Council of the Law Society of New South Wales v Lewis

NCAT Occupational|2019-06-19

f NSW v Yang [2017] NSWCATOD 44 Category: Principal judgment Parties: Council of the Law Society of New South Wales (Applicant) Paul Edward Lewis (Respondent) Representation: Counsel:

Solicitors: C Flax (Applicant) P Lewis (Respondent in person) File Number(s): 2018/00350152 Publication restriction: Nil

Introduction

These proceedings were commenced by an Application for disciplinary findings and orders that was filed by the applicant Council of the Law Society of NSW (the Applicant) pursuant to the provisions of the Legal Profession Uniform Law (NSW) ("the Uniform Law"). On 14 May 2019, the Tribunal granted the Applicant leave to file an Amended Application and this was filed on 27 May 2019. The Applicant moved on the Amended Application.

On 27 November 2013, the Respondent completed and signed a document entitled "Variation of a Practising Certificate to Practise as a Principal or Solicitor on the Record" (Variation Form). 3. The variation form contained the following undertaking, which the Respondent signed on 27 November 2013: I undertake to complete the next applicable Practice Management Course when there is a position available (the undertaking). 4. On or around 30 November 2013, the Respondent provided the Variation Form to the Society. 5. It was a condition of each practising certificate that the Respondent held from 12 December 2013 to 17 November 2016, that he comply with the undertaking. 6. Practice Management Courses were held, relevantly, on the following dates: (The particulars set out a total of 83 courses offered by both FMRC Legal and the College of Law between 29 January 2013 and 28 October 2016). 7. The first time that the Respondent attended and completed a Practice Management Course was in November 2016. 8. In the circumstances referred to in paragraphs (1) to (7) above, the Respondent: (a) Contravened a condition of his Practising Certificate; and (b) Failed to comply with the undertaking.
The Application sought orders that: (1) the Respondent be reprimanded; (2) the Respondent pay a fine; (3) the Respondent pay the costs of the Applicant as agreed or assessed; and (4) Such other orders as the Tribunal deems fit.
The Respondent filed an Amended Reply on 24 April 2019, which was in the following terms: The Respondent denies the claims of the Applicant in relation both Ground (1) and Ground (2) on the basis that the allegations are not true. Specifically, by its actions and communications towards the Respondent the Applicant had clearly indicated that, as the recipient of the given undertaking, they released the Respondent from his duty until a future date and then, after compliance by the Respondent, entirely. Further, the undertaking as entered into by the Respondent on 12 December 2013, did not specify a definitive date by which it was to be met. The requirement of a 'reasonable time' is therefore applicable. By its actions and communications towards the Respondent the Applicant had clearly indicated that, as the recipient of the given undertaking, they were prepared to, and in fact did, extend the period of time in which it was reasonable for the Respondent to comply with his undertaking. In response to the "Particulars" presented in the Applicant's Application for Disciplinary Findings and Orders, the Respondent says: Particular (1): 1 (a) The Respondent admits. 1 (b) The Respondent admits the allegations as to dates but further notes that the Applicant, as the 'designated local authority' authorised the Respondent to engage in "legal practice as a principal of a law practice" despite the non-completion of the Practice Management Course, on the strength of the undertaking that was made to by (sic) the Respondent to the Applicant in relation to completing the Practice Management Course at a future date. The Applicant is authorised with the discretion to do so by the Legal Profession Uniform Law 2014 (NSW) Section 53 and Legal Profession Uniform General Rules 2015 (NSW) Regulation 16. By virtue that, (sic) the discretion was exercised by the Applicant, the Respondent was not in breach of the conditions of his certificate as claimed. 1 (c) The Respondent admits the table presented by the Applicant in paragraph 1 (c) of the Application. Particular (2): The Respondent admits the allegation in Particular (2) of the Application. Particular (3): The Respondent admits the allegation in Particular (3) of the Application. Particular (4): The Respondent neither admits nor denies the list of Practice Management Courses "held" on the basis that such information is outside his realm of knowledge. The Respondent accepts that the list presented is likely correct given that the Applicant would hold such knowledge and would be unlikely to mislead the Tribunal on such facts. Particular (5): The Respondent admits the allegation in Particular (5) of the Application. Particular (6): The Respondent admits the allegation in Particular (6) of the Application. Particular (7): (a) The Respondent denies the allegation contained in Particular 7 (a) of the Application on the basis that the Applicant, as the 'designated local authority' had the authority and discretion to accept the undertaking that the Respondent provided; did accept this undertaking, and: did issue and maintain, at all relevant times, a practising certificate in the name of the Respondent. Should the Applicant have been of the belief that the Respondent was in contravention of a condition of his practising certificate then, it is submitted, action would have been taken to revoke the practising certificate. No such action was taken thereby supporting the inference that the Applicant was not of the belief that the Respondent was in contravention and had released he (sic) Respondent to a future date. (b) The Respondent denies that he "failed to comply with his 12 December 2013 undertaking to the Society" on the basis that, by its actions and communications towards the Respondent over the period, the Applicant had released the Respondent from the undertaking to a future time. Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) provides: 6.1 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 (Emphasis added by the Respondent).
At the hearing of this Application on 19 June 2019, Mr Flax appeared for the Applicant and the Respondent appeared in person. Mr Flax stated that the Applicant did not intend to cross-examine the Respondent and he proposed that after the evidence had been duly admitted, the matter should proceed on the basis of submissions only. He stated that he relied upon the Applicant's Outline of Submissions filed on 3 June 2019, but that as the Respondent had not filed his written submissions, the we should first hear from the Respondent and then allow the Applicant an opportunity to respond.
We note that s 301 of the Uniform Law provides: 301 Procedure of designated tribunal (1) Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal. (2) Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing but is bound by the rules of procedural fairness. (3) It is intended that jurisdictional legislation may determine whether the designated tribunal is bound by the rules of evidence in conducting a hearing in relation to an allegation of professional misconduct, but the designated tribunal is otherwise not bound by those rules in relation to matters arising under this Chapter.
In accordance with s 301 of the Uniform Law, the Tribunal determined that it was appropriate to proceed to determine the Application in the manner suggested by Mr Flax.

