Council of the Law Society of New South Wales v CZD

NCAT Occupational|2017-04-03

ster of Disciplinary Action maintained by the Office of the Legal Services Commissioner on its webpage or elsewhere. (4) Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication or broadcast of any reports of these proceedings in the Tribunal unless all the persons, places or entities referred to in Order 1 have been de-identified. (5) Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication of any evidence given before the Tribunal in these proceedings, whether in public or in private, which refers to the Respondent's husband, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal that refer to the Respondent's husband. (6) Pursuant to r 42(5)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) and until further order, there shall be no third-party access to any documents held by the Registry in relation to these proceedings, including but not limited to evidence, transcripts of proceedings, applications and written submissions that refer to the Respondent's husband. (7) Notwithstanding Orders 1-6, there may be disclosure or publication of any of the matters referred to in those orders as follows: (a) where permitted pursuant to s 462 of the Legal Profession Uniform Law (NSW); and/or (b) through the sharing of information between the Applicant, the Legal Services Commissioner and the Council of the New South Wale Bar Association as provided in s 158 of the Legal Profession Uniform Law Application Act 2014 (NSW); and/or (c) through the sharing of information with any entity or body equivalent to the Applicant, the Legal Services Commissioner or the Council of the New South Wales Bar Association in another jurisdiction for the purposes of the performance of the functions of any of the Applicant, the Legal Services Commissioner or the Council of the New South Wales Bar Association or the equivalent entity or body under the Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014 (NSW) or equivalent legislation in another jurisdiction. Note that s 582(3) of the Legal Profession Act 2004 (NSW) (repealed) requires that the name and other identifying particulars of the person against whom disciplinary action is taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action. Note that s 577 of the Legal Profession Act 2004 (NSW) (repealed) states that the Register of Disciplinary Action is to include: the full name of the person against whom disciplinary action was taken; the person's business address or former business address; the person's home jurisdiction or most recent home jurisdiction; the particulars of the disciplinary action taken; and other particulars prescribed by the regulations. Note that r 173 of the Legal Profession Regulation 2005 (NSW) (repealed) states that the following must be included in the Register for Disciplinary Action in relation to a person: the person's professional capacity in which the conduct complained occurred; the regulatory authority that took the disciplinary action; the date of the decision and if different, the date the disciplinary action was taken; a description or summary of the conduct that is the subject of the disciplinary action; and the date and jurisdiction of the person's first and each later admission to the legal profession.

REASONs FOR DECISION

CZD, a pseudonym, is and was at all times relevant to these proceedings, the holder of a practising certificate issued by the Council of the Law Society of New South Wales (the Society). She was first admitted to practice as a legal practitioner on 5 July 1985 and has practised continuously since that time. Since 2001, she has been a principal of the law practice in which she works.
On 31 August 2016, the Society made application to the Tribunal for disciplinary findings and orders against CZD. The finding sought by the Society is that CZD was guilty of professional misconduct on a number of grounds arising from the events shortly to be discussed. The orders sought by the Society are that CZD be reprimanded and that she pay the costs of this application.
CZD has accepted, since first being provided with details of the complaint against her, that the conduct of which complaint is made constitutes unsatisfactory professional conduct. She does not accept that her conduct, as identified in the particulars to the complaint, constitutes professional misconduct. Further, she accepts that she should be reprimanded for that conduct but given her early concession, both as to matters of fact relied upon by the Society and her acknowledgment that those facts constituted unsatisfactory professional conduct, she does not accept that she should be required to pay the Society's costs of this application.
Our reasons for accepting that the Respondent should only be known by the pseudonym CZD and otherwise should not be identified by any material included in these reasons will be later explained. Our reasons substantially reflect those identified by Deputy President Boland ADCJ in Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 at [7] and [51] (CZD No 1). Further, after the hearing of the proceedings before us concluded, the parties agreed upon and provided to us a form of orders appropriate to be made so as to achieve the anonymity that CZD sought.

Applicable law

The complaint, initially made by the Legal Services Commissioner and referred to the Society for investigation, is dated 23 March 2015. Further, the particulars of the complaint or, on one view, a further complaint arising from the same event were provided to the Society on 4 May and 20 May respectively. The complaint or complaints arise from conduct committed between February and May 2015. Each complaint therefore related to conduct for which complaint was made and which was under investigation before 1 July 2015 when the Legal Practitioners Act 2004 (NSW) (the 2004 Act) was repealed and the Legal Profession Uniform Law (NSW) (the Uniform Law) commenced.
While the proceedings were instituted under the provisions of the Uniform Law, the parties agree that the provisions of the 2004 Act govern the determination of these proceedings. That follows, so it is submitted, from the application of the transitional provision in cl 23 of Pt 3 of Sch 4 to the Uniform Law (Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 at [61]-[73]). We accept that submission.

