The Legal Practitioner v The Council of the Law Society of the Act
[2018] ACTCA 26
•29 June 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | The Legal Practitioner v The Council of the Law Society of the ACT |
Citation: | [2018] ACTCA 26 |
Hearing Date: | 10 August 2017 |
DecisionDate: | 29 June 2018 |
Before: | Mossop and Collier JJ, Robinson AJ |
Decision: | 1. Appeal dismissed with costs. |
Catchwords: | PROFESSIONS AND TRADES – LEGAL PRACTITIONER – Appeal from single judge of the Supreme Court – findings of unsatisfactory professional conduct and professional misconduct – reference in judgment to unsatisfactory professional conduct rather than professional misconduct – whether slip rather than intentional finding – whether primary Judge failed to consider professional misconduct provisions in the Legal Professions Act 2006 – whether primary Judge erred in finding cumulative effect of practitioners errors amounted to unsatisfactory professional conduct as opposed to “mere lapses” or “innocent mistakes” – grounds of appeal not substantiated – numerous other grounds of appeal vague or without merit – appeal dismissed |
Legislation Cited: | ACT Civil and Administrative Tribunal Act 2018 (ACT), s79 Legal Profession Act 2006 (ACT), ss 11, 383, 384, 386, 387, 387(1), 387(1)(a), 387(1)(b), 387(2), 389, 393, 425(3)(c), 431(3), 462 Legislation Act 2001 (ACT), s104(1) |
Cases Cited: | Allinson v General Council of Medical Education and Registration [1984] 1 QB 750 Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148 Sleiman v Murray [2010] ACTCA 2 |
Texts Cited: | Dal Pont, G, Solicitors Manual (LexisNexis, 2017) |
Parties: | The Legal Practitioner (Appellant) The Council of the Law Society of the ACT (Respondent) |
Representation: | Counsel J O’Keefe (Appellant) N Beaumont SC and T Power (Respondent) |
| Solicitors John O’Keefe & Co (Appellant) Phelps Reid (Respondent) | |
File Number: | ACTCA 49 of 2015 |
Decision under appeal: | Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 5 November 2015 Case Title: Legal Practitioner v Council of the Law Society of the ACT Citation: [2015] ACTSC 316 |
THE COURT:
Before the Court is a notice of appeal filed on 21 April 2016 by a legal practitioner. The legal practitioner (appellant) held an unrestricted practising certificate as a legal practitioner in the Australian Capital Territory, and was the principal of a law firm practising in the ACT. On or about 19 November 2009, the Council of the Law Society of the ACT (Law Society) filed an application for disciplinary action in the Australian Capital Territory Civil and Administrative Tribunal (ACAT, alternatively the Tribunal). In summary, the Law Society claimed the appellant had engaged in conduct in breach of rr 1.1, 1.2 and 36.1 of the (now repealed) Legal Profession (Solicitors) Rules 2006 (ACT) (LP Rules), which amounted to professional misconduct or unsatisfactory professional conduct.
On 16 May 2012, ACAT found the appellant guilty of one instance of unsatisfactory conduct and two instances of professional misconduct: Council of the Law Society of the ACT & The Legal Practitioner X (Occupational Discipline) [2012] ACAT 34. In a subsequent related decision of 31 August 2012, ACAT ordered, pursuant to s 425(3)(c) of the Legal Profession Act 2006 (ACT) (the Act), that the appellant not be granted a local practising certificate for three months, and recommended that the name of the appellant be removed from the local roll of practitioners pursuant to s 431(3) of the Act: Council of the Law Society of the ACT & The Legal Practitioner X (Occupational Discipline) [2012] ACAT 60.
The appellant sought orders from a Judge of the Supreme Court to set aside the ACAT decisions. This appeal concerns the decision of the primary Judge to refuse to set aside the decision of ACAT of 16 May 2012.
Background
In 2007 the appellant acted for two clients, referred to in the judgment of his Honour as SD and MG, in respect of the joint purchase by them of a residential property in the ACT. Settlement of this transaction took place on 9 November 2007. The appellant also acted for MG on a sale of a separate property in her name.
Although SD’s middle name was included in his description in the mortgage document, his middle name was not included in the transfer delivered to the mortgagee of MG and SD on settlement. It appears that, as a result, the transfer and security documentation could not be registered by the mortgagee with the ACT Land Titles Office. On 21 February 2008, the solicitors for the mortgagee wrote to the appellant’s firm, explaining that they were unable to register the mortgage because of the different descriptions of SD. They stated that an amended transfer incorporating SD’s middle name was required, and asked the appellant for the original contract of sale of the property.
There was controversy before ACAT as to whether the appellant received this letter of 21 February 2008. Certainly the appellant did not forward the contract of sale to the mortgagee’s solicitors in response to the letter. The mortgagee’s solicitors wrote to the appellant’s firm again on 21 April 2008, in similar terms to their earlier letter. The mortgagee’s solicitor further explained that the matter required urgent attention because MG and SD were in breach of the terms of their loan contract, and sought response from the appellant within seven days.
The appellant responded to that letter of 21 April 2008 by his own letter of 28 April 2008, but incorrectly sent the mortgagee’s solicitors a contract relating to another transaction involving the sale of another property of MG.
There was further controversy before ACAT as to whether there was contact between the appellant and the mortgagee’s solicitors between 28 April 2008 and early September 2008. The mortgagee’s solicitors alleged that they made telephone calls to the appellant during that time, which the appellant denied.
It came to the attention of MG and SD that there was a problem concerning the property when they received a rates notice on or about 7 July 2009 addressed to the previous owner. On 19 August 2008, they sent a fax to the appellant inquiring about the documentation relating to change of ownership. It appeared that the appellant was away at that time and did not receive the fax. MG and SD sent a further fax to the appellant on 25 August 2008.
On 5 September 2008, the mortgagee’s solicitor wrote to the appellant again, and requested that the correct contract be provided to them.
On 30 September 2008, SD emailed the appellant, referring to a conversation between them in which the appellant allegedly told SD that he had sent the relevant information to the Titles Office, and asked for a copy of this alleged communication. The practitioner emailed SD that he would attend to SD’s enquiry as soon as possible.
On 20 October 2008, the appellant emailed SD informing him that the appellant intended to go to his archives on 26 October 2008 to locate the file relating to the sale of the property to SD and MG. SD requested the appellant give the matter more urgency. The appellant informed SD that he had looked for the file, but was unable to locate it.
On 28 October 2008, following further communications between the appellant and SD, the appellant informed SD that the mortgagee’s solicitors were “attending to this matter” and that those solicitors had lodged the transfer of property.
On 30 October 2008, SD emailed the appellant stating that the mortgagee’s solicitors had not received the contract and that the title to the property was still not in their names. SD sent a further email to the appellant on 9 November 2008, stating that the title was still not in the names of himself and MG, and indicated that he intended to seek a refund of fees paid to the appellant.
Between 11 November 2008 and 21 November 2008, there was extensive correspondence between SD and the appellant, in which the appellant said, inter alia, that the mortgagee’s solicitors had not asked for a copy of the original contract of sale until 28 April 2008, that the original contract of sale was not necessary for the transfer of title, and that the mortgagee’s solicitors had not told him until September 2008 that he had provided them with the wrong contract of sale.
On 23 November 2008 the appellant wrote to SD, stating as follows:
I can now say that [the mortgagee’s solicitors] have sent two letters to us on 21 February 2008 and 21 April 2008.
We agree that we have not acted promptly in attending to the requests made by [the mortgagee’s solicitors] in their 2 letters.
We agree that the issuance of your title deed was delayed owing to our lapse of attending to the matter.
We agree that you have suffered economic loss as a result, especially in regards to the rates payments, as interest has accrued for the non-payment of rates.
We agree to compensate you for the economic loss, and any other loss, suffered by you.
We apologise for our lapse, which was un-intentional [sic].
SD and MG wrote to the appellant, seeking a refund of his fees, interest incurred on rates and water and sewerage charges, and compensation for the time they had spent endeavouring to resolve the matter. They wrote again to the appellant on 4 December 2008, stating that if the appellant did not pay the costs they sought they would ask the Law Society to review the matter. On 9 December 2008, the appellant offered to settle their claim by refunding 75% of the interest they had paid, a search fee of $20, and an ex gratia payment of $100. MG and SD did not accept this offer and on 10 December 2008, complained to the Law Society about the appellant’s conduct.
On 12 December 2008, the Law Society wrote to the appellant, seeking a response within 14 days in relation to the complaint of MG and SD. The appellant claimed that he did not receive this letter until 18 December 2008.
On 12 December 2008 the appellant wrote to MG and SD reiterating his offer of settlement, and saying further that he was considering writing to SD’s employer and asking whether he had been paid wages for the times he was allegedly working on this matter. MG and SD forwarded this letter to the Law Society on 14 December 2008, claiming that it appeared to be in the nature of a threat to cause embarrassment to SD. The Law Society wrote to the appellant on 16 December 2008 notifying him of the further complaint made by MG and SD.