The evidence

The Applicant relied upon the following Affidavits, which were admitted into evidence without objection: (1) Affidavit of Terrie Maree Gibson sworn 12 November 2018 - Exhibit A; (2) Affidavit of Anne-Marie Foord sworn 20 November 2018 - Exhibit B; (3) Affidavit of Neville John Carter sworn 14 November 2018 - Exhibit C; (4) Affidavit of Samuel Harcourt Coupland sworn 21 November 2018 - Exhibit D; and (5) Affidavit of Nadya Justine Haddad affirmed 14 May 2019 - Exhibit E.
The Respondent sought to rely upon his Affidavits sworn on 24 January 2019 and 19 March 2019, respectively. We note that in his first Affidavit, he merely deposed that the contents of his Reply were true and correct, but he did not set out any substantive evidence in support of the assertions contained in the Reply. We admitted this into evidence and marked as Exhibit 1.
However, the Applicant objected to several paragraphs of the Respondent's second Affidavit. After hearing arguments from both parties, we determined that the first paragraph on page 6 should be struck out and that paragraphs numbered 10, 11 and 13 to 24 (inclusive) were in the nature of submissions, rather than evidence. We disallowed objections to paragraph 8 (on page 8) and paragraph 21 (on page 9) and determined that the relevant question was the weight that should be given to the evidence contained in those paragraphs. We admitted the Affidavit and marked it as Exhibit 2 subject to those rulings.
The Respondent also tendered a letter from the Registry Compliance Officer of the Applicant to himself dated 31 October 2016. Mr Flax stated that this could not be annexed to Ms Gibson's Affidavit as the Applicant did not have a hard copy of that in its records. We admitted the letter and marked it as Exhibit 3.

Submissions

The Respondent handed up written submissions that addressed factual matters, but these did not address any legal issues or the orders sought in the Application and concluded with a statement to the effect that the Respondent "would make verbal submissions in relation to penalty and costs" if we required him to do so.
After reading the Respondent's written submissions, we invited him to make oral submissions regarding matters of law, the appropriate orders that we should make if we are satisfied that either or both grounds of the application are made out and the question of costs.
The Respondent's submissions specifically respond to the Applicant's Outline of Submissions and we have set out the Applicant's written submissions first to enable a proper understanding of them.

