The Legal Practitioner v Council of the Law Society of the Act - [2014] ACTSC 50

THE LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY OF THE ACT [2014] ACTSC 50 (28 March 2014)

APPEAL AND NEW TRIAL – APPEAL – GENERAL PRINCIPLES – In General and Right of Appeal – Appeal to Appeal Division of ACT Civil and Administrative Tribunal – appeal removed into Supreme Court – nature of appeal in Supreme Court.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – whether permitting Law Society to amend charges deprived appellant of procedural fairness – whether Law Society was a model litigant – whether Law Society misled ACT Civil and Administrative Tribunal about nature and significance of amendments – no breach of procedural fairness – no misleading of Tribunal – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – admissibility of credibility evidence arising in cross-examination of appellant about peripheral aspects of separate matter also subject of charges brought by Law Society – admissibility of prejudicial credibility evidence – whether credibility findings should be set aside – whether ACT Civil and Administrative Tribunal misunderstood cross-examination – whether Tribunal misled by Law Society about significance of cross-examination – whether Law Society sought to mislead Supreme Court about significance of cross-examination – appeal dismissed.

PROFESSIONS AND TRADES – Lawyers – appeal against findings of unsatisfactory professional misconduct or professional misconduct – challenge to factual findings of ACT Civil and Administrative Tribunal – whether evidence to support factual findings – whether Tribunal obliged to accept appellant’s evidence of his state of mind at relevant times – whether Tribunal inconsistent in treatment of witnesses cross-examined without access to relevant documents – no error in Tribunal’s conclusions – appeal dismissed.

Evidence Act 1995 (Cth), s101A, 101A(a), 101A(b), 102, 103, 135

ACT Civil and Administrative Tribunal Act 2008 (ACT), s 83(1), 79(3)

Legal Profession Act 2006 (ACT), ss 387, 389, 425(3)(a)

Legal Profession (Solicitors) Rules 2007 (ACT), rr 31.1(a), s 31.1 (b)

Adam v The Queen (2001) 207 CLR 96
Commissioner for ACT Revenue v Araghi [2013] ACTCA 54
Council of the Law Society of the ACT v The Legal Practitioner (Occupational Discipline) [2009] ACAT 2

Council of the Law Society of the ACT v The Legal Practitioner “S” [2012] ACAT 29

Council of the Law Society in the ACT v Legal Practitioner X [2012] ACAT 60
Fox v Percy (2003) 214 CLR 118

Lacey v Attorney-General (Qld) (2011) 242 CLR 573

Legal Services Commissioner v Churkovich (Legal Practice) [2009] VCAT 2454
Smith v New South Wales Bar Association (1992) 176 CLR 256
The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207
The Council of the Law Society of the ACT v The Legal Practitioner “S” [2011] ACAT 32
Walsh v NSW Law Society (1999) 198 CLR 73

Stephen Odgers, Uniform Evidence Law (10^th ed, 2012)
Macquarie Dictionary Online (2014) APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

No. SCA 58 of 2012

Judge: Penfold J
Supreme Court of the ACT

Date: 28 March 2014

IN THE SUPREME COURT OF THE     )
  )          No. SCA 58 of 2012
AUSTRALIAN CAPITAL TERRITORY           )

ON APPEAL FROM THE ACT CIVIL AND ADMINISTRATIVE TRIBUNAL

BETWEEN:
THE LEGAL PRACTITIONER Appellant
AND:
COUNCIL OF THE LAW SOCIETY OF THE ACT Respondent

ORDER

Judge:  Penfold J
Date:  28 March 2014
Place:  Canberra

THE COURT ORDERS THAT:

The appeal be dismissed.

ACAT’s findings, made on 1 December 2011, of unsatisfactory professional conduct in respect of grounds 1 and 2 of the Grounds of Complaint and of professional misconduct in respect of ground 3 of the Grounds of Complaint be confirmed.

ACAT’s orders made on 15 May 2012 be confirmed.

The proceedings be remitted to ACAT to give effect to its orders.

The appellant pay the respondent’s costs of this appeal.

Introduction

S challenges findings of unsatisfactory professional conduct and professional misconduct, and a recommendation as to penalty, made by the ACT Civil and Administrative Tribunal (ACAT) in relation to a complaint brought against S by the Council of the Law Society (the Law Society).

The Tribunal dealt with the matter in two stages; first it made findings about the complaint (The Council of the Law Society of the ACT v The Legal Practitioner “S” [2011] ACAT 32 (8 April 2011 (Orders); 18 April 2011 (Reasons)), and then made a recommendation as to penalty, as well as two costs orders, in a second decision (The Council of the Law Society of the ACT v The Legal Practitioner “S” [2012] ACAT 29 (15 May 2012)).

The Law Society’s complaint against S

The complaint brought by the Law Society was amended at the beginning of the hearing – the impact of this is dealt with at [42] to [67] below. The complaint, as amended by the omissions and additions shown, was as follows:

The Council of the Law Society of the Australian Capital Territory (the “Society”) applies to the ACT Civil and Administrative Tribunal (the “Tribunal”) pursuant to the provisions of Section 419 of the Legal Profession Act 2006 (the “Act”) in relation to a complaint by the Society against [S] (the “Respondent”) in the circumstances set out hereunder.
1.   The Respondent was at all material times a local legal practitioner employed by Diana Burns Solicitors (the “Firm”) and the holder of a restricted practising certificate.
2.   The practitioner acted for a Mr Tariq Jabil, the proprietor of a business known as Pride Heaven Shop (“Pride Heaven”) which had been indebted to First Net Trader Pty Limited (“First Net”) in an amount of $165.00.
3.   The Respondent’s client’s failure to pay the debt caused an adverse listing on a credit reporting agency, Veda Advantage Pty Limited (“Veda“).
4.   Although the account was subsequently paid, the listing remained as a previous default which was no longer outstanding.
5.   Upon instructions from his client to address the impact the adverse listing was having on Pride Heaven’s business, the Respondent telephoned Ms Kate Bourne (the “Complainant”) an employee of First Net on 17 June 2009 and requested the Complainant to contact Veda to have the listing removed on the basis that it had been placed in error in return for which the Respondent informed the Complainant that ~~his client~~ he would pay ~~First Net~~ the Complainant personally the sum of $500.00 “without telling the [ie the Complainant’s] boss”.
6.   The Respondent confirmed the request in writing on the same date and offered an increased amount of $2,000.00 to First Net to have the listing reversed failing which the Respondent threatened legal proceedings and a threat to contact Veda to have First Net restrained from any further placements.
Complaint

The Society contends that the Respondent has, in the course of the incident complained of, engaged in conduct in breach of Rule 31.1(a) and Rule 31.1(b) of the Legal Profession (Solicitors) Rules 2007.
The Society further contends that such conduct amounts to unsatisfactory professional conduct or professional misconduct justifying an order by the Tribunal.
Legal Profession (Solicitors) Rules 2007
31.1A practitioner must not, in any communication with another person on behalf of a client:
a. represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue; or
b. make any statement that is calculated to mislead or intimidate the other person, and which grossly exceeds the legitimate assertion of the rights or entitlement of the practitioner’s client;
Grounds of Complaint

Ground 1
Breach of Rule 31.1(a): False representation
Particulars:
1.1The Respondent, deliberately and knowingly, by letter dated 17 June 2009 to the Complainant represented that the Veda listing was erroneous which he knew, or ought reasonably to have believed, was not the case.

Ground 2
Breach of Rule 31.1(b): The making of a misleading or intimidatory statement
Particulars:
2.1The Respondent’s threat, conveyed in his letter dated 17 June 2009, to contact Veda to have First Net restrained from any further placements was calculated to intimidate First Net into accepting the offer which grossly exceeded the legitimate assertion of the rights of the Respondent’s client which were, in truth, non-existent.

Ground 3
Financial Inducement
3.1The Respondent’s threat, deliberately or knowingly, on behalf of his client, offered a financial inducement to First Net in return for that entity ~~falsely~~ representing to Veda that First Net’s credit listing of Pride Heaven ~~was~~ had been placed in error in circumstances where:
(a) The credit listing ~~was~~ had not been placed in error; and
(b) the Respondent knew, was reckless as to whether or not, or had reason to suspect, or ought to have known, that the said credit listing had not been placed in error.
3.2The Respondent deliberately offered or attempted to offer to Ms Kate Bourne, who was and whom he believed to be an employee or officer of First Net, a secret commission in the form of a payment to her personally of $500.00 in return for her reversing the credit listing referred to in ground 3.1 “without telling the boss”, that is, without informing First Net itself, and in circumstances where the Respondent had the knowledge or state of mind with respect to the credit listing pleaded in ground 3.1 above.
Dated: 8 February 2011

In summary, the Law Society’s complaint set out three “grounds of complaint”. Grounds 1 and 2 alleged contraventions of r 31.1 of the Legal Profession (Solicitors) Rules 2007. Ground 3 alleged the offer of a financial inducement and a secret commission.

In written submissions to ACAT, the Law Society identified s 387 of the Legal Profession Act as the source of a prohibition on the conduct alleged against S in Ground 3. That section is as follows:

387What is professional misconduct?
(1)In this Act:
professional misconduct includes—
(a)   unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b)   conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2)For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
Note         See also s 389.

Counsel for the Law Society submitted that s 387(1)(b) would be breached by an officer of the court attempting to bribe, or offer a secret commission, to a person or entity “where the consequence of that bribe would be to mislead banks and other lending institutions as to the true credit position of an individual.” He also submitted, citing Council of the Law Society of the ACT v The Legal Practitioner (Occupational Discipline) [2009] ACAT 2 at [202], that the definition of professional misconduct in s 387 is inclusive rather than exhaustive, and:

does not exclude the general law test of professional misconduct, which asks whether engaging in the relevant conduct “would be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable.”

In the original Application for Appeal, S included as one of his 25 questions of law:

23.The Tribunal erred as a matter of law in holding that the misconduct complained of amounted to professional misconduct.

However, this “question” was not pursued at the appeal hearing nor in written submissions.

ACAT’s decisions

On 1 December 2011, ACAT published findings that:

(i)The respondent is guilty of unsatisfactory professional conduct in respect of grounds 1 and 2 of the Grounds of Complaint; and,
(ii)The respondent is guilty of professional misconduct in respect of ground 3 of the Grounds of Complaint.

In May 2012, ACAT:

(a)recommended under s 425(3)(a) of the Legal Profession Act 2006 (ACT) that S’s name be removed from the ACT roll of people admitted to the legal profession; and
(b)made two orders for costs, one in favour of the Law Society and one in favour of the complainants in the matter in respect of their response to subpoenas.

The FNT matter

The circumstances from which the Law Society’s complaint arose (the FNT matter) were complicated.

First Net Trader Pty Limited (FNT) conducted a business of placing advertisements on the Internet for the sale of commercial businesses, plant, equipment and products. It appears to have been owned by a husband and wife, Michael and Kate Bourne, who at different times held different offices in the company. For convenience I shall refer to each of them as a director of FNT, although it seems that at relevant times they might have held different or additional positions in the company.

On about 7 February 2008 FNT placed an Internet advertisement relating to the sale of a Turkish restaurant in Canberra (properly called “Pide Heaven” but referred to in many of the documents as “Pride Heaven“). FNT had previously placed a similar advertisement in respect of the sale of another Turkish restaurant in Canberra in 2006. In the end there did not appear to be any dispute that the owner of the two restaurants, Mr Tarik Jabal (this is the spelling used in Mr Jabal’s affidavit, although not in some of his other documents), or possibly his business partner, had sought placement of the 2006 advertisement, although there was some confusion in the evidence about which restaurant was the subject of the 2006 advertisement and which the subject of the 2008 advertisement.

