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[2026] NSWCATOD 62
General information, not legal advice.
NCAT Occupational
2026-05-06
Coleman SC ADCJ, Principal Member M Sindler, Senior Member Emeritus Professor P J Foreman AM, General Member
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Source: NSW Caselaw (www.caselaw.nsw.gov.au). Converted to plain text by ZoeLaw. Not the official version.
Medium Neutral Citation: Council of the Law Society of New South Wales v Kazas-Rogaris [2026] NSWCATOD 62
Hearing dates: 11 February 2026
Date of orders: 6 May 2026
Decision date: 06 May 2026
Jurisdiction: Occupational Division
Before: Coleman SC ADCJ, Principal Member
M Sindler, Senior Member
Emeritus Professor P J Foreman AM, General Member
Decision: (1) The Respondent is guilty of unsatisfactory professional conduct and professional misconduct with respect to the Applicant’s application filed on 1 September 2023.
(2) The Applicant’s application filed on 17 October 2023 is dismissed.
(3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name or identity of any client of the Respondent referred to in the decision of the Tribunal is prohibited.
(4) Request the Registry to list the Stage 2 hearing of the proceedings on a date(s) convenient to the parties and the Tribunal.
Catchwords: OCCUPATIONS – legal practitioners – solicitors – misconduct and discipline – disciplinary proceedings – whether conduct amounts to unsatisfactory professional conduct or professional misconduct.
Legislation Cited: Civil and Administrative Tribunal Act 2013 (NSW)
Legal Profession Act 2004 (NSW)
Legal Profession Uniform Admission Rules 2015 (NSW)
Legal Profession Uniform General Rules 2015 (NSW)
Legal Profession Uniform Law (NSW)
Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW)
Cases Cited: Allinson v General Council of Medical Education and Registration (1894) 1 QB 750
Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34
BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146
Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98
Council of the Law Society of New South Wales v Webb [2013] NSWCA 423
Council of the Law Society of NSW v Narayanasamy [2014] NSWCATOD 18
Council of the Law Society v Xenos [2012] NSWADT 283
Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407
Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339
Council of the New South Wales Bar Association v Mack [2024] NSWCATOD 120
de Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Associate v de Robillard (No. 2) [2024] NSWCA 299
Donaghy v Council of the Law Society of NSW (No. 2) [2015] NSWCA 224
Howden v Rackstraw [2020] VSC 315
Kazas-Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166
Law Society of NSW v Hocking [2017] NSWCATOD 19
Law Society of NSW v Moulton (1981) 2 NSWLR 736
Manly Council v Byrne & Anor [2004] NSWCA 123
McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42
Ndou v Council of the Law Society of New South Wales [2023] NSWCATOD 111
New South Wales Bar Association v Hamman (1997) 217 ALR 553; [1999] NSWCA 404
Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470
Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230
Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409
Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288
Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144
The Council of the Law Society of New South Wales v Kernaghan [2021] NSWCATOD 111
Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49
Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1978) 34 FLR 494; [1978] FCA 45
Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46
Category: Principal judgment
Parties: Council of the Law Society of New South Wales (Applicant)
Anne Kazas-Rogaris (Respondent)
Representation: Counsel:
P Knowles and C Nguyen (Applicant)
A Khoury (Respondent)
Solicitors:
Law Society of NSW (Applicant)
Di Lizio and Associates (Respondent)
File Number(s): 2023/00328994
2023/00279009
Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) publication of the name or identity of any client of the Respondent referred to in the decision of the Tribunal is prohibited.
By application for disciplinary findings and orders filed 1 September 2023 the Council of the Law Society of New South Wales (the Council) (Applicant) sought a finding that Anne Kazas-Rogaris (the Practitioner) (Respondent) was guilty of professional misconduct within the meaning of s 297 of the Legal Profession Uniform Law (NSW) (Uniform Law) and, pursuant to s 302(1) of the Uniform Law such orders as the Tribunal considers appropriate and costs. The first application resulted from the Practitioner having witnessed a mortgage for a client, the amount advanced pursuant to which was in breach of Court orders. In the interests of clarity, the Tribunal will refer to this application as the “mortgage complaint”.
On 17 October 2023 the Council filed a further application seeking identical findings and relief to that sought in its earlier application, and that the two applications be heard together. The Council’s second application resulted from the Practitioner’s failure to pay legal fees incurred by her as the executor of an estate and/or trustee of a self-managed superannuation fund (SMSF). In the interests of clarity, the Tribunal will refer to this application as the “unpaid legal fees complaint”.
On or about 14 May 2025 the solicitor then representing the Practitioner filed a Reply to the Council’s applications denying that she had engaged in professional misconduct or unsatisfactory professional conduct and, in the event that she was found to have engaged in either, sought a series of orders pursuant to s 302 of the Uniform Law.
With the consent of both parties, the Council’s applications were heard together. The parties agreed, and the Tribunal accepted, that the Tribunal should determine whether the Practitioner was guilty of professional misconduct or unsatisfactory conduct pursuant to either of the Council’s applications against her (Stage 1 hearing), and, if the Practitioner was found guilty of professional misconduct and/or unsatisfactory professional conduct, appropriate protective orders should be determined at a subsequent hearing (Stage 2 hearing).
The Council relied on two affidavits of Valerie Anne Griswold affirmed on 20 June 2024 (exhibits A1 and A2). The Practitioner relied on an affidavit affirmed by her on 14 May 2025 (exhibit R1). Each of the parties filed comprehensive written submissions. In addition, during the hearing, reports from Dr Stephen H Allnutt (collectively) became exhibit R2.
The background to the mortgage complaint can be briefly and uncontroversially stated. Between December 2017 and February 2018, the Practitioner held a Practising Certificate, and worked as the Principal of KR Lawyers and Consultants Pty Ltd. In her capacity as a solicitor, the Practitioner was engaged as the legal representative for a Mr K, who was a party to first instance and appellate proceedings in the Family Court of Australia, as the Federal Circuit and Family Court of Australia was then constituted. The proceedings were with respect to property settlement.
The appeal proceedings were listed before the Full Court of the Family Court of Australia on 11 December 2017. The appeal was resolved by agreement, and the parties tendered handwritten Short Minutes of Consent Orders reflecting the resolution. The Practitioner signed the minutes on behalf of Mr K. The Full Court noted that the Orders would be formally entered once an engrossed copy of the Minutes was provided to the Registry, which duly occurred.
In summary, the Consent Orders reflected an agreement for the payment of an interim property settlement, pending the Court’s final determination of the parties’ entitlements. Relevantly for present purposes, the orders provided that Mr K pay his wife $150,000 within 35 days. In the event that he failed to do so, a trustee for the sale of the property at X would be appointed, and the property sold. Mr K sought to retain the property. In the event of compliance with the interim order, Mr K was restrained from selling, transferring, assigning and further encumbering the property, borrowing any amounts in excess of $150,000, and from establishing a credit facility in excess of $150,000 which permitted the drawdown of any further sum. The orders contemplated and permitted Mr K to borrow up to $150,000 in order to pay his wife the agreed interim property distribution.
On 14 December 2017 the Practitioner contacted Mr Peter Christoforou of Access Financial Services and asked him to assist Mr K to obtain finance. On 11 January 2018 Mr Christoforou emailed the Practitioner, requesting a copy of the Court orders.
On 18 January 2018, Mr K signed a document which was prepared in the Practitioner’s office, purportedly waiving any responsibility of the Practitioner in relation to Mr K’s contravention of the Court orders. The terms of the purported waiver assume considerable significance and will be recorded in full later in these reasons.
On 24 January 2018, the Practitioner witnessed Mr K’s execution of a mortgage encumbering the property, thereby enabling him to obtain a loan facility of $182,000.
On or about 30 January 2018, Mr K complied with the order of the Court requiring him to pay $150,000 to his wife, by paying her that sum from the funds which he received pursuant to the mortgage. Mr K used $10,000 or $11,000 of the loan monies to pay the Practitioner’s outstanding professional fees.
