Stanoevski v Law Society of New South Wales (No 2) (LSD)

[2004] NSWADTAP 35

Appeal Panel - Internal

CITATION:	Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35
PARTIES:	APPELLANT Liljana Stanoevski RESPONDENT The Council of the Law Society of New South Wales
FILE NUMBER:	039030
HEARING DATES:	27/01/2004 & 5/03/2004
SUBMISSIONS CLOSED:	03/05/2004
DATE OF DECISION:	08/11/2004
DECISION UNDER APPEAL:	Law Society of New South Wales v Stanoevski [2003] NSWADT 77
BEFORE:	Hogan A - Deputy President; Clisdell RJ - Judicial Member; Taksa L - Non Judicial Member
CATCHWORDS:	Professional Misconduct - delay - Professional Misconduct - falsely attest signature - Professional Misconduct - forge - Professional Misconduct - mislead Family Court - Professional Misconduct - mislead Law Society - Unsatisfactory Professional Conduct - delay
MATTER FOR DECISION:	Merits
FILE NUMBER UNDER APPEAL:	022010
DATE OF DECISION UNDER APPEAL:	04/17/2003
LEGISLATION CITED:	Legal Profession Act 1987
CASES CITED:	Bannister v Walton (1993) 30 NSWLR 699 Barwick v Council of the Law Society of NSW (12 March 2004) NSW CA 40237/03 Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33 Stanoevski v The Queen (2001) HCA 4 (8 February 2001)
REPRESENTATION:	APPELLANT G Scragg, barrister RESPONDENT I Wales, SC
ORDERS:	Relist for date to be fixed by Registry for submissions on form of orders to be made

1 This is an appeal from a decision of this Tribunal dated 17 April 2003, which is cited as Law Society of New South Wales v Stanoevski [2003] NSWADT 77, in which it was ordered that the name of the appellant be removed from the roll of legal practitioners, and that she pay the costs of the respondent.

2 On 14 August 2003 this appeal panel decided that the decision under appeal must be reconsidered, and we granted leave to extend the appeal to a hearing on the merits. Our reasons for so deciding are reported at Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33.

3 It is common ground that in determining the appeal this panel must consider the evidence that was given before the tribunal at first instance. Counsel for the Law Society objected to our receiving any further evidence, but that objection was overruled. We proceeded to hear further evidence from Dr Westmore, forensic psychiatrist, who was not cross-examined, and from Anita Duffy, forensic psychologist, who was cross-examined. The appellant did not give further evidence.

4 The appellant was born in 1955, in Macedonia, and came to Australia in 1959. She qualified in Law with an Arts/Law degree at Sydney University, followed by the College of Law course, and was admitted as a solicitor in 1980.

5 She worked as an employed solicitor for 12 months with Church and Grace, and then with her sister in her practice in Rockdale during 1982 and 1983. By 1984 she had taken over her sister's practice. In 1985 she opened an office at Yagoona and in 1987 she purchased a practice at Condell Park, and for some time operated three offices.

6 The solicitor married in March 1991. In August 1991 she suffered a miscarriage. Her first child Natalia was born in July 1992. Shortly before the birth she had closed down in the offices at Yagoona and Condell Park, and operated solely at Rockdale.

7 In February 1993 the appellant suffered a further miscarriage. At about this time she was having difficulties in her relationship with her husband, who had separated from her for a short time.

8 In April 1993 the appellant was charged with conspiracy to cheat and defraud. It was alleged that she had conspired with two of her employees to stage the theft of her motor vehicle in order to obtain money from the insurer. She was required to attend court for committal proceedings in May and June 1993 and April 1994.

9 On 22 June 1993 the Law Society appointed Mr Owen, solicitor, as an investigator in relation to her practice. His investigations lasted until February 1994, and his final report was made in June 1994.

10 The appellant sold her practice to her sister, but continued to attend at her office to assist the investigator in his inquiries. She stopped work early in 1994. Her second child, Milica, was born in June 1994.

11 The appellant's trial on the charge of conspiracy lasted from 25 February 1997 until 7 March 1997, when the jury returned a verdict of guilty. On 27 June 1997 Judge Viney sentenced the appellant to home detention for a period of nine months.

12 Her appeal to the Court of Criminal Appeal was dismissed on 24 February 1998. She applied to the High Court for leave to appeal, which was granted on 10 December 1999. The appeal was heard on 5 September 2000, and was allowed on 8 February 2001. The High Court’s decision is reported as Stanoevski v The Queen (2001) HCA 4 (8 February 2001).

