Walsh v Legal Practitioners Board

[2016] SASCFC 52

SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

WALSH v LEGAL PRACTITIONERS CONDUCT BOARD

[2016] SASCFC 52

Judgment of The Full Court

(The Honourable Justice Stanley, The Honourable Justice Parker and The Honourable Justice Doyle)

13 May 2016

PROFESSIONS AND TRADES - LAWYERS - DUTIES AND LIABILITIES - DUTIES TO COURT - CONDUCT OF TRIAL

Appeal against findings by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) that the appellant was guilty of unsatisfactory and unprofessional conduct. 

The Tribunal found the appellant guilty of unsatisfactory conduct in that he provided information to Federal Magistrate Simpson (as he then was) being reckless as to whether the information was misleading.  The Tribunal further found the appellant guilty of unprofessional conduct in that between 23 July 2009 and 22 August 2010 he provided information to the Legal Practitioners Conduct Board knowing that the information was misleading. 

The appellant appealed on 28 separate grounds. 

The respondent filed a notice of alternative contention seeking to uphold the finding that the appellant was guilty of unprofessional conduct on count 2 on the basis that the particulars of the charge were proved and the Tribunal erred in finding to the contrary.

The respondent cross-appealed against the Tribunal’s decision that the appellant was not guilty of unprofessional conduct.

Held per Stanley J (Parker and Doyle JJ agreeing), dismissing the appeal:

1.  None of the grounds of appeal succeed. Appeal dismissed (at [70] - [72]).

2.  The gravity of the appellant’s unprofessional conduct on count 2 would not be increased if the allegations particularised in particulars 1.3 and 1.3.1 were found proved (at [71]).

3.  The Tribunal’s finding that the practitioner did not knowingly mislead the magistrate tells against a finding that his conduct should be characterised as unprofessional conduct rather than unsatisfactory conduct. Cross appeal dismissed (at [79] - [80]).

Legal Practitioner’s Act 1981 s 5(1), s 86; Supreme Court Civil Rules 2006 r 286; Rules of Professional Conduct and Practice r 14.1, referred to.
Fox v Percy (2003) 214 CLR 118; Jones v Dunkel (1959) 101 CLR 298; Whisprun Pty Ltd v Dixon (2003) 77 ALJR 1598, applied.
Legal Practitioners Conduct Board v Colton (2012) 113 SASR 467, distinguished.
Blatch v Archer 98 ER 969, discussed.
CSR Ltd v Della Maddalena (2006) 80 ALJR 458; Batrouney v Forster [2015] VSC 230; Law Society of South Australia v Jordan (1998) LSJS 434; Payne v Parker [1976] 1 NSWLR 191; ASIC v Hellicar (2012) 247 CLR 345; Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121; Cubillo v Commonwealth (2000) 103 FCR 1; Legal Practitioners Board v Phillips (2002) 83 SASR 467; Fidock v Legal Profession Complaints Committee [2013] WASCA 108; AK v Western Australia (2008) 232 CLR 438; Mifsud v Campbell (1991) 21 NSWLR 725; RESI Corporation v Munzer [2016] SASCFC 15; Terry v Leventeris (2011) 109 SASR 358; Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168; Australian Competition and Consumer Commissioner v J McPhee & Son (Australia) Pty Ltd (No. 3) (1998) ATPR 46 – 183; Stern v National Australia Bank Ltd (2000) 171 ALR 192; Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219; Giudice v Legal Profession Complaints Committee [2015] WASCA 115; Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bellmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2006] NSWCA 128, considered.

WALSH v LEGAL PRACTITIONERS CONDUCT BOARD
[2016] SASCFC 52

Full Court:  Stanley, Parker and Doyle JJ

STANLEY J:

Introduction

1. This is an appeal against findings by the Legal Practitioners Disciplinary Tribunal (“the Tribunal”) that the appellant (“the practitioner”) was guilty of unsatisfactory and unprofessional conduct.  The Tribunal found the practitioner guilty of unsatisfactory conduct in that he provided information to Federal Magistrate Simpson (as he then was) (“Simpson FM”) being reckless as to whether the information was misleading.  The Tribunal further found the practitioner guilty of unprofessional conduct in that between 23 July 2009 and 22 August 2010 he provided information to the Legal Practitioners Conduct Board (“the Board”) knowing that the information was misleading. 

   Count 1:  Unsatisfactory conduct

2. The finding of unsatisfactory conduct arose in relation to a submission that the practitioner put to Simpson FM in the course of a hearing on 9 July 2008 when he appeared as counsel before the Federal Magistrates Court representing Mr and Mrs Goyan.  The practitioner was instructed by a solicitor, Mr Ross Proud.  The practitioner’s clients had applied to set aside bankruptcy notices against them.  The practitioner made an oral application that the proceedings be remitted to the Federal Court to enable his clients to bring an application to have a question of fact referred to a jury for decision.  Simpson FM asked the practitioner whether he had any authority supporting the making of such an order.  The practitioner acknowledged that he did not have any authority “at this stage”.  Simpson FM referred him to an authority Re Shields; Ex Parte Australia and New Zealand Banking Group Ltd[1] which was against making the order sought.  The practitioner indicated he had not read the case and the magistrate adjourned briefly for the parties to consider the application.  Before he did so, Simpson FM mentioned another authority relevant to the issue.  When the hearing resumed, the practitioner addressed the authority of Shields mentioned by the magistrate but not the second case.  He then made the following submission:

   During the break, apart from looking at the reports, I made some inquiries and discovered that in the last few months there have been four applications before Federal Magistrates for a jury trial.  They are not reported but I have got the names of the cases.  One is O’Brien … the creditor is Monash City Council.  That was before Burchardt FM and that was in Melbourne.  He refused an application for a jury.  The matter went on appeal and recently came before Marshall J who listened to the application and asked both sides to put in submissions, and that’s returnable, I understand, some time in September.

   … Three matters appeared in New South Wales before Raphael FM … There are three matters:  Perrett being the debtor, the creditor being Newcastle Newspapers… The second matter is Harding – they all came before Raphael FM – and the creditor there is the Commissioner of Taxation … and Simandel is the third one, and the creditor again is the Commissioner of Taxation… Raphael FM referred the three applications, without making a decision himself, to the Federal Court on the basis that the decision whether there be a jury trial, as it can only be determined by the Federal Court … has to be made by a judge in the Federal Court…  The only date that I’ve got for it to go before a judge is in the Harding matter, where it’s going before Flick J on 8 September, who will determine the question… Raphael FM took the view that he should not decide whether this should be a jury trial … but it should go to – if they want a jury trial, it should go to the Federal Court, and then it’s up to the judge whether he or she grants the jury trial.  What is submitted is that in the decisions of Shields and the one in Queensland notes there are differences, there were mixed questions, complicated questions of law on the matter and the judges in both bases took the view that it would be better to go before the judge.  There are many cases where people prefer to go before a judge, particularly in an emotive matter. 

   [1] (1994) 51 FCR 308.

3. It is this submission which formed the basis for the first count before the Tribunal. 

4. The Tribunal found that the practitioner was guilty of unsatisfactory conduct in making this submission as he was reckless as to whether the information was misleading. 

5. The basis of this finding was that the submission conveyed the implication that only the matter of Harding had been listed for argument and that the other matters to which reference was made by the practitioner had still not been argued.  In fact, the practitioner was counsel for the debtor in the Perrett matter where the application for a jury trial was heard by Graham J of the Federal Court on 26 October 2007.  Graham J dismissed the application on the basis that it was “extraordinary” and “totally without merit”.  He made an order that the practitioner’s client pay the creditor’s costs on an indemnity basis.  Permission to appeal that decision was sought from Lindgren J of the Federal Court on 27 November 2007.  The practitioner again appeared for the debtor.  Lindgren J dismissed the application describing it as “hopeless” and tainted by “obvious futility”.  Further, the judge described it as “bizarre” and ordered that the practitioner’s client pay the creditor’s costs of the appeal on an indemnity basis.

6. Before the Tribunal there was a dispute between the practitioner and Mr Proud relating to the events of 9 July 2008.  Mr Proud said that the Goyans were accompanied to court on that occasion by a Mr Peter Gargan.  Mr Proud gave evidence that the suggestion of applying for a jury trial had come from Mr Gargan and not from Mr Goyan.  Further, he gave evidence that it was Mr Gargan who provided the practitioner with the list of authorities during the short adjournment which were referred to by the practitioner in his submission to Simpson FM after the resumption of the hearing.  On the other hand, the practitioner gave evidence that the instructions to apply for the referral to the Federal Court to seek a jury trial came from Mr Goyan and that it was Mr Goyan who provided him with the list of cases.  He said that Mr Gargan was not even present when he met with Mr Goyan after visiting the court library during the adjournment.  Ultimately, the Tribunal accepted the evidence of Mr Proud in preference to the evidence of the practitioner. 