On 31 January 2018 the Full Court of the Family Court sealed engrossed Orders which reflected the text of the handwritten Short Minutes of Order filed in Court on 11 December 2017, albeit some numbering of the orders changed. Nothing turns on that. It is not suggested that the delay between the tendering of the handwritten minutes on 11 December 2017, and the making of engrossed orders on 31 January 2018 assists the Practitioner in these proceedings.
On 1 February 2018 the mortgage documents were executed by the mortgagee. In subsequent proceedings in the Family Court, as a result of evidence given by Mr K in cross-examination, the presiding Judge referred the conduct of the Practitioner in relation to the execution of the mortgage to the Legal Services Commission.
Between 4 December 2014 and 2 November 2015, the Practitioner engaged a third-party legal firm, AJL Legal Pty Ltd (AJL), to act as her solicitor in Court proceedings in which she was a party. The proceedings involved various matters arising from the Practitioner’s obligations and conduct in her capacity as the Executrix and Trustee of the Estate of a Mr P. The Practitioner had acted as Mr P’s solicitor, and, in that capacity, had drafted his Will. After Mr P’s death, the Practitioner accepted the role of Executrix and Trustee of his Estate and became a Director of the corporate trustee of his SMSF – AAP. The Practitioner was also for a time retained as the legal representative for Mr P’s widow, N, in relation to the distribution of the estate. N subsequently became a party opposing the Practitioner in some of the proceedings for which AJL was engaged.
The Practitioner executed five costs agreements with AJL. The first was executed on or about 4 December 2014, the second on or about 10 February 2015, the third on or about 17 February 2015, the fourth on or about 19 February 2015 and the fifth and final agreement, on or about 2 November 2015. The first four agreements were between the Practitioner and AAP and AJL. The fifth was entered into between AJL and the Practitioner solely.
In about March 2015 the Practitioner also engaged AJL to represent her in Local Court proceedings. There is no costs agreement or disclosure to the Practitioner, as the costs were not expected to exceed $750.
In relation to the proceedings in which they were retained by the Practitioner on behalf of P’s estate and/or the SMSF, AJL issued 16 invoices to the Practitioner, totalling $242,932.48. The Practitioner failed to pay the sums claimed in 10 of those accounts.
On 18 May 2016 AJL sought a costs assessment in accordance with the NSW Costs Assessment Scheme pursuant to the Legal Profession Act 2004 (NSW). On 31 July 2016 the Costs Assessor found that 100% of the costs of the unpaid invoices were fair and reasonable, a total of $136,295.43. The Costs Assessor referred the matter to the Legal Services Commission in view of the Practitioner’s failure to pay those costs.
On 31 October 2016 the Practitioner filed a review application for reassessment of AJL’s costs by the Costs Review Panel. On 24 September 2018, the Costs Review Panel largely dismissed the Practitioner’s grounds for review, but made some adjustments to the previously assessed costs. In total the Costs Review Panel found that the Practitioner had failed to pay AJL $134,269.23. The Practitioner paid from her own funds in excess of $100,000 in fees to AJL. None of those monies were ever repaid to her. The Practitioner did not personally benefit from any of the legal services provided by AJL. The Practitioner did not do or omit to do any act or thing which disentitled her to be indemnified with respect to the estate and/or the SMSF’s legal fees, or to be reimbursed for any legal fees paid by her on their behalf (Howden v Rackstraw [2020] VSC 315).
“On or about 24 January 2018, the (Practitioner) witnessed her client’s execution of a mortgage document which she knew, or ought to have known, would be in contravention of a Court order.”
“(a) the document allowed the client to borrow an amount of money which breached existing Court orders; and
(b) she advised her client that he was in breach and that he must not take out the mortgage for the said amount; and
(c) the client arranged for the mortgage himself and on his own volition; and
(d) there were extenuating circumstances which led to the Respondent witnessing the document; and
(e) the conduct does not otherwise amount to professional misconduct.”
The facts on which the Council relied in support of the unpaid legal fees complaint were that, between 13 February 2015 and 29 March 2016 the Practitioner failed to pay legal costs owed to another law practice for professional services rendered in 10 invoices.
In her Reply, the Practitioner admitted that she did not pay the fees of another legal practice for professional services rendered but said that:
“(a) those fees were excessive; and
(b) were incurred by the Respondent otherwise than in connection with the practice of law; and
(c) there were extenuating circumstances which led to the failure to pay; and
(d) she was otherwise not liable to pay the fees; and
(e) the conduct does not otherwise amount to professional misconduct.”
The Council’s case relies on documentation which speaks for itself, and establishes each of the primary facts outlined above, which are submitted to enable the Tribunal to be comfortably satisfied of the Practitioner’s guilt.
Evidence in support of the Practitioner’s case
In her affidavit affirmed on 14 May 2025 the Practitioner gave her version of events with respect to the Council’s complaints. Annexed to the Practitioner’s affidavit were the source documents upon which the Council relied.
Annexure A to the Practitioner’s affidavit was the mortgage which the Practitioner witnessed, enabling Mr K to borrow $32,000 more than the Family Court orders allowed. The schedule to the mortgage recorded that the “advance” was $182,000, from which were deducted the mortgage establishment fee of $1,812.42 and the “line fee” of $1,820. There is no suggestion that, when the Practitioner witnessed Mr K’s signature on the mortgage, on 24 January 2018, the schedule revealing the sum being advanced did not form part of the document. The Practitioner does not deny that she knew that the mortgage enabled Mr K to borrow significantly more than the Court orders allowed him to borrow.
The Practitioner referred Mr K to a number of brokers to assist him to obtain the loan to satisfy the Court orders. Properly, no part of the complaint against the Practitioner arises from or relates to her doing so. Nothing to which the Tribunal has been referred suggests that there was anything improper in the Practitioner endeavouring to assist the client to secure funding to comply with the Court orders by approaching mortgage brokers.
Annexure B to the Practitioner’s affidavit was an affidavit which the Practitioner described as having been “authored” by Mr K for the purposes of the Family Court proceedings, which was described as explaining “the circumstances under which he took out the loan”. In cross-examination, the Practitioner was evasive in relation to the authorship of the affidavit. The Practitioner’s credibility was significantly damaged by her inability or unwillingness to accept that she “authored” the affidavit. The content and terms of the affidavit, and the time between its execution, 27 March 2018, and the witnessing of the mortgage document, 24 January 2018, suggest that the Practitioner drafted it with the benefit of significant time to reflect on the likely implications of her having witnessed Mr K’s execution of the mortgage.
In the Family Court affidavit, Mr K alleged (paragraph 11) that he had been served with a Bankruptcy Notice (a copy of which was Annexure D to the affidavit) on 21 July 2017. Mr K explained why the creditor solicitor did not proceed against him in reliance on the Bankruptcy Notice, and alleged that, in February 2018, the solicitor was again “threatening to bankrupt me”, and that, “to avoid bankruptcy in February 2018 when the matter was before the court I needed a further $20,000”.
Mr K said [13] that the Practitioner “advised me of the requirements of the Court orders and there was no intention not to comply on my part but the circumstances forced me to do otherwise”. He added [14] that his solicitor (the Practitioner) “explained to me the seriousness of not complying with the orders. However given the stringent timeframe I decided to borrow the funds under the conditions offered to me in order to address the monies to be paid to my ex-wife and the bankruptcy issue”. Mr K said [15] that he had “always applied for $150,000 but the circumstances pressured me to apply for an additional $20,000”, and that he was aware of the “upfront repayments once the loan was approved”. Mr K did not, there or elsewhere in his affidavit, explain why he ultimately borrowed $182,000 instead of, on his version of events, $170,000.
Mr K said [16] that upon receipt of the funds pursuant to the mortgage his former solicitor “agreed to receive $9,000” and, significantly for present purposes, that he “also had outstanding legal fees with my current solicitor that needed to be paid”. There is no doubt that the “current solicitor”, was the Practitioner. Mr K added that, although he had borrowed the whole $20,000 to pay back his former solicitor “I decided to pay part of it to my current solicitor as she advised she could not continue to act unless the arrears were paid”. It is to be remembered that this statement appeared in an affidavit which the Practitioner drafted for Mr K.