13 The order made by the High Court was to quash the conviction and to order a new trial. One of the joint judgments noted nevertheless that she had long since completed serving her sentence. The authorities did not proceed to any new trial.

14 This panel must of course proceed on the basis that the solicitor is not guilty of the offence. The published reasons of the High Court make clear that she had not received a trial according to law, because the trial judge had not correctly exercised his discretion in allowing her to be cross-examined, and to admit some evidence, about matters arising out of the investigator’s report. The proceedings are, however, relevant to this appeal, for two reasons. One is her claim that the criminal proceedings themselves affected her emotional health, which plays an important part in this case. The other is that some of the evidence given in the course of the proceedings is claimed to bear upon her credibility in these proceedings.

15 In September 2001 the appellant began work as a legal clerk in the office of her solicitor, Mr G A Walsh. In December 2001 a practising certificate was issued to her, on conditions that she practise as an employed solicitor for two years, and that she attend the Practice Management course at the College of Law. She complied with both those conditions, and continued to work for Mr Walsh until the making of the orders under appeal.

The Information

16 The information as presented on 16 March 2002 purported to contain 10 matters of complaint. At the hearing before the Tribunal the Law Society formally abandoned ground 9, and the Tribunal dismissed it accordingly. Counsel for the Law Society also then conceded that it was difficult to maintain ground 3 and, in the light of the evidence, the Tribunal dismissed that ground also. There is no appeal from those findings.

17 The remaining eight grounds may conveniently be grouped according to the client matter involved. They are not so arranged in the actual information, and some of the grounds actually set out more than one matter of complaint, but this arrangement did not occasion any inconvenience.

18 Marks Estate. In this matter there are two allegations of professional misconduct. First, that the solicitor was guilty of undue delay amounting to professional misconduct (Ground 1). Secondly, that she attempted to mislead the Law Society in two letters that she wrote to the Law Society when giving an explanation of the delay (Ground 2).

19 S & B Buldioski. In this matter there are four allegations of professional misconduct. First, that the solicitor forged the signatures of Mr and Mrs Buldioski on consent orders that were to be filed in the Family Court (Ground 4). Secondly, that she misled the Society in three letters in which she stated that both Mr and Mrs Buldioski signed the consent orders before her in her office (Ground 5). Thirdly, that she falsely attested the purported signatures of Mr and Mrs Buldioski on the consent orders (Ground 6). Fourthly, that she misled the Family Court by filing the consent orders in the Family Court (Ground 8(d)).

20 J R Fowler. In this Family Court matter there are really six allegations of professional misconduct. First, that the solicitor falsely attested the signature of her client on three affidavits filed in the Family Court (Grounds 7(a), 7(b) and 7(c). Secondly, that she misled the Family Court by filing those affidavits in the Family Court (Grounds 8(a), 8(b) and 8(c)). It was not alleged that the appellant forged the signatures of Mrs Fowler, but that she attested them when they were not signed in her presence.

21 Lease of land at Chester Hill. Lastly, there is an allegation of unsatisfactory professional conduct by the delay involved in handling a lease of property (Ground 10).

Reply

22 In her Reply dated 4 June 2002 the solicitor responded to those allegations as follows.

23 Marks Estate. (Ground 1) The solicitor admitted the undue delay, and that it amounted to unsatisfactory professional conduct, but denied that it amounted to professional misconduct.

24 Marks Estate. (Ground 2) The solicitor admitted that the letters that she wrote were not accurate.

25 S & B Buldioski. (Grounds 4, 5, 6, and 8(d)) The solicitor denied that she forged the signatures, that she misled the Law Society by her letters, that her attestation of the signatures was false, or that she misled the Family Court by filing the documents.

26 J R Fowler. (Grounds 7(a), 7(b), 7(c), 8(a), 8(b) and 8(c)) The solicitor denied that her attestation on any of the documents was false, or that she misled the Family Court by filing them.

27 Lease of land at Chester Hill. (Ground 10) The solicitor admitted delay amounting to unsatisfactory professional conduct.

Psychological evidence.

28 The appellant was first interviewed and assessed by Anita Duffy, consultant psychologist on 26 March 1997, when the appellant was awaiting sentence after her conviction in March 1997.

