Council of the Law Society of New South Wales v Fisher - [2021] NSWCATOD 73 - NSWCATOD 2021 case summary — Zoe

NSWNSWCATOD

Council of the Law Society of New South Wales v Fisher

[2021] NSWCATOD 73

NCAT Occupational|2021-05-24|Before: Armstrong J

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Source facts

Court

NCAT Occupational

Decision date

2021-05-24

Before

Armstrong J

Source

Original judgment source is linked above.

Judgment (44 paragraphs)

[1]

Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104 Council of the Law Society of New South Wales v Konstantinidis (No 3) [2020] NSWCATOD 91 Council of the Law Society of New South Wales v Lewis [2019] NSWCATOD 100 Council of the Law Society of NSW v Marando [2018] NSWCATOD 194 Council of the Law Society of New South Wales v Morgan [2015] NSWCATOD 71 Council of the Law Society of New South Wales v Panopoulos [2010] NSWADT 208 Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 Council of the Law Society of NSW v Powell [2019] NSWCATOD 24 Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40 Council of the Law Society of New South Wales v Thornton [2020] NSWCATOD 103 Ghosh v Health Care Complaints Commission [2020] NSWCA 353 Hawkins v Gaden (1925) 37 CLR 183 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of NSW v Moulton (1981) 2 NSWLR 736 Law Society of NSW v Pitsikas [2006] NSWADT 102 Law Society of New South Wales v Thompson [2018] NSWCATOD 57 Law Society of New South Wales v Waterhouse [2002] NSWADT 204 Legal Profession Complaints Committee v Detata [2012] WASCA 214 Legal Services Commissioner v DRA [2018] NSWCATOD 107 Medical Council of New South Wales v Lee [2017] NSWCA 282 Myles v Holiday Retreats Australia Pty Ltd t/as Rivergum Holiday Park (No 2) [2018] NSWCATCD 78 Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 110 ALR 449 New South Wales Bar Association v Meakes [2006] NSWCA 340 Simsek v MacPhee [1982] 148 CLR 636 Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 Udall v Capri Lighting Ltd (in liq) [1988] QB 907 Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATAD 56 Texts Cited: Nil Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Catherine Bridget Fisher (Respondent) Representation: Counsel: P Maddigan (Applicant) (for interlocutory hearing on 23 April 2021 only)

[2]

[3]

Introduction

On 28 January 2020, the Council of the Law Society of New South Wales (the Law Society or Society) applied to the Occupational Division of the Tribunal for disciplinary findings and orders under the Legal Profession Uniform Law (NSW) (Uniform Law) in respect of Catherine Bridget Fisher (the Respondent). While the Respondent does not currently hold a practising certificate, she remains admitted to the roll of solicitors in this State. The Law Society alleges that the Respondent is guilty of professional misconduct on the grounds that she breached a condition of her practising certificate and failed to comply with an undertaking she gave to the Law Society in 2015 in relation to the issue to her of an unrestricted practising certificate. The Society seeks orders that she be reprimanded and pay the costs of the Society.
The Respondent denies that her conduct amounts to professional misconduct (or unsatisfactory professional conduct). She admits signing the undertaking in question but says that the undertaking did not, on its terms, apply to her situation, or alternatively that it was impossible for her to comply with it given her individual circumstances. She also says that if the Tribunal finds that she is guilty of professional misconduct (or unsatisfactory professional conduct), exceptional circumstances exist such that she should not be required to pay the Law Society's costs.
These reasons for decision address the first stage of proceedings (the liability stage), that is, whether the Tribunal should make adverse disciplinary findings against the Respondent. It is only if the Tribunal finds that the Respondent has engaged in professional misconduct (or unsatisfactory professional conduct), that the question of appropriate disciplinary orders (or "penalty") would fall to be determined in a second stage of proceedings (the penalty stage). Arguments about the awarding of costs can also be addressed at a later stage in the proceedings.
For the reasons that follow, we find that the Respondent is guilty of professional misconduct. We also make some directions in relation to the next stage of these proceedings.

[4]

Background

The Respondent was admitted as a solicitor in NSW in 1999, and held a practising certificate at intermittent periods between then and 2017. She completed a practice management course in 1999 shortly after being admitted. She worked as a government lawyer in supervised legal practice from 2000 to 2010. Her evidence is that she has not engaged in legal practice since 2010.
On or about 15 July 2015, she wrote to the Law Society seeking "reinstatement of an unrestricted practising certificate", referring to the fact that her "last practising certificate was 30 June 2010". She said she had submitted an application for an unrestricted practising certificate in 2013 (where fees were reimbursed due to her ill health), and that she has suffered ill health since 2010. She stated that: "I wish to continue practising as a principal sole practitioner (in much better health!)".
The practice of the Law Society is that where a solicitor applies for an unsupervised practising certificate after having let a certificate lapse for more than 5 years, the application is not automatically approved. The Society's Licensing Committee reviews the application to decide if the lawyer should have any conditions added to the certificate, e.g. to undertake a practice management course in order to practise as a principal. Here, the Licensing Committee resolved (on 17 August 2015) to issue the Respondent with a practising certificate authorising her to engage in unsupervised legal practice (subject to a condition as to continuing professional development) and that she be required to provide the Law Society with an undertaking to complete the next applicable Practice Management Course. A discretionary condition to this effect was also placed on her practising certificate.
The Respondent gave an undertaking on 1 September 2015 (the Undertaking) to the Law Society, which was notified to the Society on 15 September 2015. The Undertaking, with the accompanying preamble, is as follows: "Practitioners admitted after 1 January 1986 and becoming a principal for the first time in New South Wales on or after 1 July 1992 are required to attend a Practice Management Course. An undertaking to do so will be accepted by the Society to enable a solicitor to commence practising as a principal before completing the Course. To facilitate the processing of your practice changes, please complete, sign and return the undertaking below to the above address. UNDERTAKING: I, the above-named, undertake to complete the next applicable Practice Management Course where there is a position available."
The Respondent did not complete a Practice Management Course after giving the Undertaking.
The Law Society wrote to the Respondent on 24 February 2016 (the receipt of that letter is disputed) in which the Society foreshadowed that the Respondent may not have completed a course and sought confirmation of enrolment within 14 days. The letter also stated that a breach of practising certificate conditions and undertakings is a matter for referral to the Society's Professional Standards Department. No reply was received by the Society.
On 18 May 2016, the Society wrote another reminder letter to the Respondent, stating if no response was received, the matter would be referred to the Licensing Committee for consideration and referral to the Professional Standards Department for failure to comply with a solicitor's undertaking. The Society's evidence is that this letter may not have been sent to the Respondent due to a "technical" issue. If sent, the Society did not receive a response.
The Respondent's practising certificate was renewed for 2016/2017.
On 5 October 2016 the Law Society sent the Respondent a letter headed "Reminder", referring to previous correspondence from the Society concerning the Respondent's undertaking to complete an approved Practice Management Course. The letter further stated: "The Law Society's records indicate that you gave an undertaking to complete the 'next applicable and available Practice Management Course' when you varied your practising certificate to a Principal practising certificate. To date, the Law Society has not received advice that you have completed this course and has not received a response to our initial letter concerning enrolment in the course. If no response is received by 10 October 2016, the matter will be referred to the Society's Licensing Committee for consideration and referral to the Professional Standards Department for failure to comply with a solicitor's undertaking." Under the heading "Advice of Enrolment", the Respondent was then invited to provide details of a course she has enrolled in.
On 24 October 2016, the Licensing Committee resolved to refer the Respondent to the Professional Standards Department. The Law Society has no letter on file notifying the Respondent about the resolution.
In response to the Society's letter dated 5 October 2016, the Respondent wrote in an undated letter received by the Society on 1 November 2016: "Thank you for your reminder to attend a Practice Management Course (Sole practitioners) and apologies for the delay in response, as I have been working in remote areas. I have been unable to secure a place in November sessions (through Law Society or FRMC Legal) as they are full. The next sessions are not until 2017."
The Law Society initiated complaints against the Respondent on 14 December 2016. Those complaints were opened in the Office of the Legal Services Commissioner on 15 December 2016.
By letter dated 3 January 2017 the Law Society wrote to the Respondent to advise that a complaint had been initiated against her, it was a disciplinary matter, and the text of the complaint was that she had contravened a condition of her practising certificate, and failed to comply with her undertaking to the Society. The letter called for a response within 21 days. No response was received from the Respondent.
It is unknown what action (if any) the Law Society took for the remainder of 2017, other than notifying the Respondent in December 2017 that there had been a change of officer within the Law Society handling her file. The delay is unexplained.
The Respondent did not apply for a renewal of her practising certificate for 2017/18. She ceased to hold a practising certificate from 1 July 2017.
The Law Society posted a letter dated 28 February 2018 to the Respondent, which elicited brief responses from the Respondent on 6 and 9 March 2018. The Respondent provided written submissions dated 14 March 2018, which stated that prior correspondence about the failure to comply with the Undertaking had not been received by her until 8 February 2018. (That date appears to be a typographical error as the relevant correspondence from the Law Society is dated 28 February 2018.) In her submissions, the Respondent also stated that she had endeavoured to comply with the Undertaking, but was "unable to secure a place in 2016". She stated that she could not attend the "next applicable" Practice Management Course, in the first half of 2017, as she was "unavailable" because she was hospitalised on 2 occasions; financially unable to comply; and visiting remote areas. She also stated that she did not think that the Undertaking was applicable to her because she was not practising, and apologised for this "oversight".
On 21 June 2018, a sub-committee of the Professional Conduct Committee resolved to send the Respondent a letter seeking her submissions with regard to the sub-committee's preliminary view that her conduct may amount to professional misconduct.
After an extension of time, the Respondent provided further submissions to the Society by statutory declaration on 21 August 2018. She said that she had been given information by the Society about becoming an 'associate member'; she had not been given information about, nor an opportunity to request, a discretionary exemption; she had been under significant stress in her life during this time (she provided some details), and gave further information about why she did not believe the Undertaking was applicable to her (which was because she was not a practising solicitor, and "not putting anyone in jeopardy or at risk by my not completing the Practice Management Course…which [she] had already completed in 1999").
On 26 June 2018, a Law Society officer said to the Respondent in a phone discussion that if she did not intend to practise in the future, the Society may accept an undertaking to that effect and would not continue with the complaint. The Respondent did not give any such undertaking.
On 13 December 2018 the Society's Professional Conduct Committee resolved to initiate and prosecute proceedings against the Respondent in the Tribunal pursuant to s 300(1)(b) of the Uniform Law. The Committee indicated in its reasons for decision that it had considered whether the alleged conduct may amount to professional misconduct as opposed to unsatisfactory professional conduct, and that the Committee was not satisfied that the taking of action under s 299 of the Uniform Law was justified "having regard to all the circumstances of the case (including the seriousness of the alleged conduct and the exculpatory material)".