Applicant's written submissions

The Applicant submitted, relevantly: … F. THE LAW i. Relevant legislation 8. This application is the subject of a complaint made, and therefore falls to be dealt with, under the Legal Profession Uniform Law (NSW) (Uniform Law). 9. The Tribunal has such jurisdiction and functions as may be conferred or imposed on it by or under the Civil and Administrative Tribunal Act 2013 (CAT Act) or any other legislation: s 28 of the CAT Act). ii. Legislative definition of professional misconduct 10. The legislative definition of professional misconduct is, for all intents and purposes, open-ended. The Uniform Law does not contain a finite list of conduct that may amount to professional misconduct. …11. Section 297(1) of the Uniform Law provides: 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. 12. Section 298 of the Uniform Law identifies certain conduct that, of itself, may constitute professional misconduct or unsatisfactory professional conduct. 13. Given that the legislative definition of professional misconduct is inclusive, guidance on the concept of professional misconduct can be found in the common law. iii. Common law concept of professional misconduct 14. The common law concept of professional misconduct includes conduct in pursuit of professional activities, which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: See The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 for medical practitioners. 15. The wide breadth of the concept can be observed from the judgment of McClellan CJ at CL in Bechara v Legal Services Commissioner [201 O] NSWCA 369 at [44]: As Clyne [Clyne v NSW Bar Association (1960) 104 CLR 186] made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness". Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Assn v Livese y [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported)); permitting conflicts of interest to arise (Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received (Re Walker; Ex parte Kemp (1887) 3 WN (NSW) 123); misleading a client (Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported); gross neglect and delay (Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk (Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer (Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct (Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279). 16. The High Court in Kennedy v The Council of the incorporated Law Institute of New South Wales (1939) 13 ALJ 563 (per Rich J) stated: ... a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relating to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction. iv. The Tribunal's power to make orders 17. The statutory power for the Tribunal to make orders, having made a finding of professional misconduct or unsatisfactory professional misconduct (sic), is conferred by section 302 (1) of the Uniform Law, which relevantly provides: 302 Determination by designated tribunal-disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period; (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100,000 if the lawyer is found guilty of professional misconduct. 18. Section 299 (1) of the Uniform Law provides: 299 Determination by local regulatory authority-unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent Jaw practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders- (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent Jaw practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring- (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice- to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice. v. The Tribunal's role in making orders 19. As expressed in Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 28 per Shellar JA, the jurisdiction of the Tribunal is protective, not punitive (Also see Council of the Law Society of NSW v Weller [2017] NSWCATOD 38 at [40], Ziems v Prothonotary of the Supreme Court of New South Wales (1957) 97 CLR 279 at 286 per Dixon CJ, Clyne v The New South Wales Bar Association (1960-1961) 104 CLR 186 at 201-2 and the New South Wales Bar Association v Evatt (1968) 117 CLR 117 at 183-4): When the jurisdiction of the Tribunal is invoked under Part 10… of the Act to conduct a hearing into a complaint of professional misconduct by a legal practitioner, the primary consideration is to protect the public by preventing a person unfit to practise from holding himself or herself out to the public as a legal practitioner in whom members of the public might repose confidence. The Tribunal must also act so as to deter the offender in the future and any other practitioner minded to behave in like manner. In the case of a solicitor these elements together or separately may call for the removal of the solicitor's name from the roll or the imposition of a substantial fine. 20. 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, not only the future of the profession, but also protect its clients from harm: See Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441 and New South Wales Bar Association v Meakes [2006] NSWCA 340. 21. Furthermore, the Tribunal's function is consistently, educative, "publicly marking the seriousness of what the instant solicitor has done": Law Society of New South Wales v Foreman (Supra). 22. In Law Society of New South Wales v Walsh [1997] NSWCA 185 it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. 23. Thus, it is relevant to take into account the effect the orders sought would have upon the understanding of the profession and the public as to the standard of behaviour required of legal practitioners. 24. As Street CJ said in Ex parte Macaulay (1930) 30 SR NSW) 193 at 193-4: Unless the Court insists on a high standard of conduct on the part of solicitors - unless the Court punishes severely every !apse from the proper standard - the public will never be properly guarded and the profession will never retain the respect which it ought to have in the community. G. THE RESPONDENT'S POSITION REGARDING THE ALLEGED CONDUCT i. Allegations that the Respondent does not dispute 25. The Respondent does not dispute the following allegations: a) On 27 November 2013, the Respondent completed and signed a document entitled "Variation of a Practising Certificate to Practise as a Principal or Solicitor on the Record" (Variation Form). b) The Variation Form contained an undertaking, which the Respondent signed on 27 November 2013 to "complete the next applicable Practice Management Course when there is a position available" (Undertaking). c) On or around 28 November 2013, the Respondent provided the Variation Form to the Society. d) It was a condition of each Practising Certificate that the Respondent held from 12 December 2013 to 17 November 2016 that he comply with the Undertaking. e) FMRC Pty Ltd and the College of Law held a number of Practice Management Courses during the period 12 December 2013 to 17 November 2016. f) The first time that the Respondent attended and completed a Practice Management Course was in November 2016. ii. Allegations that the Respondent disputes 26. The Respondent denies the allegation that he contravened the Practising Certificate condition requiring him to comply with the Undertaking. The denial is made, in summary, on the basis that: a) the Society continued to issue the Respondent with Practising Certificates and did not, at any time, revoke his Practising Certificate; and b) if the Society believed that the Respondent contravened the Practising Certificate condition, it would not have continued to issue him with Practising Certificates or it would have taken action to revoke his Practising Certificate. 27. The Applicant submits that continuing to issue the Respondent with Practising Certificates in no way relieved the Respondent of his obligation to comply with the conditions imposed on those Practising Certificates. 28. The Respondent denies the allegation that he failed to comply with the Undertaking. The denial is made, in summary, on the following bases: a) The Undertaking did not specify a definitive date by which the Respondent was to complete a Practice Management Course. Therefore, the Respondent was only required to comply with the Undertaking within a reasonable time period. b) From 12 December 2013 to November 2016, the Respondent could not afford to pay for a position in a Practice Management Course. Therefore, during that period, no position in a Practice Management Course was available to him. c) The Society, in written correspondence to the Respondent, impliedly agreed to extend the deadline by which the Respondent was required, under the Undertaking, to complete the Practice Management Course.15 In so doing, the Society released the Respondent from the obligation to complete the next applicable Practice Management Course offered after 12 December 2013. The Respondent completed the Practice Management Course within the Society's extended deadline. 29. With respect to paragraphs 28 (a) and 28 (b) above, the Society submits that the Undertaking required the Respondent to complete the "next applicable Practice Management Course when there is a position available". This clearly required the Respondent to complete the first Practice Management Course that the College of Law or FMRC Pty Ltd offered after 12 December 2013 (being the date the Undertaking took effect) which course was applicable to the type of legal practice of which the Respondent proposed to be a principal. It is unreasonable to construe the words "when there is a position available" to mean "when the Respondent can afford to attend the course". In any case, the Respondent has provided no documentary evidence to substantiate his claim about being unable to pay for a position in a Practice Management Course. 30. With respect to paragraph 28(c) above, the Applicant submits that the Society did not, at any time: a) agree to extend the deadline by which the Respondent was required to complete the Practice Management Course; or b) release the Respondent from the requirement to complete the next applicable Practice Management Course offered after 12 December 2013. 31. The Society's letters to the Respondent at pages 5 to 7 of the Gibson Affidavit neither expressly nor impliedly extended the deadline by which the Respondent was required, under the Undertaking, to complete a Practice Management Course. Rather, they provide that: a) the Society had not received confirmation that the Respondent had completed a Practice Management Course as he undertook to do; and b) foreshadow the referral of the Respondent's failure to comply with the Undertaking to the Council and the Society's Professional Standards department. 32. The Society's email to the Respondent at page 8 of the Gibson Affidavit provides that the Respondent could request an extension of time to complete a Practice Management Course. However, it neither expressly nor impliedly extended the deadline by which the Respondent was required, under the Undertaking, to complete a Practice Management Course. 33. The Society's letter to the Respondent at page 9 of the Gibson Affidavit: a) notified the Respondent that the Society's Licensing Committee had considered his application for an extension of the Practice Management Course completion deadline and resolved: i. to refer the Respondent's conduct to the Society's Professional Standards Department; and ii. that the Respondent would not be issued with a principal of a law practice Practising Certificate until after he completed a Practice Management Course. The letter does not provide that the Society's Licensing Committee approved the Respondent's application for an extension of the Practice Management Course completion deadline. Rather, it clearly indicates that the Society's Licensing Committee did not approve the Respondent's application. 34. The Society's email to the Respondent at page 15 of the Foord Affidavit neither expressly nor impliedly extended the deadline by which the Respondent was required, under the Undertaking, to complete a Practice Management Course. In this regard the Applicant submits that the email was not provided in response to a request by the Respondent for a release from the timing requirement in the Undertaking. Rather, it was provided in response to a request from the Respondent about whether his completion of a specific Practice Management Course would make him eligible to be issued, by the Society, with a principal of a law practice Practising Certificate. 35. The Respondent, in paragraphs 8 and 21 of his 19 March 2019 Affidavit, provides that: a) he had a telephone conversation with a representative of the Society in May 2017; b) during the conversation the Society representative told him that the Society was not investigating his failure to comply with the Undertaking and he was not the subject of disciplinary proceedings; and c) the Society thereby released the Respondent from the requirement, under the Undertaking, to complete the next applicable Practice Management Course offered after 12 December 2013. 36. The Applicant submits that such a statement, if made by a Society representative, would neither have expressly nor impliedly released the Respondent from the requirement, under the Undertaking, to complete the next applicable Practice Management Course. Furthermore, as the Respondent has not provided the name of the person with whom he had the alleged telephone conversation, the Tribunal should not give any weight to the Respondent's assertions in relation to the alleged conversation. H. THE ALLEGED CONDUCT CONSTITUTES PROFESSIONAL MISCONDUCT i. Contravention of the Practising Certificate condition 37. The Respondent's breach of his Practising Certificate condition: a) constitutes a failure, by the Respondent, to maintain a reasonable standard of competence and diligence; and b) is capable of constituting professional misconduct. 38. Section 298 (a) of the Uniform Law provides that conduct consisting of a contravention of the Uniform Law is capable of constituting professional misconduct. Section 54 of the Uniform Law requires the holder of a Practising Certificate to comply with its conditions. 39. Furthermore, this Tribunal and its predecessor the Administrative Decisions Tribunal has, on a number of occasions, found guilty of professional misconduct solicitors that breached conditions of their Practising Certificates: See for example, Council of the New South Wales Bar Association v Barnett [2016] NSWCATOD 153, Council of the New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54, Council of the Law Society of New South Wales v Gallego [2014] NSWCATOD 102, Council of the Law Society of New South Wales v Kim [2012] NSWADT 45, Council of the Law Society of New South Wales v Sandroussi [2012] NSWADT 40, Law Society of New South Wales v Singh [2011] NSWADT 47 and Mee Ling v The Law Society of New South Wales [1974] 1 NSWLR 490. 40. The Respondent's breach of the Practising Certificate condition constituted a substantial and consistent failure by him to maintain a reasonable standard of competence and diligence. In this regard, the Applicant submits that: a) The Respondent's Practising Certificate condition breach was serious in nature: i. As the Tribunal stated in Council of the Law Society of New South Wales v Powell [2019] NSWCATOD 24 (at [21]): ... 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 ... be a matter to be taken seriously. ii. The condition was imposed on the Respondent's Practising Certificate to protect the public. This is because the Society imposed the condition to ensure that the Respondent would undertake the appropriate practice management training as soon as possible after being issued with a Practising Certificate authorising him to work as the principal of a law practice. b) The Respondent's breach of the Practising Certificate condition extended over a period of almost three years. ii. Failure to comply with the Undertaking 41. The Respondent's failure to comply with the Undertaking: a) constitutes a failure, by the Respondent, to maintain a reasonable standard of competence and diligence; and b) is capable of constituting professional misconduct. 42. A solicitor's breach of an undertaking that he or she provides constitutes a breach of Rule 6.1 of the Legal Profession Uniform Law Australian Solicitor's Conduct Rules 2015, which 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. 43. Furthermore, this Tribunal and its predecessor the Administrative Decision Tribunal has, on a number of occasions, found that solicitors who failed to comply with an undertaking, that they provided, were guilty of professional misconduct: for examples involving undertakings to complete a Practice Management Course, see Council of the Law Society of New South Wales v Powell [2019] NSWCATOD 24, Law Society of New South Wales v Thompson [2018] NSWCATOD 57, Council of the Law Society of NSW v Kim [2012] NSWADT 45 and Council of the Law Society of New South Wales v Panopoulos [2010] NSWADT 208. For examples involving other types of undertakings see Law Society of NSW v Autore [2017] NSWCATOD 168, Council of the Law Society of NSW v Yang (2017] NSWCATOD 44 and Council of the Law Society of New South Wales v Morgan (2015] NSWCATOD 7. 44. The Respondent's failure to comply with the Undertaking constituted a substantial and consistent failure by him to maintain a reasonable standard of competence and diligence. In this regard, the Applicant submits that: a) The importance of an undertaking is encapsulated in Riley's Solicitors Manual: The Supreme Court's accreditation of a lawyer upon admission to practice impliedly represents that the lawyer is a person worthy of public trust and confidence… Fidelity to undertakings given by a lawyer in the course of professional practice is thus an important component of the lawyer's professional responsibility and is directly relevant to the court's continuing accreditation of his or her fitness. (para. 28,030.1] b) Similarly, in Council of the Law Society of New South Wales v Powell [2019] NSWCATOD 24, the Tribunal held (at [20]): 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 clients. Other legal practitioners and commercial and statutory entities rely upon 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 he integrity of the profession in the eyes of the public. c) The Respondent's failure to comply with the Undertaking extended for a period of almost three years. I. THE ORDERS SOUGHT ARE APPROPRIATE 45. It would be appropriate for the Tribunal to make an order issuing the Respondent with a reprimand and a fine in the sum of $4,000. Such an order would publicly mark the seriousness, and appropriately reflect the Tribunal's disapprobation of, the Respondent's conduct. It would also protect the public by deterring the Respondent from engaging in similar conduct in the future and deterring other practitioners from behaving in a similar manner. 46. Such orders would be consistent with orders that the Tribunal made in the following analogous matters: Matter Orders Council of the Law Society of New South Wales v Powell The Respondent was reprimanded and ordered to pay a fine in the sum of $1,000. [2019] NSWCATOD 24 Council of the Law Society of New South Wales v Kim The Respondent was reprimanded and ordered to pay a fine in the sum of $5,000. [2012] NSWADT 45