The appellant wrote to the Law Society on 9 February 2009. In that letter he:
·Agreed that he should have responded promptly to the letter of the mortgagee’s solicitors of 21 February 2008;
·Claimed that the failure to provide the original contract of sale to the mortgagee’s solicitors was an office administrative error;
·Accepted that on 28 April 2008 his firm had sent the wrong contract to the mortgagee’s solicitors;
·Claimed that the mortgagee’s solicitors bore much of the blame for the delay in transferring title to the property to MG and SD;
·Had not intended to threaten or intimidate MG and SD; and
·Claimed that he did not receive the Law Society’s letter until 18 December 2008.
ACAT proceedings
The grounds of complaint ultimately considered by ACAT were as follows:
1.Failure to properly and promptly discharge the retainer from his clients
Particulars:
[The appellant] negligently:
1.1failed to respond to the letter of 21 February 2008 from the mortgagee’s solicitors in circumstances where the matter required urgent attention
1.2forwarded to the mortgagee’s solicitors the incorrect contract.
1.3failed to produce the correct contract for a period of eight weeks from 5 September 2008 to 21 October 2008 in circumstances where the matter required urgent attention.
2.Engaging in misleading conduct
Particulars
2.1In a letter dated 20 November 2008 from [the appellant] to the complainants, [the appellant] deliberately or recklessly misrepresented to his client that:
2.1.1he had not received a letter from the mortgagee’s solicitors dated 21 February 2008 in circumstances where a subsequent letter of 21 April 2008 refers to it;
2.1.2the mortgagee’s solicitors did not provide a reason for the request which was made when the letter of 21 April 2008 clearly did
2.1.3most of the delays in the matter were attributable to the solicitors for the mortgagee in circumstances where the respondent knew that this was not the case; and
2.2The [appellant], by letters dated 21 November 2008 and 9 December 2008 to the complainants and his letter of 9 February 2009 to the [Law Society], deliberately or recklessly repeated the misrepresentation that most of the delays in the matter were attributable to the solicitors for the mortgagee.
3. Engaging in threatening and intimidating conduct
Particulars
3.1By his letter dated 12 December 2008 to the complainants [the appellant] engaged in conduct which was intended to intimidate his clients to dissuade them from lodging a complaint with the Law Society by threatening to contact the employer of one of the complainants.
The appellant appeared in person before ACAT, while the Law Society was represented by Counsel.
ACAT made a number of findings which reflected adversely on the appellant’s credibility. In particular, ACAT:
·rejected the appellant’s evidence that he had not received or read the letters of 21 February 2008 or 21 April 2008;
·rejected the appellant’s evidence that he made a concerted effort between early September and late October 2008 to find and send the original contract sought by the mortgagee’s solicitors; and
·rejected his evidence that, by his letter of 12 December 2008, he had not intended to threaten or intimidate MG or SD but had merely sought to demonstrate that their claim for compensation was unreasonable.
In relation to the application before it, ACAT found:
·Particular 1.1 was substantiated. The appellant had received the letter of 21 February 2008. His failure to respond to it was negligent and not mere administrative error;
·Particular 1.2 was substantiated. The appellant had not provided a positive explanation for sending the wrong contract – the only inference ACAT could draw was that this conduct was negligent;
·Particular 1.3 was substantiated;
·Particulars 2.1.1 and 2.1.2 were substantiated. The appellant had made deliberate or reckless misrepresentations;
·Particular 2.1.3 and particular 2.2 were not substantiated, because ACAT was not satisfied that the appellant did not genuinely hold the view that most of the delays were the fault of the mortgagee’s solicitors; and
·Ground 3 was substantiated. ACAT was satisfied that the appellant’s letter of 12 December 2008 constituted an attempt to coerce and manipulate MG and SD to avoid a complaint.
In subsequently considering the appropriate disciplinary measures in the appellant’s case, in Council of the Law Society of the ACT & The Legal Practitioner X [2012] ACAT 60 ACAT said:
·The primary objectives of the Act are to promote regulation of the legal profession in accordance with the interests of the administration of justice, and to protect the public, rather than to punish the practitioner;
·Specific deterrence of the appellant, as well as general deterrence of other practitioners, were related objectives;
·The appellant had produced material from (inter alia) colleagues, clients and others supportive of his practice and his standing in various areas of his community;
·There had been two prior disciplinary actions involving the appellant in the ACT, and ACAT considered that the appellant’s transgressions in the instant matter were more serious;
·Two more recent disciplinary actions involving the appellant had been drawn to ACAT’s attention;
·The Law Society’s complaint related to a course of conduct arising out of a single instance of conveyancing work undertaken by the appellant;
·The appellant had sustained significant personal losses because he had not had a practising certificate since 30 June 2012. In addition to this the loss of a practising certificate would have a profound effect on a practitioner’s capacity to resume his or her practice, depending on the period of suspension.
·In the unusual circumstances of the case, ACAT considered that the making of an order pursuant to s 425(3)(c) to the effect that the respondent not be granted a local practising certificate for a period of three months from the date of the order was appropriate; and
·The appellant should pay the Law Society’s costs on a party/party basis, but no further financial penalty should be imposed.
Decision of the primary Judge
The appellant appealed the ACAT decisions on both liability and penalty. The appeal was removed to the Supreme Court by order of the Appeal President of ACAT on 20 March 2013.
As Robinson AJ noted in an application for security for costs in this appeal, there was considerable agitation as to the formulation of the notice of appeal from ACAT to the Supreme Court in this proceeding: Legal Practitioner v Council of the Law Society of the ACT [2016] ACTCA 46 at [17]. At some point prior to the hearing in the Supreme Court the appellant was granted leave to file a further amended notice of appeal from ACAT to the Supreme Court. It is highly questionable whether the grounds on which the appellant sought to rely before his Honour complied with rules of Court, and it is apparent that his Honour was required to work through the grounds by reference to submissions in order to make sense of the grounds. At [3] of the primary judgment (reported as Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316) his Honour set out what he understood to be the grounds wherein the appellant argued that ACAT fell into error, namely:
(a)by finding that he had acted negligently by failing to respond to the 18 February 2008 letter;
(b)by finding that he had acted negligently in forwarding the incorrect contract;
(c)by finding that he had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention;
(d)by finding that he both deliberately and recklessly misled the complainants in his letter dated 20 November 2008;
(e)by finding that his allegedly reckless misleading of the complainants in his letter dated 20 November 2008 amounted to professional misconduct;
(f)by not finding that the mortgagee’s solicitors contributed to the delay;
(g)by finding that he had threatened and intimated the complainants in his letter dated 12 December 2008;
(h)by finding that the complainants suffered economic loss; and
(i)by failing to properly consider the unsolicited offer of compensation made by him.
We do not understand there to be any controversy associated with his Honour’s description of the grounds of appeal before him or the case his Honour was required to consider and determine.
At the hearing before his Honour, the appellant also submitted that:
·Although the appellant did not contest the findings of ACAT concerning his failure to respond to the 21 February 2008 letter, his forwarding of the incorrect contract and his failure to produce the correct contract for a period of eight weeks, his conduct taken cumulatively amounted to mere lapses or innocent mistakes;
·His conduct occurred after settlement when he had ceased acting for the clients, and to that extent there could be no duty of care between them;
·ACAT wrongly convicted him of intimidating his client, when he was only “charged” with attempting to dissuade them from making a complaint. In this respect he was denied natural justice;
·It was appropriate for him to bring to his client’s attention that the client was “double dipping” in seeking damages whilst simultaneously working and being paid a salary by the client’s employer;
·The client suffered no economic loss; and
·ACAT failed to have regard to the references he provided, or the voluntary work he had performed.
His Honour examined the nature of appeals commenced pursuant to s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT). He observed that such appeals constituted the exercise of the Supreme Court’s original jurisdiction in place of the internal appeal process of ACAT, and were properly described rehearings (see discussion by his Honour at [74]-[81]). His Honour continued:
82.The principles governing a rehearing are well known. In the absence of wider statutory powers, the appellate court may only intervene to change the decision appealed from where, having regard to all the evidence, the appellant demonstrates some legal, factual or discretionary error by the original decision maker: Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ. In conducting such an appeal, the appellate court proceeds on the basis of the record and any fresh evidence it may admit: Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at [22] per Gleeson CJ, Gummow and Kirby JJ. The appellate court is obliged to conduct a real review of the trial and the first instance reasons, and, within the constraints of the appeal process, to give the judgment that should have been given at first instance.
83.Among the constraints marked out by the appellate process is the need to bear in mind that the appeal court has not seen or heard the witnesses. It is only if, making proper allowance for the advantages of the first instance tribunal, the appellate court concludes that an error has been demonstrated that it is authorised to exercise its appellate function: Fox v Percy at [27]; Lukatela v Birch [2008] ACTSC 99 at [21].
From [85] his Honour turned his attention to the grounds and submissions before him. In summary, the findings of his Honour were as follows.