[5]

Brief procedural history

Disciplinary proceedings were initiated by the Society in the Tribunal on 12 June 2019 (proceedings 2019/18537). The Tribunal found that those proceedings were affected by procedural defects, and by order dated 7 August 2019, by consent, dismissed the proceedings without any order for costs. On 28 January 2020, the Law Society recommenced proceedings pursuant to cl 23(5)(a) of Sch 9 to the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), which authorised recommencement of proceedings no later than 6 months after the day on which cl 23 commenced operation, which was 22 November 2019.
With respect to the recommenced proceedings, the Tribunal made orders and directions to progress the matter for hearing, and a hearing date was set for 1 July 2020 (by audio visual link). The Respondent wrote to the Registry on 22 June 2020 saying she was unwell and could not attend the hearing by video, attaching a medical certificate. She requested that the matter be dealt with "on the papers" on the basis of the written material before the Tribunal, as an alternative to an adjournment. The Law Society did not object, and the hearing date of 1 July 2020 was vacated. At a directions hearing on 21 August 2020, an order was made (by consent), under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), to dispense with a hearing such that the Tribunal may determine these proceedings on the papers without a hearing. The Tribunal also noted in its orders that the proceedings would be determined in one stage (that is, disciplinary findings and penalty, if any, would be determined together) and not in two stages.
At the same directions hearing on 21 August 2020, the Tribunal directed the Law Society to file and serve an amended application, in order to correct a typographical error in the wording of the relevant undertaking referred to in par 1 of the application (the word "when" was replaced with the word "where"). The Society subsequently filed an amended application on 25 August 2020.
In November 2020, a solicitor for the Law Society wrote to the Tribunal (copying the Respondent). That letter stated in part: "In accordance with Rules 19.6 and 19.8 of the Legal Profession Uniform Law Australian Solicitors Conduct Rules 2015 I am required to inform the Tribunal of any binding authority known to me and which I have reasonable grounds to believe to be directly in point against the applicant's case." The letter then drew attention to the judgment of the Court of Appeal in Carr v Council of the Law Society of New South Wales [2020] NSWCA 276 (Carr), published on 4 November 2020. The Tribunal subsequently made directions for the parties to file and serve submissions concerning the relevance of that decision to these proceedings.
Separately, the Tribunal (as now constituted) sought a relisting in order to take oral submissions from the parties as to whether, notwithstanding the previous order made by the Tribunal on 21 August 2020 under s 50(2) of the NCAT Act that a hearing in this matter be dispensed with, a hearing is nonetheless required under the Uniform Law and the Application Act in relation to whether the Respondent engaged in professional misconduct (or unsatisfactory professional conduct). This was because the Tribunal (as now constituted) considered this issue to go to its jurisdiction to decide whether the Law Society's allegations as particularised in its application for disciplinary findings are proved.
In a letter from the Registrar dated 9 April 2021, the parties were referred to the NSW Court of Appeal's decision in Ghosh v Health Care Complaints Commission [2020] NSWCA 353 (Ghosh), published on 22 December 2020, in which the Court found that certain provisions in the Health Practitioner Regulation National Law (NSW) (providing for the giving of notice and for a right to attend an inquiry) are inconsistent with, and prevail over, the Tribunal's power under s 50 of the NCAT Act to dispense with a hearing (at [109]). Reference was also made to the Court of Appeal's decision in Medical Council of New South Wales v Lee [2017] NSWCA 282, in particular the judgment of Sackville JA at [85] to [97]. That judgment discussed in some detail the operation of Pt 4, including s 35, of the NCAT Act and the primacy of enabling legislation in the context of the Health Practitioner Regulation National Law.
It was further flagged with the parties that, even if the Tribunal is of the view that s 50(2) of the NCAT is capable of operation in stage one disciplinary proceedings to determine liability under the Uniform Law, the Tribunal may nonetheless take the view that it is not satisfied that the issues in stage one proceedings can be adequately determined in this matter in the absence of the parties and on the basis of the material and submissions lodged by them. Accordingly, it was possible that the Tribunal would revoke the previous order made under s 50(2) of the NCAT Act and list the matter (or at least the stage one proceedings) for a hearing (being a hearing in the presence of the parties).
On 23 April 2021 an interlocutory hearing was held (by telephone) on the jurisdictional issues referred to above. The Respondent reiterated her position that she would prefer this matter to be dealt with "on the papers" as she is not able to attend an "in person" hearing due to her health. She was content for the Tribunal to decide whether or not the matter could be dealt with "on the papers" under s 50(2) of the NCAT Act. The Law Society submitted that s 50(2) of the NCAT Act has continued operation, such as to permit the Tribunal to determine stage one disciplinary proceedings "on the papers" in accordance with s 50(2).
After hearing oral submissions from the parties, the Tribunal declined to express a view on whether s 50(2) continues to operate in light of the provisions of the Uniform Law, Application Act and Sch 5 to the NCAT Act. We make some observations on that question below. The Tribunal indicated that a hearing for stage one of the disciplinary application is preferable in order to deal adequately with the issues to be determined in this matter, and we revoked the order previously made by the Tribunal (differently constituted) under s 50(2) of the NCAT Act that a hearing be dispensed with.
The disciplinary application was listed for a half day telephone hearing on 24 May 2021. The Tribunal noted that the parties were offered an "in person" or audio visual link hearing. The Respondent declined both of these options, indicating that her health prevented her attendance at an in person hearing, that she did not have the technology needed for an audio visual link hearing, and that she preferred a phone hearing. The Law Society did not object to a phone hearing.

[6]

