Connop v Law Society Northern Territory [2016] NTSC 38

Connop v Law Society Northern Territory [2016] NTSC 38 | Case summary | Zoe

[10]

[1] This is an appeal against the decision by the Law Society Northern Territory (the Law Society) to cancel the appellant's unrestricted practising certificate (UPC).[1]

[2] On 8 June 2016 I dismissed the appeal and declared that Mr Connop is not a fit and proper person to hold an unrestricted practising certificate. These are my reasons.

[3] The appellant obtained a Bachelor of Laws at the Australian National University in 2003 and was admitted as a legal practitioner later that year. He held a restricted practising certificate in the Northern Territory from 5 November 2004 until 1 July 2010 when he was first issued with a UPC. He was issued with UPCs each year thereafter including on 1 July 2015.[2]

[4] His UPC issued with effect from 1 July 2015 (UCP 2015/16) was issued subject to certain special conditions (SCs) imposed pursuant to ss 54(2) and 70(3) of the Legal Profession Act 2006 (NT) (LPA).[3] The conditions related to the conduct of monthly reviews of the appellant's management of his law practice (focussing on costs disclosure, billing and trust monies), and a quality practice review of the appellant's law practice.[4] The Law Society's reasons for imposing the SCs included a number of complaints made against him in the preceding 12 months, various overdue trust accounting notifications, and three trust account transactions made without any supporting evidence.[5] The Law Society concluded that the appellant was struggling to meet aspects of the regulatory requirements for operating his legal practice and that this presented as a serious risk to consumers of his legal services.

[5] SCs 3.2 and 3.3 required the appellant to provide to his existing clients and any new clients written notification that a person may be reviewing his files and requesting written consent for their file to be so reviewed. He was to do that within seven days of the issue of the UCP 2015/16, that is, by 20 October 2015. SC 3.4 required the appellant to provide the appointed Reviewer with "a list of all client matters and all client matters closed within the preceding month" no later than 14 days after being notified of the Reviewer's appointment.[6] The appellant's failure to comply with these special conditions delayed the Reviewer undertaking his initial review of the appellant's legal practice.[7]

[6] On 17 December 2015, the Law Society decided to consider action to cancel the appellant's UPC and directed that he be notified pursuant to s 57 of the LPA.[8] He was notified on 21 December 2015,[9] and responded on 13 January 2016.[10]

[7] On 21 January 2016, the Reviewer provided a report to the Law Society following his initial review of the appellant's legal practice.[11] The Reviewer noted that the appellant had still not complied with SCs 3.2 and 3.3[12] and that the main issue affecting the appellant's management of his legal practice was the absence of administrative support, which the practice could not afford.

[8] On 28 January 2016, the Law Society decided to cancel the appellant's UPC with effect from 26 February 2016 (the decision to cancel).[13] The Law Society's reasons for that decision were provided to the appellant on 1 February 2016.[14] By this proceeding, the appellant appeals to this Court from that decision.

[9] On 24 February 2016 the appellant sought an order staying the decision to cancel, and sought and was granted abridgments of time so the application could be heard on 26 February 2016. I granted a stay and made orders on 29 February 2016 which contained a significant number of conditions upon which the appellant could continue to practice, until further order (the stay orders).

[10] I set the matter down for hearing on 11 April 2016 and made orders for the filing and exchange of an amended notice of appeal and further affidavit material. Affidavits were filed on behalf of both the appellant[15] and the respondent[16], and detailed written submissions were provided by both parties.[17]

[11] At the hearing on 11 and 12 April 2016 the appellant was cross-examined by senior counsel for the Law Society, Ms Brownhill SC. The matter was adjourned to enable the parties to provide supplementary written submissions.[18] Any additional oral submissions were to be made on 1 June 2016.

[12] On 16 May 2016 the appellant sought and was granted leave to adduce further evidence and to be excused from an undertaking he had given to the Court to attend a Practice Management Course to be conducted by the Queensland Law Society in Brisbane on 2-4 June 2016.[19] On 1 June 2016, prior to the hearing of the oral submissions, the appellant was given leave to adduce further evidence in the form of another affidavit sworn by him on 27 May 2016 and he was further cross-examined by senior counsel for the Law Society.

[11]

[13] The appellant contended throughout that the Law Society was wrong to cancel his UPC, or alternatively that the Court should now find him to be a fit and proper person to hold a UPC and if thought appropriate, impose conditions upon his UPC.

[14] The respondent, the Law Society, contended that the appellant is not a fit and proper person to hold a UPC, that the imposition of conditions upon his UPC is not open if the Court finds he is not a fit and proper person to hold a UPC and that imposition of the conditions proffered by the appellant[20] is not consistent with the provisions of the LPA or sustainable in the medium to long term, and that the appeal should be dismissed, with costs.

[15] Prior to the hearing of the appeal in April 2016 the Law Society referred to the following matters as demonstrating that the appellant is not a fit and proper person to hold a UPC:

(a) the appellant's failures to comply with the SCs of his UPC, and the Reviewer's observations regarding the appellant's legal practice;

(b) the Law Society's finding on 13 August 2015 of unsatisfactory professional conduct in relation to a complaint by Monica Williamson;

(c) the appellant's failure to pay the fine ordered in relation to that finding of unsatisfactory professional conduct;

(d) complaints by Dorothy Fox, Anne Louise Ray, Brendan Loizou and Pieter Bekkers, and the appellant's responses thereto;

(e) a complaint by Craig Sommer, findings and orders of the Work Health Court, and the appellant's responses thereto;

(f) a letter from Justice Kelly in relation to the appellant's representation of Joshua Hes in the Supreme Court, and the appellant's responses thereto;

(g) irregularities in respect of the appellant's trust accounts, the appellant's failures to comply with the regulatory requirements for notifications in respect of trust accounts and the appellant's responses to the Law Society's concerns about those matters;

(h) the appellant's failure to notify the Law Society regarding his purported practice as an incorporated legal practice (ILP) as required by s 122 of the LPA;

(i) the appellant's recent application for a restricted (barrister and solicitor) practising certificate[21] (RBSPC) which asserts that he would be employed as an "ILP solicitor director";

(j) the appellant's failure to comply to the letter with the conditions imposed by the Court upon the stay of the Law Society's decision to cancel his UPC.

[16] Following the hearing of the appeal on 11-12 April 2016 and the re-opening of the appeal on 1 June 2016, the Law Society identified further matters which it submitted also demonstrate that the appellant is not a fit and proper person to hold a UPC. Many of these further matters arose out of cross-examination of the appellant.

[51]

[48] The appellant's UPC 2015/16, issued on 13 October 2015, was subject to 10 special conditions, seven of which were directed to monthly reviews of the appellant's files by a Law Society appointed Reviewer.[55]

[49] SC 3.2 required the appellant to provide to existing clients within seven days of issue of the UPC written notification that "a Reviewer may be reviewing Mr Connop's files from time to time" and that client confidentiality and legal professional privilege would be strictly maintained. Such a notification was also to be provided to new clients "at the commencement of any new Retainer during the currency of this practising certificate". SC 3.3 required the appellant to "request each client referred to at special condition 3.2 to provide their written consent for their file to be reviewed, solely for the purpose of oversight, by the Reviewer." I shall refer to these as SC 3.2 letters.

[50] SC 3.4 required the appellant to provide to the Reviewer, within 14 days after being notified of the Reviewer's appointment, "a list of all client matters and all client matters closed within the preceding month". The list was to include "the name of the client, Mr Connop's file reference, a brief description of the matter and the area of law for the matter." The appellant was required to update the list by the 14th day of each month.

[51] The special conditions contemplated that the Reviewer undertake monthly reviews of a selection of the appellant's files (SC 3.5) with such information as the Reviewer reasonably required (SC 3.6), and report to the Law Society at three monthly intervals regarding the appellant's level of cooperation, the Reviewer's opinion of the appellant's law practice, and in respect of reviewed files, the appellant's costs disclosure, billing and trust money issues (SC 3.7). The first report was to be provided by 31 December 2015 (SC 3.7).

[52] SCs 3.8 to 3.10 required the appellant to engage the services of LeMessurier Harrington Consulting (LHC) no later than 30 October 2015 to undertake a quality practice review of his law practice and to provide a written report of any identified issues and recommendations for corrective action. Within 3 months of receiving such a report the appellant was to undertake any corrective actions recommended by LHC.

[53] On 2 December 2015 the Law Society appointed Mr Eric Hutton as the Reviewer and notified the appellant of that appointment.[56]

[58]

[57] It is of concern that the appellant did not correct this "error" until 5 April 2016, notwithstanding that he had corrected a number of other "errors and omissions" in his affidavit of 24 February 2016 by swearing a further affidavit on 25 February 2016.

[58] It is also of concern that he told the Reviewer that he had received about 20 letters back but did not disclose that only two or three of them contained consents. This was reckless and misleading. It would have been very clear to the appellant simply by looking at the envelopes marked "return to sender" that they would not contain signed consents. His explanation in his affidavit of 5 April 2016 that: "I did not appreciate that he wanted to know how many of such letters had been received back from clients signed by them by way of authorisation for him to review their files",[58] is absurd.

[59] Second, in his affidavit sworn 5 April 2016 the appellant said that he sent 10 letters of the kind required by SC 3.2 to existing clients for whom he still had to perform legal work on 2 and 3 March 2016.[59] Compliance with SC 3.2 required that such letters be sent on or before 20 October 2015.

[60] I agree with the Law Society's submission that the failure to send these letters to existing clients (including those for whom he had further work to perform) some three, four or more months late was a significant breach of SC 3.2. As it involved obtaining his clients' consent to providing confidential and privileged information to the Reviewer, SCs 3.2 and 3.3 were fundamental to the process of legal practice review contemplated by the SCs.

[61] Counsel for the appellant submitted that the delay from 20 October 2015 to 2 February 2016 to despatch the SC 3.2 letters did not disadvantage Mr Hutton in the performance of his review function, inter alia because Mr Hutton was not appointed until 2 December 2015.[60] This misses the point. The fact is that he breached SC 3.2. It is no excuse to say, in effect, that he could ignore SC 3.2 because he considered strict compliance unnecessary. Moreover a meaningful review could only begin when the letters were responded to and the necessary consents given.

[62] Third, although the appellant agreed that his client's files were confidential and subject to privilege and that the client's consent was required before their files could be provided to Mr Hutton,[61] it appears that he nevertheless provided Mr Hutton with access to all of his client files and that Mr Hutton selected 10 files to review.[62]

[63] Fourth, when asked why he did not send the SC 3.2 letters earlier than he did, the appellant referred to the fact that he was a sole practitioner and did not have sufficient administrative support and required software to generate a report.[63] But it transpired that he only had a very small number of existing clients. (As at 8 March 2016 he only had "fourteen open files for clients".[64]) It was not an onerous obligation.

[64] Fifth, it seems that he misunderstood the requirements in SC 3.2 and thought that he was required to send such letters to every client that he had ever had, notwithstanding that only about 14 of his files were current. Rather than admit that he had misunderstood the requirement that he (only) send SC 3.2 letters to existing and future clients, he provided two explanations, both of which I consider most unsatisfactory.

[65] One explanation was that he had not "closed" any of his files and that all of his files were "open" and therefore "existing", albeit that only fourteen were active.[65] However in [142] of his affidavit of 8 March 2016, where he said that he had only "fourteen open files for clients", he appeared to refer to "open files" as those (14) files which were active.

[66] The second explanation was that he sent the letters to all 465 people, not just his 14 existing clients, because the Reviewer, "Mr Hutton said I had to and he came in and said I had to send them out to everybody, and I said: 'Oh. I thought it was only the 14.'"[66] After he said that the following exchange occurred:

[63]

[67] This is one of many examples of the appellant proffering an answer which deflected blame or responsibility onto someone else but was exposed to be incorrect and misleading only after further probing by counsel.