Ground 1 – the finding of unsatisfactory professional conduct
In relation to Particular 1.1 before ACAT, his Honour found:
·There was evidence before ACAT which entitled it to conclude that both the letters of 21 February 2008 and 21 April 2008 were despatched by the mortgagee’s solicitors to the appellant;
·The appellant’s credibility was of central importance to the resolution of the question of whether he had read or received the letters from the mortgagee’s solicitors, and ACAT made adverse findings regarding that credibility (which were open to ACAT);
·Although the appellant claimed that there was no reason for him not to have acted immediately if he had received the letter of 21 February 2008, there was ample evidence that he took the view that the registration of the title and security documents post-settlement were not his responsibility. To that extent, ACAT was entitled to find, as it did, that the appellant viewed the mortgagee’s solicitor’s difficulties as not his problem;
·The finding by ACAT that the appellant received and read the letter from the mortgagee’s solicitors of 21 April 2008 was inevitable, considering the uncontested fact that the appellant despatched a contract (albeit the wrong contract) to the mortgagee’s solicitors on 28 April 2008. This conduct speaks of a laxity of approach by the appellant;
·Although the appellant complained that ACAT failed to set out how it found negligence, the Law Society was not alleging that the appellant was liable in tort. Rather the allegation of negligence picked up and described the requirement found in the Act that the appellant’s conduct the subject of the proceedings be measured against the test referred to in s 386, namely a standard of competence and diligence that a member of the public is entitled to expect of a competent Australian legal practitioner;
·In any event the appellant accepted that he had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position vis a vis the mortgagee. If the appellant was aware of the problem with registration set out in the letter of 21 February 2008, his failure to act until 28 April 2008 was a breach of his duty to his clients, and fell short of the standard required of him by the Act; and
·No error of fact or law was demonstrated with respect to Particular 1.1
In relation to Particular 1.2, his Honour found:
·It followed from ACAT’s finding that the appellant received and read the letter of 21 February 2008 that he was aware that the mortgagee’s solicitors required the original contract in order to register the transfer and security documents. This was also made clear in the letter of 21 April 2008. The fact that there was a risk to his clients should have been clear to the appellant, and it was astonishing that he forwarded the incorrect contract;
·In the circumstances ACAT was entitled to find that the failure of the appellant to identify and forward the correct contract to the mortgagee’s solicitors was not adequately explained by the appellant. The appellant did not provide a “positive explanation” for his failure – rather his evidence was a mixture of speculation and assumption; and
·The appellant’s assertion that his clients suffered no loss as a consequence of his failure to identify and forward the correct contract must be rejected in light of their liability to pay interest on some accounts.
In relation to Particular 1.3, his Honour found:
·The appellant’s assertion that ACAT “assumed” he did not commence searching for the correct contract until very late was a misrepresentation of ACAT’s reasons. Rather, ACAT carefully analysed the evidence and concluded that it did not accept his evidence that he and his staff searched for the contract throughout September and October 2008. There was ample evidence supporting this conclusion; and
·The appellant misrepresented ACAT’s findings concerning his evidence and the location of the sale file in his office.
Overall, ACAT’s findings on ground 1 displayed no error.
Ground 2 – engaging in misleading conduct
In relation to Particulars 2.1.1 and 2.1.2, his Honour found:
·The appellant’s submission that he could not be found to have made a misrepresentation to his clients about not receiving the letter of 21 February 2008 in his letter of 20 November 2008 because the latter letter did not refer to the former letter must be rejected as sophistry. A partial statement of the truth may constitute a misrepresentation;
·In light of ACAT finding that the appellant had received and read the letter of 21 February 2008, its finding that a number of the representations in the appellant’s letter of 20 November 2008 were misrepresentations was inevitable; and
·There can be no doubt that the appellant’s conduct under this ground constituted unsatisfactory professional conduct.
Ground 3 – engaging in threatening and intimidating conduct
In relation to Particular 3.1, his Honour found:
·ACAT’s finding that the appellant wrote his letter of 12 December 2008 to his clients intending to intimidate them into accepting his offer of settlement and drop their complaint against him was based on facts it found proved. No error in ACAT’s reasoning is revealed;
·The appellant’s complaint that ACAT “convicted” him of “the wrong charge” was without merit;
·ACAT found that the appellant engaged in improper conduct because he intended to intimidate his clients;
·The attempt by the appellant to draw upon criminal law concepts such as mens rea and actus reus was misconceived;
·ACAT did not, as suggested by the appellant, confuse the concepts of “considering” and “intending”;
·The submission by the appellant that ACAT ignored evidence, and selectively accepted evidence for the purpose of finding him guilty, was outrageous and made without any basis in fact; and
·In attempting to coerce and manipulate his clients to avoid a complaint, ACAT concluded that the conduct amounted to professional misconduct. No error was demonstrated by the appellant in the approach of ACAT.
Summarised grounds of appeal before the primary Judge
In relation to grounds of appeal (a)-(i), his Honour said:
125.For completeness, I will address each ground of appeal individually.
(a)Error by finding that the practitioner had acted negligently by failing to respond to the 18 February 2008 letter.
126.There is, I believe, an error in this ground of appeal in that it refers to a letter of 18 February 2008. I assume that what the letter the practitioner intended to refer to was that of 21 February 2008.
127. For the reasons I have given at [88] – [93] above, this ground must fail.
(b)Error by finding that the practitioner had acted negligently in forwarding the incorrect contract.
128. For the reasons I have given at [96] – [99] this ground must fail.
(c)Error by finding that the practitioner had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention.
129.For the reasons I have given at [102] – [104] above, this ground must fail.
(d)Error by finding that the practitioner both deliberately and recklessly misled his clients in the letter of 20 November 2008.
130.For the reasons I have given at [109] – [111] above, this ground must fail.
(e)Error by finding that the practitioner allegedly reckless misleading of his clients in his letter dated 20 November 2008 amounted to professional misconduct.
131.For the reasons I have given at [109] – [111] above, this ground must fail.
(f) Error by not finding that the mortgagee’s solicitors contributed to the delay.
132.In one sense, any delay occasioned by the mortgagee’s solicitors was irrelevant to the function performed by the ACAT. The ACAT was concerned with the practitioner’s conduct in the circumstances that existed at the time. It is very clear that the ACAT was aware of the initial delay between settlement and the mortgagee’s solicitor’s letter of 21 February 2008 and no criticism was levelled at the practitioner about that delay. The ACAT was also aware of the fact that there was a delay between the practitioner forwarding the wrong contract on or about 28 April 2008 at the mortgagee’s solicitors writing to the practitioner to this effect on 5 September 2008. There was evidence, which the practitioner disputed, that telephone calls were made to his firm by the mortgagee’s solicitors during this period, but no finding was made by the ACAT on that issue. The practitioner cannot, however, be absolved of all responsibility for the delay between 28 April and 5 September 2008 as it was his failure to forward the correct contract in the first place that ultimately led to that delay.
133.This ground of appeal must fail.
(g)Error by finding that the practitioner had threatened and intimidated his clients in his letter dated 12 December 2008.
134.For the reasons I have given at [117] – [124] above, this ground must fail.
(h)Error by finding that the practitioner’s clients suffered economic loss.
135.There is no merit to this ground of appeal. It is beyond argument that the practitioner’s clients suffered some loss as a result of the practitioner’s conduct. The practitioner himself recognised this in his correspondence with his clients. At the very least, they suffered loss by having to pay interest on overdue rates accounts.
(i)Error by failing to properly consider the unsolicited offer of compensation made by the practitioner.
136.The ACAT made particular reference to the practitioner’s offer in its reasons regarding penalty on 31 August 2012 at [36]. It was required to do no more. This ground of appeal must fail.
Grounds of appeal in this Court
The grounds of appeal before the Court of Appeal were those taken to have been filed in accordance with the orders of Justice Mossop on 12 July 2017. It is helpful to set them out in full:
…[the Court] fell into error by making the following findings and orders:
Ground 1 – the finding of unsatisfactory professional conduct
1)Wrongfully held that the Tribunal does not need to substantiate the finding of negligence as a tortious liability.
2)Wrongfully held that the breach of s 386 of the Legal Profession Act 2006 (ACT) amounts to a finding of negligence on the appellant’s part; a finding that the Tribunal did not make
Particular 1.2
3)By agreeing with the Tribunal, the Court failed to acknowledge that the appellant provided a positive explanation that the Purchase file had been erroneously stored in a different box.
Conclusion – Ground 1
4)The Court erroneously agreed with the Tribunal that the cumulative effect of the mere lapses/innocent mistakes on the part of the appellant did not constitute mere negligence; but, they amount to unsatisfactory professional conduct.
Ground 2 – Engaging in misleading conduct – Particulars 2.1.1 and 2.1.2
5)The Court failed to find that in Ground 2.1.1, the Tribunal erred in convicting the appellant for an offence that he did not commit.
(i)Failed to hold that the 20 November 2008 letter did not mention the 21 February 2008 letter.
6)The Court erred in holding that just because it found the appellant guilty on Ground 1, it can also find the appellant guilty on Ground 2 (2.1.1 and 2.1.2)
7)The Court failed to find that the Tribunal made a wrongful assumption that the appellant’s omission of the 21 February 2008 letter in his 20 November 2008 letter was a deliberate misrepresentation on his part.