An invoice for $165 was sent to Mr Jabal in respect of the 2008 advertisement, but this was not paid despite several reminders. The invoice and reminders were addressed to Mr Jabal at an ACT address used by him, except that by mistake the addressed by FNT included “NSW” instead “ACT“; ACAT found that “The notice of the debt therefore may not have come to the attention of Mr Jabal.”

After some months FNT notified the default to a credit listing company, Veda Advantage Pty Ltd (Veda), which had previously been known as Baycorp.

The invoiced amount was eventually paid in full on 1 December 2008, and at FNT’s request, the Veda listing was updated to reflect this fact.

However, even after the invoiced amount was paid, the Veda listing (albeit indicating that payment had eventually been made) was apparently obstructing approval of a substantial loan sought by Mr Jabal for an unrelated purpose.

In February 2009, Mr Jabal wrote to FNT about his failure to pay the invoice in the following terms:

Dear Manager
Re- the Advert. For the Pide Heaven Shop and the Reverse Action of Accreditation Status.
Re our previous discussion regarding the amount of $165.00 for the cost of advertising for the Pide Heaven Shop-Mawson, which has already been settled more than two months ago.
I wish to state clearly that, I did not receive your Invoice at my current address or at my above business address. My Bookkeeper who does regularly collects all my Invoices to my Businesses on regular bases; and your Invoice was not one of them as far as I’m aware!
I do believe that we have spoken on couple occasions to resolve this issue of the above amount for the reason that I didn’t intentionally or otherwise hold the payment of a petty amount of $165.00. Obviously there was a break down of communication! And you know will that I’ve been doing business with your company in the past without any problem.
Assuming your mail was sent to my previous residential address, and it would have been returned to (Sender), and it’s a matter of a phone call to my shop, and the issue would have been resolved there and than; alternatively the Invoice should have been delivered to the actual shop above.
Neither to say, that this issue has created an unpleasant problem with my bank Manager and other Financial Institutions regarding my Accreditation; and it does not help to maintain a good Business name, or doing my name any justice, and I’m rather very discontented person.
You must appreciate and understand that the Businessman has a lot of responsibilities on his mind and for the day to day operation of the businesses, and obviously to keep the books up to date, and that’s why I have a bookkeeper.
It’s an unfortunate that this matter has taken the wrong course, without of my prior knowledge by placing this incident with VEDA.
I did request Mr David Brown (Merge Media Consultant) to contact you and deal with this problem as a matter of urgency. I was informed by David that you wish to communicate with me first or providing some kind of a Power of Attorney to continue with the case.
I’m deeply concerned, and I would have appreciated if you have contacted my shop prior to this action, or at least your office could have contacted me on my mobile, considering that my Business does not stop only with one Add! And especially for the small amount that was outstanding than, and it’s a rather very hazardous road with a deliberate attempt to discredit or to be put in a blackmail position.
Therefore, I would appreciate that this outstanding issue be rectified quickly, and the restoration of the good Accreditation status; and the continuation with the future advertising with business as usual. I do urge that this matter be attended to immediately as it has caused rather an unhappy situation with all the people involved including the Bank Manager regarding my Business operation/s.
Waiting your urgent reply.
Yours sincerely
[signature]
Tarak Jabal (emphasis in original)

In this letter Mr Jabal asserted that he had never received the invoice, but he did not at any point suggest that the advertisement had been placed without his knowledge. Curiously, although this letter was dated 4 February 2009, it was not apparently posted until 23 February (indicated by the postmark on the envelope). This was after David Brown, who said he was a friend helping Mr Jabal out, telephoned FNT on 12 February 2009 and spoke to Ms Bourne, asking for information on behalf of Mr Jabal. Ms Bourne recorded the events of 12 February 2009 in a file note as follows:

12.02.09
Incoming call requesting copy of letter indicating Baycorp update. I requested account details (name, DOB, account number and address) caller gave details for Tarik Jabal and confirmed as correct. Caller requested that a copy of letter be forwarded via fax to [02] 62592713 urgently. The number did not correspond to the number we have on file therefore I asked if it should be made Attention to TJ. He said no his name was David Brown, from Merge Media and he was just helping his friend out. Told him under the Privacy Act I could not comply as he was not authorised to access the details requested. The call ended.
Rang TJ on [phone number] to confirm his instructions. He said yes go ahead and send it to Mr Brown’s office.
TJ rang back and offered a bribe some 2 hours later to have the matter removed from Baycorp of $500. It was declined.

At some point Mr Jabal consulted S about the difficulties the adverse credit listing was causing for him. A file note said to have been made at the time of that consultation was produced to the Law Society under cover of a letter dated 26 October 2009. This came after letters from S to the Law Society dated 21 July 2009 and 6 August 2009 relied on instructions received from Mr Jabal without enclosing any record of those instructions, but also after Robert Reis of the Law Society had advised S that client confidentiality did not prevent him providing the record of his instructions to the Law Society. The file note, dated “28/4/09” at the top of both pages, read as follows:

TARIQ JABAL
[???] HARAGLI
PRIDE [sic] HEAVEN
FIRST NET TRADERS P/L
[address] QLD 4214]
CLIENT WROTE TO THEM 4/2/09 NO RESPONSE
CLIENT INSTRUCTS TO OFFER $2000 AS REIMBURSEMENT OF ANY COST INCURRED FOR INCORRECT PLACEMENT WITH VEDA
LISTING MARKED AS PAID BUT STILL CAUSING ISSUE FOR TARIQ RE LOANS ET CETERA
FAILING SETTLEMENT TO INSTIGATE S/C ACTION AT ONCE
URGENT THAT LISTING BE LIFTED
CLIENT HAS NO CORRESPONDENCE FROM THEM. NO INVOICE
WHISTLING NO EVIDENCE OF AD BEING PLACED
PRIOR CONTACT BETWEEN PARTIES. TARIQ PAID LAST BILL WITHOUT KNOWING IF AD PLACED
TARIQ TO TRY TO LOCATE INVOICE? COPY OF LETTER 4/2/09?
NO ORAL OR WRITTEN AGREEMENT TO RUN AD!

Given S’s apparent concern about his confidentiality obligations, I mention at this point that I have placed no reliance on the fact that this file note was only produced several months after the complaint was first notified to him by the Law Society. ACAT noted at [25] that the file note was produced “after apparently a number of requests”, but did not refer to it otherwise.

On 17 June 2009, S contacted Ms Bourne and discussed the Veda listing. Ms Bourne’s evidence was that S had suggested to her that if she arranged a reversal of the Veda listing in relation to the unpaid account, he would “drop $500 into her bank account” that she would not need to tell “the boss” about, and that this would avoid the matter having to go to court. Mr Bourne gave oral evidence that on the day of the phone call, Ms Bourne had reported to him:

(a)that “a solicitor has called me and told me that we have registered [Mr Jabal] in error”;
(b)that she had been offered a bribe; and
(c)that she was upset.

S agreed that the conversation had taken place, but disputed Ms Bourne’s description of its contents.

On the same day (17 June 2009) and at Ms Bourne’s request, S faxed a confirmation letter to FNT in the following terms:

RE: PLACEMENT OF INCIDENT WITH VEDA FOR PRIDE HEAVEN SHOP
I refer to the telephone conversations between myself and Kate and you of today’s date. I understand the situation that this matter places you and your firm in. That being that you would be required to admit to a listing error with Veda that would result in an adverse situation for your firm.
I am instructed that my client has previously written to your firm on 4 February 2009 and that you have failed to reply to that correspondence?
I am instructed to offer you the reimbursement of any costs incurred by your firm up to the sum of $2,000.00 without evidence of such disbursements and any amount above that supported by receipts. In order that you reverse the action of Accreditation Status on Veda, I note your comment that the listing has been marked as paid and my client appreciates this course of action.
I understand that the placement with Veda was in error and if the placement is reversed within 7 days I am instructed to pay your firm the $2,000.00 and that no further action will be taken.
Failing the above action by your firm I am instructed to immediately without further notice instigate action against your firm in the ACT Supreme Court for unspecified to date damages.
Obviously this would result in unnecessary costs to both yourself and to my client with the Jurisdiction issue being a live issue and I note your previous involvement in a similar matter 5 years ago.
If you wish to proceed by way of litigation please advise me within 7 days who will be acting for you as agent in the ACT? Please also provide a copy of the invoice for $165.00 and documentary evidence showing that the advertisement was actually run. I would also appreciate a copy of my client’s written advice to run the advertisement or failing that a signed confirmation of the arrangements?
I am instructed to write to Veda after the 7 days have expired advising them of the issues and formally requesting that your firm be restrained from any further placements.
I await your response.

All three grounds of complaint identified by the Law Society arose out of the phone call and subsequent letter from S to FNT on 17 June 2009.

Within a few days after 17 June, FNT made a complaint about S’s behaviour to the Law Society and also wrote to Veda about the matter.

Authorities relied on by S

During the appeal hearing, S relied heavily on three High Court cases, being:

(a)Walsh v NSW Law Society (1999) 198 CLR 73 (Walsh);
(b)Smith v New South Wales Bar Association (1992) 176 CLR 256 (Smith); and
(c)Fox v Percy (2003) 214 CLR 118.

It is useful to outline the relevant aspects of each of these cases at this stage.

Walsh

Walsh involved an appeal to the High Court from a decision of the New South Wales Court of Appeal on appeal from the Legal Services Tribunal. When the Law Society appealed the Tribunal’s findings to the Court of Appeal, that court, under a misapprehension about the applicable legislation, conducted a hearing de novo in the course of which it canvassed, and made findings on, a variety of matters that not only went beyond the findings subject to appeal but also went beyond the complaints originally made to the Tribunal. The High Court made it clear that in the absence of an explicit provision for a de novo hearing, the Court of Appeal was under applicable New South Wales legislation confined to conducting the appeal as a rehearing of matters the subject of the appeal. Among other things, the High Court noted failures of procedural fairness in the Court of Appeal’s approach to the appeal.

Smith

Smith was determined by the High Court on appeal from the New South Wales Court of Appeal, which had heard disciplinary proceedings brought against a barrister by the New South Wales Bar Association. The High Court found that there had been failures of procedural fairness in the Court of Appeal’s approach, in particular because the Court of Appeal had made a finding that the barrister had given deliberately false evidence without giving him an opportunity to be heard in relation to that finding, and, as summarised in the headnote to the report in the Commonwealth Law Reports, said:

There is a difference between the rejection of a person’s evidence and a finding that the witness deliberately lied. More than mere rejection of evidence is necessary before there can be a positive finding that a person deliberately lied in giving the evidence. It is particularly important to observe this distinction in disciplinary cases.

Fox v Percy

Fox v Percy was a civil matter arising out of a motor vehicle accident decided by the High Court on appeal from the New South Wales Court of Appeal. The Court of Appeal had reversed a judgment of the District Court of New South Wales as a result of rejecting certain findings which the trial judge had reached as a result of preferring the evidence of the appellant’s expert witness over that of the respondent’s expert witness. The High Court upheld the decision of the Court of Appeal, while confirming an approach summarised in the Commonwealth Law Report headnote as follows:

A finding of fact by a trial judge based on the credibility of a witness may only be set aside upon appeal where incontrovertible facts or uncontested testimony demonstrate that the judge’s conclusions are erroneous, or where it is concluded that the decision at trial was glaringly improbable or contrary to compelling inferences in the case.

Jurisdiction and powers of Supreme Court

S’s appeal was removed into the Supreme Court from the Appeal Division of ACAT on 21 June 2012, by order of the Appeal President made by consent under s 83(1) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act).

