Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98 | Case summary

Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98 | Case summary | Zoe

[193]

On 2 May 2023 the Council of the Law Society of New South Wales (the applicant) filed, in the Tribunal, an application for disciplinary findings and orders against Nathan Andrew Buckley (the respondent), pursuant to the Legal Profession Uniform Law 2014 (NSW) (Uniform Law). The application concerns conduct of the respondent in relation to several social media posts (the Social Media Application). On 18 December 2023, the applicant filed a second application for disciplinary findings and orders against the respondent, concerning conduct of the respondent in connection with several fundraising campaigns (the Fundraising Application) (together, the Complaints).
Pursuant to an order dated 7 February 2024, the two applications were heard and determined together with evidence in one being evidence in the other. The hearing took place over three days on 2, 3 and 18 September 2024. The parties agreed that it was appropriate to deal with the entirety of the proceedings at the hearing: both Stage 1 (disciplinary findings) and Stage 2 (protective orders).
The Complaints contained very detailed and lengthy particulars. Our approach has been to attend to them one by one. The conduct the subject of the Complaints is in connection with government measures that had been put in place to confine the spread of the COVID-19 virus, in relation to which the respondent expressed the view that they were unconstitutional, unduly restrictive of personal liberties, and dangerous. Without intending to put a gloss on these matters, the Tribunal has found that in making several social media posts, in which the respondent criticised the Supreme Court of New South Wales, and used derogatory, inflammatory and misleading language, the respondent has engaged in professional misconduct. Further, primarily for the reason that the respondent has demonstrated a lack of insight in relation to the departure from his professional obligations and the effect his being a solicitor would have had on the authority of his comments, then, despite a written apology, we nevertheless have found that aspects of his conduct amount to professional misconduct, as explained below; and warrants a recommendation under s 302(1)(f) of the Uniform Law that his name be removed from the local roll of Australian lawyers maintained by the Supreme Court of New South Wales (the roll). As explained below, this is protective, and not punitive.
With respect to the Fundraising Application, which concerned the respondent's association with crowdfunding campaigns for proposed litigation, we have found that those campaigns were promotional, sufficiently connected with the respondent's practice as a solicitor, and, in some instances, were likely to mislead or deceive readers. We have found that in several respects, the respondent was inattentive to detail and failed to provide a balanced account of prospects.
The Court of Appeal in Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159 (Sideris (CA)) recently confirmed that the Tribunal is empowered, if it thinks fit, to recommend under s 302(1)(f) of the Uniform Law that a lawyer's name be removed from the roll: at [4]. Whether a lawyer's name is removed from the roll is a matter for the Court. The Court is not bound to follow the Tribunal's recommendation and must independently satisfy itself before making an order under s 23(1)(c) of the Uniform Law that the orders sought are appropriate, on the evidence and material before it: at [6] (and the authorities cited therein).

[220]

The respondent was cross examined, at length, in relation to various aspects of conduct the subject of the Complaints and in relation to his insight into his conduct.
Some of his evidence took the form of submissions and, further, his answers to many of the cross-examiner's questions were argumentative or avoidant. In this respect, we note that there were many instances where the respondent disagreed with the characterisation put by the cross-examiner, on certain conduct, such as whether there was a connection between the conduct and practising law; or where the respondent disagreed with a premise underlying the cross-examiner's question, such as whether he had a particular motive for certain conduct or, further, whether certain conduct gave a particular impression. The applicant submits that we should take the respondent's refusal to accept what the applicant described as fundamental or basic propositions into account in assessing the level of insight that the respondent has gained in relation to his conduct and, more generally, his suitability to practise.
Where the respondent's particular answer to questions is relevant, or where his attitude to the topic under question is relevant, we have set out the pertinent parts of the transcript.
For completeness, the Tribunal is satisfied that the respondent was put on sufficient notice that the degree of his insight into his own conduct was a central tenet of the applicant's case, and is a significant aspect of these proceedings, especially concerning the appropriate protective orders to be made: c.f. Stanoevski at [21]. Procedural fairness was afforded because the respondent was given notice at the commencement of the hearing and throughout his lengthy cross examination that his degree of insight was being assessed and would form part of the applicant's case: see Qasim v Health Care Complaints Commission [2015] NSWCA 282 at [41] and Qasim v Medical Council of New South Wales [2021] NSWCA 173 at [62], [75]. The following exchange took place in the presence of the respondent at the commencement of the hearing:

[256]

The written submission by the respondent that he "did not convey in a public forum that persons should change the address of their registered offices and principal places of business to an unrestricted area" appears, in light of his evidence arising in cross examination, to be limited to a denial that the post was made in a public forum, and a denial that the word "should" was used, rather than a global denial that the post conveyed a tip to group members to change their registered business address via the ASIC portal.
In relation to the applicant's contention that the respondent encouraged the provision of false information to ASIC by group members viewing his post, the respondent emphasises that there has been no finding of any breach of any section of the Corporations Act by ASIC or any other regulator with jurisdiction to determine such matters.
In relation to the applicant's contention that the respondent's post encouraged members of the Facebook group to evade the law, the respondent's submission as to the ambiguity and/or meaninglessness of the term "LGA rules" contained in his post goes to the heart of his argument that the post could not have encouraged anyone to breach the law or provide false information to ASIC, as it was not specific enough to have that effect. The respondent contends that the very use of the word "LGA rules" could not be considered by any ordinary person as referring to any law in NSW - the ordinary person "would think nothing of them". The orders were Public Health Orders rather than "a law passed by the houses of State Parliament" and thus it is incorrect to say that encouraging their breach translates to encouraging anyone to breach the law.
The respondent notes that the post does not identify him as a lawyer and was not made to a client, nor in connection with legal practice. The respondent accepted in cross examination that the Facebook group did deal, albeit among "general things in life as well", with litigation the applicant was proposing to run. The respondent stated that the proposed litigation was being run "in [his] personal capacity" and that he was "engaging in social media as a private individual".
As a general point, the respondent highlights that the Tribunal has not been provided with a comprehensive array of posts and submits that we have not, therefore, been provided with the full picture.

[259]

(1) A reasonable person would be aware that a reference in the post to "the LGA rules" was a reference to the Restrictions Order operative at the time. Further, we infer from the content of the post that the respondent knew that LGA rules were restrictions applying to certain local government areas, hence his "tip" that business proprietors change their registered business address to circumvent the application of those rules. Given the notorious impact of the COVID-19 pandemic on everyday life in NSW around the time of the post and the restrictions to everyday movement which applied throughout, the Tribunal infers that a reasonable person would have been aware of the Public Health Orders in operation at the time.

(2) The post does not meet the classification of a private or confidential post. The respondent's consistent denial that the post was made in a public forum does not change that conclusion. While the Tribunal accepts that public access was restricted, in the sense that membership of the group was predicated on the respondent's approval of electronic requests by members of the public to be admitted to it, there is no basis to infer that the process of approval was highly selective or based upon an obvious commonality between potential members. To the contrary, the inference that arises from the name of the post "NSW Construction workers class action against the NSW Government for jabs" is that the forum was open to those with an interest in that subject matter. Simply because there were a limited number of readers does not mean the communication was private or direct enough to avoid the conclusion that it was made in a public forum. At least 66 people, members of the public with no obvious connection to one another apart from their shared access to the closed Facebook group, interacted with the post. The Tribunal finds that the post was public in the sense that it could not be described as private or confidential.

(3) In his post, the respondent is referring to making changes to the information held by ASIC, by logging into the portal and making those changes; as opposed to actually moving the physical address of the business. The post is in clear and simple terms.

(4) While the post does not use the language of "should", the reference to the "tip" gives it the flavour of "should" in the sense that following the tip would be a good thing to do.

(5) In relation to the applicant's contention that the respondent "encouraged" members of the Facebook group deliberately to provide false information to ASIC, the test is an objective one. Whether or not any group member acted upon this advice is irrelevant. The respondent's submission that there has been no breach found by ASIC or any other regulator under the Corporations Act for the provision of false information bears no significance. Nonetheless, we pause to note that we accept that providing false details to ASIC would indeed be a breach of the law: Corporations Act, s 1308.

(6) A reasonable person in the position of a member of a Facebook group related to the launching of a class action against the NSW Government would have understood the post as being a "tip" - a suggestion - to avoid the LGA rules, by providing incorrect information to ASIC. We are not satisfied from the post itself, that the reader would have appreciated that the "tip" came from a lawyer. A "tip" under the mantle of a lawyer might carry the imputation that to do so was somehow lawful (even though it wasn't) and therefore offered greater encouragement than a "tip" from an unknown source. Nevertheless, the "tip" carries a positive suggestion to the reader to do something specific and we accept that it was an "encouragement" to do that thing; being to deliberately provide ASIC with false information.

[284]

In Ground 16 of the Social Media Application, the applicant contends that, taken individually, the Conduct referred in Grounds 1 or 2 amounts to professional misconduct within the meaning of s 297(1)(a) of the Uniform Law.
As there has been a breach of the Conduct Rules, the Tribunal finds that the respondent's conduct amounts to unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.
Whether conduct amounts to a 'substantial' failure to satisfy the standard of professional misconduct under s 297(1)(a) directs attention to the nature and the consequences of the failure which may raise questions as to the lawyer's competence and diligence: Webb at [22]. Further, a sufficient connection to the lawyer's ability to practise law may indicate the breach is 'substantial': Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 (Asuzu) at [40].
The Tribunal is not satisfied that the respondent's conduct represents a substantial failure. The statements were assessed on their potential to encourage a reasonable reader of those posts to breach the law, rather than any consequence they produced. We have earlier expressed some reluctance to find that readers would be so easily swayed to breach the law, especially where it is not known that the author of the posts is a lawyer. On the other hand, for a lawyer to encourage a person to break the law is no small matter.
That said, the connection between the respondent's post and the practice of law is not readily apparent.
We follow the same analysis for the Telegram post; the conduct amounts to unsatisfactory professional conduct for a breach of the Conduct Rules, but the breach is not 'substantial' in the requisite sense.
Further, the Tribunal is not satisfied that the respondent's posting of the single Facebook post and the single Telegram message upon which the applicant relies amounts to a 'consistent' or 'ongoing and persisting' failure to meet the requisite standard of competence and diligence: see Webb at [22].
The Tribunal finds that the conduct the subject of Grounds 1 and 2 warrants a finding of unsatisfactory professional conduct under s 296 of the Uniform Law; but not professional misconduct.