8)The Court erred in holding it was not necessary for the Tribunal to give reasons as to why the appellant was exonerated from Grounds 2.1.3 and 2.2
(i)The Court failed to find that as the Tribunal believed the appellant in Grounds 2.1.3 and 2.2, it should have believed the appellant in Grounds 2.1.1 and 2.1.2
9)Due to the language used (in paragraph 111 of the judgment), the Court seemed to have overruled the Tribunal’s finding of professional misconduct and found the appellant guilty of unsatisfactory professional conduct; it still erred in not acquitting the appellant totally from the two charges, with costs awarded to him.
10)The Court erred in not finding that the Tribunal erred in convicting the appellant not for the actual charge in Ground in [sic] 2.1.1; but for an entirely different charge
(i)In Ground 2.1.1, the appellant’s alleged misrepresentation relates to his misstatement that ‘I did not receive the 21 February 2008 letter’, but, per paragraphs [92](b) and [94](c) of the Tribunal’s Reasons for Decision, the Tribunal found him guilty of ‘deliberate misrepresentations’, for making a different statement.
11)The Court failed to find that in convicting the appellant, the Tribunal wrongly used the words ‘deliberately’ and ‘recklessly’; they were not included in the Application, but only in the Tribunal’s findings.
(i)The findings made under ‘deliberately’ for Ground 2.1.1 and ‘recklessly’ for Ground 2.1.2 could not have led to the same finding of professional misconduct; the two words have meanings of poles apart.
Ground 3 – Engaging in threatening and intimidating conduct
12)The Court wrongfully agreed with the Tribunal’s wrongful finding that the appellant’s evidence that he wrote the letter to ‘teach his clients a lesson’ that ‘double-dipping’ is wrong, is not true.
13)The Court failed to find that the Respondent’s Application against the appellant alleged an ‘intention’ by the appellant to intimidate the client, but, the Tribunal found that the appellant had ‘intimidated’ the former client.
14)The Court erroneously held that the Tribunal was correct in finding the appellant guilty in engaging in conduct with the intention of intimidating the clients, but, the Tribunal’s finding against the appellant was threatening and intimidating the clients.
15)The Court failed to hold that the Tribunal’s belief that the appellant’s conduct amounted to ‘threatening’ because it caused the client embarrassment; and that the actual meaning of threatening conduct is quite different.
16)The Court erroneously held that the Tribunal did not make a finding that the appellant making an offer of compensation to the clients was improper, when the Tribunal did so.
17)The Court failed to find that the in [sic] the appellant’s affidavit he provided a number of genuine reasons that warranted him to write the 12 December 2008 letter (ab 365-367); but, the Tribunal failed to consider them.
18)The Court was wrong in affirming the Tribunal’s finding that the appellant’s letter was of threatening and intimidatory nature, when there was nothing like that in it.
19)The Court erroneously held that the Tribunal took into account of the clients’ 9 November 2008 letter to the Respondent, but, the Tribunal in its Decision articulated that the appellant knew about the client’s intended complaint only on 20 November 2009.
20)The Court agreed with the Tribunal’s erroneous belief that the appellant had the intention to intimidate the clients.
(i)What the appellant stated was that he did not have the actual intention to write to the employer, he was only considering whether or not he should write – to find out the truth.
21)The Court failed to find that although the client claimed $2,892.31 as compensation from the appellant they suffered a zero loss.
22)The Court failed to find that the Tribunal failed to acknowledge that the appellant as a legal practitioner was entitled to make enquiries that he legitimately had and that the appellant had the freedom to write.
23)The Court erred in holding that the Tribunal was correct in finding the appellant guilty of professional misconduct in relation to Ground 3.
24)The Court failed to acknowledge that the Tribunal imposed a very harsh sentence on the appellant.
(i)It failed to give regard to the numerous excellent references that had been issued for the appellant and the appellant’s written and verbal submissions including his written submissions as to Penalty and Costs dated 6 August 2012, especially in pages 5-8 under para 19 Overall Sanctions, and again in pages 10-12 (these have not been considered)
25)The Court ought to have held that the Tribunal should have reduced the costs order made against the appellant, and given him a discount in sentencing:
(i)As Grounds 2.1.3 and 2.2 were dismissed by the Tribunal (about 40% of the time was spent on prosecuting those two Grounds).
(ii)Owing to the appellant’s exceptional good deed of presenting to the Tribunal the 28 April 2008 letter, which was ‘incriminating evidence’ against him, as soon as he found it (on 1 May 2010).
26)The Court failed to give regard to the fact that the appellant did satisfy the Tijong and Fox v Percy tests.
Consideration
Introduction
The judgment the subject of appeal to this Court was itself the outcome of appeals from ACAT to the Supreme Court in the original jurisdiction of the Supreme Court. Recently, in another case involving a legal practitioner challenging adverse orders of ACAT and the Supreme Court under the Act, the Court of Appeal in Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 observed:
18.As a general statement, the Court observes that where an appeal is in essence an appeal from an appeal (in this case an appeal from the decision of Refshauge J who heard an appeal from a decision of ACAT) the appellant is confined to identifying error in the decision in the court below, and is not permitted to mount a fresh attack on the decision of the original tribunal (ACAT). This is not to say of course that errors in the court below dealing with the earlier decision cannot be the subject of complaint. The errors however must be errors of the court below and not be the subject of a renewed assault on the decision of the original court or tribunal.
This observation is equally applicable to this appeal before the Court and we respectfully adopt it.
Not surprisingly, the Law Society was again represented by Counsel in this appeal. However unlike before his Honour where the appellant appeared in person, this Court had the benefit of legal argument presented by Counsel on the appellant’s behalf.
All grounds of appeal were pressed. Extensive written submissions were prepared and filed by the appellant personally, and written submissions were filed by the respondent. As a threshold issue, however, we note three issues in this appeal that are of concern.
First, in his written submissions the appellant did not address the grounds of appeal before this Court. Rather (as was apparently the case before his Honour) he has – again – addressed the grounds of the application before ACAT. While we understand the appellant’s case insofar as he alleges errors made by ACAT, it would have been useful, and appropriate, for the appellant to address his grounds of appeal before this Court (and, in particular, why his Honour erred). As it is, the correlation between the grounds of appeal and the appellant’s written submissions is not obvious. Indeed, the grounds of appeal are drafted like additional submissions to the Court.
Second, many of the grounds of appeal do little more than cavil with the findings of the primary Judge (and, to the extent that his Honour accepted the findings of ACAT – which was almost entirely – the findings of ACAT). The Court has, on numerous occasions, sought to remind practitioners of the shallowness of technique in attempting to persuade appellate Courts of error by a scatter-gun attack on each finding of the primary Judge (or tribunal). Such notices of appeal are not only improperly drafted but betray a laziness of approach. As a general proposition, we consider it very unlikely that the primary Judge could have made in excess of thirty errors in his decision, as alleged by the appellant in the notice of appeal.
Third, and in any event, by cavilling with the factual findings of the trial Judge in this appeal the appellant immediately faces the limitations on the powers of appellate Courts to interfere with primary factual findings, identified in such cases as Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] et seq. More recently French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 explained:
43.The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them.
(Emphasis added.)
The hurdle the appellant faces, as set by Fox v Percy and reiterated in Robinson Helicopter Company, is not low.
Helpfully, at the hearing of the appeal Mr O’Keefe for the appellant focused on issues – and related grounds of appeal – which he described as “critical” (transcript page 10 line 41). These issues can be summarised as follows:
(1) At [111] of the primary judgment his Honour described the appellant’s conduct as “unsatisfactory professional conduct” rather than professional misconduct. His Honour was correct in so identifying the appellant’s conduct, and should have ordered the appeal be allowed to that extent (ground 2 (9)).
(2) Neither ACAT nor the primary Judge had regard to the terms of s 387 of the Act in finding that the appellant had engaged in professional misconduct so far as concerned the appellant’s alleged misleading conduct (ground of appeal 2 (5), (9) and (11) or the appellant’s alleged intimidatory and threatening conduct (ground of appeal 3).
(3) His Honour erred in agreeing with ACAT that the cumulative effect of lapses and mistakes on the part of the appellant amounted to unsatisfactory professional conduct (Conclusion – ground 1 – (4)).
We propose to address these issues (which draw on a number of the appellant’s grounds of appeal) before turning to the remaining grounds listed in the notice of appeal before the Court.
Issue 1 – paragraph [111] of the primary judgment
At [111] of the primary judgment his Honour said as follows:
111.The practitioner has failed to demonstrate any error in the reasoning or conclusion of the ACAT regarding this particular. There can be no doubt that the practitioner’s conduct under this Ground constituted unsatisfactory professional conduct.
The issue here is that ACAT actually found that the appellant’s conduct constituted professional misconduct, rather than unsatisfactory professional conduct. His Honour affirmed this finding.
In response to a question from the Bench concerning whether his Honour’s reference to “unsatisfactory professional conduct” was a slip rather than a finding of his Honour, Mr O’Keefe for the appellant submitted:
Is it a typo or was it a genuine belief of the judge, that the conduct didn’t get over the bar set by section 387? Because if we look at section 387 it has to be unsatisfactory professional conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of confidence. …
(transcript page 12 lines 25-29)
Later in the course of the hearing there was the following exchange:
ROBINSON AJ: The appeal. The appeal was dismissed. That’s the order that you’re appealing from?