The Practitioner alleged in her 14 May 2025 affidavit [11] that she did not “encourage” Mr K to borrow the amount that he did “and in fact advised him against it. I did not provide him with independent legal advice in relation to the loan”. The Practitioner added [12] that Mr K “nonetheless borrowed the amount that he did and insisted that I witness the mortgage. I initially told him that he would need to go to another solicitor to witness the mortgage, but he returned to my office a number of times urging me to witness the document. He also attended my family home to urge me to sign and was aggressive and verbally abusive when urging me to sign the document”.
The Practitioner then referred [13] to Annexure D to her affidavit, stating that before she witnessed the mortgage “I ensured that he sign a document which confirmed that I had informed him of the issues with borrowing more than $150,000”. The document is in fact Annexure E to the Practitioner’s affidavit. The document was signed by Mr K and dated 18 January 2018. It stated:
“I (K) of (address) confirm that Ms Kazas-Rogaris explained to me the issues with borrowing in excess of the $150,000 agreed to in the Family Court Consent Orders. I freely proceeded with borrowing the extra $20,000 because I had a pending bankruptcy by my previous solicitor (R). I take full responsibility for paying back this amount as requested and required by the Court from my own money whether from the settlement or other avenues.
I urged Ms Kazas-Rogaris to witness my mortgage documents as I did not have much time to settle a loan. She agreed to do so if I signed an indemnity. I say that (if) I did not get the loan I would have lost my home. I take full responsibility for this loan application and will personally address any adverse issues that may arise. I indemnify my solicitor Anne Kazas-Rogaris of any wrongdoing as she fully advised me of the consequences and breach of the orders.”
The Practitioner said in her affidavit, at [17] that AJL represented her as a Director of AAP, the Trustee of the AAP Super Fund. The Practitioner said, correctly, that, as the Director of AAP, she was indemnified by the Fund for legal fees incurred in defending action against the Fund. That allegation was supported by the terms of Deed for the AAP Super Fund (described as Annexure E but in fact Annexure D) and advice received from DLA Phillips Fox in relation to indemnification (Annexure F). These allegations, and the basis of them, have sensibly not been challenged.
The Practitioner said [18] that she and AAP had been engaged in litigation concerning the SMSF from 2010, and that legal fees were paid out of the fund until 1 October 2014, when AAP’s accounts were frozen. The Practitioner alleged that there were no outstanding invoices issued prior to the making of the freezing order. That evidence is not controversial. The Practitioner stated [19] that she, as Director, and AAP continued to act, and that she was “required to act in the best interests of the Fund”. The Practitioner alleged that she personally paid $106,636.27 with respect to AJL’s legal fees and that she had “every intention to pay the fees of AJL in full”, in reliance upon her right to indemnity.
The evidence does not establish that the Practitioner ever failed to act in the interests of the estate or the SMSF, or that she breached her statutory or other fiduciary duties as a Director of the trustee corporation. The Council does not dispute the Practitioner’s allegations with respect to the payment of legal fees prior to the making of the freezing order, that she personally paid $106,636.27 on behalf of the Trustee and/or the SMSF, or that none of those monies were repaid to her. The Practitioner alleged, uncontroversially, [20] that she ceased to be a Director of the trustee corporation on 30 April 2015.
The Practitioner stated [21] that she ultimately did not pay AJL’s legal fees as she had “come to dispute the fees including the amount charged and the work that was done by AJL. I was not able to make submissions on the initial costs assessment lodged by AJL due to health issues. The Costs Assessor made a determination without any reference to submissions from myself”. The Practitioner referred [22] to the review application which she filed on 24 October 2016 with respect to the costs determination issued on 31 July 2016 and attached (Annexure G) her submissions in support of the review application. The Practitioner alleged that she was not obliged to pay the fees of AJL while the review was pending. That assertion has not been challenged.
The Practitioner referred [23] to the dismissal of her review application on 24 September 2018 and [24] to her having filed a debtor’s petition on 25 April 2018 as a consequence of which she was made bankrupt on 7 May 2018. The Practitioner attached a copy of her debtor’s petition (Annexure H). The Practitioner’s allegations in relation to her bankruptcy have not been challenged.
The Practitioner referred [25] to her discharge from bankruptcy on 5 May 2021 and her understanding that “no creditors were paid during the bankruptcy as I had no financial resources available to the Trustee”. Those allegations have not been challenged by the Council.
In conclusion, the Practitioner said [26] that “If I had otherwise not been declared bankrupt in 2018, I would have appealed the decision of the Review Panel to the District Court. Due to being a bankrupt, I was otherwise not required to pay the amount in the Review Panel’s determination”. The factual statements referred to by the Practitioner were not disputed.
The Practitioner’s credibility was effectively challenged by the Council. Whilst the Practitioner may believe, or have come to believe the explanations with respect to the execution of Mr K’s mortgage which she advanced in her affidavit, the Tribunal has little difficulty in being comfortably satisfied that her version of events was significantly unreliable and that, for whatever reason, the Practitioner was unable, in evidence in chief or her cross-examination, to frankly acknowledge matters which, as an experienced solicitor, she ought to have known, in January 2018, or, if not then, subsequently have come to realise that she could not credibly refuse to acknowledge.
The Practitioner’s statement, at paragraph [15] of her affidavit, that it would have been “a more appropriate course to cease to act (for Mr K)” and “otherwise refuse to have any dealings with him whatsoever, including witnessing the mortgage, where he was acting in breach of a Court order” was, on the documents prepared or executed by the Practitioner herself, a considerable understatement. The suggestion that because it was “a difficult situation that I had not faced in the past” in some way excused what the Practitioner admits that she did does not explain or excuse her conduct. As the terms of the purported waiver which she required Mr K to sign confirm, the Practitioner knew at all times that, however novel the situation was, witnessing the mortgage was wrong. The situation may have been “difficult” for the Practitioner, given that, objectively, her only prospect of being paid outstanding legal fees, which she acknowledged that she needed, appears to have been by witnessing Mr K’s signature on the mortgage, but that does not excuse the Practitioner’s conduct. Referring Mr K to another solicitor would have been likely to result in the solicitor refusing to witness his signature on the mortgage as doing so facilitated the breach of the Court orders. The evidence suggests that referring Mr K to another solicitor for the execution of the mortgage would have risked the Practitioner losing any realistic prospect of being paid her outstanding fees.
In cross-examination, the Practitioner suggested that the waiver document signed by Mr K was produced in conference in consultation with Mr K, herself and a paralegal or junior solicitor. She said that the paralegal/junior solicitor had drafted the indemnity, and that it was not her wording. At best, the Practitioner’s evidence was disingenuous. The Practitioner was the only potential beneficiary of the document. The terms of the document make clear that the Practitioner was having Mr K sign a document which potentially incriminated him, and exposed him to the risk of contempt proceedings in the Family Court. The Practitioner did not suggest that she explained those implications to him.
The time which passed between the execution of the purported waiver document (18 January 2018) and the execution of the mortgage document (24 January 2018) provided the Practitioner with ample opportunity to reflect on what she was about to do, and, if she was in doubt, take appropriate advice before doing so. There is little doubt what advice would have been given. The Practitioner does not suggest that she did not understand that what she was doing was wrong in any event. Nor could she have, in view of the terms of the waiver document.
In her affidavit, the Practitioner said [12] that Mr K had “insisted that I witness the mortgage”, and that, after she had told him that he would need to go to another solicitor to witness the mortgage, he had “returned to my office a number of times urging me to witness the document. He also attended my family home to urge me to sign and was aggressive and verbally abusive when urging me to sign the document.” In cross-examination the Practitioner suggested, for the first time, that Mr K had become physically violent prior to her witnessing his execution of the mortgage, slamming his fist on her desk. The Practitioner did not identify when that was alleged to have occurred. As recorded earlier, notwithstanding the Practitioner’s written and oral evidence about the involvement of Mr K in relation to the mortgage execution, Mr K did not give evidence. Mr K may have been reluctant to give evidence, but the Practitioner did not give evidence of having sought to have him do so, either voluntarily or by seeking to have a summons issued to compel him to. The Tribunal is comfortably satisfied that evidence from Mr K would not have assisted her case.