29 The appellant had described to Ms Duffy the difficulties that she had experienced in her relationship with her husband after the birth of her first child in July 1992. After her arrest in April 1993 their relationship had deteriorated markedly. At the time of the examination she was contemplating eventual final separation. She had trouble caring for the baby in addition to her work load. Her memory of events over the months preceding the alleged offence was a blur. She maintained that she had no memory of taking part in any of the activities involved in the charge.

30 To Ms Duffy the appellant seemed to be suffering from an anxiety disorder. Her conjecture was that at the time of the alleged offence she was suffering from post-natal depression. She recommended assessment by a psychiatrist, and ongoing therapeutic intervention by a Dr Sue Hanckel.

31 Her counsel sought an opinion from Professor Boyce, psychiatrist, who examined the appellant on 2 May 1997, shortly before her sentencing hearing. He had a copy of Ms Duffy’s report. The history that the appellant gave to him was much the same as she had given to Ms Duffy. He confirmed a diagnosis of post-natal depression, complicated by a physical condition of hypothyroidism. The lack of support from her husband and her returning to work so soon after the birth were other salient factors. At the time of his examination she was suffering a moderately severe depression, and was in urgent need of psychiatric help and anti-depressant medication. She had suffered a miscarriage, which had exacerbated the depression, and her emotional condition would explain why she was unable to recall events over the months following.

32 The reports of Ms Duffy and Professor Boyce were in evidence before the Tribunal. On this appeal we also received further evidence from Ms Duffy, and evidence in the form of a report by Dr Westmore, forensic psychiatrist, who examined the appellant on 26 June 2003.

33 In the history that she gave to Dr Westmore, the appellant complained that things “then fell apart" after her first miscarriage (which was in August 1991). We note that in 1997 Ms Duffy had recorded a history that the appellant's marriage had continued quite well until the birth of her first child, which was in July 1992. Also, in the history recorded by Professor Boyce, her complaints of depression did not commence until after Natalie’s birth. Otherwise the history was consistent with what she had earlier told Ms Duffy and Professor Boyce. During 1997 and 1998 she had received treatment from a psychiatrist, who had prescribed Zoloft, and from a psychotherapist. She had become reconciled with her husband in early 2002.

34 Dr Westmore reported,

"It is difficult making a psychiatric diagnosis in a retrospective fashion although the history does indicate that this woman has had a long history of depression. The differential diagnosis would include a dysthymic disorder which is a chronic depression, a major depressive episode or episodes or a moderate to severe adjustment disorder with symptoms of depression and possibly anxiety. She does not in my opinion have a discrete anxiety disorder and any symptoms of anxiety that she suffers are likely to arise from a primary depressive illness."

35 He agreed that the diagnosis by Professor Boyce of a postnatal depression was a possibility. He thought it likely, however, that that condition would have resolved, but the appellant's mood would have been affected subsequently by the other series of negative life events she experienced.

36 At the time of his examination she was still showing symptoms of anxiety and emotional lability, and he thought that she was probably still depressed. He considered that medication was justified.

37 Dr Westmore concluded,

"At the time her problems with the Family Law Court occurred she had I understand from her history recently had a miscarriage. After that event she reports suffering a depression of her mood state. She suffered a similar mood state disturbance preceding the events where she was charged in relation to a motor vehicle. The relationship between her depression and these events is unclear, but it is something that the Tribunal might consider in its deliberations."

38 Dr Westmore was not cross-examined. There was no evidence to the contrary, and we accept his opinions.

39 Ms Duffy re-examined the appellant on 19 June 2003, while the appeal to this panel was still pending. She had read the transcript of the hearing and the judgment of the Tribunal at first instance. The experience of home detention and of the appeal process through to the High Court had profoundly affected the appellant's psyche and she remained depressed.

40 The appellant told Ms Duffy that she had no recall of the incident involving the signatures of Mr and Mrs Buldioski, and that her memory of past events and dates has not been good. Ms Duffy thought that the first miscarriage may have been relevant, as it had occurred only a month beforehand.

41 With respect to the Tribunal's findings about her evidence relating to the Fowler signatures, she stated that she had no actual memory of these events, and had repeatedly told the tribunal she could not recall them. In Ms Duffy's opinion, the appellant's poor recollection of the events of early 1993 would be consistent with somebody not coping well with the birth of her child, and possibly suffering postnatal depression.

