Stanoevski v The Council of the Law Society of New South Wales

[2005] NSWCA 428

CITATION:	STANOEVSKI v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES [2005] NSWCA 428
HEARING DATE(S):	3 November 2005
JUDGMENT DATE:	6 December 2005
JUDGMENT OF:	Mason P at 1; McColl JA at 58; Brownie AJA at 59
DECISION:	Appeal allowed in part. See par 57 for further orders.

CATCHWORDS:	Legal practitioners – discipline – professional misconduct - Deliberate conduct involving the proffering of false documents to Family Court – deliberate attempt to mislead Law Society – Appeal Panel also found that appellant had deliberately attempted to mislead Tribunal at first instance by giving false evidence - impact of appellant’s subjective circumstances in contributing to her poor performance as a witness - Principle in Briginshaw v Briginshaw not applicable to decision whether striking-off was an appropriate response to the findings of misconduct - Procedural fairness - conduct of case before Appeal Panel -Grounds of Information not amended to raise question that appellant deliberately gave false evidence before Tribunal at first instance - matter not raised before Appeal Panel (ND)
LEGISLATION CITED:	Administrative Decisions Tribunal Act, s113, s119
CASES CITED:	Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32, (2004) Aust Torts Rep 81-370 Fox v Percy (2003) 214 CLR 118 Law Society of New South Wales v Stanoevski [2003] NSWADT 77 Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 Smith v New South Wales Bar Association (1992) 176 CLR 256 Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247 Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33 Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35 Stanoevski v The Queen (2000) 202 CLR 115 Stead v State Government Insurance Commission (1986) 161 CLR 141
PARTIES:	Liljana STANOEVSKI THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES
FILE NUMBER(S):	CA 40055/05
COUNSEL:	Appellant: C Adamson SC/ J Sheller Respondent: I Wales SC
SOLICITORS:	Appellant: Greg Walsh & Co Respondent: Law Society of New South Wales

LOWER COURT JURISDICTION:	Administrative Decisions Tribunal Appeal Panel
LOWER COURT FILE NUMBER(S):	ADT/Appeal Panel 022010
LOWER COURT JUDICIAL OFFICER:	Appeal panel

CA 40055/2005
DC 022010

MASON P
McCOLL JA
BROWNIE AJA

Tuesday 6 December 2005

Liljana STANOEVSKI v THE COUNCIL OF THE LAW SOCIETY OF NEW SOUTH WALES

JUDGMENT

1 MASON P: In March 2002 the Law Society filed an Information in the Administrative Decisions Tribunal, Legal Services Division, charging the appellant with professional misconduct. There was a hearing over five days in December 2002 in which the appellant gave evidence. In a reserved decision given on 17 April 2003 the Tribunal ordered that the appellant’s name be removed from the Roll of Legal Practitioners and that the appellant pay the Law Society’s costs (Law Society of New South Wales v Stanoevski [2003] NSWADT 77).

2 The misconduct established had occurred in 1991-94. It was found that the appellant had attempted to mislead the Law Society in correspondence seeking to explain her conduct in an estate matter she handled in 1991-92 (Reasons at [20]). The Tribunal also found that in late 1991 the appellant had forged the signatures of a Mr and Mrs Buldioski on consent orders she submitted to the Family Court, that she misled or attempted to mislead the Family Court in proffering those consent orders purportedly witnessed by her, and that she misled the Law Society in correspondence concerning that transaction (Reasons at [52]). It was also found that the solicitor misled or attempted to mislead the Family Court by filing affidavits purportedly sworn by a Mrs Fowler in her presence in 1993 when the client had not signed the affidavits at all (Reasons at [62]).

3 These matters were found to constitute professional misconduct, as they undoubtedly did.

4 In reasoning to its conclusions, the Tribunal relied on the appellant’s (belated) concession that her correspondence with the Law Society about the estate matter had been misleading (Reasons at [16]-[19]). The findings relating to the false documents, including the finding of forgery, were based on acceptance of the evidence of the former clients and of the evidence of handwriting experts and rejection of the appellant’s sworn evidence. That latter evidence was characterised as reconstruction “at best” (at [51]). The Tribunal had been invited to find that the solicitor had been “less than frank” in her testimony (Black 316, 329), but it held back from any conclusion that she gave perjured evidence. It was clearly unimpressed with her performance in the witness box and the adverse credibility findings are expressed in strong terms (see at [48], [51], [59], [60], [76]). Nevertheless, the findings fall short of concluding that the solicitor gave deliberately false evidence to the Tribunal. As to the distinction, see Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268.

