Twigley v New Zealand Law Society

[2023] NZHC 3537

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CIV-2023-404-001738

[2023] NZHC 3537

UNDER

the Lawyers and Conveyancers Act 2006 (LCA)

IN THE MATTER OF

an Appeal under Section 253 of the LCA

BETWEEN

CHRISTOPHER MANSON TWIGLEY

Appellant

AND

THE NEW ZEALAND LAW SOCIETY

Respondent

Hearing:	22 November 2023
Appearances:	S R Jefferson KC for the Appellant P N Collins for the Respondent
Judgment:	6 December 2023

JUDGMENT OF WHATA J

This judgment was delivered by me on 6 December 2023 at 4 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar Date: ………………………….

Solicitors / Counsel:

Trinity Chambers, Auckland NZLS, Auckland

TWIGLEY v THE NEW ZEALAND LAW SOCIETY [2023] NZHC 3537 [6 December 2023]

Introduction

[1]                  This is an appeal against the refusal of the New Zealand Lawyers and Conveyancers Disciplinary Tribunal (Tribunal) to restore Mr Twigley to the roll of barristers and solicitors.1 The central issue is whether the Tribunal erred in any material way in refusing to reinstate Mr Twigley so he could act on his own account.

Background

[2]                  Mr Twigley was struck off the roll of barristers and solicitors by an order of the   New   Zealand   Lawyers   and    Conveyancers    Disciplinary   Tribunal    on 19 December 2016.2 Mr Twigley admitted six charges of misconduct representing a range of serious failures to clients. Four charges related to the use of client funds without authority.3 A further charge related to a personal loan obtained from a client without advising him that it would create a potential conflict or informing him there were existing securities in respect of the securities that formed part of the loan agreement.4

[3]                  In forming a view about penalty on these charges, the Tribunal considered that Mr Twigley’s understating of the concept of conflict was flawed and that he needed to reflect further on his actions.5 It also said:

[70]      Generously, but we consider accurately, Mr La Hood submitted that it was not the Standards Committee position that Mr Twigley was normally dishonest in the manner which had been demonstrated. He had conducted himself well earlier in his career. It was accepted that he was fighting for his professional life and, having worked hard to build up a practice, was so desperate that he lost judgment and objectivity in the manner in which he conducted himself.

[71]      Mr Twigley was clearly under great pressure at this time, which we accept affected his health. He disclosed in evidence that he was taking anti- depressants at the relevant time. To his credit Mr Twigley never sought to excuse his conduct on this basis but we do accept that his health issues could have had some impact on his ability to think clearly and on his judgment.

1 `    There is also an appeal against the costs order, but this was to be abandoned if this appeal did not succeed.

2      Wellington Standards Committee 2 v Twigley [2016] NZLCDT 37.

3      At [62]–[66].

4 At [42].

5 At [69].

[4]                  The Tribunal referred to previous disciplinary findings, including five findings of unsatisfactory conduct between March 2011 and March 2016. One of those matters concerned grossly excessive fees.6

[5]In striking Mr Twigley from the roll, the Tribunal observed:

[86]      We record that we are unanimous in our view that no penalty short of strike-off would be a proportionate response to the very serious offending of this practitioner, as found by us. We have had regard to the fact that the use of client funds to continue a practice which was in desperate financial straits occurred on at least three occasions.

[87]      We are also seriously concerned about a practitioner borrowing funds from clients particularly in the significant sum borrowed from Mr Y, and in the lesser sum from Mr HP. The lack of insight to the huge dangers to the client by such conduct, without the provision of independent legal advice is of serious concern and requires careful reflection by the practitioner.

[88]The consequences for these clients have been very significant.

[89]      The integrity of the trust account and the duty of fidelity to the client have been breached on a number of occasions by this practitioner, during the dying days of his practice. No response other than removal from the ability to practice for an indefinite period could be regarded as responsible. The Tribunal’s responsibility to take account of the purposes of the Act, in the maintenance of public confidence in the provision of legal services and protection of consumers of legal services leaves us with no other alternative.