[68] Clearly his reason for sending out those 465 letters was that he misunderstood the requirement in SC 3.2, not that Mr Hutton required him to do that.

[69] A further reason why this explanation was misleading was that Mr Hutton did not attend the appellant's office until 4 December 2015 at the earliest, having only been appointed as Reviewer two days before. By then the time for compliance with SC 3.2 had passed by some six weeks.

[70] Sixth, the appellant's assertion in his affidavit of 24 February 2016 that he "sent approximately 500 letters to all of my clients in compliance with condition 3.2 of my current practicing certificate" gave the false impression that he did in fact have such a large number of existing clients. Consequently there were potentially a large number of people who might be prejudiced unless the appellant's application for the stay was granted. Although he was present in Court when the stay application was heard, he did nothing to correct this impression until 26 February 2016 when his counsel properly informed the Court that this was an error on his part, which I accept.

[71] The Law Society submitted that the factual inaccuracies in paragraphs [7] and [8] of his affidavit of 24 February 2016 were deliberately contrived by the appellant to further his prospects in his urgent application for a stay of the decision to cancel. Even if they were not deliberately contrived no reasonably competent legal practitioner could have sworn such an affidavit which contained such misleading statements.

[72] Seventh, it seems to me that the appellant either ignored his obligations under SC 3.2 and 3.4, or misunderstood the meaning of the words "existing clients". If he was unsure of what those words meant, or if he honestly believed that he was required to send SC 3.2 letters to every client he had ever had but would not be able to comply in the time required, he should have sought clarification from the Law Society and/or an extension of time within which to comply. As I pointed out in [61] above, the fact that the Reviewer was not appointed until 2 December 2015 is irrelevant.

[73] Counsel for the appellant submitted that even if the appellant misconstrued whatever he may have discussed with Mr Hutton about what letters should be despatched "that ... does not matter because the appellant merely acted in a cautious manner by sending letters to all clients whose files were still open."[68] I disagree. It seems that the appellant wasted much valuable time and resources in performing this unnecessary exercise, in circumstances where he had other serious deadlines to meet.

[71]

[82] In his response to the complaint, the appellant ascribed the blame for the failure to properly invoice and record a client payment to his employed bookkeeper.[79] I interrupt to note that he has also blamed his employed bookkeeper for a number of other serious errors and omissions that have been ventilated in the course of this appeal.[80] The Law Society took the view that the appellant is the person with ultimate responsibility for the billing undertaken by his legal practice, and his failure to properly supervise his staff in billing and informing clients about trust account transactions was reckless or careless.

[83] On 24 August 2015, the appellant was informed of the Law Society's decision regarding the Williamson complaint, and required to pay the fine to the Legal Practitioners Fidelity Fund within 30 days,[81] i.e. by 23 September 2015.

[84] In October 2015, the Statutory Supervisor, Michael Grant QC, undertook a mediation of a costs dispute pursuant to s 330 of the LPA in respect of the costs the subject of the appellant's invoice to Ms Williamson.[82] The costs dispute consisted of whether Ms Williamson was required to pay to the appellant the costs claimed by the invoice. The outcome of that mediation was that the appellant withdrew his invoice.[83]

[85] In his affidavit of 24 February 2016, the appellant swore that as a result of the mediation, the Williamson complaint was negotiated and settled on a without admission basis and that Ms Williamson withdrew her complaint.[84] In his later affidavit of 8 March 2016, the appellant admitted that this was a misstatement made in error.[85]

[86] That he could make such an error given the Law Society's findings and penalty discloses a serious lack of understanding about the requirement for legal practitioners to act with absolute candour and to ascertain the true facts before swearing an affidavit that is likely to mislead the reader, particularly where the reader is likely to be a court or other tribunal who is considering the fitness of that person to hold a UPC.

[75]

[93] Ms Ray was a client of the appellant's in respect of a residential tenancy dispute in the Local Court. She made a complaint on 2 July 2014, which was modified by the Law Society to add further grounds on 2 December 2014.[95] The grounds of the complaint are:[96]

(a) lack of costs disclosure;

(b) making inappropriate comments and irresponsible conduct;

(c) seeking payment for amounts already paid;

(d) failing to provide an itemised bill when requested;

(e) making a false and misleading misrepresentation to Ms Ray that the appellant's hourly rate was the same as the Northern Territory Legal Aid Commission's (NTLAC's) rate; and

(f) that the appellant's representation and advice in relation to the tenancy dispute was lacking in competence and diligence, the particulars of which are:[97]

(i) failure to provide advice or providing inadequate advice as to Ms Ray's legal position, her prospects, the potential costs of pursuing the appeal, and the risks and costs of litigation;

(ii) poorly or inadequately drafted affidavit material; and

(iii) potential lack of knowledge or understanding of the Residential Tenancies Act 1999 (NT).

[94] The documents prepared by the appellant and filed in the Local Court comprised an application under the Small Claims Act 1974 (NT) for an order to be set aside and re-hearing,[98] and an affidavit.[99] There was also a notice of appeal (Form 37A).[100] These documents disclose significant procedural deficiencies including use of the wrong form, failure to make references to the sections of the Residential Tenancies Act under which relief was being sought, failure to address the nature of the appeal under s 150 of that Act, and failure to address the relevant matters for an order suspending the operation of an order for possession under s 105 of that Act. In addition, the affidavit was flawed in that it purported to be made by both the appellant and Ms Ray. The appellant acknowledged that he made errors in the affidavit, and attributed his making of those errors to it being necessary for him to prepare the affidavit urgently on a Saturday when Ms Ray first came into his office.[101]

[95] On 31 January 2014, the appellant invoiced Ms Ray for the sum of $110 for work done on that day described as "legal advice in relation to tenancy matters, option to appeal".[102] The appellant said that Ms Ray paid him $110 for the work he did on that day, namely taking instructions and preparing the tenancy appeal documents.[103] On 5 March 2014, the appellant invoiced Ms Ray for the sum of $1,188 less $600 paid by her in March and April 2014, leaving an outstanding amount of $588. The invoice purported to be for "tenancy legal advice, court representation, preparation of interlocutory application and appeal application", but did not refer to the sum of $110 paid on 31 January 2014. On 16 April 2014, the appellant sent a "revised"[104] tax invoice to Ms Ray (on its face stating "Draft - Unapproved") identifying fees of $330 for the work done on 31 January 2014, and making no reference to any payments made by Ms Ray.[105] His covering email of that date stated that she had paid $500 against the invoiced amount of $1,188.[106] On 18 June 2014, the appellant and Territory Debt Recovery sought payment of $698 from Ms Ray for outstanding fees.[107] When asked to explain the discrepancy between the sum allegedly owing ($588) and the sum demanded ($698), the appellant's response was that his bookkeeper had sent the demand because Ms Ray owed the practice money.[108]

[96] In the email he sent to Ms Ray on 16 April 2014, the appellant stated:[109]

[79]

[101] Mr Loizou had contacted the Law Society on 30 July 2014 seeking assistance in recovering from the appellant the balance of his money held in trust (which the appellant had told him was about $2,750) and the release of his file in order to pursue his family law matter with different legal representation.[114] Mr Loizou had contacted the appellant twice in the preceding 11 days regarding the matters and had not had any response from the appellant. When the appellant was contacted by the Law Society, his explanation was that he needed to "go through LEAP" before he could settle the matter, and he said he had told Mr Loizou it would take two weeks. The Law Society suggested the appellant send Mr Loizou an email informing him of his proposed actions.[115] On 1 August 2014 the appellant sent an email to Mr Loizou apologising for not responding earlier and advising that he was currently in the process of finalising Mr Loizou's files and invoices. He said that once this has been done he would forward any left-over funds to Mr Loizou, or "if you owe any funds to us after finalising everything I will be putting a Lien on your files until all payments are finalised before releasing your files to you".[116] That was the last Mr Loizou heard from the appellant.[117]

[102] Mr Loizou also complained that he was not provided with a costs agreement, any invoices for fees, or any receipt for funds deposited in trust.[118] It appears that Mr Loizou first saw the appellant on 25 November 2013 and he then signed a retainer ("terms of engagement").[119] He did not sign a costs agreement until 2 January 2014.[120]

[103] The signed costs agreement comprised an agreement produced for the purposes of the Legal Profession Act 2004 (NSW). Amongst other things it provides that the applicable law is the law of New South Wales. The document also contains most of the defects identified in the Law Society's decision on costs disclosure in the Williamson complaint.[121] In addition, it stated that total fees and disbursements are likely to be "in the order of $16,000 ... plus GST" "or" "in the range of $200 to $400". It also stated that: "Those members of the firm that work on your matter will record the time they spend and charge according to" hourly rates ranging from $380 for work done by a Partner, $330 for work done by a Senior Associate or Lawyer, to $165 for work done by a Clerk.[122]

[104] The appellant was the only legal practitioner working in the practice. By stating this he implied that there were other people within his employ such as a senior associate, lawyer and clerk and that some of the client's work would be done by such person at the lower rate. I consider such an implication to be misleading and improper.[123]

[105] As was the case in relation to the costs disclosure in the Williamson matter, the costs disclosure encompassed by provision of this costs agreement did not comply with the requirements of ss 303 and 305 of the LPA and falls below the standard expected of a competent and diligent practitioner.

[106] The appellant's affidavit of 8 March 2016 includes copies of numerous tax invoices all addressed to Mr Loizou at 525 Lonsdale Street, Melbourne, as follows:[124]

[81]

[110] He conceded that he sent some thirteen tax invoices to Mr Loizou, without having looked over them himself, relevantly stating: "...I basically relied on my bookkeeper."[127]

[111] The appellant was not able to explain irregularities in his trust account receipts or how an amount of some $5,613.88 had been accounted for or disbursed, other than to say that the irregularities arose as a "consequence of inadequate or inappropriate bookkeeping".[128]

[112] I agree with the Law Society that the fact that any fault for the subject irregularities may rest with others does not mitigate in the appellant's favour. He was ultimately responsible for what occurred in his practice and for oversight of the management of its financial affairs. The Courts have long recognised that a principal can be found guilty of professional misconduct for the actions of his or her underlings and/or for a failure to properly supervise.[129]

[113] I agree with the LSNT submission that, in effectively delegating responsibility for the management of his firm's and clients' accounts to his bookkeeper and in exercising little or no oversight of that bookkeeper's actions in relation to the billing of clients and the recording of transactions,[130] the appellant's conduct fell a long way short of what is reasonably expected of a fit and proper person operating as a legal practitioner under a UPC.

[114] In his final submissions the appellant acknowledges that allowing his bookkeeper to prepare and send the 13 tax invoices to Mr Loizou without firstly reading them for correctness was "an unwise practice, because he accepts that he, as the director of the practice holding a UPC, is ultimately responsible for the correctness or otherwise of any tax invoices sent to clients."[131] He says that he now "prepares a narrative of the work performed, provides it to his current bookkeeper so she can prepare a draft tax invoice and he checks the drafts of them, and if thought necessary, corrects them and then they are sent to clients."[132]

[91]

[121] The appellant was then queried as to why he had not provided Mr Loizou with a trust account statement.[137] The appellant started by saying that he was unsure as to what it was that Mr Loizou was seeking in the Loizou email. He said that he had a trust account statement ready for Mr Loizou. When he was asked whether any trust account statement had been sent to Mr Loizou, he was initially unable to give a definitive answer. When further pressed about this he admitted that no trust account statement had been provided and he sought to explain that failure by saying he had not yet closed Mr Loizou's file (although the work had been completed by August 2014).