S and the Law Society disagreed about the nature of S’s appeal and the role and powers of the Supreme Court in dealing with it. The Law Society submitted that the appeal should be dealt with as a rehearing. S said that the hearing should be a de novo hearing, but had neither subpoenaed his witnesses to attend on the day set down for the hearing nor agreed with the Law Society that the evidence before ACAT should be the evidence before me in the de novo hearing. Noting the complaints he later made about the taking of evidence before ACAT, it seems unlikely that he had intended simply to rely on the evidence before ACAT if I had agreed to conduct a hearing de novo.

Curiously (in my view), S cited Walsh in support of his argument that I should conduct the appeal as a hearing de novo, not apparently realising that the High Court’s central finding in Walsh was that the Court of Appeal should not have conducted the appeal as a hearing de novo because the legislation explicitly providing for such a hearing had been earlier repealed. Given the significance of particular New South Wales legislation in relation to that question, Walsh was unlikely to be useful authority in relation to that question unless the ACT legislation was relevantly similar (which it was not), but S did not appear to appreciate that point.

In The Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207, Refshauge J canvassed many of the questions raised by the provisions of the ACAT Act under which appeals to the Appeal Division of ACAT can be removed into the Supreme Court, including the nature of the appeal hearing that the Supreme Court may or must conduct in such a matter, and concluded that the Supreme Court may determine whether a matter removed into the Court under s 83 is heard, in effect, de novo or as a rehearing (at [52]).

I have reservations about a number of his Honour’s conclusions, and in particular I am unconvinced that the ACAT Act was intended to create a situation in which the Supreme Court might find itself regularly asked to hear, de novo, matters previously dealt with by ACAT at first instance (especially since, for unrepresented or impecunious litigants, the costs implications of having a matter heard in the Supreme Court may be no particular disincentive to seeking such an escalation of the matter).

However, despite the requirement for the original appeal to the Appeal Division to be “on a question of fact or law” (s 79(3) of the ACAT Act), neither of the parties suggested that the Supreme Court’s role in a removed appeal was confined by the need for an appellant to the Appeal Division to identify questions of fact or law. The absence of any such limit on the Supreme Court’s jurisdiction seems to be also the view of the Court of Appeal in Commissioner for ACT Revenue v Araghi [2013] ACTCA 54 at [57], despite the views expressed by the High Court and others about the significance of a statutory basis for appellate jurisdiction; see for instance Lacey v Attorney-General (Qld) (2011) 242 CLR 573 at [56]:

An appeal is a creature of statute and, subject to constitutional limitations, the precise nature of appellate jurisdiction will be expressed in the statute creating the jurisdiction or inferred from the statutory context.

Nor did either of the parties seem interested in making submissions about the jurisdiction or powers of the Court in the current context. In the end, having regard to the uncertainties mentioned above and to the fact that S appeared unrepresented, it did not seem appropriate to pursue the exact nature of the appeal that had been removed to the Supreme Court and was before me.

However, given S’s failure to subpoena his own witnesses for the hearing despite his complaints about the evidence taken before ACAT, I was unconvinced either that the matter should be heard as an appeal do novo or that S genuinely believed it should be so heard, I rejected his claim that the Supreme Court should hear his matter de novo, and conducted the appeal on the basis that S had to establish some kind of error on ACAT’s part.

S indicated that he appeared unrepresented for financial reasons. An absence of legal representation in a case of this kind is always unfortunate, and I accept that, as S submitted, his judgment and his capacity to make coherent submissions were affected by his emotional involvement with the matter. However, even accounting for this, it must be said that S’s approach to legal issues was not impressive for a person who had for several years held a practising certificate entitling him to charge members of the public for his services.

Contents of challenge

S’s original Application for Appeal from an ACAT decision set out 25 items (all described as errors of law) under the heading “Questions of Law” and another 14 items (most described as errors in findings but some as errors of law) under “Questions of Fact”. At the hearing of the appeal, however, S explained that his challenge to the various orders made by ACAT relied in general terms on a claim that, in its consideration of the Law Society’s complaint against him, ACAT incorrectly dealt with three matters, being:

(a)the Law Society’s application to amend the application to ACAT “to align the wording of the offences alleged with the facts of the case”, which was allowed by ACAT over objection from S;
(b)S’s previous disciplinary record, in particular the matter relating to his conduct in a bail hearing before Magistrate Doogan (the Doogan matter), which S said involved an error in the admission of certain evidence and was “complicated by the Tribunal’s misunderstanding of the claim for payment issue”; and
(c)S’s “mindset” at the time of the phone call to Ms Bourne.

Application to amend charges

As already mentioned, the complaint originally brought by the Law Society was amended at the beginning of the hearing. S complains that this should not have been permitted by ACAT:

(a)because it involved denying him procedural fairness; and
(b)because the Law Society’s description of the amendments it sought was misleading.

The hearing of the Law Society’s complaint against S was scheduled to begin on 10 February 2011. On that day, counsel for the Law Society sought leave to file an amended application dated 8 February that incorporated the changes identified in the complaint as quoted at [4] above. The application was supported by affidavits that had been sworn by Ms Bourne in July and November 2010, by Robert Reis on 8 July 2010 and by S on 29 October 2010.

Counsel for the Law Society submitted that the new charge, Ground 3.2, “directly flows from the existing matrix of facts and the existing matrix of evidence”. He conceded, however, that the Law Society had only become aware of the scope for bringing the new charge in the week or so before the hearing began, as a result of counsel beginning to work up the brief in preparation for the hearing.

S objected to the amendment of the application at such a late stage. He said that he had just been given two new documents that had come to light, being the file note made of the 12 February 2009 conversation and a letter dated 1 December 2008 (which he noted was not directly relevant to the amendment application but also seem to raise a procedural fairness issue). He said that he had also received a large number of amended applications, all of which were different, but conceded that he had received the 8 February material. In summary, his argument seemed to be:

(a)that natural justice or procedural fairness was offended by permitting the Law Society, despite it being represented by experienced counsel and solicitors, “[to adjust] the case as it goes”;
(b)that the Law Society should be classified as a model litigant; and
(c)that he had been taken by surprise by the changes and the new evidence, and that his case would have been run differently if the new charge had been brought as part of the initial complaint.

After taking some time to consider S’s submissions, ACAT decided to allow the amendment, saying:

MEMBER LUNNEY: Now the tribunal has considered the Law Society’s application and we’re very aware of the force of [S’s] submissions relating to the lateness of the application. However we do see also force in the submission by the Law Society that there is a need to align the evidence that has been available with the actual terminology of the offences, as they are alleged in the application.
The net result of our consideration is that we propose to allow the amendment. However, we are very conscious of the potential that that decision will have to cause some prejudice to [S] in the conduct of his side of the proceedings. What we propose to do and we need to, to some extent, discuss this with you, [S], and I should precede this statement by our belief that there are probably two witnesses here from Queensland, we’re not sure about that, but that’s a possibility.
And that the matter has been prepared at a particular level, and perhaps at all levels by the Law Society, and we accept what you say, [S], that you have been taken by surprise by this proposed amendment, now amendment. So what we propose is to use the time that has allocated to the best we can, and to hear the evidence, which is to be called by the Law Society and to terminate the proceedings no later than the end of that evidence and adjourn them.
Now, I think we’re aware that your approach to the proceedings, [S], will involve a planning approach, a strategic approach, and also a matter of what evidence you actually call. An adjournment will permit you to call whatever evidence you need. One of the things that you’ll be invited to do will be to cross-examine witnesses called by the Law Society.
Now should you not wish to cross-examine one or more of those witnesses, you should make an application along those lines to hold that until an adjourned date. But if you feel that you are able to cross-examine them, then we would be grateful if you would do so. If at some stage you feel that you need to prepare, think about, plan, then please make an appropriate application. We’ll consider it and I would expect that we would apply a sympathetic approach to any such application.
We hope that this will result in a just result in the ultimate outcome of these proceedings, but also we do wish to not squander the time that has been set aside or inconvenience unnecessarily witnesses who are in attendance or who can be called. So that I think I need to ask you, [S], do you understand what we’re proposing to do?
[S]: I understand what you’re proposing to do and I accept the tribunal’s decision.

After this, the hearing continued until late afternoon on 10 February 2011. S had cross-examined Ms Bourne and Mr Bourne, and his right to cross-examine further was preserved. The matter was then adjourned until 11 April 2011. As a result of adjournments required by S’s health problems, it did not resume until 25 July 2011, five and a half months after it was initially adjourned.

On 25 July 2011, Ms Bourne gave further evidence and was cross-examined at length by S (between 10:43am and 12:50pm and from 1:17pm until 1:48pm). S then began his evidence. On the next day, S completed his evidence, and called two witnesses.

Procedural fairness

At the appeal hearing, S submitted that the Law Society should simply not have been permitted to amend its complaint to include the new charge (Ground 3.2), given the delay between when the complaint was initially made and the amendment was sought, and irrespective of the length of the adjournment he was given as a result. In reply to a question from me, he conceded that the new charge could have been the subject of a separate complaint. The following exchange then took place:

HER HONOUR: Why should the Tribunal have to run, or require the Law Society to run, or indeed deal with themselves, the same overall set of circumstances in order to give you time to properly respond to the new charge, if they could have given you time to properly respond to the new charge within the process of this complaint?
[S]: Because the Law Society had nine months to align the charges.

Pressed about whether his submission was that he had not been given enough time to prepare properly to deal with the new charge, S said that the extended adjournment that he was given “wasn’t enough considering the Society had nine months”, while conceding that he had not put to ACAT a submission that since the Law Society had had nine months to prepare he also wanted nine months to prepare.

S also disputed the proposition that ACAT gave him an adjournment for “several months”, saying “no, I think it was adjourned from February till May or April”, but he did not dispute that after the initial two-month adjournment to April, the matter had in April been adjourned for a further three and a half months.

I am satisfied that ACAT recognised the need for S to be given procedural fairness in dealing with the amended complaint, and dealt entirely adequately with it by giving extended adjournments, and by permitting S to re-open his cross-examination of relevant witnesses after those adjournments. In particular, I emphasise that while procedural fairness generally requires that each party is given a fair opportunity to take necessary steps in the proceedings, it does not require that each party is given exactly the same time to take a particular step as another party has had to take a different step in the proceedings.

Model litigant

S in opposing the Law Society’s application to amend its complaint said that the Law Society “is classed as a model litigant”. Challenged by Member Lunney about this assertion, S conceded that he was submitting not that the Law Society was classed as a model litigant but that it should be classed as such. However, he did not expand on this submission.

On the appeal, S again submitted that “the Law Society’s supposed to be the model litigant”, but again did not expand on this submission.

There was no error in ACAT’s response to this submission (which was in effect to ignore it).

Did Law Society mislead ACAT about amendments?

S also submitted that Ground 3.1 as amended was not essentially the same charge as it had been before, and that it was misleading for the Law Society to say that they were changing the charges to realign them with the facts. He did not expand on the first of these claims, either in oral submissions or in the written submissions he made, with leave, after the hearing.

Amendments to Ground 3.1

The amendments to Ground 3.1 are shown in the complaint quoted at [3] above.

The first amendment, the omission of “falsely”, seems simply to remove an unnecessary word (since it is implicit in paragraphs 3.1(a) and (b) that the relevant representation was false).

The second and third amendments, to the introductory words of Ground 3.1 and to Ground 3.1(a), simply improve the drafting of the ground by changing the tense.

The amendments of Ground 3.1(b), however, are more complicated. A comparison of the original and the amended complaint indicates that while identifying all new material, the amended complaint does not identify everything that has been omitted. The original version of the ground was as follows:

The Respondent, deliberately or knowingly, on behalf of his client, offered a financial inducement to First Net in return for that entity falsely representing to Veda that First Net’s credit listing of Pride [sic] Heaven was placed in error in circumstances where the Respondent knew or ought to have known that this was not the case.