MR O’KEEFE: That’s right, yes.
ROBINSON AJ: But if paragraph 111 was read according to its terms the appeal would not have been dismissed.
MR O’KEEFE: No, that’s right, so it’s probably a mistake but I can’t go into the mind of the judge about whether he was confused or ---
ROBINSON AJ: No, but can we go through his reasoning process?
MR O’KEEFE: Yes.
ROBINSON AJ: If his reasoning process points to the fact that the last sentence in 111 is just, as it were, an error of expression, equivalent to a typographical error, can we proceed in that manner?
MR O’KEEFE: It probably is a typo.
ROBINSON AJ: Or in the nature of a typographical error.
MR O’KEEFE: It could be. It could be something more.
ROBINSON AJ: Yes.
MR O’KEEFE: It could be a belief that he held that the conduct wasn’t ---
ROBINSON AJ: But in order to discover whether it could be a typographical error is the right approach to go through the judge’s reasoning process ---
MR O’KEEFE: That’s true.
ROBINSON AJ: --- to determine how he was reasoning and to see whether the last sentence gives effect to his reasoning ---
MR O’KEEFE: We only have to read ---
ROBINSON AJ: --- or does not?
MR O’KEEFE: Yes. We only have to read three paragraphs to do that ; 109 through to 111.
ROBINSON AJ: We might need to take up the references too.
MR O’KEEFE: There’s no doubt his Honour thought it was a misrepresentation. It’s not really clear from his reasoning, your Honour, how he arrives at that statement.
MOSSOP J: He really arrived at it because the practitioner had failed to demonstrate any error in the reasoning or conclusion of the ACAT regarding this particular.
MR O’KEEFE: So that ---
MOSSOP J: Anything that he said after that is just commentary.
(transcript pages 13-15)
As the transcript shows, the submission of the appellant that the primary Judge meant to set aside the finding of ACAT concerning professional misconduct, and substitute a finding of unsatisfactory professional conduct in respect of particulars 2.1.1 and 2.1.2, was pursued by the appellant with marked absence of conviction. Indeed Mr O’Keefe conceded that the primary Judge’s comment at [111] (that the conduct of the appellant constituted “unsatisfactory professional conduct”) was “probably a typo”. We do not find this surprising. Importantly, his Honour prefaced the relevant comment at [111] by finding that the appellant had failed to demonstrate any error in the reasoning or conclusion of ACAT regarding particulars 2.1.1 and 2.1.2 of the grounds of the application before ACAT. That finding, namely that there had been no error in the reasoning or conclusion of ACAT, was the key point his Honour made in respect of that aspect of the appellant’s case before him. As Mossop J observed during the hearing, anything said by the primary Judge after that was merely commentary. Certainly there were no other comments which would indicate a view taken by his Honour that the conduct of the appellant was unsatisfactory professional conduct rather than professional misconduct.
We consider the second sentence in [111] of the primary judgment was a slip. This aspect of the appellant’s case in the appeal is not substantiated.
Issue 2 – alleged absence of consideration of “professional misconduct” under s 387 of the Act by ACAT or the primary Judge
Related to grounds of appeal 2 (5), (9) and (11) and ground of appeal 3 the appellant claims that, while ACAT and the primary Judge found that the appellant had engaged in professional misconduct in respect of his alleged misleading conduct and his alleged intimidatory and threatening conduct, neither ACAT nor the primary Judge had regard to the actual terms of s 387 of the Act in so finding. The appellant submits that, to that extent, both ACAT and the primary Judge erred, and further that if ACAT and his Honour had properly applied the Act they would have concluded that the appellant’s conduct should be treated as no more than unsatisfactory professional conduct. The issue was summarised by Mr O’Keefe for the appellant at the hearing before us where he submitted:
However, I don't retreat from the submission I made that in making that finding ACAT doesn't appear to have addressed 387 and his Honour doesn't appear to have - although he's quoted 387 at the beginning of his judgment in a general way - he doesn't appear to have gone through the process of applying limbs to 387…
It would be my submission that had that been done, if those facts had been applied to the tests in 387, it would not have been found to be professional misconduct. It would have been found to be unsatisfactory professional conduct.
(transcript page 13 lines 3-14)
We note again that the findings of ACAT, and his Honour, were referable to:
·The appellant’s allegedly reckless misleading of the complainants in his letter dated 20 November 2008 that he had not received letter from the mortgagees’ lawyers in circumstances where the matter required urgent attention ( [41], [107]-[111] and [131] of the primary judgment); and
·The appellant’s letter of 12 December 2008 in which he allegedly threatened or intimidated the clients ([112]-[124] and [134] of the primary judgment).
The purposes of Chapter 4 of the Act, which includes both ss 386 and 387, is set out in s 384 of the Act. Those purposes are:
(a)to provide a nationally consistent scheme for the discipline of the legal profession in the ACT, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally;
(b)to promote and enforce the professional standards, competence and honesty of the legal profession;
(c)to provide a means of redress for complaints about lawyers;
(d)to enable people who are not lawyers to participate in complaints and disciplinary processes involving lawyers.
Section 393 provides that a complaint may be made in respect of conduct to which Chapter 4 of the Act applies. Key definitions in this Chapter are set out in s 383, and refer to “unsatisfactory professional conduct” (which is defined in s 386) and the more serious “professional misconduct” (s 387).
Importantly, s 389 of the Act provides that certain conduct is capable of being either unsatisfactory professional conduct or professional conduct. Section 389 provides:
389. Conduct capable of being unsatisfactory professional conduct or professional misconduct
Without limiting section 386 or section 387, the following conduct can be unsatisfactory professional conduct or professional misconduct:
(a)conduct consisting of a contravention of this Act;
Note This Act is defined in the dictionary.
(b)charging of excessive legal costs in connection with the practice of law;
(c)conduct in relation to which there is a conviction for—
(i)a serious offence; or
(ii)a tax offence; or
(iii)an offence involving dishonesty;
(d)conduct of an Australian legal practitioner as or in becoming an insolvent under administration;
(e)conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;
(f)conduct of an Australian legal practitioner in failing to comply with an order of the ACAT made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay all or part of a fine imposed under this Act or a corresponding law);
(g)conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.
Note Various provisions of this Act identify particular conduct as conduct that can be unsatisfactory professional conduct or professional misconduct (see eg s 138 (1) (Obligations of legal practitioner partner relating to misconduct—multidisciplinary partnerships))
“Unsatisfactory professional conduct” includes conduct defined by s 386. Similarly, “professional misconduct” includes conduct defined by s 387. Sections 386 and 387 are as follows:
386. What is unsatisfactory professional conduct?
In this Act:
Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
Note See also s 389 (Conduct capable of being unsatisfactory professional conduct or professional misconduct).
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.
NoteSee also s 389.
…
“Suitability matters” to which s 387(2) refers are set out in s 11 of the Act and include such matters as insolvency, conviction of offences, removal of the practitioner’s name from the local or other rolls, and a catchall provision relating to whether the person is currently unable to satisfactorily carry out the inherent requirements of practice.
Identifying conduct of a practitioner as “professional misconduct” is not limited to assessment of that conduct in terms of s 387, in circumstances where s 387 does not define “professional misconduct” exhaustively. At common law it means conduct which would “reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761, applied in many Australia in cases including Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203; Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [35]-[36]; Clough v Queensland Law Society Inc [2000] QCA 254 at [87]). The inherent jurisdiction and powers of the Supreme Court of the Australian Capital Territory to control and discipline legal practitioners in circumstances where the conduct of practitioners violates or substantially falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competency was recognised in Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 242-243, 245 and Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148 at 153. It is preserved by s 462 of the Act: Law Society of the ACT v Stubbs [2017] ACTSCFC 3 at [29]. (There is no question here, however, that orders of the primary Judge were not referable to this inherent jurisdiction).
The specific rules the Law Society alleged the appellant contravened were rr 1.1, 1.2 and 36.1 of the Rules which provided:
1. Acceptance of Retainer – (Instructions to Act or Provide a Legal Service)
1.1 A 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.
1.2 A 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 that manner and attend to the work required with reasonable promptness.
…
36. Conduct of Practice
36.1 A practitioner should ensure that his or her practice is efficiently and properly administered and should take all reasonable and practicable steps to ensure that professional engagements are fulfilled or that early notice is given if they cannot be fulfilled.
In considering the issue raised by the appellant it is necessary to have regard to the decisions of ACAT and his Honour.
ACAT at [36]-[39] referred to the respective definitions of unsatisfactory professional conduct and professional misconduct, and ss 386 and 387. At [48] it noted the Law Society’s claim of professional misconduct in respect of grounds 2 and 3 before ACAT. ACAT observed:
50.In relation to Ground 2, they suggested that particulars 2.1.1 and 2.1.2 should be considered together, and particulars 2.1.3 and 2.2 considered together. It suggested that when considered together, whether the respondent’s conduct was found to have been reckless or deliberate, the conduct was very serious and should be treated as professional misconduct.
51.In relation to Ground 3, the applicant submits that at the time that he wrote the letter of 12 December 2012, the respondent had no intention of writing to [SD]’s employer and that he told an untruth in order to convince or coerce the complainants to avoid a complaint to the Law Society.
