BRJ v Council of the New South Wales Bar Association

BRJ v Council of the New South Wales Bar Association - [2016] NSWSC 146 - NSWSC 2016 case summary — Zoe

[3]

Legal Profession Act 2004 (NSW)

The 2004 Act was repealed by s 167 of the Legal Profession Uniform Law Application Act 2014 and replaced by that Act and the Legal Profession Uniform Law (NSW) with effect from 1 July 2015. However, its provisions largely applied at times relevant to the facts with which this appeal is concerned.
Section 494(1) of the 2004 Act, identifies as one of the purposes of Ch 4 (which is entitled "Complaints and Discipline"): "(a) to provide a nationally consistent scheme for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of clients of law practices and the public generally,"
Section 496 defines "unsatisfactory professional conduct" in the following terms: "For the purposes of this Act: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner."
Section 497(1) defines "unsatisfactory professional misconduct" in the following terms: "497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice."
Section 498 relevantly provides: "Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, . . . (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention."
Part 4.2 deals with complaints about Australian legal practitioners. A complaint may be made about the conduct of an Australian legal practitioner: s 503(1). It may be made by any person: s 503(1)(d). Each complaint must be investigated under Pt 4.4: s 525(1). After completion of an investigation the Bar Council must do one of three things, including commencing proceedings in the Tribunal under Ch 4: s 537(1)(a). Part 4.8 provides for hearings in the Tribunal. The Tribunal is obliged, by s 553, to conduct a hearing into each allegation particularised in the application.
Section 562(1) provides that: "(1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section."
Section 562(2)(e) identifies an order reprimanding the practitioner as one of the orders that can be made by the Tribunal. If the Tribunal makes such an order, it must publish the order and a statement of its reasons for making the order: s 562(8).
Section 564(1) provides: "The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint."
Part 4.10, entitled "Publicising disciplinary action" defines "disciplinary action" in the following terms in s 576 as follows: "In this Division: disciplinary action against an Australian legal practitioner means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under this Chapter or under provisions of a corresponding law that correspond to this Chapter: (a) the suspension or cancellation of the Australian practising certificate of the practitioner, (b) the refusal to grant or renew an Australian practising certificate applied for by the practitioner (other than a refusal on the ground that the practitioner is not eligible to apply for the grant or renewal), (c) the removal of the name of the practitioner from an Australian roll, (d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the practitioner, other than an order cautioning the practitioner, (e) the reprimanding of the practitioner, or the making of a compensation order against the practitioner, by a person or body without a formal finding of unsatisfactory professional conduct or professional misconduct, (f) the appointment of a manager or receiver for a legal practice of which the practitioner is a legal practitioner associate, where the associate is specified or referred to in the notice of appointment served on the law practice."
Section 577 provides for a Register of disciplinary action, which is to include details such as the full name of the practitioner and particulars of the disciplinary action taken. However, under s 581(1) certain disciplinary action is not to be recorded in the Register if "the action was taken because of the person's inability properly to carry out the requirements of legal practice and the inability arises wholly or principally from infirmity, injury or mental or physical illness".
Section 702(1) of the 2004 Act conferred power on the Bar Council to make rules for or with respect to engaging in legal practice as a barrister. Pursuant to s 702(1), the Bar Council made rules which are referred to as the NSW Barristers Rules.
Section 729A relevantly provided, until its repeal on 1 January 2014: "729A Appeals against orders and decisions of Tribunal (1) An order or other decision made by the Tribunal under this Act may be appealed to the Supreme Court by a party to the proceedings in which the order or decision was made. (2) Section 75A of the Supreme Court Act 1970 accordingly applies to an appeal under this section, and the appeal is to be: (a) by way of rehearing, and (b) not by way of a new hearing (a de novo hearing). (3) Subsection (2) does not affect the provisions of section 75A of the Supreme Court Act 1970 relating to the receipt of evidence by the Supreme Court."
After the repeal of s 729A of the 2004 Act on 1 January 2014, provision for appeals against decisions of the Tribunal was made by the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act), which is addressed below.

