The Legal Practitioner v Council of the Law Society of the ACT (No 2)
[2014] ACTSC 9
•6 February 2014
HUMAN RIGHTS ACT
THE LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY (NO 2)
[2014] ACTSC 9 (6 February 2014)
APPEAL AND NEW TRIAL – In General and Right of Appeal – Appeal from the Civil and Administrative Tribunal – Appeal referred to Supreme Court from the Civil and Administrative Tribunal
APPEAL AND NEW TRIAL – In General and Right of Appeal – Legal Practitioner – Appeal against finding of unsatisfactory professional conduct – Use of “/” in “personal/sexual” is not ambiguous – Personal/sexual relationship developed following establishment of lawyer/client relationship – Appeal dismissed
APPEAL AND NEW TRIAL – In General and Right of Appeal – Legal Practitioner – Appeal against ACAT’s finding of professional misconduct – Telephone records are corroborating evidence – Evidence sufficient to justify the finding that the client had given “standing instructions” to the Practitioner – Permission from Law Society for Practitioner to speak with another practitioner does not grant authority for the Practitioner to intimidate the other practitioner or act with impropriety – Conversation amounted to threats – Appeal dismissed
APPEAL AND NEW TRIAL – Excessive or Inadequate Penalty – Whether removal from the Roll is a harsh and excessive penalty for a solicitor on a restricted practising certificate – Conduct of the Practitioner cannot be compartmentalised – Practitioner cannot be trusted by clients, the public or the profession – Removal from Roll required
EVIDENCE – Generally – Disciplinary proceedings – Burden of Proof – Civil burden of proof to apply to the proceedings
EVIDENCE – Matters relating to proof – Witnesses who are also lawyers are not to be afforded any greater of status or credibility than other witnesses – ACAT is entitled to decide the reliability of witnesses
EVIDENCE – Civil and Administrative Tribunal entitled to draw Jones v Dunkel inference from Practitioner not giving evidence in proceedings against him
PROFESSIONS AND TRADES – Lawyers – Disciplinary proceedings – Duties of participation by lawyer
ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 56, 79, 81, 82, 83, 387
ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), s 30
Children and Young People Act 1999 (ACT)
Domestic Violence and Protection Orders Act 2001 (ACT)
Evidence Act 1995 (Cth), s 128
Human Rights Act 2004 (ACT)
Legal Aid Act 1977 (ACT), s 32
Legal Profession Act 2006 (ACT), ss 27, 397, 419, 425(3)(a), 433(1)
Legal Profession (Solicitor) Rules 2007 (ACT), r 1.1, 1.2, 39.1
A Solicitor v Law Society (NSW) (2004) 216 CLR 253
Adler v Australian Securities and Investments Commission (2003) 179 FCR 1
Allinson v General Council of Medical Education & Registration [1894] 1 QB 750
Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175
Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347
Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395
Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209
Bahr v Nicolay (No 2) (1988) 164 CLR 604
Bannister v See (1982) 42 ALR 78
Big River Timbers Pty Ltd v Stewart (1999) 9 BPR 16,605
Briginshaw v Briginshaw (1938) 60 CLR 336
Canberra Data Centres Pty Ltd v Vibe Construction Pty Ltd (2009) 4 ACTLR 114
Coe v NSW Bar Association [2000] NSWCA 13
Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2009] ACAT 2
Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 45
Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 46
Council for the New South Wales Bar Association v Slowgrove [2009] NSWADT 150
Derry v Peek (1889) 14 App Cas 337
Ex parte Attorney-General (Cth); Re A Barrister and Solicitor (1972) 20 FLR 234
Fox v Percy (2003) 214 CLR 118
In re Weare; in re The Solicitor’s Act 1988 [1893] 2 QB 439
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Jones v Dunkel (1959) 101 CLR 298
Lampard v West [1926] SASR 293
Law Society of NSW v Green [2008] NSW ADT 149
Law Society of New South Wales v Weaver [1977] 1 NSWLR 67
Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118
Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42
McCarthy v Law Society of NewSouth Wales (1997) 43 NSWLR 42
New South Wales Bar Association v Cummins (2001) 52 NSWLR 279
New South Wales Bar Association v Kalaf (Unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 11 October 1988)
New South Wales Bar Association v Meakes [2006] NSWCA 340
Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451
O’Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Pencious and Pencious [2012] Fam CA 74
Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201
Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
R v Mayne (1975) 11 SASR 583
R v Solicitors’ Disciplinary Tribunal [1988] VR 757
Re Hodgekiss (1959) 62 SR(NSW) 340
Re O’Neil (deceased) [1972] VR 327
Re Veron; Ex parte Law Society of NSW [1966] 1 NSWR 511
Rejfek v McElroy (1965) 112 CLR 517
Smith v New South Wales Bar Association (1992) 176 CLR 256
Southern Law Society v Westbrook (1910) 10 CLR 609
Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287
Stirling v Legal Services Commissioner [2013] VSCA 374
Theodorelos v Nexus Projects Pt6y Ltd [2009] ACTSC 149
Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281
Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471
Walter v Council of the Queensland Law Society (1986) 77 ALR 228
Walsh v Law Society of New South Wales (1999) 198 CLR 73
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279
No. SCA 86 of 2010
Judge: Refshauge J
Supreme Court of the ACT
Date: 6 February 2014
IN THE SUPREME COURT OF THE )
) No. SCA 86 of 2010
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: THE LEGAL PRACTITIONER
Appellant
AND: THE COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
Respondent
ORDER
Judge: Refshauge J
Date: 6 February 2014
Place: Canberra
THE COURT ORDERS THAT:
The appeal be dismissed.
The proceedings be remitted to the ACT Civil and Administrative Tribunal to give effect to its orders.
The Legal Practitioner pay the costs of the Council of the Law Society of the ACT.
These reasons for judgment are divided into the following sections:
Introduction [2]
The investigation and proceedings [14]
(a) The first complaint [17]
(b) The second complaint [20]
(c) The hearing and decision [22]
(d) The appeal [31]
The appeal in the Court [38]
The nature of the appeal [42]
The complaints
(a) The first complaint [53]
Factual basis of the first complaint [55]
(b) The second complaint [77]
Factual basis of the second complaint [81]
The evidence [110]
(a) The first complaint [111]
Affidavits of Mr Reis [111]
Affidavits of Ms N [122]
Affidavits of Ms L [131]
Tender Bundle [132]
Affidavits relied on by the Legal Practitioner [133]
Affidavit of Ms A [140]
Cross-examination [144]
(i) Cross-examination of Ms N [145]
(ii) Cross-examination of Ms L [159]
(iii) Cross-examination of Mr F [160]
(iv) Cross-examination of Mr R [163]
(v) Cross-examination of Mr J [167]
Telephone records [168]
(b) The second complaint [171]
Affidavits of Mr Reis [172]
Affidavit of Ms L [177]
Affidavits of Mr C [189]
Affidavit of Mr Phelps [201]
Affidavit of Ms A [206]
Affidavit of Mr J [221]
Oral Evidence [216]
The reasons for decision on the complaints [264]
Re-opening [310]
Sanction or Penalty [324]
The findings of the ACAT on penalty [338]
Costs [350]
The appeal [353]
Oral submissions
(a) First orally argued ground of appeal [358]
(b) Second orally argued ground of appeal [396]
(c) Third orally argued ground of appeal [405]
(d) Fourth orally argued ground of appeal [419]
(e) Fifth orally argued ground of appeal [441]
(f) Sixth orally argued ground of appeal [457]
(g) Seventh orally argued ground of appeal [473]
(h) Eighth orally argued ground of appeal [482]
(i) Ninth orally argued ground of appeal [490]
(j) Tenth orally argued ground of appeal [495]
(k) Eleventh orally argued ground of appeal [507]
Written submissions [523]
(a) Mr J’s responsibility to Ms L [527]
(b) The situation with Mr A [533]
(c) The setting up of Ms A [541]
(d) Grounds 11 and 12 [548]
(e) Grounds 5, 6, 7 and 8 [556]
(f) Grounds 3, 1 and 2 [563]
(g) Grounds 9 and 10 [577]
(h) Ground 13 [586]
(i) Ground 14 [589]
Conclusion [593]
Introduction
In 2007, the Legal Practitioner, the appellant in these proceedings, was practising as an employed solicitor with two Canberra legal firms. He held a restricted practising certificate.
In about May 2007, the Legal Practitioner received instructions from Ms N to act for her in proceedings in the Family Court of Australia in respect of child custody. Ms N and the Legal Practitioner commenced a personal intimate relationship in circumstances that were disputed.
Subsequently, on or about 29 October 2007, Ms N complained to the Law Society of the Australian Capital Territory (the Law Society) about the conduct of the Legal Practitioner in acting for her in the proceedings. The Law Society commenced an investigation into the complaint.
In about June 2007, the Legal Practitioner received instructions to act for a client, Ms L, the sister of Ms N, in an appeal to this Court commenced by Ms A, from an order of the Canberra Magistrates Court refusing an application to revoke a personal protection order made on 26 February 2007 in favour of Ms L and against Ms A.
The Legal Practitioner appeared before this Court on 14 September 2007. On that day, the appeal was allowed by consent, the order of the Magistrates Court set aside and the proceedings remitted to the Magistrates Court for hearing on condition that Ms A gave an undertaking until that hearing in the same terms as the protection order.
Ms L complained to the Law Society on 19 November 2007 about the conduct of the case by the Legal Practitioner. The Law Society then commenced an investigation into that complaint also.
As a result of those investigations, the Council of the Law Society (the Council), the respondent in these proceedings, applied under s 419 of the Legal Profession Act 2006 (ACT) to the Legal Practitioners Disciplinary Tribunal (the Tribunal) on 21 August 2008 for an order in relation to the complaint against the Legal Practitioner by Ms N (LP 6/08).
On 24 February 2009, the Council applied, also under s 419 of the Legal Profession Act, but by then it was to the ACT Civil and Administrative Tribunal (the ACAT), for an order in relation to the complaint against the Legal Practitioner by Ms L (LP 1/09).