Operation of s 50(2), NCAT Act in context of Uniform Law proceedings

The Health Practitioner Regulation National Law differs in some respects from the legislative scheme applying in NSW in relation to legal disciplinary matters under the Uniform Law. Nonetheless, following the Court of Appeal's decision in Ghosh, we consider there is some doubt as to whether the Tribunal may dispense with a hearing altogether, under s 50(2) of the NCAT Act, to make a finding as to whether the Respondent is guilty of professional misconduct (or unsatisfactory professional conduct) for the purposes of the Uniform Law. It is not necessary for us to decide this question in these proceedings because we made an order on 23 April 2021 that stage one (i.e. liability) proceedings be listed for an oral hearing. We nonetheless think it appropriate to make some observations because we think that legislative amendment would assist in clarifying the question as to the continued operation of s 50(2).
Section 50 is located in Pt 4 (Practice and Procedure) of the NCAT Act. Each of the provisions in Pt 4 is subject to enabling legislation: NCAT Act, s 35. The enabling legislation (defined in s 4(1), NCAT Act) is, for present purposes, the Uniform Law and the Application Act. Proceedings initiated in NCAT under Ch 5 of the Uniform Law "are to be dealt with in accordance with the procedures of the designated tribunal": s 301(1), Uniform Law. Section 301(2) provides that "[s]ubject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing, but is bound by the rules of procedural fairness" (emphasis added).
Part 11 of the Application Act is entitled "Procedures of NCAT as designated tribunal for disciplinary matters". The purpose of Pt 11 is stated to be: "… to provide for the procedures of the designated tribunal as contemplated by section 301 of the [Uniform Law]. Some procedures are covered by the Civil and Administrative Tribunal Act 2013": Application Act, s 135(1). Section 138 (contained in Pt 11) provides that the Tribunal "is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal" (emphasis added). Section 144 (also contained in Pt 11) contains a procedure by which the Tribunal may make orders, with the consent of the respondent lawyer contained in a written instrument, "without conducting or completing a hearing in relation to the complaint". Agreement to the terms of the consent orders must be obtained from the NSW Legal Services Commissioner under s 144. There is no other reference in Pt 11 (or elsewhere) to any other circumstances where the Tribunal is not required to conduct a "hearing" in relation to allegations particularised in a disciplinary application made to the Tribunal (i.e. stage one, or liability, proceedings).
In addition to the references to a "hearing" in Pt 11 of the Application Act, there are a number of other legislative references to a "hearing" in relation to disciplinary applications to the Tribunal under the Uniform Law. Under s 302 of the Uniform Law, the Tribunal's power to make disciplinary orders where a lawyer is found guilty of professional misconduct (or unsatisfactory professional conduct) is available "after [the Tribunal] completed a hearing under [the] Part". There are also references to "hearings" conducted by the Tribunal into allegations of professional misconduct (or unsatisfactory professional conduct) for the purposes of the Uniform Law (or for Occupational Division functions under the Uniform Law) in cll 18, 21, 22 of Sch 5 to the NCAT Act. Clause 21 specifies the persons who are entitled to appear at a hearing conducted by the Tribunal for the purposes of the Uniform Law. Clause 22(1) states that all hearings conducted by the Tribunal into allegations of unsatisfactory professional conduct or professional misconduct for the purposes of the Uniform Law are to be open to the public, unless the Tribunal decides to make an order under s 49 of the NCAT Act.
While s 138 of the Application Act requires a "hearing" to be conducted in relation to whether the allegations in a disciplinary application made under the Uniform Law are proved, s 301(2) of the Uniform Law indicates that NCAT may determine proceedings without conducting a "formal hearing" (subject to the rules of procedural fairness). It is noted that an order made by NCAT under s 50(2) "dispenses" with a "hearing" altogether. There are no definitions of "hearing" or "formal hearing".
The Law Society's submissions are as follows: 1. As a general proposition hearings will be held as provided by s 138 of the Application Act but there are exceptions to this. While it is clear from s 35 of the NCAT Act that the Act is subject to "enabling legislation", this is not an exhaustive statement in legal disciplinary matters. Part 11 of the Application Act applies, which at s 135(1) contemplates that "some of the procedures" in the NCAT Act survive. 2. The question arises as to what the terms "hearing" and "informal hearing" mean. There are no statutory definitions. There is nothing in Second Reading Speech or the Explanatory Memorandum about the meaning of "formal hearing" or "hearing". 3. A formal hearing is one attended by parties, whether in person, by audio visual link or phone. In contrast, an informal hearing is one where parties need not be in attendance. 4. Reference is made to the High Court decision in Simsek v MacPhee [1982] 148 CLR 636 to support the proposition that a case decided on the written materials before the decision-maker is not a formal hearing. Further cases cited for the same proposition are: Council of the NSW Bar Association v Nagle (No 3) [2019] NSWCATOD 26; Myles v Holiday Retreats Australia Pty Ltd t/as Rivergum Holiday Park (No 2) [2018] NSWCATCD 78; Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56. The latter two decisions are said to refer to a "formal hearing" as one which requires the attendance of parties. 5. Section 135(1) of the Application Act contemplates that "some of the procedures" in the NCAT Act apply to disciplinary applications under the Uniform Law, and s 50(2) is one such procedure. 6. The "on the papers" procedure in s 50(2) is an informal hearing for purposes of s 301(2). 7. The Law Society further noted that, to the extent relevant, the Legal Profession Uniform Law Application Act 2014 (Vic) does not include the equivalent of Pt 11 of the NSW Application Act.
The case law referred to by counsel for the Society provides limited assistance in the present context. In Simsek v MacPhee [1982] 148 CLR 636, the High Court referred to the process of the Committee for Determination of Refugee Status as being one which did not operate by means of formal hearings, but instead considered each case on the written materials before it: at [638]-[639]. The Committee made recommendations to the Minister concerning the implementation of the relevant international convention, but unlike NCAT, was neither constituted nor regulated by statute: at [638]-[639].
Counsel referred to Nagle (No 3) in which the Tribunal made an order that a timetable would be fixed for a directions hearing "to be held by way of a formal hearing or a telephone hearing". All this does is to indicate that the Tribunal (as constituted in that matter) conceived a phone hearing as different to a formal hearing, by which we understand the Tribunal to have meant a hearing attended by the parties in person. In the Myles and Ung decisions, the Tribunal Member, who was the same for both cases, referred to a formal hearing as requiring the parties to be present, and made an order under s 50(2) of the NCAT "to dispense with a formal hearing". The language used by the Member, "to dispense with a formal hearing", is not found in the text of s 50(2).
Whether all or part of Tribunal proceedings determined only on the basis of written materials and in the absence of the parties can be characterised as NCAT conducting an "informal hearing" (or, more precisely, a "hearing" that is not a "formal hearing") will depend on the particular statutory scheme. There are no definitions of "hearing" in the NCAT Act, the Application Act, or the Uniform Law, nor is there a definition of "formal hearing" in the Uniform Law.
We tend to the view that the Tribunal conducts a "hearing", in the sense used in s 50(2), where the issues for determination are ventilated in the presence of the parties (whether that presence is in person, by audio visual link, or telephone). While there is no explicit guidance in the extrinsic material to the meaning of the term "hearing" in the NCAT Act, legislative history is of some assistance. The former Administrative Decisions Tribunal Act 1997 (NSW) (ADT Act) contained a predecessor provision to s 50(2) of the NCAT Act, in the following terms (emphasis added): 76 Circumstances in which a hearing may be dispensed with The Tribunal may determine proceedings by considering the documents or other material lodged with or provided to the Tribunal and without holding a hearing if it appears to the Tribunal that the issues for determination can be adequately determined in the absence of the parties. The wording used in the former s 76 assumes that a "hearing" is conducted in the presence of the parties. In our view, the language of both s 50(2), and s 76 as a predecessor provision, is that a "hearing", for the purposes of the NCAT Act (and the former ADT Act), assumes the presence of the parties, but where the issues for determination are decided on the basis of written materials only and in the absence of the parties, a "hearing" is not conducted.
The Law Society submits that, where the Tribunal uses the "on the papers" procedure under s 50(2) to determine stage one proceedings, this method of determination is authorised by s 301(2) of the Uniform Law (as NCAT determines the proceedings "without conducting a formal hearing"). However, it is not clear to us that this approach sits comfortably with s 138 of the Application Act, as well as the express language of s 50(2) which indicates that the Tribunal "dispens[es] with a hearing". As the Court of Appeal indicated in Ghosh, the language of s 50(2) indicates that a "hearing" is dispensed with altogether (at [109]).
The legislative intention behind s 301(2) of the Uniform Law is not entirely clear. While s 301(2) contemplates determination of proceedings without the conducting of a "formal hearing", this sub-section must be read in the context of the overall legislative scheme applying in NSW, which includes, at s 138, the requirement for a hearing in the liability stage of the proceedings. In the context of the NCAT Act at least, we said above that a "hearing" assumes the presence of parties (whether in person, by audio visual link, or by telephone). There is scope for informality in an NCAT hearing - see e.g. s 38(4) of the NCAT Act under which the Tribunal "is to act with as little formality as the circumstances of the case permit…without regard to legal technicalities or legal forms".
In sum, a harmonious reading of s 301(2) with Pt 11 and the NCAT Act would seem to result in the following - the determination of stage one (i.e. liability) proceedings requires a hearing with parties present (and others entitled to appear), or if not present, to have been given a reasonable opportunity to be present; a right for parties (and others entitled to appear) to be legally represented; with the hearing to be held in public (unless an order under s 49 of the NCAT Act is made) and with allowance for informality in line with Tribunal practices (as opposed to more formal Court process and procedure) provided there is compliance with the rules of evidence.
Even if s 301(2) of the Uniform Law can be construed to encompass an "on the papers" procedure under s 50(2) of the NCAT Act, it may be that s 301(2) is capable of operation only in relation to stage two (i.e. penalty) proceedings and cost determinations. A more expansive reading of s 301(2) (i.e. a construction which encompasses an "on the papers" determination for stage one proceedings) would appear to be inconsistent with s 138 of the Application Act, which contains specific and directive language (that is, the Tribunal "is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal").
The Society placed considerable reliance in its submissions on the legislative statement in s 135(1) of the Application Act that "some procedures" in the NCAT Act apply. That does not mean that s 50(2) of the NCAT Act has continued operation for all stages of disciplinary proceedings determined by the Tribunal. As noted earlier, the requirement for a hearing in s 138 of the Application Act applies only to stage one (liability) proceedings. We tend to the view that s 50(2) "on the papers" procedure is capable of continued operation in relation to those parts of disciplinary proceedings under the Uniform Law that concern penalty (in the event of adverse disciplinary findings at an earlier stage), and the awarding of costs.
If, on the other hand, the correct legal position is that s 50(2) of the NCAT Act continues to operate to provide a procedure whereby the Tribunal may determine stage one disciplinary proceedings under the Uniform Law (subject to the requirements of s 50(2) and (3)), we are nonetheless of the view that, in this matter, the Tribunal is not satisfied that it can determine the issues adequately without a hearing (being an oral hearing, in the presence of the parties).

[7]

The application

The allegation contained in the Law Society's amended disciplinary application dated 25 August 2020 is that the Respondent is guilty of professional misconduct because she: contravened a condition of her practising certificate (Ground 1); and failed to comply with her 1 September 2015 undertaking to the Law Society (Ground 2).
The Society set out the following particulars to the grounds alleging professional misconduct: 1. (a) The Respondent was admitted as a lawyer in New South Wales on 27 August 1999. (b) She held a New South Wales practising certificate from: 14 August 2000 to 30 June 2009; 8 July 2009 to 30 June 2010; and 17 August 2015 to 30 June 2017. (c) From 1 July 2017 to the date of the application the Respondent did not hold a New South Wales practising certificate. (d) During the following periods, the Respondent held the following roles: from 14 August 2000 to 30 June 2010, an employee with the Australian Taxation Office; from 1 July 2013, Principal with CB Fisher; and from 17 August 2015 to 30 June 2017, sole practitioner with the entity "Catherine Fisher Solicitor". 1. On 1 September 2015, she completed and signed a document entitled "Practice Management Course Undertaking" (the Undertaking) which stated: "UNDERTAKING: I, the above-named, undertake to complete the next applicable Practice Management Course where there is a position available." 1. On or around 15 September 2015, the Respondent sent the Undertaking to the Law Society. 2. It was a condition of each practising certificate held by the Respondent from 17 August 2015 to 30 June 2017 that she comply with the Undertaking. 3. The Law Society provided dates of various Practice Management Courses held by different course providers on various dates from October 2015 to November 2018. 4. From 1 September 2015 to 13 December 2018, the Respondent did not complete a Practice Management Course. 5. In the circumstances referred to in pars (1) to (6), the Respondent: (a) contravened a condition of her practising certificate; and (b) failed to comply with the Undertaking.

[10]

Professional misconduct

Professional misconduct can occur where the requirements of the statutory definition in s 297(1)(a) or (b) of the Uniform Law are made out. Sections 296 and 297 are as follows: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
It has been accepted by the Court of Appeal and by the Tribunal that the definition of "professional misconduct" in s 297 is inclusive, and only one of either subsections (a) or (b) need be proved: Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 at [62]-[68] (despite that Court observing that the legislative reasoning behind the choice of the conjunctive "and" rather than the disjunctive "or" used in s 297(1) is unclear). Also see e.g. Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 [7]-[11]; Council of the Law Society v Hunter [2021] NSWCATOD 22 at [33] (Hunter); Council of the Law Society v Thornton [2020] NSWCATOD 103 at [33].
Moreover, as the statutory definition of "professional misconduct" is inclusive, there remains the possibility that the conduct in question may constitute professional misconduct as recognised by the common law. This includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency (Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54]). The Court of Appeal noted in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44] that: "…there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside the "generally accepted standard[s] of common decency and common fairness"."