Conduct founding the complaints

The actions of CZD that found the complaints are not in contest. On 22 December 2011 an elderly lady, who it is convenient to identify as "T", signed both an Enduring Power of Attorney (the PoA) and an Enduring Appointment of Guardian (the AG). Neither CZD nor her firm had any involvement in the preparation of those documents.
Each document nominated T's husband as her attorney and guardian respectively. In the event that T's husband predeceased her, each document appointed T's two daughters, who it is convenient to refer to as "C" and "S" as alternative attorneys and guardians respectively. T's husband died in 2012 so that C and S thereafter became the operative appointees under each document.
CZD was first consulted by C on 4 February 2015. Prior to that consultation, C had been seen by an employed solicitor of CZD's firm. That solicitor recognised that the instructions from C involved work outside his expertise and, as a consequence, he informed C that he would refer her matter to CZD. The employed solicitor made a detailed note of the information provided at the initial consultation. He noted that advice was sought as to the appointment of a guardian for the affairs of T. C had informed him that T was 85 years of age, frail and suffering early onset dementia.
The information also recorded by CZD's employed solicitor was that S, together with her husband and daughter, had recently moved into the home of T. Shortly thereafter, C was forbidden by S and/or her daughter from making any regular contact with T. S insisted that C only see her mother, T, by appointment and that any appointment be confined to a Monday.
Having visited her mother, C claimed that T was not being provided with adequate food; that T had lost "significant weight" and that her home was kept locked from the inside so that T could not readily leave, even in an emergency. C further stated in her initial interview with CZD's employed solicitor that S, or her daughter, were withdrawing sums of money from T's bank account for unexplained purposes and had also been selling some of T's assets without any authority from C.
At the consultation between CZD and C on 4 February 2015, the instructions previously provided to CZD's employed solicitor were discussed. C informed CZD that C and S were "jointly and severally" the attorneys and guardians of T under the PoA and the AG. Each of those documents was then produced to CZD.
In the belief that the PoA and AG were both current and original documents, CZD arranged for three photocopies of each document to be taken in her office. Having obtained those photocopies, CZD then fixed a stamp, ordinarily kept by an absent employee who was a Justice of the Peace, to the front page of each photocopy. The imprint of the stamp read: "I certify this and the following ___ pages to be a true and correct copy of the original documents. _________________ Solicitor/Justice of the Peace".
In the space provided by the imprint, the front of each photocopied document was signed by CZD after deleting reference to the words "Justice of the Peace". As CZD contemplated seeking a guardianship order in respect of T's affairs, the purpose of obtaining photocopies was to provide them as authority for her to obtain evidence on behalf of C to support an application to be made by C for a guardianship order.
The certified copies were placed on C's file and the documents she had provided to CZD on that day were returned to her. At that consultation, C repeated to CZD the allegation that she had made about the treatment of T by S and her family. She stated that when she telephoned S for an appointment to see T, the telephone number she called was rarely answered.
In providing instructions to CZD, C stated that her application to the Guardianship Tribunal should be for an order "either to have S removed as a co-guardian and co-attorney for T or for an order that C and S be required to act jointly when making any decision concerning T's welfare." As CZD indicated to C that she would require evidence to support the application to the Tribunal, C provided the names of T's general practitioner, her specialist geriatrician and the branch of the Commonwealth Bank (the Bank) at which accounts were held in the name of T.
On 4 March 2015, CZD wrote to T's general practitioner requesting a copy of T's clinical notes and medical reports. Attached to her letter was an authority signed by C as well as one of the certified copies of each of the PoA and AG.
On 6 March 2015 CZD wrote to T's specialist geriatrician seeking copies of T's medical reports together with "details of her assessments and treatments." An authority signed by C together with one of the certified copies of the AG accompanied that letter.
On 16 March 2015, T's specialist geriatrician wrote to CZD, stating his fee for providing the reports required and indicating that upon payment of that fee the report and documents requested would be provided. Having obtained instructions from C to do so, CZD then paid the fee sought.
The reports requested from the specialist geriatrician were received by CZD on 31 March 2015. Those reports confirmed the instruction received from C that T was suffering "mild dementia" with "significant cognitive impairment on serial testing."
On 29 April 2015, CZD wrote again to T's general practitioner following up her earlier request for clinical notes and reports. No response had been received to the letter of 4 March making that request.
On that same date, CZD wrote to the branch of the Bank at which T held accounts. The information sought was for "transaction histories of three named accounts from 1 January 2013 to date." Accompanying the request was a copy of the PoA together with an authority signed by C.
On 30 April 2015, CZD received a letter by facsimile from the medical practice of T's general practitioner. The letter stated that the practice did not have a copy of a "current Power of Attorney or Enduring Guardianship" for T, noting that the copy provided by CZD was dated 2011. The letter further stated that T's general practitioner had spoken to both T and to S who had advised "that there is no current Power of Attorney or Enduring Guardianship is [sic] in place."
Believing that the author of the 30 April letter had mistakenly believed that the PoA and AG did not have current effect because they were each dated in 2011, CZD responded by letter dated 1 May, reiterating that the certified copy documents that she had previously provided were current. She repeated her request for the documents sought in the letter of 4 March.
By letter dated 5 May 2015 and sent by facsimile, T's general practitioner forwarded to CZD copies of an Enduring Power of Attorney and Enduring Appointment of Guardian, each dated 15 January 2014. Each document nominated only S to be T's attorney and guardian respectively. C was not identified in either document.
Upon receipt of the letter and accompanying documents, CZD forwarded them to C for instructions. At no time prior to receipt of the facsimile dated 5 May had CZD been told that the PoA and AG had been superseded.
In addition to sending copies of the documents received on 5 May to C, CZD telephoned her, requesting that she call to discuss these documents. In response to that request, C came to CZD's office on 12 May 2015. At that meeting, C said to CZD words to the following effect: "I have never been told that I am no longer mum's co-attorney or guardian.
On 14 May 2015, CZD received by facsimile a letter from solicitors acting for T and stating that the firm held the original PoA and AG dated 22 December 2011, those documents having been kept in safe custody by that firm since their execution. As a consequence, it was asserted that CZD could not have correctly certified copies of those documents to be a "true and correct copy" of the originals as the latter had never been in the possession of CZD. The letter further indicates awareness that information had been sought from T's general practitioner, her specialist geriatrician and from the Bank. The solicitors requested that CZD cease seeking confidential information in respect of T without proper authority to do so.
CZD stated that until receipt of that letter, she was unaware that the documents provided to her by C on 4 February 2015 were not originals of the December 2011 documents. She immediately advised C of this fact.
On 14 May 2015, CZD responded to the letter received that day from T's solicitors. She acknowledged that the documents sent to T's general practitioner, specialist geriatrician and Bank had been incorrectly certified by her. She also recorded that C had not been informed of the revocation of her office as co-Attorney and Guardian for T (cf s 47 Powers of Attorney Act 2003 (NSW)).
On 19 May 2015 the branch manager of the Bank wrote to CZD, stating that the documents sought in the letter of 29 April would not be provided as the certified copy of the PoA was not the current authority held by the Bank, being one dated 2014. That letter was not received by CZD until 22 May who responded on that same day indicating that the request for information was made in good faith, as CZD's client had received no notice of the revocation of the PoA upon which reliance had been placed.
The complaint made to the Legal Services Commissioner by the solicitors acting for T initially referred to the copies of the PoA and AG certified by CZD and provided with the request for reports from T's general practitioner. Subsequently, they added to the complaint the use of the certified copies for information sought from T's specialist geriatrician and the Bank, although when the complaint concerning information sought from T's general practitioner was first raised with CZD, not only did she identify the circumstances in which this had occurred, conformably with the recitation of facts earlier set out, but also disclosed that she had also sought information from T's specialist geriatrician and Bank, relying upon the copied documents that she had certified.

