indirectly, nearly all of the major provisions of the [Care & Protection Act]; it is hoped that this Court will take time to examine, (a) my exposition of the law as it is; (b) current practices in the care and protection jurisdiction; and (c) judge between the two. I respectfully refer to my two papers [in evidence] which will assist, at least to some extent.
18. As a result of the suggested exercise this Court will be able to set the record straight declaring with authority what is the law in relation to each of the major provisions of the [Care & Protection Act] that ought to be followed before they are overturned by this Court or by the High Court. If the matter is not settled now – and this is a unique opportunity – the state of the law in the care and protection jurisdiction will remain in the state of flux, if not chaos, with authority strewn all over the place and cherry picked by the key players at their pleasure, while the ‘minor’ players (as I am) will try to hit a moving target.
19. With no offense [sic] intended, the respondent should have sought help from experts in the care and protection jurisdiction rather than accepting indiscriminately the statement of the judicial officers presiding over the proceedings from which the complaints emanated. There was a golden opportunity offered by [Felicity’s father] who referred in his complaint to 8 ‘independent’ witnesses, each one having extensive experience in the care and protection jurisdiction: two counsel and six solicitors.”

The appellant then embarked on a lengthy discussion of “the process in care proceedings”.
Ground 5, as explained by the submissions, is plainly misconceived. To repeat – the role of the Tribunal was not to determine or re-determine the construction of any provision of the Care & Protection Act, or practice thereunder, and it was certainly not to rule on the correctness or otherwise of decisions of the Supreme Court or this Court. Nor, for that matter, in these proceedings is it the role of this Court to do so.

Ground 6

The appellant did not address any submissions to Ground 6. That ground may be disposed of by noting that it was not necessary that the Tribunal identify any member or class of members of the public who were or were likely to be adversely affected by the appellant’s conduct. Section 496 of the 2004 Act defined unsatisfactory professional conduct by reference to the expectations of “a member of the public”, but that does not mean that a finding under s 496 or 497 must identify any such member of the public. This Ground should be rejected.

Ground 7

In this Ground of appeal as pleaded, the appellant appears to suggest that the outcome of previous complaints against him was incorrect. In his written submissions he suggested that “there may be a need for further evidence and submissions” with the leave of the court. He did in fact make an application for such leave, but it was unsupported by adequate material to establish the proper basis for the exercise of discretion in his favour. This Ground should be rejected.

Ground 8: (prejudice)

This Ground of appeal appears to contend that the Tribunal’s reasons indicated prejudice on the part of its members. In his written submissions the appellant complained that the reasons were “full of criticism” of the way he occasionally related to others, but “insulted” him in the findings it made.
The Ground and the submissions again demonstrate misunderstanding of the nature of the role of the Tribunal. It was the task of the Tribunal to determine whether the appellant had engaged in professional misconduct and was thus not fit to practise law. Such a decision sometimes involves making judgments that appear harsh to the subject of the findings, but which are necessary in the exercise of the jurisdiction invoked. There is no prejudice disclosed.
Ground 8 should be rejected.
There is no substance to any of the appellant’s grounds of appeal.
Since this appeal is by way of rehearing and having regard to the provisions of s 75A of the Supreme Court Act, notwithstanding the conclusion that no ground of appeal should succeed, it is appropriate to note that the conclusions of the Tribunal are fair, appropriate and entirely justified. The evidence amply discloses, for the purposes of s 496 and 497 of the 2004 Act, that the appellant’s conduct in the practice of law fell short of the standards of competence and diligence expected, and justified a finding that he is not a fit and proper person to engage in legal practice.
The appeal should be dismissed with costs.