[300]

(1) The respondent was referring in his post to a National Cabinet Statement issued on 28 June 2021 (the Statement) issued before his post which reflected an agreement that COVID-19 vaccinations were to be mandated for residential aged care workers as a condition of working in an aged care facility through shared state, territory and Commonwealth authorities and compliance measures.

(2) Pursuant to the Statement, in late August 2021, the NSW Government issued a public health order known as the Public Health (COVID-19 Aged Care Facilities) Order 2021 requiring that employees and certain service providers at aged care facilities in NSW could not enter or remain on the premises of those facilities unless they had received a COVID-19 vaccination (the Care Workers Order).

(3) The respondent's post, referring to the decisions of the National Cabinet, including the one "of 28 June 2021 mandating COVID-19 jabs for aged care workers" would reasonably have been understood as a reference to the Care Workers Order in the context of the COVID-19 pandemic.

(4) Accordingly, the effect of the respondent's post was to encourage non-compliance with the mandate for aged care workers to receive COVID-19 vaccinations. That mandate had, as at 28 June 2021, been agreed by the National Cabinet and was to be reflected by the States and Territories through delegated legislation throughout each jurisdiction and was therefore a valid law.

(5) The implication behind the respondent's post is that the decision in Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719 (Patrick), to which the respondent provided a link in his post, was to the effect that decisions or recommendations by the National Cabinet were of no legal effect. However, the decision in Patrick does not in fact support his statement. Instead, the Tribunal in Patrick merely found that documents of the National Cabinet were not exempt documents under the Freedom of Information Act 1982 (Cth) because National Cabinet did not fit into the statutory definition of a "committee of the Cabinet" such that its documents would be exempt from production.

(6) The respondent's claim that the National Cabinet Statement was not a law is inconsistent with the character of the mandate agreed by National Cabinet, being a clearly mandatory one, which was then implemented by New South Wales through delegated legislation in the form of a Public Health Order.

(7) From the post itself, it is clear the comment was viewed by at least 1,400 individuals as it was liked "1.4K" times and was made in a non-private forum accessible by a large number of people.

(8) By encouraging non-compliance with the law, the respondent breached r 3 of the Conduct Rules. Assuming the respondent held the view that National Cabinet decisions were not valid as a result of Patrick, the appropriate course would have been to challenge their validity through the applicable curial process rather than pre-emptively encouraging non-compliance, which is contrary to the administration of justice and ignores the difference between an operative law (albeit open to challenge) and a law that a Court has found to be invalid.

(9) Given that the respondent's post was made on the Twitter account of the Law Practice, it would have been obvious he was a lawyer and the post would reasonably have been accorded weight by readers as reflecting a lawyer's opinion. This encouragement of legal breaches by a lawyer is likely to be prejudicial to, or diminish public confidence in, the administration of justice, and bring the profession into disrepute. It is contrary to r 5 of the Conduct Rules.

[382]

(1) The comments were made by the respondent using his personal Facebook account, as accepted by him.

(2) As ultimately accepted by the respondent and as is apparent from the face of the post, the language used by the respondent in at least some of the comments set out in particular 24 was offensive and/or abusive.

(3) The respondent's comments, and the immediate context in which they were made, were connected with the respondent's fundraising campaign for litigation; and further, it was apparent to users on the "Blocked by Pete Evans" Facebook page that he was a lawyer. This is apparent for the following reasons:

(a) The original post upon which the comments were published identified the respondent's status as a lawyer and criticised his litigation fundraising campaign.

(b) The comments made by other group members on the original post referred to the fundraising campaign, including, for example: "the [suckers] who donate to this court case will be looking for refunds when it fails" and "how much of the $$ you've grifted off people are you gonna return?"

(c) The comments made by other group members on the original post indicate an awareness of the respondent's status as a lawyer, including statements directed towards the respondent such as: "hardly a professional comment on your part" and "[b]ut will you still have a practising certificate, are the funds going to a trust account?"

(4) The comments made by the respondent are not private or confidential. It is not apparent, at least in the evidence before the Tribunal, how many members belonged to the Facebook group, and whether it was an open or closed group. The respondent conceded that it was a "public Facebook group in the sense that various people can access it and post messages on it", although it is not clear whether membership was first required before posts could be viewed and interacted with. Nevertheless, even where a statement is not made to the public at large, it is capable of bearing a public character. The original post, on its face, received 12 reactions and the Tribunal accepts this means it was viewed by at least 12 people. Other than by subject matter, there is no obvious connection between the readers and people making comments on the Facebook page. There is no sense of confidentiality.

[394]

The plaintiffs were not vaccinated and sought declarations that the Public Health (Covid 19 Additional Restrictions for Delta Outbreak) Order (No 2) 2021 (NSW) and various other public health orders (the impugned orders), were invalid. It was contended, amongst other things, that because of their effect on rights and freedoms, the impugned orders were beyond the scope of s 7(2) of the Public Health Act.
As identified (at [7] of the Kassam Judgment), the question for the court concerned the legal validity of the impugned orders; including whether it was shown that no Minister, acting reasonably, could have considered the impugned orders necessary to deal with the identified risk to public health. The proceedings were dismissed: Kassam Judgment at [294]. Further, an appeal against the Henry Decision was unsuccessful: Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299.
The Henry plaintiffs relied on multiple grounds in the proceedings, one of the main grounds shared with the Kassam plaintiffs concerning the effect of the impugned orders on the rights and freedoms of persons who chose not to be vaccinated, especially their "freedom" or "right" to their own bodily integrity: Kassam Judgment at [8].
Another ground relied upon by both plaintiffs was that the impugned orders contravened s 51(xxiiiA) of the Commonwealth Constitution, with the Henry plaintiffs contending that in making the impugned orders, the Minister failed to take into account a relevant consideration; that is, the individual's implied right under the Constitution not to be conscripted to take part in a vaccination program amounting to a medical service provided to the public: Kassam Judgment at [227].
The Court clarified with respect to the constitutional point that s 51(xxxiiA) proscribes the compulsory provision of medical services, as opposed to the compulsory acquisition of medical services. No part of the impugned orders involves any element of coercion on a doctor or other medical practitioner to vaccinate anyone: at [271]-[272]. Moreover, even if the impugned orders imposed a form of civil conscription, which they do not, they would not be rendered invalid by the operation of s 51(xxxiiA) because that provision is a prohibition on the exercise of the legislative power of the Commonwealth, not the states: Kassam Judgment at [275]-[277].
The Henry plaintiffs asserted that the impugned orders were unreasonable in light of the evidence (including expert evidence) adduced pointing to the "uncertainty surrounding the safety and efficacy of vaccines especially so far as the Delta variant is concerned": Kassam Judgment at [140]. The Court found the evidence adduced concerning the effectiveness of vaccines, which could only go so far as to negative the "absolute certainty" of their safety, was not enough to establish that the differential treatment of unvaccinated people in the impugned orders was an approach that no Minister acting reasonably could have considered to be necessary to deal with the identified risk to public health: Kassam Judgment at [239]-[240].

[413]

(1) On no view did the Kassam judgment stand for any of the propositions made by the respondent in his posts. The focus of those proceedings was on aspects of Public Health Orders (introduced in response to COVID-19) that prevented "authorised workers" from leaving an affected "area of concern" that they resided in, and prevented some people from working in the construction, aged care and education sectors, unless they had been vaccinated with one of the approved COVID-19 vaccines (Kassam Judgment at [1]).

(2) The Kassam Judgment did not say that nobody has a right to bodily integrity. A person was still required to give consent to a COVID-19 vaccine before it could be administered. The Public Health Orders did not purport to confer authority on any person, including any medical practitioner, to administer a vaccine without consent - to do so forcefully would still constitute a battery (Kassam Judgment at [55]-[56]).

(3) The respondent did not honestly or accurately characterise the effect of the Kassam Judgment. His public statements were likely to mislead persons as to the effect of the judgment by representing that individuals' bodies were not legally protected from harm (or at least, that was the finding of the Court, so mischaracterised).

(4) In light of his paramount duty contained in r 3 of the Conduct Rules, the respondent, as the solicitor on the record for the Henry plaintiffs in the Kassam proceedings, should have been familiar or familiarised himself with the facts of the case and the arguments raised in it to ensure he had a proper basis for the content of his posts.

(5) The administration of justice requires that judicial determinations should retain authority and influence and that there be public confidence in the courts' judgments. While it is expected that those judgments may be subject to fair and robust criticism, the respondent's statement struck at the legitimacy of the Supreme Court of NSW without an arguable basis for doing so and fell outside the bounds of permissible advocacy, contrary to his paramount duty in r 3: see Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 (Potkonyak).

(6) The respondent's post was made in circumstances where it was apparent (or at least very likely) that he was a legal practitioner, whose analysis and opinion would likely be given greater weight by members of the public, and who would not expect the respondent to make statements without arguable basis. The statements were thus likely to mislead and detract from the proper administration of justice and to encourage groundless misgivings about the integrity, propriety or impartiality of the judicial officer of the relevant court. Their effect was to undermine confidence in the administration of justice contrary to r 5 of the Conduct Rules.

(7) The further statements by the respondent that "[h]e basically said it is okay to kill anyone you like. No one has any rights" exacerbated the misleading nature of the first two statements. Using inflammatory language, those further statements conveyed that Beech-Jones CJ at CL had delivered a judgment that condoned serious violence analogous to murder.

[438]

"Dear Ms McAndrew,

I refer to your letter dated 17 February 2023.

I have considered Attachment A.

Whilst I believe that I have already been significantly disciplined by virtue of a near 8 month suspension period and an inability to work in the legal profession since 12 November 2021, I do not wish to contest any further matters.

What I will say is that at the time of making a number of public statements (referred to in allegations 1 to 6), the context and the dates when those statements were made should be taken into consideration.

These were very difficult times for me personally. At the height of lockdowns, restrictions on movement, covid-19 vaccine mandates, vaccine passports and vaccine discrimination. It should be noted that I have not submitted to any covid-19 injections and this impacted me personally greatly during these times.

At the time of making the public statements, I was also discriminated against and cast aside by the broader community. All of the comments made by me were made in frustration and anger. Anger at what our society and Australia had become.

The statements were never intended to suggest to anyone any analysis of a judgment or decision. They were simply comments made in frustration and anger. With the benefit of hindsight, I should have never written them.