[122] He admitted that he had not refunded any monies from trust to Mr Loizou, apparently because of his ongoing investigations, in conjunction with his accountant, into the operation of his trust account. He was asked when he would ordinarily provide a trust account statement to a client and he responded: "Only if they ask for them, I give them". He was also asked why the provision of a trust account statement may need to await the closure of a client's file, and he said: "Well, I want to find out if he actually owes me any money, because we did a lot of work on this matter." The appellant said that he expected to be in a position to close the file within "the next couple of weeks". He acknowledged that he had been in the process of finalising Mr Loizou's file for in excess of a year and a half, and disagreed with the suggestion that it was unacceptable for a client to wait over a year and a half for the provision of a trust account statement, stating: "I don't think so, because I never closed the file off." He also suggested that it was unclear to him whether Mr Loizou would be requiring him to undertake further work on the files because he still had the files. He considered that it was Mr Loizou's responsibility to attend his offices in order to collect the trust account statement, but later said that Mr Loizou could not collect any trust account statement until he, the appellant, was satisfied that it was "above board".[138]

[123] Section 247(3) of the LPA relevantly provides that a law practice must account for monies held in trust in the manner provided for in the LPRs. A failure to comply with s 247(3) is an offence.[139]

[124] LPR 63 relevantly requires that:

(a) a law practice furnish a trust account statement to each client on whose behalf trust money is held;[140]

(b) a trust account statement contain:[141]

(i) the information required to be kept under Part 3.1 of the Regulations, which relevantly includes, inter alia, a client specific trust ledger account recording all receipts and payments in that account;[142] and

(ii) details of the balance held (if any);

(c) such statements be furnished:[143]

[95]

[125] It is apparent that, contrary to the requirements of s 247(3) of the LPA:

(a) no trust account statement was provided to Mr Loizou at any time following the appellant ceasing to act in June or August 2014, or following Mr Loizou's requests in his email of 27 June 2014 for a detailed statement of his account and a copy of his trust account[145] and in July 2014 that his trust account ledger be closed and the balance remitted;[146] and

(b) no trust account statements were provided to Mr Loizou, as soon as practicable or at all, following 30 June 2014 or 30 June 2015.

[126] Notwithstanding Mr Loizou's requests in July 2014 for the return of his file in the context of ongoing litigation and for the refund of monies owed to him which he told the appellant were "really need[ed]...to pay rent and living expenses",[147] and the intervention of the Law Society on 30 July 2014 following which the appellant said that he was in the process of preparing a final invoice which expected to issue within two weeks and he would thereafter return the file and remit any balance of trust monies to Mr Loizou, the appellant failed and continued to fail to offer to return the file or finalise Mr Loizou's trust account until 28 May 2016. The appellant has provided no acceptable justification for this very poor conduct on his part.

[127] Even when he gave evidence in these proceedings in April 2016, the appellant could not say that he was in fact owed any money by Mr Loizou; his evidence did not rise any higher than that he might be owed something.[148] On the basis of that mere suspicion he had withheld files that Mr Loizou may have required for the conduct of his family law litigation and refused to refund any amount to Mr Loizou for more than eighteen (18) months.

[128] When he sought leave to reopen his case on 16 May 2016, the appellant swore that he was still trying to finalise preparation of trust account statements to all clients for whom the firm was holding any monies in its trust account.[149] According to the trust account ledger in evidence prepared on 12 April 2016 the current balance of Mr Loizou's trust account was $113.88.[150]

[97]

[129] By letter dated 28 May 2016 addressed to Mr Loizou the appellant provided copies of three trust account receipts (acknowledging receipt of a total of $20,500), various tax invoices including one dated 26 May 2016 itemising all work done (between 26 June 2013 and 18 August 2014) and charges therefor, a trust account statement prepared 26 May 2016 (the Loizou trust account statement) showing the amount of $113.88 held on Mr Loizou's behalf and a cheque for $113.88. He said that he had checked the letter and had it reviewed by counsel.

[130] The letter explained that an amount of $5500 had been banked into the appellant's office bank account by electronic funds transfer rather than into his trust account, and that explains why the trust account statement does not include a record of that payment. The letter then provided a brief summary showing the client owing the appellant $9,413.12, being the balance due after deducting from the amount shown on the tax invoice of 26 May 2016 the total amount of $25,500 "received from you paid into our office account or our trust account". The appellant advised that "in the circumstances" he would not be requiring Mr Loizou to repay that balance, and instead was enclosing the cheque for the $113.88.[152]

[131] During cross-examination he agreed that he had made an error in adding up the four amounts received from his client, namely the $20,500 recorded on the trust account receipts and the $5500 banked into his office account, as a consequence of which he had been paid $26,000 not $25,500.[153] However he later changed his evidence and said that the $5500 banked into his office account was in fact the same payment that was recorded in one of the three trust account receipts. Consequently he had only in fact received $20,500, not the $25,500 stated in the letter, nor the $26,000 previously acknowledged during his evidence.[154] If this is correct, the client would owe him $14,413.12, namely $5000 more than stated in the letter.

[132] When it was put to him that he could easily have ascertained when and whether the $5,500 was paid into his office account by checking his bank statements he admitted that he did not do that. When asked how the client could have paid the money into his office account he surmised that his bookkeeper must have provided the client with the wrong account information.

[133] I find all this most unsatisfactory. The last item of work for Mr Loizou was done in August 2014 and the final accounting in May 2016 was still wrong, by as much as $5000. Moreover, I find it extraordinary that he is now prepared to write off a significant amount of legal fees to which he now says he is entitled, and indeed send the client the cheque for $113.88.

[134] I agree with the LSNT submission that the appellant's conduct in relation to this client is demonstrative of a lack of fitness to practice. His conduct is not of the standard reasonably expected of a person holding a UPC.

[98]

[135] Mr Bekkers was a client of the appellant's in respect of a dispute with a government authority in relation to banana farming. On 21 August 2014 Mr Bekkers requested the appellant to return any unused funds.[155] On 25 May 2015 he made a complaint to the Law Society. The Law Society sent the complaint together with other materials to the appellant on 8 October 2015 and sought his response within 14 days.[156] He replied on 30 December 2015.[157]

[136] The complaint alleged failures on the part of the appellant to provide adequate costs disclosure as required by s 303 of the LPA, including failures to advise Mr Bekkers of his estimated legal fees and of his entitlement to a costs agreement and to respond to his request for a written costs agreement, failure to properly account for trust monies, failure to advise Mr Bekkers of his right to dispute costs as required by s 325 of the LPA, withdrawing money from trust for legal fees without authority and overcharging.

[137] Mr Bekkers first consulted the appellant on 10 January 2014.[158] The appellant told the Law Society that he gave Mr Bekkers a cost estimate of $6,000, and provided him with a copy of a costs agreement that day.[159] The costs agreement is in essentially the same form as that the subject of the Williamson complaint and the Loizou complaint, and suffers from most of the same defects.[160] The costs agreement was never signed by Mr Bekkers.[161] It estimated fees and disbursements at $6,000, advised the same hourly rates as referred to in the Loizou costs agreement, estimated likely costs of $30,000 for counsel or other experts, and required an initial payment of $2,000.

[138] Consistently with the Law Society's decision in relation to the Williamson complaint, the costs disclosure encompassed by provision of this costs agreement (assuming it was provided as the appellant describes) would not comply with the requirements of ss 303 and 305 of the LPA.

[139] In his reply to the Law Society on 30 December 2015, the appellant said he had issued and delivered to Mr Bekkers tax invoices for the work he had performed and disbursements incurred, and that he withdrew amounts from the trust account accordingly.[162] This assertion was made even though Mr Bekkers' complaint clearly stated:

[100]

[140] In his affidavit of 8 March 2016 the appellant acknowledged that he first became aware that a "trust account receipt and some of the tax invoices rendered to Mr Bekkers were incorrectly addressed with the practice's address" when he read Mr Bekkers' complaint.[164] He then acknowledged that "it may be the case that" Mr Bekkers did not receive those invoices or the trust account receipt until after he terminated his retainer, in August 2014.[165] He also acknowledged that a copy of the barrister's tax invoice may not have been sent to Mr Bekkers. Again, the appellant sought to blame his bookkeepers for these failings.[166]

[141] In his response of 30 December 2015 the appellant acknowledged that there remained in his trust account the sum of $1,000 belonging to Mr Bekkers and he undertook to deliver a cheque in that sum to Mr Bekkers within seven days of his letter.[167] Despite that undertaking, the appellant did not pay that money to Mr Bekkers until 7 March 2016, when he sent him a bank cheque for $1000.[168] He provided no explanation for that failure.

[142] The appellant's affidavit of 27 May 2016 included a letter of 26 May 2016 addressed to Mr Bekkers which attached a trust account statement as at 25 May 2016 (the Bekkers trust account statement) and a cheque for $900. That trust account statement shows transactions between January and March 2014 and a credit balance of $900 as at 18 March 2014. It does not refer to or otherwise acknowledge the payment of the $1000 (on 7 March 2016).

[143] During cross-examination on 1 June the appellant agreed that the Bekkers trust account statement did not record his receipt of $1000 on 22 January 2014, in payment of an invoice dated the same day.[169] He also acknowledged that he rendered a tax invoice dated 1 February 2014 which included a claim for the same work as that the subject of the 22 January 2014 invoice and payment.[170] He said that until this was pointed out to him during cross-examination he did not realise that Mr Bekkers had been charged twice for the same work, apparently because his bookkeeper had redone the invoice. He said that he assumes that would be covered by the $1000 paid in March 2016 and the further $900 repaid in May 2016, and that he does not propose to do anything more about it unless Mr Bekkers comes back to dispute the accounts or unless the Court orders him to do something about it.[171] This is not a satisfactory way for a legal practitioner to avoid his responsibility to provide proper accounting to his former client, and further illustrates his lack of proper understanding of his obligations to clients.

[109]

[155] Mr Sommer was a client of the appellant's in relation to a workers' compensation claim in the Work Health Court following a work injury he suffered in March 2012. Although the claim had been accepted by the employer the parties fell into dispute concerning Mr Sommer's ongoing entitlements. Because he was living in Western Australia Mr Sommer consulted Mr Saupin, a Perth solicitor, who arranged for the appellant to act for Mr Sommer in relation to the claim.

[156] On 17 September 2015 Mr Sommer made a complaint to the Law Society about the appellant's conduct, alleging incompetence.[181] The appellant was notified about the complaint on 8 October 2015,[182] but did not respond to it until 31 December 2015, explaining the delay on the basis that he was awaiting the decision of Neill SM in the proceedings (delivered on 11 December 2015)[183] and thereafter on the basis that "I have been far too busy to apply my mind to responding to the complaint".[184]

[157] The appellant commenced proceedings in the Work Health Court by filing an initiating application on 20 February 2015. The employer objected to the original statement of claim, and to an amended statement of claim, following which the matter was referred to Mr Neill SM on 29 July 2015. Mr Neill SM listed the matter for directions on 6 August. However by letter dated 31 July 2015 the appellant gave notice that he had ceased to act for Mr Sommer. No one appeared for Mr Sommer on 6 August and the matter was adjourned to 27 August.[185] On that occasion Mr Sommer was represented by a new solicitor and counsel, who sought and were given leave to make significant amendments to the pleadings, including to cure a number of serious defects in the previous versions.

[158] Mr Sommer sought orders that all costs between himself and the appellant and Mr Saupin be disallowed and that the appellant and Mr Saupin pay any costs thrown away which Mr Sommer might be ordered to pay to the employer. Both the appellant and Mr Saupin conceded that the standard of legal work performed by them for Mr Sommer was inadequate, and that all costs between them and Mr Sommer should be disallowed, and that Mr Sommer should be fully indemnified for costs he was ordered to pay to the employer. However each of the appellant and Mr Saupin contended that the other should be solely responsible for indemnifying Mr Sommer for those costs.

