Council of the Law Society of New South Wales v Sideris

Council of the Law Society of New South Wales v Sideris - [2024] NSWCATOD 121 - NSWCATOD 2024 case summary — Zoe

Summary

On 13 June 2023, the Council of the Law Society of New South Wales (the Law Society) applied to the Occupational Division of this Tribunal for disciplinary findings and orders with respect to the respondent, Mr George Sideris. In Council of the Law Society of New South Wales v Sideris [2024] NSWCATOD 3, we found the respondent guilty of professional misconduct under s 297 of the Legal Profession Uniform Law (NSW) (Uniform Law) (the "liability" or "Stage 1" decision).
The respondent's conduct in sending certain correspondence directly to the Salvation Army (TSA), which was represented by another solicitor, despite being asked not to send direct communications, amounted to professional misconduct (Ground 1 of the Law Society's disciplinary application). The discourteous nature of the respondent's communications with TSA and with TSA's solicitors also amounted to professional misconduct (Ground 2 of the disciplinary application). The communications occurred in the context of a dispute with TSA relating to a refundable accommodation deposit (RAD) concerning a resident in an aged care facility operated by TSA.
Having made findings of professional misconduct, the task of the Tribunal is to determine the appropriate protective orders and to consider awarding costs in the proceedings.
The respondent does not currently hold a practising certificate. For reasons not known to us until after we had conducted Stage 1 of the proceedings, the Law Society cancelled his then current practising certificate effective 23 February 2024, and further determined that he is not entitled to apply for any practising certificate for a period of 5 years from that date.
With respect to protective orders in the proceedings, the Law Society asks us to recommend to the Supreme Court of New South Wales that the respondent's name be removed from the local roll of lawyers maintained by the Court. The Law Society contends that there exists evidence of unfitness to practise, based on the continuing nature of the conduct which was the subject of the Tribunal's findings of professional misconduct.
For the reasons that follow, we have decided that the appropriate protective order is to make a recommendation to the Supreme Court that the respondent's name is removed from the roll under s 302(1)(f) of the Uniform Law. The respondent is to pay the applicant's costs of the proceedings.

[4]

Hearing on protective orders and costs

Following publication of the "Stage 1" decision on 5 January 2024, the parties had an opportunity to file and serve further evidence and submissions about protective orders and costs ("Stage 2" issues). Hicksons Lawyers became the solicitors on the record for the Law Society in the proceedings on 2 February 2024.
In written submissions dated 25 March 2024, the Law Society made clear its position that it seeks an order from the Tribunal recommending the removal of the respondent's name from the roll under s 302(1)(f) of the Uniform Law. While the respondent has made no specific submissions on what protective orders the Tribunal should make, we take him to oppose the protective order sought by the Law Society.
The hearing on protective orders and costs (or "Stage 2 hearing") was initially set down for a half day on 21 May 2024. The Tribunal agreed to change that hearing date several times to accommodate the parties. Relevantly, the respondent had advised that he would be leaving Australia to travel overseas on 18 June 2024 and not returning until November 2024. In correspondence to the Tribunal's Registry on 7 May 2024, he stated "I will abroad as from 18th June for a family Funeral and will not be back until November - AS I SAID to you all in my emails".
The respondent did not appear at the hearing on 12 June 2024. The basis of his unavailability may be summarised by reference to the sentiment expressed in his email sent on 10 May 2024 to the Tribunal's Registry, Hicksons Lawyers and the Law Society: "I have a lot of things to do before I go so cannot meet with you bunch of inconsiderate people. Nor do I want to meet with you …" (Affidavit of C Moore 21 March 2024, Exhibit CM-3, p 28). He continued to send emails to Hicksons Lawyers and to the Tribunal up to the hearing date on 12 June 2024, including on the morning of the hearing, and was clearly aware of the hearing date and time. No request for an adjournment of that hearing date was made or granted.