I have always acted in the best interests of my clients. I have always had the best intentions.

Expert evidence was relied upon by the Henry and Kassam plaintiffs highlighting the health risks of the covid-19 injections, which included amongst other things, immune system related issues, myocarditis, heart failure and death arising from immunodeficiency related diseases. All of these things have proven to be true. People have died already. Millions globally have suffered numerous heart related issues, including myocarditis and pericarditis. This evidence was ultimately ignored by the Court. This is the background context to the statement referred to in paragraph 14 of your letter. In my view, it is not misleading. The decision of upholding the vaccine mandates ultimately meant that if a person wanted to leave their home or go to work and earn a living, then they had to submit to 2 doses of a covid-19 injection. That meant that the person waived any right to bodily integrity. Knowing what we knew then by way of expert evidence and what we know now, the covid-19 injections do kill people. Accordingly, it followed that by upholding the vaccine mandates, it must have also followed that the NSW Health Minister had the power to force individuals to submit to experimental injections ultimately leading to a risk of their death in order to participate in society and earn a living. That is the gist of the comment referred to in paragraph 14. You may disagree with that analysis, however, that is my view and it is not misleading. It was supported by the independent expert evidence relied upon. Vaccine mandates and any right to bodily integrity are incongruous. They cannot operate together.

What must also be considered in this context is that the decision of Beech-Jones J was taken on appeal to the Court of Appeal. No mention of that was made in your letter. It is important to note this context because at the time (15 October 2021), the view was that the Beech-Jones J decision had reasonable grounds of appeal, including with respect to human rights to bodily integrity.

Ultimately it comes down to a difference of opinion on the interpretation of the Beech-Jones J decision at first instance. The only real arbiters of that are the Court of Appeal. That was where it was tried and tested. Your failure to consider this must be reconsidered.

This context also applies to allegations 3 to 6. Effectively, the gist of the Beech-Jones J decision reflected the position that the Health Minister could order any person to submit to an injection in order to go to work and or leave their home and or participate in society. Even if that ultimately resulted in their eventual death. As noted above, people have died of heart failure and other immunodeficiency related issues arising out of the covid-19 injections. Otherwise healthy people now dying 'suddenly and unexpectedly'. How often do we see these words splashed across news websites daily? The independent expert evidence said this was going to happen. Beech-Jones J ignored it.

Considered it irrelevant. This context must be taken into consideration. Particularly since you haven't provided one piece of evidence to establish that anything I have ever written is misleading. As a prosecutor you have a duty to establish that these statements are or were misleading.

It is clear that based on the Beech-Jones J decision, the NSW Health Minister could order anyone to do anything so long as it was made under section 7 of the Public Health Act 2010 (NSW). That is a dangerous and serious outcome. One that raises any number of human rights issues. Issues that have been ignored and or considered irrelevant.

The statements made by me did not condone individuals to perpetrate violence on anyone. Quite the opposite. They were to highlight that the NSW Government (via the Health Minister) can perpetrate medical rape and ultimate death on people under the guise of a public health order or direction. This is not misleading. It is in fact the reality of section 7 of the Public Health Act 2010 (NSW).

Turning to allegations 7 and 8, I did not endorse anything. A like is a like of someone's comment. That's the end of it. It doesn't endorse anything. As a prosecutor, this would fail. You have to establish that I endorsed anything. A like on Facebook falls short of that.

If I am right as to the gist of the Beech-Jones J decision, then I will also be right regarding allegations 9 and 10.

...

I am willing to provide a written apology to the NSW Law Society for the public statements that I made. I am also prepared not to apply for a practising certificate for a certain period of time and undertake any required course work.

I am embarrassed that the statements I made ultimately ruined my professional career. The stresses of lockdowns, restrictions on movement, vaccine mandates and vaccine discrimination negatively impacted my judgment at the time and whilst that is no excuse for my actions, I wish to make amends. The benefit of hindsight and time that has elapsed has assisted.

I am not a bad person. I admit that I have made mistakes. Like all humans, we make mistakes. In this light, I ask that you reconsider commencing an application in NCAT but rather explore an undertaking or deed with some agreed alternatives as suggested above. It should be self evident that an undertaking and or deed will provide a more certain regulatory outcome that you can enforce should there be a breach.

Regards,

Nathan Buckley."

[447]

(1) The Apology and email demonstrate that the respondent is remorseful in relation to his conduct. The respondent admits he should never have made the statements the subject of Grounds 6, 7, 8 and 9. As he stated, his judgment was negatively impacted by the stresses surrounding the pandemic.

(2) The respondent genuinely accepts that the comments should not have been made.

(3) The conduct was, at least in part, the product of the extreme stress the respondent felt concerning the pandemic; the risks with vaccinations and the outcome of the Kassam Judgment.

(4) There is nevertheless nothing to indicate that the respondent, yet, has insight into the severity of his wrongful conduct in light of his obligations as a legal practitioner.

(5) The respondent was aware from the 17 February 2023 email sent by the Law Society that the Professional Conduct Committee of the Law Society had resolved to initiate proceedings against him for the alleged conduct. The respondent's knowledge of this must be taken into account when considering the force of his 19 February 2023 email and the Apology sent one month later. Those explanations and apologies were given and made while the respondent was aware he was being prosecuted for his conduct. There can be no suggestion that the timing was coincidental. The conduct occurred more than a year and a half earlier.

(6) The 19 February 2023 email is heavily focussed on explanations for the respondent's conduct including "frustration and anger" and "the stresses" of the pandemic while maintaining that it has not been established "that anything I have ever written is misleading." The respondent expressed that: "whilst that is no excuse for my actions, I wish to make amends."

(7) The Tribunal considers that, while the email demonstrates embarrassment and contrition on the part of the respondent, it does little to persuade the Tribunal that the respondent truly understands all the reasons why his conduct was wrong.

(8) The respondent, while accepting that the conduct was wrong, does not accept it was misleading or might be treated by readers as a comment on the Reasons for Judgment. He maintains that his comments were an accurate representation of the effect of the Kassam Judgment.

(9) The respondent does not show any true insight into his obligations as a legal practitioner or to the administration of justice that may arise from the conduct, dismissing it as a rant.

(10) Notwithstanding his subjective impression of the realities of vaccine mandates and the powers of the government during the pandemic, the respondent had a professional obligation to refrain from making intemperate, unjustifiably critical and inflammatory comments.

(11) Ultimately, the Apology and the 19 February 2023 email go some way to demonstrating that the respondent is aware he acted contrary to his professional obligations. However, he does not seem to appreciate how far from professional standards he strayed; even taking into account the extra stress he felt in the circumstances.

[492]

(1) By posting the Twitter comments, the respondent suggested that the effect of the Kassam Judgment was that the extraordinary and violent actions that had been described by users (such as cutting off someone's testicles, going "on a rampage" and injecting people with heroin) were rendered permissible.

(2) By posting the Facebook comments, the respondent suggested that extraordinary and violent steps could be taken because they were effectively condoned by the Kassam Judgment, as no one in NSW had "any rights" to bodily integrity.

(3) The respondent's conduct in authoring the comments on the Twitter and Facebook platforms was "particularly egregious" as they were made on the social media pages of the Law Practice which had represented one of the parties in the proceedings, meaning the comments were likely to be given greater weight.

(4) The comment made on Facebook set out in particular 45(f) had the potential to convey (and appears to have been taken by some users as conveying) that Mr Buckley was recommending that Beech-Jones CJ at CL "sleep with the fishes" (being a reference to being murdered).

(5) The respondent's comments on the Facebook platform that the Chief Judge would have a "short career" and "sleep with the [fishes]" were personal attacks aimed at a judicial officer and likely to impair the authority of Beech-Jones CJ at CL and the Supreme Court of NSW. The respondent's explanation regarding his use of the fish emoji does not make any sense - any alternative suggestions of the intended meaning of that comment would lead to an absurd result understood in context.

(6) The comment in particular 45(e) suggested that the position of his Honour (and the Law Society) was morally compromised.

(7) The respondent's criticisms of Beech-Jones CJ at CL, and the legal profession more generally, were inappropriate and groundless. They had the effect of undermining the confidence in the integrity and propriety of the legal profession.

(8) For those reasons, the respondent engaged in conduct that was contrary to his paramount duty to the administration of justice (r 3) and which was likely to be prejudicial to, or diminish public confidence in, the administration of justice, and/or bring the profession into disrepute (r 5).

[506]

"Q. And I want to suggest to you - if you go back to 156 - that when you posted 'Hopefully he has a very short career as the Chief Justice at Common Law' and when you posted his phone number of his website in response to a 'Prank him 24/7', that you were encouraging or assisting people to engage in personal attacks aimed a judicial officer?

A. I reject that.

Q. And that you were doing that in the context of encouraging or assisting people in relation to personal attacks at a judicial officer, motivated by the mere performance of his judicial function?

A. I reject that

Q. Do you accept that for a person to prank call a Supreme Court judge 24/7 after they deliver reasons in a proceeding, that that is likely to impair the authority of that Supreme Court judge?

A. I didn't do that.

...

Q. I want to suggest to you that your conduct in doing so is likely to undermine confidence in that judge and the Supreme Court by assisting in conduct that would involve the harassment of that Supreme Court judge as part of them undertaking their judicial function?

A. No, I didn't do any of that. All I did was post a link to the website.

...

Q. Mr Buckley, I want to suggest to you that for you as a solicitor, being the solicitor on the record of proceedings in which a judgment had been delivered that day in a contentious judgment with a lot of public interest and someone says, 'Prank the judge 24/7,' that for you to provide the phone number for that judge on a website was contrary to your duty to the administration of justice?

A. No, I disagree

...

Q. What I want to suggest to you is the fact that you as a solicitor, the solicitor on the record in these very proceedings, were providing a phone number that a person could use to prank call Justice Beech-Jones, the fact that you did it, not anyone else, the fact that you did it would be likely to diminish public confidence in the administration of justice. Do you agree with that?

A. No. All I did was post a link to a website. That's all."

[513]

(1) The respondent made the Twitter and Facebook comments using the social media pages of the Law Practice.

(2) It was easily ascertainable to Facebook and Twitter users that the Law Practice acted for the Henry plaintiffs in the Kassam proceedings.