In coming to such a conclusion the Tribunal would be heartened by the fact that that was a view that the Society's Professional Conduct Committee clearly formed in referring the Solicitor's conduct to this Tribunal. As the Court said in re Clayton [(1961) SR 132]: There is another matter for consideration, that the views of the Law Society must be given due and proper weight. J. COSTS 48. Section 60 of the CAT Act provides, relevantly: 60 Costs (1) Each party to proceedings in the Tribunal is to pay the party's own costs. (2) The Tribunal may award costs in relation to proceedings before it only if it is satisfied that there are special circumstances warranting an award of costs. … (5) In this section: "costs" includes: (a) the costs of, or incidental to, proceedings in the Tribunal, and (b) the costs of, or incidental to, the proceedings giving rise to the application or appeal, as well as the costs of or incidental to the application or appeal. 49. However, Schedule 5, cl 23 (1) of the CAT Act provides: 23. Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist. (2) The Tribunal may make orders requiring a respondent lawyer whom it has not found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), if satisfied that: (a) the sole or principal reason why the proceedings were commenced in the Tribunal was a failure of the lawyer to co-operate with the Commissioner or a Council, or (b) the lawyer has contravened an order of the Tribunal made in the course of the proceedings concerned, or (c) there is some other reason warranting the making of an order in the particular circumstances. (3) The Tribunal may make orders requiring payment of a respondent lawyer's costs from the Public Purpose Fund (within the meaning of the Legal Profession Uniform Law Application Act 2014), but may do so only if satisfied that the lawyer did not engage in unsatisfactory professional conduct or professional misconduct and the Tribunal considers that special circumstances warrant the making of the orders. The Tribunal is to have regard to the length and complexity of the proceedings when making a determination under this subclause. (4) The Tribunal may make orders requiring a respondent lawyer in respect of whom proceedings are pending before the Tribunal to pay costs on an interlocutory or interim basis. (5) The Tribunal may make orders requiring a person to pay costs (including, as appropriate, the costs of the Commissioner, a Council, the complainant and the respondent lawyer against whom the complaint was made), if satisfied that: (a) the person, whether before or during the proceedings, failed to produce or delayed in producing any document required or requested to be produced, and (b) the failure or delay contributed to delay in commencing, conducting or concluding the proceedings in such a way as to warrant the making of the orders. (6) The Tribunal may fix the amount of costs itself or order that the amount of costs be assessed by a costs assessor under the legal costs legislation (as defined in section 3A of the Legal Profession Uniform Law Application Act (2014)) (7) An order for costs may specify the terms on which costs must be paid. 50. It is submitted that no exceptional circumstances for the purposes of section 23 (1) of the CAT Act exist. Therefore, if the Tribunal determines that the Respondent is guilty of professional misconduct or unsatisfactory professional conduct, it should make an order for costs against the Respondent.