7. Before the Tribunal the practitioner gave evidence that when he put the submission to Simpson FM he had not turned his mind to the Perrett matters on which he appeared in the Federal Court.  The Tribunal was not prepared to find, to the Briginshaw standard, that the practitioner knowingly gave misleading information to Simpson FM.  However, the Tribunal found that the practitioner was aware, when he made the submission to Simpson FM, that there was a risk that the information he had provided about the Perrett matter was misleading and he consciously disregarded that risk when making the submission.  The Tribunal found:[2]

   Whilst it is possible that the practitioner may not have recalled all aspects of the Perrett litigation, it seems to us unlikely in the extreme that he did not recall appearing before two Federal Court judges in which orders for indemnity costs were made late the previous year.  Bearing in mind the degree of satisfaction where Briginshaw applies, our finding is that the practitioner probably recalled that he had had some involvement in the Perrett litigation but did not deign to check the detail, with the result that when he provided information about the Perrett litigation he did so knowing that he had not checked it.  We are of the opinion that the practitioner was, at least, reckless. 

   [2] Findings of the Tribunal [94].

   Count 2:  Unprofessional conduct

8. The Tribunal found the practitioner guilty of unprofessional conduct on the basis of its finding that he provided information to the Board, knowing that information was misleading, during the Board’s investigation of a complaint by Mr Grace, counsel for the creditors in the proceedings before the Federal Magistrates Court on 9 July 2008, concerning the practitioner’s conduct before Simpson FM on that occasion.  The Tribunal found:[3]

   In our view the practitioner provided information to the Board in response to the Board’s requests knowing that the information he provided was misleading.  In particular:

   97.1. The email to the Board dated 23 July 2009 made no attempt to reveal the full extent of the practitioner’s involvement with the relevant Perrett litigation. By this time the practitioner knew what the issue was and gave us no satisfactory explanation for failing to address it.

   97.2. On the findings we have made, the practitioner’s statement in the email dated 23 July 2009 that he did not put his mind to the Perrett case at all was not correct.   Whilst we do not find that he necessarily recalled all aspects of that case on 9 July 2008, he was familiar with it. Indeed, the Privitelli correspondence to which we have referred concedes as much.

   97.3. In his email to the Board dated 7 May 2010 the practitioner suggested that he had spoken to Mr Proud and that Mr Proud’s recollection was that information came from Mr Goyan during the break. The Board relies upon Mr Proud’s evidence that he told the practitioner that the information came from Mr Gargan. However in evidence before us Mr Proud could no longer recall whether that was correct. This particular of the charge is not made out.

   97.4. The Board next asserts that the practitioner’s email dated 7 May 2010 was misleading because the practitioner failed to reveal that the information he provided to the Federal Magistrate had in fact been given to him by Mr Gargan. On our findings, this particular is made out.

   97.5In his email to the Board dated 22 August 2010 the practitioner responded to correspondence from Mr Grace by suggesting that Mr Grace had attempted “to mislead” and the practitioner described the Perrett litigation as being handled by other solicitors and counsel except for one matter. The practitioner says that the matter in which he was involved “dealt with a singular issue, that of the right to Christians to be tried before a jury of Christians”.  The practitioner went on to say that “that is why I never put mind to the Perrett matter I was involved in. It is not the one I mentioned to the Court that day”.  As we have pointed out, by the time of this correspondence the practitioner knew that he had appeared in the Perrett litigation which ultimately proceeded before Justice Graham and Justice Lindgren. This was the same litigation to which he referred when before the Federal Magistrate. See his evidence at T189-192 and T193-194, “by the time of this email ... You’ve been reminded ... that you had appeared [before] Graham and then Lindgren JJ.  Yes”, referring to the email from the practitioner dated 23 July 2009.  Accordingly we find that this particular is made out. 

   [3] Findings of the Tribunal [97].

   Respondent’s alternative contention

9. The respondent has filed a notice of alternative contention seeking to uphold the finding that the practitioner was guilty of unprofessional conduct on count 2 on the basis that the particulars 1.3 and 1.3.1 of the charge were proved and the Tribunal erred in finding to the contrary.  Particulars 1.3 and 1.3.1 are:

   1.3In the email to the Board dated 7 May 2010 the practitioner stated that Mr Ross Proud had told him on 6 or 7 May 2010 that “His (Ross Proud’s) recollection was that the further information came from Mr Goyan following an enquiry he made by telephone during the break” (in the same hearing on 9 July 2008).

   1.3.1  That statement was not correct because Ross Proud told the practitioner on 6 or 7 May 2010 that his recollection was that the information about the four cases was provided to the practitioner by Peter Gargan at a conference during a break in the hearing on 9 July 2008. 

   Cross-appeal

10. The respondent has cross-appealed against the Tribunal’s decision that the appellant was not guilty of unprofessional conduct on count 1.

    Approach on appeal

11. The practitioner and the Commissioner bring their appeals against the decisions of the Tribunal pursuant to s 86 of the Legal Practitioners Act 1981 (SA) which provides for a right of appeal to the Supreme Court against a decision of the Tribunal. The nature of the appeals are governed by 6SCR 286 of the Supreme Court Civil Rules which provide that an appeal is to be by way of rehearing.  In an appeal by rehearing the appellate court proceeds on the basis of the record and any fresh evidence that it chooses to admit.

12. The principles applicable to the approach to be taken by an appellate court on an appeal by way of rehearing in reviewing findings of fact are well settled.  The position is definitively stated by the High Court in Fox v Percy.[4] Gleeson CJ, Gummow and Kirby JJ said:[5]

    [4] [2003] HCA 22, (2003) 214 CLR 118.

    [5] [2003] HCA 22 at [23], [25] - [29], [41], (2003) 214 CLR 118 at 125 – 128, 131 – 132.

    On the one hand, the appellate court is obliged to “give the judgment which in its opinion ought to have been given in the first instance”.  On the other, it must, of necessity, observe the “natural limitations” that exist in the case of any appellate court proceeding wholly or substantially on the record.  These limitations include the disadvantage that the appellate court has when compared with the trial judge in respect of the evaluation of witnesses’ credibility and of the “feeling” of a case which an appellate court, reading the transcript, cannot always fully share.  Furthermore, the appellate court does not typically get taken to, or read, all of the evidence taken at the trial.  Commonly, the trial judge therefore has advantages that derive from the obligation at trial to receive and consider the entirety of the evidence and the opportunity, normally over a longer interval, to reflect upon that evidence and to draw conclusions from it, viewed as a whole.

    …

    Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect”.  In Warren v Coombes, the majority of this Court reiterated the rule that:

    “[I]n general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge. In deciding what is the proper inference to be drawn, the appellate court will give respect and weight to the conclusion of the trial judge but, once having reached its own conclusion, will not shrink from giving effect to it.”

    As this Court there said, that approach was “not only sound in law, but beneficial in . . . operation”.

    After Warren v Coombes, a series of cases was decided in which this Court reiterated its earlier statements concerning the need for appellate respect for the advantages of trial judges, and especially where their decisions might be affected by their impression about the credibility of witnesses whom the trial judge sees but the appellate court does not. Three important decisions in this regard were Jones v Hyde, Abalos v Australian Postal Commission and Devries v Australian National Railways Commission. This trilogy of cases did not constitute a departure from established doctrine. The decisions were simply a reminder of the limits under which appellate judges typically operate when compared with trial judges.

    The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowance for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.

    Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.

    That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion.

    …

    ... [T]he appellant had to rely before this Court on the advantages that the primary judge enjoyed in seeing the parties, and Mr Murdoch, give their evidence and in preferring the evidence of the appellant and Mr Murdoch to that of the respondent.  The Court of Appeal was bound to make due allowance (as it did) for such advantages.  The trial judge sat through four days of trial before giving his decision.  He did so at a time when the impression made by the witnesses was still clearly in his mind.  The Court of Appeal was bound to afford respect to the endeavour of the judge to give the correct and lawful conclusion to the puzzle presented to him.  Clearly, the Court of Appeal was right to reject the respondent’s belated suggestion of bias, which should not, in our view, have been made.  No doubt, the Court of Appeal also took into account the unexpressed considerations that went into the judge’s conclusion.  No judicial reasons can ever state all of the pertinent factors; nor can they express every feature of the evidence that causes a decision-maker to prefer one factual conclusion over another.