On 2 February 2009, the Legal Practitioners Disciplinary Tribunal was abolished and, under s 30 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), any application made to that Tribunal, where it had not begun hearing the application, were deemed to be an application to the ACAT.
As a result, the ACAT heard both applications. On application LP 6/08, it found that the Legal Practitioner was guilty of unsatisfactory professional conduct. On application LP 1/09, it found he was guilty of professional misconduct.
A hearing to determine the appropriate penalty was then conducted by the ACAT and, on 4 August 2010, the ACAT ordered that the Legal Practitioner’s local practising certificate be cancelled and recommended that his name be removed from the local roll kept under s 425(3)(a) of the Legal Profession Act.
The Legal Practitioner has appealed against all the decisions made by the ACAT in the proceedings involving both LP 6/08 and LP 1/09. It is that appeal with which these reasons are concerned.
The investigation and proceedings
As noted above (at [4] and [6]), letters of complaint were sent by Ms N and Ms L to the Law Society. As required under s 397 of the Legal Profession Act, the Law Society informed the Legal Practitioner of the complaints and sought his response to them. There ensued a considerable amount of correspondence, copies of which were in the appeal papers.
As also noted (at [8]-[9]), the Council then applied to the relevant tribunals for orders in relation to the complaints.
There were two applications. I shall, for the purposes of these reasons, refer to them as the first complaint (LP 6/08) and the second complaint (LP 1/09). Each had a number of aspects which, though in the first complaint were called particulars, I shall call grounds.
(a) The first complaint
Thus, the first complaint was
The Society complains that the Practitioner is guilty of professional misconduct and/or unsatisfactory professional conduct in that between October 2007 and December 2007 the Practitioner engaged in conduct in breach of Rule 39.1 of the Legal Profession (Solicitors) Rules 2007 in his dealings with the Society in relation to the investigation of a complaint made to the Society by a former client, Ms [N] (the ‘Client’).
The complaint was summarised as “Failure to be open and honest in his dealings with the Society”.
The two grounds, described as particulars, of this first complaint were as follows:
1.The Practitioner represented to the Society that a personal relationship existed with the Client prior to his retainer by the Client as her solicitor in circumstances where a personal, and later sexual, relationship did not develop until after the solicitor/client relationship and by so doing sought to diminish the perception of undue influence which the personal relationship may have had upon the solicitor/client relationship.
2.The Practitioner represented to the Society that he understood he was acting in a pro bono capacity for the Client in circumstances where he was aware that the matter was legally aided.
(b) The second complaint
The second complaint was:
The Society contends that the Respondent has breached either all or one or more of Rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 in the course of acting for Ms [L] between June and October 2007 and his subsequent dealings with the Law Society in relation to the investigation of the complaint made to the Society by Ms [L].
The Society further contends that such breach or breaches amount to professional misconduct or, unsatisfactory professional conduct, justifying an order by the Tribunal.
The three grounds of the complaint were as follows:
Ground 1
Failure to treat his client fairly and in good faith and to act honestly, fairly and with competence and diligence in the service of his client.
Particulars:
1.1The Respondent acted without instructions and, contrary to Ms [L]’s standing instructions in consenting to the restraining order obtained by Ms [L] in the Magistrates Court being set aside by the Supreme Court in substitution for an undertaking.
Ground 2
Failure to be open and frank in his dealings with the Society.
Particulars:
2.1The Respondent represented to the Society that Ms [L] was present at all times in court during the hearing of the appeal by Chief Justice Higgins and gave him specific instructions to consent to the orders which were made in circumstances where Ms [L] was not present and gave no such instructions.
Ground 3
Improper attempt to interfere with potential witness
Particulars:
3.1On or about 2 April 2009, at a time when [Ms A’s lawyer, Mr C] had, to the knowledge of the Respondent, provided to the Law Society a statement concerning the matters the subject of Ground 1 of this Complaint, and was proceeding to prepare and swear an affidavit to be used in these proceedings in relation to Ground 1, the Respondent improperly attempted to intimidate, pressure or dissuade [Mr C] from giving his evidence in these proceedings, or from adhering to the evidence appearing in his statement by:
(a)telephoning [Mr C];
(b)advising [Mr C} that he had obtained a statement from [Mr C] client, [Ms A], in which she accused [Mr C] of appearing in Court on 14 September 2007 without instructions; and
(c)advising [Mr C] that he was considering lodging the statement with the Law Society and that he, the Respondent, wanted to pre-warn [Mr C] about his conduct because the matter would come out eventually at the hearing.
(c) The hearing and decision
The two applications were heard together by the ACAT. The Legal Practitioner filed affidavits made by himself but ultimately did not read them and did not give oral evidence or submit himself to cross-examination. He did read affidavits made by other deponents, who were cross-examined.
The hearing commenced on 28 September 2009 and continued until 2 October 2009. Written submissions were made by both parties and oral submissions were made on 12 November 2009.
On 1 February 2010, the ACAT made the findings to which I have referred above (at [11]. See Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2009] ACAT 2.
The Legal Practitioner sought to appeal against those findings under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). The Appeal President struck out the appeal on 31 March 2010 because it was incompetent.
The ACAT then listed the matter for a further hearing it had foreshadowed on 27 May 2010.
Prior to the further hearing, it apparently became clear that the Legal Practitioner wished to re-open the earlier hearing. That appears to have been announced at a directions hearing held by the ACAT on 21 May 2010 and directions were made about the filing of written submissions about it. Oral submissions were also made on 27 May 2010. On that day, the ACAT dismissed the application to re-open the earlier hearing . It published its reasons on 4 August 2010: Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 45.
It then proceeded on 27 May 2010 with the hearing to determine the orders to be made in relation to penalty or sanction and, on 27 May 2010, ordered that the Legal Practitioner’s local practising certificate be cancelled forthwith and recommended that the name of the Legal Practitioner be removed from the local roll of practitioners maintained by the Supreme Court. See Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 46.
On 13 August 2010, the ACAT ordered that the Legal Practitioner pay the Council’s costs of all hearings, including interlocutory hearings, on a party-party basis as agreed or assessed.
On 31 August 2010, the Legal Practitioner appealed against the various findings of the ACAT.
(d) The appeal
Under s 79 of the ACAT Act, an appeal is made from a decision of the ACAT on an original application within the ACAT to the ACAT constituted under s 81 of the ACAT Act by ACAT members allocated by the Appeal President to review the decision. That is called the “appeal tribunal”.
Under s 83 of the ACAT Act, however, the parties may jointly apply to have the appeal removed to this Court. I have discussed that procedure in Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209. I follow the approach I there took.
On his appeal form, the Legal Practitioner indicated that he wished the appeal to be referred directly to this Court. The Council agreed and, on 13 September 2010, the ACAT ordered that the appeal be removed to this Court. It also stayed the costs order made on 13 August 2010.
The proceedings came before me on 20 October 2011 to decide how the matter should proceed. The Legal Practitioner sought that the proceedings be heard de novo. The Council submitted that it should be a rehearing.
The Council submitted that the proceedings should be heard by a Full Court.
On 23 December 2011, I held that the hearing proceed as a rehearing and that it be heard by a single judge: Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118.
The hearing was conducted on 9 May 2012 and occupied one day. I reserved my decision.
The appeal in the Court
The Legal Practitioner appealed on questions of law and fact.
As to questions of law, the Legal Practitioner raised the following in the Notice of Appeal:
1.The Tribunal erred as a matter of law in holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.
2.The Tribunal erred as a matter of law in holding that it was bound by the line of authority relied upon by the respondent, for example, Re Vernon; Ex parte Law Society of NSW ([1966] 1 NSWLR 511), NSW Bar Association v Meakes ([2006] NSWCA 340), Law Society of NSW v Green ([2008] NSW ADT 149). [I pause to note that the first mentioned case does not appear to exist; I assume that the Legal Practitioner intended to refer to Re Veron; Ex parte Law Society of NSW [1966] 1 NSWR 511.]
3.The Tribunal erred as a matter of law in holding that in order to be satisfied that the appellant had not been open and frank with the respondent it was required to be “comfortably satisfied” that its findings on the charges were “just and correct”.
4.The Tribunal erred as a matter of law in assessing the evidence of the three solicitors who gave evidence for the appellant at hearing by conflating the issue of the weight of that evidence into the issue of its reliability.
5.The Tribunal erred as a matter of law in holding that negative inferences could be drawn from the appellant’s failure to give evidence.
6.The Tribunal erred as a matter of law in finding that there is an expectation that legal practitioners will enter the witness box to provide some explanation for their conduct.
7.The Tribunal erred as a matter of law in finding that the inference to be drawn from the facts is that the appellant’s evidence would not have assisted his case and that this inference is more readily drawn from his failure to give evidence.
8.The Tribunal erred as a matter of law in proceeding upon the basis that a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body and that that duty applied to the proceedings before the Tribunal and that the appellant’s failure to give evidence in the hearing and to subject himself to cross examination justified the Tribunal in making adverse findings.
9.The Tribunal erred as a matter of law in finding that the test to be applied in respect of an allegation of professional misconduct was whether the misconduct could be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable.
10.The Tribunal erred as a matter of law in finding that the misconduct found in respect of the [Ms L] allegations (LP 1 of 2009) amounted to a professional misconduct.
11.The Tribunal erred as a matter of law in having regard to irrelevant matters.
12.The Tribunal erred as a matter of law in not having regard to a number of relevant matters. (Letter to the Society with regards to contacting [Mr C] and the letter to [Ms L] of 14/09/07).
13.The Tribunal erred as a matter of law in not allowing the appellant to re open his case.
14.The Tribunal erred as a matter of law in awarding costs in these matters to the applicant.
As to questions of fact, the Legal Practitioner raised the following in the Notice of Appeal:
The evidence adduced at hearing provides a too fragile a base to sustain the Tribunal’s findings of fact which are against the weight of evidence.
The Legal Practitioner sought to rely on further evidence on the appeal. He also set out in the Notice of Appeal the following reasons said to justify the appeal:
The Tribunal erred as a matter of law in its application of the relevant legal principles and it’s finding of fact and its order should be set aside. The Tribunal erred as a matter of law in refusing the application to re open the case. And or alternatively the penalty imposed was harsh and excessive given the Appellant was the holder of a Restricted practising Certificate at the time of the conduct and had only been practising under supervision for a period of 1 month (LP 6 of 2008). Further the appellant has had no other findings recorded against him an d should have been considered as a first offender none of the above were taken into consideration.