5 When it turned to consider the orders to be made, the Tribunal assessed the seriousness of what had been done and its effect upon the solicitor’s present fitness to continue to practise. The Tribunal recognised that the misconduct was of a most serious nature. The Tribunal also correctly observed that its disciplinary jurisdiction was protective rather than punitive, the critical question being whether the evidence demonstrated at the present time that the solicitor was unfit to practice or to be permitted to continue to practise.

6 The crux of the reasoning leading to the conclusion that the solicitor was not a fit and proper person to remain on the roll appears at pars 71-77 of the Reasons:

71 In the Tribunal’s opinion, there can be no doubt but that the findings made as to the Solicitor’s conduct would have justified an order that her name be struck from the roll had the complaint been heard and determined soon after the events took place. However, those events took place between 1991 and 1993.
72 The Tribunal has had regard to two medical reports filed on behalf of the Solicitor and her oral evidence concerning a miscarriage which she suffered in August 1991 and the consequential depression which she suffered. She said, and the Tribunal accepts, that she found it really hard to work or to make decisions and that she procrastinated so far as her work was concerned. The Tribunal also has regard to the fact that following the birth of a child in July 1992 the Solicitor suffered stress related complications and marital difficulties. She says and the Tribunal accepts, that in this period she was very depressed. The Tribunal also takes account that in February 1993 the Solicitor suffered a second miscarriage and suffered stress and depression as a result.
73 While the Solicitor undoubtedly was suffering from stress and depression at the time, the Tribunal did not understand either her or her counsel to put that forward as an explanation for her conduct or as a justification for it. The Tribunal does, however, take it into account.
74 The Tribunal also takes into account five affidavits of good fame and character filed on behalf of the Solicitor and the oral evidence of Mr Walsh, solicitor. He expressed the view that notwithstanding the very serious allegations the Solicitor was nevertheless a person of good fame and character and subject to the findings of the Tribunal, should remain a solicitor of the Supreme Court albeit it that she ought to work under supervision for a time because from his experience and observation this would be necessary as she has been out of the workforce as a solicitor for a period of time.
75 As has already been observed, the conduct in which the Solicitor engaged was grave professional misconduct which, by any standard, was disgraceful. As has been found that conduct was not one isolated incident but occurred on a number of occasions and over a period of time.
76 As has been found in relation to the matter of Marks and the matter of Buldioski the Solicitor endeavoured to mislead the Law Society when confronted with the allegations. The affidavit which she filed in these proceedings particularly in relation to Mrs Fowler was also in the Tribunal’s opinion misleading and materially so. The Solicitor’s oral evidence to this Tribunal has in the Tribunal’s opinion been less than frank. As noted above in relation to the Marks matter, while some concessions were belatedly made, her oral evidence indicates that the Solicitor in relation to that matter and in relation to the other matters where adverse findings have been made has failed to show any contrition at all or any appreciation of the gravity of her conduct. By way of example only she blithely offers as an attempted explanation in the Fowler matter that perhaps the affidavits were signed and brought into her and she then (falsely) attested the document. She puts this forward without compunction or acknowledgement that that sort of conduct is totally unacceptable.

77 The Tribunal is of the opinion that it has been amply demonstrated by the Law Society that the Solicitor is not now a fit and proper person to remain on the roll. To come to any other conclusion would involve, in the Tribunal’s opinion a real risk of harm to the public and to the administration of justice in this State.

7 The appellant appealed to the Appeal Panel of the Tribunal. She raised questions of law and sought leave to extend the appeal to a review on the merits (see Administrative Decisions Tribunal Act, s113).