[159] In his Reasons for Decision Mr Neill SM[186]:

(a) said that the pleading of and pursuit of instructions for a common law cause of action in the statements of claim, in a no-fault statutory jurisdiction, reveals an ignorance of the jurisdiction indicative of negligence (at [31]-[32]);

(b) said that the statements of claim were patently inadequate and altogether the conduct of both the appellant and Mr Saupin amounted to a failure to act with the competence reasonably expected of ordinary members of the profession, which failure caused costs to be wasted both by negligence and by undue delay (at [33]); and

(c) rejected the appellant's submissions that he acted merely as town agent of Mr Saupin. The appellant had entered into a written and signed costs agreement with Mr Sommer to carry out work in relation to the proceeding, issued tax invoices to Mr Sommer for that work, appeared in the Court on his behalf, had some hand in preparing and drafting the statements of claim and separately had a solicitor/client relationship with Mr Sommer with all the professional obligations of competence and responsibility arising therefrom (at [47]-[50]).

[160] His Honour made orders disallowing all costs between the appellant and Mr Sommer, requiring the appellant to repay to Mr Sommer any monies already paid to him on account of costs, and requiring each of the appellant and Mr Saupin to pay half of the costs which Mr Sommer was required to pay to the employer as a result of its costs thrown away.[187]

[161] The appellant has acknowledged that he did not act competently for Mr Sommer, and attributed that to an absence of prior experience in workers compensation claims.[188] I note that the Williamson matter was also a workers compensation case, albeit under federal legislation.

[162] The appellant's response to the Law Society about the complaint stated:[189]

[131]

[170] The appellant acted for Mr Hall in relation to a drugs matter that resulted in him being sent to prison in September 2015. His mother, Ms Hall, had arranged for a friend of hers, Ms Vosso, to deposit $30,000 into the appellant's trust account to cover Mr Hall's legal fees. On 6 April 2016 Ms Hall contacted the Law Society and complained that the appellant had failed to provide any invoices or trust account statements specifying how the sum of some $30,000.00 had been disbursed.[195]

[171] Following completion of the matter Ms Hall emailed the appellant on 26 September 2015, requesting "an itemised account of the fees incurred".[196] On 6 October 2015, Ms Hall sent a further email to the appellant seeking a response to her email of 26 September.[197] The appellant emailed Ms Hall stating: "I am in the middle of doing the final bill now and will have it done by the end of next week. Once this is done then I will advise."[198]

[172] The appellant subsequently refused to provide Ms Hall with any information unless and until she provided him with written authorities from both Ms Vosso and Mr Hall. During his cross-examination the appellant conceded that he did not ask Ms Vosso or Mr Hall for any authority to disclose the financial information to Ms Hall until sometime after 6 October 2015.[199] The appellant did not provide a satisfactory reason for him requiring Ms Hall to obtain the authorities, rather than him seeking them himself.

[173] Ms Hall provided the appellant with the requested authorities on 21 March 2016.[200] The appellant provided Ms Hall with the requested invoices and accounting on 8 April 2016.[201]

[174] When the appellant was asked why he did not provide the material earlier and only did so after he became aware of Ms Hall's complaint of 6 April, he said that he was in a position to provide the material to Ms Hall when she came to Darwin to visit Mr Hall in the period 27 March 2016 to 2 April 2016 and that he had expected her to attend his offices to collect it.[202]

[175] The appellant was cross-examined as to the basis of his belief that Ms Hall would attend his offices to collect this material.[203] He conceded that he had not contacted Ms Hall to schedule any such attendance and when pressed as to why, he said: "I just didn't bother."

[176] When asked if he would have provided the material to Ms Hall had she attended his offices when she was in Darwin to visit her son, the appellant responded: "Yes. I probably would have", then "I would have".[204] He said that the material was sitting on his desk awaiting collection, but then added that the requisite material had not been finalised.

[177] When the appellant was asked why he had not complied with his obligations to provide Mr Hall with tax invoices and other documents although the matter (which involved fees in the vicinity of $30,000) had been finalised, he said that Mr Hall had instructed him that he did not want him to deliver any accounting correspondence to him while he was in prison.[205]

[178] Counsel for the appellant conceded that the appellant did not provide the necessary accounting and that, as a result, he has breached his statutory obligations. However counsel submitted that because Mr Hall had provided instructions not to send tax invoices or other accounting documentation while he was in prison, he has waived or forgiven his entitlements to receive such materials. Counsel submitted that in these unusual circumstances it would not be appropriate for the Court to find that those breaches of the LPA, and the LPR, warrant a finding that the Appellant is not a fit and proper person to hold a UPC.

[179] The Law Society pointed out that the appellant's conduct in this regard constituted a clear breach of s 247(3) of the LPA. Mr Hall was imprisoned and his mother, Ms Hall, was seeking an accounting in relation to the money that had been paid into the appellant's trust account to pay for his legal costs. To the extent the appellant was concerned as to whether the information should be disclosed to Ms Hall all he had to do was seek appropriate instructions from Mr Hall.

[180] The Law Society contended that even if one takes the view that the appellant may have been justified in requiring written authority before releasing information to Ms Hall, he was obliged to provide a trust account statement to Mr Hall as soon as practicable following completion of Mr Hall's matter.[206] A reasonably competent legal practitioner would have understood the need to provide such a statement promptly following the final appearance for Mr Hall on 11 September 2015. At the very latest, such an obligation would have arisen on the appellant generating his final invoice dated 26 October 2015[207] (notwithstanding that the invoice was not in fact provided to his client or anyone else until 8 April 2016).[208]

[181] I agree with these submissions.

[182] Section 254 of the LPA provides for how a legal practitioner is to deal with trust monies. Relevantly s 254(b) provides that a law practice may:

[134]

[188] Criminal law is one of the areas which has always been a large component of the appellant's legal practice and in which he professes some degree of competence.[214]

[189] Mr Hes was the appellant's client in relation to a criminal charge on indictment in the Supreme Court of unlawfully supplying methamphetamine, a Schedule 1 drug, under the Misuse of Drugs Act. Mr Hes pleaded guilty and the appellant appeared on his behalf in respect of the plea and sentencing.

[190] On 8 December 2015, Justice Kelly wrote to the Law Society regarding potentially unsatisfactory professional conduct by the appellant. Her Honour expressed concerns that:[215]

(a) the appellant's oral and written submissions may have fallen short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent Australian legal practitioner;

(b) the appellant may not have the requisite level of skill to be practising unsupervised; and

(c) the appellant may not have fully understood his ethical obligations to his client and to the Court.

[191] The appellant's oral and written submissions on sentence disclose a number of matters which raise questions about the appellant's competence and diligence.

[192] The appellant's initial position in relation to her Honour's letter was that this Court should not take it into account, essentially because the appellant was not provided notice of it under s 475 of the LPA.[216] However, the appellant was given notice of the matters which concerned the Law Society on 21 December 2015,[217] and took the opportunity to make extensive and detailed comments thereon on 6 January 2016.[218] I agree with the respondent that for the appellant to take such a position in this proceeding discloses a disturbing lack of insight into the seriousness of a judicial officer's reporting of a legal practitioner's conduct to the regulatory body.

[193] During cross-examination the appellant was asked whether he agreed with submissions advanced by his counsel to the effect the Court should not consider his conduct in the Hes matter in these proceedings. The appellant initially said: "I don't see what conduct you're talking about".[219] He then gave non-responsive answers, stating that "Joshua Hes got a very good outcome".[220] When pressed to answer the question, first by counsel for the Law Society and then by the Court, he asked for the question to be repeated. He then purported to object to the question on the basis it constituted two questions and ultimately conceded that the Court could have regard to his conduct in the Hes proceedings.[221]

[194] The appellant was cross-examined about a number of unsatisfactory aspects of his representation of Mr Hes, both in and out of court.

[140]

[199] The appellant had difficulty answering counsel's questions as to how the Court could be assisted by submissions which were almost identical to those filed by the Crown. He eventually conceded that the mere repetition of the other party's written submissions does not assist the Court or the parties and is a waste of time for all those involved. [229] I reject the submission by the appellant's counsel that "this area of questioning concerns questions of style of submission rather than competency."[230]

[200] Parts of the Crown's submissions which the appellant copied into the Defence submissions included submissions:

(a) that "the objective seriousness of the offending is high" and that "had the offenders not been apprehended a significant quantity of drugs would have been introduced into the community, beyond those already supplied, and directly through the offender's role in its distribution";[231]

(b) that "the Defence does not indicate how much of the methamphetamine was to be sold by the offender, or to whom."[232]

(c) that his client had only agreed to plead guilty after an alleged co-offender had agreed to give evidence against him;[233]

(d) that this type of offending was becoming increasingly prevalent;[234]

(e) noting that "following the decision in Truong v The Queen [2015] NTCCA 5 (Truong) the tariff for trade in Schedule 1 substances has been significantly raised, ...".[235]

[201] The appellant was asked how it was in the interests of his client to repeat these submissions. In relation to the submission referred to in [200](a) above he said that the making of these concessions resulted in his client getting a g[236] result.236 He conceded that it was not in his client's interest to repeat the Crown's submissions to the effect that his client had only agreed to plead guilty after an alleged co-offender had agreed to give evidence against [237] client.237

[202] He also conceded that he had not read the Court of Criminal Appeal's recent decision in Truong and he said he did not have time to read it. He said that the decision probably would not have helped his client because he had "sent [the judge] 80 comparative cases."[238]

[203] The appellant was asked why he responded to paragraph 11 of the Crown's submission that stated: "The Crown cannot indicate how much of the methamphetamine was to be sold by the offender, or to whom", in the way that he did, namely by simply altering the opening words to read "The Defence does not indicate ...". The appellant provided two answers, both of which raise serious concerns about his credibility and the reliability of his testimony.

[204] First, he said that he had been pressed for time as a result of the Crown's submissions only having being served at 7pm the night before the hearing.[239]

[205] Second, the appellant said that although his client was pleading guilty to supplying a commercial quantity of methamphetamine he did not know what quantity of methamphetamine was found or what quantity was to be sold or to whom. When it was put to him in cross-examination that this would have been an important mitigating factor that should have been included in the Defence submissions, he said: "I did tell the judge that."[240]

[156]

[214] I reject these submissions and infer that the appellant was provided with the Crown's submissions on 26 October, not the night before the hearing some three weeks later. Firstly, one would not have expected counsel for the Crown to have sent submissions to the Court without copying in the appellant. Secondly, at the hearing on 27 October 2015, the prosecutor expressly referred to "the written submissions that [he] provided to [the] associate yesterday afternoon".[250] Had the appellant not already received them one would have expected him to complain then and there about private communications having occurred between the prosecutor and the Court and requested a copy of the written submissions.

[215] Thirdly, that submission misunderstands the evidentiary burden that shifts to the appellant once the above inference is open. If the appellant wished to challenge this inference he could easily have given evidence about this. Fourthly, such a forensic point is not one that should normally be taken in the context of proceedings such as these which concern the appellant's honesty and integrity and where the evidence to challenge the inference is in the appellant's possession, not that of a third party such as the respondent.

[216] I find that the appellant was sent the Crown's submissions on 26 October 2015, not at 7pm the night before the hearing. He had them for three weeks before the hearing on 20 November.