The last amendment to Ground 3.1(b) is more substantial, in that it adds a third and fourth possible circumstance that would permit a finding that the ground was made out. As a result of the amendment, the Law Society did not need to prove that S knew or ought to have known that the listing was not erroneous if it could prove that he was reckless whether or not it was erroneous or that he had reason to suspect that it was not erroneous. This amendment, even without the addition of Ground 3.2 to the complaint, would have raised issues of procedural fairness – but these issues were in fact recognised, and S’s entitlement to adequate further preparation time was properly accommodated.

Explanation for Ground 3.2

As to the second claim, S made written submissions dated 26 August 2013 that seemed to be suggesting that the amended charges were based on new evidence that had come to light (and indeed, that had been fabricated) after the original charges were prepared. The submissions began as follows:

T170 at 29 the original charge AB1 p.38-40 was his client would pay First Net the sum of $500.00 T171 at 15 and 30 the evidence and the charge was always based on the complaint letter to the respondent from Ms Bourne the evidence changed over time as it was manufactured, created and altered to suit by Ms Bourne and the offer to self and ‘don’t tell the boss’ was never mentioned in the initial complaint.

Claims of evidence being “manufactured” and the Law Society’s submissions being misleading are repeated several times in the submissions.

As to whether it was misleading for the Law Society to say that they were changing the charges to align with the evidence, I note that whether the evidence had come to light before or after the original charges were drafted does not seem to me to be significant except in relation to whether S had been given procedural fairness in being expected to deal with the new evidence, as to which see [52] above.

As to whether the evidence had been manufactured, this was an issue for the hearing before ACAT, where, subject to procedural fairness issues already dealt with, S was given an opportunity to test the evidence and whether it had been fabricated, including by cross-examination of relevant witnesses. I note that the question whether evidence had been fabricated was not identified as one of the appeal grounds S wished to pursue in the hearing before me.

Walsh

S cited Walsh in support of his claim that the Law Society should not have been allowed to amend its complaints, but without explaining how Walsh was relevant to this issue.

Conclusions

There is no substance in the claim that the Law Society should not have been allowed to amend its complaint, or that S was denied procedural fairness in relation to that amendment.

The Doogan matter

The evidence

Before ACAT, S was cross-examined about an aspect of the Doogan matter, as follows:

MR BEAUMONT: [S], do you recall telling the Tribunal yesterday something to the effect that you want your peers to know that you don’t lie?‑‑‑Yes.
So you’re putting yourself forward as a witness of truth, are you?---Yes.
And a man of honour?---Yes.
Do you recall on 28 July 2008 you attempted to appear at a bail hearing? Do you remember that?‑‑‑Yes.
It was a family violence assault, do you remember that?‑‑‑Yes I do.
The accused appeared in person before the magistrate prior to your coming into the courtroom?‑‑‑Yes.
And, whether you were instructed or not, I’m not asking you about that - ‑ ‑?‑‑‑I was instructed.
I’d ask that that be stricken.
MEMBER LUNNEY: I don’t know whether we can actually strike it, Mr Beaumont, but we’ll pay no attention to it.
MR BEAUMONT: Thank you.
You attempted to appear and the magistrate immediately refused you permission to do so. That’s right isn’t it?‑‑‑No.
No? Do you say that the magistrate permitted you to appear, [S]?‑‑‑What I want to say is Magistrate Doogan there was interchange, conversation between myself and Magistrate Doogan, where I think she used the words, along the words of I’ll pretend that you didn’t appear or you’re not here. I had an interchange with her. She told me to sit down and she asked me to stand up again and there was a further interchange.
Well, [S], let me refresh your memory. This is what happened isn’t it? Prior to your appearance the prosecutor told the magistrate a little bit about the case. That’s right, isn’t it?‑‑‑I don’t know. I came in late.
Well, you’ve seen the transcript?‑‑‑I’ve seen the transcript, yes.
So why did you tell the Tribunal you don’t know?‑‑‑I’ve seen the transcript but on the day I didn’t know.
That wasn’t my question though, was it, [S]?‑‑‑That was my answer, Mr Beaumont.
Just a bit of a misleading answer wasn’t it?‑‑‑I don’t think so.
So you don’t see anything misleading about telling this Tribunal that you don’t know what happened prior to your entry in circumstances ‑ ‑ ‑?‑‑‑On the day I did not know what happened prior to my entry, having not read the transcript.
Having read the transcript you’re well aware that prior to your appearance in that courtroom the prosecutor told the court the basic facts of the case. That’s right, isn’t it?‑‑‑From the transcript, yes.
Yes, and the magistrate observed that the alleged victim had indicated that he was not concerned for his safety. That’s right, isn’t it?‑‑‑The victim, yes.
That’s right?‑‑‑[JG], yes.
Yes. And at that point you entered the courtroom, correct?‑‑‑I believe so, yes.
You said, “Your Honour, I apologise, I’ve just been instructed in this matter.” Do you remember that? Her Honour said, “What, just this instant, because” – and then she’s cut off. And you say, “I’ve been instructed by, outside the court by [Ms V’s] partner who is the victim of the assault”?‑‑‑At this point I take objection to the questioning. This is a matter that’s before – that’s waiting on a penalty, a decision of the Tribunal. And it’s subject to an appeal and it’s subject to fresh evidence being produced in regard to a Legal Aid application that’s being lodged. And I think basically what we’re doing is we’re rehashing what the appeal’s going to be before the appeal’s put in.
MEMBER LUNNEY: You’re being asked questions about the procedure that happened personally on that morning, [S], so I overrule your objection.
[S]: Mr Lunney.
MR BEAUMONT: [S], shall I repeat the question?‑‑‑Yes, please.
After her Honour said, you told her Honour that you’d just been instructed in this matter. Her Honour said, “What, just this instant?” And you said, “I’ve been instructed outside the court by [Ms V’s] partner who’s the victim of the assault.” That’s right, isn’t it?‑‑‑Yes.
Her Honour said, “[Ms V], the accused, had said that she didn’t have anyone appearing for her.” That’s right isn’t it?‑‑‑That’s what she said, yes.
And the transcript indeed records that prior to your entry the accused did tell the court that she was unrepresented. Isn’t that right?‑‑‑That’s what the transcript says, yes.
And her Honour immediately – as soon as you told her that you’d just been instructed outside the court her Honour said, “I’m not accepting instructions from somebody who comes and stands before me and says that they’re instructed by the victim of an alleged assault representing the defendant.” That’s right, isn’t it?‑‑‑Yes.
You said, “No, my only instruction was to speak to the defendant.” Correct?‑‑‑Yes.
Her Honour said, “Say no more, [S], I’m proposing to grant her bail.” That’s right, isn’t it?‑‑‑Yes.
The accused then says – then asks a question about that, doesn’t she?‑‑‑Could you tell me what the question was?
“What, does that say opposing or I’m getting it or not, miss” ?‑‑‑Yes.
Her Honour then says, “I’m granting you bail, yes.” Correct?‑‑‑Yes.
The accused then says, “Thanks, thanks, because I’m not a bad person.” Correct?‑‑‑Yes.
Her Honour then says, “I’ll put conditions on it and it’s bizarre, [S], that you would – is that what you’re saying to me, that you’ve been instructed? Just sit for a moment.” Correct?‑‑‑Yes.
You say, “Your Honour, I was” – and then you’re cut off. The accused says, “Sorry I was” – she’s cut off. Yes?‑‑‑Yes.
[S], you say, “Your Honour, I was approached outside the court by victim in the matter.” Correct?‑‑‑Yes.
Her Honour says, “By [Mr G]?” Correct?‑‑‑Yes.
You say, “And asked if I would go downstairs and see the defendant. They were my instructions, your Honour, and it is bizarre, your Honour” ?‑‑‑Yes.
Her Honour says, “I think that’s” – and then she’s cut off, yes?‑‑‑Yes, if that’s in the transcript.
Would you take it from me?‑‑‑Yes, sure, I can accept that.
The accused makes a comment, you agree?‑‑‑ You’ll take it from me?‑‑‑Pointed along the lines of the thing - - -
“Yes, he needs to go to the” – or something like that. And her Honour says, “It’s unbelievable, [S], that you purport to act on behalf – that you were instructed by the victim to go and speak to the defendant in a matter.” You’d accept that?‑‑‑Yes.
You said, “Your Honour” – her Honour says, “If that’s not a serious conflict of interest” – and you say, “Yes, your Honour” ?‑‑‑Yes.
Her Honour says, “What on earth in this court is, this is a family violence matter.” Do you accept that?‑‑‑Yes.
You say, “Yes, your Honour.” The accused says, “It’s a mental case.” Do you agree with that?‑‑‑Yes.
Her Honour then says, “I’ll just pretend that you didn’t even appear, [S].” Do you agree with that?‑‑‑That’s the wording I remember, yes.
And you say, “Thank you, your Honour.” Correct?‑‑‑Yes.
And then the accused says, “Thanks anyway for coming but he’s very manipulative. I know that. I thought you were Legal Aid, thanks anyway”?‑‑‑That’s correct.
Do you accept that? Her Honour says, “You’re excused, [S], thank you.” Correct?‑‑‑Yes.
And you say, “Thank you, your Honour. Correct?‑‑‑Yes.
And you leave the court at that point?‑‑‑That’s correct.
All right. And then there’s an order for remand and a grant of bail. Do you agree with that?‑‑‑Well, I agree it’s on the transcript. I wasn’t there for that, yes.
The upshot of all of that, [S], is that while you attempted to appear for the accused the magistrate, her Honour, did not allow you to do so. That’s right, isn’t it?‑‑‑I thought I appeared.
You thought you appeared?‑‑‑Yes.
The magistrate did not allow you to make one submission of substance, did she?‑‑‑No, because she’d already granted bail, that’s correct.
Well, she hadn’t already granted bail but she’d already indicated that she was going to grant bail, correct?‑‑‑Yes, non-opposed bail application, yes.
So, [S], you contributed nothing to the outcome of that case in terms of the grant of bail, did you?‑‑‑No.
No as in you agree with me?‑‑‑I agree with you, yes.
All right. What happened then, [S], was that you filled out on behalf of the accused an application for Legal Aid didn’t you?‑‑‑No, at that point I – the Legal Aid application form is a photocopied form. When I – my normal practice when I was appearing as a lawyer and solicitor in the ACT was to go down and see the prisoners in the cells, if they were in the cells, and to hand under the door – there’s a door going down to the cells and then there’s a second door where the prisoners are, just slip a copy of one part of the form under the door and then the prison officer would take that into the cell and the prisoner would sign the Legal Aid application. If they knew they knew their CRN number then they would put their CRN number on it and then that would be handed back to me by way of coming back underneath the door. On this occasion that’s exactly what happened.
Well, [S], in any event you signed the solicitor’s certificate to the Legal Aid application of the accused, didn’t you?‑‑‑I would have, yes.
Well, you did, didn’t you?‑‑‑Yes.
On 27 July 2008, 28 July 2008 I apologise?‑‑‑It was sent on the same day and received by Legal Aid, and that’s the new evidence, on the same day within an hour of that appearance.
[S], I’m just asking you to agree that you filled out the solicitor’s certificate to that Legal Aid application ---?‑‑‑I did.
- - - and signed it on 28 July 2008, correct?‑‑‑Yes I did.
And you wrote in the top right-hand quarter of the same page the words, “I appeared today for an opposed bail app, bail was granted” ?‑‑‑Yes.
Could [S] be shown – and the words that you’ve just agreed to appear at the last page of the document I’ve just handed to you, don’t they?‑‑‑That’s correct, yes.
And that statement, [S], was totally false, wasn’t it?‑‑‑I don’t believe so.
You see nothing misleading in telling the Legal Aid Commissioner that you’d appeared today for an opposed bail application and bail was granted?‑‑‑There was no intention at all. I said I appeared today, which I did for an opposed bail application – I understand it was opposed – and bail was granted.
Yes and said nothing, even as you sit here today, nothing misleading - - -?‑‑‑No.
- - - in circumstances where you well knew that the magistrate would not let you advance any submissions and where she had told you that you were excused and she was proposing to grant bail. You see nothing misleading in telling the Legal Aid Commission that you had appeared today for an opposed bail application and bail was granted?‑‑‑No.
[S], the fact that you see nothing misleading in that, I suggest to you, demonstrates a fundamental lack of insight into the truth?‑‑‑Mr Beaumont, I’ve done over 3,000 matters in the Magistrates Court and you’ve picked one single matter which is contentious, I agree, which is – there’s no intent to gain profit or anything from that and there’s a note on the back of the Legal Aid form saying I appeared today for an opposed bail application. It was placed on there within 30 or 40 minutes after I’d agreed to fax the Legal Aid application.
While the events were all very fresh in your mind?‑‑‑That’s right. That’s why there’s a note saying I appeared today for an opposed bail application, bail was granted.
And there’s nothing incomplete you think in that statement?‑‑‑I don’t know what else you’d expect me to put there. It’s a note and it says I appeared today. I did, you know. I can understand, you know, that you’re putting a different connotation on it but my understanding and the note was made, I appeared today for an opposed bail application, bail was granted. She got bail.
All right, Well, [S], wouldn’t you think a reader of that note would conclude that you had appeared for the accused on the application?‑‑‑No.
No?‑‑‑No.
Let me ask you that again, [S]. I asked you wouldn’t you think a reader of that note would conclude that you had appeared for the accused on the bail application?‑‑‑I should have put I was present today for an opposed bail application and bail was granted. Yes, I agree with that.
But is the answer to my question yes?‑‑‑Yes.
And why – all right. So you agree a reader would think that you appeared for the accused?‑‑‑Yes.
You’d also agree a reader would think that you had successfully argued for her to get bail - - -?‑‑‑I think you’re reading more into it than what that is.
Will you let me finish the question? A reader would also conclude that you had successfully argued for bail in the face of opposition, wouldn’t they?‑‑‑No.
No?---The way it works is an unrepresented person or a person that’s in the cells you’d have to get duty bail form to appear for them. You have to have a duty bail form issued by Matt O’Brien or Tony Foley or one of the people. That’s the only way you can actually appear for Legal Aid to be paid for a bail application. I did not have a duty bail.
[S], I’m not - - - ?‑‑‑I didn’t have a duty bail.
I am not asking you about payment for your appearance. Do you understand that?‑‑‑I understand that.
I’m asking you to agree that a reader would conclude that you had successfully argued for bail in the face of opposition wouldn’t they? Don’t worry about payment?‑‑‑They could, yes, they could.
Well, they must?‑‑‑They could, yes.
And that’s misleading, isn’t it, [S]?‑‑‑I don’t think so, no.
Not all?‑‑‑I don’t think it’s misleading. I think I could have worded it better at the time but, you know, at the time I was a busy solicitor. I was doing a large number of matters in the Magistrates Court. I made a note on a Legal Aid form that was sent to Legal Aid within the hour.
The note was entirely unnecessary, [S]?‑‑‑It’s a note for myself. You know, it’s just a note. It’s not signed. It’s just stuck on the back of the form.
Sorry, did you say it’s a note for yourself?‑‑‑I appeared today for an opposed bail application, bail was granted.
But, [S], did you say - - - There was no controversy with this matter when this happened.
[S], did you say a moment ago it was a note for yourself?‑‑‑Yes basically, it’s a note I made, yes.
No, but please answer my question? You said a moment ago it was a note for myself?‑‑‑It wasn’t intended for a note for the Legal Aid Commission.
Not intended for the Legal Aid Commission?‑‑‑No, no.
So you hand or you have handed an application for Legal Aid with a certificate signed by you, [S], solicitor, and a note, “I appeared today for an opposed bail app, bail was granted” ?‑‑‑And the other point I make Mr - - -