(3) It was not necessarily apparent to users on Facebook and Twitter that the respondent was a solicitor. However, the statements were made by the respondent through the Law Practice and the respondent is responsible for them. Moreover, the statements would have been accorded authority by viewers in a similar way because they were made by the Law Practice.

(4) The Twitter comments did not accurately describe the effect of the Kassam Judgment. On no reasonable reading did the Kassam Judgment suggest that the impugned Public Health Orders violated the right to bodily integrity. The respondent said "Beech-Jones said no one has any rights in New South Wales. Do as you please" and then agreed with Twitter users that they could "cut the testicles of pedos" and "go on a rampage" and "inject heroin into people".

(5) The Twitter comments were therefore misleading as to the effect of the Kassam Judgment, which did not condone any violence or interference with bodily integrity.

(6) The Facebook comments made by the respondent were a misleading characterisation of the Kassam Judgment which was used to condone the violent acts suggested by various commenters on the basis that "In NSW no one has any rights to bodily integrity. That's what his judgment says."

(7) An obvious consequence of the respondent's mischaracterisation of the effect of the Kassam Judgment on both the Facebook and Twitter platforms is that public confidence in the authority of Beech-Jones CJ at CL and the Supreme Court of NSW would tend to be undermined.

(8) Aside from their obvious inappropriateness, the comments by the respondent expressing hope that Justice Beech-Jones has a short career as Chief Judge at Common Law, and what the Tribunal accepts are suggestions that the Law Society lacks integrity, could undermine confidence in the administration of justice and the legal profession. Rather than taking a microscope to their individual meanings, the Tribunal has satisfied itself that the cumulative effect of these comments could undermine confidence in the integrity and propriety of the legal profession, and that on a reasonable reading, a selection of those Facebook comments constituted a personal attack on Beech-Jones CJ at CL.

(9) By providing a link to the Supreme Court of NSW's judicial officer contacts list, the respondent was assisting people in contacting the chambers of Beech-Jones CJ at CL. Although users could have accessed this public list themselves, the respondent was assisting users by removing a step in the process of ascertaining the relevant phone number. The Tribunal finds that the context in which the link was posted - in response to the comment 'Prank him 24/7?' - connects the respondent's behaviour with the suggestion to prank call the Chief Judge at Common Law and therefore he was assisting them to prank call the chambers.

(10) Further, it was easily ascertainable that the respondent's Law Practice, which posted the comments, was the solicitor on record in the Kassam proceedings, giving further credence to the mischaracterisation contained in the comments.

(11) We reject the respondent's characterisation that the posts were "mere banter". The comments were inflammatory, derogatory and, in context, not able to be dismissed as mere banter. They were more pernicious than mere banter. Whilst they might be seen as hyperbole, this is not sufficient for them to be entirely negatived.

[554]

(1) The respondent "liked" the comments using the Facebook account of the Law Practice. It was clear to Facebook users that the Law Practice was liking the comments, although not necessarily that the respondent was doing so.

(2) The respondent was interacting with the comments on a public forum.

(3) The original post upon which the comments were posted, the subject of Grounds 6 and 7, was likely to encourage adverse commentary because it was a gross mischaracterisation of the Kassam Judgment which could reasonably lead to serious misgivings about the nature of the Judgment and the Supreme Court of NSW given the respondent's status as a lawyer, which gave his statements a higher degree of legitimacy.

(4) The comments set out in particular 54 were not fair and legitimate criticism of the Kassam Judgment. They suggest the following:

(a) A consequence of the Judgment was that the Supreme Court of NSW and/or Justice Beech Jones CJ at CL were "on record defending pedos".

(b) The Judgment "validated medical rape".

(5) The comments attack the integrity of Beech-Jones CJ at CL and/or the Supreme Court of NSW. They suggest as follows:

(a) Beech-Jones CJ at CL should be subject to an independent audit.

(b) The Court and/or Justice-Beech Jones CJ at CL is "corrupt" and "evil" and "corruptly privatised".

(c) Beech-Jones CJ at CL is a "soulless man".

(d) The Parliament and legal system "don't like fair and just lawyers".

(6) On no reasonable reading of the Kassam Judgment did it have the effect suggested by those commenting on the respondent's post.

(7) The Tribunal was not taken to any evidence on the usage of the like button on the Facebook platform or other forms of social media. The symbol is ubiquitous but does not necessarily have a settled meaning in all contexts to all people. We infer that it may have different connotations to different people and be context dependent; it may be an express approval of the sentiment contained in the post, or something more nuanced.

(8) Nevertheless, the action of "liking" a post on Facebook is not an expression of complete neutrality. We are satisfied that the action of "liking" is not an expression of disapproval. It has a positive connotation. We note that the extract of the cross examination of the respondent set out above reveals that he is aware other reactions were available to him on the Facebook platform when interacting with comments. If he wished to express disapproval of those comments, he could have chosen a different reaction. As to whether the 'like' reaction conveyed an approval of the comments made, we would infer that at least some readers would take it as a positive to some extent, as its name suggests.

(9) Some members of the public would view the liking of various comments by the Law Practice, on a post published by the Law Practice, as an indication that the Law Practice approved or endorsed the content of those comments.

(10) The respondent, therefore, encouraged and/or publicly condoned the making of public statements that were likely to undermine confidence in the authority of Beech-Jones CJ at CL and/or the Supreme Court of NSW.

[594]

(1) The respondent created the Fundraiser Page to raise funds to commence proceedings against the NSW Law Society, as admitted by him.

(2) It was obvious from the contents of the Fundraiser Page that the respondent was a lawyer as he made references to "acting" for others in the past. Further, it was publicly available information that the Law Practice was involved in the Kassam proceedings, and inferable that the respondent was acting in the Kassam proceedings from the face of the Fundraising Page since he stated that he wished to "keep fighting the good fight" and felt that he was being "silenced" for acting in proceedings of this nature.

(3) There was no factual basis for what the respondent said in relation to the effect of the Kassam decision. On no reasonable reading did that decision endorse the making of Public Health Orders by the Health Minister "sentencing unvaccinated people to their death." That assertion is incorrect. That is not to deny that there have been deaths associated with vaccinations. However, for the reasons already expressed, the Kassam Judgment did not "force" vaccinations or violations of bodily integrity.

(4) The respondent's characterisation of the Kassam judgment was misleading. The Tribunal has set out above what the actual effect of the Kassam Judgment was - to suggest it was a sentencing decision and a death sentence is disparaging and ignores the central reasoning of the Kassam Judgment.

(5) The respondent's characterisation of the Kassam Judgment was misleading, unfair and an insult to the integrity of the Supreme Court of NSW and Beech-Jones CJ at CL.

(6) The s 83 Notice concerned the respondent's suitability to practise law in conformity with the Conduct Rules.

(7) The Tribunal is not satisfied that there was an improper purpose to the issuing of the Notice and the investigation.

(8) The Tribunal rejects the submission that the purpose of the Law Society was to 'silence' the respondent, as opposed to investigating what we have found not to be fair and robust commentary.

[618]

The conduct or circumstances which may establish that a person is no longer a fit and proper person to remain on the roll include professional misconduct: de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 (de Robillard) at [240]. However, it cannot be assumed that a finding of professional misconduct, of itself, justifies a striking off: Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 204; A Solicitor at [15].
Upon an application for removal of the name of a legal practitioner from the roll, the ultimate issue to be determined at the date of hearing is whether the practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court upon whose roll the practitioner's name presently appears: A Solicitor at [14]-[15], [21]; Council of the Law Society of New South Wales v Green [2022] NSWCA 257 (Green) at [58]. An order for removal is appropriate only where it is demonstrated both that the lawyer is presently not fit to practise and is likely to be unfit for the indefinite future: de Robillard at [241] citing Green at [67]; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 (Cummins) at [25]-[27]; Zhukovska at [99]; Sideris (CA) at [8], [107].
The legal onus remains on the Law Society to show probable indefinite unfitness to practise: Zhukovska at [115].
However, where, prima facie, the conduct would warrant a recommendation that the practitioner be removed from the roll, an evidential burden may shift to the practitioner: Stanoevski at [60]-[64].
Consideration of whether a practitioner's unfitness to practise is likely to be indefinite allows consideration of whether a less severe order such as suspension (for example) is appropriate: de Robillard at [241] citing Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632 at [23].
An order that a practitioner be removed from the roll is the most serious professional sanction. In addition to protecting clients and other members of the profession, it is concerned with maintaining the reputation of the legal profession and public confidence in it: Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [49]. As the Court observed in APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44 at [21], "[t]he Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner".
A roll removal order does not preclude a person from seeking readmission, though the process for readmission after being removed from the roll is more arduous than applying for a new practising certificate after cancellation: Zhukovska at [73]; Ex parte Lenehan [1948] HCA 45; (1948) 77 CLR 403 at 422; [1948] HCA 45.
It was said in Council of the Law Society of NSW v Yoon [2019] NSWCATOD 28 (Yoon) at [54]:

[624]

This conduct is so contrary to a solicitor's duty to uphold the administration of justice, that we are satisfied it suggests that the respondent is not a fit and proper person to engage in legal practice. In particular, the conduct which included abusive and unjustifiable criticism of the Supreme Court of NSW would, in isolation, and absent persuasive evidence that similar conduct would not re-occur, warrant such a conclusion. The real question regarding the respondent's present fitness to practise is whether we could have confidence that, as at the time of the hearing, the respondent would not conduct himself in such a manner.
Taking a wider lens, we accept that the respondent's conduct was explained (but not justified or excused) in part by his personal experience of the stresses associated with the pandemic. We accept he was affected in such a way that, at least for a time, his judgment was compromised.
We say compromised as we are not satisfied, given his previous many years as a practising solicitor, that this type of conduct was usual. We accept that he has been subject to some disciplinary action by the applicant previously; however, there is nothing to suggest there has been anything in the past as out of step with professional practice as the conduct the subject of this Complaint. Further, there is no criticism of his legal competence, for instance it is not suggested that the position of the Henry plaintiffs in the Kassam proceedings was untenable. Further, we note an appeal too was filed and determined, and while it was unsuccessful, it was not suggested to be untenable. Ultimately, the fitness of the respondent is not a function of any technical competence; it is a matter of whether we consider that his conduct renders him unfit to the remain on the roll: Sideris (CA) at [102].
Returning to the issue, the respondent was, at least for a time, compromised in his ability to discharge his duties to the Court and the administration of justice, as exposed by the conduct the subject of the professional misconduct findings.
In so saying, we recognise that the respondent was heavily impacted by the stresses of the pandemic, which clouded his judgment. That said, we note that no evidence was adduced by the respondent to the effect that he was suffering from a diagnosable mental health issue at the time, which might reduce the respondent's moral culpability if it is found to be the dominant causal factor in the offending conduct: c.f. Council of the New South Wales Bar Association v Waterstreet (No 2) [2025] NSWCATOD 4.
Since that time, the respondent has had time to evaluate his conduct. The respondent said in his Apology email of 19 February 2023 (see above at [219 ]):