The nature of the appeal
When, as here, the “internal appeal” under s 79 of the ACAT Act from the ACAT to appeal tribunal is referred to the Court, it exercises the jurisdiction of the appeal tribunal of the ACAT.
That jurisdiction is, under s 82 of the ACAT Act, to be exercised by hearing the appeal either “as a new application” or “as a review of all or part of the original decision”.
As noted above (at [36]), I held that the matter should not proceed as a new application. I termed the alternative, described as “a review”, to the rehearing.
I have described the nature of a rehearing in Theodorelos v Nexus Projects Pt6y Ltd [2009] ACTSC 149 at [78].
There is, so far as I can ascertain, no authority on the nature of the review that is to be undertaken if the ACAT does not deal with the matter as a new application.
In Bannister v See (1982) 42 ALR 78 at 81, Toohey J said “[t]he term ‘review’ is not one of precision”. That may easily be accepted. In Australian Telecommunications Commission v Colpitts (1986) 12 FCR 395 at 404, Toohey J, with whom Fisher J agreed, held that the court must find the meaning of “review” in the legislation itself. There, the fact that the Act expressly provided for reference of a matter as an appeal to other bodies established under the Act meant that the instant reference for a review had to mean something different and so held it did not mean an appeal.
Here, however, the section itself refers to “an appeal” by one of the two methods referred to earlier.
It seems clear to me that the first alternative is what is traditionally known as a hearing de novo. See Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297.
Given that approach, it seems to me that the other alternative must be an appeal by way of rehearing.
Without further argument on the issue, I am satisfied that this is how I should approach the task. I will do so.
In his written submissions, and at the actual hearing of the appeal, the Legal Practitioner did not address each of the grounds of appeal in a direct or clear manner, but I will, when dealing with the arguments he made, endeavour to relate them to the grounds of appeal.
The complaints
(a) The first complaint
The Council’s first complaint (LP 6/08) was that, between October and December 2007, the Legal Practitioner engaged in conduct which breached r 39.1 of the Legal Profession (Solicitor) Rules 2007 (ACT) (the Solicitors Rules) in his dealings with the Law Society in relation to its investigation of the complaint of Ms N. The grounds are set out above at [19].
Rule 39.1 is in the following terms:
Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
Factual basis of the first complaint
Ms N said that she met the Legal Practitioner outside the Magistrates Court when she came to support her sister, Ms L, in proceedings involving Ms L, who had been granted a personal protection order and was at the Court to respond to an application by the respondent, Ms A, to have it revoked. The evidence of Ms N originally was that this happened in April 2007, but the only time that the case involving Ms L was relevantly before the court was on 7 May 2007. Ms N made a supplementary affidavit in which she acknowledged that this must have been the date on which the meeting occurred.
Ms N said that the Legal Practitioner had handed her his business card and they spoke about her Family Court matter. A few days later she attended his office to ask him to represent her in the proceedings in the Family Court in which she was seeking custody of her two young children.
She said that she spoke to the Legal Practitioner on a number of occasions over the following weeks and that he appeared knowledgeable about the proceedings. He then agreed to take over the matter from her former solicitor. The matter was legally aided and a transfer of the grant of legal aid effected on 21 May 2007. A letter from Legal Aid (ACT) (Legal Aid) of that date reported the transfer the grant of aid to the firm for which the Legal Practitioner worked. Later, as noted below, the Legal Practitioner also took over the proceedings involving Ms L, and Ms N attended his office with Ms L for their first meeting.
Ms N said that, by this time, she and the Legal Practitioner were having telephone contact about once or twice a week when they would discuss her matter and her sister’s matter. The contact developed into a personal relationship with the Legal Practitioner, who discussed his own custody issues with his children.
In July 2007, Ms N instituted proceedings for divorce and Ms N said that she, Ms L and the Legal Practitioner arranged to have drinks to celebrate that event. Ms L could not ultimately attend and so Ms N and the Legal Practitioner had dinner together. Ms N said that they embraced and kissed. Ms N said that in the weeks ahead, the relationship between the two developed and became a sexual relationship in August 2007. It continued, she said, on that basis throughout September, when Ms N stayed at the home of the Legal Practitioner and was introduced to a number of people as the “girlfriend” of the Legal Practitioner.
Ms N, however, became suspicious of the Legal Practitioner and retained the services of a private investigator to follow him. Those investigations showed him to be at times in the region of Yarralumla.
Ms N obtained the name of his former partner and discovered from the telephone directory her address in Yarralumla and her telephone number. She telephoned the Legal Practitioner’s former partner and had two conversations with her, during which Ms N was told that the Legal Practitioner “lives with me at Yarralumla where he stays during the week”.
On 23 October 2007, Ms N attended the office of the Legal Practitioner and she says he told her, “I am unable to continue the personal relationship as it would affect [my] custody arrangements”, despite having earlier assured her that he would still represent her. She says she left with her file. She said that the Legal Practitioner refused to discuss their relationship with her.
Ms N then made a complaint to the Law Society by letter, which was received by the Law Society on 31 October 2007. It appears that, on that day, a copy of her letter was sent to the Legal Practitioner with a request for comment.
On 12 November 2007, the Legal Practitioner responded. He said that he entered into a personal relationship with Ms N about a month before her family law matter file was transferred to him. He said that Ms N often called him about her case as she was seeing him “approximately two or three times a week” and she expressed dissatisfaction with her then lawyer and pressed him to take over the case.
The Legal Practitioner said that “[d]ifficulties developed in [their] relationship” and he told her he did not want to act for her any longer. He said Ms N then rang the mother of his two children and “commenced to harass” her. He also said that he realised it was “inappropriate” for him to continue to act for Ms N and the matter was transferred to another solicitor.
He also wrote to Legal Aid on 12 November 2007. In that letter he noted the transfer of its grant of aid for Ms N to another firm and continued
As discussed I was always acting for Ms [N] on a Pro Bono basis and even though the grant of Legal Aid was transferred to my firm due to Ms [N]’s insistence we had no intention of ever claiming the grant.
As such the grant made to my firm will not and has not been claimed and the full grant as initially transferred to us is available to the new practitioner to complete Ms [N]’s matter for her. I further confirm that we never intended nor have we ever collected the $90.00 client contribution, as such the new solicitor will need to collect it from Ms [N].
This letter prompted two responses from Legal Aid. It sent a strong letter of rebuke to the Legal Practitioner’s employer, stating that his comments about acting pro bono were “misleading and evasive” as he had at all times “held himself out to the Legal Aid Office as acting in these matters pursuant to a grant of legal assistance”. It then referred to reports the Legal Practitioner made to Legal Aid which, of course, would have breached client confidentiality had Legal Aid not been funding the representation. It also referred to an invoice from the firm for which the Legal Practitioner worked and which invoice had been paid by Legal Aid.
The Legal Practitioner responded to Legal Aid’s letter and he apologised for his “incorrect” letter stating that it had “always been my intention to act for Ms N on a Pro Bono basis.”
Ms N was sent a copy of the Legal Practitioner’s letter of response to the Law Society; she replied to the Law Society, setting out in some detail her answer to his letter. She rejected many of his claims. She confirmed that his personal relationship between them commenced in July 2007 and that this was after she had become his client in May 2007.
She also referred to a telephone call that she had received from Legal Aid in which a solicitor from that office informed her, obviously from the Legal Practitioner’s letter, that the Legal Practitioner had represented her on a pro bono basis. She forwarded to the Law Society a copy of the letter she had received from Legal Aid dated 21 May 2007 transferring the grant of aid to him. She also stated that she paid the required $90 contribution to the Legal Practitioner.
A copy of her letter was sent to the Legal Practitioner on 28 November 2007.
The Legal Practitioner wrote to the Law Society on 12 December 2007. He traversed a number of the claims and responses made by Ms N in her letter.
He referred to the celebratory drinks in connection with her divorce, but said
I further state that Ms [N]’s recollection is incorrect in that in her letter of 31/10/07 paragraph 4 she did not file for divorce in July 2007 we did in fact have celebratory drinks but this was after her divorce was completed and it was in October 2007.
He also said
I deny that my firm ever received the $90.00 contribution from her and I can confirm that no receipt was issued by this office nor was a cheque ever received from Ms [N]. At all times I was under the impression that I was acting Pro Bono for Ms [N] in her matter. To this end even though I had no obligation to do so I repaid ACT Legal Aid out of my personal funds so that my firm, Ms N and ACT Legal Aid were not out of pocket for my error of judgement.
It is difficult to accept that Legal Aid would have made a payment to a firm without receiving an account, and it is difficult to accept that an account could be prepared and sent without the knowledge of the solicitor who performed the relevant work. Indeed, that is what happened. On 23 October 2007, the Legal Practitioner wrote to Legal Aid in the following terms:
I refer to your letter of 21 May 2007.
We withdrew from this matter today as the client took back her file. The matter is substantially completed.
Accordingly I attach our tax invoice of even date. Thank you for referring Ms N to our firm.
He signed the letter which related to the attached account, that charged Legal Aid $1650 plus GST of $165 from which was deducted a “client contribution” of $90. It is difficult, if not impossible to accept that the Legal Practitioner had no knowledge of this.
(b) The second complaint
The Council’s second complaint (LP 1/09) was that the Legal Practitioner breached all, or one or more, of Rule 1.1, 1.2 and 39.1 of the Solicitors Rules in the course of acting for Ms L between June and October 2007 and his subsequent dealings with the Law Society in relation to the investigation of the complaint made by Ms L.
Rules 1.1 and 1.2 of the Solicitors Rules are as follows:
1.1A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner.
1.2A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in the manner and attend to the work required with reasonable promptness.
Rule 39.1 is set out above (at [54]).
The Grounds and Particulars of the second complaint have been set out above (at [21]).