Grounds for application

The Society contends that the conduct described constitutes professional misconduct because CZD: "(1) Certified copies of a Power of Attorney as a true and correct copy of the original document without seeing the original. (2) Certified copies of a form of enduring guardianship as a true and correct copy of the original document without seeing the original. (3) Used a falsely certified copy of a form of Enduring Guardianship to obtain medical records from a Geriatrician. (4) Attempted to use falsely certified copies of a: a. Form of Enduring Guardianship to obtain medical records from a General Practitioner; and b. Power of Attorney to obtain financial information from the Commonwealth Bank of Australia.
Despite the manner in which the Society's Application dissects the conduct of CZD, it may readily be appreciated from the recitation of facts earlier given that it is her conduct flowing from one over-arching event. The event was the certification on 4 February 2015 that photocopies of documents then provided to her by C were true and correct copies of original documents. Her error was either not carefully examining C as to whether the documents were, in fact, original documents or otherwise not satisfying herself that the documents were original.
Once the documents were certified as true copies of the original documents, albeit erroneously, the subsequent use of those certified copies was for the proper purpose of implementing her client's instructions. The fact that C was unaware, when providing instructions to CZD, that her appointment as co-attorney and co-guardian of and for T had not been superseded has not been challenged by the Society.
We are therefore of the opinion that had the photocopies of the 2011 document been certified by C, rather than CZD, as true copies of the original documents, the actions of CZD in seeking the information that she did from the two medical practitioners in question and from the Bank, based upon copy documents certified by C, would not be conduct that could be impugned in any way. There is no evidence before us to suggest that the photocopies certified by CZD did not reflect the original form and terms of the 2011 documents.