[4]

Civil and Administrative Tribunal Act 2013 (NSW)

Clause 2 of Sch 1 of the CAT Act defines "existing tribunal" as including the Administrative Decisions Tribunal (the ADT) established under the Administrative Decisions Tribunal Act 1997 (NSW) (the ADT Act).
Clause 6 of Sch 1 of the CAT Act defines "unheard proceedings" as meaning, relevantly, pending proceedings that had not been heard by the ADT before 1 January 2014. Clause 7 of Sch 1 provides as follows: "(1) Unheard proceedings in an existing tribunal are taken, on and from the establishment day, to have been duly commenced in NCAT and may be heard and determined instead by NCAT. (2) In relation to part heard proceedings in an existing tribunal, the person or persons constituting the tribunal for those proceedings: (a) are to continue, on and from the establishment day, to hear the matter, and to determine the matter, sitting as NCAT, and (b) are taken to have been duly appointed as members of NCAT for the purposes of determining the matter even if the person or persons have not been appointed as members of NCAT by or under another provision of this Act, and (c) may have regard to any record of the proceedings before the existing tribunal, including a record of any evidence taken in the proceedings before the existing tribunal. (3) For the purposes of subclauses (1) and (2): (a) NCAT has and may exercise all the functions that the relevant existing tribunal had immediately before its abolition, and (b) the provisions of any Act, statutory rule or other law that would have applied to or in respect of the proceedings had this Act and the relevant amending Acts not been enacted continue to apply."
Section 64 of the CAT Act relevantly provides: "Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person."
Part 4 of Sch 1 of the CAT Act provides, by cl 21, that a reference to the Legal Profession Uniform Law includes a reference to the 2004 Act and a provision of that law includes a reference to the corresponding provision of the 2004 Act.
Schedule 5 of the CAT Act, headed "Occupation Division", provides, by cl 4, that the functions of the Tribunal under the Legal Profession Uniform Law are allocated to the Occupation Division. Division 4 of Sch 5 relevantly applies to lawyers. Part 6 of Sch 5 relevantly provides that a decision for the purposes of the Legal Profession Uniform Law is a "profession decision". As such, it is not appealable internally within the Tribunal. A party to a profession decision has a right of appeal to this Court: cl 29(2), Sch 5. Leave, however, is required to appeal against an interlocutory decision of the Tribunal, a consent decision or a decision as to costs: cl 29(6), Sch 5.
Clause 29(4) of Sch 5 relevantly provides: "Basis or grounds for appeal An appeal to a court under this clause: (a) in the case of an appeal against a decision for the purposes of the Legal Profession Uniform Law (NSW) - is an appeal to which section 75A of the Supreme Court Act 1970 applies and, accordingly, is by way of a rehearing rather than a new (de novo) hearing, and"

[6]