[628]

These circumstances might support the view that the conduct was an aberration, that is now in the past. We turn to whether, seen in the wider context and noting the passing of time, the respondent might now be fit to practise.
However, we have had regard to the conduct of the respondent during these proceedings. As noted above, the applicant highlighted early on that they would ask us to do so, and the respondent was on notice of this.
The respondent has consistently attempted to diminish the severity of his misconduct and fails to appreciate how grave a departure his conduct was from the standards expected of a solicitor. While the respondent is remorseful, he cannot be said to truly "understand the error of his ways" (New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 (Evatt) at 184) while still attempting to distance himself from the content of the posts and persuade the Tribunal as to their harmlessness. While we do not find that the respondent was dishonest in giving evidence before the Tribunal, he was unrealistic in his interpretation of the various posts, insisting that he could not have known what readers would think various references meant, and refusing to engage with what a reader might reasonably consider their meaning to be. Further, he exhibited an obstinance in his belief that the harsh and tragic realities of the pandemic, including in relation to the effect of the vaccines, coupled with his Apology and the suspension of his practising certificate, justified the Tribunal treating his professional misconduct as having been sufficiently addressed.
The applicant referred the Tribunal to cases such as the first instance decision in Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75 involving circumstances where the practitioner acknowledges fault, but still seeks to justify their conduct. Those cases reflect a "glimmer" of insight but when one probes into cross examination and other material to understand the degree of the practitioner's insight, that insight is superficial and fundamentally lacking: at [386]. See, also: Council of the Law Society of New South Wales v Sideris (No 2) [2024] NSWCATOD 121 (Sideris (NCAT)) at [98]-[100], [125]-[127], Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40 at [191]- [196]. In light of what is set out below, these proceedings can be similarly so characterised.
We refer to the "distancing language" used by the respondent in cross examination in respect of Grounds 1 and 2. This demonstrates a lack of insight into the respondent's conduct by separating the effect of the words used from his role in authoring them. The following extract demonstrates what the applicant contends, and the Tribunal agrees, is the respondent's unwillingness to answer the question in terms of what he was in fact doing:

[638]

The applicant stressed to the Tribunal that the existence of the "bare bones" Apology and the 19 February 2023 email referred to therein reinforces the extent of the respondent's lack of insight, and the fact it really was not an apology at all. The applicant points to various aspects of the 19 February email, a "very significant document" which the respondent said he stood by in September 2024 (the time of the hearing), which demonstrates "distracting justifying conduct". The respondent contends that the applicant's suggestions breach the rule in Browne v Dunn (1893) 6 R 67 because he was not cross examined on them.
The Tribunal considers that the Apology and the 19 February 2023 email are consistent with what the Tribunal has determined to be the respondent's position throughout these proceedings, which is that he is contrite and remorseful though will not make concessions as to the reality of his conduct and his degree of wrongdoing, which would be required for the Tribunal to be satisfied that the conduct was not apt to be repeated. Having regard to the particulars, the filed written submissions and conduct at the hearing including the lengthy cross examination about the respondent's insight, we are not satisfied that there has been a breach of the rule in Browne v Dunn.
From the foregoing, we would be satisfied that the respondent is not fit to practise, as things stood at the time of the hearing. We are not satisfied that the respondent understands his obligations as a solicitor.
Despite this, we pause to re-consider that there are some factors that militate against a finding that the respondent is not presently fit to practise; especially the fact that the respondent was under stress at the time of the conduct the subject of the determinations regarding professional misconduct and that we were facing extraordinary times with the COVID-19 pandemic.
First, to justify a finding of unfitness, the conduct in question must be viewed in context: EFA at [171]. The stresses arising from the pandemic clearly affecting the respondent are nevertheless no justification for his behaviour, although they do assist in explaining it.
We accept that "[c]haracter is tested not by what one does in good times but in bad" (Foreman at 449), the bad times provide greater context in which to assess the conduct. We accept that "the public is entitled to assume that solicitors will maintain appropriate standards of conduct even in stressful circumstances" (Council of the Law Society of New South Wales v King [2018] NSWCATOD 157 at [46]), but we have also taken the extreme circumstances into account.
Second, the Tribunal notes that the respondent's conduct in relation to the first application is localised to social media. And, as mentioned earlier, his legal competence is not in question. Whilst the respondent's outbursts on various platforms demonstrate a severe deficit in judgment, the Tribunal appreciates that his conduct falls exclusively within the context of social media communication. This raises a possibility that targeted conditions on his practising certificate concerning social media might serve a useful protective purpose. Those might be expected to go some way, to meet the risk that the respondent might otherwise not restrain himself from making inappropriate statements using his personal accounts and the social media pages of the Law Practice.
Third and importantly, the Tribunal has no evidence before it that the respondent does not conduct himself in accordance with the requisite standard of competence and diligence in individual dealings with clients, or that he is dishonest or has previously behaved dishonestly. It must be kept in mind that the quality most likely to result in roll removal is conduct which undermines the trustworthiness or integrity of the practitioner: Barristers' Board v Darveniza [2000] QCA 253 at [33]. Here, we are not concerned with a lack of trustworthiness or honesty towards a court or with clients.
Of these factors, the second and third might suggest that with some combination of protective orders, short of a recommendation for roll removal, we could be confident the respondent would be fit to practise. If we had been satisfied that the respondent showed sufficient insight into his conduct, we may have asked for further submissions from the parties as to the appropriate combination of protective orders. However, we are not so satisfied.
The respondent has not shown real insight into the seriousness of his departure from his paramount duty. The utility of piecing together a series of protective orders that would be appropriate in these circumstances is overshadowed by this factor. We do not consider that other orders will overcome what we see is a fundamental lack of understanding of his departure from the Conduct Rules.
On balance, we do not consider that the respondent is presently fit to practise.

[649]

The purpose of roll removal is protection of the public. Ultimately, the evidence given by the respondent shows that he is an ongoing risk because he is unable to accept very obvious propositions as to what his conduct involved. A practitioner's failure to appreciate the gravity of their misconduct is relevant to the possibility it will recur, and the need to protect the public from that recurrence: de Robillard at [257] citing Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124 at [35].
It follows that if, today, the respondent was faced with a similar disappointment in legal practice or a result was contrary to views he passionately and vehemently held, we would not be satisfied that he would not again express his frustration in a public forum in a way that would risk diminishing public confidence in the administration of justice or bring the legal profession into disrepute.
As noted, we have considered whether it would be sufficient to impose a condition that concerns social media or some other condition or protective orders. However, we do not consider there is a measure which we could be confident would address the underlying issue; which is that the respondent does not sufficiently respect the administration of justice, as demonstrated by his failure to understand or admit the gravity of his departure from professional standards. Any restrictive measures would merely address the symptoms.
Overall, the respondent's cavalier attitude and refusal to accept that the conduct was capable of affecting the administration of justice reveals that he "does not have the benefit of a mind which urges caution when he is planning to take action which will or can have adverse consequences for another person, and where he is likely to be the subject of criticism from his peers and his colleagues in the legal profession" or action from the Law Society: Sideris (NCAT) at [98] quoting de Robillard at [386]. We are not satisfied that the respondent will, in the future, alter his attitude in a way that would give the Tribunal confidence that the conduct the subject of these proceedings would not be repeated.
For those reasons, the Tribunal recommends that the practitioner be removed from the roll of practitioners kept by the Supreme Court of NSW.
We now turn to consider whether anything in the Fundraising Application affects our view.

[665]

(1) The applicant has not put on any evidence to establish that any of the material amounts to material falling under r 36.1. It has assumed that material is labelled as such by reference to dictionary definitions and principles unhelpful to the applicant, which ultimately does not compare to the factual matrix of crowdfunding or specific factual scenario in these proceedings.

(2) The applicant's reliance on the consumer law is misplaced because, at least in relation to the GoFundMe platform, he was not carrying on a crowdfunding business in Australia or a State or Territory. The GoFundMe platform is hosted and based in the United States of America. The applicable principles in these proceedings are contract law principles based off the agreement between the operators of the crowdfunding platforms and the respondent.

(3) The posts the subject of the Complaint were made in relation to crowdfunding campaigns seeking donations on behalf of third-party individuals, made in the respondent's personal capacity.

(4) The materials could amount only to the mere public discussion of information and the objective imparting of information about legal services; and could never amount to the proposed sale of a product or service by the respondent or the law practice, or "urging the audience to buy" something, because there was nothing for sale.

(5) The applicant's reliance on Australian Injury Helpline is unhelpful and the commentary relating to charities is irrelevant because neither the respondent nor the law practice is a charity and "[t]he comparison of charities engaging in marketing in the hope of attracting donations, and the crowdfunding engaged in by the Respondent is completely opposite".

(6) The respondent could not have engaged in "promotions" because they are prohibited by the terms of the GoFundMe platform and he complied with the terms of service at all times. The disclosure requirements of the crowdfunding platforms were the only requirement the respondent was obligated to meet. In addition, no fees were ever paid by the respondent or the law practice to any crowdfunding platform or any social media or promotional services relating to the posts the subject of this application.