[6]

Evidence relied on and written submissions

In addition to the evidence tendered and written submissions made by the Law Society in Stage 1 of the proceedings, the Law Society relies on the following further documentary material: 1. Affidavit of Christopher Edward Moore (of Hicksons Lawyers) sworn 21 March 2024, including Exhibits CM-1 and CM-2 to that affidavit; 2. Affidavit of Christopher Edward Moore sworn 18 April 2024, with Annexure A; 3. Affidavit of Christopher Edward Moore sworn 11 June 2024, including Exhibit CM-3 to that affidavit; and 4. Written submissions lodged with the Tribunal on 25 March 2024, together with a schedule which collates examples of discourteous correspondence exhibited to the Moore affidavit of 21 March 2024 (Schedule 1 - Discourteous Correspondence), and another schedule which includes some transcript references from the hearing on 29 November 2023 (Stage 1 hearing) (Schedule 2 - Transcript References).
The affidavits were tendered and received into evidence, with no objections to their admission having been raised. Leave was granted to the Law Society to tender the Moore Affidavit of 11 June 2024 as "late" evidence (being evidence filed and served outside the Tribunal's timetabling directions). We observe that the respondent was the author or recipient of the correspondence exhibited to the affidavit, and cannot be said to be unaware of the contents of that correspondence.
The Moore Affidavit of 21 March 2024 exhibits correspondence from the respondent between the period 15 November 2023 to 8 March 2024 in respect of the current Tribunal proceedings; the transcript of the Stage 1 hearing; and documents relating to the Law Society's suspension and cancellation of practising certificates held by the respondent (at CM-1).
Exhibit CM-2 to the Moore Affidavit of 21 March 2024 contains correspondence sent by the respondent to the Tribunal, between 27 November 2023 and 13 February 2024, where he did not obtain the prior consent of the Law Society to send that correspondence, or did not copy the Law Society's lawyers.
The Moore Affidavit of 18 April 2024 annexes emails between the respondent, the Law Society and Hicksons Lawyers sent between 22 and 30 March 2024 in the course of these proceedings, including in relation to the exchange of evidence and submissions during Stage 2 of the proceedings. By email dated 25 March 2024 sent to Hicksons Lawyers and copied to the Tribunal, the respondent included an email chain including an email dated 14 January 2024 to which he attached written statements (dated 14 January 2024) from his former mother-in-law, Mrs Norma Sim, and his ex-wife, Dr Fiona Sim, respectively.
The Moore Affidavit of 11 June 2024 exhibits further correspondence from the respondent following the swearing of the two prior affidavits by Mr Moore. Some of the correspondence relates to the current Tribunal proceedings and was sent by the respondent to the Law Society including individual employees, to Hicksons Lawyers and to the Tribunal. The affidavit also exhibits correspondence from the respondent to Minter Ellison (acting for the Law Society), the NSW Supreme Court and the Equity Registrar, and the Chambers of Richmond J, in the context of Supreme Court proceedings commenced by the respondent in relation to the cancellation of his practising certificate.
The documentary material tendered by the Law Society in Stage 2 of the proceedings falls into three categories: (i) correspondence from the respondent in the context of these Tribunal proceedings; (ii) correspondence from the respondent in the separate Supreme Court proceedings; and (iii) documents pertaining to the Law Society's suspension and subsequent cancellation of practising certificates held by the respondent during the period February 2022 to February 2024.
We will not make express reference to all of the items of correspondence and other documents in evidence before us. With respect to correspondence falling within the categories (i) and (ii) described above, and whilst the recipient and context varies, the nature of the discourteous or otherwise inappropriate correspondence remains largely the same and continues regardless of whether Tribunal Registry staff, employees of the Law Society (including an in-house solicitor), Hicksons Lawyers, this Tribunal, or a judge's chambers, is the recipient of that correspondence.

[7]