Factual basis of the second complaint
In her letter of complaint dated 19 November 2007, Ms L said that she met the Legal Practitioner on 7 May 2007 while she was attending a hearing of proceedings at the Magistrates Court in which she was involved. She was present with her sister, Ms N, and this meeting is referred to above (at [55]-[56]).
Ms L stated she had been granted, ex parte, a personal protection order under the Domestic Violence and Protection Orders Act 2001 (ACT) against Ms A on 26 February 2007 but Ms A had applied to revoke the order. The application to revoke the order was heard on 7 May 2007. It appears that the application for revocation was not successful.
On 28 May 2007, Ms A appealed to the Supreme Court seeking that the original order made on 26 February 2007 be set aside. The Notice of Appeal was filed by solicitors for Ms A.
Ms L said that she had not been legally represented, but when the Notice of Appeal was served on her and, as she was required to appear in court, her sister, Ms N, mentioned the matter to the Legal Practitioner, who “offered to review [her] case”. He suggested she apply for Legal Aid, which she did, but her application was declined twice. The Legal Practitioner offered to act for her pro bono until Legal Aid was granted.
Ms L said, in her oral evidence, that the Legal Practitioner represented her five times in court. She said that, in October 2007, the matter returned to the Magistrates Court. The Legal Practitioner urged her to re-apply for legal aid funding and she did. It was initially declined but again subsequently granted.
The hearing in the Magistrates Court was listed for 28 October 2007, but on 25 October 2007, the Legal Practitioner informed Ms L that he could no longer represent her as Ms N had made a complaint to the Law Society about him.
The Legal Practitioner then offered to obtain alternative legal representative for Ms L and to seek an adjournment of the proceedings. The proceedings were adjourned to 26 November 2007, but it appears that he made no effort to obtain alternative legal representation for Ms L. Later, Legal Aid effected a transfer of the matter to a new solicitor.
This is the context of the complaint. The complaint itself, however, arose because of the conduct by the Legal Practitioner of the appeal in this Court.
On 19 February 2008, Ms L followed up her complaint with the Law Society. She wrote by email that the basis of her complaint was that the Legal Practitioner had advised her “that [she] would not have legal representation only two days prior to [the] hearing on 29 October, 2007”. She continued, however
[The Legal Practitioner] maintains he has represented me vigorously and on a pro bono basis, when he in fact went against my instructions and had the restraining lifted without my knowledge. He did so as he felt it was a waste of time, while acknowledging it was always my instructions to keep it in place. I discovered the order had been lifted at my next hearing on 22 January 2008. I successfully applied to the Magistrate’s Court to keep the restraining order in place previously, as I feel unsafe without it ...
This refers to a hearing of the appeal proceedings on 14 September 2007, when the Legal Practitioner appeared before the Chief Justice in this Court.
It appears that the appellant, Ms A, wanted some documents produced and sought an order for their production by Application in Proceedings. This was made in the appeal proceedings in this Court, the Application being returnable on that day. The documents she sought were prima facie inadmissible by virtue of s 163 of the Children and Young People Act 1999 (ACT). At the hearing on 14 September 2007, Ms A’s solicitor outlined the position to the court.
When asked to make submissions, the Legal Practitioner stated that there was evidence by Ms L of a report which, by s 163(2), would make at least one document admissible, but then continued and made the following submissions:
[THE LEGAL PRACTITIONER]: Your Honour, in our submission, this matter – we’ve attempted at all times to settle this matter and have it reverted back to the Magistrates Court, at all times. We understand the decision was made on an ex parte basis.
HIS HONOUR: Correct.
[THE LEGAL PRACTITIONER]: We’ve been to ---
HIS HONOUR: It would be open to set aside the ex parte decision.
[THE LEGAL PRACTITIONER]: That’s right, your Honour. We’ve been to our friends on a number of occasions and asked for the matter to be reverted back to the Magistrates Court which is the reason we’re here. We feel we’re wasting a lot of court time ---
After some further discussion, the following exchange took place:
[THE LEGAL PRACTITIONER]: No, your Honour, we were going to consent once the order had been set aside.
HIS HONOUR: Right.
[THE LEGAL PRACTITIONER]: And have it remitted back, but on the understanding that the protection contained in the order would stand until the matter was reheard.
HIS HONOUR: How could that be done?
[THE LEGAL PRACTITIONER]: I’m not sure, your Honour, that’s what we were negotiating with our friend.
HIS HONOUR: I suppose it could be done by way of an undertaking.
[THE LEGAL PRACTITIONER]: Yes, your Honour.
HIS HONOUR: Without admission, of course, and so on and so forth.
[THE LEGAL PRACTITIONER]: Yes, your Honour. The only concern, your Honour, is from our client, the respondent, is the fact that she’s had the order granted by Burns, it’s been ---
HIS HONOUR: By Magistrates Burns.
[THE LEGAL PRACTITIONER]: Yes, from Magistrates Burns, since 26 February.
HIS HONOUR: Yes.
[THE LEGAL PRACTITIONER]: The order’s in place, the order is working. Of course she needs the order, she’s in fear and she doesn’t want to be in a situation whether it’s overturned here ---
...
HIS HONOUR: All right. Well, what you’re saying, correct me if I’m wrong, is that you’re prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to what? Do you have a list of things that you want the appellant to undertake not to do?
[THE LEGAL PRACTITIONER]: Exactly what’s contained in the original order, your Honour.
HIS HONOUR: All right. So to undertake not to behave in an offensive manner towards the applicant. Is that correct?
[THE LEGAL PRACTITIONER]: Yes, your Honour.
HIS HONOUR: Or a harassing manner. Not to be on the premises at Calwell, not to be within 100 metres of the applicant for the order.
[THE LEGAL PRACTITIONER]: That’s correct, your Honour.
HIS HONOUR: Not to contact except at court or except through a solicitor. Well, what’s there basically, that’s what you’re asking me.
[THE LEGAL PRACTITIONER]: Exactly, your Honour. Just after exactly those conditions your Honour.
HIS HONOUR: By way of an undertaking.
[THE LEGAL PRACTTIONER]: By way of an undertaking and then we’ll just have to remit it back to the Magistrates Court.
HIS HONOUR: For a determination as to whether an order should be made afresh?
[THE LEGAL PRACTITIONER]: Exactly, your Honour, on the evidence ---
HIS HONOUR: Whatever evidence might be given by either or both parties.
At 11:12 am, the Chief Justice adjourned the proceedings so that Mr C could obtain instructions on that proposal. The proceedings resumed at 11:36 am, and Mr C advised the court that Ms A would only give the required undertaking if Ms L gave a similar undertaking. After some discussion, however, that requirement was not pressed and his Honour allowed the appeal by consent, set aside the existing order and remitted the proceedings to the Magistrates Court for hearing and determination according to law. His Honour noted the undertaking of Ms A by her counsel in the same terms as those of the protection order that had been set aside. His Honour reserved the question of costs and granted each party liberty to apply in respect to costs.
I note that the Legal Practitioner had, on 29 January 2008, written to the Law Society and made reference to these proceedings.
He then said
In regard to the complaints I can only express my disappointment with the situation. I have acted pro bono for Ms [L] in the Supreme Court and the Magistrates Court. I have fought a bitterly contested matter in the Supreme Court against two senior solicitors from Elrington Boardman Allport and a partner from that firm. I have won all the matters in the Supreme Court and ensured that Ms [L]’s DVO was maintained for her safety, then spent time in the Magistrates Court for her supported her, application for Legal Aid and chased up Legal Aid for her.
...
At all times Ms [L] only ever wanted the order that she had in place to stay in place. I achieved this via the Supreme Court action and by the adjournments in the Magistrates Court. At no time was she disadvantaged by any of my actions. In fact she has had the benefit of the order ever since I came into the matter at no cost at all. For her to say that she has been distressed is false. For her to create false statements is unbelievably disappointing.
It seems to me that his statements do not accurately represent what happened in this Court; contrary to having “won” in this Court, the appeal against the order that Ms L had obtained in the Magistrates Court and which had survived an application for revocation was upheld and the order set aside. It seems to me it was not correct to say “Ms [L]’s DVO was maintained for her safety”, especially as the Legal Practitioner knew that it had been set aside, albeit replaced by an undertaking.
In any event, when Ms L’s email of 19 February 2008 was forwarded to the Legal Practitioner, he responded to the Law Society by letter dated 4 March 2008. He wrote:
I deny ever acting against Ms [L]’s instructions. She has been present at all time (with the exception of the hearing on 29/10/07 when she was ill). The restraining order was never lifted. Ms [L] was present in the Supreme Court when His Honour Chief Justice Higgins at 9.30 am in Courtroom 1 carefully explained to myself and [Ms A’s solicitor] on Friday 14/09/07 that there were undertakings in place that had to be agreed upon by both parties which in fact meant that the restraining order was still in place and would stay in place until the matter was fully decided by the lower court. His Honour explained at length to myself and [Ms A’s solicitor] that the orders had to stay in place and if [Ms A’s solicitor] did not agree to that course of action that he would make those orders. [Ms A’s solicitor] then had a short adjournment and rang his client who was not present in court and eventually agreed to this course of action. His Honour explained to Ms [L] from the bench what this meant she was present at all times.
He wrote again on 1 April 2008. Strangely, given the comments he had made about the orders, he wrote:
It is impossible for court orders or interim orders with regard to Domestic Violence orders to be in place after an appeal in the Supreme Court.
He then repeated and added to what he had written about Ms L’s presence. He wrote:
[Ms L] was present at all times in the Supreme Court on 14/09/07 was consulted with by myself and gave instructions repeatedly and during the short adjournment between 11.12am and 11.36am.
At all times Ms [L] was present during the hearing and gave clear instructions to me. I am happy to obtain an affidavit from [Mr C] to this effect. Ms [L] repeatedly interrupted conversations between [Mr C] and myself and was standing next to me in all of my conversations with [Mr C].
On 4 May 2008, Ms L advised the Law Society that the protection order had not been re-made in the Magistrates Court after the appeal and added that she considered that the Legal Practitioner’s action “of removing the order (against my insistence)” made it difficult, if not impossible, to have the order re-made.