[667]

It has already been established that the Tribunal has jurisdiction in relation to the crowdfunding material the subject of the Fundraising Application: Council of the Law Society of New South Wales v Buckley [2024] NSWCATOD 44.
Before turning to the individual posts in the Fundraising Application, we construe the meaning of the terms contained within r 36.1.
The terms "marketing" and "promotion", we accept, can be construed with the assistance of Australian Help Line which builds on the natural and ordinary meaning of those terms.
Read in the context of r 36.1, we accept that the term "in connection with" simply requires a nexus between the relevant marketing or promotional material and the solicitor or principal of a Law Practice.
The terms "false" or "misleading" or "deceptive" within the meaning of r 36.1 of the Conduct Rules has not been the subject of judicial interpretation. We note that the Australian Solicitors' Conduct Rules 2022 Commentary (March 2024) refers to, inter alia, the Australian Consumer Law contained in Schedule 2 to the Competition and Consumer Act 2010 (Cth) (the Australian Consumer Law) as relevant legislation to assist in applying the terms used in r 36.1.1 and 36.1.2 of the Conduct Rules.
The expression "misleading or deceptive or likely to mislead or deceive" must be construed in accordance with its ordinary meaning and also by reference to the context and purpose of the Conduct Rules within the rubric of the Uniform Law: Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 at [69]. We accept that extensive judicial interpretation of s 18 of the Australian Consumer Law (previously s 52 of the Trade Practices Act 1974 (Cth)), which prohibits misleading or deceptive conduct in materially similar terms, though in the context of "trade or commerce", is capable of throwing light on the meaning that the legislature intended to give to the provision; albeit here we are construing it in the legal disciplinary context. Our primary focus must be the meaning of those terms in the context of the Uniform Law.
The following non-exhaustive principles, drawn from the Australian Consumer Law, are relevant to our consideration:

[668]

(1) Conduct is misleading or deceptive or likely to mislead or deceive if it is capable of leading into error: Australia Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54 at [39]; Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25 at [25].

(2) Conduct is likely to mislead or deceive if there is a real and not remote chance or possibility that a person is likely to be misled or deceived, and this is so even though the possibility of that occurring is less than 50 per cent: Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60 at [112] (McHugh J).

(3) It is not necessary to establish that the respondent intended to mislead or deceive. The relevant question is whether, viewed objectively, the relevant conduct was misleading or deceptive or likely to mislead or deceive: Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191 (Parkdale) at 197 (Gibbs CJ) and 216 (Brennan J); Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142 at [95].

(4) There is no meaningful distinction to be drawn between the compendious expressions "false or misleading" and "misleading or deceptive": Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682 (Dukemaster) at [14]-[15] (in the context of the Trade Practices Act). The term "false" seems to refer to a statement as to a past or present state of affairs whereas "misleading or deceptive" embraces, in addition, statements as to a future state of affairs.

(5) The essential question is whether, in all of the circumstances constituted by acts, omissions, statements or silence, there has been conduct likely to mislead or deceive: Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31 at [14].

(6) The standard of the ordinary or reasonable member of the class of consumers likely to be affected by the conduct should be applied when deciding if a representation would be likely to mislead or deceive: Parkdale at 199, Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12 at [105]. In this case, the applicable standard is that of a member of the public with a degree of concern for public interest litigation, who would be likely to view the website or social media accounts of the Law Practice.

[675]

"[SENIOR COUNSEL]: The way we put it is that even taking Mr Buckley's case at its highest, for the 14 months in which he was fundraising on the basis of 'I am raising money for a Federal challenge', and it's common ground that he has raised money up until that point, it is misleading for him to raise money on that basis and then to spend the money on a different basis at the very least in relation to all the money--

...

[SENIOR COUNSEL]: We also say - the way we put it in relation to the point of when he's raising it is that he has not - does not have a reasonable basis at the time he is making statements for saying that there will be a test case in a Federal Court and he's raising money on the basis that there will be a test case in the Federal Court, because he did not have a reasonable basis to make that representation.

...

[DEPUTY PRESIDENT]: And is that why you say it was misleading? It's not that it changed and the money got spent on the Henry proceedings?

[SENIOR COUNSEL]: Well, we put it in two different ways. On day one we say it was misleading or deceptive or likely to mislead, because the nature of the statements he was making would make a person believe that there was a reasonable basis for saying there's going to be a court case, and he did not have a reasonable basis.

...

[SENIOR COUNSEL]: So he was urging people to donate money on the basis, in effect, that there was going to be this court case and, effectively, it was going to be successful, ie, definitely give money.

[DEPUTY PRESIDENT]: And he didn't have a reasonable basis.

[SENIOR COUNSEL]: Correct. That's the way we put it. But then over time he then acted contrary to the representation that it would be spent on a Federal Court challenge. So that comes into it later in time.

...

[SENIOR COUNSEL]: Well, in our submission it becomes misleading conduct because he has said donate money to me on this basis, and then moneys have obviously been raised on that basis for 14 months, and then he has changed position and he has spent it for a completely different purpose.

[DEPUTY PRESIDENT]: What's the misleading conduct? The spending of the money?

[SENIOR COUNSEL]: It's to say, 'I'm raising on the basis that this is what I'm going to spend it on,' to in fact spend it on a different purpose."

[678]

As identified from the extracts from the transcript, as well as the Complaint and submissions, the applicant approaches the task of proving the Complaint by demonstrating that the respondent did not have reasonable grounds to make a given representation at the time it was made, and in fact acted contrary to it.
Despite a reference to a change "at a later time", there was no decisive indication from the applicant as to when the respondent's representations became misleading. There was no specific time we were asked to view the representation, if we were not going to consider the representations from the date that they were made. We do not apprehend the applicant's case to be that the respondent was obligated to update information contained in his posts, and his failure to do so reflected a contravention of r 36.1 of the Conduct Rules. Instead, we apprehend the applicant's argument to be that it is misleading for the respondent to say, effectively, "I'm raising on the basis that this is what I'm going to spend it on" when he did not have a reasonable basis for so saying and, further, the fact that the funds were spent on a different purpose demonstrates the lack of reasonable basis or misapprehension.
It follows from both logic and authority that a basis from which the applicant might establish that the respondent contravened r 36.1 of the Conduct Rules is that, at the time the respondent made each representation in each post, he did not have a reasonable basis for making that representation. This is an objective test.
However, as we articulated above, the fact that a representation does not come to pass is not of itself sufficient to establish that it was made without reasonable grounds: Ambergate at [29]. Here, proving that the representation was misleading is not achieved by pointing to the purpose for which the funds were spent many months later.
There is no allegation that the funds were misappropriated when spent for a purpose different to the purposed identified when raised. We apprehend the contention is that, to raise funds for a specified purpose when they are ultimately spent on a different purpose, reveals no reasonable basis for the representation, and that the funds were never intended to be spent on the specified purpose, making the statement misleading or deceptive.
Lastly, the Tribunal notes that, in relation to each set of particulars, the applicant does not distinguish between, rr 36.1.1 and r 36.1.2, ultimately alleging at each juncture that the respondent has failed to ensure that the representations contained in the material were not false, misleading or deceptive or likely to mislead or deceive. However, the applicant only occasionally frames a given representation as false, rather than misleading or deceptive, in their submissions. Where the Tribunal has made a positive finding only in relation to a breach of r 36.1.2, that is because the representation contended to be 'false' is to a future matter (so it cannot be false, in accordance with what we have said above), or the representation is not technically false (albeit misleading in effect).

[683]

"Enough is enough. It's time to tell the State and Commonwealth Governments NO WAY to any mandatory COVID-19 vaccination.

Last year, each of the State Governments introduced legislation which compelled aged care workers to have flu vaccinations. That was the test run.

In the coming days and weeks, they will try and force or coerce people to have a COVID-19 vaccination.

Scomo announced on 19 August 2020 that he intends to make it mandatory for all Australians to have the COVID-19 vaccination.

This is in breach of various provisions of the Disability Discrimination Act 1992 (Cth) and section 51(xxiiiA) of the Commonwealth of Australia Constitution Act. Section 51(xxiiiA) was introduced into the Constitution to provide that whilst the Commonwealth Parliament can validly make laws with respect to the provision of benefits and for medical services, it is not authorised to make laws providing for the complete control of medical services rendered by any person to any other person. Nor does the Commonwealth legislature have the power to control the practice of the medical profession completely or to such less extent as Parliament might think proper.

...

The concept of 'civil conscription' was first considered by the High Court in British Medical Association v Commonwealth (1949) 79 CLR 201; [1949] HCA 44 (7 October 1949)...

...

That important decision confirmed the fundamental right of Australian citizens to determine by their own will whether they should take any medical or pharmaceutical benefit provided. Accordingly, any legislation that requires medical practitioners to prescribe government-mandated medical services constitutes a form of civil conscription that is constitutionally invalid.

...

Importantly, the High Court also indicated that the prohibition of civil conscription must be construed widely, to invalidate any law requiring medical practitioners (expressly or by practical compulsion) to work for the Commonwealth Government or any Australian State. Simply put, no law in this country can compel any medical service on behalf of the Australian government.

To conclude: the Australian Constitution explicitly prohibits any form of legal compulsion upon the medical profession to carry out any form of medication, including vaccination. In fact, no Government, either Federal or State, can impose compulsory vaccination in this country, or prevent medical practitioners from remaining entirely free to choose whether or not to provide certain medical services, including vaccination. ...

This means that the State and Commonwealth Governments are unable to introduce any laws that compel individuals to have a flu shot or any mandatory COVID-19 vaccination. Any laws that try to do that are unlawful and should be struck out.

It also means that the State and Commonwealth Governments are unable to enforce any laws that purport to say that a person is unable to be employed or work in a particular industry or refrain from entering into a particular premises for failing to have a flu shot or COVID-19 vaccination.

If you have been fired from your job for not having a flu shot or COVID-19 vaccination, refused entry into an aged care facility for not provided proof that you have had a flu shot or COVID-19 vaccination, refused access to premises or the provision of goods and services for not having a flu shot or COVID-19 vaccination, then this fundraiser is there to protect your civil rights.

All funds raised will go towards the legal battle ahead. Nathan Buckley, the promoter of this campaign is a lawyer and Partner of G&B Lawyers, a Sydney city based law firm who believes in the protection of fundamental freedoms for all Australians. Nathan is an experienced litigator and is admitted to the roll of practitioners on the High Court of Australia.

The contributions that people put forward will support your fellow Australians who choose not to have a flu vaccination or COVID-19 vaccination, to gain justice, help those Australians to get on with their lives and return to normal as quickly as possible. It will protect all Australians' fundamental right to choose whether or not to have a flu vaccination or COVID-19 vaccination. Like all Australians, I will forever be grateful to all contributors who free Australia from the draconian and unlawful laws that have already been introduced by State and Commonwealth Governments in recent months

The target is large so as to cover our team's legal costs. As we now have a number of matters in the Fair Work Commission jurisdiction that may result in test cases specifically within the scope of this campaign, all donations will be used to pay legal costs and disbursements towards any such matter which may become a test case in either the Federal Circuit Court or the Federal Court. Accordingly, there is no functionality to issue any refunds. Updates on the progress of each test case will be provided as the matters progress."