[S], would you just listen to my question?‑‑‑Sorry, yes.
But you now say, for the first time, that that wasn’t intended for Legal Aid. Is that right?‑‑‑The other point I make, Mr Beaumont - - -
[S], will you answer my question?‑‑‑No hang on just, I’m going to answer the question. The other point I make is the fact that I don’t – these are sent through a fax machine one after the other. I’ve got not no way of knowing that that note ...(indistinct)... bail application. They’re not one single form. You know, I’d like to see the copy from New South – sorry, ACT Legal Aid.
[S], you’re not seriously going to try to change your evidence at this point?‑‑‑I’m not trying to change my evidence. ...(indistinct)... on the form.
You remember your evidence was before you even saw this form you agreed with me that you put a note on this certificate, didn’t you?‑‑‑Yes.
And that evidence was true, wasn’t it?‑‑‑Well, I don’t know. You know, I’d like to see - - -
You don’t know?‑‑‑I’d like to see the original form, Mr Beaumont, and also to know when Legal Aid received the form.

The challenges

S’s complaints in relation to this matter were that:

(a)ACAT should not have received evidence about the Doogan matter; and
(b)ACAT did not understand the Doogan matter, and accordingly made an incorrect finding.

Admission of evidence

In argument, S explained his complaints about the admission of evidence given during his cross-examination in relation to the Doogan matter, which were in general that ACAT made an error of law in applying the laws of evidence, which should have required the exclusion of the material about the Doogan matter. Specifically, he said:

(a)that the Doogan matter was inadmissible because it was irrelevant to the matter before ACAT;
(b)that the material relating to the Doogan matter, to the extent that it was relevant, was highly prejudicial; and
(c)that ACAT should not have permitted him to be cross-examined about the Doogan matter because proceedings brought by the Law Society in relation to that matter had not been finalised.

Relevance of evidence

S submitted that the material about the Doogan matter was irrelevant to the matter before ACAT, because it was only relevant to his credibility, and it had no substantial probative value in relation to his credibility, in that the evidence as it came out did not establish whether S had knowingly or recklessly made false representations when under an obligation to tell the truth.

Furthermore, S argued, the Doogan matter was in any case irrelevant to the matter that was being considered by ACAT, because it arose out of a different complaint against him.

These submissions suggested at best a confused understanding of the provisions of the Evidence Act 1995 (Cth) (which applied in the ACT at the time of the relevant ACAT hearings). The relevant provisions of the Evidence Act were as follows:

101A Credibility evidence
Credibility evidence, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that:
(a) is relevant only because it affects the assessment of the credibility of the witness or person; or
(b)is relevant:
(i) because it affects the assessment of the credibility of the witness or person; and
(ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
Note 1:Sections 60 and 77 will not affect the application of paragraph (b), because they cannot apply to evidence that is yet to be admitted.
Note 2:Section 101A was inserted as a response to the decision of the High Court of Australia in Adam v The Queen (2001) 207 CLR 96.

102     The credibility rule
Credibility evidence about a witness is not admissible.
Note 1 Specific exceptions to the credibility rule are as follows:
·     evidence given in cross-examination (s 103 and s 104)
·     evidence in rebuttal of denials (s 106)
·     evidence to re-establish credibility (s 108)
·     evidence of people with specialised knowledge (s 108C)
·     character of accused people (s 110).
Other provisions of this Act, or of other laws, may operate as further exceptions.
Note 2Section 108A and s 108B deal with the admission of credibility evidence about a person who has made a previous representation but is not a witness.

103     Exception—cross‑examination as to credibility
(1)The credibility rule does not apply to evidence given by a witness in cross‑examination if the evidence could substantially affect the assessment of the witness’s credibility.
(2)Without limiting the matters to which the court may have regard for subsection (1), it must have regard to—
(a)   whether the evidence tends to prove that the witness knowingly or recklessly made a false representation when the witness was under an obligation to tell the truth; and
(b)   the period that has elapsed since the acts or events to which the evidence relates were done or happened.

...
Dictionary
credibility of a witness means the credibility of any part or all of the evidence of the witness, and includes the witness’s ability to observe or remember facts and events about which the witness has given, is giving or is to give evidence.

S is correct that the general rule set out in s 102 is that “credibility evidence about a witness is not admissible”. However, the evidence in question was given by S in cross-examination before ACAT in the course of its hearing of the current matter. Furthermore, S conceded that the evidence “could substantially affect the assessment of” his credibility; indeed, S’s complaint was that the evidence had done just that. That is, the evidence satisfied the tests set out in s 103(1), and was therefore not rendered inadmissible by the credibility rule.

S then argued that the evidence did not satisfy s 103(2)(a), in that it did not tend to prove that he had “knowingly or recklessly made a false representation when [he] was under an obligation to tell the truth”. However, s 103(2) does not identify this as a prerequisite for the admissibility of the evidence; rather, it obliges the court considering whether material satisfies the description in s 103(1) to have regard to whether the relevant evidence would tend to prove the specified matter. That is, even if the relevant evidence did not tend to prove the matter referred to in s 103(2)(a), the question remains whether that evidence could substantially affect the assessment of the witness’s credibility.

Having regard to the definition of “credibility” in relation to a witness (quoted at [73] above), it is clear that the likelihood of the witness telling the truth when under an obligation to do so is only one of many things that might affect the credibility of the witness; as noted in Stephen Odgers, Uniform Evidence Law (10^th ed. 2012), at 549-550, in relation to s 103:

cross-examination may well be permitted regarding such matters as bias or motive to be untruthful, opportunities of observation, reasons for recollection or belief, powers of perception and memory, any special circumstances affecting competency, prior statements inconsistent with testimony, internal inconsistencies and ambiguities in testimony, prior discussion about the facts of the case with other potential witnesses, and direct contradiction of testimony. Previous lies by the witness may substantially affect the assessment of the credibility of the witness, whatever the nature of the “obligation to tell the truth“.

If the evidence, having been given in cross-examination, is accepted as evidence that could substantially affect the assessment of the witness’s creditability, then the evidence is not inadmissible, and the next question would be what weight should be given to that evidence in assessing the witness’s credibility.

S’s performance in cross-examination as quoted at [68] above could legitimately be described as involving continuing and unmitigated prevarication. It reveals, in my view, that he has virtually no understanding of the concept of truth. I find it hard to imagine a better example of evidence that could substantially affect the assessment of a witness’s credibility.

Credibility evidence is, under s 101A, evidence that is only relevant because it relates to a witness’s credibility (s 101A(a)) or is relevant to a witness’s credibility and also for a purpose for which it is otherwise inadmissible or unusable (s 101A(b)). Section 102, which excludes credibility evidence, does not exclude evidence that is otherwise relevant to the subject matter of the proceedings and is not otherwise inadmissible. That is, by definition, material to which s 103 applies will be material that would otherwise be excluded by s 102. To complain that evidence that has been admitted under s 103 is evidence relevant only to the witness’s credibility and not directly to the subject matter of the proceedings is to reveal a fundamental misunderstanding of the operation of ss 101A, 102 and 103.

Prejudicial nature of evidence

It is clear that the credibility evidence in relation to the Doogan matter was prejudicial to S, but he made no submission that the evidence was unfairly prejudicial so as to justify its exclusion under s 135 of the Evidence Act.

Cross-examination about separate unfinished proceedings

S also argued that since the Doogan matter was the subject of separate and unfinished proceedings, it was inappropriate for ACAT to permit him to be cross-examined about the matter in the current proceedings. However, he conceded that the cross-examination did not raise any issues relating to the progress of that matter through the complaints process, ACAT or the Supreme Court, and he did not identify any basis on which that cross-examination should have been excluded on the ground that the Doogan matter had not been finalised.

ACAT’s “misunderstanding” of the cross-examination

S also challenged ACAT’s adverse credibility findings against him on the grounds that ACAT’s decision revealed a misunderstanding of the cross-examination and the evidence that it produced.