42 The appellant's presentation at the interview, and results of objective personality assessment, revealed to Ms Duffy a person then currently suffering from major depression and anxiety.

43 Ms Duffy cited academic support for the proposition that the appellant's ability to remember may have been adversely affected by her emotional stress. She reported,

"Liljana’s ostensibly calm and somewhat detached demeanour noted by the Tribunal and also as she appeared in our recent interview as well as in 1997, belies the emotional turbulence she seeks to hide. She has a great investment in appearing calm and in control rather than revealing her emotional difficulties to others. This facet of her personality has already been commented on in my previous report of 1997. Liljana’s identity is closely bound up with not disclosing her problems to others or revealing her emotions. This response style may have contributed to the Tribunal's conclusion that she showed lack of contrition or appreciation of the gravity of the conduct. The fact she had been and still continues to be in a state of high emotional arousal and depression both at the time the events occurred in 1991 and 1993 and over the intervening years, up to the present time may not have been apparent in her presentation to the Tribunal. She expresses her depression in a withdrawn, seclusive manner, rather than by overtly complaining, and thus may have given a very different impression to her actual emotional state during the days she was questioned by the Tribunal."

44 Later Ms Duffy was asked to address the possibility of a psychiatric illness, which might affect the appellant's abilities to discharge her duties as a solicitor. In her report, dated 13 Nov 2003, she commented on the appellant's resilience, as demonstrated by her further studies and work.

45 She reported,

“It is held that Liljana’s application to her work may certainly have suffered as a result of the stress that she was experiencing during this period because of her legal difficulties. Should these stressors be alleviated, it is considered that there would be no barrier for her to be able to carry out her duties as a practising solicitor. The psychological distress including anxiety and depression arose in response to her circumstances. As she has set out her goals firmly and determinedly to return to her profession, it is thought that many of these symptoms would be alleviated if she were able to do so."

46 Ms Duffy was cross-examined. There was no successful challenge to her opinions about the effect upon the appellant's memory of her psychological condition. Nor was there any evidence called by the respondent to contradict those opinions. What was put in issue was the appellant's present condition and suitability for practice.

47 On Ms Duffy's hypothesis, the appellant's personality traits continue. Her depression had been the result of family and personal circumstances, which could occur to anyone at any time.

48 The appellant had admitted to Ms Duffy that she was depressed at the time of the interview in June 2003. It was clear to Ms Duffy that, at the time she was giving evidence to the Tribunal in December 2002, the appellant would have been depressed. Nevertheless, she had sworn to the Tribunal that she was not then depressed. Ms Duffy thought that the appellant might well disclose her condition more accurately to a counsellor than to a Tribunal without being dishonest. The stresses in her life at that time had also been significantly reduced, despite the disciplinary proceedings.

Findings

49 Ground 1: Delay in Marks Estate, and Ground 10: Delay in Lease. Two of the issues raised may be quickly dealt with. The Tribunal, at paras 8-11 of its reasons, agreed with the submission that the delay in handling the Marks estate amounted only to unsatisfactory professional conduct, which, had it been the sole matter of complaint, would have merited a reprimand. Similarly, the delay in handling the lease was conceded to be unsatisfactory professional conduct, without a satisfactory explanation. (paras 63-64). These findings were not challenged on this appeal.

50 Ground 2: Misleading Law Society – Marks Estate. In December 1992 the Law Society informed the solicitor that it had received a complaint from Mr Marks about her handling of the estate. On 29 January 1993 the solicitor wrote to the Law Society a letter in which she sought to convey that the delay was attributable to one of the executrices in executing an affidavit as to renunciation of her appointment. In a further letter dated 12 March 1993 the solicitor again referred to the lapse of considerable time in receiving the affidavits from the executrix.

51 As she admitted in the particulars in her reply, “In fact the delay had occurred due to the solicitor’s inexperience in respect of probate work, which resulted in the Application for Probate not being properly made and resulting in the raising of requisitions by the Registrar of the Probate Office."

52 On 5 Oct 1994 Mr F. Lloyd, the solicitor’s legal representative, wrote to the Law Society on her behalf, admitting her unsatisfactory professional conduct, attributing it to the solicitor's inexperience in probate work. He conveyed his client's apology to Mr Marks, and forwarded her cheque for $700, as a refund of the costs that he had paid.