(i) Correspondence from respondent in context of Tribunal proceedings

The Moore affidavits collectively attach approximately 200 emails from the respondent to the Law Society including its employees, Hicksons Lawyers, and to this Tribunal, sent during the course of, or in the context of, these disciplinary proceedings. The vast majority of these emails contain discourteous language, insults directed at various persons, the Law Society or Tribunal, or threats to commence legal action against individuals, the Law Society or the Tribunal. These communications span almost 400 pages.
It is the Law Society's submission that this correspondence is relevant to the Tribunal's task in making protective orders for a number of reasons. It is evidence which demonstrates lack of insight and understanding on the part of the respondent; a failure to see the error of his ways; a flouting of the rules governing the legal profession; and a systematic and continued pattern of behaviour in the same vein as that forming the basis of the complaint in Stage 1. This is said to go to the respondent's fitness to practise.
Schedule 1 to the Law Society's written submissions contains a table which points to 59 items of correspondence which contain discourteous language, sent by the respondent via email between 15 November 2023 and 15 February 2024 in the course of these proceedings. Further discourteous correspondence was sent by the respondent after this date, again in the course of these proceedings, which is evident from correspondence attached to the Moore Affidavits of 18 April and 11 June 2024 respectively.
Several themes emerge from this correspondence. One is that the respondent considers the proceedings commenced in the Tribunal to be unnecessary and he questions the motivation of the regulator (in this context, the Law Society) and others involved including the complainant (TSA's solicitor in the RAD dispute). Some emails refer to the Law Society's action itself (presumably, in commencing disciplinary proceedings in the Tribunal) being "stupidity", "ridiculous" and "totally unnecessary". Many of the emails in this context also use inappropriate language, some of which is extremely inappropriate in the context. In one email, the respondent writes "FUCK off the lot of you you bunch of idiots" (CM-3, p 31) and "Let me be a littler nicer - FUCK OFF" (Exh CM-1, p 287), where others state "Better still" or "So simply put" before attaching images of a middle finger (CM-1, pp 393, 395). The recipients of the discourteous, offensive or otherwise inappropriate correspondence includes employees of the Law Society (including in-house solicitors) and solicitors at Hicksons Lawyers.
Another theme which emerges is the insulting (and potentially contemptuous) language directed to the Tribunal and also to the Law Society, particularly after the publication of the Tribunal's Stage 1 findings. The tone and language used in correspondence to the Tribunal, including its Registry, progressively worsens during Stage 2 of the proceedings. The respondent refers to NCAT as "a bunch of idiots hiding behind a Govt banner" (CM-3, p 4) and stated: "… fuck off " all of you" (CM-3, p 31). In another email, he states in relation to the Stage 1 decision: "I have read it all - what a load of shit" (CM-3, p 1).
Additionally, the correspondence in evidence contains various threats from the respondent to take further action including suing the Law Society and the Tribunal. The respondent refers to taking things to the "nth degree", for example where he states "So SHUT this bloody mess down and if not I will pursue it to the nth degree and sue the Law Society" (CM-3, p 4), and "bugger off unless you want a major law suit against you all" (CM-3, p 40).

[9]