8 On 14 August 2003 the Appeal Panel published reasons to the effect that the divisional Tribunal had erred at law in misapprehending, or failing to address, the case which the appellant had presented in respect of the impact of her subjective circumstances in contributing to the misconduct (Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33). The error of law was characterised as a failure to take into account submissions about the appellant’s mental state, involving a failure to make critical findings about the case that the appellant was in fact making (cf Soulemezis v Dudley Holdings Pty Ltd (1987) 10 NSWLR 247). The error of law was found to be one “that could have affected the Tribunal’s decision” (Reasons at [22]).

9 The Appeal Panel did not however set aside the original decision at that stage. Rather, it granted leave to extend the appeal to a review of the merits. The proceedings were adjourned “for the hearing of such further evidence and the making of such further submissions on the merits as the parties may be advised”.

10 The appellant then filed detailed “grounds of appeal” that challenged both the factual findings underpinning the Tribunal’s decision on professional misconduct and the conclusion as to present unfitness. This was one of several indications showing that the parties proceeded on the basis that the appellant continued to carry the burden of showing error in the original decision. (I imply no criticism in this observation.) The Tribunal was said to have erred in failing to take into account the evidence relating to the solicitor’s mental state in 1991-1993 and in finding that the solicitor was not now a fit and proper person to remain on the roll.

11 The further hearing before the Appeal Panel took place on 27 January and 5 March 2004.

12 The Law Society did not seek to amend the Information. In particular, it did not charge the appellant with having given false or perjured evidence before the divisional Tribunal. Nor did it raise such a contention in correspondence or opening submissions.

13 The parties treated the evidence at first instance as being before the

Appeal Panel. The appellant offered no evidence from herself at any stage in the proceedings before the Appeal Panel.

14 The only additional evidence were reports, tendered by the appellant, from Dr Bruce Westmore, psychiatrist and Ms Anita Duffy, psychologist (Blue 928ff).

15 Dr Westmore’s report was based upon examining the appellant on 26 June 2003. He took a history that he summarised as follows:

Her history is that she had a busy, successful legal practice and things were progressing reasonably well in her life until 1991 when she suffered a miscarriage. Following that negative life event she suffered a series of subsequent negative life events all of some significance. Accusations were made in relation to her legal practice, she delivered her first child. She had a second miscarriage. She sold her legal practice and then had a second child. She left work and became a full time mother and housewife, something she found stressful. She was then charged with a criminal matter and later convicted and sentenced to nine months’ home detention. This sentence was served. The conviction was overturned and a re-trial ordered but the DPP didn’t proceed. She recommenced work as a solicitor but subsequently disciplinary proceedings were commenced and she was struck off as a solicitor in April 2003.

16 Dr Westmore considered it difficult to make a psychiatric diagnosis in a retrospective fashion, although he observed that the history indicated that the appellant had had a long history of depression. As to the appellant’s current mental state, the doctor said that:

… she is showing symptoms of anxiety and emotional lability in the form of tearfulness and her mood state is restricted, subdued and I thought probably depressed. It is unfortunate that she hasn’t had more regular psychiatric care and, like Professor Boyce, I think she probably would respond to a trial of antidepressants. I understand her anxiety about taking medication in view of her mother’s history although she needs education about antidepressant medication which is not addictive in the traditional sense.

17 Dr Westmore was not required for cross-examination.

18 Ms Duffy provided three reports. The first stemmed from interviewing the appellant in March 1997 while she was awaiting sentence following conviction for conspiracy to cheat and defraud (later set aside in the High Court: see Stanoevski v The Queen (2000) 202 CLR 115). There were also two reports based on an interview in June 2003 (Blue 943-954).

19 Ms Duffy expressed opinions referable to the appellant’s capacity to have given credible evidence before the divisional Tribunal in 2002 referable to the events of 1991-1993. She thought that the appellant’s “ostensibly calm and somewhat detached demeanour… belies[d] the emotional turbulence she seeks to hide”. The appellant’s “response style may have contributed to the Tribunal’s conclusion that she showed lack of contrition or appreciation of the gravity of her conduct”.