53 In her affidavit sworn 1 August 2002 the solicitor deposed, "I verily believe that a lot of the difficulties were attributable to the difficulties that I was experiencing in my professional and personal life throughout that time frame. I unreservedly accept that I had a clear duty to be frank in my response to the Law Society and I concede that my response was misleading and I truly regret that."

54 At the hearing before the Tribunal the question arose whether that statement amounted to an admission that she had attempted to mislead the Law Society. Her counsel conceded that it did. (T. 11/12/02, p.50 @12-31) During cross-examination it was put to her that the attempt was intentional. (T. 11/12/02, p.77 @41-p.78@26; p.80. @30) She responded that she did not know. (T. 11/12/02, p.80 @34-42) She said that her emotional condition had been such that she was not able to make a balanced reply to the Law Society. Her solicitor had written that she had thought it right at the time to adopt an adversarial stance towards the Law Society, an attitude that she then conceded to be wrong.

55 Later, in cross-examination, she appeared to agree that she made statements to the Law Society that she then knew to be incorrect. (T. 11/12/02, p.81 @22-28) Later still, she claimed that she did not know whether at the time she was consciously attempting to mislead. (T. 11/12/02 p.91 @14- p.92 @2).

56 We would be quite prepared to accept that, as she was giving evidence in 2002, she would have difficulty remembering what her precise intention had been as she wrote the letters in January and March 1993, not only because of the lapse of time, but also because of the evidence about her emotional state at that time and its effect upon her memory. We may not feel forced to draw such adverse inferences about her credibility from her prevarications on this issue as did the members of the Tribunal.

57 Nevertheless, we are convinced that the concessions that she made in her reply and in her affidavit were the truth. There is a vast difference between delay caused by inexperience and the traumas that she was suffering, on the one hand, and delay caused by conduct of the executrix on the other. Our conclusion does not need to depend upon concessions in cross-examination. It rests on the objective facts and that difference.

58 We are quite satisfied that at the time she wrote the letters she knew that she was misleading the Law Society, and she deliberately did so.

59 Her emotional condition may well have been the reason why she did so. We note that in early 1993 her first child was less than 1 year old, she suffered a miscarriage in February, and at about this time she was having difficulties in her relationship with her husband. Nevertheless we have no doubt that she deliberately gave to the Law Society an explanation for the delay that she then knew was false, and repeated it. That conduct amounts to professional misconduct.

60 The force of her acknowledgement and expression of regret in her affidavit are also lessened by the prevarications to which we have referred.

61 Grounds 4, 5, 6 and 8(d): Buldioski. On 10 September 1991 Mr Buldioski instructed the appellant to act for him. His marriage had been dissolved, and he had agreed with his former wife that he would transfer to her his interest in a house property at Fairfield. It is probable that on this first consultation Mrs Buldioski was not present. She was not represented by a solicitor.

62 The appellant prepared a Property Application and a form of Consent Orders, and on 20 September 1991 wrote to Mr and Mrs Buldioski asking them to call to sign them. It is probable that they both did so on 25 September 1991. The Application was dated 25 September 1991. The Consent Orders were, however, dated 10 September 1991. The solicitor forwarded them to the Family Court on 26 September 1991. The signatures on these documents were genuine.

63 On 30 September 1991 the Family Court returned the documents unfiled to the solicitor, together with a requisition.

64 On 17 October 1991 the appellant sent to the Family Court a Property Application and Consent Orders, in triplicate. They were returned to her unfiled, together with a requisition dated 21 October 1991, which required a form 18 (Wife’s address for service and acknowledgement of service) to be supplied, together with an original and four copies of the Application and Consent Orders. She sent those documents back to the Court on 10 December 1991.

65 There was a further requisition by the Court on 17 December 1991, requiring a proper cover sheet. The appellant complied with that on 20 December 1991.

66 In the solicitor’s file there was a file note dated 12 December 1991, which appears to refer to an attendance on Mr Buldioski to re-execute amended documents. The appellant was unable to explain why that attendance was necessary. Her attempted explanation that it might have been to sign the cover sheet required by the Court is not credible, and adversely affects her credibility. (T. 12/12/02 p.21 @49-p.22 @33)

67 The application was finally filed on 13 January 1992. The Consent Orders were made on 28 January 1992. The appellant sent sealed copies of the Consent Orders to Mr and Mrs Buldioski. On 24 February 1992 Mr Buldioski executed the transfer of the property in pursuance of the Consent Orders.