[6]                  The Tribunal also, relevantly, observed:

[90]      We wish to state however that we were impressed by the practitioner’s conduct during the hearing and leading up to the hearing, in terms of his cooperation with the process and dignified manner in which he conducted himself.

[91]      Given his prior conduct as a lawyer up until 2011 we consider that he may well be capable of rehabilitation and redemption in due course.

Tribunal’s present decision

[7]                  Mr Twigley applied to be restored to the roll 16 February 2023. In rejecting Mr Twigley’s application, the Tribunal identified the seriousness of his past conduct for which he was struck off as well as other past conduct. The Tribunal said:7

6 At [73].

7      Twigley v New Zealand Law Society [2023] NZLCDT 28 at [10].

[10] The findings as to his conduct and the description above  is  not disputed by the applicant. We accept the submission of Mr Collins, for the respondent, that “the applicant’s transgressions which resulted in his striking off were in the most serious category for a lawyer, including repeated instances of theft of client trust money”.

[8]                  In relation to other past conduct: 8

One noteworthy feature of these findings is that they reveal a repetition of behaviour. The 2018 finding (which related to conduct in 2013) appeared in almost identical circumstances as that for which a finding had been made against the applicant over conduct occurring in late 2009. The inference is that Mr Twigley did not learn from the earlier disciplinary finding against him.

[9]                  The Tribunal referred to affidavits filed in support of Mr Twigley, and accepted since the striking off, Mr Twigley has adopted a “community-minded and unselfish approach to helping others in need.”9 The Tribunal, however, also observed it cannot place weight on the positive references from his family members.10

[10]              The Tribunal was not happy with the fact that Mr Twigley had omitted from a lengthy chronology of his background the fact that he had been bankrupted earlier in his life. The Tribunal said: 11

This is relevant because the tone of Mr Twigley’s first lengthy affidavit was that, until the factors which began to operate on him following his marriage breakdown, he had had a productive and a blemish-free working life. It is of concern to the Tribunal that Mr Twigley had, at an earlier time of his life, encountered significant financial difficulties leading to his declaration of bankruptcy. This is because he says his financial pressures led to his lapse in ethics and professional standards in 2014 and 2015, leading to his strike-off. We consider there is more of a pattern in his behaviour than Mr Twigley  recognises.

[11]              The Tribunal doubted that Mr Twigley had a clear and definite plan forward, observing that Mr Twigley proposed to be located in Bay of Plenty without access to mentoring support. It found that Mr Twigley was unable to provide the Tribunal with any clear evidence as to how he would meet his commitments including professional education, access to legal library services, pay for premises and for practising fees and insurance.12

8 At [12].

9 At [18].

10 At [19].

11 At [20].

12 At [24].

[12]              The also Tribunal noted:

(a)Mr Twigley had not had any professional assistance in the self- reflection and self-awareness that he now claims to have.13

(b)His evidence did not give them confidence that he fully understands just how wrong it was to have borrowed from his former client in the first place.14

(c)Mr Twigley has not been moved to attempt to provide an apology to his former client.15

(d)His debts at the time of his bankruptcy included fines and costs from a number of disciplinary proceedings, did not feature in his assessment of his own readiness to be readmitted to the profession.16

[13]              The Tribunal accepted that Mr Twigley honestly believes that he has learned his lessons, but it did not consider that this evidence provides “valid and substantial ground” for readmission and expressed concern with Mr Twigley’s tendency to minimise his past behaviour and therefore failure to fully recognise what he has to establish to be accepted as a fit and proper person again. 17

[14]              The Tribunal observed that Mr Twigley’s capacity to cope with ethical and financial pressures in future is significantly lacking. It concluded:

[41] We have undertaken the proportionate but  protective  evaluation, having regard to the high standards which must be reflected in the consideration of what is required to be a fit and proper person. Even with a forward looking approach, we do not consider that Mr Twigley has discharged the onus upon him to demonstrate on “valid and substantial grounds” that he can be endorsed to the public by this Tribunal.