52.At paragraph 82 of the submissions, the applicant submits as follows:
To make such a threat to complainants in order to deter them from making a complaint to the Law Society is very serious. It threatens the integrity of the complaints process, brings the profession into disrepute, and is certainly professional misconduct.
ACAT found that particulars 2.1.3 and 2.2 were not made out. It found otherwise in relation to particulars 2.1.1 and 2.1.2, which provided:
2. Engaging in misleading conduct
2.1In a letter dated 20 November 2008 from [the appellant] to the complainants, [the appellant] deliberately or recklessly misrepresented to his client that:
2.1.He had not received a letter from the mortgagee’s solicitors dated 21 February 2008 in circumstances where a subsequent letter of 21 April 2008 refers to it;
2.1.2The mortgagee’s solicitors did not provide a reason for the request which was made when the letter of 21 April 2008 clearly did
Dealing with ground 2 before it, at [94] ACAT observed:
94.The Tribunal’s findings in relation to the letter of 21 February 2008 are set out in paragraph 65. Against the background of those findings, the first and second representations must be regarded as incorrect and as involving, by necessary inference, misrepresentations concerning the letter of 21 February 2008. Given the Tribunal’s findings, they must be taken to be deliberate misrepresentations.
95.It is clear that it is the letter of 21 April 2008 that the respondent is referring to in his letter of 20 November 2008. The letter of 21 April 2008 contains, on its face, a reason for requesting the contract. It is alleged by the applicant that the respondent’s incorrect assertion that he was given no reason for the request, was either deliberate or reckless. It is a very obvious error for the respondent to have made. The content of the letter of 20 November 2008 and what is known of surrounding events supports the inference that the mis-description was not just careless, but was made with an absence of any care as to the accuracy of the statement.
96.Indeed, in his letter to the complainants of 21 November 2008, the respondent indicated that he had no record of receiving, or recollection of seeing, the letter of 21 April 2012. There was no basis then for him to make any assertion on 20 November about whether he had been given a reason for the request for the contract. On his own case, he had not read the latter and could not recall it. It is open to infer that his assertion was something that was simply made up at the time. At the very least, it was a reckless misrepresentation.
97.The Tribunal finds that particulars 2.1.1 and 2.1.2 are made out.
ACAT found that particular 2.1.3 and ground 2.2 were not substantiated. It generally observed:
114. The application in this matter does not include any general allegation of unsatisfactory professional conduct or professional misconduct. There is no allegation that the respondent’s conduct generally was such that he failed to act in a way that accords with a reasonable standard of competence or diligence. The application is narrowly focussed on particulars that relate to specific matters. It is not open to the Tribunal to go beyond the grounds and particulars relied on by the applicant to make findings against the respondent in respect of matters that were not raised in the application. While section 421 of the LP Act does allow the Tribunal the power to amend an application on its own motion, that is not a power that is easy to exercise before the evidence is heard and submissions made.
Summarising its findings in relation to ground 2, ACAT said:
115. Particulars 2.1.1 and 2.1.2 are established and Ground 2 supported, notwithstanding that the applicant has not discharged its onus in relation to particulars 2.1.3 and 2.2.
116.The conduct of the respondent contravenes rules 1.1 and 1.2. Findings that the respondent has made both deliberate and reckless misrepresentations to his clients have been made. The applicant submits that this should lead the Tribunal to characterise the conduct as professional misconduct. This is not conduct that is about the standard of the practitioner’s work, his diligence or his competence, but about his candour when dealing with his clients. The Tribunal accepts, following the authorities referred to in Riley Solicitors Manual [35,040.5] that this is appropriately characterised as professional misconduct.
It is helpful to note at this point that, set out in full, [35,040.5] of G dal Pont Solicitors Manual (Lexis Nexis, 2017) to which ACAT referred was as follows:
[35,040] False or misleading statements to persons who rely on them
[35,040.5] False or misleading statements to client or other lawyers
The making of knowingly or recklessly false statements, whether written or oral, by a lawyer to third parties, such as other lawyers or even to a client, is prima facie evidence of misconduct. This is because a lawyer’s candour in dealings with his or her own client is essential to building and maintaining a trusting relationship, and likewise lawyers rely heavily on the ability to trust one anothers’ word (see [28,005]).
Findings of misconduct, for example, were made in Mellifont v Queensland Law Society Inc,[[1981] Qd R 17 at 29 per Andrews J] where the solicitor sought to deceive his clients, another solicitor and the Minister for Justice in order to cover his own misconduct, and in Re Wheeler [[1992] 2 Qd R 690] involving a solicitor who knowingly made a false statement to another solicitor on inquiry as to the whereabouts of money paid to the first solicitor by the latter’s client. In the former case the solicitor was struck off, and in the latter the solicitor was suspended for three years. Similarly, in Law Society of New South Wales v MacKenzie [[2003] NSWADT 92] the Administrative Decisions Tribunal included among its findings of professional misconduct a finding in respect of a false statement made by the respondent solicitor to another solicitor. The solicitor had stated, in a letter to the solicitor acting for the plaintiff in local court proceedings, that she had entered a defence when she had not. The tribunal said that the evidence established that the statement was false and “[i]t was clearly calculated to mislead”, declaring that:
The proposition that, knowingly, and in some cases negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully.
The tribunal added that the duty it had described was analogous to a lawyer’s duty to avoid misleading a court (see [22,025]), and the duty to adhere to an undertaking given to another lawyer in the course of practice: see [28,030]. This led the tribunal to order the solicitor’s name to be removed from the roll.
(Footnotes omitted.)
In relation to ground 3 ACAT examined both the evidence and the submissions of the parties, and concluded:
136. In the circumstances of the case, and particularly in view of the sequence of correspondence between the parties between 19 November and 28 November 2008, the Tribunal finds that Ground 3 is made out.
137. The threat was made by the [appellant] on only one occasion and was not carried out. However, it must be viewed seriously since it was an attempt to coerce and manipulate his clients to avoid a complaint. The Tribunal takes the view that this conduct constitutes professional misconduct.
We have already summarised in some detail the reasoning and findings of his Honour. In relation to the current issue:
·His Honour observed at [41] that the Law Society had filed an application for disciplinary action in ACAT on or about 19 November 2009 alleging that the practitioner had engaged in conduct in breach of rr 1.1, 1.2 and 36.1 of the Rules amounting to professional misconduct or unsatisfactory professional conduct;
·His Honour referred to findings of ACAT of professional misconduct on the part of the appellant;
·His Honour at [109]-[111] repeated and examined the submissions of the appellant concerning ground 2, and rejected the appellant’s contention that he had not made misrepresentations to his clients. His Honour found that the appellant had failed to demonstrate any error in the reasoning or conclusion of ACAT in this respect.
·His Honour at [112]-[124] repeated and examined the submissions of the appellant concerning ground 3. In particular his Honour rejected the contentions of the appellant that the findings of ACAT were based on “assumptions”; that ACAT “convicted” him of “the wrong charge”; that ACAT found that the appellant’s offer to settle “the matter” was improper; that ACAT confused the concepts of “considering” and “intending”; that ACAT ignored evidence and selectively accepted evidence for the purpose of finding him guilty; and that ACAT erred by failing to recognise that his clients had spoken of referring the matter to the Law Society on 9 November 2008. His Honour concluded that no error has been demonstrated by the practitioner in the fact finding of ACAT, and, on the basis of those facts, the finding that the practitioner had engaged in professional misconduct was well open to ACAT.
Returning now to the issue raised by the appellant that, in finding that the appellant had engaged in professional misconduct, neither ACAT nor his Honour turned their minds to the tests in s 387 of the Act and we make the following observations.
First, as we have already observed, s 387(1)(a) and (b) does not set out an exhaustive definition of professional misconduct for the purposes of the Act. Section 387(1) clearly states that “professional misconduct” includes the conduct described in subss (a) and (b). To that extent we reject the appellant’s submission that ACAT and his Honour could only find that his conduct was “professional misconduct” if it fell within the parameters of s 387(1)(a) and (b).
Second, ACAT found that conduct of the appellant contravened rr 1.1, 1.2 and 36.1 of the Rules. Rules 1.1, 1.2 and 36.1 impose requirements on practitioners to treat clients fairly and in good faith (1.1), to act honestly and with competence and diligence (1.2) and to ensure that the practice is efficiently and promptly administered (36.1). By operation of s 104(1) of the Legislation Act 2001 (ACT) a reference (either generally or specifically) to a law, includes a reference to the statutory instruments made or in force under the law. It follows that in contravening Rules which were made pursuant to the Act, the appellant had contravened the Act. In contravening the Act his conduct could have been either unsatisfactory professional conduct or professional misconduct in light of s 389 of the Act. Indeed the appellant conceded that contravention of rr 1.1 and 1.2 could constitute unsatisfactory professional conduct within the meaning of s 386 (transcript page 12 lines 17-21, 39).