The proceedings in the Tribunal

On 12 December 2013 the Bar Council commenced proceedings against the plaintiff in the ADT pursuant to s 551 of the 2004 Act by filing an application in which it sought an order that the plaintiff (the respondent in the Tribunal) had engaged in unsatisfactory professional conduct; orders pursuant to s 562; and costs. The grounds for the complaint were pleaded as follows: A. During the period from about 14 July 2010 until about 21 December 2011, the respondent failed on numerous occasions to attend Court promptly for rostered duty as a Specialist Domestic Violence Panel Practitioner appointed by Legal Aid NSW. B. On or about 31 May 2011, the respondent (as landlord) entered into a residential tenancy agreement with her client (as tenant), in respect of [certain] premises (the Premises) in breach of the respondent's fiduciary duties owed to her client and in breach of rule 16 of the New South Wales Barristers' Rules (as then applicable). C. From at least 5 October 2011 until 22 November 2011, the respondent acted for [that client] in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) (the Care and Protection Proceedings) in circumstances where the client's interest in the matter was in conflict with the respondent's interest in regaining possession of the Premises. The respondent's conduct in acting for [the client] in these circumstances was in breach of her fiduciary duties owed to her client and in breach of rule 95 of the New South Wales Barristers' Rules.
The application contained extensive particulars of each of these three grounds.
By her amended reply filed on 29 May 2014 (which dealt in detail with the particulars in the application), the plaintiff admitted in respect of each of the three grounds, that she engaged in unsatisfactory professional conduct.
The application was heard by the Tribunal over three days: 12 and 13 February and 10 March 2015. The plaintiff was represented by Mr Craddock SC of counsel on the first day. An instrument of consent pursuant to s 564 of the 2004 Act was tendered. It included the plaintiff's admission that she had engaged in unsatisfactory professional conduct as alleged. The instrument of consent also contained various proposed consent orders.
The evidence and the submissions at the hearing of the s 564 application were completed on 12 February 2015. The Tribunal reserved its decision and stood the matter over to 2pm the following day, at which time it expected to make orders and give reasons.
When the matter resumed on 13 February 2015 Mr Craddock announced that the plaintiff wished to make an application to the Tribunal in which he did not join. The plaintiff (on her own behalf) applied for an adjournment of the proceedings so that she could obtain further medical evidence in support of the submissions as follows: 1. at the time of the conduct set out in the three grounds she was not in control of her actions as she was suffering from anorexia nervosa; and 2. although she admitted the facts in the instrument of consent, no finding of unsatisfactory professional conduct ought be made because of (1).
The plaintiff relied on two decisions: NSW Bar Association v Butland [2008] NSWADT 120 at [32] (Butland) and Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich). The Bar Council opposed the adjournment and contended that the matter ought proceed in the usual way on the basis of the facts in the instrument of consent. Ms Williams, who appeared on behalf of the Bar Council both in these proceedings and in the Tribunal, submitted that the plaintiff had misapprehended the effect of Butland and Ardalich. The Tribunal made directions as to the further conduct of the proceedings, including for written submissions and adjourned the proceedings for further hearing on 10 March 2015 at 2pm.
The plaintiff filed an outline of submissions dated 19 February 2015 in which she admitted (in [16]) that "the conduct complained of satisfies the objective definition of UPC [unsatisfactory professional conduct]" but submitted that the Tribunal ought not make findings to that effect because the conduct was wholly or principally caused by her mental illness. Her admission, in substance, reiterated earlier admissions she had made that her conduct, in respect of each ground in the application, amounted to unsatisfactory professional conduct.
At the adjourned hearing on 10 March 2015 the principal issue for the Tribunal was whether it ought make a finding of unsatisfactory professional conduct (as contended for by the Bar Council) or whether it ought refuse to make such a finding and dismiss the application pursuant to s 562(1) (as contended for by the plaintiff) by reason of her mental condition at the relevant time.
The Bar Council tendered the agreed facts (which were marked Exhibit AA). The agreed facts contained statements that the plaintiff admitted that she had engaged in unsatisfactory professional conduct as alleged in the three grounds in the application.
The relevant agreed fact regarding the plaintiff's mental state (from which she did not resile and on which she relied) was, as expressed in Exhibit AA: "During the period relevant to this proceeding, the Respondent [the plaintiff] was suffering from anorexia nervosa and Dr Skinner found in paragraph 93(l) of her report dated 31 October 2014 at page 17 that it is likely that her cognitive functioning was impaired by this condition. In addition, the physical symptoms of the condition caused or contributed to the Respondent's lateness on the occasions referred to in paragraphs 6 and 7 above."

[7]