Respondent's written submissions

The Respondent submitted (relevantly): Paragraph D: The Respondent disputes the allegations made within Paragraph D of the 'Applicants Outline of Submissions' as filed 3 June 2019 and so asks that the findings sought by the Applicant not be granted by the Tribunal. Specifically, the Respondent maintains that: a) The Respondent has not contravened a condition of his Practicing Certificate, and; b) The Respondent has not failed to comply with an undertaking that he provided to the Law Society of New South Wales. Paragraph E: Accordingly, the Respondent does not believe that the Tribunal should make Orders as sought by the Applicant in Paragraph E of the 'Applicants Outline of Submissions' as filed 3 June 2019. Specifically: a) The Respondent should not be reprimanded. b) The Respondent should not be required to pay a fine. c) The Respondent should not be ordered to pay the costs of the Applicant as agreed or assessed, or at all. Should the Tribunal agree with the Respondent and not make the Orders as sought by the Applicant in Paragraph E of the 'Applicants Outline of Submissions' as filed 3 June 2019, the Respondent does not seek an order that the Applicant pay the costs or the Respondent at all. The Respondent accepts that for the public and professional reputation of the profession, the Applicant is required to bring such prosecutions as this one before the Tribunal for determination. Should the Tribunal make the orders as sought by the Applicant in Paragraph E of the 'Applicants Outline of Submissions' as filed 3 June 2019, the Respondent requests to make further submissions on such costs. Paragraph F: The Respondent accepts the commentary as presented by the Applicant in Paragraph G, sub paragraphs 8 -24 inclusive, of the 'Applicants Outline of Submissions' as filed 3 June 2019. Paragraph G: 25. The Applicant correctly identifies allegations that the Respondent does not dispute in Paragraphs 25(a} through 25(f}. In relation to; paragraph 25(d} the Respondent adds that as he had varied his practicing certificate to being categorised as an 'Employee of a Law Firm' from March 2016 through to March 2017, he was of the opinion that the undertaking was dispensed with and only became aware that this was incorrect during a telephone conversation with Imelda Craglietto, of the Law Society, as witnessed by email from the Respondent to the Law Society dated 8 August 2016. 26. The Respondent agrees with the premise put forward by the Applicant in Paragraph 26. The issuing of Practicing Certificates over the period listing the undertaking as unfulfilled but as a current condition effectively extended the time in which the undertaking could be complied with. The granting of extensions was further witnessed by the Law Society issuing 'Reminder Notices'. 27. As the Recipient of the Undertaking, the Law Society had the right, under Rule 6.1 of the Legal Profession Uniform Law Australian Solicitor's Conduct Rules 2015 to release the respondent from the performance of the Undertaking. The issuing of a 'Reminder' on 31 October 2016 is a clear indication that the Society had not at that date, or a date prior to the 17 November 2016 whence the required course was duly completed, called the Respondent for a breach of the undertaking but that they had extended the time for compliance. The extensions so offered were explicit and not merely implied. (Refer email from Imelda Craglietto dated 8 August 2016). 28. The Respondent submits that the Law Society must be held to account for the wording of the undertaking on the basis that it was they that drafted the terms of the undertaking. It did not contain a definitive date. It was therefore open for the Respondent to interpret that a position in a course was not available to him if he could not afford to pay the fee to secure such a position. It is the Respondent who knowingly entered the undertaking and where the Applicant's error in drafting raised ambiguity it should be the Respondent's interpretation, made at the time of entering into the undertaking, that is applicable. The Law Society and precedents quite rightly require that a solicitor be held to a high standard. It is submitted that the Law Society should equally be held to a high standard, particularly as being accountable for their drafting skills. Notably, the system of a solicitor being able to enter an undertaking to do the Practice Management Course is no longer available for those seeking a Principal's Certificate. It is submitted that the ambiguous drafting by the Law Society be seen as the cause. 29. The Respondent refutes the claim by the Law Society, in paragraph 29, that the wording of the undertaking was clear in its requirements at all. 30. The Respondent refutes the claim made by the Applicant in paragraph 30. The evidence presented by way of 'Reminder Letters', carrying the subject line "Re: Practice Management Course Undertaking Review" and invitations to request "an extension of time"2 are explicit and unambiguous releases from completing the courses prior to the date that these items were issued. 31. The Respondent received one of the mentioned 'Reminder' notices dated 31 October 2016 and, according to the listed dates for courses as presented in Annexures G and H to the Affidavit of Terrie Maree Gibson sworn 12 November 2018, did the next available course. The Respondent undertook the required Practice Management Course prior to commencement by the Applicant of disciplinary proceedings. 32. The Respondent, by email to Imelda Craglietto of the Law Society, dated 8 August 2016 did request an extension of time to complete a practice management course. The Respondent accepts that the Applicant did not expressly extend the deadline or grant the extension sought; the Applicant did not directly address the requested extension at all. However, it is submitted that the Reminder Letter as issued on 31 October 2016 by very clear implication, grants an extension of time. 33. The Respondent refutes the Applicant's claim that the letter referred to in Annexure F to the Affidavit of Terrie Maree Gibson sworn 12 November 2018, "clearly indicates that the Society's licencing (sic) committee did not approve the respondent's application" rather, the letter gave no determination on the extension application, which leaves the Reminder letter of 31 October 2016 as the granting of an extension of time. 35. The Respondent maintains that this call occurred as per his sworn Affidavit. 36. The Respondent, unfortunately, cannot confirm who it was at the Law Society that he spoke with that informed him that the investigation was closed, in or about June 2017. However, the fact that the 'Other Conditions' listed on the Practicing certificate issued for 2017 -18 do not include Condition 4 3, whereas the 2016-17 practicing Certificate did carry this condition, supports the claim that the condition was met and the Applicant had released the Respondent from the undertaking under Rule 6.1.
We determined Exhibit 2 contained the following submissions: Summary of the Respondent's position 10. The Law Society, as the local designated authority had the discretion, under the Legal Profession Uniform Law 2014 (NSW) section 53 and Legal Profession Uniform General Rules 2015 (NSW) Regulation 16, to impose a condition such that I could be granted a 'principal of a law practice practicing (sic) certificate'. They exercised this discretion, on my making the undertaking, and issued me with the requisite practicing (sic) certificate. I was therefore not in breach of the condition as claimed. 11. As the undertaking, which wording was drafted by the Law Society, did not include a specific date for compliance, the undertaking needed to be complied with within a reasonable time. … 13. The Law Society, as the recipient of the undertaking, had by virtue of Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW), the power and discretion to release me from compliance with the undertaking. This legislation does not preclude the recipient from granting a temporary release or, a release to a future date. 14. Over the material time the Law Society did offer time extensions, which can rightly be considered as a 'release to a future time'. the letters were titled 'REMINDER". On each and every occasion that the Law Society contacted me in regard (to) compliance with the undertaking I responded, whether by telephone, letter or email. I availed myself of the 'releases to a future time' as they were offered. 15. I communicated with the Law Society consistently over the material time. 16. I did not mislead, lie to or attempt to deceive the Law Society over the material time, as to when I would do the course and comply with the undertaking. 17. The "REMINDER" letter from the Law Society dated 3 August 2016 stated that "If no response is received by next 8 August 2016, the matter will be referred to the Law Society's licencing (sic) committee for consideration and referral to the Professional Standards Department." I did respond to this letter and yet the Law Society still referred the matter to the Professional Standards Department without any further notice and without giving me a change to respond or represent. 18. I had applied for an extension of time to the end of 2016, in response to an invitation to do so by the Law Society, this extension request was never refused. 19. I was told by the law Society, on Monday 14 November 2016 that "You can comply with your undertaking by completing any of the PMCs offered." 20. I completed the required PMC over 16 - 18 November 2016 and this was notified to the Law Society on or before 1 December 2016 by the course provider, FMRC. 21. I expressly asked the Law Society in or about May 2017, when renewing my practicing (sic) certificate, as to whether there were any disciplinary proceedings pending against me and was told "No", see paragraph 8 above. This clear statement on behalf of the Law Society should be seen by the Tribunal as the Applicant releasing me from the undertaking under Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW). 22. The Practicing (sic) certificate issued to me for the 2017-2018 year clarifies that I was not subject to the condition of the undertaking (Annexure B to this Affidavit). 23. A decision by the Professional Standards Department of the Law Society was not made until almost a year after I had complied with the undertaking. 24. Despite my offering, I was not afforded the opportunity to attend the meeting and present my case to the Committee in their meeting of 14 September 2017, thereby denying me procedural fairness.