20 The two latest reports also expressed views as to the appellant’s mental condition in 2003. Ms Duffy described the appellant as “a person currently suffering from Major Depression and Anxiety” (Blue 948). Her guarded prognosis was (Blue 955):

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 her goals firmly and determinedly to return to her profession, it is though that many of these symptoms would be alleviated if she were able to do so.

21 There was little in the way of expert evidence as to the impact of the depressive illness upon the capacity to recall the events of 1991-93. I do note however that Ms Duffy said (Blue 949):

That her memory for events surrounding her practice were not clear, or that she may have made errors can be explained by her heightened emotional arousal during this period of time.

22 Ms Duffy was cross-examined before the Appeal Panel. Some questions were asked about the genuineness of the appellant’s professed difficulty of recalling events of the early 1990s. Other questions were aimed at establishing that continuing symptoms reflected adversely upon fitness to practise.

23 On 11 August 2004, the Appeal Panel delivered its second Decision, confirming the findings of professional misconduct (Stanoevski v Law Society of New South Wales (No 2) (LSD) [2004] NSWADTAP 35).

24 The Appeal Panel referred in detail to the psychological evidence from Ms Duffy and Dr Westmore. It accepted Dr Westmore’s opinion that in the early 1990s the appellant was suffering depression of her mood state, associated with a recent miscarriage “at the time her problems with the Family Law Court occurred” (Reasons at [37]-[38]).

25 The Appeal Panel also appeared to accept Ms Duffy’s opinion that the appellant’s ability to remember (when giving evidence before the Tribunal) may have been adversely affected by her emotional stress (Reasons at [43], [46]).

26 As to the appellant’s present situation, the Appeal Panel recorded and apparently accepted Ms Duffy’s evidence that the appellant’s personality traits continued, although the stresses in her life had been significantly reduced by June 2003 (Reasons at [46]-[48]).

27 The Appeal Panel then proceeded to make its own findings as to professional misconduct, albeit in the context of reconsidering the decision under appeal (Reasons at [2]). It addressed the Grounds of the Information seriatim. Its task was not an easy one, because (a) the insights of the psychiatric evidence had to be taken into account so far as they reflected on the appellant’s reasons for doing what she did and her performance as a witness before the Tribunal, and (b) the appellant chose not to give evidence before the Appeal Panel.

28 The approach of the Appeal Panel as it grappled with these difficulties can be illustrated by its findings on the charge of misleading the Law Society in the estate matter (Reasons at [50]-[60]). The evidence and submissions in the Tribunal below were summarised in detail. The Appeal Panel continued at [56]-[60]:

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.

29 The Appeal Panel adopted a similar process in reasoning to its conclusions that particular matters of professional misconduct charged with reference to the Buldioski and Fowler matters were also established.

30 The Appeal Panel examined the whole of the evidence, including the recorded testimony of the appellant. The Panel took into account the appellant’s emotional turmoil in the early 1990s. It also recognised that the appellant had not acted with intent to obtain any improper financial benefit or to cause harm to her client or anyone else (Reasons at [87] and [107]). Nevertheless, the deliberate conduct involving the proffering of false documents to the Family Court and the deliberate misleading of the Law Society in an attempt to render an account of her conduct showed that the appellant had been guilty of professional misconduct. The Appeal Panel made its own findings to that effect (at [86] and [106]-[108]).

31 I detect no error in these conclusions or the reasoning upon which they are based.

32 There are, however, two passages in the second Decision, in which the Appeal Panel reasoned from these findings to an additional finding that the appellant had given deliberately false evidence to the Tribunal at first instance. Thus, having stated the findings of professional misconduct in the Buldioski matter, the Appeal Panel said (at [88], emphasis added):

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) NSWCA 40237/03.

33 Similarly, having stated the findings of professional misconduct referable to Mrs Fowler, the Appeal Panel added (at [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.

34 Given the way the case was fought before the Appeal Panel, there could be no ground for complaint about the Panel concluding that it was unable to accept the sworn evidence of the appellant. After all, the divisional Tribunal came to a similar position, the evidence was compelling, and the psychiatric evidence did not compel the opposite conclusion. Furthermore, the two passages just set out show that this finding was an inference from conclusions as to misconduct already arrived at, and that it was made solely for the purpose of considering the proper order to be made about continuing to practise.