    [Citations omitted].

1. On appeal the practitioner challenged a number of findings made by the Tribunal.  Those were findings of fact, findings of mixed fact and law, and conclusions of law.  This Court is in as good a position as the Tribunal to determine those issues that involve conclusions of law and inferences to be drawn from facts as found by the Tribunal in relation to a number of grounds of appeal, however, the practitioner challenged findings of primary fact and invited this Court to substitute a different finding for the one made by the Tribunal.  Those submissions misunderstand the nature of the appellate review undertaken by this Court.  While the Court is obliged, so far as it practically can, to perform its statutory function of appellate review by way of rehearing, in a real and substantive way,[6] that obligation does not permit the Court to substitute its finding of fact for the finding of the Tribunal unless it has been demonstrated that the finding made by the Tribunal is in error.  The Court will only overturn finding of primary fact where, after evaluating all the relevant evidence, and making proper allowance for the advantage enjoyed by the Tribunal in its assessment of the credibility and reliability of witnesses, it is satisfied that error has been established.  In the case of a finding based upon, or influenced by, findings as to the credibility of a witness, this would ordinarily require being satisfied that the finding the subject of challenge is inconsistent with uncontested testimony or incontrovertible facts, glaringly improbable or contrary to compelling inferences.  The Court will afford the findings of the Tribunal substantial weight.[7]  The exercise of the function of appellate review does not involve this Court substituting its view of the facts for that of the Tribunal unless it is satisfied that the Tribunal’s findings are erroneous.  Appellate courts do not interfere with such findings unless it is shown that the Tribunal has failed to use or has palpably misused its advantage. 

   [6]    CSR Ltd v Della Maddalena [2006] HCA 1 at [19], (2006) 80 ALJR 458 at 465.

   [7]    Legal Practitioners Conduct Board v Colton [2012] SASC 118 at [35], (2012) 113 SASR 467 at 482.

   Provision of medical reports by the practitioner on the hearing of the appeal

2. On the hearing of the appeal the practitioner sought to provide the Court with copies of two medical reports.  The reports were received over the objection of Ms Nelson QC, for the respondent. 

3. The reports were from Dr Ranjit Menon, consultant psychiatrist, dated 4 February 2016 and Mr Tim Watson-Munro, consultant psychologist, dated 2 February 2016.

4. The report of Dr Menon refers to the practitioner’s long history of post-traumatic stress disorder and associated anxiety and mood difficulties which were recently exacerbated after a fall.  It refers to the medication prescribed for these conditions and symptoms of anxiety, poor sleep, increased ruminations, poor concentration and variable mood.  It also refers to an associated comorbid medical condition of glaucoma which further restricts the practitioner’s functioning and potentially complicates his anxiety disorder due to concerns of blindness if there was any acute deterioration. 

5. Mr Watson-Munro has been treating the practitioner for many years on an intermittent basis.  He says the practitioner suffers from a range of psychological disorders the predominant of which is major depression with features of anxiety disorder.  He records a recent history of the practitioner complaining that because of his depression he has been unable to focus on his day-to-day tasks, and the requirement for him to return to Adelaide to conduct his appeal is overbearing.  Mr Watson-Munro refers to the practitioner seeing a treating psychiatrist for medication and treatment of his emotional problems.  He suggests that the practitioner would find it difficult to cope with protracted proceedings and, if required to do so, would not be able to fully equip himself in terms of the allegations which had been made against him. 

6. The only relevance of the medical evidence upon which the practitioner sought to rely is in his conduct of the appeal.  On the hearing of the appeal the practitioner appeared for himself.  I did not detect any difficulty he experienced in presenting his submissions.  He did not complain of any difficulty in doing so.  While he had previously sought to have the listing of his appeal delayed, he did not seek an adjournment from us.  On the contrary, he indicated he wanted to proceed with the hearing of his appeal. 

   The appeal

7. The appellant has appealed on 28 separate grounds.  It is not a simple matter to address each of the grounds discretely and seriatum.  Many of the grounds overlap.  Much of the practitioner’s submissions are repetitive.  It is convenient to group some of these complaints and address the grounds by category of complaint. 

   Errors concerning the burden of proof:  grounds 1, 4 and 10

8. Ground 1 complains that the Tribunal erred in failing to identify, acknowledge or have regard to the burden of proof being on the Board.  Ground 4 is a complaint that the Tribunal did not have sufficient regard to its obligations under the Briginshaw principle.  Ground 10 complains about the Tribunal’s approach to fact finding in reliance upon the evidence of Mr Proud when evidence was not called from Simpson FM, the Goyans or Mr Gargan.

9. In my view, no error has been demonstrated in the approach taken by the Tribunal to making findings of fact.  I am satisfied in reading the reasons of the Tribunal that it approached the exercise of fact finding on the basis that the onus of proof was on the Board.  It was not necessary for the Tribunal in its reasons to state so explicitly.  There can be no doubt that the Tribunal applied the Briginshaw principle correctly.  It said:[8]

   We also remind ourselves, indeed it was common ground between the parties that given the seriousness of the allegations made findings ought not be made against the practitioner’s interests unless we were satisfied about those matters on the balance of probabilities in the manner described in Briginshaw.

   [8] Findings of the Tribunal [53].

10. Later the Tribunal referred to “the requirements of Briginshaw” in the context of making findings about the practitioner’s state of mind.[9]  It is apparent the Tribunal took the approach that the allegations in counts 1 and 2 could not be made out unless they were proved to the Briginshaw standard. So much is apparent from the reasons of the Tribunal referred to earlier at paragraph [7].[10] No error has been demonstrated in the Tribunal’s approach in applying the onus and standard of proof.

    [9] Findings of the Tribunal [76].

    [10] Findings of the Tribunal [94].

11. The practitioner submits that the approach taken by the Board in the conduct of the proceedings before the Tribunal required him to prove a negative, namely, that Mr Gargan was not present in the precincts of the court during the adjournment that preceded the submission that formed the basis of the charge in count 1.  In my view, this submission completely misunderstands the approach taken by the Tribunal.  There was no suggestion in the reasons of the Tribunal that the practitioner was obliged to prove Mr Gargan’s absence.  The Tribunal was confronted with a conflict in the evidence between the account given by the practitioner and the account given by Mr Proud.  Mr Proud asserted that Mr Gargan had provided the practitioner with the list of authorities during the adjournment which formed the basis of his submission to the magistrate.  The practitioner asserted that the authorities were given to him by Mr Goyan and that Mr Gargan could not have done so, as asserted by Mr Proud, because Mr Gargan was not there at that time.  This conflict merely gave rise to a disputed account of these events.  This is unexceptional.  The Tribunal resolved the dispute by preferring the evidence of Mr Proud over that of the practitioner.  No error has been demonstrated in the Tribunal’s finding.  The Tribunal heard each of the practitioner and Mr Proud give evidence.  Plainly it was open to the Tribunal to prefer the evidence of Mr Proud over that of the practitioner, even to the Briginshaw standard of satisfaction. While that finding was made in the absence of the evidence of the Goyans and Mr Gargan, it cannot be said that a different finding would have been made if they had given evidence and it was open to the practitioner to have called them to give evidence. The practitioner criticised the evidence of Mr Proud on the basis of his failure to produce his file. That criticism is baseless given he had transferred his file to another practitioner after his instructions were terminated. The finding that Mr Gargan provided the practitioner with the list of cases is not glaringly improbable nor inconsistent with incontrovertible facts. The practitioner submits that the Tribunal’s finding is inconsistent with the evidence of an email sent by Mr Gargan to the practitioner and copied to Mr Proud on 9 July 2008 at 10:57 a.m. This was during the adjournment. I do not accept that submission. I say this for two reasons. First, the fact that apparently Mr Gargan was communicating by email with the practitioner at that time is not necessarily inconsistent with him being physically present at court. Mr Proud gave evidence that he was physically present at that time. Mr Proud had not previously met Mr Gargan. That makes it unlikely that Mr Proud was mistaken. Second, there is reason to think that it is unlikely that the email was sent at 10:57 a.m. on 9 July 2008. The footer on the document indicates it had been printed by Mr Proud, or someone in his office, from his computer, on 8 July 2008. This is reinforced by the fact that the document has the appearance of a reply to written submissions of the respondent to Mr Goyan’s application. Those submissions were filed on 19 June 2008,[11] and were faxed to the practitioner by Mr Proud on 23 June 2008.[12]    The reply is a detailed submission.  In the ordinary course it would be expected that this document would have been provided to the practitioner and Mr Proud prior to the commencement of the hearing listed on 9 July 2008. 