In ACAT’s reasons for its findings, it made the following comments about S’s credibility:

36.During the course of his cross examination, the respondent was asked questions about an appearance he made before Magistrate Doogan, and a subsequent claim for payment of fees he made on the Legal Aid Commission subsequent to that appearance. The Tribunal found his answers and demeanour in cross examination on this topic to be very unsatisfactory.
37.That cross examination, together with his evidence and cross examination in relation to other issues, left the Tribunal with an adverse view of the respondent’s credibility.

S drew attention to the statement that during cross-examination he had been asked about his appearance before Magistrate Doogan and “a subsequent claim for payment of fees he made on the Legal Aid Commission subsequent to that appearance”. S says, and this assertion is borne out by an examination of the relevant cross-examination at [68] above, that at no stage was he in fact asked about a claim for payment of fees made to the Legal Aid Commission. What he was asked about was a statement written by him on the back of a legal aid application form filled out in the name of the bail applicant before Magistrate Doogan, which he had signed, that statement being “I appeared today for an opposed bail app, bail was granted“.

It seems that the application was then sent to the Legal Aid Commission and received by them within an hour of S’s attendance in the Magistrates Court. S was cross-examined at length about whether his statement correctly represented the circumstances, to the extent that it claimed that S had appeared for the bail applicant and implied that he had successfully argued for bail in the face of opposition. Eventually there was the following exchange between S in evidence and counsel for the Law Society who was cross-examining him:

I am not asking you about payment for your appearance. Do you understand that? --- I understand that.
I’m asking you to agree that a reader would conclude that you had successfully argued for bail in the face of opposition wouldn’t they? Don’t worry about payment? --- They could, yes, they could.

S submitted:

(a)that ACAT had summarised his cross-examination in relation to this matter as about “a subsequent claim for payment of fees” when it clearly was not about the claim for payment as such, but about a claim that he had appeared on behalf of a bail applicant and achieved a grant of bail; and
(b)that this meant that ACAT’s adverse credibility findings must be set aside.

There is no substance to this argument. It is unfortunate in the circumstances that ACAT summarised the cross-examination by reference to one element of the Doogan matter that was explicitly excluded from that cross-examination, but this careless summarising does not require me to accept that the three ACAT members did not understand or remember the actual content of the cross-examination by the time they recorded their view that S’s “answers and demeanour” during the relevant cross-examination were “very unsatisfactory” and contributed to ACAT members forming “an adverse view of [S’s] credibility”. Furthermore, as I have noted at [78] above, it is abundantly clear that ACAT’s reference to S’s performance in cross-examination as “very unsatisfactory” was entirely justified.

S also asserted that, in relation to whether he had been cross-examined about a claim for payment, counsel for the Law Society had misled ACAT, and had then sought to mislead this court, about the nature of the cross-examination.

The alleged attempt by counsel for the Law Society to mislead ACAT was, S submitted, to be found in counsel’s written submissions about penalty made after ACAT had recorded its findings in April 2011 but before it had decided on penalties. The relevant submissions were as follows:

4.Importantly for the purposes of assessing the practitioner’s fitness, the Tribunal further observed that the evidence which he gave about his claim for payment of fees after an appearance before Magistrate Doogan, and his answers and demeanour in cross-examination in this topic were “very unsatisfactory”: J [36].
5.More generally, the Tribunal observed that they were left with an adverse view of the Respondent’s credibility: J [37].

It is true that in these submissions counsel has not corrected ACAT’s incorrect reference to S’s cross-examination being about his claim for payment of fees, and that this could have been done. However, what counsel has done is to refer accurately to what ACAT in fact said in its reasons about S’s credibility. As already noted, although ACAT has misdescribed the topic of the cross-examination, that misdescription does not detract from the legitimacy of its findings as to credibility, and in particular does not, in the circumstances, provide any basis for concluding that ACAT had misunderstood or forgotten the nature and subject matter of the cross-examination and had made credibility findings that were not justified by the actual cross-examination.

There is no basis on which I could find that this was an attempt by counsel to mislead ACAT, and in any case it is not clear to me that any such attempt, of itself, could have vitiated ACAT’s findings.

S’s claim that counsel for the Law Society had also sought to mislead this court was based on the following paragraph in written submissions provided by counsel on appeal:

50.Finally, if the Tribunal in the present proceedings was compendious in describing the false statement as “claim for payment”, that in no way undermines the correct conclusion, or that the false claim significantly undermined the credit of the Practitioner.

I agree with S that “compendious” (defined in the Macquarie Dictionary Online viewed on 28 January 2014, as “containing the substance of a subject in a brief form; concise”) is not an accurate way to describe an incorrect description of the subject matter of S’s cross-examination.

I also note that counsel’s written submission would have benefited from a final editorial check; I suspect the “or” is unnecessary and that it was intended to read “that in no way undermines the correct conclusion that the false claim significantly undermined the credit of the Practitioner”, but there are several other ways in which the paragraph could have been edited to make more sense than it currently does. As well, the sentence would more accurately have referred to the “false statement” rather than the “false claim”.

None of these flaws in counsel’s submission strikes me as an attempt to mislead; it is also not clear to me that any such attempt would have had any impact on the legitimacy or correctness of any decision that I had reached without having become aware of those flaws.

Walsh

S also relied on Walsh in arguing that ACAT should not have permitted cross-examination about the Doogan matter, referring to the finding in Walsh (explained at [66] and [67] of the High Court’s reasons) that, on an appeal by the Law Society against findings made by the Tribunal, the Court of Appeal should not have, in effect, conducted a new hearing into the complaints against Mr Walsh originally heard by the Tribunal.

S submitted that the High Court’s conclusions on that question meant that ACAT (equivalent to the Tribunal in the New South Wales structure) should not have permitted him to be cross-examined about aspects of a matter that was the subject of a separate complaint to ACAT. In making that submission, he failed to recognise that the scope of an appeal is clearly a different issue from the admissibility of evidence at first instance; the High Court’s comments about the scope of the appeal to the Court of Appeal have no significance for the question of what evidence should have been admitted by the NSW Tribunal, or by ACAT in this case.

S also sought to rely on an extract from Walsh taken entirely out of context, being the highlighted part of the following comment in the joint judgment of McHugh, Kirby and Callinan JJ:

44. Powell JA’s eleventh, and final, conclusion was the failure of Mr Walsh to express regret or contrition for the conduct with which he stood charged. Certainly, Mr Walsh did not express contrition for the wide variety of misconduct which, directly or indirectly, Powell JA seems ready to have found against him. But that was doubtless because he was never called upon, by the complaints, by the particulars, by the conduct of the case of the Law Society before the Tribunal or in the Court of Appeal or by the grounds of appeal to defend himself (and his sisters) on the wide variety of misdeeds which were eventually laid at his and their doorstep. (citations omitted)

In making the comments quoted by S, their Honours were addressing Powell JA’s finding that Mr Walsh had not expressed regret or contrition for certain conduct by noting that much of that conduct had not been put to him at any point before it was raised by the Court of Appeal; they were not making any comment about the matters that might properly have been put to Mr Walsh before the Tribunal.

[S] also submitted that Walsh was helpful to him as authority for the uncontroversial proposition that the Law Society was required to particularise its complaints. He did not, however, point to any lack of particularity in those complaints. The only sense I can make of his submission was that he saw a requirement to particularise complaints as preventing reference in proceedings for one complaint to any matter relevant to a separate complaint, and thereby excluding any reference to any aspect of the Doogan matter in the context of the current complaints.

I cannot see that a requirement to particularise complaints directly imposes any limits on the admissibility of evidence in relation to those complaints, although such particularisation would generally make it easier to determine what evidence is relevant in proceedings relating to any given complaint.

(a)S’s use of the word “error” twice in his letter to FNT;
(b)S’s claim in his affidavit affirmed on 10 June 2011 at [16] that:
in all of my conversations with [Ms Bourne and Mr Bourne] I said words to the effect of ‘you have registered [Mr Jabal] in error‘.
(c)Mr Bourne’s evidence in cross-examination that after S had spoken to Ms Bourne, she had told Mr Bourne that “a solicitor has called me and told me that we have registered [Mr Jabal] in error”;
(d)S’s affidavit affirmed on 29 October 2010 in which he claims:
(i)(at [25]) that Ms Bourne said to him during the 17 June 2009 telephone call that “we have been having problems with some of our marketing people and this one appears to be our error” (which was denied by Ms Bourne in an affidavit sworn on 26 November 2010); and
(ii)(at [31]) that during a telephone call later on 17 June 2009 Mr Bourne “freely admitted that the Tarik matter had been an error on the part of FNT and that there had been a number of problems with FNT’s marketing people“ (which was denied by Mr Bourne in an affidavit sworn on 26 November 2010); and
(e)S’s affidavit affirmed on 10 June 2011 in which he claims at [7]:
At the time of sending the Facsimile to [FNT] on 17 June 2009 I firmly believed and still believe that the Veda listing was erroneous and had been incorrectly placed by FNT. My letter of 17/06/09 was based on my knowledge and instructions held at the time.

The evidence described at [140](a), (b) and (c) is evidence of what S said. However, the relevant question is not whether S used words suggesting error – there is no dispute that he did so – but what he knew or believed or ought to have believed at the relevant time about the origins of the Veda listing.

The evidence at [140](d), if accepted, would provide an explanation for S’s claimed belief.

The evidence at [140](e), albeit sworn evidence, is simply an assertion by S which, among other things, is inconsistent with other assertions made by S in sworn evidence (see for instance the evidence referred to at [136] above).

In fact, it is S’s own evidence that he did not really know what he believed about the credit listing. His affidavit affirmed on 10 June 2011 also specifies (at [15]) that:

I had or held no knowledge or belief whatsoever prior to sending the fax on 17/06/09 that the listing of my client by FNT was anything but an erroneous and or false listing by FNT of my client.

At the appeal hearing (obviously, after ACAT had made its findings), S also struggled to explain what he meant when he claimed to have believed that the credit listing was “erroneous”, saying that his understanding of the nature of the “error” had changed over time, depending on his instructions. It was not clear when his instructions had changed, but ACAT’s finding that S had seen the 4 February 2009 letter does imply some further contact between him and Mr Jabal, and I note that in an affidavit affirmed on 29 October 2010, S claimed (at [53]) that on 17 June 2009 Mr Jabal:

attended my office we went through a copy of the letter dated 17 June 2009 to [FNT] I went through the letter with [Mr Jabal] and he told me that “it is fine to send”.

This meeting was not recorded in the client file produced to the Law Society after FNT’s complaint was made.

S said that at one point he believed that “there was no outstanding debt”, and at another point he believed that Mr Jabal had never received any invoice for the alleged advertisement. He did not try to explain what exactly he had believed at the relevant point, namely 17 June 2009 when he telephoned and then wrote to FNT.

Submissions

On appeal, S submitted that almost the only evidence of his state of mind at the time he wrote the letter was the contents of his letter, his subsequent assertions about his state of mind, and his own evidence. He said:

The evidence is, your Honour, that in every affidavit in every question that was put to me or the witnesses, in every document produced, I used the word “error” or “erroneous.” I was 100% adamant on that.

In written submissions filed by leave in reply to the respondent’s submissions, S said:

I have numerous documents in evidence and the evidence of myself and my witnesses as well as the evidence of Mr and Mrs Bourne all of the evidence without any exceptions clearly states that from the earliest moment in this matter it was asserted by me and continued to be asserted that the listing was erroneous There is absolutely no evidence to the contrary. On this point alone the appeal has to succeed.