The reasons of the Tribunal

At the conclusion of the hearing on 10 March 2015, the Tribunal reserved its decision. It made orders and published its reasons on 16 July 2015.
Having addressed the submissions of the parties, the Tribunal made findings to record its satisfaction pursuant to s 562 of the 2004 Act, as follows: The statement of agreed facts [51] The Tribunal is of the view that the facts recorded in paragraphs 1 - 9 of the statement of agreed facts for ground A, show that the respondent's conduct in presenting late for rostered duty during the relevant period fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admissions made in paragraph 9 of the statement of agreed facts were properly made. Paragraph 9 is in the following terms: The Respondent admits that her conduct in presenting late for rostered duty during the relevant period fell short of the standard of competence and diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. The Respondent therefore admits that she engaged in unsatisfactory professional conduct. [52] The Tribunal is of the view that the facts recorded in paragraphs 10 - 19 of the statement of agreed facts for ground B, show that the respondent's conduct in entering into the lease notwithstanding the conflict of interest, breached her fiduciary duties owed to her client; breached rule 16 of the NSW Barristers' Rules (as applicable as at 31 May 2011) and thus fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admission made in paragraph 19 of the statement of agreed facts for ground B was properly made. Paragraph 19 is in the following terms: The Respondent admits that she engaged in unsatisfactory professional conduct by entering into the Lease in breach of her fiduciary duties and in breach of Rule 16. [53] The Tribunal is of the view that the facts recorded in paragraphs 21 - 34 of the statement of agreed facts for ground C show that the respondent's conduct in continuing to act for her client notwithstanding the conflict of interest during the period from 5 October to 22 November 2011 breached her fiduciary duties owed to her client; breached rule 95 (b) of the New South Wales Barristers' Rules (as then applicable) and thus fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The Tribunal is of the view that the admission made in paragraph 34 of the statement of agreed facts for ground C was properly made. Paragraph 34 is in the following terms: By acting for [her client] during that period in breach of her fiduciary duties and in breach of Rule 95 (b), the Respondent admits that she engaged in unsatisfactory professional conduct."
The Tribunal found, in respect of Part A of the complaint, that the plaintiff's psychiatric disorder "caused her lateness for court" ([80]).
The Tribunal then addressed the question whether, if it took "disciplinary action" against the plaintiff, s 581(1) would prevent its being recorded in the Register. This required a determination whether the action was taken because of the plaintiff's inability, which arose wholly or partially from "infirmity, injury or mental or physical illness". After summarising the medical evidence, the Tribunal expressed its conclusions, which included its reasons for not making a reprimand, as follows: "[83] The Tribunal concludes from this evidence that the respondent's judgment was affected so that she did not appreciate that her physical disabilities were causing her to be late for court. In those circumstances the Tribunal is of the view that it is not appropriate that the respondent be reprimanded in respect of her conduct the subject of Part A of the complaint detailed in the application for original decision. [84] The Tribunal concludes from the medical evidence that the respondent's judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct. In those circumstances the Tribunal is of the view that it would not be appropriate that she be reprimanded for her conduct set out in Part B or Part C of the complaint detailed in the application for original decision. [85] If the respondent's judgment and cognition had not been affected, a reprimand would be an appropriate order to make."
The Tribunal decided that, as no disciplinary action was being taken (within the meaning of s 576 of the 2004 Act), it was not necessary to make a declaration that the plaintiff was guilty of unsatisfactory professional conduct. It decided to make an order under s 64 of the CAT Act "having regard to the respondents' [plaintiff's] physical and mental conditions".
The reasons of the Tribunal concluded with the following findings and orders: Findings [100] Having considered all of the evidence and submissions, the Tribunal makes the following findings: (1) The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by arriving late for rostered duty as a member of the Specialist Domestic Violence Practitioner Panel on 13 occasions during the period 14 July 2010 to 21 December 2011, as set out in paragraphs 1 to 9 of the statement of agreed facts. (2) The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by entering into a lease on 31 May 2011 with her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW), in breach of the Respondent's fiduciary duty and Rule 16 of the New South Wales Barristers' Rules (as then applicable) as set out in paragraphs 10 to 20 of the statement of agreed facts. (3) The Tribunal finds that the Respondent engaged in unsatisfactory professional conduct by acting for her client in proceedings under the Children and Young Persons (Care and Protection) Act 1998 (NSW) during the period 5 October 2011 to 22 November 2011 notwithstanding a conflict between the interests of her client and the interests of the Respondent, in breach of the Respondent's fiduciary duty and Rule 95 of the New South Wales Barristers' Rules (as then applicable) as set out in paragraphs 21 to 34 of the statement of agreed facts. Orders [101] The Tribunal orders that: (1) For the purposes of these proceedings the name of the respondent is anonymised as BRJ; (2) The disclosure of the respondent's name is prohibited; (3) Pursuant to section 64 of the Civil and Administrative Tribunal Act 2013, and subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representatives; and (4) The proceedings be listed before the Registrar so that evidence and submissions can be placed before the Tribunal so that it can determine whether an order should be made that the respondent pay the costs of the Council of the New South Wales Bar Association. (5) The application is otherwise dismissed."

[11]

Whether the plaintiff is entitled to argue that her conduct did not amount to unsatisfactory professional misconduct