[217] Further, contrary to his evidence that he provided the Defence submissions to her Honour's associate on the morning of the hearing and after showing them to Mr Hes,[251] they were in fact provided on the morning of 10 November, by email.[252] When his email was brought to his attention in cross-examination, the appellant paused for a lengthy period when it became apparent to him that his earlier evidence was incorrect. He initially persisted in his assertion that the submissions had been shown to Mr Hes before being provided to the Court, and ultimately suggested the submissions may have been discussed with Mr Hes before being provided to the Court, as opposed to having been shown to him, but he could not recall.[253]

[218] Nor was he "pressed for time". The appellant had taken instructions to enter a plea for Mr Hes as early as 13 July 2015.[254] The matter had been set down for both plea and submissions as to sentence on 27 October 2015 at the appellant's request.[255]

[219] At the appellant's request the matter was then adjourned to 11 November, to enable him "to provide counselling reports and medicals and also some references".[256] The Court granted Mr Hes bail. Her Honour asked the appellant whether two weeks would be sufficient time for him to get the necessary material in order, and the appellant replied that it would be. Her Honour directed him to supply copies of material to be relied on and an outline if only in dot point form of the background material that he wanted to rely on, at least 24 hours before the date of the sentencing submissions. When asked whether that would create a difficulty he said: "No, your Honour. Thank you."[257]

[220] Even then, the matter was adjourned again, to 20 November, at the appellant's request so that he could "obtain some medical records and the employer letter and a few other small things and to clarify a few things about his health and personal issues."[258] On the morning of 20 November 2015 her Honour invited and permitted the appellant to provide further materials and further submissions.[259]

[221] Counsel for the appellant contended that it was difficult for the appellant to obtain instructions from Mr Hes because he lived in Alice Springs and it was often necessary for the appellant to leave messages for Mr Hes to ring him back. These circumstances were not particularly unusual and, as I have just noted, her Honour granted adjournments and was assured by the appellant that he had sufficient time to obtain necessary materials. Presumably Mr Hes was in Darwin when the appellant took his initial instructions in July 2015. He was also in Darwin on 27 October 2015 when he answered his bail and entered his guilty plea. And, as I have found, the appellant had received the Crown's submissions the day before, and could therefore, and should, have taken proper instructions from Mr Hes before he returned to Alice Springs, on bail.

[222] Her Honour proceeded to sentence Mr Hes later on 20 November 2015. After Mr Hes had been removed from the courtroom her Honour informed the appellant of a number of concerns that she had about the way in which he had conducted the matter and that she considered it her duty to refer the matter to the Law Society.[260]

[157]

[223] Another serious concern about the appellant's competence in relation to criminal matters arises from the way in which he attempted to provide references to comparative sentences.

[224] I have already referred to the recent decision of the Court of Criminal Appeal in Truong and to the fact that the appellant did not even read that decision despite having referred to it in the Defence submissions. Although, contrary to the Crown's submissions which the appellant copied into the Defence submissions, that decision does not purport to fix or raise a tariff for this kind of offending, it does indicate the degree of seriousness with which this Court now regards offending of this kind. It would have been an important decision for defence counsel to refer to and distinguish.

[225] Rather, the appellant provided her Honour with 78 pages comprising detailed summaries of approximately 32 sentences, which summaries had been provided to him by the Supreme Court Library.[261]

[226] When asked by Justice Kelly which of the summaries were relevant, the appellant suggested to her Honour that the first two cases were all that she need consider.[262] However they relate to offending in 2001 and 2002 respectively. At that time Methamphetamine was a schedule 2 drug, as a consequence of which the maximum penalties under the Misuse of Drugs Act (NT) were significantly lower than they are now. Those sentences were irrelevant and it was incompetent, if not misleading, for counsel to rely on them, particularly without acknowledging that important difference.

[227] Not only should any person who purports to practice in this area of the law be aware that Methamphetamine has been a Schedule 1 drug for some years now, the appellant was expressly made aware of the fact that Methamphetamine is a Schedule 1 drug by virtue of the fact that this was stated in the Indictment, and in paragraphs 1 and 21 of the Crown's submissions which he copied into the Defence submissions.

[228] The Defence submissions also repeated the reference in the Crown's submissions to the maximum penalty being 14 years imprisonment. According to the first two summaries which the appellant referred to her Honour, the maximum penalty for the 2001 offending was five years imprisonment, and for the 2002 offending 169 penalty units. The latter summary was clearly wrong as the offender was actually sentenced to a term of imprisonment. The fact that the appellant relied upon this apparently inaccurate summary without drawing the error to the attention of the judge and if appropriate providing her with the actual sentencing remarks, also suggests carelessness on his part, to say the least.

[229] Further, the appellant conceded during cross-examination that he had only read some 50% of the 78 pages of summaries that the Supreme Court Library had provided to him.[263] By informing her Honour that he was relying upon those first two summaries in particular her Honour would have been entitled to assume that he had perused all of summaries.

[230] Counsel for the appellant conceded that appellant's failure to read more than 50% of the comparable sentences "is certainly regrettable", but submitted that that "can be explained due to them being lengthy and, because the appellant may have had little time to read all of them."[264] I reject that submission.

[231] Firstly, it implies that the appellant expected the judge to do all that work herself, without assistance from counsel. One of the important duties which counsel owes to the Court is to present and identify materials, having first perused them and selected which parts are relevant. The appellant failed to honour this obligation. Secondly, when her Honour sought assistance from him in this regard the appellant referred her to the two irrelevant historic sentences. A judicial officer without any relevant experience in this area may well have been misled into relying upon those two irrelevant sentences. Thirdly, there was no point in the appellant reading and handing up summaries of sentences that predated the time when Methamphetamine was removed from Schedule 2 and placed in Schedule 1.

[232] Further, the respondent has pointed out that the appellant misled the Court when he told Justice Kelly that "I basically did some research and looked at some of the actual comparative sentences ..." and that "I couldn't come across any other cases similar to my client's because I looked through the database and went through and tried to find more cases that were actually related."[265] The fact is that staff from the Supreme Court Library undertook the research of the Court's Sentencing Database and sent the appellant the 78 page printout that he handed up to her Honour.[266]

[164]

[235] The appellant conceded that the language "it is opined" was not based upon any legal or medical opinion but rather was based on matters communicated to him by Mr Hes. He conceded that this language was likely to be misleading.[269]

[236] The appellant added that the fact that the submissions may have been misleading in this regard was due to the fact that he was rushed in their preparation. He later conceded that being rushed was not a reasonable excuse.[270]

[237] In final submissions counsel for the appellant referred to the fact that paragraph 3 of the Defence submissions, which contains the reference to bipolar disorder, appears to have been crossed out by hand. Counsel pointed out that there is no reference to bipolar disorder in the relevant transcripts although there was considerable discussion between her Honour and the appellant about the appropriateness of his submission concerning Mr Hes suffering from depression. Counsel implied that paragraph 3 may have been crossed out prior to the hearing and therefore not relied upon.[271] Had this being the case, one would have expected the appellant to say so when he was asked about this issue. Moreover, when the appellant was asked about the handwriting on this part of the Defence submissions he said that as far as he knows the handwriting was not on the submissions when he filed them.[272] Further, the copy of the Defence submissions that was attached to Justice Kelly's letter to the Law Society of 8 December 2015 did not contain the handwriting or crossing out.[273]

[238] As I have already noted the appellant said that he had taken instructions to enter a plea for Mr Hes as early as 13 July 2015.[274] When queried as to why, given the lengthy period between July and October, he had not found a medical expert to give evidence by 27 October 2015, the appellant said that he left it to Mr Hes to source an expert.[275]

[239] When it was suggested to the appellant that the fact that an expert was only found on 27 October, the day when the matter was to be heard, necessitating the matter being adjourned to 11 November, the appellant said: "That's correct. Because we didn't know we would be sentencing on the same day as the plea."[276]

[240] I do not accept this testimony. On 6 October 2015 the appellant wrote to her Honour's associate, saying:

[172]

[250] A significant number of irregularities in relation to the appellant's trust account were revealed in the materials available to the Law Society and more emerged during cross-examination and from the trust account statements that the appellant included with his affidavit of 27 May 2016.

[251] The Law Society wrote to the appellant on 2 October 2014 informing him that he had failed to provide a number of notifications required under the LPA and LPRs and requiring him to provide them by 17 October 2014. These included the Part B Declaration for the 2013/14 year, the Annual Declaration under LPR 55 and an external examiners report for the 2013/14 year. On 20 October 2014 the Law Society wrote to the appellant again stating that he had not provided any of the notifications required, that the matters were substantially overdue and required immediate attention, and also requiring him to appoint an external examiner who could complete and provide a report by 30 November 2014.[286] The Law Society wrote to him again on 3 February 2015 referring back to that correspondence and warning him that the Law Society was considering initiating an own motion disciplinary complaint. It requested his response within 21 days. The appellant responded to that letter on 7 April 2015 providing various reasons for his non-compliance including problems encountered by his then bookkeeper and stating that he had attended a trust account refresher course held by the Queensland Law Society in Brisbane on 4 March 2015.[287]

[252] Following receipt of that correspondence the Law Society resolved to formally initiate an own motion complaint against the appellant regarding those matters and sent him notice under s 475 of the LPA on 9 July. The notice attached a copy of the Law Society's guide to complaints, set out the grounds of the complaint, referred back to the previous correspondence, required his response within 14 days and directed his attention to NTPCR r 32.2. No response was received, despite the Law Society having sent him reminder letters on 13 August 2015 and 15 September 2015.[288]

[173]

[253] The following trust account irregularities have occurred in the appellant's trust accounts:

(a) bank fees were deducted from his Commonwealth Bank trust account from July 2012;[289]

(b) equipment rental payments were deducted from the trust account;

(c) three transactions on the appellant's trust account during the 2013-2014 year did not have any supporting evidence;[290]

(d) six client ledgers and a suspense account ledger show that the appellant's trust account was overdrawn to the extent of $8,109.09 as at 31 March 2015, and remained so overdrawn until 1 March 2016;[291] and

(e) there were other overdrawings on his trust account in 2014.[292]

[254] The appellant says he did not know that the trust account had a debit balance as at 31 March 2014 or that bank fees and the equipment rental payments were being deducted from the trust account until Ms Poullas told him about those things in about April 2015.[293] However Ms Grainger says, and I accept, that she spoke to the appellant on 21 June 2013 about a number of irregularities concerning his trust account, including the fact that he should not be deducting bank fees from it.[294] He blamed his previous bookkeeper for the error concerning the deduction of the equipment rental payments.[295]

[255] The appellant also says that he did not know that the trust account had a debit balance as at 31 March 2015 in the amount of $8,109.09 "or at all" until Ms Poullas told him about that in about September 2015.[296]

[256] Contrary to s 256(1) of the LPA, the appellant did not provide the Law Society with written notice of these irregularities as soon as practicable after becoming aware of them.[297] His failures to do so comprise offences (s 256(1)).

[257] Under cross-examination during the hearing in April 2016 the appellant conceded[298]:

(a) that it was not his practice to review his firm's monthly trust account bank statements himself and that he left that to his accountant;

(b) that trust account receipts and tax invoices were being issued to clients without him having sighted them;

(c) that he relied on his bookkeepers to prepare his firm's annual trust account declarations;

(d) that he never satisfied himself that the subject declarations were being properly prepared until after April 2015;

(e) that he did not "really operate the trust account properly until about 2013" or 2014 although he had been in practice since 2012;

(f) that he had failed to provide his 2015/2016 Trust Account Declaration within the time required;

(g) that he had relied on his new bookkeeper to attend to the filing of the 2015/2016 Trust Account Declaration;

(h) that his failure to file the subject declaration was an offence under the LPA (although he asserted he had a reasonable excuse for that failure involving the necessity to prepare for these proceedings);[299] and

(i) that he did not in fact require the services of his bookkeeper to file the subject declaration and would file the same that night (on the 11 April).