Third, conduct which would otherwise be “unsatisfactory professional conduct” is elevated by subs (a) to professional misconduct where it involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. Although the language of ACAT in its decision was not directly referable to subs (a), it found that the appellant’s conduct was deliberate, reckless, and constituted professional misconduct. It also specifically adverted to authorities in the Solicitor’s Manual where Courts had found that practitioners had engaged in professional misconduct where they had made misleading statements to clients and other practitioners.
It is clear that ACAT considered the appellant’s conduct serious, and to that extent elevated from the level of “unsatisfactory professional conduct” to “professional misconduct”. We are satisfied that the findings of ACAT were consistent with a conclusion that the appellant’s conduct demonstrated a substantial failure to maintain a reasonable standard of competence and diligence, as contemplated by s 387(1)(a). That ACAT did not specifically refer to s 387(1)(a) is not critical. We note the general approach which Courts at the highest level have ruled should be taken in examining decisions of administrative tribunals. It is necessary to recognise the reality that the reasons of an administrative decision-maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, see also for example Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 64 at [59], Sleiman v Murray [2010] ACTCA 2 at [32].
Fourth, although ACAT did not specifically refer to s 387(1)(a) and (b) in finding that the appellant’s conduct constituted “professional misconduct”, as we have already noted the definition of “professional misconduct” in s 387 is not exhaustive. ACAT concluded that the appellant’s conduct constituted “professional misconduct” in circumstances where he had made deliberate and reckless misrepresentations to his clients and other practitioners, and had threatened his clients. ACAT found that the appellant’s actions were serious, and constituted professional misconduct. In so doing, ACAT had regard to several authorities on point in the Solicitor’s Manual, namely Mellifont v Queensland Law Society Inc [1981] Qd R 17 (Mellifont) at 29, Re Wheeler [1992] 2 Qd R 690 (Wheeler) and Law Society of New South Wales v MacKenzie [2003] NSWADT 92 (MacKenzie). In the context of findings of professional misconduct, Andrews J said In Mellifont at 29 that
What have to be viewed very seriously are the blatant attempts to deceive clients, another solicitor, The Honourable the Minister for Justice and the Council of the Queensland Law Society Incorporated in furtherance of a clear design to cover up professional misconduct by device and falsehood and ultimately by untruthful evidence before the Statutory Committee of the Queensland Law Society Incorporated.
In Wheeler, a legal practitioner who, inter alia, made knowingly false statements to another solicitor inquiring as to the whereabouts of funds paid to him by that solicitor’s client, was found to have engaged in professional misconduct.
In Mackenzie, the New South Wales Administrative Decisions Tribunal observed:
15The proposition that, knowingly, and, in some cases, negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully. It is analogous with, the duty of a legal practitioner to avoid misleading a court, or with the duty to adhere to an undertaking given to another practitioner in the course of legal practice. We could wax eloquent about the consequences of legal practitioners being permitted with impunity to mislead other practitioners but such elementary and fundamental matters do not require to be elaborated, especially to the audience by whom these reasons may be read.
The common law test set out in Allinson, namely the concept of “professional misconduct” as being that which would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency, is not excluded by s 387 of the Act. It is open to ACAT to make findings of professional misconduct notwithstanding that the conduct may not fall within the parameters of s 387(1)(a) and (b), if ACAT is satisfied that the conduct of the practitioner would reasonably be regarded as disgraceful and dishonourable by lawyers of good repute and competency. Indeed, to the extent that ACAT was satisfied that the appellant had deliberately sought to threaten or intimidate his clients it would be curious if such conduct could not fall within the definition of “professional misconduct” (see, by analogy, the decision of the Court of Appeal of Queensland in Jensen v Legal Services Commissioner [2017] QCA 189 at [148]).
Fifth, to the extent that the appellant complains about the findings of the primary Judge, it is reasonable to have regard to the manner in which the proceedings were conducted at first instance. It does not appear that, before his Honour, the appellant raised the alleged failure of ACAT to specifically advert to the terms of s 387(1)(a) and (b) as a basis of impugning ACAT’s findings of professional misconduct. As we have already observed, the notice of appeal from the decision of ACAT went through multiple iterations before his Honour heard argument.
Further, before his Honour the appellant primarily confined his submissions to cavilling with factual findings of ACAT, and disputing his legal relationship with the clients at particular times. In this respect it is not surprising that his Honour did not address the more fundamental issue whether ACAT – and his Honour – were required to assess the appellant’s conduct for the purposes of s 387 by reference to the terms of subss (a) and (b).
Finally, in the primary decision his Honour examined – and accepted – the reasoning and findings of ACAT. As a general proposition, to the extent that his Honour agreed he was entitled to do so. We are satisfied that his Honour, to the extent that he was able in the difficult circumstances of this case and in light of the manner in which it was conducted before him by the appellant, gave proper consideration to the facts of the case and the arguments before the Court, and made his own findings accordingly.
We do not consider this issue, as presented by the appellant, substantiated.
Issue 3 – his Honour erred in agreeing with ACAT that the cumulative effect of lapses and mistakes on the part of the appellant amounted to unsatisfactory professional conduct
In summary, the appellant submitted that not every mistake made by a practitioner indicates incompetence, and the cumulative effect of errors made by the appellant did not amount to incompetence within s 386.
Unsatisfactory professional conduct is defined by s 386 as including conduct happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The appellant described his conduct as “mere lapses/innocent mistakes”. However ACAT rejected this characterisation. For example ACAT observed:
67.The Tribunal is satisfied that the respondent’s failure to respond to the letter of 21 February 2008 for over two months, until 28 April 2008 was more than a mere administrative error. The letter requested urgent assistance. It indicated what assistance was sought and the purpose of the request. It should have caused the respondent to be concerned about the position of his clients. The Tribunal is satisfied that his failure to do anything in response was negligent. The necessary result is that the Tribunal finds that particular 1 is made out.
Before the primary Judge the appellant claimed that the Tribunal erred in finding unsatisfactory professional conduct on the basis of “mere lapses/innocent mistakes” on the appellant’s part. However at [105] of the primary judgment his Honour agreed with this conclusion, relevantly observing:
…The practitioner’s conduct in failing to act upon the letter of 21 February 2008, providing the wrong contract to the mortgagee’s solicitors after receiving the letter of 21 April 2008, and his failure to take adequate steps to provide the correct contract after the mortgagee’s solicitor’s letter of 5 September 2008 until late October 2008 constituted a serious failure to properly and promptly discharge the retainer from his clients. This conduct fell well short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
In our view, there is no error in the reasoning of ACAT, or that of his Honour in agreeing with that reasoning. The relevant findings were open to both ACAT and the primary Judge.
This issue is not substantiated.
Remaining grounds of appeal
As we have already noted the appellant pressed all grounds of appeal, and filed written submissions in support. We will now turn to those grounds, adopting the numeration used in the notice of appeal.
Ground 1 (1)
The appellant claimed that his Honour erred in finding that “the Tribunal did not need to substantiate the finding of negligence as a tortious liability.” In written submissions the appellant submitted that he did not owe a duty of care to his former clients after settlement, when the mortgagee’s solicitor “took over that responsibility”.
This issue was addressed by his Honour at [90] as follows:
90.The practitioner complained that the ACAT did not set out “how it found negligence – a duty existed, it was breached, standard of care, causation and damage; it failed to do this crucial task”. If the proceedings in the ACAT had alleged that the practitioner had committed the tort of negligence, then his complaint may have had some merit. The allegation of negligence in the particulars to the grounds alleged in the Law Society’s Application for Disciplinary Action is not an allegation that the practitioner is tortiously liable to the Law Society, or his clients, in negligence. The term, instead, conveniently, picks up and describes the requirement found in the Legal Profession Act 2006 (ACT) that the practitioner’s conduct the subject of the proceedings be measured against a “standard of competence and diligence that a member of the public is entitled to expect of a competent Australian legal practitioner”: s 386.
91.The use of the word “negligently” in a particular also conveniently distinguished the allegation from that where it is alleged that the conduct is a deliberate and intentional breach of professional standards, such as misappropriation of trust monies. It described a mental state on the part of the practitioner less egregious than a deliberate and intentional breach, and based upon a lack of reasonable care and attention measured against the standard to be expected of a competent Australian legal practitioner.
92.In any event, the practitioner himself accepted that he had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position vis a vis the mortgagee. There can be no real argument that, if the practitioner was aware of the problem with registration set out in the mortgagee’s solicitor’s letter of 21 February 2008, then this failure to act until 28 April 2008 was a breach of his duty to his clients, and was conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The question, therefore, which the ACAT had to resolve, was whether the practitioner had received and read the letter of 21 February 2008. The ACAT determined this issue by a conventional process, but, unfortunately, not in the practitioner’s favour.
In our view, his Honour has stated both the relevant facts and legal principles correctly. ACAT did not base its findings on tortious liability as claimed by the appellant. However in any event, as his Honour correctly identified, the appellant had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position. That duty did not end at settlement as the appellant appeared to believe.
The appellant has identified no error in his Honour’s reasoning.
Ground 1 has no merit.
Ground 1 (2)
Ground 2 appears to be a restatement of ground of appeal 1, and for the same reasons has no merit.