The plaintiff accepted in the Tribunal that her conduct amounted to unsatisfactory professional conduct but resisted the making of findings to that effect. The plaintiff made the new submission for the first time in a written document entitled "Further Plaintiff Submissions" which was served on the Bar Council late on the evening before the hearing in this Court and which she handed up at the outset of the hearing. She said, in the written submission: "Plaintiff does not admit that the conduct is even objectively UPC [unsatisfactory professional conduct] and only did so previously as the result of poor advice from a legal team that she terminated."
The plaintiff contended that the characterisation of her conduct was a matter of law (the underlying facts being largely agreed) or a matter which could be considered on an appeal pursuant to s 75A of the Supreme Court Act. She submitted that, in those circumstances, she ought be permitted to withdraw her admissions in the Tribunal.
Ms Williams accepted, in the Tribunal, and in this Court, that, notwithstanding the plaintiff's admissions recorded in the agreed facts, the Tribunal was obliged to satisfy itself that it was appropriate to make findings of unsatisfactory professional conduct: Prothonotary of the Supreme Court (NSW) v McCaffery [2004] NSWCA 470 at [12]; Council of the New South Wales Bar Association v Power [2008] NSWCA 135; 71 NSWLR 451 at [9]-[12] per Hodgson JA (Beazley and McColl JJA agreeing). This obligation applies even where the parties have agreed on the orders to be made by the Tribunal (which did not occur in the present case) if the Tribunal "considers it to be in the public interest" to complete a hearing in relation to the complaint: s 564(10).
On this basis, Ms Williams accepted that the admissions the plaintiff had made in the Tribunal were pieces of evidence which could be reviewed by this Court on this appeal, since the appeal was to be conducted in accordance with s 75A of the Supreme Court Act. Accordingly, although Ms Williams noted the plaintiff's change in position, she acknowledged that, this matter having been raised by the plaintiff, this Court ought determine, as a matter of fact and law, whether the Tribunal was in error in finding that her conduct in Grounds A, B and C of the complaint amounted to unsatisfactory professional conduct.
In these circumstances, I am satisfied that it is necessary to address the substantive question: whether the plaintiff was guilty of unsatisfactory professional conduct. In this respect I am not at a disadvantage relative to the Tribunal in hearing the appeal since no oral evidence was called in the Tribunal. Although the plaintiff's affidavits were read, she was not cross-examined.
As referred to above, the plaintiff also put the submission on appeal that, even if her mental condition was irrelevant to the characterisation of her conduct, it still did not amount to unsatisfactory professional conduct. She relied, in support of this submission on Council of the New South Wales Bar Association v Ghabrial [2010] NSWADT 306 (Ghabrial) and contended that her conduct was not as bad as the conduct in Ghabrial, which had not been found to be unsatisfactory professional conduct.

[14]

Ground B: lease to the client

Ground B involved a breach of rule 16 of the New South Wales Barristers Rules. Conduct consisting of a breach of these rules is capable of being unsatisfactory professional conduct or professional misconduct: s 498(1)(a). In my view, no error has been shown in the Tribunal's approach. Rules 16 and 95 are contained in the Barristers Rules for good reason: a barrister is required to be independent and to give independent, dispassionate advice to a client. The barrister must act in the interests of the client.
On 27 May 2011 the plaintiff was instructed by a client who was involved in proceedings under the Children and Young Persons (Care and Protection) Act in relation to the client's child. Whether the client had stable accommodation was likely to be an issue in the proceedings. The client was endeavouring to demonstrate to the court that she had stable accommodation. On about 31 May 2011 the plaintiff, as landlord, granted to the client a six-month lease of premises at the rear of a residence which she owned. The premises did not have development consent for dual occupancy. Moreover, their use as a dual occupancy constituted a breach of an order made on about 29 December 2010 which required the plaintiff to stop using the room attached to her house for dual occupancy and to reinstate the room to its original state by 7 February 2011. The leased premises did not provide stable accommodation to the client.
There was in my view a clear conflict between the client's interest in having stable accommodation and the plaintiff's interest in earning income from the lease of the premises. I am satisfied that the plaintiff was in breach of rule 16. No error has been shown in the Tribunal's approach to the question. Although the plaintiff's medical condition may provide some explanation for her conduct (since it compromised her judgment), it did not deprive her conduct of its character as unsatisfactory professional conduct.
Members of the public are entitled to expect a barrister to act in the interests of their clients. They are also entitled to expect that a barrister will not exploit the client's position (which in many cases, as here, is a relatively vulnerable one) for the barrister's own advantage. The barrister's conduct fell short of the standard of diligence required.

[18]

Whether the conduct in Grounds A, B and C of the application did not amount to unsatisfactory professional conduct because the plaintiff's mental condition deprived it of that characterisation