Respondent's oral submissions

We referred the Respondent to Exhibit 3, and asked him where the author stated that a decision had been made regarding his application for an extension of time to undertake the Practice Management Course. He responded to the effect that, "in my mind, it did so". He also submitted that the Applicant released him from the undertaking by giving him extensions of time and that he complied with the undertaking in 2016. He asserted that he was given "active extensions" because of the reminders that the Applicant issued.
The Respondent argued that the fact that his practising certificate for the 2017/18 Year was not endorsed with condition no. 4 is proof that the Applicant released him from his undertaking. However, we observed that as this certificate was issued after he had complied with the undertaking, condition no. 4 was no longer relevant. We did not understand how its removal could be tantamount to a retrospective release from his undertaking. However, he did not make any further submissions regarding this issue.
We asked the Respondent whether he relied upon any authorities in support of his submission that we should interpret the undertaking subjectively, rather than objectively. He replied to the effect that he is not aware of any authorities that support his submissions on this issue.
The Respondent then referred us to the decision of the Administrative Decisions Tribunal in Council of the Law Society of New South Wales v Kim, and stated that his matter should be distinguished from Kim, because the solicitor in that matter had sought to mislead the Law Society and he had not done this.
However, we noted that paras 16 and 17 of Kim indicated that the Law Society had advised the solicitor by email that there was no record of her attending a Practice Management Course and that she as in breach of her undertaking and would be referred to the Professional Standards Committee. She was told that she must provide either proof of completion of the course or proof that she had enrolled in a course by a certain date. The Law Society then sent her a letter reminding her of the condition of her practising certificate and that its records indicated that she had given an undertaking to complete the first applicable available course, but it had not received any advice that she had completed it. She was asked to provide it with the details of an enrolment, urgently, and was warned that if no response was received the matter would be referred to the Licensing Committee. We observed that these facts were very similar to those in the current matter.
We asked the Respondent if he was now making submissions in relation the appropriate orders that we should make, if we are satisfied that any ground of the Application was made out, and whether wished to make any further submissions regarding factual matters and/or legal issues. However, he did not respond.
We then invited the Respondent to address us in relation to how we should categorise his conduct by reference to the relevant provisions of the Uniform Law and the common law test of professional misconduct as set out in the decision of Allinson v General Council of Medical Education and Registration. He stated that he was not familiar with of the common law test in Allinson and we referred him to para 14 of the Applicant's Outline of Submissions, which set out this test. He then stated: My conduct should not be viewed negatively by my peers because I communicated with the Law Society… I do not consider that my conduct would be considered as disgraceful or dishonourable." He repeated that he could not afford to undertake the Practice Management Course at an earlier time, but conceded that there was no evidence before us as to his financial circumstances at any relevant time.
We referred the Respondent to s 298 of the Uniform Law and he then stated that if we find that the grounds of the Application are made out, we should find that his conduct amounts to unsatisfactory professional misconduct. We asked whether he was aware of any Authorities that supported that submission? He replied, "No".
In relation to the question of the appropriate orders that we should make if we found against him on the liability issues, the Respondent stated to the effect that, "…the orders proposed in the Application would probably follow", but that because his behaviour was "less severe" than that of the solicitor in Kim, the amount of any fine should be lower.
In relation to the issue of costs, the Respondent stated that in December 2018, he entered into an Instrument of Consent with the Applicant, but that the Applicant decided not to file it with the Tribunal "…because they said I did not believe in it". He argued that he had been put to further expense because of the Applicant's actions and that he was now raising this because his negotiations with the Applicant were conducted on a "without prejudice save as to costs" basis.
We asked the Respondent if he made any file notes of any of his telephone conversations with officers of the Applicant? He replied to the effect that he had not made file notes because he was not running a matter file, but he then stated, "I file noted them in my head and I have a very good memory."