(iii) Law Society action concerning practising certificates held by respondent

The Law Society tenders material about the respondent's disciplinary history (in the period 2022-2024) by way of "background and in the context of the conduct the subject of Grounds 1 and 2, as well as his conduct in the context of the Tribunal proceedings themselves".
On 20 October 2022, the Law Society suspended the practising certificate held by the respondent for the year 2022/23. He had been issued, on 16 February 2022, with a designated show cause event notice under s 90(a)(i) of the Uniform Law which alleged, inter alia, that he engaged in legal practice outside the terms of his Corporate Legal Practitioner practising certificate, and that, on a number of occasions, he had wrongly asserted to third parties that he was the "principal", "principal solicitor" or "sole practitioner" of "George Sideris and Associates", and appeared to carry out legal work under that name.
This was relevant in circumstances where that entity had ceased to exist as a law practice in July 2019; the respondent was only entitled to engage in legal practice for his employer; he held no professional indemnity insurance; he had been advised by the Law Society repeatedly since at least December 2019 that insurance is required to practise as a principal; and he continually sent correspondence which included the words "Liability limited by a Scheme approved under Professional Standards Legislation", despite not being a member of the Scheme, nor eligible for that Scheme whilst holding a Corporate Legal Practitioner practising certificate (CM-1, pp 178-179).
Despite the show cause notice which required the respondent to provide a written statement in accordance with s 91(1) of the Uniform Law explaining why he is a fit and proper person to hold a practising certificate, he did not provide a statement which expressly addressed each of the matters in the notice. However, he sent various emails to the Law Society between 16 February 2022 and 13 July 2022. In summary, the respondent's explanation in response to the show cause notice, apparent in an email sent by him on 30 April 2022, was that he "made a mistake" as he had always "assumed" that working as a corporate legal practitioner or as any other Australian legal practitioner (including as a principal) were "the same" (CM-1, p 179).
The respondent subsequently participated in an education session organised by the Law Society's Professional Support Unit on 29 November 2022, which dealt with the following matters: (a) the different categories of practising certificates under the Uniform Law and the entitlements and requirements associated with each; (b) the obligations of solicitors to comply with practising certificate conditions; (c) the obligations of solicitors to comply with the legal profession legislation as defined in s 3A of the Legal Profession Uniform Law Application Act 2014 (NSW) and the Professional Standards Scheme; and (d) the obligations of solicitors in dealing with the designated local regulatory authority (CM-1, p 179).
Following that education session, he sent an email to the Law Society on 2 December 2022 which listed the areas of education the session covered, and listed headings under the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (Conduct Rules). The respondent concluded: "I will say in absolute sincerity that the Education session was indeed very well presented and very well accepted by me. I have reviewed all the requirements as above and am indeed in a better knowledge position" (CM-1, p 180). In an email sent to the Law Society on 29 January 2023, he acknowledged that "I am not permitted to act in private practice as George Sideris & Associates or in any other form - for what I did in the past I apologise" (CM-1, p 180).
It is not necessary for us to refer in further detail to the material on which the Law Society based its suspension and cancellation decisions. Some of that material would appear to be of only marginal relevance to the issues that arise in the current proceedings.
For present purposes, it is enough to record that, on 2 March 2023, the Law Society resolved not to lift the suspension of the respondent's practising certificate as it was not satisfied that he had met the requirements for the suspension to be lifted. The Law Society proposed to cancel his practising certificate on the ground specified in s 82(1)(d) of the Uniform Law and that, if cancellation were to occur, he be restricted from reapplying for a practising certificate for 5 years.
On 7 June 2023, the respondent was examined by a medical practitioner (a forensic psychiatrist) retained by the Law Society to provide a report as to the respondent's ability to fulfil the inherent requirements of an Australian legal practitioner. A report was provided to the Law Society on or about 15 June 2023 and to the respondent. There was no evidence of cognitive impairment or disability.
On 28 June 2023, the Law Society renewed the respondent's practising certificate under s 78(2) of the Uniform Law, and immediately suspended it for the period from 1 July 2023 to 30 June 2024. On 23 February 2024, the Law Society proceeded to cancel his practising certificate pursuant to s 82(1)(d) of the Uniform Law on the ground that it reasonably believed that he was unable to fulfil the inherent requirements of an Australian legal practitioner. Further and pursuant to s 94 of the Uniform Law, the Law Society decided that he was not entitled to apply for a practising certificate for 5 years.

[10]

Respondent's evidence in relation to protective orders

We take the respondent to rely on his affidavit and other evidence adduced at the Stage 1 hearing as relevant to protective orders and costs. While he has not formally sought to tender any further evidence during Stage 2 of the proceedings, we have treated the two written statements dated 14 January 2023 of Mrs Norma Sim and Dr Fiona Sim (emailed by the respondent to Hicksons Lawyers and copied to the Tribunal) as evidence adduced by the respondent for the purpose of Stage 2 proceedings (Annexure A of Moore Affidavit of 18 April 2024, pp 18-21).
Briefly described, the respondent's ex-wife, Dr Fiona Sim, details how he "worked very hard with the Salvation Army and Services Australia to assist my mother at time when [the complainant] was trying to hurt her". It is asserted that the respondent acted in the capacity as a son-in-law, rather than as a lawyer. Dr Sim also writes: "If this matter is not fixed up for the benefit of Mr George Sideris I and my mother will ensure that this letter goes out to the open press and also we will get an external lawyer involved to take action against the Law Society and NCAT for causing me and my mother a substantial amount of grief through this silly and unnecessary action against Mr George Sideris".
The statement from Mrs Norma Sim contains similar assertions. She writes that the respondent "was at all times acting as my son in law" and states "I cannot at all understand the actions of NCAT to consider that Mr George Sideris was involved in professional misconduct when he assisted me at my request to get a very positive result for me". Mrs Norma Sim also states that "If this matter is not fixed up for the benefit of Mr George Sideris I will ensure that this letter goes out to the open press and also I will get an external lawyer to take action against the Law Society and NCAT".
It is not clear to us whether these written statements were provided by the respondent for the purpose of seeking to demonstrate extenuating or mitigating circumstances relevant to the making of protective orders. At the Stage 2 hearing the Law Society submitted that little weight could be afforded to the statements, which go not much further than suggesting the respondent was acting in the context of the RAD dispute to help his former mother-in-law, and that submission has been repeatedly made and is not a mitigating factor.
The two written statements appear to relate primarily to issues which have already been determined in Stage 1 of the proceedings, particularly whether or not the respondent (relevantly) acted in the course of legal practice. The statements support the position he took during Stage 1 that he was acting in his capacity as a former son-in-law rather than as a solicitor in the RAD dispute with TSA. We have already made findings in this respect.