13 At [33].

14 At [34].

15 At [34].

16 At [34].

17 At [38].

Grounds of appeal

[15]              Mr Twigley helpfully summarised his key grounds of appeal in his submissions as follows:

119.The Tribunal decision contained a number of factual errors. These included:

(a)There were not six past conduct findings.

(b)There was not repetition of behaviour.

(c)Mr Twigley did disclose his first bankruptcy.

(d)Mr Twigley did provide sufficient evidence of structure and support for his practice if reinstated.

(e)Mr Twigley’s decision not to take up a job offer by Mr Liu in Auckland was not only because his partner wished to study law at Waikato University.

(f)Mr Twigley was not planning to re-establish himself in practice with insufficient financial means.

(g)Mr Twigley did have a sufficient understanding and acceptance of how wrong it was to have borrowed money from his client Mr Y.

(h)Mr Y’s $150,000.00 loan was repaid to some extent by way of a set off for goods in kind.

(i)Mr Twigley did apologise to Mr Y for not being able to repay his loan.

(j)Mr Twigley’s office equipment and furniture were not held in storage pursuant to a court order.

(k)Mr Twigley’s financial responsibility did not go further than his bankruptcy.

(l)Mr Twigley did not have a tendency to minimise past behaviour.

120.When these errors are taken together the result is that the determination to decline Mr Twigley’s application for reinstatement was wrong. The prejudicial effect of these errors led the Tribunal to decline Mr Twigley’s application.

121.The Tribunal unfairly made assumptions and inferences not supported by the evidence. The major one being the inference that because in the past Mr Twigley had made the errors that led to him being struck off due to financial pressures if faced with the same financial pressures in the future, he would make the same errors. Therefore, he poses a risk to the public and the profession.

122.The Tribunal took into account and gave weight to irrelevant matters. These included the disciplinary findings against Mr Twigley that did not involve conduct that led to him being struck off. Also, the inference that he may have intentionally not disclosed his first bankruptcy.

123.The Tribunal did not give sufficient or in some instances any weight to Mr Twigley’s supporting evidence. In particular Mr Liu’s evidence that he is willing to support Mr Twigley by being his supervisor and practice attorney. The Tribunal did not mention this in the decision.

124.The Tribunal did not put any weight on Mr Twigley’s proposals designed to eliminate any future risk to the public and the profession. The Tribunal did not mention these in the decision.

125.The Tribunal fell into error by looking at the application retrospectively instead of prospectively. Past disciplinary findings that did not lead to Mr Twigley being struck off were effectively relitigated. Mr Twigley’s historical bankruptcy 33 years in the past was given some weight in the decision by the Tribunal.

126.The Tribunal did not put any weight on Mr Twigley’s character evidence and his moral and ethical conduct over the 8 years since being struck off.

127.The Tribunal erred by limiting the scope of the evaluation to determine whether Mr Twigley is a fit and proper person. It is submitted this may have occurred as the Tribunal gave little or no weight to relevant portions of Mr Twigley’s evidence.

128.The Tribunal gave inadequate recognition to the public interest in Mr Twigley’s redemption and the future service he could provide.

129.The Tribunal stated they had taken a proportionate and protective evaluation and a forward-looking approach in determining whether Mr Twigley is a fit and proper person to be readmitted as a lawyer. However, I submit on the basis of the points I have raised the evaluation was not proportionate and the decision to decline Mr Twigley’s application was wrong.

[16]              These grounds were supplemented in oral argument by Mr Jefferson KC who submitted:

(a)The Tribunal failed to correctly apply the threshold principles to the evidence, and in particular failed to give proper vent to the principle of redemption.

(b)The Tribunal failed to acknowledge that Mr Twigley’s willingness to be subject to conditions — at the hearing before me, Mr Twigley

offered up draft conditions including that he would not receive monies on trust and he would operate under the supervision of David Liu for one year.