In submitting, in effect, that ACAT was bound to accept his assertions about his state of mind, S seems to misunderstand the process of making a finding about a person’s state of mind. Clearly, the only person who could ever give direct evidence about a person’s state of mind is the person him or herself, but this is rarely the only evidence before a fact-finder who needs to make a finding about it. Sometimes there is no such direct evidence, and where there is it may be self-serving. Routinely, findings about a person’s state of mind are made by reference to the person’s words and actions at the relevant time, and to other external circumstances. To complain that ACAT has made findings against S’s direct evidence of his state of mind indicates a misunderstanding of this significant feature of fact-finding.

Credibility assessments are often an important part of what a fact-finder considers in determining state of mind, and in considering S’s state of mind when he wrote the 17 June letter, and when he spoke to Ms Bourne earlier on the same day, ACAT was perfectly entitled to take account of its assessment of S’s credibility in deciding what evidence of his to accept and what weight to give to other evidence.

Treatment of Mr Jabal and Ms Bourne

One element of S’s claim that ACAT should not have found against him in relation to his claimed belief that the Veda listing was erroneous was what he said was unfair treatment by ACAT of his witness Mr Jabal compared with ACAT’s treatment of the Law Society’s witness Ms Bourne.

Mr Jabal’s evidence

When the hearing resumed before ACAT on 26 July 2011, it emerged that Mr Jabal was not available to give evidence in Canberra because he had had to travel to Sydney on the previous evening and would not be back in Canberra until sometime in the afternoon. S, for reasons that were not explained, had not subpoenaed Mr Jabal to give evidence on his behalf in ACAT, although at the appeal S said that, rather than subpoenaing Mr Jabal, he had:

assumed he was going to be there ... Because he was my witness and he was very keen to be there and there was some issue with his brothers the night before, it’s a family business, and he went to Sydney which took me by surprise.

S’s application for an adjournment until Mr Jabal was available in Canberra was refused, and arrangements were made for Mr Jabal to give evidence by telephone from his car as he travelled back to Canberra.

Member Lunney’s comments about arrangements for Mr Jabal to give evidence are found in the following extract from the transcript:

MEMBER LUNNEY: Now, I understand that Mr Jabal is on the road.
[S]: On the road from Sydney. I spoke to him as soon as I went outside, Mr Symons rang him, I’ve spoken to him. He can take the call on his mobile. He doesn’t have any documentation with him. Alternatively he should be here prior to 2 o’clock.
MEMBER LUNNEY: Well, I think that we can’t waste time, [S], so we’ll just have to do our best. Reception is generally pretty good on the Hume Highway.
[S]: It was quite good when I spoke to him, yes.
MEMBER LUNNEY: I suppose I should ask you whether you’re content with that, Mr Beaumont. I mean, it’s far from ideal, isn’t it?
MR BEAUMONT: Yes, Mr Lunney, I can’t describe my state of mind as content, I’m afraid to say, but I’ve heard what you’ve said about wanting to get on with the case and I respectfully share that desire. I’m prepared to proceed to attempt to cross-examination him over the telephone and in the absence of documents. It just seems to be the inevitable result of the failure to secure his attendance.
MEMBER LUNNEY: I’m afraid so and perhaps you’ll be making some submissions about that in due course, but in any event, I think this is the only way we can proceed, [S].

These arrangements meant that Mr Jabal did not have any relevant documents available to him while he was being cross-examined. S claims that this caused Mr Jabal to become confused and to give evidence unhelpful to S’s case.

Mr Jabal’s evidence was relevantly as follows:

I’ll ask you again, Mr Jabal. As at February 2009, you had been doing business with First Net in the past without any problem. That’s true, isn’t it?---Mate, off the top of my head, no.
Off the top of your head. Well, you wrote a letter to First Net bearing the date 4 February 2009, didn’t you?---Yes.
It’s a letter that [S] refers to in his letter of 17 June 2009, do you agree with that?---We did write a letter, the date I’m not 100% sure, but yes.
And it’s a letter that you showed [S] before he wrote his letter of 17 June 2009, correct?---A letter was written before 2009?
No, the question was – let’s go back a step. You wrote a letter to First Net on 4 February 2009?---Okay, yes.
And in that letter you said a number of things, but at the end, you asked them to rectify your accreditation status quickly. Do you remember that?---Yes, yes, okay, yes.
And you said a number of other things in that letter, you agree with that?---Okay, yes.
And to put you in the picture, two months before that, you’d paid the account of $165, right?---That is right, I was paid.
And the letter was dated 4 February 2009, but would you agree with me you didn’t send it until 23 February 2009?---Mate, I couldn’t agree with you, but maybe I – yes, it was sent.
Well, the record – the post receipt shows that it was sent on 23 February 2009. Would you accept that from me?---Okay, I understand, yes.
All right. Okay. Then as you know, [S] writes a letter on your behalf to First Net on 17 June?---17 June, yes.
Right. Referring, among other things, to an offer to pay them $2,000, correct?---Yes.
And before [S] wrote that letter, you met [S], did you not?---Yes.
You gave him a copy of your letter of 4 February 2009, correct?---Yes.
You went through that letter with him?---Yes.
And that letter says, among other things, doesn’t it, let me remind you, “and you know well that I have been doing business with your company in the past without any problem”. Do you remember writing that?---No, I didn’t write that letter myself.
No, I’m talking about the earlier letter of 4 February 2009, not [S]’s letter, the letter that you wrote yourself?---No, I didn’t write that letter myself.
Okay. Who drafted it?---Off the top of my head, I think it was my uncle that done that.
The writer?---Yes.
Okay. But in any event, the letter says, among other things, the letter that you signed says, among other things, “and you know” - - -?---That’s right, my business partner did do business with them beforehand, yes.
...
Yes, all right. So – but do you agree with me the letter says, among other things, “and you know well that I’ve been doing business with your company in the past without any problem”, correct?---Okay.
So this was a company that you had heard of, correct?---No, my partner had heard of.
Right?---Okay, my partner did business with them beforehand.
Well, in your letter that you’ve signed, you say, “and you know well that I’ve been doing business”, do you agree with that?---(No audible reply)
That’s what you’ve said?---Okay.
Well, was that the truth?---Well, at the time, you know, I would have paid any amount of money to clear my name for a petty $165.
Yes, yes?---It gave me a bad name on my credit application.
Yes?---To step [sic] me getting a loan, you know, with a group of people worth over $20 million, and $165 - - -
Yes, sure. And that’s what you - - -?--- - - - standing in the way. So the instructions were, yes, just to pay any solicitor fee, any fee just to remove it, with [S].
Because – and that’s what you told [S]?---That is right.
Because it was worth it to you, because a million dollar loan was riding on it, wasn’t it, Mr Jabal?---A lot more than a million dollars, [that’s] right.
A lot more? How much?---All the development, it was a development of 100 blocks.
Right. So your instructions to [S] were to offer whatever amount of money it took to get rid of the problem, is that right?---Not an offer, no.
No?---Not a bribe, if that’s where you’re coming from. To pay all expenses, their legal expenses, any expenses, which was the quickest way to remove it, instead of going the long procedure, whichever that was, but just to remove it as quickly as possible, pay all expenses and we’ll pay any fine, any expenses, just to remove it, just to pay it and keep it on my list, on my credit rating.
And Mr Jabal, you agree with me that in this letter of 4 February 2009, which you say your uncle drafted and you signed, you refer to the amount of $165 as being outstanding, do you agree with that?---Yes, I did ...(indistinct)... that’s right. That was also – there was a small loan that I had to – I rang up, I rang them up, actually found their number on the internet and I rang them up and advised them, you know, just to pay it and to get it off my name.
Yes?---...(indistinct)... just pay it and it will be straight away off your name. And when I paid it - - -
And did you - - -?--- - - - it was written that it was paid, but that’s all, it was still there.
And before you sent this letter, you also rang Kate Bourne in about February of 2009, is that right?---Look, the date, I’m not sure, but I did rang her, I did ring her, because I told you, I found the number off the internet and I rang her, asking what it was for.
Yes?---Where she surprised me, because it was all a surprise as I was getting to the loan, they go, no, the loan can’t come through because there’s $165 giving you a bad credit rating, First Net trader. So I looked them up on the net, if found First Net Trader, and from there I – you know, we talked about it and I said, what’s it for, and she explained this, that, and I said, look, I’m not going to sit here and argue over $165, if I pay it, can you get it off my name and just forget the whole thing. Which she agreed to and said, yes, that’s all we need. But she didn’t get it off it, all she wrote was it was paid.
And then you rang her back, didn’t you, and said, it’s still showing up as a default on my credit, isn’t that right?---Yes, I would have rang her back, because it was still showing, that’s right.
...
Yes. Well, to cut to the chase, Mr Jabal, you were in a desperate financial position and you instructed [S] to offer First Net a bribe of up to $2,000 to reverse the accreditation, didn’t you?---No, not a bribe, no.
All right. A financial inducement?---...(indistinct)...
Isn’t this the truth though, Mr Jabal, you came up with - - -?---I’ve had to pay all expenses, any legal cost to remove the $165 from my name, yes.
You came up with the figure of $2,000, correct?---Up to $2,0000 of legal costs.
Yes. But without any receipts, isn’t that right, Mr Jabal?---I didn’t say there wasn’t receipts.
You didn’t say that?---No.
Didn’t you approve the letter before it went out? And when I say “the letter”, I’m talking about [S’s] letter of 17 June?---Yes.
You did. And that letter says, does it not, “We’ll pay you $2,000 without evidence of receipts.” ?---No, not really.
Well, let me read it to you, Mr - - -?---If you pay for something there was – then you get a receipt.
Well, Mr Jabal, I’m now going to read to you the third paragraph of [S’s] letter of 17 June 2009, okay? Do you understand that?---Yes.
It says this:
“I am instructed to offer you the reimbursement of any costs incurred by your firm, up to the sum of $2,000, without evidence of such disbursements, and any amount above that, supported by receipts.”

I’ll stop there. Did you take that in?---Yes.
Those were your instructions, weren’t they, Mr Jabal?---Supported by receipts, did you say? Yes.
Mr Jabal, I’ll read it again?---Yes. You don’t have to read it again.
Anything up to $2,000 without evidence of disbursements, correct?---Okay, yes.
And that was because that’s how much it was worth to you to get this loan through, wasn’t it?---$2,000 it was worth to me to get the loan approved?
Yes?---Well, my bank manager’s instructions were, just get it off as soon as possible. Yes, I - - -
All right?---had to get it off as soon as possible. And even if you’re in the wrong or the right, I need it off as soon as possible.
Right?---But the way – look, if you’re reading it from that point, I can’t remember the letter exactly, it’s been a while now.
Yes?---I remember sitting down with [S] and we did talk about it, and, yes.
All right. That’s - - -?---If you’re putting it to me as a bribe, I didn’t consider it as a bribe.

In re-examination, S, despite objections from counsel for the Law Society and the presiding member’s attempt to prevent him, extracted from Mr Jabal, by asking a leading question, a denial that he had in fact kept a copy of the letter dated 4 February 2009. If accepted, this answer would have undermined Mr Jabal’s earlier evidence that he had shown a copy of the letter to S and gone through that letter with S.

ACAT apparently did not accept Mr Jabal’s claim in re-examination, because it found at [40] that S had seen Mr Jabal’s letter before he (S) sent his letter to FNT on 17 June 2009 (quoted at [117] above). ACAT noted at [40] that the letter did not assert that the advertisement had not been placed.

By reference to the evidence quoted at [157] above, S claimed that because he was in a car without access to relevant documents, Mr Jabal was confused about whether he was giving evidence about the letter signed by him and dated 4 February or the letter dated 17 June written by S.