68 On 20 March 1992 Mr Buldioski rang and left a message for the appellant, complaining that the signatures on the Consent Orders that he had received were not those of himself or of his wife.

69 Mr Buldioski gave evidence. There are examples of his genuine signature on all 4 pages of his affidavit, on the 6 pages of the Family Court Application and Affidavit verifying it, and on his complaint to the Law Society. They appear to the untrained eye to be consistent each with the others.

70 There are purported signatures, above the line marked “Husband”, on 3 different copies of Consent Orders dated 10 September 1991 and one dated 18 October 1991, which are annexures A, B, C and D to his affidavit. It is Annexure A which bears the stamp of the Family Court Parramatta Registry. To the untrained eye those 4 signatures appear different each from the other and all appear different from his genuine signatures. Mr Buldioski swore that each of those four signatures was not his.

71 He was cross-examined at some length before the Tribunal. He needed the assistance of an interpreter to give his evidence. Perhaps for that reason, or from faulty memory about events over ten years beforehand, or both, there was some confusion in his evidence about dates of his meetings with the solicitor, details of his conversations with her about costs, whether and on which occasions he was accompanied by his wife and about his identification of a sample signature extracted from one of the documents in evidence. There was also a suggestion that the transfer of property to his wife may have been an attempt to defraud creditors in the light of his pending bankruptcy. Nothing in the cross-examination, however, cast any doubt on his claim that the four signatures, and in particular that on exhibit A to his affidavit, were not his.

72 Mrs Buldioski gave evidence. She said that the signatures purporting to be hers on the same four Consent Orders had not been made by her.

73 She also was cross-examined through an interpreter. She could not remember how many documents she had signed in the solicitor's office. She said that she only went there once. She was not sure whether a signature on her Acknowledgement of Service was hers, although it looked like it. It was not even suggested to her that her denial of the authenticity of the signatures on the Consent Orders was wrong.

74 Evidence was given by Mr Chris Anderson, Forensic Document Examiner, who had examined photocopies of two of the Consent Orders dated 10 September 1991 in question. He also had a series of specimen signatures of Mr and Mrs Buldioski and examples of writings by the appellant.

75 In his opinion: (a) it was very unlikely that Mr Buldioski wrote the illegible S. Buldioski signatures on the consent orders; (b) Mrs Buldioski did not write the Biljana Buldioski signature on the questioned documents; and (c) there was strong support, falling just short of conclusive evidence, for the proposition that the appellant had written the questioned signatures of B Buldioski and Biljana Buldioski on the consent orders.

76 Mr Anderson was cross-examined. The effect of the cross-examination may be summarised by saying that, had he been provided with additional material, he might possibly have been able to express a more firm opinion, but he insisted that he had seen sufficient material to enable him to express the qualified opinions in his report.

77 In her affidavit the appellant swore

“4.3 I say that in the course of my instructions I prepared Consent Orders which in effect transferred the interest in the Fairfield property to the wife. It is my best recollection that the Consent Orders dated 10 September 1991 were signed in my office and I witnessed the signature of Mr Buldioski. I deny that I forged the signatures of either the husband or the wife. In respect of the Consent Orders dated 18 Oct 1991 I have no specific recollection of why those orders are so dated 18 October 1991. I deny that I forged the signatures of the husband and wife on that document.

4.4 It is my best recollection that after preparing the Consent Orders and having them executed I rendered an account to Mr Buldioski and it was only after rendering the said account that allegations were made against me."

78 The appellant did not have access to her file when making her affidavit on 1 August 2002, nor had the report of Mr Anderson, dated 7 November 2002, been served on her.

79 In her oral evidence in chief she confirmed, by reference to the file and a bill of costs, that she received instructions on 10 Sep 1991, that the Property Application and Consent Orders were signed on 25 Sep 1991, and that they were sent to the Family Court on 26 Sep 1991 and, following requisitions, on 17 October and 10 December 1991. Although the court documents show that the orders were made on 28 Jan 1992, according to her file she sent sealed copies, together with her bill, to Mr and Mrs Buldioski on 21 Jan 1992. That anomaly was not explained. When Mr Buldioski rang to complain about the signatures on 20 March 1992 she did not speak to him.

80 When shown Mr Anderson's report, she could not explain why the consent orders were dated 10 September when they were in fact signed on 25 September. She insisted in cross-examination that the transfer had not been signed on that date, although a bill of costs appeared to indicate that it had been. She conceded that the undisputed signature of Mr Buldioski bore no resemblance to the signature above the word “husband” on one of the consent orders.(T. 12/12/02 p10@35). She would not express an opinion about the signature of Mrs Buldioski, but she insisted that she, the appellant, had not written it.