Characterisation of CZD's conduct

As we have said, the conduct of CZD that is the subject of the complaints giving rise to the present proceedings is not in issue. As a consequence, we are satisfied that the facts upon which the Society relies have been established. What remains in issue is whether that conduct should be characterised as professional misconduct, as the Society contends, or unsatisfactory professional conduct, as CZD accepts her conduct to have been.
The two concepts that are in issue between the parties in terms of characterising the conduct of CZD are separately identified in ss 496 and 497 of the 2004 Act. Those sections are in the following terms: "496 Unsatisfactory professional conduct For the purposes of this Act: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise that in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (c) For finding that an Australian legal practitioner is not a fit and proper and person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters. The Society's case
The Society contends that there are "three routes" by which we may conclude that CZD has engaged in professional misconduct. Those routes are described as being: a. section 497(1)(a) of the Act: unsatisfactory professional conduct involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; b. section 497(1)(b) of the Act: conduct which would justify a finding that [CZD] is not a fit and proper person to engage in legal practice; and c. the common law test.
As will appear, the Society contends that all three routes lead to the conclusion that CZD was guilty of professional misconduct. It so contends on the basis that the conduct be considered cumulatively as well as separately.
The common law test for professional misconduct upon which it relies is that articulated in Allinson v General Council of Medical Education and Registration [1894] QBD 750. At 758 Lopes LJ was addressing the concept of "infamous conduct in a professional respect" and concluded that it meant conduct "which would be reasonably regarded as disgraceful or dishonourable" by other members of the profession. A test in similar terms was applied by the Full Court of the Supreme Court of New South Wales in Re Hodgekiss [1962] SR (NSW) 340 at 351.
The Society submits that each of the letters sent by CZD to the general practitioner, the specialist geriatrician and to the Bank constituted a "separate misleading act, and the falsely certified copies of the EG and POA were merely supporting documents". It further contends that the description given to those separate acts as misleading was appropriate because: 1. CZD failed to reconsider her position in light of the responses by the general practitioner to CZD's request for information; and 2. her failure to withdraw her request to the Bank for information after being put on notice by the general practitioner and solicitors acting for T as to the error made by CZD.
In its submissions, the Society also sought to add an additional element of CZD's conduct that is said to support the seriousness of that conduct. The Society claimed that in responding to T's general practitioner on 29 April and again on 1 May 2015, having regards to the terms in which CZD wrote her letters, were discourteous with the consequence that they should be taken into account in assessing the conduct of CZD to be "false and misleading".
Apart from what might be seen as the non sequitur in the last proposition, we do not intend to entertain this aspect of the Society's contentions. While discourtesy can be a description of conduct that attracts the operation of either s 496 or s 497 of the 2004 Act, alleged discourtesy in the correspondence from CZD forms no part of the particulars given when the Society filed its application for disciplinary findings, identifying the four grounds on which CZD should be found guilty of professional misconduct. To allow such an allegation to be made in the course of submissions would be unfair, not only because discourtesy itself was not the subject of complaint but also because the two letters in question were identified by the Society in its particulars of the grounds of complaint without any reference to the terms in which they were each framed as supporting the allegation of false and misleading conduct.
Discourtesy by a practitioner can, itself, identify conduct that engages either s496 or s 497 of the 2004 Act (Donaghy v Council of the Law Society of NSW (No 3) [2014] NSWCATOD 32 at [68]-[85]; Griffin v Council of the Law Society of NSW at [111]-[113]. Reliance upon discourtesy should not therefore be entertained unless the subject of express complaint or, at the very least, as a particular given of related misconduct that is alleged.
Considered cumulatively, the Society submits that the conduct of CZD demonstrated "a consistent (in the sense of repeated) failure" to maintain a reasonable standard of competence and diligence by falsely certifying the copies of the PoA and the AG and also engaging in "false and misleading conduct" in relying upon the "falsely certified copies" of those documents in order to obtain or seek production of private information. Reference to that "consistent (in the sense of repeated) failure" was intended to identify observations made by the former Administrative Decisions Tribunal in Council of the NSW Bar Association v Asuzu [2011] NSWADT 209 at [38]-[43]. There, the Tribunal said, in the context of s 497(1)(a) of the 2004 Act, that the word "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 practice law: at [40]. In the same case, the Tribunal determined at [43] that in order to constitute a "consistent" failure within the meaning of the subsection, "there would need to be repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle or acting in the same inappropriate way in a variety of situations".
In the present case, the Society submitted that the failure was "substantial" having regard to the circumstances that: 1. the certification of the copies was false and misleading; and 2. reliance was placed upon the incorrectly certified copies to seek production of private documents and private information concerning T. A further allegation in this respect was made by reference to the allegedly discourteous terms in which CZD wrote to the general practitioner. However, for reasons earlier stated, we do not rely upon any allegation of discourtesy in determining this matter.
Finally, the Society submits that the facts supporting each of the four grounds of complaint, when viewed individually, themselves amount to professional misconduct. It does that by applying the formula of words used in s 497(1)(a) and (b) of the 2004 Act to those facts. In essence, however, those submissions turn upon the same bases as are said to support the cumulative impact submission, namely that CZD falsely certified the two relevant documents and then sought to rely upon those documents in order to obtain information to which privacy legislation would apply and would otherwise require should not be disclosed. In this context, it is clear beyond conjecture, that the purpose of the certification of the PoA and the AE was to provide a basis upon which personal information pertaining to T could be obtained.