Applicant's submissions in reply

In reply, the Applicant noted that the Respondent denies that he breached the condition on his practising certificate on the basis that it did not revoke that certificate and it issued him with certificates that enabled him to practice as an unrestricted principal of a law practice. It submitted that the issue of a practising the certificate to the Respondent did not release him from his obligation to comply with the condition that was endorsed on it.
The Applicant also noted that the Respondent denies the allegation that he failed to comply with his undertaking, because: 1. There was no definitive date for its completion and "a reasonable time" therefore applies. However, it argued that the clear terms of the undertaking required the Respondent to complete the first available Practice Management Course after the date that he gave the undertaking. 2. As he could not afford to pay for the course, no position was available to him. However, it argued that if the Respondent had any doubts about the meaning and effect of the undertaking, he should have raised the Applicant before he gave it. In any event, the Applicant argued that it is unreasonable to construe the undertaking in the terms and manner suggested by the Respondent and there are no Authorities that support the argument that the undertaking should be interpreted on a subjective basis. The wording of the undertaking is clear and it speaks for itself. 3. The Applicant allegedly extended the date for compliance with the undertaking by sending the Respondent reminders and it then released him from compliance by issuing him with a practising certificate that did not contain condition 4. However, it denied that it extended the date for compliance with the undertaking at any time and said that it sent the Respondent reminder letters because it had not received any evidence that he had completed a Practice Management Course, and it informed him that the matter would be referred to Professional Standards. Its letters are in clear terms and they do not evidence any release from the terms of the undertaking or any extension of time in which to comply with it.
The Applicant argued that the Respondent has misconstrued its correspondence. For example, its email to the Respondent (at page 8 of Exhibit A), advised him that he could request an extension of time, but it did not offer him an extension of time and it did not expressly or impliedly extend the time for compliance. Further, while he alleges that its email to him (at page 15 of Exhibit B) released him from compliance with the undertaking, this must be viewed in the context of his enquiry to which that email responded. He did not request a release from the terms of the undertaking or an extension of time in which to comply with it, but rather asked whether a particular Practice Management Course on 16 November 2016 was appropriate to his circumstances. It responded to that enquiry, but it did not expressly or impliedly release him from his undertaking to complete the required course.
The Respondent deposed in paras 8 and 21 of his second Affidavit (Exhibit 2), that in or about May 2017, he had a telephone conversation with an unidentified officer of the Applicant, during which he was advised that no disciplinary proceedings were pending against him. He argued that the Tribunal should see this "clear statement" as "the Applicant releasing me from the undertaking under Rule 6.1 of the Legal Profession Uniform Law Australian Solicitors' Rules 2015 (NSW). However, the Applicant argued that if this a conversation took place, and there is no evidence before the Tribunal to verify this, the advice that was allegedly given to the Respondent would merely indicate that its investigation into his conduct had been completed and it could not reasonably be interpreted as releasing him from compliance with his 2013 undertaking.
In paragraph 25 of his written submissions, the Respondent stated that he believed that the undertaking was dispensed with when he applied to vary his practising certificate to that of an Employee of a law practice from March 2016 until March 2017, and that he only became aware that this was not the case during a telephone call with Ms Craglietto on 8 August 2016. However, the Applicant argued that this belief was not reasonably held that it demonstrates the Respondent's fundamental lack of understanding regarding the nature of an undertaking and his obligation as a legal practitioner to comply with it.
In relation to ground (1) of the Application, the Applicant submitted that Respondent breached s 54 of the Uniform Law, which provides that a legal practitioner must comply with the conditions on their practising certificate. In view of its seriousness, his conduct should properly be categorised as professional misconduct as defined by ss 297 (1) and 298 (a) of the Uniform Law. In support of this submission, the Applicant relied upon the Tribunal's decision in Powell, which held that a practising certificate constitutes an authority to carry on practice as a legal practitioner and that the authority creates a privilege in the hands of the practitioner and any breach of any condition imposed on the right to practice must be "…a matter to be taken seriously". This condition was imposed on the Respondent's practising certificate in order to protect the public, to ensure that he undertook the appropriate Practice Management training as soon as possible after the issue of a certificate that authorised him to work as the principal of a law practice. However, he remained in breach of this condition for a period of almost three years.
In relation to ground (2) of the Application, the Applicant stated that Rule 6.1 of the New South Wales Professional Conduct and Practice Rules 2013, which applied when the undertaking was given, was in the same terms as Rule 6.1 of the 2015 Rules. It argued that the fact that that the Respondent failed to comply with his undertaking for a period of almost three years is evidence that there was a substantial and consistent failure on his part to reach or maintain a reasonable standard of competence and diligence. Therefore, his conduct should properly be categorised as professional misconduct under s 297 (1) of the Uniform Law.
The Applicant maintained that the Tribunal should make the orders proposed in the Application and that the appropriate amount for a fine in this matter is $4,000. This is because the Respondent has not expressed that he has any insight into the wrongfulness of his failure to comply with the undertaking and he has not expressed any remorse for his conduct. On the contrary, he maintained a position in which he disputed that he breached the undertaking.
In relation to the issue of costs, the Applicant argued that there is no evidence of any exceptional circumstances that would justify the Tribunal not making an order against the Respondent under Sch 5, cl 23 of the CAT Act.
In relation to the Instrument of Consent, to which the Respondent referred, the Applicant stated that the parties did enter into such an instrument, but that this was on the basis that the Respondent would still have to file a Reply and evidence in the Tribunal. However, while the instrument indicated that the Respondent agreed to all of the particulars set out in the Application, and the Respondent signed this, he then filed a Reply that contested many of the particulars set out in the Application. The Applicant therefore decided that it would not be appropriate to file the Instrument of Consent and to invite the Tribunal to make orders based upon it, because there was evidence that the Respondent disputed the facts upon which the instrument was based.