    [11]   Exhibit B2 at 243. 

    [12]   Exhibit B2 at 242. 

12. In any event, it is of little moment.  Even on the practitioner’s account of these events, it is not suggested that it was Mr Goyan who identified the authorities relied upon by the practitioner in the submission he made to the magistrate.  The practitioner accepts that if it was Mr Goyan who provided the list to him, the ultimate source of that list was Mr Gargan.  Accordingly, this dispute is of little consequence.  If the Tribunal had preferred the version of events given by the practitioner in relation to this matter, it would not impugn its ultimate conclusion on count 1.  The practitioner would still have been reckless in making the submission to the magistrate in those circumstances for the very reasons found by the Tribunal.

    Failure to identify the elements of the charges and make findings whether each was proved:  ground 2

13. Ground 2 asserts that the Tribunal erred in law and in fact by failing to identify each of the factual ingredients in the two charges or make findings as to whether each was proved. 

14. I do not accept the premise of this ground.  The Tribunal, in providing its reasons for decision, is not directing a jury.  It is not necessary for the Tribunal to identify discretely each of the ingredients of the charges.  The ingredients are set out in the particulars of the charges laid by the Board.  The findings of the Tribunal make clear that it addressed the ingredients of each charge on both counts.  At issue was whether the practitioner had committed the conduct particularised in the charge, and, if that was proved to the satisfaction of the Tribunal, whether that conduct constituted unprofessional or unsatisfactory conduct.

15. The Tribunal in its reasons made factual findings regarding the practitioner’s conduct and state of mind[13] and considered whether that conduct constituted unprofessional or unsatisfactory conduct.[14]

    [13]   Findings of the Tribunal [70] – [97].

    [14]   Findings of the Tribunal [98] – [104].

16. No error has been demonstrated in the approach taken by the Tribunal. 

    Errors concerning findings by the Tribunal that the information provided by the appellant was misleading:  grounds 3, 15 and 17 and 28

17. Ground 3 complains that the Tribunal erred in law by not considering, or making any finding, whether the information provided by the appellant to Simpson FM or the Board was in fact misleading.  Ground 15 complains that the Tribunal also confused and failed to analyse and consider what the nature of the misleading was said to be in relation to the information the appellant provided to Simpson FM.  Ground 17 complains that the information the appellant provided to Simpson FM was not misleading.  Ground 28 asserts that the information provided by the practitioner to the Board which was the subject of the Tribunal’s finding in relation to count 2, was not misleading.[15]

    [15]   Findings of the Tribunal [97.5]

18. These complaints straddle the findings in relation to both counts.  The gravamen of these grounds as articulated by the practitioner in the course of his submission to the Court complains of the findings made by the Tribunal in relation to his state of mind.  He complains that the Tribunal erred in finding either that he intended to mislead the Board or was reckless as to whether he misled the Court.  For the reasons previously explained, it is not open to the Court to substitute a different finding from the one made by the Tribunal in relation to the practitioner’s state of mind unless it can be demonstrated that the Tribunal’s finding is erroneous.  In relation to count 1 the Tribunal’s finding that the practitioner was at the very least reckless in putting the submission to the magistrate referring to the Perrett litigation without informing the magistrate that Raphael FM had referred the Perrett matter to the Federal Court where two judges in separate hearings had rejected the trial by jury submission that the practitioner was pressing on Simpson FM, the Tribunal was not prepared to find in accordance with the Briginshaw standard that in putting this submission the practitioner knowingly provided misleading information to the magistrate.  The Tribunal, however, gave extensive reasons for concluding that in referring to the Perrett litigation, it was highly unlikely that he did not recall his appearance before Graham J and Lindgren J in the Federal Court on the Perrett matter.  The Tribunal found the practitioner recalled he had some involvement in the Perrett litigation but did not deign to check the detail, with the result that when he provided information about the Perrett litigation he did so knowing he had not checked it.  This was the basis of the finding that the practitioner was, at the least, reckless in making the submission to the magistrate relying on the Perrett matter.[16]  For reasons I will develop when I come to the cross-appeal, I consider that the practitioner was fortunate that the Tribunal gave him the benefit of the doubt in shrinking from a finding that he knowingly misled the magistrate.  There can be no doubt that the submission was misleading.  The submission could only have left the magistrate with the impression that the point having been taken in the Perrett litigation, Raphael FM had referred the point to the Federal Court where the matter was still pending.  This was obviously not true.  I reject the contention that the submission put to Simpson FM was not misleading because it accurately informed the magistrate that Raphael FM had referred the point to the Federal Court.  The submission was misleading by omission.  The only issue was the practitioner’s state of mind in putting the submission.  The Tribunal explained the basis upon which it made its finding as to the state of mind.  In addition, I do not accept the practitioner’s submission that the Tribunal’s finding at paragraph [102] of its reasons is duplicitous.  The Tribunal found the practitioner’s recklessness “involved a failure to check information and provide better information about the case of Perrett, or a failure to make adequate disclosure about the limitations in the reliability of that information”.  I accept that the Tribunal’s reason could have been better expressed.  However, there is no duplicity in the finding.  On his own evidence, the practitioner did not check the information provided to him about the case of Perrett.  He understood the ultimate source of that information was Mr Gargan, a person the practitioner described as a vexatious litigant, whose reliability was at least questionable.  He did not disclose this to the court but instead left the court with the impression that the cases to which he was referring were the result of his own inquiries.  No error has been demonstrated in relation to that finding.

    [16]   Findings of the Tribunal [77] – [95].

19. In relation to count 2 it is important to understand the background to the allegation of unprofessional conduct by the practitioner in the course of the Board’s investigation of his conduct before Simpson FM on 9 July 2008.  The complaint by Mr Grace concerning the practitioner’s conduct before the magistrate is dated 16 February 2009. The practitioner’s first substantive response to the complaint is dated 23 July 2009.  He sets out the background to his appearance before Simpson FM where he alludes to legal advice given to the Goyans by an unknown person, whom the Tribunal found to be Mr Gargan.  In this response the practitioner set out his account of the events of 9 July 2008.  He refers to what occurred during the adjournment after making the application for a referral of the Goyans’ matter to the Federal Court for a jury trial to be conducted.  He wrote that, knowing the question of jury trials was a topic in other jurisdictions, he inquired whether there were any similar applications to the Goyans pending elsewhere.  He said he was given the names of other actions which he was told were pending.  He provided this information to Mr Grace and to the magistrate.  He asserted that he did not put his mind to the Perrett case at all.  He asserted that the Perrett matters referred to were “completely different and concerned other issues”.  After further correspondence, the practitioner sent the Board an email dated 7 May 2010 in which he asserted that he had spoken to Mr Proud regarding the matter and that Mr Proud’s recollection was that the information relating to the Perrett matter and other cases cited in the course of his subsequent submission to Simpson FM came from Mr Goyan.  Subsequently the Board provided the practitioner with a signed statement of Mr Proud which contradicted this version of events.  The practitioner responded by a further email dated 22 August 2010 in which, for the first time, he referred to Mr Gargan by name.  In his response he asserts that the complainant, Mr Grace, was attempting to mislead the Board in relation to the practitioner’s reference to the Perrett case before Simpson FM.   He submitted to the Board that there were a number of Perrett cases, all but one of which, not the matter mentioned to Simpson FM, were handled by other solicitors and other counsel.  This statement was put forward by way of an explanation for why the practitioner asserted that he had not put his mind to the Perrett matter in which he had been involved.  He asserted that that was not the Perrett matter he was referring to in the course of his submission to Simpson FM. In his evidence before the Tribunal he referred to a meeting in a coffee shop before the commencement of the hearing in the Federal Magistrates Court on 9 July 2008. Present at the meeting were Mr Goyan and Mr Gargan. He could not recall Mr Gargan being present during the course of the subsequent adjournment later that morning during which the practitioner said he was given the list of cases that formed the bases of his subsequent submission. This was the background to the Tribunal’s findings in relation to count 2 in its reasons referred to earlier at paragraph [8].[17]  Again, no error has been demonstrated in relation to those findings. 

    The failure to draw a Jones v Dunkel inference and the failure to call Simpson FM, the Goyans and Mr Gargan:  ground 5

    [17] Findings of the Tribunal [97].