The Society's case should not be accepted

We do not accept that the conduct of CZD should be characterised as being professional misconduct within the meaning of s 497 of the 2004 Act. Going immediately to the provisions of s 497(1)(b), there is no evidence before us to support a contention that CZD is not a fit and proper person to engage in legal practice. Her propriety and competence as a legal practitioner is the subject of praiseworthy and unchallenged evidence before us from two long standing and experienced judges of the District Court, practising senior counsel as well as her partner in her present legal practice. Each have testified as to her good fame and character, in the knowledge the Society's complaint against her. In addition, the circumstance that the only disciplinary order sought by the Society is a reprimand, speaks against any contention that CZD is not a fit and proper person to engage in legal practice.
The Society also agrees that in 31 years of practice, there have been no substantiated complaint made against CZD. As a consequence, our focus must be upon the conduct earlier detailed, as it occurred between February and May 2015 and not upon her current fitness to practice.
In her evidence, CZD testified as to her belief that the PoA and AG were all originals at the time at which they were copied in her office for the purpose of certifying those copies of the originals that she had seen. In cross-examination before us, CZD was not challenged on her belief that the documents provided to her by C were original documents at the time at which she certified copies of them. As CZD stated in her affidavit evidence, she had no intention to deceive or mislead anyone when providing those certified copies to each of T's general practitioner, specialist geriatrician and Bank. Further, she had no reason to disbelieve her instructions, when received from C on 4 February 2015, that the documents then produced to her did not reflect the current position that C was the co-attorney and co-guardian of T.
The PoA apparently provide by C to CZD on 4 February was produced under subpoena to the Tribunal. On being shown that document in the witness box, CZD stated that on its face, it was not apparent that it was not an original document although she now knows and accepts that solicitors acting for T had held the PoA in safe custody since the time of its execution. The document was tendered and seen by us. To the extent that it is relevant, the document appeared to us to be a high-quality copy, with at least one of the signatures appearing on it having the appearance of an original signature. The evidence certainly supports a contention that, at least on a cursory examination, the document had the appearance of an original albeit that closer examination or closer questioning of C might have revealed it to be otherwise.
In assessing the characterisation of CZD's conduct, we consider it important to remember that she was at all times acting on the instructions of C as to her appointment as co-attorney and co-guardian and whose instructions in that regard did not alter until the conclusion of the events that we have described. Relevantly, C had no notice that her appointment had been revoked or superseded by the documents executed on 15 January 2014. In the absence of knowledge of those documents, CZD was seeking to implement her client's instructions in circumstances where C was concerned for the welfare of her elderly mother who was suffering the early onset of dementia. That condition was confirmed in the report provided by T's specialist geriatrician, so giving apparent substance to C's concern for her mother's welfare.
Having regard to T's condition, CZD was anxious to obtain evidence for the purpose of a guardianship application in circumstances where both the physical welfare and assets of T were said by C to be under threat. Those circumstances would explain the terms in which CZD wrote to the general practitioner on 29 April and again on 1 May 2015, in light of what can only be descried as a disingenuous response from the general practitioner on 30 April to the request made by CZD for information concerning T. Once CZD received the medical practitioner's response on 5 May, providing copies of the January 2014 documents, CZD ceased to press for any of the information earlier sought, including that earlier sought from T's bank. Having received those documents on 5 February, she immediately sought instructions from C. Further, she had done nothing further to pursue information when, on 14 May, she received the letter from the solicitors acting for T, stating that they retained the original documents executed on 22 December 2011.
It is important to focus upon that letter of 14 May. While the emailed letter from T's general practitioner on 4 May had given grounds for belief that the documents provided by C had been superseded, that letter provided no basis for CZD to believe that she had erred in certifying copies of the 2011 documents. That realisation only came upon receipt of the 14 May.
Whether viewed collectively or individually, we do not consider the conduct of CZD constitutes professional misconduct either by reference to s 497 of the 2004 Act nor by reference to the common law understanding of such conduct. In the context of s 497(1)(a), her conduct was neither substantial nor consistent. Further, for reasons earlier given, it could not be said that CZD was not a fit and proper person to engage in legal practice.
CZD properly acknowledged that the making of a knowingly false statement by a legal practitioner to a third party "is prima facie professional misconduct" (Respondent's submissions at [65]). However, we find that her conduct was not knowingly false and misleading. We accept her evidence that she believed the PoA and AG provided by C were original documents and that they were current. While she acknowledged error in certifying copies of the documents in the circumstances now known to her, that conduct was not intentional. It reflected a single incident when her error was either failing to enquire from C whether the documents then produced were original documents or requiring C to certify that the copies made were true copies of the original documents that C had seen and signed.
We accept the submission on behalf of CZD that her conduct is analogous to that considered in Xu v Council of the Law Society of New South Wales [2009] NSWCA 430; (2009) 236 FLR 480. That case involved a practitioner who had carelessly signed a statutory certificate without reading and checking it; did not see his client sign the document nor did he advise her in relation to a "cooling-off" period that was available under the relevant statutory provisions, but for the certificate. Initially, the Administrative Appeals Tribunal found that the solicitor was guilty of professional misconduct in so acting. However, that finding was overturned on appeal to the Court of Appeal where Handley AJA held (Tobias and Basten JJA agreeing) at [42] that the solicitor's actions, regardless of their consequences, were momentary and isolated lapses. At [59] his Honour held that there was no evidence of repetition of such conduct in other transactions although he observed that the action of the solicitor in that case "was incredibly sloppy" and "irresponsible". The single transaction by which CZD certified the copy documents in the context of the present case bears close analogy to those circumstances considered in Xu.