(c)The Tribunal took into account irrelevant matters, including in particular speculation about Mr Twigley’s financial circumstances, his initial failure to disclose his bankruptcy in 1990 and the absence of “professional assistance in self-reflection”.

[17]Mr Collins for the Society responds that the Tribunal correctly:

(a)undertook a careful analysis of the conduct involved in striking off and the earlier adverse disciplinary findings;

(b)considered Mr Twigley’s evidence about his activities since striking off;

(c)ascribed little or no weight to references;

(d)took into account Mr Twigley’s financial position as part of a forward looking exercise in light of past wrongdoing;

(e)formed an adverse impression of the non-disclosure of the first bankruptcy;

(f)relied on the lack of evidence concerning his ability to meet his financial commitments in legal practice; and

(g)identified his lack of insight into his past wrongdoing and lack of candour about his prior bankruptcy.

Assessment

[18]Section 246 of the Lawyers and Conveyances Act 2006 states:

246     Restoration of name to roll or register

(1)Any person whose name has been struck off the roll under this Act or, before the commencement of this Act, under the Law Practitioners Act 1982 or the Law Practitioners Act 1955 may, in accordance with rules made under this Act, apply to the Disciplinary Tribunal for the restoration of his or her name to the roll.

(2)Any person whose registration as a conveyancer has been cancelled under this Act may, in accordance with rules made under this Act, apply to the Disciplinary Tribunal for the restoration of his or her name to the register.

(3)On hearing an application under subsection (1) or subsection (2), the Disciplinary Tribunal, if satisfied that the applicant is a fit and proper person to practise as a barrister or as a solicitor or as both, or as a conveyancing practitioner, may order that the applicant’s name be restored to the roll or register, as the case may require.

(4)An order under subsection (3) may impose the condition that the applicant must not practise as a solicitor or as a conveyancing practitioner on his or her own account, whether in partnership or otherwise, until authorised by the Disciplinary Tribunal to do so.

(5)Subsection (4) does not limit subsection (3).

(6)No application by a person for the restoration of his or her name to the roll or to the register of conveyancers may be made except under section 60 or under this section.

[19]              As the Full High Court said in Leary:18

[7] An applicant for  admission,  or readmission, to the  legal profession must persuade this Court that he or she “is of good character and a fit and proper person to be admitted” (s 46(2)(a)(ii)) and, in the case of a restoration application, we accept the observation in L (at p 473) that “the greater the fall from grace the more the ground to recover before reinstatement”. The gist of the Court of Appeal’s observations in Re Lundon (J R) [1923] NZLR 236 at pp 242 – 243 remains apposite:

It is well settled by authority that a solicitor is not so dealt with by way of punishment. He is removed from the rolls because he is deemed unfit to be further trusted with the powers, rights, and duties attached to the responsible position of a solicitor of the Supreme Court. He is deprived of that position not by way of penal discipline in respect of offences committed by him, but for the purpose of protecting the public and the administration of justice from the danger involved in the continued authority of a solicitor who by his conduct has shown that he is not fit to be trusted with the possession of such an office. On an application for readmission, therefore, the question whether the period of his deprivation of office has been long enough to constitute an adequate punishment for his offence is wholly irrelevant. The true question is not whether he has been sufficiently punished, but whether his conduct since his removal has been such as

18     Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57 (HC) at [7].

to demonstrate to the satisfaction of the Court that he is now a fit and proper person to be admitted as a solicitor, and that he no longer possesses that disqualifying character which was formerly held to exist and to justify his removal from the rolls.

[20]              The full Court also cited with approval the following passage from the judgment of Kirby P in Law Society of New South Wales v Foreman:19

Because the jurisdiction is for the protection of the public, regard also may be had to the public’s interests in the restoration to the Roll of such persons as have demonstrated, including by their work, activities and life, a fitness to be restored. For cultural and historical reasons, redemption and forgiveness are important attributes of the shared morality of our society. In part, this is because of the teachings of religious leaders who have profoundly

influenced our community’s perception of justice and fairness, reflected from earliest times in the courts: see, eg St Matthew’s Gospel 18, 11ff;

The Acts, 3, 19. In part it derives from the self-interest which any

community has to encourage the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society. The public’s interest also includes the economic interest, which is involved in utilising, to the full, the skills of talented people who have undergone years of rigorous training but who, having misconducted themselves, have had to be removed for a time from positions of responsibility and trust.