[181]

[266] Despite being aware that his trust account was overdrawn $8,109.09 from September 2015, the appellant did not repay the overdrawn funds until 1 March 2016.[310] He attributed this failure to a lack of adequate cash flow in the practice.[311] Six client accounts were overdrawn.[312]

[267] The trust account statements as at 25 May 2016 provided with the 19 letters dated 26 May show a large number of withdrawals from trust accounts, often of $1000 and sometimes $2000, described as being a "transfer to office for legal fees". When asked why these would often be for even amounts where the corresponding fee was or would not have been for such an amount, he insisted that he had already done the work and relied upon his bookkeeper to tell him that he could transfer the monies.

[268] In respect of at least three clients (one of whom had also been identified in the 31 March 2015 documentation), such withdrawals resulted in trust accounts being overdrawn: in the case of Mr Page on four occasions,[313] Mr Grieve on five occasions,[314] and Mr Tupou on five occasions.[315]

[269] Further, Mr Tupou's trust account was overdrawn from the outset as a result of a $1000 "transfer to office for legal fees" three weeks before any money was paid into that account. The appellant explained that Mr Tupou had promised to pay the money into his trust account earlier but failed to do so.

[270] The last entry on the trust account statement for Mr Grieve showed a "transfer to office for legal fees" of $200. That transaction occurred on 15 April 2016, but Mr Grieve's matter appears to have been finalised in September 2014. Mr Grieve's trust account had been overdrawn between 21 September 2014 and 1 March 2016 due to two transfers to office for legal fees each of $1000 in September and October 2014. The appellant explained that he actually gave that $200 to Mr Grieve's mother "because she was in desperate need for some funds" and "she was going through a very hard time".[316]

[271] In addition to the fact that the appellant did not independently check that he had in fact done the necessary work and prepared a tax invoice for it, his evidence that he only transferred monies to his office account after his bookkeeper told him that he could do that raised a number of further issues. When it was put to him that he had previously said the bookkeeper only attended on a Friday, but that a number of these transfers were made on other days, he said that he would have spoken to the bookkeeper on the telephone before making the transfer. When asked who the bookkeeper was, he said that he had engaged Katherine Haynes, of KHP Bookkeeping, and that it was usually one of her staff who attended on the Fridays. Contrary to the impression previously created that he had the same person acting as his bookkeeper, it appears that there were up to three different members of the staff of KHP Bookkeeping who were providing the bookkeeping services, as well as the principal Ms Haynes.

[272] After the appellant was asked about the over drawings of the Page, Grieve and Tupou trust accounts, senior counsel for the Law Society asked the following:

[188]

[275] In the Appellant's Closing Submissions counsel for the appellant accepts that it is "most regrettable" that the trust account irregularities noted in [257] above occurred, but submitted that the appellant has been taking corrective measures to attempt to correct the trust account operation deficiencies and, in any event, intends to close the trust account in the n[320] future.320 Counsel submitted that his acceptance of those various accounting breaches of the LPA and his taking of appropriate remedial steps to rectify those matters coupled with his intention to close the firm's trust account in the near future, indicate that the appellant is a fit and proper person to [321]d a UPC.321 I disagree.

[276] Although the appellant attended a course on trust accounts in Brisbane on 4 March 2015 (the Queensland Law Society Annual Trust Account Refresher Course)[322] it appears that his ignorance of the importance and function of trust accounts and his obligations in relation to trust accounts continued after that. As already observed his trust account was overdrawn as at 31 March 2015, a fact of which he should have been aware. Despite Ms Poullas informing him of that situation in September 2015 he failed to rectify it until 1 March 2016.

[277] I agree with the Law Society that the above matters demonstrate that for each year since his current legal practice commenced, the appellant has experienced systematic and ongoing difficulties complying with the requirements for the operation of a trust account. His conversations with the Law Society's Manager Regulatory Services concerning these difficulties disclose a clear lack of understanding of those requirements.[323] The fact that he effectively placed all responsibility for effecting and recording trust account transactions in the hands of his bookkeeping staff and his auditor,[324] and knew nothing about those transactions or inappropriate debits to the trust account when or soon after they occurred, confirms that lack of understanding and a failure to appreciate his own responsibility for the trust account and the practice's billing and accounting.

[278] This conclusion is reinforced by the appellant's recent decision not to operate a trust account, which suggests that he has only recently come to appreciate the heavy administrative burden involved.[325]

[279] I agree with the Law Society's submissions that the appellant's manifest failures and seeming disregard for his obligations make it clear that he is not a fit and proper person to practice under a UPC, irrespective of whether doing so involves the operation of a trust account. No reasonably competent legal practitioner in his position would have operated a trust account in the manner that he did. The Court, the profession and the public have a right to expect a certain standard of a practitioner operating under a UPC.[326] A practitioner with a demonstrated history of delegating the performance of his statutory and ethical obligations to non-legally qualified third parties, falls well short of that standard.

[202]

[298] When asked why he had not disclosed the NAAVFLS matter in his application for a UPC in June 2012 the appellant repeated his earlier answers to the effect that he did not disclose it because it was related to his having acted in the capacity of CEO, not as the principal solicitor.[341] Towards the end of his evidence concerning this topic he said that: "I didn't disclose the CEO issue, because I didn't think it was relevant."[342]

[299] He also said that he considered that the execution of the deed of confidentiality prevented such disclosure.[343] I very much doubt that he genuinely held that belief when he made his application in June 2012 and swore his affidavit on 8 March 2016. If he did, he should, at the least, have sought advice from the Law Society or counsel as to the effect that such a deed would have on his disclosure obligations. To use this as an excuse for not providing proper disclosure, particularly where he has not even bothered to seek such advice, further demonstrates his ignorance of the disclosure requirements. Even if he was genuinely of the belief that the execution of the deed of confidentiality prevented such disclosure he should, at the least, have disclosed the fact that there were complaints when he was at NAAVFLS and stated that he was not providing full detail because he considered he was bound by the deed. This would at least have put the Law Society (and this Court) on notice, and enabled it to pursue the NAAVFLS matter further as it considered appropriate. It is absurd to suggest that a person can be immune from disclosing conduct that might be relevant to that person's fitness to practice because he or she has signed a deed of confidentiality.

[300] I have considerable difficulty reconciling his evidence to the effect that he did not think it necessary or appropriate to disclose the NAAVFLS matter because he did not think it relevant, with his later reference to the deed of confidentiality. I think he seized upon the latter excuse very recently, probably as late as during cross-examination, as a further attempt at justifying his non-disclosure of the NAAVFLS matter.

[301] Further, the appellant admitted that he executed the declaration in the June 2012 UPC application without being fully aware of the content of s 11 of the LPA.[344] This is a further basis for concern about his fitness to practice under a UPC, particularly in light of the fact that part 11.3 expressly referred to that provision.[345]

[209]

[312] The appellant says that the company, Connop Barristers & Solicitors NT Pty Ltd (CBSPL), is and has been since 1 July 2012, an incorporated legal practice (ILP).[355]

[313] An ILP is a corporation that engages in legal practice in the Northern Territory (s 119(1) LPA). It is required to have at least one legal practitioner director (s 125(1) LPA). A legal practitioner director is a director of an ILP who is an Australian legal practitioner holding a UPC (s 118 LPA). Each legal practitioner director is responsible for the management of the legal services provided by the ILP in the Northern Territory (s 125(2) LPA), and is obliged to ensure appropriate management systems are implemented and maintained to enable the provision of legal services by the ILP in accordance with the professional obligations of Australian legal practitioners under the LPA (s 125(3) LPA).

[314] Section 122(1) of the LPA provides that, before a corporation starts to engage in legal practice in the Northern Territory, it must give the Law Society written notice, in the approved form, of its intention to do so. If a corporation fails to comply with s 122(1), it is in default of s 122 until it gives the Law Society written notice, in the approved form, of the failure and the fact that it has started to engage in legal practice (s 122(3) LPA). A corporation that is in default of s 122 must not engage in legal practice in the Northern Territory and commits an offence if it does so (s 122(2) LPA).

[315] The approved form for the purpose of s 122(1) is titled "Incorporated Legal Practice" and is available on the Law Society's website.[356] The Law Society had never received a completed ILP form relating to CBSPL,[357] until the one he provided on 17 March 2016.[358]

[316] In his affidavit of 23 March 2016 the applicant said that: "I consider that from the outset of the operation of the legal practice [CBSPL], I informed the LSNT that [CBSPL] would be operating that practice."[359] The appellant did not say any more about the basis for that assertion in his affidavit or elsewhere. He had however mentioned to an officer of the Law Society on 9 February 2016 that he thought the Law Society knew that his practice was being run by CBSPL because the name of that company appeared on his letterhead.[360]

[317] I reject his evidence to the effect that he had informed the Law Society that CBSPL would be operating his practice. He said nothing about such an entity in his June 2012 UPC application[361] and he declared that he was not a director of an ILP when he sought and obtained professional indemnity insurance.[362]

[318] The notification requirements of s 122 have not been complied with. To the extent that CBSPL has operated a legal practice since 1 July 2012 it has been doing so in default of s 122 of the LPA. This would have serious consequences for the corporation and the practice under s 122(5) and (6).

[319] It is concerning that the appellant considers his practice to have been operating as an ILP since 2012, but did not know in 2016, what "ILP" meant.[363] It may be inferred that he was also unaware of the obligations of legal practitioner directors of ILPs under s125 of the LPA. The company may also have committed a breach under s 123 of the LPA.

[220]

[328] Counsel for the appellant referred to Mr Hutton's report of 7 April 2016[369] which was based primarily upon reviews conducted on 29 February and 7 April 2016. The report stated that:

(a) the appellant's level of co-operation continued to be satisfactory and the appellant had given Mr Hutton full access to his office and authorised files so Mr Hutton could conduct the review process;

(b) the appellant had complied with:

(i) SC 3.2 and 3.3 of the UPC from 21 January 2016, based upon Mr Hutton's sighting of 39 of the letters that the appellant had sent to clients. Only four (4) clients had responded with signed authorities for their files to be inspected, which occurred on 29 February.

(ii) SC 3.4 to 3.6 and 3.8.

(iii) SC 3.10 insofar as LHC had provided the appellant with the basis of a legal practice manual, including precedent documents, which he appears to have embraced and incorporated into the firm's business practices and he has many more precedents in a practice manual sourced from Peter Maley and Mr Hutton.

(iv) orders 1(e) of the Court's orders made by the Court on 29 February 2016 to the extent of sending letters to 13 clients on 2 and 3 March and receiving the requested authorisation back from two of them, thus enabling Mr Hutton to inspect those two files, which he did on 7 April.

[329] Mr Hutton also stated that:

(a) the appellant was in the process of engaging archivists to assist him with closure of files, the appellant would provide a list of closed files shortly and the appellant was in the process of writing to clients advising that their files will be closed and retained for seven years;

(b) whilst the main issue for Mr Hutton continued to be the appellant's lack of administrative assistance, it was evident to Mr Hutton on his attendances at the appellant's office on 29 February 2016 and 7 April 2016 that the appellant's administrative practices were much improved and that suggestions from LHC, Peter Maley and Mr Hutton had been implemented;

(c) it was apparent from the files examined (presumably the four files inspected on 29 February and the other two files inspected on 7 April) that the appellant was following practices suggested by LHC, Peter Maley and Mr Hutton, and costs disclosure had been provided to those (six) clients.

[330] Mr Hutton had expressed concerns about two of the four files that he inspected on 29 February. Both of those files concerned wills prepared by the appellant which were defective. In accordance with Mr Hutton's recommendation the appellant wrote to each of those clients on 7 March informing them of the defects and advising that both of the wills should be redone by another lawyer and that he would refund the fees paid to him and would pay for another solicitor to prepare new wills.[370]

[331] Counsel for the appellant submitted that this report is most important in these proceedings, because it can act in support of a finding by the Court that the appellant is presently a fit and proper person to hold a UPC.[371]

[228]

[340] The appellant participated in a very brief course conducted by Mr Giles Watson, a costs consultant in Brisbane who has lectured on costs agreements at Queensland University of Technology for the last three years and at the Queensland Law Society for nine years before that. The course consisted of three one-on-one lectures each of one hour's duration conducted by Skype on 18, 19 and 20 May 2016.