81 Under further cross-examination (T. 12/12/02, p.11), when confronted with the evidence of Mr and Mrs Buldioski, she said that she believed that the signatures were theirs. She said, "I'm not sure whether they signed in front of me or whether the documents were brought in signed by them." That was a suggestion that she had never made before. In a letter that she had written to the Law Society on 22 June 1992 she had written

“We fail to see how we could have forged the signature of the complainant and his wife as they both came in our office and execute (sic) the necessary documents before me . (Emphasis added).

The simple fact is that Mr Buldiovski (sic) is a liar who does not wish to pay his account and well (sic) find any excuse to elude the payment of the outstanding account."

82 She later repeated (T. 12/12/02, p.28 @ 30) that “it may have been possible that the documents may have been already brought in signed by them to me.” In another letter to the Law Society dated 20 October 1992 she had written,

“With respect to the statutory declaration of Biljina Buldiovski (sic) we fail to see its relevance as both Mr and Mrs Buldiovski came to our office together and notwithstanding executed the consent order and the memorandum of property transfer in my presence ." (Emphasis added)

83 In a letter to the Law Society dated 23 November 1992 the appellant wrote

“With reference to your letter dated 17th November, 1992 consent orders and the respective copies, together with the memorandum of transfer were executed by Mr and Mrs Buldiovski in my office and any variation in signatures was attended to by Mr and Mrs Buldioski in my presence ." (Emphasis added).

84 The appellant denied that she had put the signatures of the husband and wife on the consent orders because of embarrassment at the delay that had taken place. She could not identify anyone who had a motive to forge the signatures of Mr and Mrs Buldioski on the consent orders.

85 It is apparent from the Family Court file that a number of copies of the consent orders were made available to Mr Paul Westwood, Forensic Document Examiner of Queanbeyan, on instructions from the appellant’s legal advisors. No report from Mr Westwood was tendered, and there was no explanation given by the appellant for its absence.

86 On the whole of the evidence we are convinced that the findings of the Tribunal at first instance were correct, and we concur in them. The signatures on the disputed Consent Orders, and in particular on the one that was finally accepted for filing in the Family court, were clearly not signed by Mr or Mrs Buldioski. The signatures were placed there by the appellant. Her attestation of the signatures was false. The three letters that she wrote to the Law Society in which she clearly stated that the Buldisoskis had signed in her presence were deliberate attempts to mislead the Law Society. She deliberately misled the Family Court by filing a document purporting to be signed by the parties when it had in fact not been signed by them but by her. Each of those matters constituted professional misconduct.

87 It is clear, however, that by engaging in that conduct there was no attempt by her to mislead the Family Court about what had in fact been agreed between the parties. Nor was there any attempt by her to cause harm to any other person, or to obtain any improper financial benefit for herself. She did so most probably to avoid embarrassment at the delay and mistakes that had taken place in her carrying out a relatively simple and uncomplicated Family Law task. In making that finding it is necessary to take into account her emotional turmoil at the time.

88 On the other hand, in making those findings, we have found ourselves forced to the conclusion that we could not accept her sworn evidence. For example, her evidence that the documents may have been placed in front of her already signed is contradicted by her own letters to the Law Society, by her Reply and by her affidavit. It follows from our findings that she has attempted to mislead the Tribunal by giving false evidence, in particular by denying that she placed the signatures of the Buldioskis on the documents, and that fact must be taken into account when deciding on the proper order to be made: Bannister v Walton (1993) 30 NSWLR 699; Barwick v Council of the Law Society of NSW (12 March 2004) NSW CA 40237/03.

89 Grounds 7(a), 7(b), 7(c), 8(a), 8(b) and 8(c): J R Fowler. In October 1992 the appellant received instructions to act for Mrs J R Fowler (now Mrs Kennedy) in connection with her matrimonial affairs. Mr Fowler commenced Family Court proceedings in November 1992.

90 On 21 January 1993 Mrs Fowler furnished instructions to the appellant about her financial circumstances. On 2 February 1993 the solicitor forwarded to the Family Court for filing an Answer and Cross-Application and Statement of Financial Circumstances. In respect both of the Answer and of the Statement of Financial Circumstances there was annexed an affidavit, which purported to have been sworn by Mrs Fowler in the presence of the solicitor on 27 January 1993.