Particular 1.2 (3)
In ground 3 the appellant criticises what he describes as the primary Judge’s failure to acknowledge the appellant’s positive explanation that the purchase file had been erroneously stored in a different box. In written submissions the appellant says that neither ACAT nor the primary Judge were interested in his explanation, and gave details concerning file numbering, office procedure, his search for the correct file and the role of office staff.
Contrary to the claim of the appellant the primary Judge did have regard to the appellant’s explanations. We note in particular,
·[94] of the primary judgment where his Honour summarises the appellant’s arguments and
·[97] where his Honour said:
The ACAT was entitled to find that the failure of the practitioner to identify and forward the correct contract to the mortgagee’s solicitors was not adequately explained by the practitioner. Contrary to the practitioner’s submission, he did not provide a “positive explanation” for this failure. His evidence was a mixture of speculation and assumption.
This ground of appeal has no merit.
Ground 1 (4)
We have already dealt with this ground of appeal above at Issue 3 and concluded that it has no merit.
Ground 2 (5)
We understand from submissions of the appellant’s Counsel that this ground of appeal falls within the rubric of the second issue pressed. That issue has no merit.
Ground 2 (6)
The appellant claims his Honour “erred in holding that just because it found the appellant guilty on Ground 1, it can also find the appellant guilty on Ground 2 (2.1.1 and 2.1.2)”.
In written submissions the appellant writes of “such automatic findings made in Tribunal proceedings”, and refers to his Honour’s judgment at [52].
The appellant’s characterisation of the findings of his Honour, and ACAT, in this ground of appeal, is wrong. There were no “such automatic findings”. At [52] of the primary judgment his Honour said:
The ACAT considered Particulars 2.1.1 and 2.1.2 together, noting that they were based on statements made by the practitioner in his letter dated 20 November 2008 to the clients: see [23] above. The ACAT was satisfied that, in this letter, the practitioner made a number of representations: first, that it was nearly seven months after settlement that he was asked to provide the original contract for sale; secondly, that, by inference, the first such request was made on or about 28 April 2008; and, thirdly, that no reason was given for the request. The ACAT was satisfied that each such representation was incorrect. The ACAT had already concluded that the practitioner had received the letters of 21 February 2008 and 21 April 2008, so that it’s finding with respect to Particular 2.1.1 was consistent with its earlier finding.
Contrary to the submission of the appellant, consistency and logic of reasoning does not equate to a failure on the part of either ACAT or his Honour to give proper consideration to the evidence or the arguments of the parties.
This ground of appeal has no merit.
Ground 2 (7)
At [110] of the primary judgment his Honour noted that, in light of ACAT finding that the appellant had received and read the letter of 21 February 2008, it was inevitable that ACAT would go on to find that a number of representations in the appellant’s letter of 20 November 2008 were misrepresentations. His Honour noted that, in his letter of 20 November 2008, the appellant made comments suggesting that the first request for the purchase contract was made by the mortgagee’s solicitors on or about 28 April 2008 (which was not the case), and, further, misrepresenting the contents of the letter of 21 April 2008.
In this ground of appeal the appellant cavils with his Honour’s failure “to find that the Tribunal made a wrongful assumption that the appellant’s omission of the 21 February 2008 letter in his 20 November 2008 letter was a deliberate misrepresentation on his part.” In written submissions the appellant submits, among other things, that the Court failed to acknowledge that ACAT failed to give due regard to the phrase in the 20 November 2008 letter “As far as we can remember” which, in the appellant’s submission, was significant and “cured any misrepresentation”.
We reject the appellant’s claim that his Honour erred at [110]. In the circumstances it was open to both ACAT and the primary Judge to find, as they did, that the appellant misrepresented the facts in his letter of 20 November 2008, and to reject as sophistry the appellant’s submission that his statement “As far as we can remember” in his letter absolved him from the respondent’s claim. The appellant points to no “incontrovertible facts or uncontested testimony”, and cannot demonstrate that the findings of his Honour were “glaringly improbable” or “contrary to compelling inferences”.
This ground of appeal has no merit.
Ground 2 (8)
This ground of appeal is founded on a mis-statement of the reasons of the primary Judge. His Honour did not find that it was “not necessary for the Tribunal to give reasons as to why the appellant was exonerated from Grounds 2.1.3 and 2.2” as the appellant alleges. At [54]-[56] his Honour refers to the approach of ACAT in relation to grounds 2.1.3 and 2.2 before it. In submissions the appellant proceeded to criticise the length of ACAT’s reasons and the inquisitorial functions of ACAT – these issues, however, were not grounds for setting aside the decision of ACAT, or his Honour.
This ground of appeal has no merit.
Ground 2 (9)
We have already dealt with this ground of appeal above at Issue 1, and found that it has no merit.
Ground 2 (10)
In this ground the appellant criticises ACAT, and his Honour, in respect of the finding of ACAT that he had made a “deliberate misrepresentation”. In particular, the appellant claims that he was convicted of a different offence to that with which he was charged.
This ground of appeal mis-states the findings of ACAT. ACAT examined Particulars 2.1.1 and 2.1.2 together at [89]-[97] of its decision. We note in particular observations of ACAT at [94] and [95], and the earlier finding by ACAT at [65] of its decision. In summary, ACAT found that:
·The appellant received the letter from the mortgagee’s lawyers of 21 February 2008 requesting a copy of the relevant contract;
·On 28 April 2008 the appellant responded to the 21 February 2008 letter, sending a copy of the wrong contract;
·On 20 November 2008 the appellant told his clients that he had been asked by the mortgagee’s lawyers on or about 28 April 2008 for a copy of the original contract of sale but no reason for that request had been made.
It is apparent that ACAT considered the indication by the appellant that he had not been contacted by the mortgagee’s lawyers on or about 21 February 2008 to be a deliberate misrepresentation, when he clearly had been contacted and knew that he had been.
This ground of appeal has no merit.
Ground 2 (11)
This ground of appeal was pressed by the appellant in relation to the second issue articulated by Mr O’Keefe at the hearing. We have found that this issue lacks merit.
Grounds 3 (12)-(26)
We understand from submissions of Mr O’Keefe at the hearing at the appellant sought to press ground 3 (12)-(26) in the context of his articulation of the second issue, which we have already addressed and rejected. For completeness, however, we make the following observations.
Ground 3 (12) contains several double negatives and is difficult to follow. Some light is cast on it by the appellant’s submissions. The appellant appears to cavil, in detail, with the factual finding of the primary Judge, who in turn agreed with factual finding of ACAT that the appellant threatened and intimidated his former clients by his letter of 12 December 2008. We are not persuaded that these findings were rebutted by incontrovertible facts or uncontested testimony, or they were glaringly improbable or contrary to compelling inferences (as explained in Fox v Percy). Certainly in his submissions the appellant has not pointed to any such facts or testimony, or inconsistencies in his Honour’s judgment which indicate error. This ground of appeal lacks merit.
In substance, grounds 3 (13), (14), (15), (17), (18), (20), (22) and (23) are reiterations of ground 3 (12), and similarly lack merit.
In ground 3 (16) the appellant appeared to repeat an argument which was before his Honour, and to which his Honour referred at [113]. The appellant has not identified where in the primary decision his Honour “erroneously held that the Tribunal did not make a finding that the appellant making an offer of compensation to the clients was improper, when the Tribunal did so.” Examination of ACAT’s decision does not reveal ACAT finding alleged by the appellant in ground 3 (16) – at most ACAT noted that the timing of the letters making unsolicited offers of compensation invited the inference that it was the mention of complaint to the Law Society which changed the respondent’s approach (at [131] of the ACAT decision). Finally, it is difficult to identify why this argument is relevant to the decision of ACAT or the appellant’s application to set that decision aside.
Ground 3 (19) is, with respect, vague and meaningless.
In ground 3 (21) the appellant claimed that his clients suffered “zero loss”, and submitted that this was conceded by one of the clients under cross-examination. His Honour at [135] found that the clients suffered loss as a result of the appellant’s conduct (including payment of interest on overdue rates accounts), and that the appellant recognised this in his correspondence with the clients. The appellant has not pointed to any glaring improbabilities in his Honour’s judgment, and further has not indicated where in cross examination the client accepted the absence of loss. This ground of appeal lacks merit.
In grounds 3 (24) and (25) the appellant cavils with the approach of ACAT to the assessment of penalty. Issues canvassed in these grounds of appeal were not raised before his Honour. The appellant can point to no error in the decision of his Honour so far as concerns these grounds of appeal.
In ground 3 (26) the appellant claims that “the Court failed to give regard to the fact that the appellant did satisfy the Tijong and Fox v Percy tests”. It is difficult to know what this ground of appeal means. Unfortunately the appellant’s written submissions do not offer assistance in such understanding. His Honour referred to Fox v Percy to explain the nature of the appellate process before the Court and the approach he proposed to take to overturning findings of fact by ACAT. We do not understand that the appellant cavils with this explanation. Beyond that, however, this ground of appeal is vague to the point of meaningless, and lacks merit.
Conclusion
In our view, the appeal has no merit and should be dismissed with costs.
| I certify that the preceding one hundred and twenty‑nine [129] numbered paragraphs are a true copy of the Reasons for Judgment of the Court. Associate: Date: 29 June 2018 |
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