[21]              The guidance given by the Supreme Court in New Zealand Law Society v Stanley in relation to s 55 also resonates in the present context:20

[54]From this discussion, the relevant principles can be summarised in this way:

(a)        The purpose of the fit and proper person standard is to ensure that those admitted to the profession are persons who can be entrusted to meet the duties and obligations imposed on those who practise as lawyers.

(b)        Reflecting the statutory scheme, the assessment focusses on the need to protect the public and to maintain public confidence in the profession.

(c)        The evaluation of whether an applicant meets the standard is a forward looking exercise. The Court must assess at the time of the application the risk of future misconduct or of harm to the profession. The evaluation is accordingly a protective one. Punishment for past conduct has no place.

19     Leary v New Zealand Law Practitioners Disciplinary Tribunal [2008] NZAR 57 at [29], citing

Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 (CA) at 419.

20     New Zealand Law Society v Stanley [2020] NZSC 83, [2020] 1 NZLR 50 at [.

(d)        The concept of a fit and proper person in s 55 involves consideration of whether the applicant is honest, trustworthy and a person of integrity.

(e)        When assessing past convictions, the Court must consider whether that past conduct remains relevant. The inquiry is a fact- specific one and the Court must look at all of the evidence in the round and make a judgement as to the present ability of the applicant to meet his or her duties and obligations as a lawyer.

(f)        The fit and proper person standard is necessarily a high one, although the Court should not lightly deprive someone who is otherwise qualified from the opportunity to practise law.

(g)        Finally, the onus of showing that the standard is met is on the applicant. Applications are unlikely to turn on fine questions of onus.

[22]              Dealing first with the alleged factual errors, I do not consider that the Tribunal made any material factual error, failed to have regard to relevant matters or had regard to irrelevant matters. In reality, the evidence of past misconduct (including of theft of client funds and overcharging) supports a finding that Mr Twigley presents a real risk of abusing his clients’ trust when in times of personal and financial stress. There is little, if any, evidence to support a finding that Mr Twigley is well placed financially, and this is relevant to whether he continues to present the type of risk just mentioned. Significantly, on the case as presented to the Tribunal, Mr Twigley was not planning to re-establish himself with the benefit of direct mentorship or direct oversight, preferring instead to recommence practice as a lawyer in Hamilton to be near his partner who is (or will be) studying law.

[23]              As to the adverse findings made about Mr Twigley, he did not refer to his prior bankruptcy until the omission to do so was highlighted to him by Mr Collins. While a differently constituted Tribunal could have reached a different conclusion, it was open to this Tribunal to infer that such omission suggests lack of candour.21 It was also available to the Tribunal to find that Mr Twigley continued to lack insight into his misconduct — for example the reference in his affidavit evidence to his client’s self- help as “theft” of his property exemplifies this point. Finally, while Mr Twigley

21 I record for completeness that Mr Collins questioned Mr Twigley about his omission and thus afforded him the proper opportunity to respond. Accordingly, it was available to the Tribunal to draw an adverse inference of lack of candour from this omission. As Mr Collins also quite properly noted in oral argument, the decision not to reinstate and this appeal does not hinge on this omission.

accepted his wrongdoing, there was no express statement of remorse by him or any other statement that unequivocally indicated a full appreciation of the harm caused by him.

[24]              Overall, therefore, I am satisfied it was available to the Tribunal to find that Mr Twigley lacked the insight into his past conduct and is not presently suitable to act on his own account. On my review of the evidence, I am content to join them in that conclusion.