The plaintiff submitted that her mental condition was relevant to the characterisation of her conduct as unsatisfactory professional conduct and that, by reason of the causal connection between her mental condition and the conduct, it did not amount to unsatisfactory professional conduct.
In support of this submission, she argued that, given that professional misconduct could be constituted by unsatisfactory professional conduct "where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence" (s 497(1)(a)), it would be both artificial and nonsensical to allow a mental condition to bear on whether conduct was professional misconduct, but exclude it from consideration on the question whether the conduct amounted to unsatisfactory professional conduct. The plaintiff relied on s 33 of the Interpretation Act 1987 (NSW) in support of the proposition that a construction ought be preferred that would promote the purpose. She submitted that such a distinction would not advance the purpose of the legislation.
Further, the plaintiff submitted that the Tribunal had not been referred to several authorities, which were in her favour, and which, properly analysed, had the effect that her mental condition deprived her conduct of the character of unsatisfactory professional conduct. She specifically relied on New South Wales Bar Association v Butland [2008] NSWADT 120 (Butland), Council of the Law Society of New South Wales v Kay [2009] NSWADT 139 (Kay) and Council of the New South Wales Bar Association v Fitzgibbon [2012] NSWADT 56 (Fitzgibbon). Although the Tribunal had been referred to Butland, it had not been referred to either Kay or Fitzgibbon.
In order to address this submission it is necessary not only to review the authorities referred to in the submissions but also to consider the statutory background against which the decisions are to be read and the legislative history of the provisions in the 2004 Act which are germane to the appeal.

[25]

Legal Practitioners Conduct Board v Ardalich

Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 (Ardalich) concerned an application by the Legal Practitioners Conduct Board (the Board) to the Full Court for an order that Ardalich's name be removed from the roll. The Board had received reports from the Legal Practitioners Disciplinary Tribunal which had found the practitioner guilty of 27 counts, some of which involved misappropriation of client's money. It was common ground that the practitioner had committed the acts said to constitute unprofessional conduct.
The Legal Practitioners Act 1981 (SA) (the SA Act) referred neither to professional misconduct nor to unsatisfactory professional conduct. Rather it referred to "unprofessional conduct" which was defined, by s 5(1) of the SA Act, to mean: "(a) an offence of a dishonest or infamous nature committed by the legal practitioner in respect of which punishment by imprisonment is prescribed or authorised by law; or (b) any conduct in the course of, or in connection with, practice by the legal practitioner that involves substantial or recurrent failure to meet the standard of conduct observed by competent legal practitioners of good repute;"
The Full Court held as follows (per Perry ACJ, Duggan and Anderson JJ agreeing): "[42] The admissions made by the practitioner as to his commission of the objective facts associated with each of the counts was sufficient to justify the finding of unprofessional conduct with respect to each count. [43] The practitioner's mental state, serious though it was, could not deflect the Tribunal from a finding that the charges of unprofessional conduct were made out once the objective facts were proved or admitted. What would otherwise amount to unprofessional conduct does not cease to be such, by reason of the existence of a mental illness on the part of the practitioner, which had the potential to establish a mental impairment defence under Pt 8A of the CLCA (Criminal Law Consolidation Act). [44] The disciplinary provisions of the Act which come into play upon a finding of unprofessional conduct reflect the interests of the public in ensuring that legal practitioners answer to the high standards of probity and competence which must be observed if the integrity of the administration of justice is to be preserved. [45] Mental illness of a practitioner which may cause or contribute towards his commission of acts constituting unprofessional conduct cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary orders should be made."
The Full Court agreed to order that Ardalich's name be struck from the roll.

[27]