1. Ground 5 complains that the Tribunal failed to draw a Jones v Dunkel[18] inference against the Board in light of its failure or refusal to call Simpson FM, the Goyans and Mr Gargan, or lead evidence explaining that failure.  None of these persons were called to give evidence.  It is difficult to see what relevant evidence could have been given by the magistrate.  While it was possible that the Goyans and Mr Gargan could have given relevant evidence in relation to the contentious events of 9 July 2008, the practitioner did not ask the Board to call any of these witnesses before the close of evidence in the Tribunal.  In the course of submissions the practitioner complained that Mr Goyan and Mr Gargan had not been called.  The Board submits that it was equally open to the practitioner to have called these witnesses.  The practitioner’s response is that he assumed they would have been called as part of the Board’s case and that he was engaged in an unequal match where he was under enormous pressure in conducting litigation against the full weight of the State.[19] 

   [18] (1959) 101 CLR 198.

   [19]   Batrouney v Forster [2015] VSC 230 at [1421] – [1422].

2. I do not accept this submission for two reasons. 

3. First, it proceeds from a false premise, namely, that the Board performs a function akin to a prosecutor in criminal proceedings.  This misunderstands the nature of the proceedings before the Tribunal.  In Law Society of South Australia v Jordan[20] Doyle CJ, with whom Millhouse and Nyland JJ agreed, said:[21]

   The Tribunal is not a Court dealing with charges brought by the State against an individual.  While it hears charges presented to it, its function of deciding whether a person is fit to practise may at times mean that it can or should allow a procedure that would not be followed in criminal proceedings or in civil proceedings. 

   [20] [1998] SASC 6809, (1998) 198 LSJS 434.

   [21] [1998] SASC 6809, (1998) 198 LSJS 434 at 465.

4. Accordingly, contrary to the submission of the practitioner, the Board was not under an obligation to call every witness who might be able to give relevant evidence. 

5. Second, there was no error in the Tribunal failing to draw a Jones v Dunkel inference.  The so-called rule in Jones v Dunkel involves the drawing of an adverse inference against a party who fails to call evidence from a witness which that party was plainly in a position to have called.  It has been regarded as no more than an application of the principle in Blatch v Archer[22] that all evidence is to be weighed according to the proof which it was in the power of one side to have produced, and in the power of the other to have contradicted.  The rule cannot be applied to the non-calling of a witness unless it would be natural for the party to call the witness or that party, rather than another party, might reasonably be expected to call the witness.  In Payne v Parker[23] Glass JA said that condition for invoking the rule existed:[24]

   … where it would be natural for one party to produce the witness, or the witness would be expected to be available to one party rather than the other, or where the circumstances excuse one party from calling the witness, but require the other party to call him, or where he might be regarded as in the camp of one party, so as to make it unrealistic for the other party to call him, or where the witness’ knowledge may be regarded as the knowledge of one party rather than the other, or where his absence should be regarded as adverse to the case of one party rather than the other.  It has been observed that the higher the missing witness stands in the confidence of one party, the more reason there will be for thinking that his knowledge is available to that party rather than to his adversary.  If the witness is equally available to both parties, for example, a police officer, the condition, generally speaking, stands unsatisfied.  There is, however, some judicial opinion that this is not necessarily so. 

   [Citations omitted]. 

   [22] 98 ER 969.

   [23] [1976] 1 NSWLR 191.

   [24] [1976] 1 NSWLR 191 at 201 – 202.

6. I do not consider the Goyans, Mr Gargan, or, for that matter, Simpson FM, could be considered to be witnesses that the Board would be expected to call such that the failure to do so forms the basis for the drawing of an adverse inference against the Board.  The Board performs a public function.  In performing that function it is obliged to act fairly.  That obligation, however, did not require it to call the Goyans or Mr Gargan.[25]   For reasons explained earlier, the issue of whether the list of authorities was provided to the practitioner by Mr Goyan or Mr Gargan is of little moment.  Accordingly, those witnesses could not be considered crucial to the proof of the charges laid by the Board.  In any event, the rule only applies where a party is required to explain or contradict something.[26]  What a party is required to explain or contradict depends on the issues in the case.  No inference can be drawn unless evidence is given of facts requiring an answer.[27]  In my view it was not necessary for the Board to call evidence from the Goyans or Mr Gargan on the question of who provided the list of cases to the practitioner.  Certainly, there was no necessity nor utility in calling evidence from Simpson FM.  There was no unfairness to the practitioner in not calling them. 

   [25]   ASIC v Hellicar [2012] HCA 17 at [139] – [163], (2012) 247 CLR 345 at 403 – 411.

   [26]   Jones v Dunkel (1959) 101 CLR 298 at 321.

   [27]   Jones v Dunkel (1959) 101 CLR 298 at 322; Schellenberg v Tunnel Holdings Pty Ltd [2000] HCA 18 at [51], (2000) 200 CLR 121 at 142 - 143; Cubillo v Commonwealth [2000] FCA 1084 at [360], (2000) 103 FCR 1.

7. Finally, the rule permits the Court to draw an inference that the witness would not have helped the party who failed to call him or her.  It does not permit an inference that the uncalled witness would in fact have given evidence damaging to the party who failed to call the witness.  The rule cannot be employed to fill gaps in the evidence or to convert conjecture and suspicion into inference.[28] 

   [28]   Jones v Dunkel (1959) 101 CLR 298 at 308, 312 and 320 – 321.

8. Accordingly, the only inference that the Tribunal could have drawn if it applied the rule was that the evidence of the Goyans, Mr Gargan and Simpson FM would not have assisted the Board’s case.  That does not lead to the conclusion that the Tribunal should have preferred the evidence of the practitioner over the evidence of Mr Proud in relation to the circumstances by which the practitioner came to put the submission to Simpson FM on 9 July 2008, in any event, for the reasons explained previously, this dispute is of little moment.

   Errors in relation to the finding of recklessness:  grounds 12, 13 and 14

9. The practitioner complains in grounds 12, 13 and 14 of the Tribunal’s finding of recklessness in relation to count 1.  He submits that the Tribunal erred in applying the wrong test as to recklessness and that in order to make a finding of recklessness it was necessary for the Tribunal to find as a matter of fact that at the relevant time the practitioner believed, but did not know, that the information he provided to the magistrate was probably false, knew that the result of that was that the magistrate would be misled and at the time was indifferent to those consequences and acted despite this. 

10. The practitioner did not develop these grounds in the course of his submissions.  I do not accept this submission. 

11. Recklessness, as a matter of law, occurs where a person makes a statement, with an awareness, at the time the statement is made, that there is a risk that the statement is untrue or false, but makes the statement nonetheless, consciously disregarding the risk.[29] 

    [29]   Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [95].

12. Candour and honesty are essential ingredients of a practitioner’s obligation to the court.[30]  Accordingly, a practitioner who makes a false assertion in submissions to the court about the facts, in the absence of any genuine belief that the evidence supports such an assertion, would ordinarily be acting dishonestly towards the court even if the practitioner did not know that the statement was misleading.[31]  Equally, a practitioner who makes a submission to the court about the law, in the absence of any genuine belief that the submission correctly states the law, would ordinarily be acting dishonestly towards the court even if the practitioner did not know that the submission was misleading. 

    [30]   Legal Practitioners Board v Phillips [2002] SASC 63 at [34], (2002) 83 SASR 467 at 473 – 474.

    [31]   Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [100].

13. The Tribunal found the practitioner was aware when he made the submission to the magistrate concerning the Perrett litigation that there was a risk that the information he provided about the Perrett matter was misleading and consciously disregarded that risk.[32]  The Tribunal explained its reasons for finding the practitioner had consciously disregarded that risk as follows:[33]

    The practitioner put forward information from Mr Gargan on the basis that it was the product of his own inquiries.  That was incorrect.  He relied upon information provided by a person whom he knew was regarded as vexatious and lacking in objectivity.

    The practitioner, on his own evidence, appears to have made no independent check of the information provided to him.  Indeed, it was said that it was a submission made “on the run without the chance to check”.  We accept that it was made on the run but we do not accept that the practitioner could not have checked the information in the Federal Court library.

    The firm representing the practitioner, Privitelli Solicitors, made submissions on behalf of the practitioner, on instructions, that at the time of the hearing before the Federal Magistrate the practitioner “had some familiarity with the information and had some knowledge of the O’Brien, Perrett, Harding and Simandel applications.  The lawyer also had some knowledge of the controversy in Sydney, at the time, in relation to jury trial applications”.