The Legal Practitioner responded again on 7 May 2008 and repeated his assertion that Ms L had been present in court when the orders on the appeal were made.
On 30 June 2008, the Complaints Committee of the Law Society dismissed Ms L’s complaint. The Law Society wrote to her, setting out the reasons. In relation to the complaint of misleading the Legal Practitioner’s client, Ms L, the Law Society wrote
In response to the complaint [the Legal Practitioner] produced a transcript of the proceedings before Higgins CJ on 14 September 2007 when the undertakings were agreed. You were present at these proceedings. On page 13 of the transcript Higgins CJ made it clear that what was being agreed to was that you would consent to the appeal being upheld, the order being set aside, and the application for the order being remitted back to the Magistrates Court on the undertaking of Ms [A] not to do those things contained in the original order ie not to behave in an offensive manner towards the you.
...
The Committee was not convinced that you were not aware that it was agreed that an undertaking replace the order. The Committee accepted that you may have been unclear about how the undertaking was meant to operate. However, having been present in court when these matters were discussed, you had the opportunity to object to the approach taken by your solicitor and instruct him not to agree to the substitution. There is no evidence that this occurred.
In the circumstances the Committee was of the view that this ground of complaint was not made out.
As a result of receiving this letter, Ms L contacted the Law Society and told them that she was not present at the hearing on 14 September 2007. She confirmed that by email on 2 July 2008.
The Law Society wrote to the Legal Practitioner on 9 July 2008 advising him of this further information and he responded with some vehemence, suggesting that both he and Ms L should provide statutory declarations showing where they were on 14 September 2007 and that would allow “the individual who is misleading the Society to be charged with making a false declaration”.
The Law Society responded and noted that the Legal Practitioner had been “prepared to have [Mr C] provide the Society with an affidavit”. It suggested that he arrange to do so.
On 11 July 2008, the Legal Practitioner advised the Law Society that he had contacted Mr C and reported that the solicitor “had no independent recollection of seeing Ms [L] at court on that day”. The Legal Practitioner repeated, however, that Ms L was at court. He pointed out, in a later letter, dated 5 August 2008, that no assertion had been made that Ms L was not at court despite his continued assertion.
On 23 March 2009, Ms L’s new lawyer signed a statement in which he stated that Ms L had told him on 22 January 2008 that “she was in the Supreme Court with [the Legal Practitioner] on 14/09/07 during the proceedings before the Chief Justice”.
On 2 April 2009, during the investigation of the complaint by the Law Society, the Legal Practitioner telephoned Mr C and told him that he had a statement from Ms A that he “could lodge with the Law Society at any time” and that it suggested Ms A’s lawyer had acted without instructions. This was the subject of the third ground of the complaint.
The evidence
It is desirable to summarise the evidence given before the ACAT at the hearing of these complaints.
(a) The first complaint
Affidavits of Mr Reis
As would be expected, an affidavit of the Professional Standards Director of the Law Society, Robert Reis, made 20 February 2009, was filed. In it he deposed to the admission of the Legal Practitioner, the issuing to him of a practising certificate and his employment status. He deposed further to the decision of the Council to refer the complaint to the Tribunal. He then annexed to his affidavit the relevant correspondence.
In particular, annexed to the affidavit was the original letter of complaint by Ms N to the Law Society of about 30 October 2007 and the response of the Legal Practitioner of 12 November 2007. It was in this letter that the Legal Practitioner first stated that he and Ms N had entered into a personal relationship “approximately one month before her family law case was transferred” to him.
Also annexed was the letter of the Legal Practitioner to Legal Aid, dated 14 November 2007, in which he stated that “[i]t was and always has been my intention to act for Ms [N] on a Pro Bono basis” and with which he sent the cheque reimbursing Legal Aid for the costs paid by it to the firm by which he was employed.
Ms N’s letter of 27 November 2007 to the Law Society denying that the personal relationship developed before she became a client of the Legal Practitioner was also annexed.
The further response of the Legal Practitioner dated 12 December 2007 was annexed in which he stated that Ms N was incorrect and repeating that he had met her, and her sister, Ms L, outside court 3 of the Magistrates Court in April 2007 and “a personal relationship quickly developed soon after that meeting”. He asserted that Ms N and Ms L attended his office on 9 May 2007 to have Ms N’s family law matter discussed.
In this letter, the Legal Practitioner states “At all times I was under the impression that I was acting Pro Bono for Ms [N] in her matter”. This is a curious assertion given that he asserted, both in this letter as well as a later letter (see below at [117]), that he became Ms N’s solicitor upon the transfer to his firm of the grant of legal aid.
A letter from the Legal Practitioner, dated 15 September 2008, to the Law Society was also annexed. In it, he suggests that Ms N became his client upon the transfer of the grant of legal aid to him on 21 May 2007. I do not accept that this is so. He had discussions with Ms N on 9 May 2007. It can only be concluded that, as a result of those conversations, Ms N sought to have the grant of legal aid transferred to the Legal Practitioner who was, therefore, held out as her solicitor. Ms N wrote to Legal Aid on 14 May 2007 seeking to have the grant of aid transferred to the Legal Practitioner. She wrote again on 17 May 2007, after the transfer had been declined, seeking that her application be reconsidered. In that letter, she referred to some investigation and the preparation of a family report. She continued: “[the Legal Practitioner] has this organised that [Dr Bruce Walter] that would do the family report for us”.
While that is not directly relevant, since the precise date upon which the solicitor/client relationship was established is not critical, the Legal Practitioner said the personal relationship was established by about late April, and Ms N said in about July. It is relevant, however, that the Legal Practitioner referred to telephone calls made between the two, suggesting that these were indicative of a personal relationship rather than a professional one. Only one call between the two, shown in the records provided to the ACAT, pre-dated 21 May 2007 and, in any event, that call was on 9 May 2007, when it is agreed that Ms N saw the Legal Practitioner on a professional basis; the rest of the records show that the calls between them were all made after 21 May 2007; the record of these calls, of course, is neutral as to whether they were personal or professional.
A letter of particulars from the Law Society’s lawyers was also annexed. There is some relevance to the particulars in this appeal, so I set them out in full as follows:
Ground 1:
1.By the Practitioner’s letters to the Society dated 12 November 2007 and 12 December 2007, the Practitioner represented that he was involved in a personal relationship with the Client prior to the commencement of the solicitor/client relationship on 9 May 2007 when the Client attended the Practitioner’s office to discuss her family law matter (your letter of 12 December 2007) and prior to the transfer of the legal aid grant on 21 May 2007 in circumstances were a personal relationship and more relevantly, a sexual relationship did not develop until early August 2007.
2.The intended effect of this representation by the Practitioner, namely, that the personal/sexual relationship pre-dated the solicitor/client relationship was to avoid an allegation of inappropriate conduct which may have been made if the reverse was the case.
3.In the result, the Practitioner failed to be open and frank in his dealings with the Law Society.
Ground 2:
1.By his letter dated 12 December 2007, the Practitioner represented that he was under the impression that he was acting in a pro bono basis for the Client in circumstances where he was aware that the matter was legally aided by virtue of the transfer of the legal aid grant by letter from Legal Aid dated 21 May 2007 and by payment of his firm’s account by the Office.
2.The Practitioner refunded the legal aid fees after the complaint to the Society by the Client.
The Legal Practitioner sought, by letterdated 1 December 2008, to controvert these allegations and, inter alia, sought agreement that he met Ms N outside the Magistrates Court in early April 2007. By letter dated 2 December 2008, the Law Society’s lawyers stated that:
1.1The Society’s case is that you first met Ms [N] in the Canberra Magistrates Court when she accompanied her sister, Ms [L] who had matters before the Court. The meeting took place in April 2007 although the Society is not at this stage aware of the precise date.
1.2The Society further contends that a solicitor/client relationship was established on 9 May 2007 when Ms [N] consulted you in your office.
1.3At that point, although there may have been obvious prior personal contact between you and Ms [N], that conduct did not constitute the establishment of a personal relationship in the context in which the complaint was made to the Society i.e. it was not a personal/intimate/sexual relationship. It is a relationship of this nature which Ms [N] in her complaint to the Society alleges impacted upon your capacity to act as her solicitor.
There was further correspondence in which the Legal Practitioner continued to assert that the complaints lacked substance and were misconceived and factually incorrect. It is not necessary to refer to that correspondence further.
Affidavits of Ms N
Three affidavits of Ms N were filed, made on 12 February 2009, 17 June 2009 and 22 September 2009.
In her first affidavit, Ms N set out her contact with the Legal Practitioner when she attended at the Magistrates Court to support her sister, Ms L, in her proceedings concerning the personal protection order. She deposed that she phoned him a few days later and made an appointment to see him. She said that she spoke to the Legal Practitioner on a number of occasions in the following weeks and that he made helpful comments about her family law proceedings. She said he agreed to take over the proceedings.
She deposed that she was told by an officer of Legal Aid that there had been discussions with the Legal Practitioner before the grant of aid was transferred to his firm.
She further deposed that towards the end of June 2007 the Legal Practitioner began to act for her sister in her legal proceedings also.
She described that her relationship with the Legal Practitioner developed and that he, her sister and she planned to celebrate the institution of her divorce proceedings in early July. Her sister could not come, but she and the Legal Practitioner went out for dinner and he told her he wanted a relationship and suggested that to her. That evening, she and the Legal Practitioner kissed and embraced. She further deposed that the relationship developed and became a sexual relationship two weeks later, when they had sex in his office.
She then deposed to the deterioration of the relationship and its termination, her complaint to the Law Society and some other matters not presently material.
In her first supplementary affidavit, Ms N deposed that she had identified her first meeting with the Legal Practitioner in her earlier affidavit as being in April because this was when she understood her sister had been in court and that she accompanied her. She now understood that this occasion was on 7 May 2007 and said that this was when she was in court; she was not in court on any other occasion for these purposes.
Her third affidavit responded to evidence in affidavits filed by the Legal Practitioner and I will deal with it in that context.