The Tribunal is not satisfied that the Practitioner acted under duress or undue influence when she witnessed Mr K’s signature on the mortgage. The Practitioner’s own written evidence suggests that part of the reasons for her witnessing Mr K’s signature on the mortgage was that doing so gave her a chance of being paid outstanding legal fees which she needed to have paid but were otherwise unlikely to be paid. The circumstantial evidence enables the Tribunal to make such a finding, support for which is found in the Practitioner’s affidavit (at [14]) that she told Mr K that “In order for me to continue acting my tax invoice which had been outstanding for 6 months needed to be paid”. That was made clear prior to the execution of the mortgage.
The Tribunal does not accept the Practitioner’s assertion [14] that it was “only at the Family Court hearing on 28 and 29 March 2018” that she heard Mr K say that he used part of the funds obtained from his loan to pay her tax invoice. On the Practitioner’s own evidence, she knew that it was improbable that he could have paid the funds from anywhere else.
The affidavit of Mr K, prepared by the Practitioner some time prior to his execution of it on 27 March 2018 asserted [17] that there was “no agreement between myself and my solicitor that I would pay her any funds from the loan”. At paragraph [16] Mr K said that “although I had borrowed the whole $20,000 to pay back (former solicitor) I decided to pay part of it to my current solicitor as she advised she could not continue to act unless the arrears were paid”. In cross-examination the Practitioner was unable to recall when she drafted the affidavit which Mr K swore on 27 March 2018. It is probable that instructions for the affidavit were received well prior to that date. In taking the instructions, the Practitioner would have been aware, prior to 27 March 2018 that she had received funds from Mr K, and that they probably came from the mortgage advance.
The Tribunal is comfortably satisfied that, despite any alleged pressure by Mr K, the Practitioner made a conscious choice to witness his execution of the mortgage document, whether that was a result of misguided loyalty to the client or, as is more likely, because it represented the Practitioner’s best, and perhaps only chance of being paid her outstanding fees. The Practitioner’s lack of candour in the face of documents which she herself prepared at the time of the relevant events, supports the Tribunal’s finding.
Unlike her evidence with respect to the mortgage complaint, cross-examination of the Practitioner with respect to the unpaid legal fees complaint did not produce matters which militated against acceptance of her explanation of those events. The Practitioner’s account is confirmed by contemporaneous documents, the authenticity of which has not been challenged. As recorded earlier, there is no suggestion that, prior to the freezing order in 2014, the Practitioner in her representative roles had not caused AJL’s fees to be paid. It is not disputed that the Practitioner paid more than $100,000 from her own funds on account of AJL’s fees. There is no evidence that the Practitioner has been reimbursed, or will be reimbursed any of those fees. It is not suggested that the Practitioner benefitted from her role as Executor or Trustee, or that she had any greater capacity to pay AJL’s fees than she demonstrated. The evidence does not establish that, at the time the fees were incurred, the Practitioner knew or should have known that she would not ultimately have the Trustee or the Trust pay AJL’s fees. The evidence does not establish that the Practitioner personally benefitted from any of the legal services provided by AJL, or that they were provided to her other than in her representative capacity.
The principles governing the present proceedings are not in doubt or in dispute.
The Council bears the onus of proving each element of each allegation to the comfortable satisfaction of the Tribunal (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42; Council of the New South Wales Bar Association v Mack [2024] NSWCATOD 120 (Bar Association v Mack)). Where the Council establishes a factual matter, although the onus of proof is not thereby changed, the onus of adducing contradictory evidence then “shifts” to the Respondent (Council of the Law Society of New South Wales v Buckley [2025] NSWCATOD 98).
The Tribunal is required to observe the rules of evidence in these proceedings pursuant to the provisions of Schedule 5, Div 4, clause 20 to the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act).
The unexplained failure to adduce evidence from a witness capable of giving evidence about events in dispute enables the Tribunal to infer that the evidence would not have assisted the case of the party failing to call the evidence and, where there is evidence supportive of the Council’s case, more readily accept such evidence (Manly Council v Byrne & Anor [2004] NSWCA 123).
Part 5.4 of the Uniform Law is concerned with disciplinary matters. For present purposes the relevant provisions are:
296 Unsatisfactory professional conduct
For the purpose 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 Profession****al 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.
Section 298 of the Uniform Law articulates a non-exhaustive list of conduct which “expands” the definition of unsatisfactory professional conduct expressed in s 296 (Donaghy v Council of the Law Society of NSW (No. 2) [2015] NSWCA 224 at [94]) and the definition of professional misconduct found in s 297. Although it is not in contest that the conduct complained of in the mortgage complaint occurred “in connection with the practice of law”, that is contested with respect to the Council’s unpaid legal fees complaint.
Although it does not arise in this case, the Tribunal must satisfy itself that it is appropriate to make findings of unsatisfactory professional conduct, even where parties have agreed on orders (BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146). Section 302(3) of the Uniform Law empowers the Tribunal to find a person guilty of unsatisfactory professional conduct, even though the complaint or charge alleged professional misconduct. That provision must be read subject to the requirement of procedural fairness.
For the Tribunal to find professional misconduct, although the provisions of s 297(1)(a) and (b) are expressed to be conjoint, only one of either of those provisions needs to be satisfied to warrant a finding of professional misconduct (Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144). Pursuant to s 297(1)(a) professional misconduct may be found where the conduct is unsatisfactory professional conduct involving a “substantial” or “consistent” failure to reach or maintain a reasonable standard of competence and diligence in connection with the practice of law.
The mortgage complaint asserts a “substantial” failure to reach or maintain a reasonable standard of competence and diligence. The unpaid legal fees complaint is potentially reliant upon either or both of those failures. In Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 at 22 Meagher JA, with whom Leeming JA and Simpson J agreed, said that:
“The distinction made by that definition is between conduct which involves a ‘substantial’ failure to reach or maintain the required standard and conduct which involves a ‘consistent failure’ to do so. The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer’s competence and diligence and thereby warrant the description ‘substantial’. The reference to a ‘consistent failure’ is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgement on the part of the lawyer (which is not itself the or a relevant failure which is the subject of the complaint) do not involve a ‘consistent failure’ in the sense in which that expression is used in this definition.”
For the purpose of determining a complaint pursuant to s 297(1)(b) of the Uniform Law, the Tribunal may consider the matters outlined in r 10 of the Legal Profession Uniform Admission Rules 2015 (NSW) and r 13 of the Legal Profession Uniform General Rules 2015 (NSW) and may also consider any other relevant matter pursuant to ss 17(2)(a) and 297(2) of the Uniform Law.
In Prothonotary of the Supreme Court of New South Wales v Thomson [2018] NSWCA 230, at [18], the Court of Appeal accepted that “fitness to practise requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an “agent of justice” (citations omitted). … Non-compliance with this obligation may confirm that defects in character remain or demonstrate a further inadequacy (citations omitted)”.
In Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [169], the Court of Appeal held that:
“The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character.”
It was accepted in Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279; [1957] HCA 46, that, whilst misconduct may occur in a personal capacity, the behaviour must speak to the fitness of the person. Conduct occurring outside the practice of law may nevertheless indicate present unfitness to practise. In New South Wales Bar Association v Hamman (1997) 217 ALR 553; [1999] NSWCA 404 (Hamman), at [21] Mason P said that the fact that misconduct was “not directly involved with practising the law makes no difference where, as conceded in the present case, the practitioner’s behaviour would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency”.
The mortgage complaint clearly involved conduct “directly involved with practising the law”. If, as the Practitioner contends, the conduct relied on in support of the unpaid legal fees complaint was not directly involved with practising the law, it will be necessary to consider whether that conduct would reasonably be regarded as “disgraceful and dishonourable by professional brethren of good repute and competency”. Hamman was a case involving the practitioner’s wilful failure to meet his income tax obligations.
In Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407, the Court of Appeal considered the “relational term” “in connection with”. Their Honours said at [51]-[52] that the term “may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking, it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases”.