[11]

Breach of undertaking by solicitors

There have been many decisions given by this Tribunal and its predecessors concerning breaches by solicitors of undertakings, and relevantly for these proceedings, undertakings given by solicitors to the Law Society of NSW (or to the Legal Services Commissioner). We refer to, and agree with, what was said in Council of the Law Society of NSW v Powell [2019] NSWCATOD 24 (Powell) at [20]-[21] (emphasis added): "… the legal profession is an honourable one and legal practitioners are expected by the community, by fellow practitioners, and by the relevant regulatory authorities to behave honourably always. It is an everyday occurrence in all areas where lawyers practice that legal practitioners provide undertakings to fellow practitioners and to a wide range of commercial and statutory entities both on their own behalf and on behalf of their clients. Other legal practitioners and commercial and statutory entities rely on compliance with those undertakings in their everyday activities. Such reliance is integral to the efficient and effective functioning of a whole range of activities within our community. It is essential that undertakings given by legal practitioners be genuinely provided and that they be honoured. It is for these reasons that prima facie, a breach by a legal practitioner of an undertaking, whether given during legal practice or not, will arguably constitute a most serious matter, and may in relevant circumstances, adversely impact upon the integrity of the profession in the eyes of the public. In addition, a practising certificate constitutes an authority to carry on practice as a legal practitioner. The authority so granted creates a privilege in the hands of the practitioner. Any breach of any condition imposed on the right to practice must also, per se, be a matter to be taken seriously."
In Law Society of New South Wales v Thompson [2018] NSWCATOD 57 (Thompson) at [4], the Tribunal emphasised "the fact that it is an egregious wrong for any legal practitioner to fail to honour an undertaking. So much of the litigation and commerce between solicitors depends upon oral and written undertakings being honoured". The Tribunal further commented, at [9], that the giving of an undertaking as a solicitor is "one of the cornerstones of our profession as lawyers and it is a very serious matter".
There is authority for the proposition that an undertaking given in error by a solicitor does not ordinarily absolve the solicitor from the consequences of non-compliance. In Legal Profession Complaints Committee v Detata [2012] WASCA 214 (Detata), Martin CJ at [52] and [54] said (emphasis added): "[52] The proffer of an undertaking binding upon a legal practitioner and his or her firm can be expected to enhance the reliability of the undertaking, and thereby the prospect that it will be accepted and relied upon by the party to whom it is proffered. In this way, the proffer of an undertaking binding upon a legal practitioner enhances the achievement of the various purposes to which I have referred, and thereby enhances the public interest. It is therefore vital that legal practitioners perform their undertakings, regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner concerned (see Bhanabhai v Auckland District Law Society [2009] NZHC 415 [59] - [64] (Priestley, Heath and Winkelmann JJ)… [54] For these reasons, the obligation of a legal practitioner to perform his or her undertaking is a solemn obligation of the utmost importance. Failure to perform that obligation will generally be regarded as professional misconduct, and depending on the circumstances, will often be regarded as serious professional misconduct."
It may generally be accepted that, in the absence of countervailing considerations, if the undertaking has not been honoured, the practitioner will be guilty of professional misconduct: Council of the Law Society of NSW v Marando [2018] NSWCATOD 194; Council of the Law Society of NSW v Arraj [2014] NSWCATOD 117; Council of the Law Society of NSW v Sandroussi [2012] NSWADT 40 (Sandroussi); Council of the Law Society of NSW v Bunton [2020] NSWCATOD 67. This includes instances specifically involving failure to comply with undertakings to complete a practice management course: Council of the Law Society of New South Wales v Lewis [2019] NSWCATOD 100 (Lewis); Powell; Thompson; Council of the Law Society of New South Wales v Morgan [2015] NSWCATOD 71 (Morgan); Council of the Law Society of NSW v Kim [2012] NSWADT 45 (Kim); and Council of the Law Society of New South Wales v Panopoulos [2010] NSWADT 208.
Where an undertaking is given to the Law Society, the non-compliance is particularly serious. We agree with the proposition put by the Law Society that non-compliance with an undertaking to a professional organisation is a more serious matter than non-compliance with an undertaking to a fellow practitioner: see e.g. Morgan; Powell.

[14]

The Applicant's position

The Law Society's position, from its submissions, can be summarised as follows: 1. The Undertaking clearly required the Respondent to complete the first Practice Management Course offered after 15 September 2015 which course was applicable to the type of legal practice of which the Respondent proposed to be a principal. The effect of the Undertaking should depend on the words used, not what the solicitor in question thought the words meant; and it should be construed strictly against the solicitor giving the undertaking. 2. In rejecting the argument that a course was not "applicable" to her because she did not intend to practise law, the Society says it is unreasonable to construe the word "applicable" to require the Respondent to complete the Practice Management Course only at a time when she engaged in legal practice, or intended to engage in legal practice. 3. The Law Society rejects the Respondent's claim that, due to her medical history, financial circumstances and/or location in remote areas, no Practice Management Course was applicable or available to her. The Society also rejects the argument that the courses in 2016 were all "full", and there was therefore no course available to her. The Society says it is unreasonable to interpret the words "where there is a position available" to mean "when the Respondent can afford to attend the course" or "when it is convenient for the Respondent to attend the course". 4. In any case the Respondent has provided no documentary evidence to substantiate her claims about being unable to pay for, or attend, a Practice Management Course, and that she did not engage in legal practice from the date of the Undertaking. 5. The Law Society relies on case law in which conduct involving breach of undertakings by solicitors to the Law Society usually amounts to professional misconduct (whether under the statutory definition in the Uniform Law, or at common law, or both), and draws the Tribunal's attention to the case of Detata in which Martin CJ at [52] emphasised the importance of legal practitioners performing their undertakings, regardless of whether the undertaking was proffered in error "and irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner concerned". 6. If the Respondent did not propose to engage in legal practice as a principal she could have applied for a practising certificate to engage in legal practice in a different capacity. She also could have asked the Society to release her from the Undertaking. She did neither of these things. 7. With respect to the Respondent's assertions that she did not receive reminder letters form the Law Society, the Society submits that the Respondent's responsibility for complying with the Undertaking is not affected by whether she received reminder letters. Further, the Respondent's assertions that the Law Society did not provide her with an opportunity to be released from the Undertaking is of no assistance to her, because the Law Society is not responsible for pre-empting when a person, who provides an undertaking, may wish to be released from it.

[15]

The Respondent's position

In her Reply lodged on 22 April 2020, the Respondent denies the allegation and asks the Tribunal to dismiss the Law Society's application. Relevant points in the Reply, and in her written submissions, include the following: 1. The Respondent does not deny signing the Undertaking. It was signed "in good faith so that in the future I could honour it when my circumstances became 'applicable' to my situation". In 2015 the Respondent wished to "retain full membership" "purely for self-esteem, integrity and a sense of connection as a member of a group". In the Respondent's situation, which she says had been disclosed to the Law Society, the Undertaking was not applicable, relevant nor reasonable for the Respondent to fulfil. 2. None of the practice management courses were applicable or relevant as the Respondent was not in legal practice. The Respondent gave the Undertaking, not as a solicitor, but as a lawyer. She intended to undertake a practice management course before practising as a solicitor. The word "applicable" is not defined in the Undertaking, nor in legislation, and should be construed as meaning when applicable to her particular circumstances. 3. She points to Rule 6 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (the Conduct Rules), which refers to the requirement of a solicitor to honour an undertaking. The Rules contain a definition of a solicitor to the effect that a solicitor is "an Australian legal practitioner who practises as or in the manner of a solicitor". By this definition, the Respondent submits that she is not a solicitor. 4. Medical and financial circumstances also prevented her from undertaking a Practice Management Course. She says that she has had chronic health issues and has been unable to work but had hoped to fulfil the Undertaking in the future if and when she commenced her legal practice. She also argues that she was prevented from undertaking a course by reason of her travel to remote locations, for reasons unconnected to legal practice. She has not applied for a practising certificate since 2017. 5. The Respondent submits that she is not guilty of professional misconduct under s 297(1)(a) or (b). Her conduct was not in connection with the practice of law for the purpose of s 297(1)(a), and the Law Society cannot establish that she is not a fit and proper person under s 297(1)(b). 6. Further, her conduct does not fall within the common law meaning of professional misconduct. It would be reasonable to regard the situation in this case as neither disgraceful nor dishonourable conduct. 7. The Respondent also claims that the delay in the Law Society taking action against her is not fair and reasonable, on the basis that the Undertaking was given a number of years ago, in September 2015.

[19]

Submissions of parties about effect of Carr in these proceedings

The Law Society's submissions may be briefly summarised as follows: 1. The relevant facts in Carr regarding compliance with undertakings are distinguishable from those in these proceedings. In Carr the Court of Appeal held that it was impossible for Mr Carr to comply with the undertaking that he provided because: (i) he did not receive instructions from his client to transfer the monies that he undertook to transfer; and (ii) he was prohibited by s 255(1)(b) of the LPA from transferring those monies until he had received those instructions. 2. There is no legislative provision or issue regarding client authority or instructions in these proceedings that prevented or prohibited the Respondent from complying with her undertaking. 3. With respect to the Respondent's assertions that it was impossible for her to comply with the Undertaking she provided, the Law Society rejects the Respondent's argument that a course was not "applicable" to her if she did not intend to practise law. The Society also rejects the argument that, due to her medical history, financial circumstances, and location in remote areas, no Practice Management Course was applicable or available to the Respondent.
The Respondent's submissions may be summarised as follows: 1. The Respondent relies upon the Carr decision as the undertaking in the present case was also neither applicable nor capable of being performed ab initio. 2. The Respondent was not acting in the manner of a solicitor or sole practitioner, nor acting professionally. She was not a "solicitor" pursuant to the Uniform Law, and an undertaking given by a solicitor must be a personal undertaking given by the solicitor professionally. i.e. as a solicitor. 3. As in Carr, the Respondent's conduct was not subject to any complaint. No harm was done to clients. 4. There is neither any "action nor indication of dishonesty by the Respondent. She did not misconduct herself in the course of practice". 5. There were issues that prevented the Respondent from complying with her undertaking. Her position (referring to "incapacity and loss issues") is analogous to that which existed in Udall v Capri Lighting Ltd (in liq) [1988] QB 907, referred to in Carr. 6. Performing the Undertaking was an impossibility as the Respondent was, and continues to be, incapable of performing the Undertaking. The Respondent was, and still is, a disability pensioner who was deemed by medical practitioners as unfit for work since 2006. 7. The Respondent had legitimate and not unreasonable reasons for not complying with the Undertaking. This included a basic lack of comprehension of ambiguous terms. 8. As the Respondent was not physically and economically able to engage in, or perform, legal practice, the practising certificate was a purely reasonable means of remaining connected to a member community.