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Amendments

13 March 2019 - Corrected internal paragraph references in [203].

Decision last updated: 13 March 2019

Medium Neutral Citation:	Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173
Hearing dates:	5 April 2018
Decision date:	08 August 2018
Before:	Beazley P at [1]; Payne JA at [203]; Simpson AJA at [204]
Decision:	Appeal dismissed with costs
Catchwords:	OCCUPATIONS – legal practitioners – appellant found guilty of professional misconduct in respect of his conduct of proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) – appellant removed from roll – whether Tribunal should have considered proper interpretation of the Act – whether Tribunal denied appellant procedural fairness by failing to consider appellant’s evidence and submissions – whether Tribunal failed to give adequate reasons – whether Tribunal should have permitted appellant to adduce evidence regarding prior complaints – whether there was a reasonable apprehension of bias on the part of the Tribunal
Legislation Cited:	Children and Young Persons (Care and Protection) Act 1998 (NSW), ss 90, 91 Civil and Administrative Tribunal Act 2013 (NSW), s 62, Sch 5 Civil Procedure Act 2005 (NSW), s 99 Legal Profession Act 2004 (NSW), s 562 Legal Profession Uniform Law (NSW), ss 496, 497, 498, Sch 4 Professional Conduct and Practice Rules 2013 (NSW), rr 3, 4, 5 Revised Professional Conduct and Practice Rules 1995 (NSW), Advocacy Rules 23, A.36, A.37 Supreme Court Act 1970 (NSW), ss 48, 75A
Cases Cited:	Akins v National Australia Bank (1994) 34 NSWLR 155 Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 Clyne v New South Wales Bar Association (1960) 104 CLR 186; [1960] HCA 40 Department of Family and Community Services re GKD (Children’s Court of New South Wales, unreported, Magistrate Murphy, 26 April 2013) Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337; [2000] HCA 63 Ellis v Law Society [2008] EWHC 561 Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45 Griffin v Council of the Law Society of New South Wales [2016] NSWCA 364 HK v Director General, Department of Family and Community Services (District Court of New South Wales, unreported, Balla DCJ, 7 August 2013) JL v Secretary, Department of Family and Community Services [2015] NSWCA 88 Konstantinidis v Council of the Law Society of New South Wales [2018] NSWCA 59 Law Society of New South Wales v Walsh [1997] NSWCA 185 Lawrence v Gunner (No 3) [2016] NSWCA 18 Legal Services Commissioner v Potkonyak (No 2) [2017] NSWCATOD 134 Louise v Director General of Community Services [2011] NSWSC 1646 Mabo v Queensland (No 2) (1992) 175 CLR 1; [1992] HCA 23 McCann v Parsons (1954) 93 CLR 418; [1954] HCA 70 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 New South Wales Bar Association v Meakes [2006] NSWCA 340 Potkonyak v Legal Services Commissioner [2018] NSWCA 1 Preston v Green (1944) 61 WN (NSW) 204 Re Felicity (No 2) [2012] NSWSC 1561 Re Felicity; FM v Secretary, Department of Family & Community Services (No 4) [2015] NSWCA 19 Re Felicity; FM v Secretary, Department of Family & Community Services (No 3) [2014] NSWCA 226 Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36 Tjiong v Tjiong [2012] NSWCA 201 Walter v Council of Queensland Law Society Inc (1988) 77 ALR 228; [1988] HCA 8 Weaver v Law Society of New South Wales (1979) 142 CLR 201; [1979] HCA 35 Wentworth v New South Wales Bar Association (1992) 176 CLR 239; [1992] HCA 24 Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category:	Principal judgment
Parties:	George Potkonyak (Appellant) Legal Services Commissioner (Respondent)
Representation:	Counsel: In person (Appellant) C A Webster SC; P A Maddigan (Respondent) Solicitors: In person (Appellant) Office of the Legal Services Commissioner (Respondent)
File Number(s):	2018/24893
Decision under appeal	Court or tribunal: Civil and Administrative Tribunal Jurisdiction: Occupational Division Citation: Legal Services Commissioner v Potkonyak [2017] NSWCATOD 74; Legal Services Commissioner v Potkonyak (No 3) [2018] NSWCATOD 8 Date of Decision: 17 May 2017; 9 January 2018 Before: F Marks ADCJ Principal Member;C Ludlow Senior Member;M Bolt General Member File Number(s): 2015/383950