    The practitioner’s persistent, conscious distancing of himself from Mr Gargan subsequently.  Whilst it is possible that this is simply because the practitioner no longer wished to be associated with Mr Gargan, we find that the practitioner did this because he knew that he had relied upon information from Mr Gargan (indeed that is the effect of what Privitelli Solicitors said to the Board, paragraph 6(iv)) and that this information was at risk of being unreliable.

    [Citations omitted].

    [32] Findings of the Tribunal [91].

    [33]   Findings of the Tribunal [92.1] – [92.4].

14. In my view, the Tribunal applied the correct legal test as to recklessness.  The finding that the practitioner’s conduct in misleading the magistrate was reckless was open on the evidence.  No error has been demonstrated in that finding. 

    Inadequate reasons for decision and uncertainty of findings:  grounds 21, 22, 24, 25, 26 and 28

15. Grounds 21, 22, 24, 25, 26 and 28 in essence complain of the adequacy of the Tribunal’s reasons in relation to the adverse finding against the practitioner on count 2 that he knowingly provided misleading information to the Board. 

16. The Board was under a duty to provide reasons for its decision.

17. In AK v Western Australia[34] Heydon J explained the reasons why there is an obligation to give reasons.  First, there is an obligation to give reasons because it promotes good decision making, second, the general acceptability of decisions is promoted by the obligation to explain them and, third, it is consistent with the idea of democratic institutional responsibility to the public that those who are trusted with the power to make decisions affecting the lives and property of their fellow citizens, should be required to give an account of their reasoning by which they came to a decision.[35]  The failure to provide sufficient or adequate reasons can promote a sense of grievance and may deny the fact and the appearance of justice having been done.[36]  The principles applicable to satisfying the requirement to provide adequate reasons were recently summarised by Lovell J in RESI Corporation v Munzer.[37] He said:

    1.“The extent and content of reasons will depend upon the particular case under consideration and the matters in issue”. Keith v Gal [2013] NSWCA 339 at [110]. While a judge is not obliged to spell out every detail of the process of reasoning to a finding it is essential to expose the reasons for resolving a point critical to the contest between the parties.[38]

    2.A court when considering the decision under appeal should not be left to speculate from collateral observations as to the basis of a particular finding.[39]

    3.A trial judge has a duty to refer to material evidence and make findings about material issues in the case.[40] It is not appropriate for a trial judge merely to set out the evidence adduced by one side, then the evidence adduced by another and assert that having seen and heard the witnesses he or she prefers or believes the evidence of one and not the other. In other words, a bald statement of an ultimate conclusion may not be sufficient.[41] A trial judge is required to engage with the issues canvassed and to explain why one expert is accepted over the other.[42]

    4.It will ordinarily be sufficient if by his or her reasons the judge apprises the parties of the broad outline and constituent facts of the reasoning on which he or her has acted.[43]

    5.Reasons for decision are to be read fairly and in the context of the manner in which the trial was conducted. Reasons may appear by necessary inference from what is stated expressly.[44]

    6.It is not the function of an appellate court to set standards as to the optimal, or even desirable, level of detail required to be revealed in reasons for judgment. The function of the appellate court is to determine whether the reasons provided have reached a minimum acceptable level to constitute a proper exercise of the judicial power.[45]

    [34] [2008] HCA 8, (2008) 232 CLR 438.

    [35] [2008] HCA 8 at [89], (2008) 232 CLR 438 at 470.

    [36]   Mifsud v Campbell (1991) 21 NSWLR 725 at 728.

    [37] [2016] SASCFC 15 at [71].

    [38]   Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Palme (2003) 216 CLR 212 at [40].

    [39]   Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.

    [40]   The Waterways Authority v Fitzgibbon [2005] HCA 57.

    [41]   Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.

    [42]   Archibald v Byron Shire Council [2003] NSWCA 292.

    [43]   Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247.

    [44]   Transport Accident Commission v Kamel [2011] VSCA 110; Assad v Eliana Construction & Developing Group Pty Ltd [2015] VSCA 53.

    [45]   Resource Pacific Pty Ltd v Wilkinson [2013] NSWCA 33 at [48].

18. In addition, I would add the following principles relevant to the obligation to provide reasons:

    1.A judge’s reasons are not required to mention every fact or argument relied upon by the losing party as relevant to an issue;[46] and

    2.A judge is not required to make an express finding in respect of every fact relevant to a final conclusion of fact.[47]

    [46]   Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62], (2003) 77 ALJR 1598 at 1610.

    [47]   Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247; Bellmont Night Patrol Pty Ltd v Woolworths Ltd & Anor [2006] NSWCA 128.

19. In my view the reasons of the Tribunal are adequate.  The reasons explain sufficiently the findings the Tribunal made in relation to the charge in count 2 and the basis for making those findings.  In particular, the reasons explain the basis upon which the Tribunal found the practitioner knew the information he supplied to the Board was misleading, namely, that by the time the practitioner provided that information to the Board he had a number of opportunities and time to respond to the Board with the benefit of checking his involvement in the Perrett litigation.  The Board explained that his statements regarding the “other Perrett litigation” and his references to coffee shop conversation, reflected poorly on him.[48] The reasons of the Tribunal for finding that the practitioner provided information to the Board knowing the information he provided was misleading is sufficiently set out at paragraph [97] of the Tribunals’ reasons referred to earlier at [8].[49]  These reasons explain the basis of the Tribunal’s adverse finding in relation to count 2.  The reasons are sufficient to apprise the practitioner of the broad outline and constituent facts of the reasoning on which the Tribunal has acted.  The reasons must be read fairly and in the context of the proceedings.  The finding that the practitioner knew that the information he provided to the Board was misleading is to be derived as a necessary inference from what is stated expressly in paragraph [97] of the Tribunal’s reasons. 

    [48] Findings of the Tribunal [96].

    [49] Findings of the Tribunal [97].

20. The submission that in referring the magistrate to the Perrett case the practitioner was referring to a different Perrett matter, not the Perrett matter in which he was counsel, was found  by the Tribunal to be misleading.  By the time he put this submission he had turned his mind to the Perrett litigation.  The practitioner appeared as counsel before Graham J when the Perrett matter was transferred to the Federal Court by Raphael FM to consider the submission that certain factual disputes should be decided by a jury.  After the dismissal of the application, the practitioner again appeared as counsel on an application for permission to appeal the decision of Graham J.  That matter was heard before Lindgren J.  I consider the Tribunal’s finding that his statements regarding the “other Perrett” litigation reflect very poorly on the practitioner was not only open but correct. 

21. Further, I do not accept the complaint that the findings in paragraph [97] of the Tribunal’s reasons are not made by reference to the particulars of the charge and so the findings are uncertain.  It was not necessary for findings to mirror the particulars of the charge.  So long as the findings address the charge fairly and explain the basis upon which the charge has been found proved, the Tribunal has met its obligation to provide adequate reasons.  The findings plainly address the substance of the particulars of [1.1] – [1.5] of the charge.  No error has been demonstrated. 

    The Tribunal’s findings, including findings on credibility, were unreasonable and wrong:  grounds 6, 7, 8, 9, 10, 11, 16, 18, 19, 20, 23, 25, 26, 27 and 28

22. These grounds consist of a substantial number of repetitive and overlapping arguments which repeat submissions put to the Tribunal and rejected by it.  The complaints are, in substance, a contention that the Tribunal’s findings, including its credibility findings in respect of the practitioner and Mr Proud, are unreasonable and wrong.  This category of complaints includes all or parts of grounds 6, 7, 8, 9, 10, 11, 16, 18, 19, 20, 23, 25, 26, 27 and 28.  Much of the practitioner’s submissions in regard to these grounds consist of nothing more than an invitation to this Court to review the evidence before the Tribunal and substitute different findings of fact for those made by the Tribunal, without demonstrating that those findings were in any way infected by error.  In large part, the practitioner’s complaint can be distilled to the proposition that the Tribunal should have found that he made a mistake in the submission he put based on the Perrett matter and that there was no intention on his part to mislead either the magistrate or the Board. 

23. For reasons I have explained elsewhere, I am satisfied that no error has been demonstrated in the findings made by the Tribunal.  It is unnecessary to repeat those reasons.  However, it is necessary to address particular complaints that arise from grounds that do not otherwise fall under the above rubric. 

1. Ground 7 complains of the time taken by the Tribunal to deliver its decision.  The practitioner contends that because of the delay its findings were unreasonable.

2. The conduct with which the Tribunal is concerned was the conduct of the practitioner in the Federal Magistrates Court on 9 July 2008 and the provision by the practitioner of information to the Board in response to a complaint relating to his conduct on that occasion.  That information was provided by the practitioner to the Board between 23 July 2009 and 22 August 2010.  The Tribunal sat to hear the complaint in February and April 2014.  The Tribunal delivered its decision on 25 March 2015. 