[21]

Findings of fact

Background facts at [5]-[24] are uncontroversial and we accept those facts.
While the Respondent's sworn affidavit evidence relates largely to the reasons she says she did not complete a course, there is a lack of corroborating substantiating evidence on a number of points. Accordingly the Tribunal is limited in its ability to make specific findings of fact on a number of points she raises in her submissions.
The Tribunal makes the following findings (or identifies where the Tribunal cannot make findings): 1. We accept the Respondent's sworn evidence and find that she did not engage in legal practice (either for remuneration or as a volunteer) from August 2015, nor since. Accordingly, we accept that she had no clients, and no remuneration from provision of legal services from 17 August 2015 when she was issued with an unrestricted practising certificate. 2. We accept the Respondent's sworn evidence that for some relevant periods she travelled to remote locations for purposes with no connection to legal practice. When not travelling the evidence indicates that she lives in the Greater Sydney region. Her evidence is that, during 2015-2019, she travelled remotely in NSW, Vic, SA and Qld "as a miner, lapidary and gem facetor", with no connection to legal practice. However, we can make no specific findings on the extent to which such travel or work in remote locations prevented her from completing a practice management course in the period September 2015 (when she gave the Undertaking) to 13 December 2018 (being the time the Society resolved to initiate and prosecute NCAT proceedings) ("the relevant period"). 3. We accept that, at times during the relevant period, the Respondent suffered some ill health, although we can make no specific findings on the extent to which her ill health prevented her from attending a practice management course. Her sworn evidence is that she is a disability pensioner and has been "unable to work" since 2006. There is corroborating evidence that she is in receipt of a disability pension and suffers some health problems stemming from a fall in 2006, but there is no evidence to indicate that ill health prevented her from attending a practice management course during the relevant period. There is evidence before us establishing short periods of hospitalisation, but not during the relevant period. We cannot make a finding that ill health rendered it difficult or impossible for the Respondent to undertake a course during the relevant period. 4. We accept that, at some times during the relevant period, the Respondent experienced financial difficulties, but there is insufficient evidence that her financial difficulties were of sufficient magnitude to preclude enrolment in a course. 5. We accept the Law Society's evidence that there were a number of approved practice management courses offered between September 2015 and December 2018, including a number of practice management courses specifically designed for sole practitioners. All courses were held in Sydney. For the period 15 September 2015 (being the date the Undertaking was notified to the Law Society) to 30 June 2017, affidavits filed on behalf of the Law Society identify 9 courses delivered by the College of Law specifically for sole practitioners, and 7 courses delivered by FMRC Pty Ltd specifically for sole practitioners. We find that there were 16 approved practice management courses specifically for sole practitioners held in Sydney between 15 September 2015 and the end of June 2017. For the period 15 September 2015 to 30 June 2016, there were 7 courses specifically for sole practitioners in Sydney. For the 2016/2017 year, there were 9 courses specifically for sole practitioners in Sydney. In addition, there were a number of other approved practice management courses available from September 2015 to the end of June 2017 for categories other than sole practitioners, some of which may have been suitable for the Respondent, but we do not need to make a finding in this regard. 6. For the period 1 July 2017 to 13 December 2018, there were 11 courses delivered by the College of Law and FMRC specifically for sole practitioners, and we find that there were 11 approved courses specifically for sole practitioners held in Sydney during this period. The affidavit evidence identifies a further 11 courses delivered by the Law Society between 1 July 2017 and 13 December 2018, described as 'General' courses (numbering 7) and 'Incorporated legal practice' courses (numbering 4). While these 11 courses delivered by the Law Society were not designed specifically for sole practitioners, these courses may nonetheless have been suitable for principal sole practitioners to complete, but we do not need to make a finding in this regard. 7. From correspondence between the Respondent and the Law Society in evidence, the Respondent said on one occasion (in a letter received by the Society on 1 November 2016) that courses in November 2016 were "full", and on a later occasion (in a statutory declaration dated 21 August 2018) indicated that she "was unable to secure a place in 2016 (as expressed in my letter 30-10-16)". If she intended to convey to the Law Society that all courses in 2016 were full, it is inherently implausible that there were no spaces in any of the practice management courses suitable for sole practitioners in 2016. In response to Panel questioning, she conceded at the hearing that she made no efforts to secure enrolment in a course, other than "about two phone calls" to enquire about enrolment in a course for November 2016. 8. For 2017 courses, her sworn evidence is that she could not attend the "next applicable" Practice Management Course because she was: hospitalised on two occasions; financially unable to comply; and visiting remote areas. There is no evidence before us as to any period of hospitalisation in 2017 that prevented her from attending any of the courses suitable for sole practitioners in 2017. There is insufficient evidence that the Respondent's financial difficulties were of sufficient magnitude to preclude her from attending any of the courses suitable for sole practitioners in 2017. We are unable to make any finding that hospitalisation and/or financial difficulties precluded her from completing a course in 2017. 9. We find that the Respondent did not make reasonable attempts to secure a placement in a course suitable for, or relevant to, sole practitioners during the relevant period. 10. We find that she did not raise with the Law Society any issue as to misconstruing the terms of the Undertaking prior to 14 March 2018, which was approximately 18 months after she gave the Undertaking and at a time when a complaint against her in relation to breach of undertaking and breach of practising certificate condition was being investigated.

[22]

Is (or was) the Respondent a solicitor for purposes of the Uniform Law?

The Respondent submits that she was not a "solicitor" within the meaning of the Uniform Law when she gave the Undertaking, and after. The Law Society submits that the Respondent was, for the purposes of the Uniform Law, a solicitor and an Australian legal practitioner when she held a New South Wales practising certificate, and a lawyer after she was admitted to the roll. This is because s 6 of the Uniform Law defines a "solicitor" to mean an Australian legal practitioner whose Australian practising certificate is not subject to a condition that the holder is authorised to engage in legal practice as, or in, the manner of a barrister only. Section 6 also defines "Australian legal practitioner" to mean an Australian lawyer who holds a current Australian practising certificate. An Australian lawyer is a person admitted to the Australian legal profession in this jurisdiction or any other jurisdiction. The Society submits that the Respondent held a New South Wales practising certificate and was therefore a solicitor on the date that she provided the Undertaking.
While we found earlier that she did not engage in legal practice from August 2015, we do not accept the Respondent's submission that she was not a "solicitor" for the purposes of the Uniform Law because she did not practise law. She was a "solicitor" within the meaning of the Uniform Law, and an "Australian legal practitioner" (see s 6 definitions) at the time she gave the Undertaking. Relevant provisions in the Uniform Law apply to her as a "solicitor" and as "legal practitioner" while she held a practising certificate. We consider that she was also a solicitor, for the purposes of determining whether her conduct constituted professional misconduct at common law, whilst holding a practising certificate. (We do not need to consider whether she was a solicitor from 1 July 2017).
The Respondent points to Rule 6 of the Conduct Rules dealing with undertakings, arguing that she is not a solicitor within the meaning of this rule. In the Glossary of those Rules, "solicitor" means "an Australian legal practitioner who practises as or in the manner of a solicitor". Rule 6.1 provides: A solicitor who has given an undertaking in the course of legal practice must honour that undertaking and ensure the timely and effective performance of the undertaking, unless released by the recipient or by a court of competent jurisdiction.
On its terms, Rule 6 would not seem to apply to circumstances where a solicitor gives an undertaking at a time when he or she is not engaged in legal practice. We agree with the Respondent that if she was not engaged in legal practice when she gave the Undertaking, she was not a solicitor within the meaning of this Rule. However, the Law Society does not assert that she is, or was, a solicitor for the purpose of Rule 6. The inapplicability of Rule 6 to her conduct in giving the Undertaking (and in failing to comply with the Undertaking) does not mean that relevant provisions in the Uniform Law applying to solicitors and/or legal practitioners do not apply to her conduct (nor that the common law applying to conduct of solicitors does not apply).

[23]

Did the Respondent breach a practising certificate condition?

The Undertaking was "to complete the next applicable Practice Management Course where there is a position available". A discretionary condition to this effect was placed on her practising certificate issued in August 2015. The Respondent does not dispute that the condition was imposed and that accordingly she was required to comply with the Undertaking if it applied to her situation. She instead argues that the implementation of the condition was not reasonable or relevant, referring to s 53 of the Uniform Law.
As earlier noted, discretionary conditions may be imposed on an Australian practising certificate at its grant or renewal or during its currency and must be reasonable and relevant: Uniform Law, s 53(2). Whilst we do not have submissions before us on the point, it likely follows that if a discretionary condition imposed by the Law Society under s 53(2) is not "reasonable" or not "relevant" at the time it is imposed, then the condition would not be authorised by the Uniform Law, and such condition (or purported condition) would be invalid. We take the Respondent's argument to be that the relevant discretionary condition imposed, at the time of grant of the unrestricted practising certificate in August 2015 (and, also at the time of its subsequent renewal) and during the currency of the practising certificates she held (from 17 August 2015 to 30 June 2017), was not "reasonable" or not "relevant" given her particular circumstances.
Clause 16(b)(ii) of the Legal Profession Uniform General Rules contemplates discretionary conditions as to specific legal education or training that the holder of a practising certificate is required to complete. The phrase "specific legal education or training" encompasses a practice management course to enable a lawyer to practise as a principal. An undertaking of this type protects the public by ensuring the Respondent completes the training course necessary to engage in legal practice as a principal.
There is nothing in the evidence or submissions before us to indicate that the condition placed on her practising certificate by the Law Society in August 2015, and in the subsequent renewal of the certificate, was not reasonable or not relevant within the meaning of s 53(2) of the Uniform Law. In the context where a lawyer admitted to the roll of solicitors in NSW had not practised for over 5 years, and was granted the privilege of unsupervised legal practice through the issue of an unrestricted practising certificate, it is not easy to understand how a condition which requires the giving of a practice management course undertaking could be other than a reasonable and relevant condition.
If what the Respondent submits is that the Law Society was somehow 'on notice' that she did not intend to engage in legal practice at any time during the currency of the practising certificates held from 17 August 2015 to 30 June 2017, then we reject that argument. The Respondent's letter to the Law Society in July 2015 in which she requested the issue of an unrestricted practising certificate did not state, or otherwise suggest, that she did not intend to engage in legal practice; indeed the indications were to the contrary. While the Respondent in her letter refers briefly to health issues, she said expressly that she wished "to continue practising as a principal sole practitioner…". It would have been reasonable for the Law Society to infer from this letter that she intended to practise law at some time during the currency of the unrestricted practising certificate she sought.
There is no evidence before us to indicate that the Respondent informed the Law Society that she did not intend to engage in legal practice during the currency of the unrestricted practising certificate issued in August 2015, and renewed for the period 1 July 2016 to 30 June 2017.
The Respondent submits that the Law Society was aware of her reasons for applying for a full practising certificate, and "of her medical, non-professional and financial circumstances" prior to, and after, she signed the Undertaking. However, the evidence before us does not demonstrate that she informed the Society, either around the time the certificate was requested in July 2015 and issued in August 2015, or when the certificate was renewed in June 2016, that her medical and/or financial circumstances meant that she would not be in a position to complete a practice management course. In her sworn evidence she says that the Society was aware of her incapacity and hardship as emails were exchanged on the topic. However, the emails to which she points in her submissions (emails to the Law Society dated 28 June 2017; 6 March 2018, and 24 August 2018) are not contemporaneous with the giving of the Undertaking, nor do they show that she communicated to the Society incapacity or hardship difficulties at any stage between July 2015 and 28 June 2017 (other than brief references to ill health in her letter of 15 July 2015 to the Law Society in which she requested an unrestricted practising certificate). By 28 June 2017, the Respondent's practising certificate was about to expire, and no renewal of the certificate had been sought.
We conclude that the condition in question on her practising certificates from 17 August 2015 to 30 June 2017, which had the effect of requiring the Respondent to give and comply with an undertaking to complete a practice management course to enable her to practise as a principal, was a reasonable and relevant condition.
While we have concluded that the condition was reasonable and relevant, including at renewal of the practising certificate for 2016/17, it is not clear to us why the Society renewed her practising certificate for 2016/17 at a time when the Respondent was, at least on the face of it, in breach of a practising certificate condition and in breach of a solicitor's undertaking to the Law Society. It would seem that the checking processes undertaken by the Society in renewing practising certificates are (or were) deficient in some respects. We do not consider that this affects our conclusion that the condition on the renewed practising certificate for 2016/2017 was reasonable and relevant, but it highlights some practices within the Law Society which fall short of desirable standards.
Whether the Respondent breached the condition on the practising certificate depends on whether she failed to comply with the Undertaking, properly construed, which is addressed below.