[713]

(1) None of the material he posted was ever false, misleading or deceptive or likely to mislead or deceive and, instead, the applicant "relies on innuendo, lies and unfounded propositions not supported by any evidence whatsoever."

(2) The applicant has misread the November statement which refers to the funds raised being spent on the "Constitutional Challenge and the [Henry Proceedings]", those two things being distinct from one another.

(3) The funds raised were not only spent on the Henry Proceedings. They were put to use and spent on a number of potential matters and purposes that fell squarely within the scope of the Constitutional Challenge campaign and other crowdfunding campaigns. To that end, the respondent refers to:

(a) various tax invoices issued by counsel and senior counsel reflecting the consideration and exploration of "potential matters" falling within the scope of the Constitutional Challenge campaign from the period June 2020 and to October 2021.

(b) proceedings that were commenced, including proceedings eventuating in the Federal Court, involved challenges to termination of the employment of individuals pursuant to vaccine mandates by the employer or the NSW government which in turn challenged the validity of vaccine mandates.

(4) Ultimately, what happened in reality is not important, and it did not matter that the Henry Proceedings were commenced in the Supreme Court of NSW. Any ordinary person reading the CC Fundraiser Page would have been able to assess that funds raised through the Constitutional Challenge campaign would be spent on litigation challenging vaccine mandates in Australia, including the Henry Proceedings.

(5) The applicant does not understand the generality of the crowdfunding campaigns which were very broad in scope to anticipate leaders "moving the goal posts frequently, seemingly every day."

(6) The vaccine mandates were administrative rather than legal decisions which have to be challenged in the Supreme Court of NSW by way of judicial review.

[727]

Read in isolation, the final particular of the CC Fundraiser Page which refers to the Federal Circuit Court or the Federal Court, is at odds with the ultimate destination of a vast portion of the funds raised: the Henry Proceedings. First, we are not satisfied that even were the funds spent on a wholly different purpose that this proves the representation was misleading when made. Circumstances may have changed.
Secondly, as was said by Gordon J in Dukemaster at [10], "it would be wrong to select particular words or acts which although misleading in isolation do not have that character when viewed in context". When the page is read as a whole (on the assumption its tenor did not materially change), the campaign is directed toward both "State and Commonwealth Governments" and impugns legislation that "requires medical practitioners to prescribe government-mandated medical services" as constitutionally invalid. The page is clear that "no law in this country" could do so and specifically that "[t]he States have no power to pass laws mandating any form of vaccination". The Henry Proceedings, albeit brought in the Supreme Court of NSW, challenge the constitutionality of a provision conferring power on the State government to mandate vaccines. There is a significant correlation between the proceedings the respondent expressly contemplated on the CC Fundraiser Page and the proceedings that were, in fact, commenced. The fact that the funds were not substantially spent on "a test case in either the Federal Circuit Court or the Federal Court" does not necessarily mean that the CC Fundraiser Page was, in fact, misleading, when first posted.
In any event, the Tribunal is not satisfied that there has been a misleading representation in circumstances where the applicant has not pointed to the specific point in time after which the CC Fundraiser Page was posted in which it became misleading, and has not framed their case this way. Merely contending that the respondent 'in fact' did not commence the proceedings in the same forum where he originally conveyed he would, by spending the money on the Henry Proceedings or other proceedings, does not go far enough.
Moreover, if we are being asked to construe the impugned statement as representative of a state of affairs which changed (i.e. it later became apparent that the matter would or could not be pursued in a federal court) and thereby became false and misleading (which for reasons adverted to above we do not consider we were asked to do) the respondent's evidence as to the updates contained on the CC Fundraiser Page is relevant. The following exchange occurred in cross examination of the respondent:

[728]

"Q. I want to suggest to you that the scope of the campaign you represented to people that the moneys would be spent on was a campaign or was litigation that would be in a Federal Court?

A. That's what it said at the time of creating the crowdfunding, but then there were updates along the way because the State governments kept moving the goalposts.

Q. And that those public health orders - there was no challenge in those Henry proceedings to any public health order in respect of any Territory other than New South Wales?

A. Correct.

Q. I want to put to you that in spending the moneys from the GoFundMe page raised as a result of the fundraiser page we see starting at page 43 on the Henry proceedings at first instance and appeal, that that was outside the scope of the purpose for which you had said in the fundraiser that the moneys would be spent?

A. No. I reject that. There were 32 updates along the way which brought it well within the scope. Everybody knew that it was a challenge to vaccination mandates and shortly after both the Court of Appeal - the Henry in the Court of Appeal matter, shortly after that all States and Territories scrapped their vaccination mandates, so these proceedings did have an impact on society's expectations on what State and Territory governments were going to do.

...

Q. I want to suggest to you that you accepted that the fundraiser page foreshadowed litigation in a Federal Court in a constitutional challenge and that by expending the moneys on the Henry proceedings which were in the Supreme Court, not a Federal Court and not a constitutional challenge affecting multiple States, you spent the money on litigation that was outside the scope of what you had put in the fundraiser page. Do you agree with that?

A. No. I reject that. Everybody knew that I was commencing proceedings in New South Wales. It was in an update.

Q. Mr Buckley, the Henry proceedings were not commenced until the second half of 2021, correct?

A. Yes.

Q. You posted this fundraiser on about May 2020?

A. Yes.

Q. So for a full year you were fundraising in relation to this fundraiser before the Henry proceedings were even in contemplation, correct?

A. Yes. It didn't matter what Court the proceedings commenced in.

Q. I want to suggest to you, Mr Buckley, it did because you're a solicitor and you represented on the update that you were raising funds with a $10 million target and that--

A. Which changed.

Q. --and that the litigation would be in a Federal Court, so I want to suggest it does matter when a solicitor makes a representation like that in public when they're soliciting funds. Do you agree with that?

A. No. There were updates along the way. That was the purpose of making the updates, 32 of them."

[740]

The CC Fundraiser Page was created on 9 May 2020. The page refers to events which occurred later, such as 19 August 2020 and 3 August 2021. It is apparent that the contents of the CC Fundraiser Page were updated on more than one occasion. The Tribunal is not aware of the exact times at which the respondent updated the page. We construe it from the last date just mentioned, which we take as the date it was made.
The CC Fundraiser Page is brimming with confidence and was apt to instil in the reader a sense of the extreme likelihood of the success of the proposed challenge. We consider the page to be an overly buoyant account of the unconstitutionality and invalidity of laws. With the exception of a reference to the risks of an adverse costs order being made "if we lose", contained in the Update to the CC Fundraiser Page posted on 20 May 2020, there is no mention in the body of the CC Fundraiser Page of contrary arguments or the risks of litigation generally, or the special risks of a constitutional argument which had not been put in this exact form before, meaning the argument was therefore novel.
The Tribunal has taken into account the fact that a campaign designed to elicit funding from the public for a specific cause could be expected by readers to be slanted to some degree. However, the respondent is a solicitor who has a duty to ensure that the promotional material he posts is not false, misleading or deceptive. Despite the challenge being novel, the respondent did not advert to the possibility that the challenge may fail, or at the very least, articulate any counterargument to his sweeping statements as to the specific lawmaking powers of the State and Commonwealth Governments which had not yet been the subject of any ruling. This is the case, despite the reference to a "legal battle ahead".
The respondent's representation as to the chance of litigation success was therefore misleading or deceptive or likely to mislead or deceive contrary to r 36.1.2 of the Conduct Rules.

[907]

The strongest point for the applicant, is that the respondent said in his 7 February 2024 affidavit the emphasised words "or any amount to be set aside for any potential adverse costs order". However, we do not consider these words to be sufficiently clear to ground a conclusion that, at the time of the post, no amount was intended to go towards a costs order, rather than no specific amount. The respondent's statement that the fundraising target "did not cover any estimate for any adverse costs order" because the applicant in the proceedings had entered into a Costs Agreement assuming the risk of any costs order, also does not go far enough to demonstrate that at the time the respondent made the statement on the SA Fundraiser Page, he did not have a reasonable basis to represent otherwise.
We do not consider that these statements, particularly in light of the respondent's denials in cross examination, are clear enough. The costs agreement referred to is not in evidence before the Tribunal. We do not know that the extract from the November statement is reflective of the position at the time when the impugned words were posted. We do not know whether the impugned statement was made before or after the applicant had entered into a Costs Agreement with the Law Practice assuming the risk of an adverse costs order, or before or after the respondent had indeed secured an applicant for the matter in question.
We can infer that, at a certain point in time, the juxtaposition between the existence of a Costs Agreement which secured the applicant's liability for any adverse costs order, and the respondent's explanation as to the $200,000 fundraising target being for a potential adverse costs order, meant that on its face, the statement the subject of Ground 2 was false. A reader, not knowing a costs agreement was in place, could have been misled. However, this is not the way the applicant has framed its case, that the statement at some point in time became misleading. This was not put to the respondent in cross examination. We reiterate that we consider the applicant's case to be that the respondent, at the time of making the statement, knew the funds would not go toward an adverse costs order and misled prospective donors at that time. We are not satisfied that the applicant has discharged its onus to establish that the respondent did not have a reasonable basis for making the statement at the time it was made, in circumstances where it is not clear when the statement was made and, therefore, whether the respondent had knowledge that the funds would not be spent towards a potential adverse costs order.
For completeness, to the extent that the applicant has suggested that the respondent made the statement with a deliberate intention to use a considerable proportion of the funds raised for his own benefit, the Tribunal rejects the proposition. It appears to be an allegation of fraud, the seriousness of which would need to be clearly articulated and met with cogent proof, and we do not consider this to have been done.