3. The practitioner complains that the Tribunal’s decision was affected by  operational delay and the findings could not be supported having regard to the shortcomings of Mr Proud as a witness and the loss of the advantage the Tribunal enjoyed through seeing and hearing the witnesses, in particular, the practitioner, by reason of the delay. 

4. The Tribunal referred to the practitioner’s evidence in the following terms:[50]

   The practitioner gave evidence on two occasions.  The first occasion was on 26 February 2014, commencing before lunch and continuing into the afternoon.  The second occasion was on 11 April 2014 during the course of around an hour and a half.  On the first occasion the practitioner gave his evidence in a careful and measured way.  He was generally responsive to questions from counsel and the Tribunal.  At times he was apt to speak at some length.  On the second occasion the practitioner’s demeanour was quite different.  At times he was then agitated if not indignant.  His manner was, at times, terse. 

   The Tribunal is concerned about a number of the statements made by the practitioner.  We shall return to those.  We were less convinced that the practitioner was endeavouring to assist on the second occasion he gave his evidence.

   [50]   Findings of the Tribunal [51] – [52]. 

5. The principles relevant to the issue of operative delay were addressed in Terry v Leventeris[51] by Gray J, with whom Sulan and Vanstone JJ agreed.  He said:[52]

   [51] [2011] SASCFC 26, (2011) 109 SASR 358.

   [52] [2011] SASCFC 26 at [15], (2011) 109 SASR 358 at 364 – 365.

   In support of the contention that delay should be taken into account when reviewing the judge’s findings, the defendant relied upon the observations of the Western Australian Full Court in the decision of Mount Lawley Pty Ltd v Planning Commission (WA) and upon the observations of the Full Federal Court in Expectation Pty Ltd v PRD Realty Pty Ltd.  Consideration of those two authorities and the cases considered within allows for the following summary of principles to be identified in relation to situations where there has been substantial delay in delivering judgment:

   ·Delay in delivery of judgment does not, on its own, constitute a ground of appeal. However, in certain circumstances, the delay can give rise to a miscarriage of justice or other errors which constitute a ground of appeal.

   ·In circumstances where there has been substantial delay in delivering judgment:

   ·        the delay weakens the advantage, as discussed above in Fox v Percy, that a trial judge has over an appellate court;

   ·        appellate courts are to take the delay into account when reviewing the trial judge’s factual findings and when considering the adequacy of the judge’s reasons;

   ·        the trial judge’s reasons should indicate that he or she has fully considered all of the evidence. It is incumbent upon the trial judge to indicate why he or she rejected the evidence of a particular witness and to indicate why he or she preferred one witness’ evidence over another witness’ evidence;

   ·        assertive statements made by a trial judge which would normally be assumed to have been made after the trial judge comprehensively considered the evidence need to be supported by a more complete statement of the relevant evidence;

   ·        the assumption that a trial judge has considered all of the evidence, albeit not referring to all of the evidence in the judgment, can no longer be made; and

   ·        it is to be borne in mind that disquiet can result in the general public, in the losing party in that they may lose confidence in the correctness of the decision, and in the winning party in that they may feel they have had to wait too long for justice.

   [Citations omitted].

6. As was observed in that case, the question of what amounts to substantial or excessive delay is problematic.  Much depends on the circumstances of the case and the complexity of the legal and practical issues arising.  In this matter I would not categorise the delay as substantial or excessive having regard to those considerations.  The reasons of the Tribunal are thorough and extensive. The Tribunal’s findings of fact are supported by the evidence.  Moreover, the Tribunal explained in its reasons, as I have discussed earlier, the evidentiary basis for the findings it made.  In large part the findings of fact relied upon documentary evidence, including the transcript of the proceedings before Simpson FM.  The Tribunal also had the benefit of the transcript of the evidence and submissions made before it.  Further, the Tribunal had extensive written submissions from the parties.  The Tribunal explained the basis upon which it preferred the evidence of Mr Proud over the practitioner.  To the extent that the Tribunal, in making those findings, relied upon the subtle effects of demeanour, the Tribunal made that clear.  Where that was the case there was little more that the Tribunal could say. 

7. The complaints in grounds 8, 9, 10 and 11 concern arguments that the Tribunal failed to direct itself properly in relation to credibility findings concerning the practitioner and Mr Proud.  There is no merit in these arguments.  As I have discussed, there was a clear conflict in the evidence between these witnesses.  The Tribunal addressed the dispute and explained the basis upon which it preferred the evidence of Mr Proud to that of the practitioner.  There was no need for the Tribunal to direct itself as to how to deal with the conflict.  The conflict was obvious.  The Tribunal addressed the conflict in the evidence and resolved the conflict by making findings based, in part, on the credibility of the two witnesses.  It was entitled to do so.  No error has been demonstrated in this approach. 

8. Ground 19 is a complaint that the Tribunal failed to consider the email from Mr Gargan to the practitioner which was copied to Mr Proud and purports to be dated 9 July 2008 at 10:57 a.m.

9. The Tribunal did not specifically address the email in its reasons.  However, the Tribunal is not required to address every piece of evidence or argument relied upon by the practitioner.[53]  Neither is the Tribunal obliged to make an express finding in respect of every fact relevant to a final conclusion of fact.[54]  For reasons explained earlier, the evidence of the email is not inconsistent with the finding made by the Tribunal that during the adjournment in the Federal Magistrates Court on 9 July 2008 it was Mr Gargan rather than Mr Goyan who provided the practitioner with the list of cases which formed the basis of his submission to Simpson FM.[55]  Further, in any event, also for reasons previously explained, this controversy was of limited relevance to the ultimate issue.

   [53]   Whisprun Pty Ltd v Dixon [2003] HCA 48 at [62], (2003) 77 ALJR 1598 at 1610.

   [54]   Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 at 271.

   [55] Findings of the Tribunal at [97].

10. Grounds 20 and 23 are complaints that the Tribunal made adverse findings against the practitioner concerning his state of mind without these matters being expressly put to him contrary to the rule in Browne v Dunn.[56]The rule in Browne v Dunn does not apply where a witness or a party is on notice that his or her version of events is in contest.  That notice may come from the pleadings[57] or it may come from the general manner in which the case is conducted.[58]  In Legal Practitioners Conduct Board v Colton[59] I held that no proper basis had been established for a finding of unprofessional conduct to be made in circumstances where it had not been put to the practitioner that he had deliberately intended to mislead the Conduct Board.  I said:[60]

    In this matter, it not having been put to the practitioner that in making the statements to the Board, found by the Tribunal to be misleading, he had done so with the deliberate intention of deceiving the Board, no proper foundation has been established upon which I would be prepared to proceed to find that the practitioner was guilty of unprofessional conduct. 

    [56] (1893) 6 R 67 (HL).

    [57]   Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168 at 181; Australian Competition and Consumer Commissioner v J McPhee & Son (Australia) Pty Ltd (No. 3) [2000] FCA 365 at [103], (2000) 172 ALR 532 at 563; Stern v National Australia Bank Ltd [2000] FCA 294 at [42] – [44], (2000) 171 ALR 192 at 203.

    [58]   Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219 at 236.

    [59] [2012] SASC 118, (2012) 113 SASR 467.

    [60] [2012] SASC 118 at [53], (2012) 113 SASR 467 at 485.

11. Colton’s case is readily distinguishable from this case.  In relation to count 1 the charge of unprofessional conduct is expressly founded on the allegation that the practitioner engaged in unprofessional conduct on 9 July 2008 by providing information to Simpson FM at the hearing knowing that the information was misleading or, in the alternative, being reckless as to whether the information was misleading.  Likewise, in relation to count 2, the charge expressly alleged that the practitioner engaged in unprofessional conduct between 23 July 2009 and 22 August 2010 by providing information to the Board in his responses to the Board’s requests for information knowing that the information he provided was misleading or, in the alternative, being reckless as to whether the information he provided was misleading. 

12. The practitioner in this case plainly was put on notice that the information he had provided to the magistrate and to the Board was not only misleading but that he knew it to be misleading or was reckless as to whether it was misleading.  It was not necessary for this to be put to him directly to satisfy the rule in Browne v Dunn.  He was already on notice.  There was nothing unfair about the findings made given that the relevant facts upon which the charges were based were put to him when he gave evidence before the Tribunal. 