[25]

Meaning of undertaking in question

The Law Society submits that the Undertaking required the Respondent to complete the first Practice Management Course offered after 15 September 2015, which course was applicable to the type of legal practice of which the Respondent proposed to be a principal.
The thrust of the Respondent's submission is that the word "applicable" in the Undertaking should be construed such that a Practice Management Course would only have been applicable to her either when she actually practised law, or when she formed an intention to practise law. She also submits that the Undertaking should not be construed in isolation, referring to the preamble ("Practitioners admitted after…are required to attend… an undertaking to do this will be accepted by the Society to enable a solicitor to commence practising as a principal before completing the course…").
She submits that, on its terms and read in context, the Undertaking did not apply to her (and she did not therefore breach the Undertaking) because she was not practising law when she gave the Undertaking, nor during the currency of her practising certificate. She further submits that, being a disability pensioner, she did not intend being employed as a legal practitioner. She asserts that she had intended to comply with the requirement to undertake a course "when applicable" i.e. when actually engaging in legal practice. (She also says that she genuinely attempted to comply with the Undertaking although not applicable.)
The Law Society submits in response that the construction of the Undertaking does not depend on the understanding of the Respondent, but upon the legal effect of the words used (citing Hawkins v Gaden (1925) 37 CLR 183 at [208]). Moreover, an undertaking provided by a lawyer should be construed strictly against the lawyer who provided it. The Society submits that there is nothing in the terms of the Undertaking or the preamble to suggest that the requirement to complete a practice management course depends on her practising law.
We agree that the construction of a solicitor's undertaking depends on the legal effect of the words used, rather than on the understanding of the solicitor in question (which is necessarily subjective). Where there is possible ambiguity in the terms in an undertaking, the context in which the undertaking is given may also be important.
It is clear from the preamble to the Undertaking that the Respondent was permitted to engage in legal practice before completing the course. An alternative open to the Society would have been to withhold issue of the requested unrestricted practising certificate, until after the Respondent had already completed a practice management course relevant to her proposed practice as a principal sole practitioner. As earlier noted in relation to the practising certificate condition which requires the giving of an undertaking to complete a practice management course, an undertaking of this type protects the public by ensuring that lawyers complete the training courses necessary to engage in legal practice as a principal.
We consider that the words of the Undertaking are clear on their face, subject to one possible ambiguity about the type of course that is applicable. The Society submits that she was required to complete the next available practice management course for sole practitioners, and that this can be deduced from her July 2015 letter requesting the issue of an unrestricted practising certificate. When the Undertaking is read in the context of the nature of the request from the Respondent, we agree that the type of course that is "applicable" is a practice management course suitable for, or relevant to, sole practitioners. It is clear from her request to the Law Society in July 2015 that the purpose for which the Respondent sought an unrestricted practising certificate, after not having held a certificate for over 5 years, was so that she would have the entitlement to practise law "as a principal sole practitioner".
In our view, the Undertaking required the Respondent to complete the first Practice Management Course offered after 15 September 2015, which course was applicable to the type of legal practice of which the Respondent proposed to be a principal. This was as a sole practitioner.
The Respondent had some latitude as to when an applicable course would be completed. The obligation was to complete the next applicable course where there was a position available. That involved the Respondent identifying a course applicable to her practice, which was that of a sole practitioner, and then enrolling in one that had an available position. We consider that the obligation required her to take immediate steps from 15 September 2015 to find the next available spot in a course suitable for, or relevant to, sole practitioners. (While there may be debate over whether the obligation began on 1 September when she signed the Undertaking or on 15 September 2015 when the Law Society received the signed copy, we are prepared to accept that the obligation began from 15 September 2015 for present purposes).
We note that the wording of the Undertaking, which was proposed by the Law Society, is the same as (or very similar to) other undertakings given by solicitors to complete a practice management course in order to practise as a principal. There are cases decided by the Tribunal (or predecessor) in which the same (or very similar) wording of the Undertaking is expressly mentioned, i.e. the solicitor in question undertook "to complete the next applicable Practice Management Course where there is a position available": see e.g. Kim at [5], Lewis at [3] and Powell at [8]. An undertaking in similar form was given by the solicitor in Thompson (at [2]).
In our view, the Respondent's interpretation of the terms of the Undertaking does not accord with the legal effect of the words used, and we accordingly reject her interpretation. We conclude that, on a reasonable construction of the terms of the Undertaking, and considered in context, the obligation imposed on the Respondent was to enrol in and complete a course suitable for sole practitioners immediately a spot became available after 15 September 2015 and certainly during the currency of the practising certificate held from August 2015 to 30 June 2016. The obligation continued during the currency of the renewed practising certificate held from 1 July 2016 to 30 June 2017 (unless compliance had occurred earlier).
Whether the obligation also continued after 30 June 2017 when she was no longer a "solicitor" within the meaning of the Uniform Law is a different question, and one we do not need to answer.

[26]

Failure to complete next applicable course where position available

The Respondent's evidence is that she was unable to secure a place in courses held in November 2016 because they were "full", and that she was unable to secure a place in a course in the first half of 2017 because she was hospitalised on two occasions, financially unable to afford a course and was, for a period, visiting remote areas. At the hearing, the Respondent said that she had made "about two phone calls" to enquire about enrolment in a November 2016 course and otherwise did not make any attempt to enrol in a course. We earlier made a finding at 84 that she did not make reasonable attempts to secure enrolment in a course between September 2015 and December 2018.
We earlier made findings at 84 and (6) about the number of approved practice management courses specifically for sole practitioners for the period 15 September 2015 (being the date of the Undertaking was provided to the Society) to December 2018. As stated earlier, from 15 September 2015 to 30 June 2016 (being the expiry of the practising certificate issued in August 2015), there were 7 courses specifically for sole practitioners, all held in Sydney. For 2016/2017, there were a further 9 approved courses specifically for sole practitioners, all held in Sydney. For the period 1 July 2017 to December 2018, there were a further 11 approved courses specifically for sole practitioners. In addition, there were more general approved practice management courses available throughout the relevant period. The weight of evidence suggests that a place in a course suitable for, or relevant to, sole practitioners would have been available had the Respondent made reasonable efforts to secure enrolment.
Notwithstanding the lack of precision in the Society's case as to when the breach of the Undertaking first occurred, we are nonetheless satisfied, on the civil standard of proof, that the Respondent failed to complete an applicable course (being a course suitable for sole practitioners) where there was a position available, if not in late 2015, at least in the first half of 2016. There was a continuing obligation to complete an applicable course after that time, and a continuing failure on the part of the Respondent to complete a course.

[28]