The Council submitted that solicitors have a “paramount duty” to the Court and the administration of justice and must not engage in conduct likely to be prejudicial to, or diminish the public confidence in the administration of justice or bring the legal profession into disrepute (Legal Profession Uniform Law Australian Solicitors’ Conduct Rules 2015 (NSW) (Conduct Rules) rr 3-5 and 19). It was submitted that solicitors must also act in the best interests of their client (Conduct Rules 4) and that, where a client informs a solicitor that the client intends to disobey a court’s order, the solicitor must advise the client against that course, and warn the client of its dangers, and not advise the client how to carry out or conceal that course (Conduct Rules 20.3).
The decision of the Tribunal in Ndou v Council of the Law Society of New South Wales [2023] NSWCATOD 111 (Ndou), in which the solicitor was found to have unintentionally breached the implied Harman undertaking was relied on by the Council. The Tribunal found in that case that the solicitor had engaged in unsatisfactory professional conduct. The Council relied on the findings of the Tribunal at [43]-[46] which recorded:
“43 Non-compliance with a court order is a serious matter that goes to the heart of the administration of justice. As indicated by the Victorian Supreme Court in Legal Services Board v Forster (No. 3) [2012] VSC 640 (in the context of contempt proceedings), compliance with court orders is an absolute obligation on legal practitioners. Emerton J stated at 15-16:
‘15 You are a member of the legal profession of longstanding. You well knew the importance of complying with the Order and the seriousness of breaching it … In my view, legal practitioners should be held to a higher standard when it comes to compliance with Court orders and the preservation of the due administration of justice than ordinary members of the public. Legal practitioners are bound to uphold the rule of law, which is an essential element in any civilised and properly functioning community.
16 … As Harper J said in R v Garde-Wilson [2005] VSC 452 at 8, the community must be able to look to legal practitioners to shoulder responsibility for the maintenance of the rule of law to a greater extent than persons who do not make their livelihood from the law.’
44 Absent some extenuating circumstances, a solicitor’s duty to the court and the administration of justice must include compliance with court orders. Any conduct of a solicitor which is inconsistent with that duty would, on its face, be prejudicial to, or diminish the public confidence in, the administration of justice or bring the legal profession into disrepute: see, e.g. Conduct Rules, rr3 and 5.
46 In the professional discipline context, there are published cases where the legal practitioner in question has been found guilty of professional misconduct or unsatisfactory professional conduct in circumstances involving breach of a court order. In Victorian Legal Services Commissioner v Harriss (Legal Practice) (Corrected) [2020] VCAT 689, a family law solicitor who unintentionally breached a court order and subpoena conditions conceded that his conduct amounted to professional misconduct. The Victorian Civil and Administrative Tribunal (VCAT) agreed and found him guilty of professional misconduct.”
The Council also relied on the decision of the Tribunal in Law Society of NSW v Hocking [2017] NSWCATOD 19 (Hocking) in which the Tribunal found that a solicitor’s failure to comply with a court order requiring payment of $30,000 “amounted, at least, to unsatisfactory professional conduct”. The Tribunal there noted that a legal practitioner has “an overriding duty to the court, one aspect of which is strict observance of any orders directed to the practitioner (in this case in his capacity as sole principal of the law practice the subject of the court order).
The Council submitted with respect to the mortgage complaint that the Practitioner’s conduct was “far graver” than the conduct in the cases to which the Council referred. The Council submitted, and the Tribunal is comfortably satisfied that the Practitioner “assisted” the client to carry out a breach of the Court orders. The Council relied on admissions by the Practitioner in her affidavit that:
(a) she referred Mr K to a number of brokers to assist him in taking out a loan; (b) she knew that if Mr K took out a loan of more than $150,000 he would be contravening a Court order, and advised him of that fact; (c) having so advised Mr K, she then introduced him to Mr Christoforou; (d) the Practitioner arranged for Mr K to sign a purported indemnity relieving her of responsibility; (e) having facilitated the introduction to Mr Christoforou and the execution of the purported agreement, the Practitioner then witnessed Mr K’s execution of the mortgage which allowed him to borrow $182,000 and, after Mr K drew down the money, the Practitioner received $10,000 in payment of outstanding fees.
The Council disputed the Practitioner’s contention that Mr K “pressured” her into witnessing his signature and submitted that the “multi step process outlined above evidences a high level of premeditation, such that her claim cannot hold weight”. The Council submitted that, if Mr K had been “pressuring” the Practitioner, there were several opportunities between the signing of the Short Minutes in December 2017 and the execution of the mortgage in January 2018 at which she could have ceased to act. The evidence supports a finding in those terms. The Council submitted that the “proactive, positive steps” taken by the Practitioner to facilitate Mr K’s breach of the Court orders were “completely inconsistent with the behaviour of a person put on to do something against her will”. The Tribunal agrees.
The Council submitted, correctly, that there was no reason for Mr K to have pressured the Practitioner to witness his signature on the mortgage application as any eligible witness could have done so, without his having to inform that witness of the Court’s orders. Counsel submitted, and the Tribunal agrees, that, even if Mr K pressured the Practitioner into witnessing his signature, that provided her with no defence, acknowledged in the statement in *Kazas-*Rogaris v Council of the Law Society of New South Wales [2024] NSWCATOD 166 at 58(3) that a “legal practitioner cannot hide behind the excuse that ‘my client told me to do this’”.
It was further submitted that the Practitioner “appears to have personally benefited from [Mr K’s] breach of the Court’s Orders in that the breach allowed him to obtain additional funds to meet outstanding fees due to the [Practitioner]”. The evidence supports finding that, at least by the time that the Practitioner witnessed Mr K’s signature on the mortgage, she knew or anticipated that she would so benefit. On the Practitioner’s own evidence, there was at least a likelihood of that occurring.
The Council submitted that the Practitioner’s admitted conduct was in clear breach of the principles emerging from the cases relied on by it, and breached Conduct Rules 3, 4, 5 and 20.3. The Council submitted, and the Tribunal accepts, that the purported waiver cannot relieve the Practitioner of her obligations under the Conduct Rules. The Council submitted that the Practitioner’s procuration of the purported indemnity from Mr K “represents not only a serious failure to understand the gravity of those rules and the corresponding duties imposed upon her as a practitioner, but also a clear and misguided attempt to circumvent those duties and deflect any responsibility to her client”. There is force in those submissions.
Correctly, in the Tribunal’s view, the Council submitted that the fact that the Court orders formally did not come into effect until 31 January 2018, seven days after the Practitioner witnessed Mr K’s signature on the mortgage, does not assist her case. The orders having been contemplated as early as 11 December 2017, which were agreed to when the Practitioner was representing Mr K, evidenced that he was not able to borrow more than $150,000 from at least that time. The Practitioner does not suggest otherwise.
The Council submitted that the Practitioner’s conduct constitutes a substantial failure by her to reach or maintain the requisite standard of competence and diligence, enabling a finding of professional misconduct to be made under s 297(1)(a) of the Uniform Law. The Council also submitted that the Practitioner’s conduct demonstrates that she is not of good character and is not a “fit and proper person”. In support of that contention, the Council relied on the statement of the Court of Appeal in Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 (Montenegro) at [66] that:
“Qualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person. Their importance in the present context was explained by Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 [2001] NSWCA 284 at 19 to 20:
‘Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the State regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.’”
The Practitioner did not disagree with the principles asserted by the Council, acknowledged that the Tribunal is not bound by the statutory definition of “professional misconduct” (Prothonotary of the Supreme Court of NSW v Alcorn [2007] NSWCA 288) and submitted that professional conduct at common law is said to connote conduct “which would reasonably be regarded as disgraceful or dishonourable by one’s peers” (Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470). It was submitted that “generally, a finding of professional misconduct requires a level of dishonesty or gross incompetence”. With respect to Counsel for the Practitioner, the Tribunal does not accept that, if that generality be correct, it is a requirement that the Council demonstrate in this case a level of dishonesty or gross incompetence in order for either of its complaints to succeed.
In relation to the mortgage complaint, the Practitioner was submitted to have referred Mr K to Mr Christoforou before she was aware of the amount which Mr K intended to borrow. The evidence is consistent with that assertion. The Practitioner further submitted that she did not play an “active role in arranging the loan nor determining the amount to be borrowed”. The evidence establishes that.