91 A later search of the Family Court file disclosed that there had been filed on 16 April 1993 an Amended Answer and Cross-Application, to which was annexed an affidavit purporting to have been sworn by Mrs Fowler in the presence of the solicitor on 13 April 1993.

92 Mrs Fowler gave evidence that the signatures on those three affidavits were not hers. She was briefly cross-examined before the Tribunal, but that evidence of hers was not challenged in any way.

93 Mr Anderson also gave evidence that supported the inference that the signatures on the affidavits were not those of Mrs Fowler. He was not able to say with any confidence who was the author of them. That evidence was not challenged in cross-examination.

94 In her affidavit sworn 1 August 2002 the appellant stated that she prepared the Answer and Cross-Application. She swore, “I say that Mrs Fowler signed that document and I witnessed her signature. I deny forging Mrs Fowler's signature.”

95 She stated that she also prepared the Statement of Financial Circumstances. She swore, "I say that Mrs Fowler executed that document and I witnessed her signature. I deny forging Mrs Fowler's signature."

96 She also prepared the Amended Answer and Cross-Application. With respect to that document she swore, "I deny that I forged Mrs Fowler's signature on that document."

97 Those answers may not appear to address precisely the matter of complaint, which was not about the signatures on the pleadings, but those on the affidavits verifying them. However, it appears from the evidence before the Tribunal at first instance that all concerned referred to each pleading and affidavit as being the one document.

98 In her oral evidence in chief the appellant was shown the affidavit verifying the Answer and Cross Application which purported to have been sworn on 27 January 1993. She was asked whether she was able to say whether or not she saw Mrs Fowler place the signature on that affidavit or not. She replied, "I'm not able to say, but I believe that that was her signature on the documents."

99 In relation to the Statement of Financial Circumstances, when asked whether she was able to say that she was actually present when the signature of the department was placed on the document she replied, "I can't tell you that."

100 In relation to the affidavit verifying the Amended Answer and Cross Application, purporting to have been sworn on 13 April 1993, again, when asked whether she was able to say whether she attested at the same time she replied, "I can't tell you. I don't know."

101 She agreed that she was saying that it was possible that when she had attested the affidavit, the signature, or what purports to be the signature, of Mrs Fowler was already on the document.

102 In cross-examination the appellant claimed that in her affidavit she had not meant to convey that she actually saw Mrs Fowler sign the document. (T. 12/12/02, p.34 @ 36). She said it was possible that

“If the document had been brought in signed and I witnessed the client’s signature, she would have probably been outside in the reception or I had clients with me. I don't know the circumstances. I can't recall."

103 Nevertheless, she claimed at that stage to be certain that Mrs Fowler had signed.

104 We do not regard as particularly significant the cross-examination about the entries in the appellant’s diary, or their availability for use in the District Court proceedings.

105 It is clear from the appellant’s own evidence that she was prepared to attest signatures on an affidavit when they had not been signed in her presence. Even if it were accepted that she had done so, that would have been serious misconduct in itself, and would have led to the misleading of the Family Court. We however do not believe that evidence. It is contradicted by her own Reply. We do not accept that there is any ambiguity in her affidavit, and that also contradicts it. It is clear on any view of the evidence that Mrs Fowler did not sign the affidavits. There is simply no evidence about who it was who did sign them.

106 The appellant signed the affidavits verifying the pleadings as attesting witness. Those attestations were false. She filed the documents in the Family Court knowing that the attestations were false. That is professional misconduct.

107 Again, there is no suggestion that the documents sworn to or the affidavits contained any untrue statements, or that the appellant intended or caused any harm to her client or to anyone else, or that she obtained any particular benefit from her action. Also, it is proper to take into account her emotional condition at the time.

108 Nevertheless, this was a more serious act of professional misconduct, because on three occasions she purported to have administered an oath when she had not done so, and misled the Family Court by filing documents purporting to have been sworn when they had not been sworn or even signed by the purported deponent.

109 Further, it is a necessary consequence of our findings that she has attempted to mislead the Tribunal by false statements in her Reply, in her affidavit and in her evidence. That again is a matter that must be taken into account in deciding upon the proper orders to make.

110 The appeal is to be relisted at a time to be fixed by the Registry, for submissions about the proper orders to be made in the light of these findings.