13. Ground 27 complains that the Tribunal’s findings at sub-paragraphs [97.3] and [97.4] are inconsistent and that the finding at sub-paragraph [97.4] cannot be made out because of the finding at sub-paragraph [97.3].  I do not accept these submissions.  They involve a misunderstanding of the effect of each of the Tribunal’s findings at sub-paragraphs [97.3] and [97.4]. 

14. Both findings concern an email sent by the practitioner to the Board on 7 May 2010.  In relation to the finding at subparagraph [97.3], at issue is whether the practitioner misled the Board by informing it that when he spoke to Mr Proud, Mr Proud told the practitioner that the information concerning the cases the practitioner put in his submission to Simpson FM on 9 July 2008 had come from Mr Goyan.  By the time Mr Proud gave evidence before the Tribunal in 2014 the Tribunal found that Mr Proud could no longer remember what was said in the conversation with the practitioner in 2010.  Accordingly, the Tribunal was not prepared to find that the practitioner had misled the Board in suggesting in the email of 7 May 2010 that he had spoken to Mr Proud and that Mr Proud’s recollection was that the information concerning the cases was provided to the practitioner during the adjournment by Mr Goyan rather than Mr Gargan.  The Tribunal was not prepared to find the particular proved because of Mr Proud’s inability to remember the details of the conversation he had had with the practitioner in 2010.  The Tribunal’s conclusion turns on the failure of the respondent to discharge the onus of proof. 

15. On the other hand, the finding at sub-paragraph [97.4] concerns the omission by the practitioner to advise the Board in the same email that it was Mr Gargan who provided him with the information concerning the four cases during the short adjournment on 9 July 2008.  The Tribunal found that the practitioner had misled the Board by failing to identify Mr Gargan as the source of that information.  This concerns the truth of the position as to what occurred on 9 July 2008 rather than what was said between the practitioner and Mr Proud in 2010.  The finding in sub-paragraph [97.4] follows from the Tribunal’s finding that it was Mr Gargan rather than Mr Goyan who had provided this information to the practitioner during the adjournment in the proceedings before Simpson FM on 9 July 2008.  There is no inconsistency between this finding and the finding in sub-paragraph [97.3].  No error has been demonstrated in this finding. 

16. None of the grounds of appeal succeed.

    Notice of alternative contentions

17. As I would dismiss the appeal it is unnecessary to address the notice of alternative contentions.  I consider the gravity of the practitioner’s unprofessional conduct as found on count 2 would not be increased if the allegations particularised in particulars 1.3 and 1.3.1 were found proved. 

    Conclusion on the appeal

18. I would dismiss the appeal. 

    Cross-appeal

19. The respondent has cross-appealed against the decision of the Tribunal on count 1 that the practitioner was not guilty of unprofessional conduct but guilty of unsatisfactory conduct.  The respondent submits that the Tribunal erred in characterising the practitioner’s conduct, which it found proved, as constituting no more than unsatisfactory conduct.  It submits that the degree of recklessness involved in the practitioner’s conduct was such that it amounted to unprofessional conduct because it involved a substantial failure to meet the standard of conduct observed by competent legal practitioners of good repute.  Ms Nelson QC, counsel for the respondent, submits that the Tribunal erred in concluding that in this case the recklessness involved a failure to check information and provide better information about the case of Perrett, or a failure to make adequate disclosure about the limitations in the reliability of that information.  She submits the practitioner’s recklessness went beyond these matters.  She submits the practitioner was putting to the magistrate material which, on his own evidence, came from a vexatious litigant who was obsessed with trial by jury.  She submits the cavalier approach the practitioner adopted was such as to take his conduct outside of the category of unsatisfactory conduct and into the category of unprofessional conduct. 

20. Unprofessional conduct and unsatisfactory conduct were, at the relevant time, defined in s 5(1) of the Legal Practitioners Act 1981 (SA). “Unprofessional conduct” meant conduct involving “substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute”. “Unsatisfactory conduct” was defined as conduct that is less serious than unprofessional conduct but involves “a failure to meet the standard of conduct observed by competent legal practitioners of good repute”.

21. It is relevant in this case that the distinction between “unsatisfactory conduct” and “unprofessional conduct” is that the former involves a substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute whereas the latter is less serious conduct of the same character but neither substantial or recurrent.  In this case the misconduct alleged in count 1 was not recurrent.  At issue is whether it was “substantial” so as to fall within the category of “unprofessional conduct”.

22. These definitions recognise that there is a category of unsatisfactory conduct by a legal practitioner which, while warranting disciplinary action against the practitioner, falls short of the category of misconduct considered to constitute unprofessional conduct by a practitioner.

23. The Tribunal, having found the charge in count 1 proved on the basis that the submission made by the practitioner to Simpson FM on 9 July 2008, while misleading, was not knowingly but rather recklessly misleading, had to consider whether those facts as found proved, warranted a finding that the practitioner had engaged in unprofessional conduct or, alternatively, unsatisfactory conduct.  The Tribunal was bound to consider that issue by reference to all the circumstances, including the relevance and materiality of the submission made to the magistrate, the magnitude of the risk that the submission was false or inaccurate, the duties owed by the practitioner to the court and the intended use to be made of the submission.  All these circumstances had to be evaluated, on an objective basis, to determine whether the practitioner engaged in unprofessional conduct or unsatisfactory conduct.[61] 

    [61]   Giudice v Legal Profession Complaints Committee [2014] WASCA 115 at [99].

24. Given the evidence before the Tribunal, I consider the practitioner was fortunate that he was not subject to a finding that he knowingly misled the magistrate.  In my view, such a finding was an available inference from the primary facts found by the Tribunal.  Had that finding been made, there is no doubt that a finding of unprofessional conduct would have been made.  A deliberate attempt to mislead the Court on the part of a practitioner would constitute unprofessional conduct.  But that was not the finding the Tribunal made.  The respondent does not submit that the Tribunal erred in not finding the practitioner knowingly misled the magistrate.  The Tribunal had regard to all the circumstances in concluding that the practitioner’s recklessness involved a failure to check information and provide better information about the case of Perrett or a failure to make adequate disclosure about the limitations and the reliability of that information.  The finding was open on the evidence and has not been demonstrated to be erroneous, however fortunate I consider the practitioner to be in escaping a finding that he knowingly misled the magistrate.  While the Tribunal found Simpson FM appeared to be influenced by the practitioner’s submission based on the four cases,[62] the Tribunal was undoubtedly correct to evaluate his conduct on the basis that he was acting under some pressure to obtain information during a short break in proceedings, and when he made the submission he was dealing with matters which he had only just been instructed to raise.[63]  On the basis of those findings the Tribunal was required to undertake the evaluative exercise I described above in order to determine whether on the basis of those findings the practitioner engaged in unprofessional conduct or unsatisfactory conduct.

    [62] Findings of the Tribunal [34].

    [63] Findings of the Tribunal [102].

25. Given the nature of the appeal conferred pursuant to s 86 of the Legal Practitioners Act this Court should give proper deference to the expertise of the specialist tribunal established by the Act and charged with the duty of hearing and determining charges under that Act by making findings of fact and determining whether a practitioner is guilty of unprofessional conduct or unsatisfactory conduct.  While it is open to the Court to conclude that in undertaking that exercise the Tribunal has fallen into error, I am not satisfied in that case that its conclusion is infected by error.  Accordingly, I reject the submission that the Tribunal erred in failing to conclude that the “cavalier approach” of the practitioner in the discharge of his duty of complete candour and frankness towards the Court takes his conduct out of the category of “unsatisfactory conduct” and into the category of “unprofessional conduct”.   I do not consider that there has been an error in the exercise of the evaluative judgment required by the Tribunal in characterising whether the practitioner’s conduct was or was not a substantial failure to meet the standard of conduct observed by competent legal practitioners of good repute.  In this regard I note that as at 9 July 2008 r 14.1 of the Law Society of South Australia’s Rules of Professional Conduct and Practice provided that a practitioner must not knowingly make a misleading statement to a court (emphasis added).  The Tribunal’s finding that the practitioner did not knowingly mislead the magistrate tells against a finding that his conduct should be characterised as unprofessional conduct rather than unsatisfactory conduct.   

1. Accordingly, I would dismiss the cross-appeal.

   Disposition of the appeal

2. I would dismiss the appeal and the cross-appeal.  I would hear the parties as to costs. 

3. PARKER J:          I would dismiss the appeal and cross-appeal for the reasons given by Stanley J.

4. DOYLE J:             I agree with Stanley J, and would dismiss the appeal and cross appeal for the reasons for which he has given.