The Practitioner submitted that she told Mr K to instruct another lawyer, but he “insisted on her witnessing the execution of the mortgage, returning to her office and her home several times and was verbally abusive”. The Tribunal accepts that the Practitioner initially advised Mr K to instruct another lawyer, and accepts that he persisted with his request that the Practitioner witness his execution of the document. The Tribunal accepts that Mr K may have returned to the Practitioner’s office on several occasions, and may have been verbally abusive on occasion. Significantly, as recorded earlier, the Practitioner’s allegations of physical aggression were made for the first time in cross-examination. Not surprisingly in those circumstances, submissions prepared by her Counsel prior to the Practitioner’s cross-examination did not raise that allegation.
It was acknowledged, as it had to be in view of the documentary evidence, that the Practitioner on 18 January required Mr K to sign an “indemnification document”. It was submitted that the Practitioner witnessed the execution of the mortgage document on 1 February 2018. The evidence establishes it was on 24 January 2018. It was submitted that the Practitioner was not aware that funds from Mr K in payment of her fees came from the funds borrowed by Mr K until 28 March 2018. The Tribunal does not accept that contention. On her own evidence, the Practitioner knew the likely source of the funds used to pay her fees well prior to 28 March 2018.
Counsel for the Practitioner submitted that the “question is whether the witnessing of the execution of the mortgage document, which in turn allowed a person (not the Practitioner) to contravene a court order, amounts to professional misconduct.” In support of the Practitioner’s contention that it did not, four particular matters were relied upon. The first was that the Practitioner herself had not breached the Court orders. That is undoubtedly correct. It was submitted that the Practitioner’s case was distinguished from Ndou in which the practitioner breached the Court orders himself. The same was submitted with respect to the case of Hocking in which the solicitor was specifically named and ordered by the Supreme Court to pay money. Whilst factually different to Hocking and Ndou, the evidence is clear that the Practitioner in this case knowingly assisted her client to breach the Court orders. The decisions in Ndou and Hocking do not assist the Practitioner.
The second matter relied upon was that the Practitioner’s involvement in Mr K’s breach of Court orders was “limited to witnessing her client’s execution”. It was submitted that the Practitioner had not been involved in arranging the mortgage or being a party to it but was “faced with a client” who by signing the mortgage and obtaining a loan intended to and, in fact, did breach the Court orders. Not having otherwise been involved in Mr K’s obtaining of finance does not ameliorate the Practitioner’s witnessing of her client’s execution of the mortgage in breach of Court orders of which the Practitioner was well aware.
Rule 20 of the Conduct Rules was submitted to be relevant. Rule 20.3.1 obliged the Practitioner in the circumstances to advise the client against his proposed course, or warn him of its dangers. The evidence does not establish that the Practitioner adequately advised the client of the dangers. On the contrary, by requiring him to sign the purported waiver document, the Practitioner rendered any defence which Mr K might have raised had he faced a contempt application in the Family Court problematic. It could be inferred from the circumstances in which the purported waiver document was created, and its terms, that, rather than advising him against doing so, the Practitioner was impliedly condoning Mr K’s breach of the Court orders.
It was submitted on behalf of the Practitioner that the “process of witnessing a signature is something which can be done by a Justice of the Peace” and that her signature was not a “necessary condition for Mr K to receive the loan”. With respect to Counsel for the Practitioner, that is all the more reason why the Practitioner should and could readily have declined to witness Mr K’s signature on the mortgage and pointed that out to him. The evidence does not establish that Mr K would have needed to tell any person eligible to witness the mortgage anything about the Court orders, as the Practitioner submitted, at [22] “[t]he client could have obtained any authorised witness and breached the order” without the Practitioner’s involvement. As the Council submitted, the Practitioner’s failure to avoid her asserted difficulties by making that obvious suggestion only supports the inference that the Practitioner witnessed the mortgage to preserve her chances of being paid her outstanding fees.
The submission of the Council that the Practitioner was “bound by her duty to the Court to refuse to witness the document” was asserted to “misconceive” the nature of the Practitioner’s duty. In support of that contention, the Practitioner relied upon the Judgment of Needham J in Law Society of NSW v Moulton (1981) 2 NSWLR 736 at 741, in which his Honour said: “It is not misconduct merely to continue to act for a client whose purposes are improper, unless the practitioner assists in the improper purpose”. With respect to the submission of Counsel for the Practitioner, the Tribunal’s view is that by witnessing Mr K’s signature on the mortgage document, the Practitioner “assisted” in Mr K’s improper purpose. The Tribunal does not accept that the Practitioner’s duty was discharged if, and when she advised the client against proceeding and obtained the purported waiver.
It was submitted by the Practitioner that “the residual act of witnessing was a ministerial verification of execution, not an endorsement or facilitation of the transaction. To treat it otherwise would conflate advisory judgement with formal attestation”. The plain fact is that, with knowledge that his doing so was in breach of the Court orders, the Practitioner witnessed Mr K’s signature on the mortgage document which enabled him to borrow funds which the Practitioner knew were $32,000 in excess of the amount which the Court orders allowed him to borrow. The Tribunal cannot accept that the obtaining of the purported indemnity was a “mutual procedural act inconsistent with any intent to facilitate the breach”. With respect to Counsel for the Practitioner, whatever the Practitioner’s intention, it had precisely that effect.
The third matter relied upon was that the evidence did not support the contention that the Practitioner knowingly benefitted from the mortgage. The Tribunal is comfortably satisfied that, at the time the Practitioner witnessed Mr K’s signature on the mortgage document, she knew that it was likely that she would benefit from it. The circumstantial evidence, and the Practitioner’s own evidence suggests that was a likelihood falling short of a probability but more than a mere possibility (Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees’ Union (1978) 34 FLR 494; [1978] FCA 45).
The fourth matter relied upon by the Practitioner was that she was “acting under duress”. The evidence does not establish that the Practitioner was acting under duress.
With respect to the submissions of Counsel for the Practitioner, who has asserted everything which reasonably could have been advanced on her behalf, the difficulty the Practitioner faces is that her own contemporaneous documents evidencing her conduct leave little scope for the Tribunal to be other than comfortably satisfied that the Practitioner is guilty of unsatisfactory professional conduct, and professional misconduct in relation to the mortgage complaint. The Practitioner’s proven conduct would be regarded as dishonourable and disgraceful by right-minded members of the legal profession, and the public. It is fundamental to the administration of justice that judges and colleagues can trust legal practitioners to refrain from conduct which they know is dishonourable. The Practitioner betrayed that trust.
On the undisputed evidence, anything short of the Tribunal finding that the Practitioner witnessed Mr K’s execution of the mortgage document under duress would lead to finding her guilty of unsatisfactory professional conduct. The Tribunal is not persuaded that the Practitioner’s evidence with respect to “pressure” remotely attracts the principles of duress or undue influence (see Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49, at [26]-[36]). The Practitioner knew what she was doing, knew it was wrong, and nevertheless, made a conscious decision to do it.
It does not avail the Practitioner’s case that, had she not witnessed Mr K’s signature on the mortgage, someone else may have. As submitted by the Council, the Practitioner’s apparent knowledge that someone other than a solicitor could have witnessed Mr K’s signature on the mortgage document exacerbates the seriousness of the Practitioner’s conduct. It is difficult to resist inferring that the Practitioner’s failure to refuse to witness Mr K’s execution of the mortgage, and refer him to someone else to do so was because that may have cost the Practitioner her only chance of being paid fees which she needed to have paid.
The Practitioner’s conduct fell significantly short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer, at two levels. The first level was the Practitioner’s witnessing Mr K’s signature on the mortgage document when she knew that he was breaching the Court orders. The second level was that, although preceding the witnessing of the mortgage document by approximately six days, the Practitioner’s requirement that Mr K sign a document purporting to exculpate her with respect to Mr K’s execution of the mortgage was also conduct which fell significantly short of the standard expected of a reasonably competent and ethical lawyer. Although not put in such terms by the Council, the Practitioner’s attempt to “cover her tracks” by having Mr K sign the purported indemnity document had quite the opposite effect (Bar Association v Mack). The purported waiver served only to confirm the Practitioner’s knowledge that what she was about to do was contrary to the professional and ethical standards required of her, and that she was going to do it anyway. The Practitioner’s apparent belief that having Mr K sign the document in some way absolved her from culpability in his breach of the Court orders revealed a serious lack of understanding, leading to a breach of her ethical obligations.