Council of the Law Society of New South Wales v Kay

In Kay the ADT heard an application by the Law Society under s 562 of the 2004 Act in which it was alleged that Kay, a solicitor, was guilty of professional misconduct in that he had misappropriated trust funds and wilfully breached s 255 of the 2004 Act (which makes provision for holding, disbursing and accounting for trust money).
The evidence established that, in 2003, Kay was the victim of a violent, life-threatening assault, as a result of which he suffered depression and other psychiatric injuries. The ADT expressed its conclusion on the medical issue relevantly as follows: "[45] . . . The question is: did the Respondent, at the time of the impugned transactions, know what he was doing and understood the consequences of what he was doing?. . . However, it is plain to this Tribunal that the Respondent, in relation to the various impugned transactions, did in fact know the nature and quality of his acts, knew the consequences thereof and those conclusions seem to us to firstly, not require this Tribunal to send the matter off to the Supreme Court, and secondly, enable this Tribunal to deal with the whole of the application as placed before us, including the making of dispositive orders. [46] In these circumstances it is clear that the Respondent has misappropriated the sum of $20,175.00 on the facts as set out above and has clearly breached Section 255. . . [47] The Tribunal finds that the Respondent has misappropriated trust funds and breached Section 255. He is guilty of professional misconduct. He knew what he was doing and understood the consequences of what he was doing. The Tribunal also finds the Respondent guilty of unsatisfactory professional conduct in relation to the non-payment of counsel's fees. The Tribunal also finds that the Respondent not fit to practice having regard to his current mental state and the psychiatric evidence that has been tendered. The Respondent is not a fit and proper person to remain on the roll."
The ADT then addressed (in observations which can only be regarded as obiter) an argument by the Law Society that, if it was satisfied that the practitioner did not have the requisite intent, it could not find professional misconduct and would not have jurisdiction but would have to refer the matter to the Supreme Court (see [48]). The ADT, in [49]-[50], referred to s 562 and the circumstance that its jurisdiction to make orders depended on a finding of professional misconduct or unsatisfactory professional conduct. The ADT said, in conclusion, at [50]: "The reason for this submission is simple: if the Respondent was found to have been not guilty of professional misconduct because he lacked the relevant mental intent, then this Tribunal was deprived of statutory jurisdiction and the only Court that could determine fitness to practice in the circumstances where no professional misconduct has been found could only be the Supreme Court exercising its inherent jurisdiction. The reason for this is also simple: Legal Profession Act Section 562 deprives the Tribunal of any sort of inherent jurisdiction simply because it is only able to make dispositive orders if the Tribunal is "satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct" and not otherwise. If the relevant mental intent is lacking because there was a "degree of impaired judgment" within Robinson then there must be a finding of no unsatisfactory professional conduct or professional misconduct."
Paragraph [50] may be regarded as unexceptional, save for the final sentence, which I consider to be incorrect. As appears from the reasons given above, Robinson concerned only professional misconduct (unsatisfactory professional conduct not having been introduced until the 1987 Act commenced) in respect of which it was accepted that impaired judgment was relevant, since the common test for professional misconduct (which applied under the 1898 Act) depended on the views of one's peers. In so far as the last sentence of [50] says, or suggests, that no finding of professional misconduct (as presently defined in the 2004 Act) or unsatisfactory professional conduct can be made if there is a "degree of permanent impairment" it is incorrect; inconsistent with authority and with the decision of the ADT in Butland; and ought not be followed.

[28]

Council of the New South Wales Bar Association v Fitzgibbon

Fitzgibbon concerned an application by the Bar Council in the ADT alleging that Fitzgibbon was guilty of unsatisfactory professional conduct in connection with preparation of submissions (ground 1) and an appearance in the Court of Criminal Appeal (ground 2).
Fitzgibbon relied, in part, on evidence from his treating psychiatrist to the effect that at the time of the oral hearing he suffered a temporary impairment of brain function due to the rebound effect of Ritalin, a drug which he was prescribed for Attention Deficit Hyperactivity Disorder (ADHD).
The ADT found that the barrister was guilty of unsatisfactory professional conduct with respect to the first ground but otherwise dismissed the application.
When considering the first ground, the ADT said, of present relevance: "[56] We acknowledge that from May to November 2007 the barrister faced a great number of stresses including physical and mental ill health both of himself and members of his family. Such matters can be relevant to whether a finding of unsatisfactory professional conduct should be made (New South Wales Bar Association v Butland (2008) NSWADT 120 at [37]) but usually only if they are such as to render the practitioner incapable of controlling his or her conduct (see Butland at [39]). As noted in that case at [41], however, the primary function of disciplinary proceedings is the protection of the public and the administration of justice by ensuring that practitioners live up to high standards expected of them whatever their personal circumstances and difficulties. . . . [58] We do not accept that the failure to meet the appropriate standard is excused by the barrister's distressing personal circumstances at the relevant time. We find that given the period of time the barrister had to reflect on and revise his written submissions they do fall short of the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. So much was conceded in the barrister's Further Amended Reply. This finding does not mean we do not accept that the barrister's personal circumstances hindered his ability to prepare written submissions which were of an appropriate standard."
Although the ADT cited Butland as standing for the proposition that mental ill health could be relevant to whether a finding of professional misconduct ought be made, this question did not arise for consideration in Butland since the only question was whether the conduct amounted to professional misconduct, it being accepted that it amounted to unsatisfactory professional conduct. If the words "unsatisfactory professional conduct" in [56] were intended to read "professional misconduct", then the sentence correctly reflects what was said by the ADT in Butland. If it stands as reported, it is incorrect.