[11]

The Tribunal's role in making protective orders

Disciplinary proceedings in relation to a legal practitioner are not punitive in nature but are protective of the community. In Law Society of New South Wales v Walsh [1997] NSWCA 185 (Walsh) at 40, Beazley JA confirmed 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 the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors."
Disciplinary proceedings are pursued for a number of purposes, including the protection of the public from misconduct by the legal practitioner in question and from the misconduct of other legal practitioners who might conduct themselves in a similar way. Such proceedings also seek to set, clarify and maintain the appropriate standard of conduct for legal practitioners and to publicly denounce misconduct. In doing so, they maintain public confidence in the legal profession. The Tribunal's function is also educative, "publicly marking the seriousness of what the instant solicitor has done": Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441.
It is relevant to consider the effect the orders sought would have on the understanding of the profession and the public as to the standard of behaviour required of legal practitioners. The primary public interest is in the maintenance of public confidence in the legal profession by reason of the central role the profession plays in the administration of justice: Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (Parente) at [25]-[26] per Basten and Meagher JJA; and at [44], [49]-[50], [67] per Brereton JA. 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 lapse 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".
Having found the respondent guilty of professional misconduct, the Tribunal may make "such orders as it thinks fit": Uniform Law, s 302(1). That section relevantly provides that the Tribunal may make orders including an order recommending the name of the respondent lawyer be removed from the roll (s 302(1)(f)). The Tribunal may also make any of the orders that a local regulatory authority can make under s 299 of the Uniform Law.
Courts and tribunals have consistently emphasised the protective nature of the jurisdiction. As expressed in Law Society of New South Wales v Bannister (1993) 4 LPDR 24 at 28 per Shellar JA: "When the jurisdiction of the Tribunal is invoked... 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."
Whether the practitioner in question has shown insight into the wrongful nature of the conduct, or contrition for the wrongful conduct, will generally be relevant to appropriate protective orders. The Full Court of the ACT Supreme Court noted in Council of Law Society of ACT v Bandarage [2019] ACTSCFC 1 (Bandarage) at [126] that "[a] history of wrong conduct predicts incapacity to change, as does a lack of remorse and insight into past wrong conduct".
However, as Leeming JA observed in Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]-[13], while contrition is an influential factor in determining what orders are appropriate, its absence cannot always be relied upon to validate a higher penalty. Similarly, in Khosa v Legal Profession Complaints Committee [2017] WASCA 192 (Khosa) at [58], Buss P commented that "[t]he absence of remorse is not aggravating. However, the absence of remorse by the appellant was relevant, in the present case, in determining the appropriate penalty option or options … in particular, protecting the public by ensuring that proper professional standards within the profession are maintained".
The Tribunal may have regard to the previous disciplinary record of a legal practitioner in an appropriate case. Previous conduct is relevant if, for example, it demonstrates similar deficiencies in a solicitor's approach to legal practice: Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [109]. See Council of Law Society of NSW v Gallego (No 2) [2017] NSWCATOD 61 for an example where the Tribunal took into account prior conduct of a solicitor which had been found in earlier disciplinary proceedings: [38]-[39], [45].