The Tribunal is comfortably satisfied that the Practitioner’s conduct involved a substantial failure to maintain a reasonable standard of competence and diligence pursuant to s 297(1)(a) of the Uniform Law. The reasons why that is so have been recorded above. The objective seriousness of the Practitioner’s misconduct comfortably satisfies the Tribunal that the more malign finding of professional misconduct is appropriate. The Practitioner’s conduct involved conscious disregard for Court orders, and a misguided attempt to absolve herself from the consequences of such conduct.
The Council urged the Tribunal to also make a finding of misconduct in reliance upon s 297(1)(b) of the Uniform Law. When regard is had to the provisions of s 297(2) of the Uniform Law, it is noted that the proceedings which the Tribunal has heard involve only Stage 1, namely whether the Practitioner is guilty of unsatisfactory professional conduct and/or professional misconduct. Although many of the matters identified in s 297(2) of the Uniform Law would be relevant to the determination of the appropriate protective orders at a Stage 2 hearing, understandably neither party has taken the Tribunal to those matters in the Stage 1 hearing. To have done so may well have been procedurally unfair to the Practitioner. That is not a matter about which the Tribunal need speculate. Having found that the Practitioner is guilty of professional misconduct, the range of protective orders available at the determination of the Stage 2 hearing amply accommodates the relief which would also be available if the finding of professional misconduct were in reliance upon s 297(1)(b) of the Uniform Law.
The Council submitted that it was a “well established principle that a solicitor’s failure to pay third party debts can amount to professional misconduct”. The Tribunal accepts that proposition (see Council of the Law Society of NSW v Narayanasamy [2014] NSWCATOD 18; The Council of the Law Society of New South Wales v Kernaghan [2021] NSWCATOD 111 (Kernaghan)). The touchstone of those decisions, as was recognised in each of them was the decision in Allinson v General Council of Medical Education and Registration (1894) 1 QB 750, in which it was accepted that the test was conduct which “would be reasonably regarded as disgraceful and dishonourable” by “professional brethren of good repute and competency”.
The Council also relied on the decision in the Administrative Decisions Tribunal in Council of the Law Society v Xenos [2012] NSWADT 283 in which the “obdurate way” in which the practitioner “refused to discharge his obligation”, statutory and contractual, to pay the fees due could have been characterised as professional misconduct. Not insignificantly in view of the Practitioner’s defence to this complaint, Kernaghan involved an 18-month delay in paying an expert invoice. The Council submitted that the history of the Practitioner’s failure to pay the legal fees demonstrated her “contumelious disregard not only for the findings of the Costs Review Panel, but also her contractual obligation to pay debts”.
The decisions referred to by the Council (at [91]) are instructive. Each of the five cases identified related to a practitioner’s failure to pay fees owing to barristers who were retained by the practitioner. That is not this case. There is no suggestion that the Practitioner incurred the unpaid legal fees other than in her capacity as Executor or Trustee of the Estate of Mr P and/or the AAP Superannuation Fund.
The Council’s submissions did not engage with the issue raised by the Practitioner’s defence that the alleged offending conduct had not occurred in the course of practice of the law.
After the Tribunal reserved its decision, the Tribunal was reminded of the Judgment of the Court of Appeal in d**e Robillard v Council of the New South Wales Bar Association; Council of the New South Wales Bar Associate v de Robillard (No. 2) [2024] NSWCA 299 (de Robillard). The Tribunal in that case found the practitioner guilty of unsatisfactory professional conduct by reason of his failure to satisfy a costs order made against him. The Court of Appeal said [173] that the question of principle that arose in relation to the challenge to the Tribunal’s finding of unsatisfactory professional conduct “turns not upon Mr de Robillard’s subsequent bankruptcy, but rather upon the juristic nature of deemed judgment created by filing the Costs Assessor’s Certificate”. The Court referred [175] to the costs ordered being “payable forthwith” meaning that the costs order was not enforceable until such time as it was quantified and had been filed in Court and that, until the costs dispute had been determined, there was “no enforceable obligation to pay any amount of money” pursuant to the order. Upon the entry of Judgment, the solicitor to whom Mr de Robbilard was indebted became a “(deemed) judgment creditor, entitled to execute his judgment in familiar ways, including by serving a bankruptcy notice or lodging a writ on any real property owned by Mr de Robillard or seeking a garnishee order” [177]. The Court held [178] that “[t]he existence of a judgment against Mr de Robillard did not mean that he was subject to a duty to pay it. Instead, he was liable to the various remedies to which a judgment creditor is entitled. Another way of expressing this is that the judgment creditor was empowered to exercise certain remedies against Mr de Robillard and his property. The difference between being subject to a duty and being amenable to the exercise of a power is basal”.
The Court of Appeal then posed the question “If there were a duty to pay a judgment debt, what is the sanction for breach? Another judgment?”. The Court of Appeal reiterated [182] that “the amenability of a person to the various processes by which a judgment may be executed is distinct from the requirement in r 13(1)(q)(i) of the Conduct Rules that there be a contravention. But only if there some obligation to do something, or to refrain from doing something, can there be a contravention. There can be no contravention in the absence of an obligation”. The Court of Appeal added [183] that, if the approach taken by the Tribunal in that case was correct, “then every person who is made bankrupt based on a judgment debt will also be a person who has contravened a court order”.
The Court of Appeal concluded [184] that “The reasoning above concerning a court order to pay costs and its consequences is to be distinguished from a court order that a legal practitioner pay particular funds held on trust, or restore documents to a former client, or otherwise do or refrain from doing some act. Those are all examples of orders which may be contravened by a legal practitioner, thereby engaging rule 13(1)(q). An intermediate case will arise where a gross sum costs order against a practitioner is made. Such an order is directly enforceable without the need to go to assessment.”
The Tribunal invited the parties to make submissions in the light of that decision.
On 26 March 2026, pursuant to the leave previously reserved by the Tribunal, the Council made supplementary submissions with respect to the decision of the Court of Appeal in de Robillard.
The Council submitted [1] that the reasons of the Court of Appeal in de Robillard at [167]-[184] have “some” relevance to the unpaid legal fees complaint but that the decision was “distinguishable” on the facts. After summarising the reasons of the Court of Appeal in de Robillard, the Council submitted that there were at least four reasons why the decision did not create any impediment to the success of its application. It was first submitted [10] that the ground advanced by the Council with respect to the unpaid legal fees complaint was significantly different to the ground advanced against the practitioner in de Robillard. That difference was submitted to be “crucial” and to render the decision in de Robillard of “limited utility to the present matter”. To the extent that there are factual differences between the two cases, the facts in this case invite a more benign view of the Practitioner’s conduct in this case tan they may have in de Robillard.
The Council reiterated [11] that the ground upon which it relied alleged that the Practitioner “failed to pay legal costs owed to another law practice for professional services rendered”, whereas [12], the ground considered in de Robillard was whether the practitioner “engaged in professional misconduct, or in the alternative unsatisfactory professional conduct, by failing to comply with the order of the Supreme Court of New South Wales … that the Respondent pay $16,906.36 to Mr Wells”. Mr Wells was a legal practitioner to whom the barrister was indebted.
The Council relied on the observation of the Court of Appeal at [171] that the Bar Association’s application was “narrowly circumscribed” and “confined to Mr de Robillard’s failure to pay the deemed judgment that came into existence upon the lodgement of the costs certificate in the Supreme Court”. The Council submitted [14] that its application was “very different” from a failure to comply with an order of the Supreme Court, or to pay a deemed judgment that came into existence upon the lodgement of the costs certificate in the Supreme Court. The Council submitted [14], correctly, that the unpaid legal fees complaint does not depend upon any asserted contravention of r 13(1)(q)(i) of the Conduct Rules.