[25]              Turning to the alleged errors of principle, the core of Mr Twigley’s complaint is that the Tribunal was unduly backward looking rather than forward looking, and in so doing, failed to give  appropriate weight  to  the totality  of the  evidence  as to  Mr Twigley’s character, including the evidence of many years of good practice and of self-improvement undergone by him in the intervening eight years since he was struck off.

[26]              I have greater sympathy for Mr Twigley on this point. With respect, the written reasons given by the Tribunal suggest only limited weight was given to the many years of good, honest lawyering undertaken by Mr Twigley and to the positive rebuilding undertaken by him since he was struck off and, relevantly, also in a time of great personal and financial adversity. I pause here to reflect on some of the testimonials afforded on his behalf to make these points:

Professional

a)   I worked as a staff Solicitor for Mr Twigley at his practice known as Eastland Legal from August 2009 until the practice was sold at approximately September 2010.

While I had no access to the trust or practice account during my role, I was not aware of any complaints from clients and my general perception was that the trust and practice accounts were run appropriately and professionally and that the firm was prosperous.

Mr Twigley had a large client base at Eastland Legal and all client said seemed very trusting of Mr Twigley and regarded him very highly. As a team member, I can say that there were never any issues with payment of my salary and that Mr Twigley created a very positive and collegial team environment and was well respected by all members of the team.

I began working for Chris on 18 October 2004. I left my employment with Chris at the end of 2006...Since I left my employment with Chris at

the end of 2006 we have kept in contact. When Chris was facing disciplinary charges in 2016 I wrote him a character reference. I did that because at that point in time I had known him for about 12 years and knew him to be a man of integrity and good character.

b)   I am aware of the details of the disciplinary charges that resulted in Chris being struck-off. On the basis of my personal knowledge of Chris’s character gained from working with him, being taught by him how to practice law, socialising with him and observing how he generally conducts himself; I think his misconduct in 2014 was completely out of character.

...I understand if Chris was permitted to re-enter the profession he may benefit from being supervised for a period of time. I am willing to accept the supervisory role in relation to Chris’s practice.

c)   I first met Chris when I joined David Stone’s office in Pakuranga in approximately 1999. Chris was working there as a Senior Solicitor, and  I joined as a Legal Executive. Chris left Dave Stone’s office in 2001 setting up his own practice in Howick. Chris offered me a position with him, and I really did not hesitate in accepting. I joined Chris in his Howick practice at the beginning of 2002.

I worked closely with Chris, being appointed an Associate of his firm over time, until the time he sold the practice in 2010.

Reflecting on my time with Chris I found him to be honest, reliable, hardworking, focussed and a professional who complied with the rules of conduct and client care. In my view, he excelled in his position both as a Solicitor and a Principal of the firm and was an excellent example to his staff. I believe Chris always had the interest of his clients and staff in mind and this showed with very low staff turnover and with how many clients continuously returned. May Real Estate Agents and clients also referred to Chris resulting in a successful thriving business. It was a sad day when the business sold, which was due to a marriage breakdown and Chris deciding to leave Auckland.

...The Chris that I knew and worked so closely with for 8 years (which I am confident would have continued to this day if he had continued on with his practice in Auckland), I feel confident saying that his offending was a unique event that is unlikely to happen again if he is given a second chance.

d)   I was employed by Chris as a solicitor for approximately 5 years between 2005-2010. This was my first job out of law school and the foundation of my legal career.

...Chris was a great leader and mentor to me during my years working for him. He taught me the fundamentals about being a good lawyer. I found him to be extremely honest and reliable and committed to providing good quality service to his clients. These were values that he instilled in me and the rest of his team.

...I joined Chris as a salaried director of the firm in approximately 2009. In my role as a salaried director, I believe Chris was completely

transparent with me in terms of the financial and reporting obligations of the firm. He was conscientious about complying with this trust account obligations and professional standards and I can’t recall ever having any cause for concern in how the practice was being run.