There were, however, two matters to which she deposed, which it is appropriate to note here. She deposed to having paid $90 to the Legal Practitioner, being the legal aid contribution. I note that, in the account sent by the Legal Practitioner to Legal Aid, this amount is shown as having been deducted from the amount sought from Legal Aid in the account. She also identified the date of the dinner with the Legal Practitioner by virtue of the application she had made for divorce, a copy of the application for which was annexed and showed it to have been lodged on 3 July 2007.
Affidavits of Ms L
Ms L made three affidavits. Although they principally related to the second complaint, the first one did address one issue relevant to this complaint. In her first affidavit of 6 April 2009, Ms L deposed that she first met the Legal Practitioner on or about 7 May 2007, at the Magistrates Court.
Tender Bundle
The Council also tendered a large number of relevant documents in a Tender Bundle that was marked as an exhibit. I refer to the documents where relevant.
Affidavits relied on by the Legal Practitioner
It was not clear from the Appeal Papers nor from the transcript of the proceedings, which affidavits were read by the Legal Practitioner. I have assumed that where an affidavit appears in the Appeal Papers, and the deponent was cross-examined, it was read. Certainly I can assume that where an affidavit was not reproduced in the Appeal Papers and the deponent was not cross-examined, it was not read, even if some reference was made to it, as there were, in argument at some points, references to affidavit material of the Legal Practitioner.
The Legal Practitioner read four affidavits, relating to this complaint. The first affidavit was filed by Mr J, also a legal practitioner, and had annexed a statement dated 6 March 2009. The statement was to the effect that he met the Legal Practitioner with Ms N as they were leaving work. His best recollection was that it was in early April 2007. The Legal Practitioner introduced Ms N to Mr J as they were going to the Uni Pub.
Ms N in her answering affidavit deposed that she did not meet Mr J in April 2007 but in mid to late July 2007. She deposed that it was at about 6:00 pm on the relevant day.
The next affidavit was made by Mr F, also a legal practitioner, to which was also annexed a statement dated 4 March 2009 and which he deposed was true. In the statement, Mr F said that he had asked the Legal Practitioner to act for one of his clients in February 2007; the client was Ms N’s son. He said that, in early April 2007, the Legal Practitioner introduced him to Ms N as his “new girlfriend”. He said the meeting took place before the Legal Practitioner went overseas for a holiday at the end of April 2007. He deposed that he saw Ms N with the Legal Practitioner on a number of subsequent occasions.
Ms N in her answering affidavit said that she had no recollection of being introduced to Mr F in early April 2007, and never by the Legal Practitioner as “his new girlfriend”. She deposed that she was introduced to Mr F in a local cafe where the Legal Practitioner had taken her to lunch; Mr F was already there dining with two women.
The third affidavit was made by Mr R, also a legal practitioner, who also annexed a statement, dated 11 March 2009 to his affidavit. He deposed that the statement was true. In the statement, he said that the Legal Practitioner introduced Ms N to him in or about April 2007 “as his girlfriend”. He said there was very little conversation, only simple pleasantries were exchanged. He saw Ms N with the Legal Practitioner on other occasions in or about April 2007 and on one occasion saw them holding hands.
In her answering affidavit, Ms N agreed that she had been introduced to Mr R as the Legal Practitioner’s girlfriend, but in July 2007 and not April 2007.
Affidavit of Mr A
Included in the Appeal Papers is an affidavit, relevant to both complaints, made by Mr A, the partner of Ms L, and who was the son of Ms A.
The status of this affidavit is entirely unclear as there was, so far as I could see, no reference to it in the transcript of the proceedings before the ACAT, especially not to it being read. The deponent was not cross-examined.
It seems highly unlikely that the evidence was admitted by the ACAT without cross-examination, given what the deponent said.
There was no reference to this evidence in the reasons of the ACAT, suggesting that the affidavit was not actually before the ACAT. Further confirmation is that, after the deponents to the affidavits, who were cross-examined, had concluded their evidence, the Legal Practitioner’s counsel announced the closure of his case without reference to this affidavit. I will ignore the affidavit.
Cross-examination
Each of the deponents to the various affidavits, apart from Mr Reis, was subject to cross-examination.
(i) Cross-examination of Ms N
Ms N was cross-examined quite extensively, but it is not necessary to summarise all aspects of the cross-examination. Ms N was questioned, in detail, about the court proceedings on the day she attended at the Magistrates Court, but it was clear that she did not have a good understanding of the court processes in which her sister was involved and that she did not take much interest; she was there purely as a support for her sister.
She was aware, however, that her sister had no lawyer until the Supreme Court proceedings.
Ms N re-iterated that she first met the Legal Practitioner in the precincts of the Magistrates Court when she was supporting her sister, Ms L, who was there in connection with her sister’s personal protection order proceedings. She was asked about her sister’s children, and agreed that they had been involved in court proceedings relating to criminal offences but denied that she had ever been to court to support them or with her sister in that connection.
A letter from the Registrar of the Magistrates Court, included in the Council’s Tender Bundle, showed that the proceedings in which Ms L sought a personal protection order against Ms A which Ms A sought to revoke were in court on the following dates: 26 February 2007, 14 March 2007, 26 April 2007 (for a return of subpoena) and 7 May 2007. It was noted that, on 14 March 2007, Ms A appeared but Ms L (who may have been in the precincts of the court) did not. There were no other proceedings in April 2007, and the Legal Practitioner did not suggest that the proceedings on 14 March 2007 were relevant.
Ms N denied that, after she had first met the Legal Practitioner at court, she went back to his office or met him later that day.
Ms N was asked about the discussions at court and said that she had explained to the Legal Practitioner in great detail the circumstances of her litigation and about her concerns about the case. She said that he told her, “There’s numerous things you can do ... But I have to look at the file”. She was then asked about her meeting with the Legal Practitioner at his office and agreed that he “was giving [her] advice as to what [her present lawyer] should be doing in [her] case”. She agreed he was giving her “hints in relation to what [she] should be asking [her present lawyer] to do.” She agreed that she spoke to her current lawyer as a result, telling him to do what the Legal Practitioner had suggested, but that he did not do those things and eventually she withdrew her instructions to him. She told her lawyer at this point in time that he was no longer retained some days before the file was formally transferred to the Legal Practitioner.
She said that, prior to that, the Legal Practitioner had already taken instructions from her as to what she wanted to do in the proceedings.
Ms N denied discussing the evidence she gave before the ACAT with her sister and denied seeing her sister’s affidavits. She also denied having seen the phone records which were tendered in the proceedings.
Ms N was asked about some of the phones to which she had access. She denied using her husband’s mobile phone. She agreed that she did call the Legal Practitioner from her work. It was a little unclear about whether that meant that she used work phones or used her own mobile phone, but while she was at work, though on all the evidence it would appear it meant on the work phone. She denied using her son’s mobile phone. She also said that it was rare for her to text the Legal Practitioner or he to her. She did not know if he had a landline.
She denied having been in a relationship with the Legal Practitioner when he had gone overseas, which the evidence showed occurred between 25 April and 1 May 2007.
Ms N was asked about the evidence of the three lawyers who had said in their affidavits that they had met her and the Legal Practitioner when he introduced her as his girlfriend. She was able to describe each of the lawyers accurately. She maintained that she had not met them until July 2007.
In the case of Mr R, she was a little less certain but maintained that it was not in April 2007. The evidence was:
Do you remember Mr [R]? --- Yes.
You were introduced to him as [the Legal Practitioner’s] girlfriend? --- M’mm.
But you say it was around July 2007? --- Yes.
And when you say around July, might it have been slightly before the start of the month of July? --- Might have been.
How much longer before July might it have been? --- I’m not sure.
Might it have been in June, the first week of June? --- Might have been.
Might it have been in late May? --- No.
Are you sure about that? --- Yes. I think it was July because it was after I filed my divorce, which is early in July. So it would have been probably the middle of July.
Are you now able to say the middle of July? --- I think so. It was about two weeks after my – I filed my divorce, so I’d say, yes, about the middle of July.
Ms N denied using medications that might have affected her memory after 1999. She also denied using any phones, other than her mobile phone, during 2007.
Ms N was not challenged about the fact that her first meeting with the Legal Practitioner had occurred when she was at the Magistrates Court supporting her sister, Ms L.
(ii) Cross-examination of Ms L
Ms L was cross-examined extensively. While some of it touched tangentially on the attendance at court on 7 May 2007, there was no challenge of any kind to her evidence about that. It was also accepted that Ms L did not appear in the Magistrates Court on 26 April 2007. In any event, the Legal Practitioner could not have been at the Magistrates Court on that day as he was then overseas as noted above (at [154]).
(iii) Cross-examination of Mr F
Mr F was cross-examined. He agreed that he was asked by the Legal Practitioner, who was a good friend, to prepare the statement attached to his affidavit but did not know at the time the purpose for which it was to be used. He denied that he had been asked to recall whether he met Ms N in April 2007. He agreed that the statement was requested in February 2009. He said that it was not possible that he was mistaken about his first meeting with Ms N being in April 2007, though he made no note of the meeting. He denied that the meeting was a “passing” occurrence; he said it was a lot more formal because it was connected with his client, Ms L’s son. It was, he said, related to the handing over of that client to the Legal Practitioner, when the client had to face breach action in the Supreme Court.
Notwithstanding that, he said that he had dates from his file and his diary which were accurate, showing when he handed the client over to the Legal Practitioner and that this was the day he met Ms N. In the light of this, it was at least curious that, in his statement, he did not give the actual date, which he said he was able to pinpoint with accuracy, merely stating that it was “early April”. It is also curious that, in his statement, he added that he was “sure it was prior to [the Legal Practitioner’s] departure for an overseas holiday at the end of April 2007” when his diary would have given him the precise date. He did not produce the diary nor his file.
He confirmed again that the meeting occurred before the Legal Practitioner went overseas.
(iv) Cross-examination of Mr R
Mr R was also cross-examined. He agreed that, in the course of his practice in criminal law, he had become “friendly with” the Legal Practitioner. He agreed that he was asked by the Legal Practitioner to confirm the facts set out in his Statement and that he knew that the purpose was for some Tribunal proceedings taken by the Law Society relating to the Legal Practitioner’s dealings with Ms N. He was asked to prepare the statement shortly before 11 March 2009.