[943]

The respondent's reference to conducting proceedings in the Supreme Court of Victoria "at first instance" indicates that the respondent had an intention, at the time he created the RA Fundraiser Page, to commence proceedings in the Supreme Court of Victoria which could eventuate in the High Court. Given the nature of the contest, the Tribunal does not consider that this was an untenable, or unreasonable, outlook.
However, a reasonable reader of the RA Fundraiser Page, construing the respondent's statement that the challenge would be "in the High Court", should not be expected to infer that what this really meant, is that the challenge would be commenced in the Supreme Court of Victoria and then, possibly, eventuate in the High Court. The representation on the RA Fundraiser Page is unequivocal. The respondent has not clearly articulated his intentions as to the trajectory of the proceedings.
We have taken into account that the factual circumstances clearly changed from the point at which the respondent first represented that the proceedings would be commenced in the High Court, noting that the quantum of the funds raised was $27,000 while the fundraising goal was $1 million. This could be a reason why the proceedings contemplated by the respondent in the RA Fundraiser Page eventuated in VCAT, by necessity and due to a shortfall in funding. This does not, of itself, mean that the respondent's representation was without reasonable grounds. However, the respondent has given evidence that even at the time he represented the proceedings would be commenced in the High Court, he intended that those proceedings commence in the Supreme Court of Victoria at first instance.
The Tribunal is therefore satisfied that the respondent did not have reasonable grounds for making the representation on the RA Fundraiser Page that proceedings the subject of donations would be commenced in the High Court, when the November statement makes clear his intention that those proceedings would, in fact, be commenced in the Supreme Court of Victoria. Although the statement was not necessarily false, because it reflected the respondent's likely intention at the time to have the proceedings eventuate in the High Court, his statement was apt to mislead. The respondent has failed to ensure that his representation was not misleading or deceptive or likely to mislead and deceive in accordance with r 36.1 of the Conduct Rules.

[1024]

The Tribunal is not satisfied that the respondent's representation on the VA Fundraiser Page that he "had instructions" to commence a class action on behalf of three named plaintiffs and that the proceedings would be "filed in the Supreme Court of Victora" was false, misleading or deceptive or likely to mislead or deceive in light of the above extract. The evidence in the November statement, which the respondent was not cross examined on, suggests that he had received instructions of the kind which he represented he had received on the VA Fundraiser Page. There is no disjunct between the respondent's evidence as to the state of the affairs underlying the representation and the representation itself.
Additionally, proceedings claiming compensation in relation to orders and directions arising from the lockdown were commenced by the respondent on behalf of one of the plaintiffs named in the VA Fundraiser Page (albeit in the VCAT jurisdiction). These two factors mean we cannot discount the possibility that the respondent had an intention to commence proceedings in the way he initially represented on the VA Fundraiser Page, at the time he authored the page; however, things may have changed. Simply because the respondent acted contrary to the representation does not mean there was never a reasonable basis for making it. The Tribunal is not prepared to rely on the benefit of hindsight to infer that the respondent's unchallenged evidence lacks veracity.
We turn next to the applicant's submission that the fact that by 2 May 2023 the funds in the St George Bank account holding the monies raised was empty, and that a large sum of funds was unaccounted for, grounds an inference that those monies were spent on matters outside the scope of the Victoria Class Action campaign. The Tribunal declines to so infer. The applicant has not brought a case on the basis of misappropriated funds. The mere fact that over two years after the representation on the VA Fundraiser was made, there may have been funds spent elsewhere, does not mean at the time the respondent made the representation that it was false, misleading or deceptive.

[1053]

As there has been a breach of the Conduct Rules, the Tribunal is satisfied that the respondent's conduct in relation Ground 1 constitutes unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law.
In Asuzu, the Tribunal stated that the term "substantial" should be taken as referring to a failure to meet the requisite standard in a way that is meaningful or relevant to the legal practitioner's ability to practise law: at [40]. The connection between the respondent's raising of funds for proposed litigation to be conducted by his Law Practice, and his practice of law within the meaning of s 297(1)(a), is clear.
While the connection may not be as close as, for example, breaching a direct undertaking to the court or misappropriating a client's funds, raising money from the public to conduct litigation is, nevertheless, sufficiently connected to the practice of law to raise the question as to whether the breach of conduct is "substantial".
The respondent's status as a solicitor, which was clear from the face of the material comprising the Constitutional Challenge campaign, would have given readers a degree of confidence in the reliability of his representations. Indeed, the representations made on the CC Fundraiser Page, the Update and the CC Facebook posts were designed to spur some readers to donate money to the campaign. A reader could expect the respondent to opine on topics with some authority. In this sense, the respondent took advantage of his status as a solicitor, even if that was inadvertent.
The overly buoyant language of the CC Fundraiser Page, which provided an unbalanced account of the apparent invalidity of the laws he sought to challenge, is an example of the respondent breaching his obligation to ensure his promotional material was not false or misleading. Moreover, the Update reflects a contrived account of the basis for a $9 million increase to the fundraising target, when the respondent made clear in his response that the amount of the target did not matter, he simply wanted to "raise as much money as possible". The respondent did not approach his crowdfunding with the degree of care that was required of him as a solicitor. The consequences of his failure are substantial because his misrepresentations were lent the authority of his status as a solicitor. The respondent has failed to meet the expected standard of competence and diligence in a substantial way, and the Tribunal is satisfied that the respondent has engaged in professional misconduct under s 297(1)(a).

Parties

Applicant/Plaintiff:

Council of the Law Society of New South Wales

Respondent/Defendant:

Buckley [2025] NSWCATOD 98;

Legislation Cited (10)

Practices Act 1974

Consumer Act 2010

Information Act 1982

Profession Uniform Law Application Act 2014

Legal Profession Act 2004

Australian Solicitors' Conduct Rules 2022

Discrimination Act 1992

Health and Wellbeing Act 2008

Profession Uniform Law Australian Solicitors' Conduct Rules 2015

Health Act 2010

Cases Cited (85)

A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1

Allianz Australia Insurance Ltd v Haddad [2015] NSWCA 186

Ambergate Ltd v CMA Corporation Ltd (Administrators Appointed) [2016] FCA 94

APLA Ltd v Legal Services Commissioner of New South Wales (2005) 224 CLR 322; [2005] HCA 44

Australia Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640; [2013] HCA 54

Australian Competition and Consumer Commission v Dukemaster Pty Ltd [2009] FCA 682

Australian Competition and Consumer Commission v Employsure Pty Ltd [2021] FCAFC 142

Australian Competition and Consumer Commission v Woolworths Limited [2019] FCA 1039

Barristers' Board v Darveniza [2000] QCA 253

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146

Buckley v Council of the Law Society of New South Wales [2022] NSWSC 328

Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592; [2004] HCA 60

Campbell v Backoffice Investments Pty Ltd (2009) 238 CLR 304; [2009] HCA 25

Campomar Sociedad Limitada v Nike International Limited (2000) 202 CLR 45; [2000] HCA 12

Council of the Law Society of New South Wales v Buckley [2024] NSWCATOD 44

Council of the Law Society of New South Wales v Clifton [2021] NSWCA 340

Council of the Law Society of New South Wales v Green [2022] NSWCA 257

Council of the Law Society of New South Wales v King [2018] NSWCATOD 157

Council of the Law Society of New South Wales v Li [2024] NSWCA 218

Council of the Law Society of New South Wales v Michael Arthur Hislop [2019] NSWCA 302

Council of the Law Society of New South Wales v Parente [2019] NSWCA 33

Council of the Law Society of New South Wales v Sideris (No 2) [2024] NSWCATOD 121

Council of the Law Society of New South Wales v Sideris [2025] NSWCA 159

Council of the Law Society of New South Wales v Webb [2013] NSWCA 423

Council of the Law Society of New South Wales v Zhukovska [2020] NSWCA 163

Council of the Law Society of NSW v Yoon [2019] NSWCATOD 28

Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209

Council of the New South Wales Bar Association v BRJ (No 2) [2015] NSWCATOD 140

Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407

Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75

Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339

Council of the New South Wales Bar Association v Siggins [2021] NSWCA 40

Council of the New South Wales Bar Association v Waterstreet (No 2) [2025] NSWCATOD 4

Council of the NSW Bar Association v Thorpe [2020] NSWCATOD 133

de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299

Donaghy v Council of the Law Society of NSW (No 2) [2015] NSWCA 224

Ex parte Lenehan (1948) 77 CLR 403; [1948] HCA 45

Kassam v Hazzard; Henry v Hazzard [2021] NSWCA 299

Kassam v Hazzard; Henry v Hazzard [2021] NSWSC 1320

Law Society of New South Wales v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408

Law Society of New South Wales v Walsh [1997] NSWCA 185

Legal Practitioners Conduct Board v Kerin [2006] SASC 393; (2006) 246 LSJS 371

Legal Profession Complaints Committee v Megan Maree In de Braekt [2013] WASC 124

Legal Services Commissioner v Rushford (2012) 38 VR 141; [2012] VSC 632

Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357; [2010] HCA 31

Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449

New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

Notesco Pty Ltd v Australian Financial Complaints Authority Ltd [2022] NSWSC 285

Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd [1982] HCA 44; (1982) 149 CLR 191

Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719

Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173

Pramoko v Grande Enterprises Ltd [2015] WASCA 157

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Qasim v Health Care Complaints Commission [2015] NSWCA 282

Qasim v Medical Council of New South Wales [2021] NSWCA 173

Samsung Electronics Australia Pty Ltd v LG Electronics Australia Pty Ltd [2015] FCA 227

Stanoevski v Council of the Law Society of New South Wales [2008] NSWCA 93

Tangsilsat v Council of Law Society of New South Wales [2019] NSWCA 144

The Council of the Law Society of New South Wales v Australian Injury Helpline Limited (2008) 71 NSWLR 715; [2008] NSWSC 627

The Prothonotary of the Supreme Court of NSW v "A" (a pseudonym) [2023] NSWCA 258

Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

(1938) 60 CLR 336

(2000) 202 CLR 45

(2021) 106 NSWLR 383

(1984) 2 FCR 82

(2012) 38 VR 141

(2010) 241 CLR 357

(1968) 117 CLR 177

(2005) 224 CLR 322

(2013) 250 CLR 640

(1948) 77 CLR 403

(1994) 34 NSWLR 408

(2001) 52 NSWLR 279

(2008) 71 NSWLR 715

(2004) 216 CLR 253

(2004) 218 CLR 592

(2009) 238 CLR 304

(1997) 43 NSWLR 42

(1992) 110 ALR 449

(1982) 149 CLR 191

(1998) 194 CLR 355

(1957) 97 CLR 279

(1949) 79 CLR 201

Cited By (2)

Council of the Law Society of New South Wales v Kazas-Rogaris

Star Training Academy Pty Ltd v Commissioner of Police, NSW Police Force

Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98;

At a glance

Court

Decision date

Before

Source

Judgment (1083 paragraphs)

Parties

Legislation Cited (10)

Cases Cited (85)

Cited By (2)