[341] Mr Watson wrote a letter to the Court confirming that the appellant "successfully completed the course" and stating that he "actively participated in the course throughout and demonstrated sound understanding of both the issues discussed, and of his obligations as a solicitor." Mr Watson stated that the course "was directed to the relevant obligations under the Legal Profession Act 2009 (NT), specifically sections 303-330, and the Legal Profession Regulations (NT)." The letter does not otherwise indicate what issues were discussed or how Mr Watson was able to be satisfied within such a short period that the appellant demonstrated a sound understanding of his obligations as a solicitor.

[342] The appellant agreed that he undertook that course because he did not have proper understanding of the requirements regarding costs disclosure and costs agreements.[379] He exhibited almost 200 pages of materials including the Queensland Law Society Costs Guide 2014 edition (130 pages), printouts from a PowerPoint presentation and a document entitled "Costs, Billing and Profitability" (51 pages).[380]

[343] When asked whether he had read all of those materials the appellant said: "I'm still reading them. There is so much to read." He was then asked whether he had been able to read the Queensland Law Society Costs Guide and said: "Not fully, sorry." When pressed about this he said that he has read "probably only the first couple of pages because we were focusing on using his overheads more than anything." He has not read the Costs, Billing and Profitability document.[381] He said he had a lot of questions to ask Mr Watson. He did not have to complete any written test or other document to show that he understood everything.

[344] The appellant agreed that the course materials related to Queensland practitioners and acknowledged that there are differences for Northern Territory practitioners. He said he read sections 303 to 330 of the LPR.

[345] Counsel for the Law Society referred him to a section entitled "1.6 Applicable laws" in Chapter 1, of the Queensland Law Society Costs Guide, and in particular to a sentence on page 9 which states that "costs in the Family Court as between solicitors and their clients have been regulated by the relevant state or territory legislation, subject to additional costs disclosure requirements."[382] When asked about the "additional costs disclosure requirements" for Family Law matters and to identify one such requirement he referred to the "UCPR", which he described as "Universal Civil Practice Rules". His understanding is that they apply in all Family Law proceedings right across the country "because it's a Federal jurisdiction, except Western Australia."[383] This is obviously wrong and creates considerable doubt about the appellant's knowledge and competence in the practice of family law in the Northern Territory. As stated on page 7 under the heading "1.1 Abbreviations table and commonly used terms" "UCPR" is the well-known acronym for the Uniform Civil Procedure Rules 1999 (Qld), which would be unlikely to have application outside Queensland.

[346] The appellant was also asked about the subheading immediately below that sentence "1.6.2 Australian Solicitors Conduct Rules 2012". He said, wrongly, that those rules apply in the Northern Territory.[384]

[347] Counsel for the appellant emphasised Mr Watson's opinions that I quoted in [341] above. Unfortunately I cannot give those opinions much weight, partly for the reasons set out above, and partly because of the superior advantage that I have had observing and listening to the appellant and perusing other materials in the course of his appeal.

[229]

[348] Although the appellant attended and "successfully completed" these courses there is nothing in his testimony on 1 June 2016 that suggests that he has learnt anything from them.

[349] I agree with senior counsel's submission that the appellant has left it very late to attempt to improve his knowledge. Since August last year he was aware of concerns by the Law Society which resulted in the special conditions being imposed from October and further concerns leading up to the cancellation of his UPC. Prior to that, he was aware of various complaints, particularly about costs disclosures and costs agreements, including the Law Society's own motion complaint of July 2015 that related back to concerns expressed in October 2014 concerning his trust account. And yet it was not until the second day of the hearing of his appeal that he announced that he was proposing to, and undertook to the Court that he would, attend a Practice Management Course to be conducted by the Queensland Law Society on 2-4 June 2016.[385]

[350] I also agree that concerns about a practitioner's honesty and integrity and candour are not matters that can be alleviated by the practitioner undertaking such a course. Nor can such concerns be addressed by confining the practitioner to practice in particular courts or in relation to particular areas, or by the practitioner not operating a trust account.

[351] Further, the appellant should already have had a proper knowledge and appreciation of many of the matters where it has been found wanting. One would expect that he was taught and learnt about a wide range of subjects before graduating with his Law degree in 2003, and about ethics and legal practice matters before being admitted as a legal practitioner in August 2003. He held a restricted practising certificate in the Northern Territory from November 2004 until 1 July 2010. He worked as an employed solicitor for about six months with a Darwin legal firm in 2005, as a public servant until 2009, as a senior investigation officer for the NT Ombudsman's office in 2009 and then for NAAVFLS.[386] He should also have been attending CPD programmes in compliance with the Law Society's requirements and thus keeping himself up-to-date in areas relevant to him and his practice. And, he attended the course in trust accounts in March 2015 following the Law Society's correspondence concerning his trust account.

[352] Notwithstanding all of that, the appellant's suitability to hold a UPC has been found wanting in numerous respects. I therefore have real doubts about any beneficial effect of these recent courses upon his suitability.

[245]

[369] Order 1(i) required the appellant to "continue to progressively implement the legal practice management procedures and systems recommendations made in the LHC report dated 27 October 2015.

[370] Order 1(j) required the appellant to retain the services of LHC to conduct a further review of the legal practice management procedures and systems. LHC were to attend the appellant's practice on 14 April 2016 to undertake that review, and to provide a report by 21 April 2016.[397]

[371] On 4 March 2016, LHC wrote to the applicant, by email,[398] providing him with an excel spreadsheet[399] summarising their recommendations and requesting that the applicant "complete and return the document to us prior to 11 April 2016" in preparation for their visit on 14 April. The spreadsheet listed 21 recommendations and contained a column headed "Implemented (Yes/No/partial)".

[372] The applicant completed the spreadsheet and provided it to LHC under cover of an email of 5 April 2016.[400] In the column headed "Implemented (Yes/No/partial)" the appellant inserted the word "yes" opposite all but two of the recommendations.

[373] When questioned about a number of the recommendations, it became apparent that he had not in fact implemented them.[401] Far from implementing recommendations 2 and 3 the applicant was simply continuing with practices that he had in place before the recommendations had been made.[402] The appellant conceded that his answer as to whether recommendation 7 had been implemented should have been: "No, But, I've had some discussions with Mr Hutton and Mr Maley about these sorts of things."[403] As to recommendations 16, 18, 20 and 21, the appellant ultimately conceded that it would have been more accurate to state in the spreadsheet: "No I haven't done it, because I need more assistance", rather than saying "yes" (that the recommendations had been implemented) but more assistance was required.[404]

[374] Counsel for the appellant submitted that the Court could find that the statements made by the appellant indicate that he "generally attempted to make correct statements in the spreadsheet about action taken by him to make changes to his practice management systems in the manner recommended by [LHC] and that he had then wholly or partially implemented quite a few of those recommendations". I disagree.

[375] Even if the Court could so find, the fact is that a significant number of his responses were misleading. The misleading and careless nature of the appellant's responses to bodies such as LHC also causes significant concern about his fitness as a legal practitioner.

[376] Moreover it is apparent that he had failed to progressively implement the LHC recommendations. His evidence that "I am implementing her recommendations" (in the 27 October 2016 report) in his affidavit of 24 February 2016[405] somewhat overstated the true position.

[377] Jane LeMessurier and Sue Harrington of LHC attended the appellant's office on 20 April 2016 and prepared a Follow-Up Report, which was provided to the Law Society on 29 April 2016.[406] The Report indicated that the appellant was implementing a number of the recommendations previously made by LHC in the report of 27 October 2015. Much of the Report was based upon what the appellant told the reporters. The appellant informed LHC that he had only taken on two new files since January 2016 and that both of these were minor criminal matters. The Report also noted that the appellant was only taking on work in the criminal and family law areas, and had recently transferred to another firm a criminal property forfeiture matter.

[378] LHC reported that the appellant "had not finally settled his costs agreement document and had not incorporated [some] risk management suggestions". LHC added an additional recommendation: that the appellant ensures that he "fully understands and complies with the costs disclosure and cost agreement obligations under the LPA". The appellant said that that is the reason why he "decided to try to locate a good quality continuing legal education course which dealt with that area and attend it as soon as possible." Hence the three hour course with Mr Watson, referred to in [340] above.

[379] Although the Report is positive, its usefulness in assessing the appellant's fitness to hold a UPC is somewhat limited. Its primary focus is practice management. The Court is particularly concerned in the present matter with more fundamental issues such as honesty and integrity and general competence. Even then LHC has only had limited time to spend reviewing the practice since its initial review in October 2015 and the appellant has only had a very small number of files available to be reviewed. Moreover, much of the views expressed in the latest report depend upon the accuracy or otherwise of what the appellant has told the reporters.

[246]

[380] Order 1(o) required the appellant to engage the services of Peter Maley or another legal practitioner holding a UPC to be approved by the Law Society (the Supervisor) to attend at the appellant's office premises for at least two hours per week to review active client files and make recommendations as to how to properly conduct those matters.

[381] In his affidavit of 5 April, the appellant said that Mr Maley had attended the appellant's office or vice versa about three times per week, has reviewed one file and partially reviewed another, and gave some advice regarding some aspects of practice management.[407] Contrary to the terms of Order 1(o) only two of those attendances involved Mr Maley actually attending the appellant's office premises.[408]

[382] In his email of 5 April 2016 Mr Maley confirmed that he has met with the appellant on at least three occasions each week and provided assistance and advice regarding the day-to-day operation of the firm and the operation of the trust account. He said he attended the appellant's business premises on two occasions and the appellant has attended his office on at least four occasions. The appellant has also contacted him by telephone and email on several occasions and he has spoken to the appellant in the precinct of the Darwin Local Court regarding the day-to-day operation of his practice. Mr Maley has provided the appellant with various precedents including draft costs agreements. He conducted a file review and provided advice regarding the closing of historic files and returning monies held in trust. Mr Maley expressed the opinion that the appellant "seems to have generally taken on my advice and has changed some of his procedures and tidied up his office."[409]

[383] Counsel for the Law Society submitted that the advice given by Mr Maley does not fall within the purview of Order 1(o), which was to review files and make recommendations about how to properly conduct the matters. That is, it is directed, not to practice management (which is essentially the scope of the review processes being undertaken by Mr Hutton and LHC), but to supervision of the legal conduct of matters undertaken by the appellant.

[384] Counsel also contended that there is no evidence of any consideration of that nature by Mr Maley of the appellant's files.[410] This is not correct. The evidence of the appellant and Mr Maley is to the effect that at least one file was reviewed by Mr Maley. That much of Mr Maley's attention was directed towards the appellant's practice management and procedures is not surprising given that there were only a handful of current files, six at the most, which Mr Maley would have been permitted to review in any event.

[248]

[387] I have already referred to references in the NTPCRs and in Dal Pont to the importance of undertakings to a court.[411] The appellant gave three undertakings to this Court. The first was that he would attend the Practice Management Course in Brisbane on 2-4 June 2016 (the Brisbane PMC undertaking).[412] The second undertaking was that he would do all things necessary to achieve an orderly closure of the firm's trust account as soon as reasonably possible, provide the Law Society with a trust account closure notification at the required time, and not hereafter use the trust account for any current or future client matters (the close the trust account undertaking).[413] The third undertaking was that he would engage a chartered accountant to review the firm's accounts and perform whatever accounting entries are required to put the accounts in order within two weeks of 12 May 2016 (the chartered accountant undertaking).[414]

[388] The appellant did not comply with either the Brisbane PMC undertaking or the chartered accountant undertaking. He did however seek and was given leave to be excused from the Brisbane PMC undertaking.