He agreed that the first meeting he had with Ms N and the Legal Practitioner was, for the most part, entirely unremarkable. He said that his assertion that it was in April 2007 was a “considered” assertion; he had carefully chosen his words which stated “in or about April 2007”. He said that he thought he was sure that the meeting was precisely in April, but for the sake of being cautious he said he had used the words he had. He agreed that he was fallible, and that he could not be certain about the precise date, but he could exclude the possibility that it occurred in July. He explained that he was selling a property in Brisbane and he received confirmation that the sale was to proceed on the day on which the meeting occurred. He had checked in his diary as to the date in which he received that confirmation. He kept a file note of the confirmation.
I pause to note that this seems an odd comment, for that would lead to him being able to give an exact date for the meeting, rather than his reference, in the statement to “in or about April 2007”. He did not produce the file note or his diary. He did not give an exact date for the meeting. He did not explain either any particular connection between the two events which allowed him to date one by the date of the other.
He agreed, however, that he had not put that reason for identifying the date in his statement nor that he had consulted his diary. When asked why not, he simply said “I decided not to”.
(v) Cross-examination of Mr J
Mr J was also cross-examined. He agreed that he could not remember the exact date of his first meeting with Ms N and the Legal Practitioner, but said that it was before his birthday on 1 May. That birthday was “a significant event”. He agreed that the meeting, however, was not significant, but he did remember it. He agreed that he could be wrong about the date.
Telephone records
Extensive telephone records were produced. They showed that between 1 March 2007 and 31 October 2007 the Legal Practitioner made the following calls on his mobile phone to Ms N on her mobile phone:
March 2007 There were no calls
April 2007 There were no calls
May 2007 The first call on 9 May 2007. There were five other calls after that.
June 2007 There were ten calls
July 2007 There were twenty-three calls
August 2007 There were seventy-one calls
September 2007 There were fifty-three calls
October 2007 There were fourteen calls, the last being on 11 October 2007.
Between 7 April and 7 October 2007, Ms N made the following calls on her mobile phone to the Legal Practitioner on his mobile phone:
April 2007 There were no calls
May 2007 There were five calls, the first on 21 May 2007
June 2007 There were eight calls
July 2007 There were sixteen calls
August 2007 There were seventy-three calls
September 2007 There were fifty-eight calls
October 2007 There was one call.
The records showed that both used their mobile phones regularly during these periods.
(b) The second complaint
In addition to the affidavits of Mr Reis, the Professional Standards Director of the Law Society, the Council filed and read affidavits of Ms N, of Mr C, and of Mr Michael Phelps, Solicitor for the Law Society.
Affidavits of Mr Reis
Mr Reis made two affidavits dated 6 March 2009 and 24 April 2009. The first affidavit set out the professional status of the Legal Practitioner as noted above (at [111]), and annexed relevant correspondence between the Law Society and Ms L and the Legal Practitioner and the Law Society. The relevant content of the correspondence has been extracted above (at [81]-[87], [95]-[103]).
The second affidavit annexed the transcript of the proceedings in this Court on 14 September 2007 and further correspondence between the Legal Practitioner and the Law Society. The substance of the correspondence has been extracted elsewhere in these reasons (at [104]-[108]).
The transcript does not record, as asserted by the Legal Practitioner in correspondence, that the learned Chief Justice spoke to Ms L to explain what had happened. It does, however, record the Legal Practitioner expressly saying “we were going to consent to the [personal protection] order being set aside”. It also records the following:
HIS HONOUR: All right. Well, what you’re saying, correct me if I’m wrong, is that you’re prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to – what? Do you have a list of things that you want the appellant to undertake not to do.
[THE LEGAL PRACTITIONER]: Exactly what’s contained in the original order, your Honour.
HIS HONOUR: All right. So to undertake not to behave in an offensive manner towards the applicant. Is that correct?
[THE LEGAL PRACTITIONER]: Yes, your Honour, correct.
HIS HONOUR: Or a harassing manner. Not to be on the premises at Calwell which are mentioned, not to be within 100 metres of the applicant for the order.
[THE LEGAL PRACTITIONER]: That’s correct, your Honour.
HIS HONOUR: Not to contact except at court or except through a solicitor – well, what’s there, basically, that’s what you’re asking me.
[THE LEGAL PRACTITIONER]: Exactly, your Honour. Just after exactly those conditions, your Honour.
HIS HONOUR: By way of an undertaking.
[THE LEGAL PRACTITIONER]: By way of an undertaking and then we’ll just have to remit it back to the Magistrates Court.
HIS HONOUR: For a determination as to whether an order should be made afresh?
[THE LEGAL PRACTITIONER]: Exactly, your Honour, on the evidence ---
...
[THE LEGAL PRACTITIONER]: My instructions are, from my client, your Honour, that there’s no need for mutuality in the orders because, again, this hasn’t been raised until this point, your Honour. This is the first I’ve heard about any interaction between the clients, your Honour.
It further referred to what Spigelman CJ said in New South Wales Bar Association v Cummins at 284; [19]-[20]
19.Honesty and integrity are important in many spheres and conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
20.There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
Here, the Legal Practitioner has, by the finding of the ACAT, forfeited the right by virtue of the third ground of the second complaint, to be held out as a legal practitioner. It had found
For an officer of the Court to attempt to dissuade, deter or intimidate a witness from giving or adhering to their evidence. In any proceedings, but especially disciplinary proceedings about that very solicitor, is conduct which of itself would justify a finding that a person is not fit and proper to remain on the roll. It is certainly professional misconduct.
If the conduct during the investigation is added, then the conclusion is clear.
So far as the first and second grounds were concerned, however, they also showed, even though characterised as unprofessional conduct, that the Legal Practitioner could not be trusted by his clients or the public, his professional association, the Courts or Tribunals before whom he appears or his fellow practitioners.
That requires removal from the Roll. In the event that this was not appropriate, it was certainly necessary for the Legal Practitioner’s practising certificate to be cancelled.
The penalty decision of the ACAT was well open to it. There is nothing of substance in this ground of appeal.
Written submissions
The written submissions of the Legal Practitioner did address other grounds of appeal though they were not the subject of oral submissions.
Nevertheless, for the reasons referred to by Pullin JA in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management (2012) 42 WAR 287 at 348; [324], I must, at least briefly, address them.
Regrettably, a number of the written submissions were not cross-referenced to the grounds of appeal and it was difficult to see what error they were directed to addressing or asserting.
I will not refer to any written grounds already addressed above.
(a) Mr J’s responsibility to Ms L (arguable part of the factual ground)
The argument here was, as noted by the Council’s counsel, difficult to follow. It seemed to suggest that Mr J breached the instructions of Ms L. It is difficult to see how that could be proved, but, more significantly, it was entirely irrelevant.
The issue seemed to be the submission of the Legal Practitioner that, by 26 November 2007, Ms L was aware that the personal protection order was no longer in place. Even if that is so, that is largely irrelevant.
The Legal Practitioner is simply placing a different interpretation on the facts from that placed on them by the ACAT. He does not, however, as would be expected from a lawyer competently conducting an appeal, make any submissions, much less argument, as to why the interpretation placed on the material by the ACAT was not open to it.
For example, he submits that Mr J was not surprised when told on 22 January 2008 that there is no order but undertakings in place. Having read the transcript of that hearing, I came to the opposite conclusion. Even if that interpretation of the Legal Practitioner is, contrary to my impression, to be preferred, he has not explained why the conclusion the ACAT reached, consistent with that which I also reached, was not open and was an appellable error.
The Legal Practitioner seemed also to be challenging Ms L’s veracity or credibility. The issues he raises, however, do not seem to me to require such a finding, but even if they did, that did not undermine the finding in relation to the first grounds of the second complaint, for there was reliable corroboration in addition to Ms L’s evidence, as I have noted earlier.
So far as this is a ground of appeal, this cannot be upheld.
(b) The situation with Mr A (apparently part of the factual ground and question of law 12)
The Legal Practitioner makes much of the evidence that Mr A, son of Ms A and sometime partner of Ms L, may have given.
The Legal Practitioner asserts that Mr A “was a key witness for [the Legal Practitioner]”. If that is so, it is odd that he was never called by the Legal Practitioner.
Counsel for the Legal Practitioner did initially tell the ACAT that Mr A, as well, it may be noted, as the Legal Practitioner, would be called. In fact, neither were called and no explanation was given to the ACAT as to why that was the case.
The Legal Practitioner then speculated that Ms L had contacted Mr A and caused him to disappear. There was no evidence to support such speculation; certainly there was evidence of contact, but none to suggest collusion between Ms L and Mr A. Given that Mr A’s affidavit was unhelpful to, and in parts inconsistent with Ms L’s case, collusion seems unlikely.
The Legal Practitioner then made a number of unsubstantiated assertions about the nature of the contact between Ms L and Mr A.
The Legal Practitioner submitted that he could not read Mr A’s affidavit “as he [i.e. Mr A] has been interfered with by Ms [L] and cannot attend court”. There is not a shred of evidence to support the allegation which, in any event, is not supported by the law. While ordinarily an affidavit may not be read unless the deponent is available for cross-examination, a court or tribunal can waive such a requirement. See Re O’Neil (deceased) [1972] VR 327 at 333. Of course, the weight attributable to such an affidavit on which the deponent has not been cross-examined is thereby much diminished.
It was not appropriate for the Legal Practitioner to make unfounded allegations of improperly interfering with a witness against Ms L without the soundest of bases for doing so. Insofar as I may take account of the conduct of the Legal Practitioner on the hearing of the appeal, this confirms the correctness of the decision on penalty of the ACAT.
There is nothing in these submissions to show any error in the findings of the ACAT, or show any support for the appeal.
(c) The setting up of Ms A (arguably part of the factual ground)
The Legal Practitioner then made the also extraordinary submission that Ms A had been “set up”. It seemed to rely on evidence not before the ACAT, but speculation by the Legal Practitioner as to the actions of various people whose relationships were merely asserted.
How this was admissible as relevant or credible was never explained. It certainly had no relevance to the appeal.