Whether impossible to comply with the Undertaking due to personal circumstances

The Respondent submits that it was impossible for her to comply with the Undertaking because of her health, financial circumstances and/or location in remote areas.
We said earlier that the construction of an undertaking depends on the legal effect of the words used, rather than on the understanding of the solicitor in question. The legal effect of the words may be "necessarily qualified" by the applicable legislation if compliance with the undertaking would otherwise be unlawful.
Having considered the Court of Appeal's judgment in Carr and the present parties' submissions on the effect of Carr as earlier summarised, we conclude that the facts in Carr are distinguishable from the factual circumstances under present consideration. In Carr compliance with the undertaking would have been unlawful without a direction from the client. Here compliance with the Undertaking would not have been unlawful. Compliance with the Undertaking would not have been contrary to client instructions, or otherwise contrary to the Uniform Law, any other statute, or otherwise unlawful. There is no legislation about which one could say that compliance with the Undertaking was "necessarily qualified": White JA at [16].
We do not take Carr as authority for the proposition that a solicitor should be excused from compliance with an undertaking to the Law Society on the basis that, because of personal circumstances, it was difficult for the solicitor to comply with the undertaking by attending a relevant course. In any event, the Respondent's claim that it was "impossible" for her to complete a Practice Management Course is not supported by the evidence. There is no medical evidence to demonstrate that she was too ill to attend the practice management courses suitable for principal sole practitioners throughout the period September 2015 to June 2017 (nor for a later period from 1 July 2017). There is also insufficient evidence that her financial difficulties were of sufficient magnitude to preclude enrolment in a course. Her evidence is that, during 2015-2019, she travelled remotely in NSW, Vic, SA and Qld with no connection with legal practice "as a miner, lapidary and gem facetor (various Guild memberships and executive positions held)". Location in remote areas is not a factor that excuses her from securing enrolment in a course in Sydney, and from arranging to attend and complete a course, in compliance with the Undertaking.
In Carr, the solicitor in question submitted that, to be liable to disciplinary proceedings for failure to comply with an undertaking, the undertaking must be capable of being performed ab initio. The Court of Appeal discussed case law, including Udall v Capri Lighting Ltd (in liq) [1988] QB 907, to the effect that an undertaking which was impossible to perform would not be enforced, but that an order to pay compensation may be made.
The Respondent argues that she was prevented from complying with her Undertaking and that her position (referring to "incapacity and loss issues") is analogous to that which existed in Udall. We do not agree. The facts in Udall differ from those in the present matter. The solicitor there gave an undertaking that was dependent upon third parties; moreover the undertaking was given to another solicitor, not a professional association.
The nature of the undertaking in Udall was that the solicitor would procure from third persons charges over properties belonging to each of them, effectively guaranteeing that these persons would provide second charges over their homes in favour of the plaintiff. The Court found that the undertaking was impossible for the solicitor to perform. Observing that the case had a number of unusual features, the Court said that the performance of the undertaking was beyond the solicitor's control, unlike the usual kinds of undertakings given by solicitors. Accordingly, no order was given that the solicitor must comply with the undertaking because it was impossible to do so, and instead an order for compensation was made.
Given our view that the Respondent failed to complete the next applicable course where there was a position available after 15 September 2015, and that it was not impossible for the Respondent to comply with the Undertaking in the sense described in the case law (including Carr), we find that the Respondent breached the Undertaking. As she breached the Undertaking, we also find that she also contravened a practising certificate condition.
We are satisfied the breach of the Undertaking first occurred at some stage in late 2015 or 2016, and that the Respondent continued to be in breach for at least the remainder of the time she held a practising certificate.
The Law Society submits that, as she gave the Undertaking as a solicitor under the Uniform Law, there is a continued breach of the Undertaking from 1 July 2017 (when she ceased to hold a practising certificate) to December 2018 (being the time the Society resolved to initiate and prosecute disciplinary proceedings in NCAT). When the Respondent ceased to hold a practising certificate, she ceased to be a "solicitor" and an "Australian legal practitioner" under the Uniform Law. Whether she continued to be in breach of a solicitor's undertaking after 30 June 2017 is a question we do not need to answer.
We are satisfied that, on the evidence before us, the Respondent was in breach of both a practising certificate condition and the Undertaking for a considerable period of time.

[30]

Whether conduct occurred in connection with the practice of law

The Law Society submits that the Respondent's provision of, and failure to comply with, the Undertaking occurred in connection with the practice of law. This is because the Respondent provided the Undertaking in support of her application for a practising certificate that would enable her to engage in legal practice in New South Wales as a principal and without supervision. The Law Society issued the Respondent with the practising certificate on the basis that, among other things, she provided the Undertaking.
That connection between the Respondent's conduct and the practice of law is not affected by whether the Respondent had engaged in legal practice since 2010 or engaged in legal practice from the date that she provided the Undertaking in September 2015.
The Respondent submits that s 297(1)(a) is not applicable to her situation because her conduct did not occur in the practice of law - she did not engage in legal practice, had no clients, and derived no remuneration from providing legal services.
We accept the Law Society's submission that the Undertaking was given in connection with the practice of law. The issue of the practising certificate gave the Respondent the right to practise law unsupervised at any time during the currency of the certificate. The right of practice contained in the grant of any type of practising certificate, let alone an unrestricted practising certificate which allows the holder to practise unsupervised, is a privilege the importance of which should not be underestimated by a lawyer admitted to the roll of solicitors in this State. It is the right to practise law that is material, not whether the solicitor in question actually practised law for some or all of the currency of the practising certificate, or for none of that period.
The Law Society is generally not in a position to know whether, at any particular time during the currency of that certificate, a lawyer holding a practising certificate is, or is not, engaged in legal practice. To the extent that the Respondent's submissions assume that the Society should have made enquiries as to whether she was in legal practice while she held the practising certificates from 17 August 2015 to 30 June 2017, we reject that submission. The Law Society is not obliged to make inquiries of each solicitor who has given an undertaking to the Society as to whether he or she is currently engaging in legal practice and/or whether the solicitor wishes to be released from an undertaking.

[31]

Whether conduct constitutes substantial or consistent failure to maintain a reasonable standard of competence and diligence

The Law Society's submissions refer to case law describing the importance of a solicitor's undertaking and that it is an egregious wrong for any legal practitioner to fail to honour an undertaking. The Society submits that the Respondent's breach of the practising certificate condition and breach of the Undertaking constitutes a substantial failure to maintain a reasonable standard of competence and diligence. Further, in the Society's submission, the breach can be seen as a consistent failure to maintain a reasonable standard of competence and diligence, in that the breach was over a prolonged period of time.
Moreover, the Society submits that the allegation of professional misconduct is not put on the basis of harm to any individual or client; there is nonetheless harm to the reputation of the legal profession where solicitors fail to comply with their obligations.
While the Society does not address this point in its submissions, we note that if the Tribunal does not find that the Respondent's conduct amounted to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, it would still be open to the Tribunal to find that the conduct amounted to a failure to reach or maintain a reasonable standard of competence and diligence, such as she is guilty of unsatisfactory professional conduct. (Section 302(3) of the Uniform Law expressly states that the designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.)
The Law Society's submissions concerning the importance of undertakings given by legal practitioners are fully accepted. Earlier in these reasons we referred to legal principles and case law relating to solicitors' undertakings and we agree with those principles. Breach of undertakings to a regulator and/or professional association are particularly serious. Lawyers who give undertakings and who breach them should be brought to account. This is so, regardless of whether the undertaking was given in the course of legal practice or not (see e.g. Powell at [20]-[21]).
The Respondent submits, as an alternative to her submission that her conduct did not occur in the connection with the practice of law, that she made a "simple error of interpretation and comprehension of the wording of the undertaking and preamble". She says that she misconstrued a non-defined term, namely "applicable", and that her conduct does not constitute failing to reach or maintain a reasonable standard of competence and diligence.
If her submission is that she gave the Undertaking in error (because she did not understand what "next applicable" course meant), case law establishes that the fact an undertaking is given in error by the solicitor does not ordinarily absolve the solicitor from the consequences of non-compliance. We agree with, and adopt, the analysis of Martin CJ in Detata in this respect. As his Honour said at [52]: "It is…vital that legal practitioners perform their undertakings, regardless of whether the undertaking was proffered in error or oversight, irrespective of any change in circumstances, no matter how radical, and irrespective of any hardship to the legal practitioner concerned." An alternative course open to a solicitor is to seek release or variation of the undertaking in question, and this was an option that the Respondent could have pursued.
We have some difficulty with the Respondent's evidence and submission that she did not complete a practice management course from September 2015 because she thought the requirement to complete such course did not apply to her unless she either practised law, or formed an intention to practise law. While she says that she misconstrued the term "next applicable", we found earlier (at 84) that she did not raise any issue about the construction of the terms of the Undertaking with the Law Society until 14 March 2018. In her initial response to the Law Society received on 1 November 2016, after receiving a 'reminder' letter, she simply said November 2016 courses were "full" and the next Practice Management Courses were not until 2017. This response would seem to run counter to an argument that she misconstrued the term "next applicable" at or from the time she gave the Undertaking in September 2015. While we note her explanation that she still tried to undertake a course even though she thought the Undertaking was not applicable, it is not clear to us why she would have made enquiries about a course in November 2016 if she thought she did not need to do the course and she did not intend to practise law. In any event, to the extent she was in error in her construction of the Undertaking, she is still bound by the Undertaking and the consequences of non-compliance.
With respect to the Respondent's suggestion that it is not in the public interest to deal with the complaint made against her because she had no clients, we agree with the Law Society's submission that the Respondent's breach of her undertaking to the Society can constitute professional misconduct regardless of whether any person suffered harm because of her breach. It is also well-established that, if the acts or omissions of a solicitor constitute professional misconduct, they do so at the time they occur, and when considering whether a solicitor has been guilty of professional misconduct the fact that no loss resulted from the conduct is of little, if any, relevance: see e.g. Law Society of NSW v Moulton (1981) 2 NSWLR 736 at 740.
On the basis of the authorities earlier referred to, and in the absence of countervailing considerations, a breach of a solicitor's undertaking will usually be treated as professional misconduct. We agree with, and adopt in this context, what the former Administrative Decisions Tribunal said in Sandroussi at [39] in relation to continuing legal education requirements: "The clients, the public, other members of the profession and the courts are entitled to expect a solicitor to be a person of honesty and integrity and to comply with legal requirements in relation to his Practising Certificate and undertakings given by him to the Law Society. They are entitled to expect a solicitor will be committed to continuing legal education as part of achieving and maintaining competence."

[32]