[389] The appellant did not seek leave to be excused from the chartered accountant undertaking. When it was put to him that he did not engage a chartered accountant as he had promised he said: "No; we did" and proceeded to explain why. When asked directly whether he had complied with the undertaking he said: "No, I did engage a chartered accountant, Maria Poullas". This was the lady who he had previously referred to as his bookkeeper and whose ability to do that particular work he had previously doubted.[415] He also said in effect that the work could be done by him and Ms Poullas, and that his purpose in engaging an independent chartered accountant was merely to obtain a second opinion. In other words, there was no harm done by him not complying with the undertaking. (As I have already observed there were in fact significant errors and discrepancies in relation to some of the letters, invoices and trust account statements that the appellant posted out on 27 May.)

[390] The appellant eventually agreed that he did not fulfil the undertaking.[416] When it was put to him that that is a "very serious matter, isn't it?" he said: "I don't know. That's what you're telling me it is."

[391] After he agreed that he had heard it said before that one shouldn't give undertakings about things that are beyond one's control the following exchange occurred:

[257]

[398] Following and in relation to the appellant's cross examination during the hearing in April the Law Society submitted that: "to put it charitably, [the appellant] was less than a credible witness." In giving his evidence, the appellant:

(a) frequently paused for extended periods of time following the putting of questions to him and had to be prompted for answers by counsel for the Law Society and the Court;[421]

(b) was non-responsive and argumentative;

(c) had to be instructed on numerous occasions by counsel for the Law Society and directed by the Court to answer questions and confine himself to the questions asked;[422]

(d) repeatedly made comments which demonstrated that his concern was more with where questions were leading than in answering them;[423] and

(e) admitted to proffering false testimony.[424]

[399] I agree. I found that many of the appellant's assertions and answers were evasive, absurd, false or misleading.[425]

[400] The appellant was often anxious to quickly provide an answer favourable to his cause, without pausing to consider whether or not it was true or misleading, and in the hope that his answer would be accepted without further question. When questioned further, he ended up changing or even contradicting his earlier answer. Indeed there were several occasions when he expressly "retracted", withdrew or modified previous answers that were incorrect, often without any apparent embarrassment about having initially provided a misleading answer since proven to be wrong.[426]

[401] On other occasions the appellant tried to avoid answering the question by saying something non-responsive and when corrected, blaming counsel for not asking clear questions. I found many of his answers to be opportunistic and not based upon any belief as to their truth or accuracy. I agree with the submission by the respondent's counsel that the appellant was reckless about the truth, as is evidenced by his numerous retractions and apologies and changes to his evidence, both in his affidavits and in the witness box.

[402] Unfortunately the appellant continued to behave in a similar manner when he was cross-examined on 1 June after he was given leave to reopen his case. On some occasions he was reluctant to answer questions directly and provided answers that were unresponsive and sometimes self-serving, or wrongly blamed counsel for not putting the question clearly. On other occasions he quickly provided answers that he found himself obliged to withdraw or modify.

[403] During that cross examination there were further examples of the appellant providing answers that were misleading or answers unexpected of an honest witness. They included: his answers about looking at the trust account bank statements;[427] saying "I'm not going to lie to the court";[428] his evidence about reading the Watson material;[429] and his evidence about the significance of undertakings and simply saying "sorry" when asked about his breaching of the chartered accountant undertaking.[430]

[404] None of this is the kind of conduct to be expected of a legal practitioner, especially one holding an unrestricted practising certificate.

[405] In the Appellant's Closing Submissions counsel made some concessions concerning the appellant's conduct and demeanour in the witness box and identified a number of factors that should be taken into account when assessing this. He referred to the fact that the appellant said he was not feeling well on the first day of his evidence (on 11 April) following two hours of cross-examination and the fact that he was cross-examined for several hours on the second day of the hearing and submitted that he would have been under considerable emotional stress when being cross-examined about such serious matters which included his performance of his duties as a solicitor. Counsel also contended that the appellant should be regarded as an inexperienced witness, having only given evidence previously on only one occasion.[431] Counsel also contended that "despite their legal training and experience appearing on behalf of clients in courts, some might say that solicitors are often poor witnesses." [432]

[406] I reject those contentions. As a practitioner who appears in courts, both as a solicitor and as counsel, the appellant should have a much better idea than most people of how witnesses should conduct themselves, and would regularly advise clients and witnesses about such matters. The appellant would have spent a lot more time in court than most other people and would have questioned witnesses himself and seen witnesses being questioned by others in court. Moreover, solicitors commonly settle and make affidavits in relation to matters in which they are involved and would be expected to understand the need for their content to be relevant and focused and to expect the deponent to be cross-examined on the affidavit.

[407] Counsel for the appellant submitted that save for one instance, at all times, the appellant appeared to be attempting to answer the questions asked by the Law Society's counsel and the Court in a truthful manner, to the best of his ability. I disagree.

[408] Counsel conceded that the appellant sometimes gave answers which did not respond to the questions put to him and on a few occasions inappropriately asked the Law Society's counsel what she intended by her questions. I accept counsel's submission that "that situation alone does not establish that he was attempting to mislead the Court or be untruthful."[433] But there was much more about these aspects of his conduct that create great concern about his conduct in the witness box.

[409] The "one instance" referred to by counsel concerned his false answers about having told Tropic Net to alter his website. See [164] to [167] above. In the Appellant's Closing Submissions counsel said that the appellant had asked him as his counsel to convey to the Court his "sincere apology for having given that unt[434]hful answer."434 Counsel submitted that, despite the appellant's admission that that answer was a lie, it remains open for the Court to find that that aberration may be explained as being due to "evidence fatigue" and the stress that the appellant has been under in the proceedings, and that the appellant at all other times appeared to be attempting to give truthful answers.

[410] As I have indicated elsewhere I do not consider that he was attempting to give truthful answers at all other times. Whatever "evidence fatigue" and stress he was under was largely of his own making as he tried to explain away perfectly proper questions that he had difficulty answering in a way that did not reflect poorly upon him and his conduct.

[411] More importantly, the lie about his website cannot simply be swept aside as an aberration, or by way of the apology provided in the course of closing submissions, even if the lie was told when the witness was tired and stressed or inexperienced. For a witness, in particular a legal practitioner, to lie under oath is a most serious matter, which raises serious doubts about the ability of a court to accept unreservedly and without question other statements made or answers given by the practitioner in court.[435] As counsel for the Law Society put it: "the undisputed lie is an important prism through which to view the rest of Mr Connop's evidence and his actions in other contexts."[436]

[412] Counsel for the appellant also submitted that:

[261]

[419] Counsel for the appellant maintained that the Law Society was wrong to conclude that the appellant was not a fit and proper person to hold a UPC and consequently should not have cancelled his UPC. I have rejected this claim for the reasons already expressed above.

[420] Counsel also contended that even if the Law Society was justified in cancelling the appellant's UPC, the actions taken by the appellant since then, including improving the firm's management practices, attending courses, posting the finalised trust account statements and cheques, and remedying past breaches of the LPA, warrant a finding that the appellant is now a fit and proper person to hold a UPC.[447] I have also rejected this contention.[448]

[421] Counsel for the Law Society provided a list of findings which it submitted the Court should make and conclusions which it contended that the Court should reach.[449]

[422] For the reasons already expressed I find that:

(a) The appellant failed to comply with special conditions imposed upon his UPC, namely SCs 3.2, 3.3 and 3.4.

(b) The appellant has failed to exercise the oversight of his trust account and invoices that one would expect of a fit and proper person operating under a UPC.

(c) The appellant failed to provide his 2015/2016 Trust Account Declaration to the Law Society on or before 8 April 2016 and had no reasonable excuse for that failure.

(d) The appellant failed to provide his 2015/2016 CPD Declaration to the Law Society within time and had no reasonable excuse for that failure.

(e) The appellant's failures to provide trust account statements or final accounting to Mr Loizou for a period exceeding eighteen (18) month, to Mr Bekkers until 28 May 2016, and to Ms Hall or Mr Hall until 8 April 2016 and his use of costs agreements specific to practice in New South Wales and lacking disclosure requirements of the LPA were conduct falling short of what one would expect of a person operating under a UPC and of a reasonably competent legal practitioner in his position, and demonstrate the appellant's lack of insight in relation to his obligations as a legal practitioner including his obligations under the LPA and the LPR and to his clients generally.

(f) The appellant has breached s 247(3) of the LPA and possibly ss 252, 254(1)(b), 255(1), 256 and 257 of the LPA.

(g) The appellant's itemisation of fees in his costs agreements, for staff he did not in fact employ, was conduct capable of misleading his clients into believing that their work would be charged, in part, at lower rates than those which the appellant himself would charge.[450]

(h) The appellant has breached Orders 1(c), 1(e)(ii) and 1(i) of the Orders, and remained in breach of Order 1(i) as at 12 April 2016.[451]

(i) In the Hes matter, the appellant (i) failed to adequately prepare his client's case, (ii) advanced submissions contrary to his client's interests, (iii) advanced submissions that had no proper basis, (iv) failed to make obvious submissions in mitigation, (v) failed to assist his client and the Court as one would expect a reasonably competent legal practitioner to do, and (vi) misled the Court by suggesting that he had undertaken research and looked at a database when this was untrue, and by tabling a bundle of summaries of sentencing remarks and suggesting the first two were those to which her Honour should direct her attention all.[452]

(j) The appellant was required to disclose in his application for a UPC in June 2012 that he had been stood down by NAAFVLS and was investigated for complaints of bullying and harassment.

(k) His failure to disclose the information regarding the NAAFVLS matter in each of the June 2012 UPC application and in his affidavit of 8 March 2016 in this proceeding was conduct falling short of what one would expect of a fit and proper person operating under a UPC and of a reasonably competent legal practitioner in his position and demonstrated a concerning lack of insight into his obligations of disclosure.[453]

(l) The appellant lied to this Court when he swore that he had instructed a third-party to alter his website by removing references to him practising in the area of workers compensation.[454]

(m) The appellant was an unreliable witness and has sworn false and/or misleading affidavits in the course of these proceedings.[455]

[423] I do not consider it necessary or appropriate to make some of the other findings sought by the respondent. This is primarily because I am not sufficiently aware of all of the relevant circumstances. Further, in light of my conclusions that there are a number of other reasons why the appellant is not a fit and proper person to hold a UPC, it is not necessary for me to make all of those findings.

[424] I have considerable concerns about the appellant's honesty, integrity and candour in his dealings with the Law Society and courts, including this Court in the course of this appeal. The appellant's affidavits[456] and testimony in these proceedings and other declarations he has made,[457] show a concerning lack of serious consideration for the need to provide complete and accurate information. Whilst every person who provides information on oath is expected to be truthful and not misleading, this requirement is of critical importance in the case of a legal practitioner.

[425] The appellant's apparent indifference to and lack of insight concerning his obligations under the LPA, the LPRs and the NTPCRs and consequently to the Law Society, the Court, his clients and the public is also of great concern. This includes his failures to respond to complaints and other requests made by the Law Society when required, failures to observe statutory requirements in relation to costs disclosure, invoicing and trust monies, failures to respond appropriately to the various warnings of the Law Society and to comply with the special conditions of his UPC, and his frequent blaming of others for things that were his responsibility.

[426] I also have considerable doubts about the appellant's competence in relation to the law, including in relation to areas in which he claims to have some experience, namely criminal law and family law. His conduct in respect of a variety of matters in various courts, and in relation to workers compensation, tenancy, wills, trust law, ethics and practice and procedure suggests a level of competence considerably below that normally expected of members of the legal profession.

[427] In my opinion the appellant is not a fit and proper person to hold a UPC. Nor was he a fit and proper person to hold a UPC at the time when the Law Society decided to cancel his UPC.

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