...Unfortunately, due to unexpected personal circumstances, Chris’s situation changed dramatically in 2010, he sold the practice and relocated to Gisborne.

Personal

a)   So, in February 2020 when Chris replied to my advert, I was extremely relieved and grateful to have him help me. From the outset he was very calm, friendly and considerate. I had been served with thousands of pages of document filed by the FWO which I gave him to read. Unfortunately, I had not kept a copy of everything which on reflection I think made Chris’s job difficult.

Between February 2020 and December 2020 with Chris’s advice and help drafting documents for me I was finally able to answer the case against me.

...By the time the trial recommenced on 1 December 2020 I also had written lists of cross-examination questions, submissions on specific issues, and I had Chris available at short notice to provide any advice I needed. I was in a much better position than I had been in the first five days of the trial.

...My experience in deal with Chris has been very positive and productive. He is honest and trustworthy. He is extremely empathetic and considerate. He is consistently respectful towards me, and even in difficult situation he keeps his sense of humour.

b)   In July 2020 from my position as driver at the Builders and Trading Cooperative, without notice or an opportunity to discuss with the manager the issues raised, in my termination letter.

...This was when I reached out to Chris for assistance, initially it was just to get his opinion on the circumstances around my termination and, did he think that the Builders and Trading Cooperative had a case to answer to.

Chris felt I had a case, and immediately offered to assist me. Chris was very methodical in his research, explained to me in plain English what I needed to do at every stage of this long process. Chris me with me on multiple occasions to complete the many forms, and drafted responses for my review for submission to the Fair Work Commission.

Chris was also present to provide me support and advice when my case was heard by the Fair Work Commission.  This helped me immensely as I was extremely nervous, as it was the first time since my termination that I would have to speak to my old manager and colleagues. Throughout the conference Chris kept me on track with the plan he had developed and practiced with me.

Resulting in my case being successful and my previous employer was found to have terminated me unfairly, this was a huge relief and enabled me to move on.

Throughout this whole process, approximately 7 months, I offered to pay Chris for his services. Each time he refused advising that he enjoyed working with me and was glad to be able to help in what was a very difficult period.

[27]              In my view, the foregoing reveals that for the majority of his working life, and since he was struck off, Mr Twigley exemplified the characteristics of a fit and proper person to act as a barrister and solicitor. This is to be contrasted with a relatively short period where he fell well below the standards expected of lawyers. For my part, this combination of background facts strongly brings into focus the principle of redemption and the identification of a pathway for return. It appears to me the Tribunal, having identified the ongoing risk presented by Mr Twigley, did not fully explore that potential, and in particular, reinstatement subject to s 246(4) conditions.

[28]              Having said that, Mr Twigley did not strongly advance his case before the Tribunal on that basis and in reality the Tribunal was confronted with an altogether unrealistic application for  full  reinstatement  to  practice  on  his  own  account.22  As Mr Collins noted in submissions, that in itself reveals a lack of requisite insight. He had fallen too far to make that leap in a single bound. A staged approach was the only realistic option for Mr Twigley in the circumstances.

[29]              In the result, the Tribunal was correct to decline to reinstate him so that he could practice on his own account. The appeal is therefore dismissed.  Given this,  Mr Twigley’s associated appeal against costs is also dismissed.

[30]The respondent is entitled to 2B scale costs plus disbursements.

Addendum

[31]              For completeness, I did not consider it was appropriate for this Court to consider an application for reinstatement on the tabled conditions without the benefit

22 In submissions to the tribunal Mr Twigley noted that the Law Society might attach conditions and indicated a willingness to accept and comply with conditions. He also referred to David Liu’s offer to provide supervision. But it is tolerably clear from the record that he largely advanced his case primarily on the basis of full reinstatement.

of the Tribunal’s position on a properly framed application for reinstatement subject to such conditions. I simply record that Mr Collins accepted that the door was not in fact or law closed to Mr Twigley to reapply on a more limited basis and that, for my part, reinstatement on a limited basis with supervision would appear available for consideration.

Whata J