35 Accordingly, no reason has been shown in this Court that would justify setting aside the Appeal Panel’s findings of professional misconduct.

36 The order made at the conclusion of the second Decision was that the appeal was to be relisted at a time to be fixed “for submissions about the proper orders to be made in light of these findings”.

37 There is, however, a problem with reference to the strike-off order subsequently imposed by the Appeal Panel on 20 September 2004.

38 The parties were represented by their solicitors when the matter came before the Appeal Panel on that day.

39 The appellant’s solicitor, Mr Walsh, made some general submissions to the effect that striking-off was inappropriate. He referred to circumstances affecting the appellant and impacting on her capacity to act properly in the early 1990s.

40 Mr Walsh also took some legal points, the rejection of which forms the basis of the present appeal, itself limited to questions of law (Administrative Decision Tribunal Act 1997, s119).

41 First it was submitted that the Briginshaw standard applied with reference to the decision whether striking-off was an appropriate response to the findings of professional misconduct.

42 Secondly, it was submitted that the Appeal Panel ought not in its second Decision have made the findings that the appellant gave false evidence before the Tribunal at first instance. This argument was advanced on two bases, namely (a) in light of the psychiatric evidence and (b) because the possibility of making such findings had not been raised in the hearing before the Appeal Panel.

43 These submissions were rejected for reasons given extempore by the Deputy President (Red 79-82, hereafter the third Decision).

44 The Reasons briefly summarised the second Decision. It was acknowledged that the earlier findings were to the effect that the psychological condition and stresses in the personal life of the appellant had played a large part in explaining the original acts of misconduct. The Deputy President further recognised that the appellant had not obtained or intended to obtain any personal advantage from her conduct, nor had she caused or attempted to cause any financial or other harm to her clients or others.

45 Mr Walsh’s Briginshaw submission was rejected on the basis that:

… the Briginshaw test applies only to findings of fact, and we have applied that test in making the findings of fact that we have made, but the Briginshaw test or any other similar formulation plays no part in deciding what is the proper order to be made.

46 Turning to Mr Walsh’s submission as to procedural unfairness, the Appeal Panel ruled [at Red 80]:

In our view the possibility of our making such findings was clearly in prospect during the hearing and in argument before us. In addition there has been the period between our publishing our findings of fact and the hearing of submissions about the proper order to make.

47 The dispositive reasons leading to the orders that the appellant’s name be removed from the roll and that the appellant pay the Law Society’s costs were as follows:

The objective conduct that we have found could justify an order striking off but does not mandate it. All the circumstances must be taken into account and the decision to be made concerns the practitioner’s fitness to practise at today’s date.
One of the matters that has had weight with us is that the appellant has not availed herself of the opportunity to give evidence before us about her present fitness to practise. There is evidence from Ms Duffy that one of the significant stresses presently operating is her inability to practise, and that her condition would be alleviated if she were allowed to be a lawyer in some way. She has acknowledged and expressed her regret with respect to the delay matters and the misleading letters in the Marks Estate. However, despite the findings about the objective facts made by the Tribunal below and the course of the hearing before us, she has adhered to her version denying the forgery of the signatures in the Buldioski matter and altering her explanation of the false attestations in the Fowler matter.
There is no admission by her that she has given false evidence and there is no evidence before us acknowledging her misconduct in that regard.
The testimonials submitted also predate the findings of the Tribunal below. There has been no attempt to place before us material that takes into account those findings or indeed our findings despite the period of time since those findings were published.
In all the circumstances we are convinced that the Law Society has demonstrated that the appellant is not now fit to practise.

48 Ms Adamson SC represented the appellant in this Court.

49 She submitted that the Appeal Panel erred in law in rejecting the Briginshaw submission. I would reject this aspect of the appellant’s case. The Briginshaw principle is a guide as to judicial method in resolving factual issues. Briginshaw has never been invoked as a method of arriving at the “instinctive synthesis” of “sentencing” decisions, including decisions made in the essentially protective jurisdiction with which the present case is concerned. The general remarks of Young CJ in Eq in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 at [17] must be read as addressing the fact-finding stage of the overall process. As Mr Wales SC, senior counsel for the Law Society, pointed out in argument, it would lead to absurd results if a sentencing judge’s mind was wavering between a range of years of imprisonment as the appropriate sentence.