[29]

Summary of principles

Each case must turn on its facts and the application of the statutory words. In endeavouring to draw some principles from these decisions, I am conscious of the warning given in New South Wales Bar Association v Cummins by Spigelman CJ (Mason P and Handley JA agreeing) who said: "[50] It has not generally been useful or necessary to distinguish the terminology of "professional misconduct" from other phrases such as a "fit and proper person", "good fame and character", "unprofessional conduct", "unsatisfactory professional conduct" etc. Statutory formulations differ from one jurisdiction to another. Some of the terminology, originally based on statute, has been adopted in cases decided under the inherent jurisdiction. In the exercise of this jurisdiction, it is not appropriate that the Court should indulge in the splitting of fine hairs on terminology. [51] The words "professional misconduct" are broad and general words. Theirmeaning may vary from one context to another."
Having regard to the importance of context and the need to avoid pedantry (both of which are emphasised in the passage set out above), the following principles can be derived from the wording of the 2004 Act and the decisions referred to above.
The language of the definition of "unsatisfactory professional conduct" is apt to connote that the test is an objective one. In these circumstances the objective conduct, rather than the professional culpability of the practitioner, is of prime, if not sole relevance. Therefore, generally speaking, any mental affliction which the practitioner may suffer is irrelevant to the characterisation of conduct as unsatisfactory professional conduct. However, where the conduct contains a mental element (such as in Kay where the allegation in the complaint was that he had "wilfully" breached s 255 of the 2004 Act), the test is not entirely objective, since a mental condition may affect the question whether conduct is "wilful".
Where the question is whether certain conduct amounts to "professional misconduct", the relevance of a mental condition will depend on the species of professional misconduct. For example, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (in s 497(1)(a)), the practitioner's mental condition may not be relevant.
The mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question what orders ought be made as a consequence of a finding of professional misconduct or unsatisfactory professional conduct.

[30]

Whether the Tribunal ought to have made findings of unsatisfactory professional conduct (on the assumption that the conduct correctly bore that characterisation)

The plaintiff accepted that the primary purpose of disciplinary proceedings was to protect the public but argued that the making of findings in her case (by reason of her mental condition) did not advance that purpose. She submitted that, with respect to a practitioner who suffered from a mental condition, the appropriate way of dealing with conduct affected by the mental condition was at the stage of determining whether to issue a practising certificate, or suspending the right to practise or imposing conditions on the right to practise.
In my view, no error has been shown in the Tribunal's approach. It was obliged to conduct a hearing in relation to the Bar Council's complaints against the plaintiff and to determine, pursuant to s 562(1) of the 2004 Act, whether it was satisfied that the practitioner had engaged in unsatisfactory professional conduct, as alleged in the complaint. If satisfied, it was required to consider whether to make orders under s 562, which include, in s 562(6) making an alternative finding (professional misconduct when only unsatisfactory professional conduct alleged; or vice versa). Although the Act does not, in terms, oblige the Tribunal to express its determination in terms of a "finding" (or, indeed, to make a declaration, which the Tribunal was not disposed to do in the present case), the Act contemplates that it will do so, as a necessary step to invoke its power under s 562 to make other orders, consequent on its determination.
I do not accept the plaintiff's submission that there was no purpose to be served by the Tribunal's making of findings in accordance with its reasons. As referred to above, one of the purposes of the discipline of the legal profession, as expressly provided for in s 494(1) of the 2004 Act, is "for the protection of . . . the public generally". The "protection of the public" is regarded as the principal purpose of disciplinary proceedings, which are sui generis: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 250-251.
The protection of the public is advanced, not merely by regulating those who are entitled to practise and removing from practise those who are no longer fit, but also by educating the profession, and the public, as to the applicable standards of professional conduct (and personal conduct where it bears on the profession); and maintaining public confidence in the legal profession: New South Wales Bar Association v Cummins at [22]. The making of findings serves an important educative role, particularly where, as here, no disciplinary action is taken notwithstanding that a practitioner has been found guilty of unsatisfactory professional conduct.
I note for completeness (although it does not arise in the present case) that where a barrister's name is removed from the roll the making of findings has additional importance since, if the barrister ever applies for readmission, the Court which considers that application will have available to it all relevant findings: see the authorities summarised in New South Wales Bar Association v Cummins at [24]-[26] and Council of the New South Wales Bar Association v Power at [9]-[12].
I am not persuaded that this Court should set aside the findings of the Tribunal. It was appropriate that they be made to record formally the Tribunal's satisfaction that the plaintiff had engaged in unsatisfactory professional conduct as particularised in the application. Their making was consistent with, and advanced, the purposes of protection of the public in that the findings served to educate the public and the profession as to the appropriate standards, as well as to restore public confidence in the profession.

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