There is no doubt that the cross-examination did not move in a straightforward fashion through the issues (this is not a criticism of cross-examining counsel), and that there were points at which Mr Jabal appeared to be unsure which letter he was being asked about, but I cannot see any point in the transcript at which, when Mr Jabal actually gave substantive evidence about a letter, he appeared to be confused about which letter he was talking about. S did not point to any specific part of the transcript in support of his submission.

Ms Bourne’s evidence

Ms Bourne began her evidence on 10 February 2011. Her evidence in chief ran for around 13 pages of transcript. Then she was cross-examined by S over about 62 pages of transcript.

The Law Society had been given leave to amend its charges on the basis that S could ask for the Law Society’s witnesses to be recalled later, and Ms Bourne was accordingly recalled when the hearing resumed on 25 July 2011. This time, she gave evidence by telephone from her solicitor’s office on the Gold Coast, and the only document before her was a copy of a letter from FNT to Veda dated 19 June 2009, which had recently been produced to the Law Society and to S. The Tribunal had been advised by Ms Bourne’s solicitor before she began to give evidence that only 10 or 15 minutes earlier, her husband Mr Bourne, who was 70 and had suffered a serious illness not long before, had been taken to hospital.

Ms Bourne was cross-examined for nearly 70 more pages of transcript. During that cross-examination, she was asked again about the 12 February 2009 file note about Mr Jabal, about a letter from FNT to Veda apparently written on 19 June 2009, and about a file note of her conversation with S on 17 June 2009 (two of which had come to light after Ms Bourne made her affidavits and one of which, a file note of the 17 June 2009 conversation, never came to light, and, according to Ms Bourne, had never existed). It quickly became apparent that Ms Bourne was giving evidence about the two file notes that was entirely different from the evidence she had given in February 2011; she was, as S described it, adamant that, contrary to the evidence she had given in February 2011 and to the documentary evidence available to ACAT, there was no file note of the February 2009 conversation with Mr Jabal but she had made a file note of her conversation with S in June 2009. In the course of this cross-examination, Member Lunney made the following comments:

MEMBER LUNNEY: Well, it’s very, very difficult, [S]. We’ve got a witness who’s remote from the courtroom.
[S]: Yes.
MEMBER LUNNEY: You and the rest of the court have got the advantage of the transcript of the previous occasion, and we’re talking about computers and we’re talking about files that come off computers. It really is difficult, and it just seems to me that you and Mrs Bourne are not talking about the same thing at the moment.

ACAT does not seem to have accepted Ms Bourne’s evidence as such, unsurprisingly given that the February 2009 file note had been produced and there had been no earlier suggestion that Ms Bourne had made a file note of the 17 June phone call. On the other hand, ACAT does not seem to have regarded Ms Bourne’s confusion on 25 July as casting any doubts on her credibility in general, and it accepted the central elements of her evidence, specifically in relation to S’s offering of a $500 payment to her during their initial conversation.

Consideration

S’s complaint was summed up in this submission:

Now I questioned Ms Bourne for pages and pages on this and she was adamant, but again, the Tribunal excuses it because she doesn’t have an exhibit in front of her. Now my witness is driving back from – or he’s in a car, or on the way back from Sydney, she’s in her solicitor’s office, she doesn’t have a copy of it, but there’s an excuse made for her but when Mr Jabal tries to clarify the fact that he never had a copy of the 4 February to show me, the Tribunal finds against me. It’s got to be fair on both sides, your Honour. Got to be equitable.

He suggested that Member Lunney’s attitude to Mr Jabal’s evidence (at [155] above) was different from his attitude to Ms Bourke’s evidence (at [164] above).

What appears to have happened is that ACAT has not treated Ms Bourne’s significantly contradictory evidence as damaging to her credibility, having regard to the fact that she gave evidence without access to the relevant documents, that the evidence she gave on the second occasion was clearly inconsistent not only with her own earlier evidence but also with other evidence including various documents, and possibly also having regard to the information it had about Mr Bourne’s sudden admission to hospital.

As for Mr Jabal, ACAT has accepted the evidence he gave in cross-examination despite not having his documents, and has rejected his improperly-obtained retraction of that evidence in re-examination, but still without his documents (at [158] above).

That is, in each case ACAT has accepted the witness’s initial evidence in cross-examination, which was in each case considered (albeit in Mr Jabal’s case without access to the relevant documents) and, importantly, was consistent with other evidence, especially the letters from Ms Bourne to Veda and the Law Society and the letter from Mr Jabal to FNT. In each case, ACAT has rejected contradictory evidence given later, and has not apparently treated the later contradiction as undermining the witness’s credibility.

On this analysis, ACAT has taken the same attitude to each witness.

S, in effect, complained that ACAT rejected the claim improperly extracted from Mr Jabal in re-examination that he did not keep a copy of his 4 February letter (and by implication, that he could not therefore have shown it to S) whereas ACAT made excuses for Ms Bourne when she became confused while giving evidence in the absence of access to relevant documents. On S’s analysis, presumably, ACAT should have rejected all evidence given in cross-examination by witnesses not in possession of the relevant documents.

I can see no basis for an argument that fairness obliged ACAT to apply a “rule” of this kind consistently. The proper approach in my view was for ACAT to deal with each example of possible witness confusion caused by the absence of documents by assessing the witness’s evidence having regard to its assessment of the witness’s general credibility, and of how the evidence concerned fitted in with all the other evidence, both oral and documentary, available to ACAT. Assessing witnesses is not some kind of mechanical process to be undertaken by ticking boxes in a checklist (“Witness without access to documents: deduct 2 points”). There is no substance in S’s claim of unfair inconsistency in ACAT’s approach to the two witnesses.

Smith

In the context of findings about his “mindset”, S relied heavily on Smith in two ways. He noted, in relation to two findings made by ACAT, the requirement in Smith that a practitioner should have an opportunity to be heard before adverse findings are made against him. He also referred to the High Court’s strictures against finding that a person has lied on oath purely because his evidence is rejected by the fact-finder (see [30] above).

The ACAT findings were as follows:

36. During the course of his cross-examination, the respondent was asked questions about an appearance he made before Magistrate Doogan, and a subsequent claim for payment of fees he made on the Legal Aid Commission subsequent to that appearance. The Tribunal found his answers and demeanour in cross-examination on this topic to be very unsatisfactory.
...
42. The Tribunal concludes that the assertion made by the respondent that the listing was erroneous was fabricated by the respondent knowing it not to be true. It was fabricated in order to provide a reason to Veda Advantage by way of FNT for reversing the listing.

In Smith, the High Court noted that the Court of Appeal, having rejected evidence given by the appellant in that court, concluded by reference to that rejection that the appellant had lied to the court. The High Court pointed out at 268:

It is necessary to say something as to the finding that the appellant lied in the Court of Appeal. There is a difference between the rejection of a person’s evidence and a finding that he or she deliberately lied. See, in relation to disciplinary proceedings against a solicitor, O’Reilly v. Law Society of New South Wales (1988) 24 NSWLR 204, at pp 208, 230. In some cases, a rejection of evidence may lead to a finding that that person lied on another occasion. Thus, in the present case, a rejection of the appellant’s evidence in the Court of Appeal led to a finding that he lied in the Penrith Local Court on the morning of 11 November 1986. On other occasions, other evidence may be of such a nature or of such weight that, in combination with the rejection of some particular evidence, it will justify a finding that that evidence was fabricated. But, as a matter of logic and common sense, something more than mere rejection of a person’s evidence is necessary before there can be a positive finding that he or she deliberately lied in the giving of that evidence.

In the current case, ACAT’s finding at [36] was a credibility finding based on “answers and demeanour in cross-examination” (being the cross-examination quoted at [68] above). It was not a finding about any of the specific evidence given by S during that cross-examination, and in particular it was not a finding that any particular aspect of that evidence was a lie.

ACAT’s finding at [42] was in fact a conclusion underpinned by consideration of the evidence and specific factual findings at [38] to [41]. At [38], ACAT rejected S’s evidence about his state of mind, but at [39] to [41] ACAT referred to documentary evidence, and Mr Jabal’s evidence, before coming to the conclusion set out at [42]. While it appears that ACAT’s rejection of S’s evidence at [38] was influenced by its adverse credibility finding at [36] and [37], it is also clear that ACAT’s ultimate finding, that S’s assertion made in dealings with FNT that the listing was erroneous was fabricated, was based on more than a simple rejection of S’s evidence about what he believed in his dealings with FNT.

In contrast to Smith, in which the Court of Appeal, despite reopening the matter at the appellant’s request, had refused to admit further evidence relevant to its finding that he had lied, S had ample opportunity to make submissions to ACAT after all the relevant evidence had been heard. Furthermore, ACAT did not proceed from rejecting S’s evidence to a finding that he had lied in giving that evidence. Rather, it found, having made adverse findings about his credibility based on his behaviour in cross-examination about the Doogan matter and having considered evidence from him and from other witnesses, that in dealing with FNT he had fabricated his claim that the Veda listing was erroneous. Such a finding is very different from a finding that he lied in giving evidence or that evidence has been fabricated.

Smith provides no help to S in asserting that ACAT should not have made the challenged findings.

Conclusions

It would have been useful for both the Law Society and ACAT to clarify what was meant by an allegation or finding that S knew the Veda listing was not “erroneous” or could not reasonably have believed that it was “erroneous”. Nevertheless, I am satisfied that the evidence (in particular that outlined at [134] to [147] above), taken together with ACAT’s also justified assessment of S’s credibility, was a more than adequate basis for a finding that S fabricated his assertion to FNT that its listing of the debt with Veda was erroneous, knowing that it was not true. Having reached that conclusion, there is no need for me to consider the further argument to the effect that if S did not know that the listing had not been made in error, he should at least have been suspicious about his instructions and should not have acted on them without further enquiry.

There is no substance to S’s complaints about ACAT’s conclusions about his state of mind on 17 June 2009.

Categorisation of S’s conduct, and penalty

As noted at [8] above, the question whether ACAT’s factual findings justified the conclusion that S was guilty of unsatisfactory professional conduct and professional misconduct was not argued on appeal.

In written submissions in reply filed with leave after the hearing before me, S focused on repeating his challenges to ACAT’s factual findings, although without raising any matter not already dealt with above.

Submissions about Doogan matter

Finally, it must be put on the record that S confirmed the validity of ACAT’s finding about his credibility on several occasions during the course of this appeal by making unfounded assertions to the court about the status of the Law Society’s complaint against him arising out of the Doogan matter.

It is unnecessary to go through those occasions in detail; the final and most egregious example will suffice. In written submissions in reply dated 26 August 2013 and filed by leave after the oral hearing concluded, S said, in relation to the Doogan matter:

I ask this Honourable Court to look at the facts of this matter alone not the ‘Doogan’ matter which has been found in my favour anyway.

The truth is that the Supreme Court’s decision in the Doogan matter, which was pending when this submission was made, was not handed down until 21 February 2014, and there was no finding in S’s favour (Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2014] ACTSC 13 (21 February 2014)).

It is a matter of grave concern that even in August last year S appeared unable to restrain himself from seeking to mislead the court or, alternatively, that he had so little understanding of legal processes that he did not realise that the Supreme Court had not yet made its findings in relation to the Doogan matter.

Conclusions

S has not established that there was any error on ACAT’s part in its consideration of the FNT matter, in the findings it made in relation to that matter or in the penalties it imposed. The appeal must be dismissed, and ACAT’s findings and orders confirmed.

I certify that the preceding one hundred and eighty-nine (189) numbered paragraphs are a true copy of the Reasons for Judgment herein of her Honour, Justice Penfold.
Associate:
Date:

Counsel for the appellant:  In person
Solicitor for the appellant:  In person
Counsel for the respondent:  Mr N Beaumont
Solicitor for the respondent:  Phelps Reid Lawyers
Dates of hearing:  17 May 2013, 2 August 2013
Date of judgment:  28 March 2014