50 The appellant’s alternative attack stands on firmer ground. The material already summarised shows that the Appeal Panel took into account the conclusion reached in its second Decision that the appellant had given deliberately false evidence before the Tribunal at first instance. Indeed, in the third Decision itself, the Tribunal regarded adversely the failure by the appellant to admit that she had given false evidence or to acknowledge “her misconduct in that regard”.

51 The transcript from the first instance hearing shows that the appellant’s credibility was strongly challenged in cross-examination and submissions. That challenge was maintained before the Appeal Panel where submissions that the appellant had not been frank in her testimony were repeated. But what did not occur before the Appeal Panel was any enlargement of the grounds of professional misconduct charged or any submission that put into the ring before the Appeal Panel the question whether the appellant had given deliberately false evidence before the Tribunal (cf Smith v New South Wales Bar Association (1992) 176 CLR 256, Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32, (2004) Aust Torts Rep ¶81-370 at [109]). The divisional Tribunal had made no such finding and there was a live issue on the psychiatric evidence as to the reasons why the appellant may have been an unimpressive witness.

52 The Law Society had a lot of material it could point to in seeking to persuade the Appeal Panel to come to the same position as the Tribunal at first instance as regards the appellant’s credibility. The well-known principles concerning the advantage of the trial judge summarised in Fox v Percy (2003) 214 CLR 118 were very much in play. The appellant faced a particularly uphill battle when she elected not to give evidence before the Appeal Panel despite its ruling to extend the review to the merits and permit fresh evidence to be called.

53 As indicated, the Grounds of the Information were never amended. We were taken to passages in the submissions before the Appeal Panel. They do not support the submission that the proceedings before the Appeal Panel were treated as a hearing de novo in the sense that the Law Society had to establish its case afresh (see eg Black 367, 413-4). Nor do they show that the parties ran the review on the merits as if a charge of false swearing were before the Appeal Panel, either generally (or as one would have expected) in identified particulars.

54 There was and is ample material that could justify a strike-off order even if the deliberately false testimony is factored out. Indeed, subject to procedural fairness, I see no reason why the Law Society may not argue that the appellant’s “lack of candour” as a witness before the Administrative Tribunal may be a factor going to continuing fitness to practise. But the duty of procedural fairness must be observed. Failure to have done so vitiates the strike off order (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6).

55 The Appeal Panel’s statement that the lapse of time between publishing of its findings of fact and the hearing of submissions about the proper order to make somehow remedied the situation does not answer the difficulty. Those findings were themselves vitiated by the same want of procedural fairness; and the adjournment was for a confined purpose, namely “for submissions about the proper orders to be made in the light of these findings”.

56 Despite the appellant’s submissions to the contrary, it is not appropriate for this Court to do other than remit the matter to the Appeal Panel for the question of dispositive orders to be decided again in accordance with the reasons of this Court. The Appeal Panel heard the oral evidence of Ms Duffy. There is a live issue as to what the psychiatric evidence reveals as to present fitness, as well as unresolved issues about supplementing and updating material going to that matter. I imply no view as to whether it is open to the appellant to recant as to her decision not to give evidence on any issue before the Appeal Panel and to rely on the issues joined before the Appeal Panel, including those raised by the testimony of the two psychiatric experts. Much of their evidence was unchallenged, a comment that looks in both directions given the matters they addressed.

57 I propose the following orders:

1. Appeal allowed in part.

2. Set aside the orders of the Appeal Panel of the Administrative Decisions Tribunal made on 20 September 2004.

3. Remit the matter to the Appeal Panel for the question of the proper orders to be made in light of the findings of professional misconduct to be decided again in accordance with the reasons of the Court of Appeal.

4. Respondent to pay the appellant’s costs of the appeal.

58 McCOLL JA: I agree with Mason P.

59 BROWNIE AJA: I agree with Mason P.

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