The Council submitted [15] that, having regard to the Bar Association’s pleaded claim, the proceedings in de Robillard involved only determining whether the practitioner had contravened the relevant rule. It was thus submitted [16] that “in other words, the reasons why the ground in de Robillard failed are inextricable from the way in which the alleged allegation of UPC was characterised, being an alleged failure to comply with an order of the Supreme Court”. The Council submitted [17] that by “contrast” the present unpaid fees complaint involved “markedly different facts involving a debt owed through unpaid invoices”. The Council submitted, accurately, that it does not assert that the Practitioner contravened the Court orders for the purposes of the Rules or otherwise and that accordingly “the fundamental factual and legal premises of the cases are not comparable, and de Robillard can be distinguished”.
The second matter raised by the Council related to the failure of AJL to register the costs determination in this case in the appropriate court registry, as Mr Wells had done in de Robillard pursuant to s 368(5) of the Legal Profession Act 2004 (NSW). The Council submitted [19] that the existence of a judgment debt was never the “foundational premise” for the present unpaid fees complaint and reiterated its primary submission that the complaint “concerns, quite simply, the [Practitioner’s] failure to pay fees already due and payable under a costs agreement”. The Council submitted [20] that the fees owed by the Practitioner “remain payable regardless of what [AJL] chose to do. The fact that [AJL] found himself in a position where the determination could have been registered as an enforceable judgment simply proves that the (Practitioner) had created – to use the statutory language of s 368(5) – a ‘case of an amount of costs that has not been paid’”.
The third matter relied upon by the Council [21]-[22] was that, put bluntly, like Mr de Robillard, having been made bankrupt did not assist the Practitioner’s case. Similarly, the Council submitted [23]-[24] that difficulty in paying the debt did not assist Mr de Robillard’s case and accordingly did not assist the case of the Practitioner.
On 7 April 2026, pursuant to leave granted by the Tribunal, Counsel for the Practitioner filed written submissions in response to the submissions of the Council with respect to the decision of the Court of Appeal in d**e Robillard. It was submitted “preliminarily”, correctly, that the debt in de Robillard arose during the course of his practice as a barrister. It was submitted that the Practitioner was not subject to a personal costs order, and that her liability for costs did not arise during the course of legal practice by her. Counsel reiterated his earlier submissions ([42]-[44]) to which reference has previously been made.
The Practitioner submitted that the Judgment of the Court of Appeal was “binding as it relates to characterisation of the debt” and “requires” the Tribunal to dismiss ground 2. It was submitted, correctly, that the error which the Court of Appeal found established in de Robillard was finding unsatisfactory professional conduct for the failure to pay a judgment debt. It was submitted that, in overturning the finding of unsatisfactory professional conduct, the Court of Appeal accepted that the practitioner “did not have a professional duty to pay”. It was submitted that de Robillard established that “The existence of a judgment debt does not of itself give rise to a positive obligation to pay such that non-payment constitutes unsatisfactorily professional conduct”.
With respect to the Council’s submission that de Robillard was confined to compliance with a court order, and rule 13(1)(q)(i), and assertion that the present case is distinguishable from de Robillard because it concerns unpaid invoices pursuant to a costs agreement, rather than non-compliance with a court order or deemed judgment, the Practitioner submitted that any factual differences did not render the decision in de Robillard distinguishable.
It was submitted that Mr de Robillard was a barrister owing money to a solicitor, that cost assessment had been completed, a costs determination had been certified, and a deemed judgment issued. Reliance was placed on the Court of Appeal’s statement at [178] that “[t]he existence of a Judgment against Mr de Robillard did not mean that he was subject to a duty to pay it. Instead, he was liable to the various remedies to which a judgment creditor is entitled”. Reliance was also placed on the statement of the Court of Appeal at [182] that:
“There was no contravention. The amenability of a person to the various processes by which a judgment may be executed is distinct from the requirement in rule 13(1)(q)(i) that there be a contravention. But only if there is some obligation to do something, or to refrain from doing something, can there be a contravention. There can be no contravention in the absence of an obligation.”
The Practitioner submitted that if de Robillard had not been subject to a duty to pay a judgment debt, applying the Court of Appeal’s reasoning, the existence of legal fees owed by the present Practitioner does “not necessarily give rise to an obligation to pay them” and that, in the absence of an obligation there can be no misconduct by failing to pay.
The Practitioner further submitted that the “relevant certificate of determination had never been converted into a judgment” that “distinguishing factor” was submitted to weigh in the Practitioner’s favour. It was submitted to be “of note” that:
“(a) between December 2014 and November 2015, the Respondent [the Practitioner] personally paid $107,081.71 towards AJL’s legal fees the last payment being on 19 November 2015 in the amount of $20,000;
(b) the last bill was issued on 29 March 2016 and the costs assessment commenced shortly afterwards;
(c) during the costs assessment, the Respondent was not required to pay the fees and enforcement proceedings were barred;
(d) the assessor issued his determination on 31 July 2016, but the decision never became enforceable as a judgment;
(e) the Respondent applied for a review which suspended the determination;
(f) the review was determined on 24 September 2018 by which time the Respondent had become bankrupt.”
The Tribunal is not comfortably satisfied that the Practitioner is guilty of unsatisfactory professional conduct or professional misconduct pursuant to the unpaid fees complaint. The evidence does not establish that the Practitioner’s liability for costs was incurred in connection with the practice of law. It is readily apparent that it must be the Practitioner’s practice of the law with which s 296 is concerned. As is not in doubt, the Practitioner incurred the debt as a litigant who was represented by other legal practitioners. There is no evidence of any conduct of the Practitioner in relation to the retainer of AJL which involved her doing anything which constituted the provision of legal services, or any direct or indirect practice of law.
Even if, contrary to the Tribunal’s finding, the Practitioner’s conduct in incurring the debt for legal fees was in some way connected with her practice of the law, on the undisputed evidence of the facts and circumstances surrounding the incurring of the liability and the failure to discharge it, the Tribunal would not be comfortably satisfied that the Practitioner’s conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The evidence does not establish that the Practitioner unreasonably incurred the unpaid legal fees, or that her expectation that she would be indemnified or reimbursed with respect to them was unrealistic. The Practitioner’s failure to meet her obligation to pay the fees was due to the combination of circumstances which she detailed in her evidence. None of those circumstances has been disputed.
It is significant that the Council has not identified any respect in which the Practitioner could have done anything more, or done anything differently, to have avoided the non-payment of outstanding legal fees. A fair-minded member of the legal profession, or of the public would not consider that the Practitioner’s conduct was disgraceful or dishonourable, or liable to bring the legal professional into disrepute, or that the Practitioner’s failure to pay her debt suggested that she was not a fit and proper person to engage in legal practice. On the contrary, a fair-minded observer would be likely to consider, on the undisputed evidence before the Tribunal, that the Practitioner was an unfortunate victim of circumstances beyond her control, but that is not a matter about which we need speculate.
Although, as submitted by the Council, the facts in de Robillard, and the issues which the case raised, differ from those in this case, the Court of Appeal’s judgment provides at least some support for the Tribunal’s inability to find the Practitioner guilty of unsatisfactory professional conduct or professional misconduct pursuant to the unpaid legal fees complaint. The decision in de Robillard at least implies that there needs to be more evidence of culpability than just a failure to pay legal fees in order to find unsatisfactory professional conduct. It is not suggested that the Practitioner in this case recklessly or unreasonably incurred the legal fees. It is not suggested that, until events beyond her control intervened, the Practitioner should have known, or at least suspected that she might not be able to pay her legal fees. Although largely unsuccessful, it has not been established that the Practitioner’s attempts to have the fees payable to AJL reduced were unreasonable, or merely a ploy to gain time. It is not suggested that the Practitioner became bankrupt to avoid paying her legal fees.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar
Council of the Law Society of New South Wales
Kazas-Rogaris
[1938] HCA 34
(1938) 60 CLR 336
(2021) 106 NSWLR 383
(1981) 2 NSWLR 736
(1997) 43 NSWLR 42
(1997) 217 ALR 553
(2017) 263 CLR 85
(1978) 34 FLR 494
(1957) 97 CLR 279
(2001) 52 NSWLR 279