The reference to what is, in effect, a single incident of inadvertence renders a description of the conduct as being "consistent" within the meaning of s 497(1)(a), as inapt. We accept the description of that conduct in the written submissions prepared on behalf of CZD as constituting a single overarching mistake.
That description of CJD's conduct also warrants consideration in the context of that considered by the Court of Appeal in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423. The solicitor in that case had failed to seek confirmatory instructions from his client/purchasers in ten transactions in which his initial instructions were received from a mortgage broker who was providing finance to those purchasers. Even in that circumstance, the Court of Appeal determined that the Tribunal at first instance was not in error in rejecting the Society's submission that consistent failure within the meaning of s 497(1)(a) had not been established. In his leading judgment, Meagher JA (Leeming JA and Simpson J agreeing) said at [26]: The references to the need for the failures or mistakes to occur in a 'variety of situations' or for them to be 'repeated in other transactions' emphasises that it is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being 'consistent'. The fact they have that quality makes it likely that the explanation for the conduct is a want of fitness or competence rather than a series of casual or uncharacteristic lapses or, as in this case, a single overarching mistake made in the context of related transactions.
In the case before us, we find that there was a "single overarching mistake" made by CZD. It was as a consequence of that mistake that led to her correspondence with the medical practitioners and Bank to which we have referred. This does not constitute a series of individual errors necessary to engage the provisions of s 497(1)(a).
We have earlier cited the common law test for professional misconduct. That test, along with the statutory definition under the 2004 Act was considered by the Court of Appeal in Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130. In that case, a complaint of professional misconduct had been made by the Legal Services Commissioner, alleging that the solicitor had deliberately charged excessive costs in contravention of s 208Q(2) of the 2004 Act. Hodgson JA at [93] expressed his agreement with McColl JA that "for conduct to amount to professional misconduct according to general law principles, there must be significant personal misconduct, either deliberate or negligent." In her judgment, McColl JA expressed her conclusion at [170] in the following terms: In my opinion in order to find the practitioner has deliberately charged the client grossly excessive amounts of costs it is necessary to prove that he or she intended to so charge or was recklessly careless as to that consequence.
In Pillai v Messiter (No.2) (1989) 16 NSWLR 197, the Court of Appeal addressed a complaint of misconduct against a medical practitioner. In his decision, Kirby P determined that professional misconduct or as expressed in the legislation then being considered "misconduct in a professional respect", required something more than "mere professional incompetence or by deficiencies in the practice of the profession" (Kirby P at 200).
At CZD submitted, she did not knowingly or recklessly seek to deceive the respective medical practitioners or the Bank in seeking the information that she did on behalf of her client. As she has accepted, she made a mistake in certifying copies of the 2011 documents provided to her by C and that in so doing she was inadvertent rather than deliberate in the course that she took, that being the consequence of extenuating circumstances rather than indifference on her part. As Mr Fordham SC, who with Ms A Rose appeared for CZD, further submitted: 1. the actions of CZD in ceasing to rely upon the 2011 documents when she became aware on 5 May 2015 that they had been superseded; 2. her immediate acknowledgment of the mistake when advised by the solicitors for T that they held the original 2011 documents; 3. her admission of mistake to the Society and expression of regret when first confronted with the complaint on 27 May 2015; and 4. her cooperation with the Society throughout the investigation, including her volunteering the fact that she had sought information from T's specialist geriatrician and from the bank when the Society's first letter of a complaint was confined to information sought from the general practitioner, are all factors consistent with a demonstration of candour and co-operation. They are actions that are inconsistent with the implicit, if not explicit, allegations of dishonesty inherent in the manner in which the Society has framed its complaints against CZD.
The extenuating circumstances to which we have referred are the subject of unchallenged evidence led by or on behalf of CZD. They are the subject of independent evidence provided to us as well as evidence from CZD herself. As summarised at [91] of the submissions prepared by Mr Fordham, those extenuating circumstances include that: 1. the Respondent was unwell when she met with C on 4 February 2015; 2. at the time she was in pain, anxious about her prognosis following surgery that she had recently undergone, particularly because it was more extensive than had been anticipated by her surgeon; 3. at the time she was seeking to cope with serious health issues suffered by her husband, including mental health issues; 4. those issues, in turn, necessitated assistance with his management, both physical and financial; and 5. she was the primary breadwinner and unable to rely upon her husband either for financial support or for support in managing her own anxiety following her surgery.
These factors, as is now fully appreciated in hindsight, impinged upon her capacity to undertake her professional work with the care she ordinarily applied to it for a period from February 2015 until the second half of that year. From May 2015, her level of anxiety was increased by the realisation that she had incorrectly certified the 2011 documents provided to her by C.
While CZD acknowledges that these matters do not absolve her from responsibility for her conduct in certifying the documents in February 2015 they do underlie the error that she made and provide factors in mitigation of her conduct. We accept that to be a fair explanation of mitigating circumstances relevant to the error that CZD committed.