Consideration and findings

In our view, there are three matters about which the Respondent can be legitimately criticised.
Firstly, he should not have signed the undertaking that he gave to the Applicant in connection with his application to vary his practising certificate without having first checked what was required of him in providing it.
In our view, there is no proper basis for interpreting the meaning of the undertaking subjectively, based upon the Respondent's proffered belief as to its meaning. The undertaking must be construed objectively. In our view, its wording is clear and unambiguous and speaks for itself and we are satisfied that it required the Respondent to complete "the next applicable Practice Management Course when there is a position available" after 27 November 2013.
In any event, the evidence indicates that course that the Respondent commenced on 16 November 2016 was not "the next applicable Practice Management Course when there is a position available" after 12 December 2013.
Secondly, the Respondent should have advised the Applicant as soon as he became aware of his inability to comply with his undertaking. While the Respondent asserts that he contacted the Applicant after he received its reminders and review letters, there is no evidence before us that indicates that he did so at any time before 8 August 2016. This appears to be the first occasion upon which he notified the Applicant, by way of an email sent to Ms Craglietto, that he was unable to afford to pay for the Practice Management Course.
The Respondent disputed that he breached the undertaking and argued that the Applicant had extended the time in which he was required to comply with it and/or released him from it. However, based upon the evidence before us, we are satisfied that the Applicant did not expressly or impliedly grant the Respondent an extension of time for compliance with his undertaking and that it did not release him from compliance with it.
Thirdly, by the same conduct the Respondent breached condition no. 4 of his practising certificate during the period from 12 December 2013 to 17 November 2016.
While the Respondent submitted (at para 10 of Exhibit 2) that as the Applicant exercised its discretion under s 53 of the Uniform Law to impose condition no. 4 on his practising certificate "on my making the undertaking" and issued him with the required practising certificate, he was therefore not in breach of the condition.
We do not understand the Respondent's argument on this issue. In any event, we do not accept that the Applicant's action in issuing him with a practising certificate that enabled him to practice as a principal of a law practice subject to completion of the Practice Management Course, which was issued to him based upon his undertaking to complete that course, means that he did not breach that condition because he failed to comply with his undertaking.
We also reject the Respondent's argument that the fact that condition no. 4 did not appear on his practising certificate for the 2017-18 year, is evidence that the Applicant released him from compliance with the undertaking. Rather, we find that as this certificate was issued after he complied with his undertaking, condition no. 4 no longer applied.
Accordingly, we are satisfied that both grounds of the Application have been made out.

Categorisation of the conduct

Section 296 of the Uniform Law defines unsatisfactory professional conduct 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.
Section 297 (1) of the Uniform Law relevantly provides: 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;…
However, the common law concept of professional misconduct includes conduct in pursuit of professional activities, which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: See The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 for medical practitioners
In determining whether to make the orders sought by the parties we must consider whether it is appropriate to characterise the conduct that we have found as either unsatisfactory professional conduct or professional misconduct.
The legal profession is an honourable one and legal practitioners are expected by the community, by fellow practitioners and the relevant regulatory authorities, to behave in an honourable manner. It is a common occurrence in legal practice for legal practitioners to 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. The recipients of those undertakings rely upon the legal practitioner's compliance and this 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 should be genuinely given and honoured.
For these reasons, a legal practitioner's breach of an undertaking, whether given in the course of legal practice or not, is a most serious matter and may, in relevant circumstances, adversely impact upon the integrity of the legal profession in the eyes of the public.
Further, as the Tribunal stated in Powell, 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 our view, the Respondent's conduct falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and it constitutes a substantial failure to maintain a reasonable standard of competence and diligence. Further, it is conduct in pursuit of professional activities that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.
For these reasons, we are satisfied that the Respondent's conduct is properly characterised as professional misconduct as defined in s 297 (1) of the Uniform Law and at common law. We find that he is guilty of professional misconduct in respect of both grounds of the Application.

Protective orders

We must determine what orders are appropriate and the range of orders that the Tribunal is empowered to make is set out ss 299 and 302 of the Uniform Law. We do not consider it necessary to set out these provisions in this decision.
It is well established law that the purpose of these orders is to protect the public from inappropriate conduct by legal practitioners and to enhance the integrity and reputation of the legal profession within the community. An important consideration is the deterrent effect that the orders will have, not only upon the Respondent, but also upon the legal profession generally (lest they be tempted to fall into the same errors of judgement as befell the Respondent).
We note that the Respondent's misconduct consisted of giving an undertaking and not complying with it and thereby breaching a condition of his practising certificate. That conduct persisted over a period of almost three years and we note that for a period of approximately two years and two months during those three years he practised in breach of that condition.
We further note that the Respondent has not expressed any remorse or contrition for his misconduct and he has not offered any apology. While we note that he apparently signed an Instrument of Consent, in which he admitted the grounds and particulars of the Application, he subsequently filed a Reply and an Amended Reply in which he disputed those grounds and many of the particulars of the Application.
While the Respondent informed the Tribunal in his oral submissions that he understands "the severity" of a solicitor's undertaking, we consider that his misconduct suggests otherwise. He has not shown any insight concerning his misconduct and/or any appreciation of his obligations as a legal practitioner to comply with an undertaking and to not practice contrary a condition of his practising certificate.
For these reasons, we are satisfied that the Respondent should be reprimanded and that he should also pay a fine in the sum of $4,000.

Costs

Schedule 5 cl 23 (1) of the CAT Act relevantly provides that the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant) unless the Tribunal is satisfied that exceptional circumstances exist.
We have found the Respondent guilty of professional misconduct and note that there is no evidence of exceptional circumstances before us. We also reject any suggestion that the Applicant's decision to not file the Instrument of Consent with the Tribunal, in the circumstances described in para 40 of this decision, constitutes exceptional circumstances for the purposes of cl 23 (1) of the CAT Act. It is therefore appropriate that we make a costs order against the Respondent.

Orders

We make the following orders: 1. The Respondent is reprimanded 2. The Respondent is to pay a fine of $4,000 3. The Respondent is to pay the Applicant's costs, as agreed or assessed.

I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar 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 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 June 2019

Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015(NSW)

Legal Profession Uniform Law Australian Solicitors' Rules 2015(NSW)

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