Whether countervailing considerations - unsatisfactory professional conduct

We have considered whether there are factors in this case which support a finding of unsatisfactory professional conduct only, and not of professional misconduct. 1. While the Respondent submits that there was no dishonesty on her part, dishonesty is not a pre-requisite to a finding of professional misconduct. 2. While she submits that she made a simple error of interpretation, misconstruing the word "applicable" in the Undertaking, error in giving an undertaking does not provide an excuse to fail to perform a solicitor's undertaking. Similarly, a change in circumstances after the proffering of an undertaking does not ordinarily provide an excuse for failure to perform an undertaking. 3. To the extent that she submits that there was no intention on her part to breach the Undertaking, intention is not a pre-requisite to a finding of professional misconduct. There have been cases involving a solicitor's breach of an undertaking to complete a prescribed course of continuing legal education, and of a practice management course to enable the solicitor to practise as a principal, where there was no express finding of intention, or a finding of deliberate action or omission (see Hunter and cases therein referred to: [2021] NSWCATOD 22 at [58]). 4. Cases where the Tribunal has found a breach of a solicitor's undertaking to constitute unsatisfactory professional conduct only, have not involved breach of an undertaking to a professional organisation. The cases most commonly cited in that context are Council of the Law Society of New South Wales v Konstantinidis [2019] NSWCATOD 104 and Council of the Law Society of New South Wales v Konstantinidis No 3 [2020] NSWCATOD 91 (collectively "Konstantinidis") and Law Society of New South Wales v Waterhouse [2002] NSWADT 204. Those decisions rested on the particular facts and on ameliorating circumstances which are not present here. 5. In Konstantinidis the Tribunal found that at the time of giving the undertakings the solicitor could reasonably have relied upon the likelihood that the appropriate steps to honour them would be taken by his managing clerk. 6. In Waterhouse, the Solicitor asserted and the Tribunal accepted, at least as an arguable proposition, that the undertaking in question was procured from him by deceit, being the assertion by his clients' opponents that the substantial land tax liability on a property had been fully paid. The facts are distinguishable from those in the Respondent's case. There are no suggestions of deceit in the present proceedings. 7. We are not aware of a case analogous to the present one, namely where the practitioner giving the undertaking to complete a course was not practising law (in any capacity) when the undertaking was given, and did not subsequently practise. While we recognise that the factual circumstances are unusual, we do not consider this factor would justify a finding of unsatisfactory professional conduct only, and not the more serious finding of professional misconduct. As noted earlier, the Respondent had an entitlement to practise, and she could have commenced practising law unsupervised at any time between August 2015 and June 2017. 8. The facts in Thompson are perhaps the closest to those in the present case. The Solicitor there gave a written undertaking to the Law Society on 15 October 2012 to complete the next practice management course, in order that he might practise as a principal solicitor. The exact wording of the undertaking does not appear in the brief Reasons for Decision (the decision and reasons apparently having been delivered ex tempore), but the Tribunal said that the undertaking was to complete that course "when he was in a position to do so". (It is noted that this wording, if accurately described by the Tribunal, gave the Solicitor in question greater latitude as to timing of a course than does the wording of the Respondent's undertaking in this matter.) As a consequence of the undertaking the Solicitor was given an unrestricted practising certificate but he only practised as a sole practitioner principal solicitor in reliance upon that certificate for approximately 3 months between early November 2012 and early March 2013. It was not until July 2017 that he completed the practice management course. 9. The Tribunal found that the Solicitor had failed to discharge his undertaking to complete the next practice management course after 15 October 2012, and that his conduct constituted professional misconduct. The Tribunal took into account the Solicitor's contrition, and that the Solicitor is located in rural New South Wales and practice management courses were conducted only in Sydney. It also found that there were financial difficulties confronting the Solicitor which rendered it difficult for him to make time to travel to Sydney. These facts were summarised as those which "might explain, but do not justify" the Solicitor's failure to comply with the undertaking. An additional factor was that the Solicitor subsequently obtained a corporate practising certificate and apparently did no work that only a principal solicitor is permitted to do. On the basis of those facts and findings the Tribunal decided that the professional misconduct was at the lower end of the scale, resulting in a reprimand and a costs order against him, but not a fine. 10. It is noted that in Thompson there was no breach by the Solicitor of a practising certificate condition, as here.
On the facts of this case, we do not think there are "countervailing considerations" to justify a finding only of unsatisfactory professional conduct. To adopt the wording in Thompson, there are factors present "which explain, but do not justify" the Respondent's conduct in failing to complete the next applicable course after 15 September 2015, thereby breaching her undertaking to the Society, as well as a condition of her practising certificate (which action contravenes the Uniform Law).
We bear in mind that disciplinary proceedings are not punitive in nature but are protective of the community. They also operate to educate both the profession and the community. While there is no assertion of harm to an individual or client in the present matter, the Tribunal's power is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the profession which will continue its good reputation, and so protect the future of the profession: see e.g. Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [113]-[114].
We conclude that the Respondent's failure to comply with the Undertaking, and with the related practising certificate condition, is conduct that constitutes professional misconduct under s 297(1)(a) of the Uniform Law as a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. That failure is both a substantial failure, and a consistent failure as the breach occurred over a considerable period of time. We also conclude that the conduct in question involving a breach of a practising certificate condition constitutes professional misconduct for the purpose of s 298 of the Uniform Law.
We have concluded that the Respondent engaged in professional misconduct by reason of her conduct in breaching the Undertaking, and this is a serious matter. We recognise that no client has been harmed by the breach in these particular circumstances. Nonetheless, the Tribunal's jurisdiction extends to ensuring that appropriately high standards of the legal profession are upheld.
We indicated earlier that the checking processes undertaken by the Society in the renewal of practising certificates seem to have been deficient given that the Respondent's certificate was renewed at a time when she was in apparent breach of a condition of her then current practising certificate and of a solicitor's undertaking. We are also somewhat surprised by the lengthy periods of inactivity on the part of the Law Society and consequent delays in following up the breach of the Undertaking and practising certificate condition that have come to the Tribunal's attention in this matter. Nonetheless this does not affect our view that the Respondent engaged in professional misconduct under s 297(1)(a) and under s 298 of the Uniform Law.

[34]

Did the Law Society breach time limits in the legislative scheme?

The Respondent asks the Tribunal to set aside the Law Society's disciplinary application on the basis of unreasonable delay. Firstly, she asked the Tribunal to "set aside" the application prior to hearing under cl 9 of the Civil and Administrative Tribunal Regulation 2014. This request is misconceived. Clause 9 confers power on the Tribunal to set aside earlier Tribunal decisions in certain circumstances. There is no earlier Tribunal decision about which the Respondent complains. Clause 9 is not relevant to the issues for determination currently before the Tribunal.
Secondly, the Respondent argues that the Law Society's application is out of time, referring to s 272 of the Uniform Law. Section s 272(1) provides that a complaint must be about conduct of a lawyer alleged to have occurred within 3 years before the complaint is made, unless the time requirement is waived by the designated local regulatory authority (here, the Legal Services Commissioner) in the circumstances set out in that sub-section. The Respondent also refers to s 277(b) of the Uniform Law, arguing that it is not in the public interest to deal with a professional misconduct complaint "out of time". She submits that relevant to the "public interest" is the fact that the Undertaking was given on 1 September 2015, and she had no involvement with the public as a lawyer (because she did not engage in legal practice and had no clients) and received no remuneration from legal practice.
We referred earlier to the lengthy periods of inactivity on the part of the Law Society and consequent delays in following up the breach of the Undertaking and practising certificate condition. Only some of the delays are explained by the Respondent's failure to respond to the Law Society in a timely manner. Nonetheless we cannot see that these delays result in either the complaint initiated by the Law Society, or the disciplinary application lodged with the Tribunal, being "out of time".
The complaints initiated by the Law Society and forwarded to the Legal Services Commissioner were first made on 16 December 2016 (and notified to the Respondent on 3 January 2017). The complaints related to breach of her practising certificate and breach of the Undertaking. Under s 272(1) of the Uniform Law, complaints must be made within 3 years of the conduct the subject of the complaints, unless time is extended. The breach of the Undertaking, and breach of condition on her practising certificate, occurred at some stage after 15 September 2015.
While the Society has not specified the date on which it says the breach first occurred, we are satisfied the breach occurred at some stage in late 2015 or 2016, and that the Respondent continued to be in breach for the remainder of the time she held a practising certificate, if not for a longer period. There was no failure to comply with the 3 year time limit in s 272(1) of the Uniform Law on the part of the Law Society, and thus no need for the Law Society to seek a waiver of the time requirement from the Legal Services Commissioner under s 272. We do not agree with the Respondent that the Law Society's complaint to the Legal Services Commissioner under the Uniform Law was out of time.
No other issues arise about non-compliance with statutory time requirements would seem to arise. There has been no breach of time limits by the Law Society in making its application for disciplinary findings and orders to the Tribunal under the Uniform Law, the Application Act and/or the NCAT Act.
The Professional Conduct Committee of the Law Society resolved to initiate proceedings in the Tribunal in respect of relevant conduct on 12 December 2018. Unless an extension of time is sought, and granted, under s 137 of the Application Act, s 137(1) requires a disciplinary action to be brought to the Tribunal within 6 months after the decision to institute proceedings in the Tribunal with respect to the alleged conduct. The Law Society lodged a disciplinary application with the Tribunal on 12 June 2019, thus complying with the requirements of s 137(1) of the Application Act.
Following the identification of the procedural defects referred to earlier in these reasons, the Law Society's application was recommenced on 28 January 2020 pursuant to cl 23(6) of Sch 9 to the Application Act. Clause 23(6) states that proceedings may be recommenced under cl 23, despite s 137, if proceedings are recommended no later than 6 months after the commencement of operation of cl 23. The Law Society's recommenced application was filed on 28 January 2020, thus satisfying the requirements of cl 23 of Sch 9.
In sum, we do not consider that the Law Society delayed either the making of its complaint to the Legal Services Commissioner, or its prosecution of the disciplinary proceedings in the Tribunal, such that its application to the Tribunal for disciplinary findings and orders is 'out of time'.

[41]

Conclusion

The Tribunal finds the Respondent guilty of professional misconduct.
This matter will now proceed to (stage two) determination of appropriate disciplinary orders as well as consideration as to whether a costs order should be made. In its disciplinary application, the Law Society has indicated the disciplinary order (being a reprimand) and costs order it seeks in the event that the Tribunal finds the Respondent guilty of professional misconduct. Under cl 23 of Sch 5 to the NCAT Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in professional misconduct to pay costs of the Law Society "unless the Tribunal is satisfied that exceptional circumstances exist". The Respondent has submitted that there are exceptional circumstances in this matter, such that she should not be required to pay the Law Society's costs. While the parties have already filed and served evidence and submissions both as to disciplinary orders and costs, we will give the parties an opportunity to file any further evidence on which they intend to rely, and any further submissions, relevant to determination of appropriate disciplinary orders and whether a costs order should be made.
We said above at [49] that we tend to the view that s 50(2) of the NCAT Act has potential operation for stage two proceedings concerning disciplinary orders (penalty) and for costs. At the stage one (liability) hearing in these proceedings, we sought the preliminary views of the parties as to whether, in the event that the Tribunal makes an adverse disciplinary finding against the Respondent, the parties would prefer a hearing, or a determination "on the papers" under s 50(2) of the NCAT Act dispensing with a hearing, for the next stage of these proceedings. The Respondent indicated that she would prefer an "on the papers" determination, and the Law Society raised no objection.
We are conscious that the parties have not yet had the opportunity to consider any further evidence and submissions as to the making of disciplinary orders and the awarding of costs. Accordingly, the parties will have a further opportunity to provide brief submissions as to whether they each consider that the issues for determination in relation to the making of disciplinary orders and the awarding of costs can be adequately determined on the basis of the written material lodged with the Tribunal, in the absence of the parties and without a hearing, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

Council of the Law Society of New South Wales v Fisher

At a glance

Court

Decision date

Before

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Judgment (44 paragraphs)

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Legislation Cited (8)

Cases Cited (33)

Cited By (4)