Summary on characterisation of conduct

The actions of CZD in certifying copies of the 2011 PoA and AG fell short of the standard of competence and, particularly in this case, the diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner in this State. The failure to check more thoroughly that the documents with which she was provided by C in February 2015 were original documents when certifying photocopies of those documents exhibited inadvertence that, given the purpose for which the certified copies were to be used, ought not to have occurred on the part of a competent and diligent legal practitioner.
Nonetheless, the conduct of CZD in so doing was not deliberate nor recklessly indifferent to the consequences of such conduct. Further, there is no evidence that conduct of the kind that founds the present complaint reflects errors or omissions occurring in any other aspect of her practice. Given the absence of any such evidence, the personal circumstances of CZD at the time at which the error was made and the nature of her subsequent conduct as earlier described, we are satisfied that CZD has properly accepted her conduct to have constituted unsatisfactory professional conduct. We are not satisfied that such conduct amounts to professional misconduct as identified in either s 497 of the 2004 Act or under the general law.
Consistent with our reasons for finding that CZD is guilty only of unsatisfactory professional conduct, the reprimand sought by the Society seems to us to be an appropriate and proportionate disciplinary order. As we have recorded, it is one accepted by CZD. We propose to make an order accordingly.

Costs

CZD opposes the Society's application that she pays its costs of this application. In opposing the application, she relies upon her early admission of error and willingness to accept the sanction sought by the Society, a position she made apparent prior to the present application for disciplinary orders being filed in the Tribunal. The evidence relied upon by CZD in this regard may be briefly stated.
The Society first notified CZD of the complaint made to the Legal Services Commissioner by letter dated 14 May 2015. The complaint, as then identified, related only to the provision of certified copies of the PoA and AG to T's general practitioner for the purpose of obtaining a report. By further letter dated 26 May, the Society indicated to CZD that a response was not required to its earlier letter at that point in time as the complainant solicitors had raised "additional complaints".
Nonetheless, by letter dated 27 May 2015, CZD did respond to the Society's initial letter. In her letter, she acknowledged that she had wrongly certified the December 2011 documents, expressing her regret for so doing and acknowledging, with hindsight, what she should have done to give effect to her client's instructions. Although not specifically the subject of the complaint then notified to her, CZD disclosed her request for information, accompanied by the certified documents in question, from each of the medical practitioners earlier identified as well as the Bank. Copies of her correspondence with the Bank and with the solicitors acting for T, ultimately the complainants, were annexed to her letter of 27 May.
By letter dated 12 August 2015, the Society extended the ambit of the compliant to include use of the certified copy documents in support of the request for information from T's specialist geriatrician and from her bank. In her response of 28 August 2015, CZD reminded the Society that she had addressed the additional complaints in her letter of 27 May, notwithstanding that the additional complaints had not then been the subject of complaint raised with her. In her letter, she also responded to specific questions asked of her and reiterated her "regret" about what she had done, denying any intention on her part to deceive those to whom her request and accompanying documents were sent. She also stated that in 30 years of practice she had "never erred with respect to [her] professional duties". The stress under which she laboured in February 2015, together with the basis for it, was also identified.
In response to a notice from the Society dated 23 November 2015, CZD provided a statutory declaration setting out, in detail, the instructions she received from T, the circumstances in which the certified copies of the PoA and AG were prepared and the personal circumstances under which she was labouring at that time. None of her statements in that statutory declaration were then challenged by the Society nor have they been challenged in the course of the hearing before us.
Finally, when advised that the Society's Professional Conduct Committee was to consider the complaint, a detailed submission was provided to the Society on behalf CZD by Carol Webster SC. That submission related the facts and circumstances provided in evidence before us, recited relevant authority, acknowledged that the conduct of CZD constituted unsatisfactory professional conduct and accepted that a reprimand was the appropriate disciplinary action. Attached to the submission were the character and professional references to which earlier reference has been made, being the same references that were tendered at the hearing before us. Ultimately, Ms Webster's submission contended that the complaint then being considered by the Society's Committee could appropriately be resolved under s 540 of the 2004 Act, accepting that the Society would be satisfied that CZD would be found by the Tribunal to have engaged in unsatisfactory professional conduct, satisfied that CZD was generally "competent and diligent" and also satisfied that taking action under the section was justified, having regard to the circumstances of the case: s 540(1)(b).
The evidence addressed in this context satisfies us that there is substance in the submission now made on behalf of CZD as to the costs of the present application. The complaint made to the Tribunal raised no issue of fact that was contentious nor did it raise any issue as to the terms of an appropriate sanction. Each of these matters were accepted before the application was made to the Tribunal. Moreover, nothing by way of evidence was addressed before us that rendered it more likely than not that CZD's conduct would properly be characterised as professional misconduct rather than unsatisfactory professional conduct.
While we acknowledge that the Society had a discretion to resolve the complaint under s 540, we acknowledge that the foundation for so doing was its satisfaction that there was a reasonable likelihood that CZD would be found by the Tribunal to have engaged in unsatisfactory professional conduct. Having determined that it was so satisfied, the exercise of discretion to commence proceedings on that basis is one that could not be criticised as unreasonable. However, had it proceeded on the basis of the satisfaction identified in s 540(1)(b), the proceedings would have been disposed of at far less cost then was ultimately incurred by each party. Indeed, as the Deputy President observed in CZD No 1 at [6], the circumstances that we have identified required consideration of the matter being resolved by a consent instrument under s 564 of the 2004 Act. Regrettably, that course was not pursued because the Society sought to propound the basis for the orders sought as being professional misconduct on the part of CZD.
In the circumstances, while we are disposed to make an order for costs, we consider that CZD should only be required to pay 50% of the Society's costs.