The Legal Practitioner also submitted that Ms A’s evidence should not have been disregarded by the ACAT. He asserted, without any argument or any explained basis, that she was “a witness of truth”.
The only basis on which the findings of the ACAT that her evidence could not be accepted could be overturned on appeal would be if that conclusion was glaringly improbable or contrary to compelling inferences as explained in Fox v Percy (2003) 214 CLR 118 at 128; [28]-[29]. Not only was that not the position here, but the Legal Practitioner’s counsel himself conceded that Ms A’s evidence could not be accepted.
Again, the Legal Practitioner chose to make allegations of impropriety. He suggested that another lawyer in the firm of Mr C had, due to a “personal involvement in the matter had to cease acting”, without a shred of evidence to support it.
The Legal Practitioner included in his submissions, information about matters in the Family Court that were irrelevant and highly inappropriate. It descended into recounting mere allegations of impropriety. He also asserted that Ms L failed to advise the court when she gained her final personal protection order in the absence of Ms A when, he asserted without any apparent basis that “she knew ... she ... had a duty to advise the court” where Ms A was. There was no evidence to show Ms L had or knew of any such duty.
Again, the making of such allegations in the course of the appeal only reinforces my view of the appropriateness of the penalty recommended by the ACAT.
(d) Grounds 11 and 12
It was not entirely clear what the Legal Practitioner’s submission was as to those issues.
The Legal Practitioner asserted that the ACAT was in error in accepting that Mr J was under the erroneous impression that, as at 22 January 2008, the personal protection order of Ms L was still in place.
The challenge was on the basis that Mr J had signed the order of 26 November 2007 made by the Registrar of the Magistrates Court on which was noted the continuation of the undertaking Ms A had given to the Supreme Court.
This is, however, inconsistent with the clear inference to be drawn from Mr J’s appearance on 22 January 2008 which is, in my view, only consistent with Mr J not knowing that there was an undertaking now in place instead of the personal protection order. There was no evidence from Mr J to the contrary even though he was cross-examined, but not on this issue.
The Legal Practitioner also again addressed the “standing instructions” issue, submitting that because the personal protection order was made ex parte “standing instructions”, namely “to keep [the personal protection order] in place” could not be implemented. It is by no means clear that this is necessarily so, but clients are entitled to give instructions that it may be very difficult or even extremely unlikely to be able to implement. A lawyer’s duty is to explain the problems but then to comply with the instructions to the maximum extent possible, consistent with the law and a lawyer’s ethical obligations.
The Legal Practitioner addressed concerns Ms L had about the difficulty she had in having the personal protection order re-made because of the actions of the Legal Practitioner. He submitted that the result was inevitable. It is not at all clear that this was so. This, however, was irrelevant to the appeal. The breach is constituted by non-compliance with instructions not by any injury suffered by the client or not.
There is no material that could form the basis for any suggestion other than that the ACAT was aware of the true position.
There is no merit in these grounds.
(e) Grounds 5, 6, 7 and 8
The gravamen of the Legal Practitioner’s submissions are almost impossible to discern; they are not articulated in a sensible or coherent way.
The Legal Practitioner accepted that the appropriate standard of proof is the civil standard of proof subject to the moderation to be applied following Briginshaw v Briginshaw. I have dealt with this above (at [266], [482]-[487]).
The ACAT made no error in its application of these principles.
The question of the consequences of the Legal Practitioner not giving evidence is also raised by these grounds. No submissions were made by the Legal Practitioner. It is, therefore, inappropriate that I make final findings.
I do note, however, that there is a long line of authority that holds, quite apart from the operation of the principles in Jones v Dunkel, that there is an obligation of a legal practitioner against whom a charge of professional misconduct (or unprofessional conduct) is shown to be found prima facie to meet the situation by denial or explanation on oath. See Re Veron; Ex parte Law Society of New South Wales at 141-2; Coe v New South Wales Bar Association at [21]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70]-[78]. There is some question as to whether this is correct as a general proposition, expressed by Hodgson JA with whom Beazley and McColl JJA agreed in Council of the New South Wales Bar Association v Power (2008) 71 NSWLR 451 at 467; [26], though the Court there accepted that it was correct in those cases. That it may not be universally applicable, though applicable in some cases, is also to be drawn from Stirling v Legal Services Commissioner [2013] VSCA 374 at [117]-[119].
It seems to me to be well applicable here but I do not need to make any final finding.
The Legal Practitioner has provided no basis for upholding these grounds of appeal.
(f) Grounds 3, 1 and 2
The submissions of the Legal Practitioner were, to say the least, difficult to follow.
They seemed to be a mixture of observation and assertion, directed particularly to the three stated grounds.
The submissions of the Council helpfully identified three issues. I shall briefly deal with each.
The first is the repeated assertion that the Council should have called certain witnesses, namely the woman friend of Ms L, to whom she was talking on the phone early on 14 September 2007, and Mr A.
The Council is not a prosecution agency in the strict sense. It may have some similar duties, but it appears from Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347 at 407-9; [153]-[155], in which the distinction made to the effect in Adler v Australian Securities and Investments Commission (2003) 179 FCR 1 at 150-1; [678] was apparently approved, that its duties are different and should not be equated with those of a prosecutor.
I am not persuaded that there was a duty in the Council to call such witnesses.
The second was that the ACAT should have relied on an inference entitled by the principles in Jones v Dunkel to be drawn because of the failure of the Council to call these witnesses. Given that counsel for the Legal Practitioner expressly announced an intention to call Mr A and did not do so, it seems difficult to see how adverse inferences could be drawn against either party.
As to Ms L’s friend, it seems to me that the Council could have called her, but the other evidence was so strong that any inference that might be drawn would be so weak that it would not undermine the ultimate finding by the ACAT. In any event, I do not consider that the ACAT erred in not drawing such an inference.
The third seems to be that no inference, entitled to be drawn by the principles in Jones v Dunkel, should be drawn against the Legal Practitioner because no prima facie case had been made out.
The Legal Practitioner referred to New South Wales Bar Association v Kalaf (Unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 11 October 1988), in which the court was not prepared to hold that a telephone conversation with Mr Kalaf, on which he based his defence of the disciplinary complaints, had been made or not when the solicitor to whom Mr Kalaf said it had been made was not called.
This, however, is an entirely different case and the issues quite different. As Mahoney JA explained.
But, where the issue is whether a party who has given evidence on oath has lied, where his evidence is not inherently unacceptable, and where a witness who could confirm or deny his evidence is not before the court and could have been, the court must consider carefully whether, in the relevant sense, it is satisfied that the deponent gave false evidence.
This does not seem to me to apply here.
It also seems to me that the premise is not made out, for there was not merely a prima facie case, but a strong case made out against the Legal Practitioner.
The Legal Practitioner has provided no basis for upholding any of these grounds of appeal.
(g) Grounds 9 and 10
These grounds address the question of the test to be applied in determining whether the complaints involving Ms L and Ms A’s lawyer amounted to professional misconduct.
The submissions were odd because, even though they were made by him, the submissions themselves answered these questions against the Legal Practitioner. For example, as to ground 9, the Legal Practitioner’s submissions included the following:
The common law concept of ‘professional misconduct’ is relatively well settled. It derives ultimately from Allinson v General Council of Medical Education & Registration [1894] 1 QB 750. It has been applied to both barristers and solicitors. In its application to barristers it is formulated in the following terms: (as explained by Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203): professional misconduct on the part of a barrister consists in behaviour on the part of the barrister which would reasonably be regarded as disgraceful and dishonourable by his or her professional brethren of good repute and competency.
Although the ‘Allinson’ formulation is not intended to be exhaustive (a fact noted in Costello at 207), and it does not directly address lesser forms of misconduct (now possibly caught by the statutory definition of ‘unsatisfactory professional conduct’), it tends to inform the approach of both the Supreme Court and Legal Services Tribunal to concepts of misconduct generally.
This was, of course, the formulation applied by the ACAT. That it could do so is clear from the statutory definition of “professional misconduct” set out in s 387 of the Legal Profession Act as follows
387 What 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.
As can be seen, the definition is an inclusive one; the common law is not excluded.
The submissions appeared to suggest that the ACAT could not find that the Legal Practitioner had lied and so the conduct was not so serious as to meet this test.
I do not need to rehearse the facts and evidence. The most serious matter was the threat to Mr C. There was no doubt, and indeed it appeared to be conceded by the Legal Practitioner’s counsel at the sanction phase of the hearing before the ACAT, that to threaten a witness with a view to affecting his or her evidence in proceedings is professional misconduct.
I respectfully agree with the submissions of the Council that the Legal Practitioner was lucky to have been found only guilty of unprofessional conduct in his deliberate misrepresentations to the Law Society. They were, in any event, serious.
I have set out above (at [342]) the breaches of trust that these and the first and second grounds of the second complaint constituted.
There is no merit in these grounds of appeal.
(h) Ground 13
The whole of the Legal Practitioner’s submission on this ground was “Reliance is made on the Case of Smith”. That was unhelpful, but was dismissive of, and discourteous to, this Court.
I have read carefully the reasons of the ACAT for refusing leave to re-open. They are cogent and, so far as I can discern, disclose no error. These are consistent with the approach of the High Court in Smith v New South Wales Bar Association.
There is no merit in this ground of appeal.
(i) Ground 14
Again the Legal Practitioner’s submissions were undeveloped, dismissive and discourteous. They were in total “Reliance will be on the ACAT cases where all or part of the charges were not proven”. No reference was made to specific cases and no particulars were given of what part of the complaints were not proven, if that is what was intended.
Section 433(1) of the Legal Profession Act provides
If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.
There were no exceptional circumstances here. The decision of the ACAT on costs was correct.
There is no merit in this ground of the appeal.
Conclusion
The appeal must be dismissed with costs.
The proceedings should be remitted to the ACAT so that the orders the subject of the appeal can be effected.
I certify that the preceding five hundred and ninety-four (594) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Associate:
Date: 6 February 2014
Counsel for the appellant: In person
Counsel for the respondent: Mr N Beaumont
Solicitor for the respondent: Phelps Reid
Date of hearing: 9 May 2012
Date of judgment: 6 February 2014
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