Non-publication order

It is beyond argument that, conformably with s 49(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (the Tribunal Act) and with general principles of open justice, proceedings of the present kind should be open to the public. That principle extends not only to publication of the Tribunal's reasons for decision but to the naming of the parties to those proceedings. In the case of proceedings under the Uniform Law, that principle is reinforced by cl 22(1) of Sch 5 to the Tribunal Act.
However, the general principle just identified, whether at law or under the Tribunal Act, is subject to exceptions. So much is acknowledged in cl 22(2) of Sch 5 to the Tribunal Act. Relevantly, s 64 of the Tribunal Act provides: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings.
The basis upon which CZD seeks to invoke the provisions of s 64 may be simply stated. The application is essentially founded upon the welfare of her husband. He is a practising barrister who since, at least, 2014 has been suffering significant health issues. Apart from a diagnosed cardiac problem, he is suffering a significant psychiatric disorder to which an identified addiction is related.
Medical evidence from the husband's treating psychiatrist and treating cardiologist has been tendered before us without objection from the Society. Neither medical specialist was required for cross examination upon their evidence. Each has identified the treatment given to the husband for his medical conditions which are now said to have been stabilised. However, each medical specialist has expressed the opinion that if there is any public disclosure of the husband's medical condition, it is likely that his condition would deteriorate, thereby increasing his risk of morbidity and mortality. The treating psychiatrist stated that any deterioration in his present condition, occasioned by public disclosure, would probably render him incapable of ever working again.
We have earlier stated that the stress under which CZD was working in the first part of 2015 was not only caused by the surgery she had recently undergone but also by the state of health of her husband and the consequence that was having upon their mutual well-being. As is apparent from our reasons, the state of health of CZD at the time of the events that give rise to the present proceedings is an important element of her case and bears particularly upon our acceptance of the proposed disciplinary order.
Each of CZD and her husband is well known in the community in which they live and practice their profession. Disclosure of the name of CZD in these reasons, as her husband's medical condition bears upon the explanation for her conduct, will clearly lead to the identification of her husband. The likely impact on his health if his wife's name is disclosed, founds the application for both the use of a pseudonym and limitation of disclosure of other matters that may be the subject of s 64 of the Tribunal Act.
We accept the medical evidence that was tendered and the impact that CZD contends is likely to be had upon her husband's health if her name is disclosed. We are therefore satisfied that it is appropriate to make orders under s 64 in the terms that have been agreed between the parties.

ORDERS

For the Reasons stated, we find that the conduct of CZD as alleged in the Society's complaint and each of the grounds for it, constitutes unsatisfactory professional conduct within the meaning of s 496 of the 2004 Act. We are not satisfied that such conduct constitutes professional misconduct within the meaning of s 497. As a consequence, we make the following orders:

A. - Disciplinary Orders 1. Order that the Respondent be reprimanded. 2. Order that the Respondent pay 50% of the Applicant's costs.

B. - Publication Restrictions By consent: 1. Pursuant to s 64(1)(a) and (4) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, the following shall not be disclosed in the Tribunal's reasons for decision: 1. the name of the Respondent's husband or anything that identifies him or is likely to lead to his identification; 2. the name of the Respondent or anything that identifies her or is likely to lead to her identification; 3. the name of the Respondent's law firm or any employed solicitor that works at the firm; 4. the name of the other partner at the Respondent's law firm or anything that identifies him or is likely to lead to his identification; and 5. the name of the town where the Respondent and her husband live. 1. In conformity with the Interlocutory Decision of Boland ADCJ dated 3 March 2017, that the Respondent be referred to by the pseudonym "CZD". 2. That no citation or hyperlink to the decisions of this Tribunal be included in the entry for these proceedings on the Register of Disciplinary Action maintained by the Office of the Legal Services Commissioner on its webpage or elsewhere. 3. Pursuant to s 64(1)(b) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication or broadcast of any reports of these proceedings in the Tribunal unless all the persons, places or entities referred to in Order 1 have been de-identified. 4. Pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) and until further order, there shall be no publication of any evidence given before the Tribunal in these proceedings, whether in public or in private, which refers to the Respondent's husband, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal that refer to the Respondent's husband. 5. Pursuant to r 42(5)(c) of the Civil and Administrative Tribunal Rules 2014 (NSW) and until further order, there shall be no third-party access to any documents held by the Registry in relation to these proceedings, including but not limited to evidence, transcripts of proceedings, applications and written submissions that refer to the Respondent's husband. 6. Notwithstanding Orders 1-6, there may be disclosure or publication of any of the matters referred to in those orders as follows: 1. where permitted pursuant to s 462 of the Legal Profession Uniform Law (NSW); and/or 2. through the sharing of information between the Applicant, the Legal Services Commissioner and the Council of the New South Wale Bar Association as provided in s 158 of the Legal Profession Uniform Law Application Act 2014 (NSW); and/or 3. through the sharing of information with any entity or body equivalent to the Applicant, the Legal Services Commissioner or the Council of the New South Wales Bar Association in another jurisdiction for the purposes of the performance of the functions of any of the Applicant, the Legal Services Commissioner or the Council of the New South Wales Bar Association or the equivalent entity or body under the Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014 (NSW) or equivalent legislation in another jurisdiction. Note that s 582(3) of the Legal Profession Act 2004 (NSW) (repealed) requires that the name and other identifying particulars of the person against whom disciplinary action is taken, and the kind of disciplinary action taken, must be recorded in the Register of Disciplinary Action. Note that s 577 of the Legal Profession Act 2004 (NSW) (repealed) states that the Register of Disciplinary Action is to include: the full name of the person against whom disciplinary action was taken; the person's business address or former business address; the person's home jurisdiction or most recent home jurisdiction; the particulars of the disciplinary action taken; and other particulars prescribed by the regulations. Note that r 173 of the Legal Profession Regulation 2005 (NSW) (repealed) states that the following must be included in the Register for Disciplinary Action in relation to a person: the person's professional capacity in which the conduct complained occurred; the regulatory authority that took the disciplinary action; the date of the decision and if different, the date the disciplinary action was taken; a description or summary of the conduct that is the subject of the disciplinary action; and the date and jurisdiction of the person's first and each later admission to the legal profession.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 27 October 2017 - Paragraph 5 - date changed in first sentence DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 27 October 2017

Legal Profession Act 2004(NSW)

Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014(NSW)

Legal Profession Regulation 2005(NSW)

Legal Practitioners Act 2004(NSW)

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