[13]

Legal principles - roll removal

It is well established that, where an order for removal from the roll is contemplated, the ultimate issue is whether the respondent lawyer is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court: Council of the Law Society of New South Wales v Jafari [2020] NSWCA 53 (Jafari) at [31]; A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253; [2004] HCA 1 at [21]; Council of the Law Society of New South Wales v Yoon [2020] NSWCA 141 at [23]. As the High Court observed in APLA Ltd v Legal Services Commissioner (NSW) (2005) 224 CLR 322; [2005] HCA 44 at [21] per Gleeson CJ and Heydon J: "[t]he Supreme Court holds out those whose names are on its roll of practitioners as fit and proper persons to be entrusted with the duties and responsibilities of a legal practitioner".
As the NSW Court of Appeal recently affirmed in Council of the NSW Bar Association v Rollinson [2024] NSWCA 84 at [30], in determining whether an order for removal from the roll should be made, the question is whether the practitioner "is presently not fit to practise and is likely to be unfit to do so in the indefinite future" (citing Council of the Law Society of NSW v Clarke [2022] NSWCA 57 at [9]). "It is not capable of more precise statement" (see Ziems v Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279 (Ziems) at 298; [1957] HCA 46 per Kitto J). The Court must apply established principles reflecting the purpose of disciplinary proceedings, namely protecting the public and its confidence in the legal profession. See also Council of the Law Society of New South Wales v Green [2022] NSWCA 257 at [67]; Parente at [33]; Stanoevski v Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54]; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [26].
In determining whether to make a roll removal recommendation to the Supreme Court under s 302(1)(f) of the Uniform Law, the same principles are to be applied by the Tribunal. The "starting point" for the Tribunal is "the finding about present unsuitability to practise as a solicitor". Where the Tribunal is satisfied not only that the respondent lawyer is presently unfit to practise, but that the lawyer is permanently unfit or "likely to be unfit for the indefinite future", it will be appropriate to make a recommendation that the name of that lawyer be removed from the roll (Council of the Law Society of New South Wales v Zhukovska (2020) 102 NSWLR 655; [2020] NSWCA 163 (Zhukovska) at [99]).
A roll removal order made by the Supreme Court does not preclude a person from seeking readmission. As the Tribunal observed in Council of the Law Society of NSW v Yoon [2019] NSWCATOD 28 at [54]: "… the decision in Ex parte Lenehan (1948) 77 CLR 403 stands as continuing authority for the proposition that a strike off order is not final and is not, in the graphic language of James QC (as he then was) in Jauncey v Law Society (Court of Appeal, unreported, 1 February 1989) "a sentence of professional death". Although readmission is not common there are instances of readmission to the roll on demonstration of a sufficient period of commendable conduct showing rehabilitation and fitness."
While the Uniform Law no longer permits the Tribunal to remove the name of a legal practitioner from the roll (but instead to make a roll removal recommendation to the Supreme Court), earlier authorities are of some assistance to the Tribunal. In Walsh, Beazley JA (at 43-44) summarised the principles which should guide the Tribunal in determining whether an order for roll removal should be made: 1. The Tribunal's power is discretionary; 2. Subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when the practitioner has been found not to be of good fame and character; 3. The subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public; and 4. In general, mitigating factors, such as evidence of respected reputation, no previously found misconduct, or service to the profession are of considerably less significance than in the criminal sentencing process.
It is often stated that a failure by the lawyer concerned "to understand the error of his ways" will be relevant to fitness to practise: see e.g. New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20 (Evatt) at 184. What other considerations will be relevant depends on the nature of the case, but will usually include: the seriousness of the impugned conduct and the circumstances surrounding that conduct; any aggravating or mitigating circumstances; other relevant circumstances such as the lawyer's disciplinary history, the insight, remorse or contrition shown. and the likelihood, if any, of further instances of poor conduct.
Further, as the Court of Appeal stated in Council of the New South Wales Bar Association v EFA (a pseudonym) (2021) 106 NSWLR 383; [2021] NSWCA 339 at [169]: "…as the majority judgments in Ziems, (particularly that of Kitto J show), a finding of unfitness involves more than an objective analysis of the impugned conduct, absent often relevant (often extenuating) circumstances. 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".
The legal onus at all times remains on the Law Society to show current unfitness and "probable indefinite unfitness to practise" (Zhukovska at [115]). Unfitness to practise based on misconduct is to be proved according to the civil standard, and bearing in mind the seriousness of the matter (see s 140(2) of the Evidence Act 1995 (NSW)).
The Court of Appeal has indicated, in relation to roll removal proceedings, that whether a practitioner is shown not to be a fit and proper person to be a legal practitioner of the Supreme Court is to be decided at the time of hearing (see e.g. Jafari at [31]; Zhukovska at [100] citing A Solicitor at [15] and [21]). Applying that same principle, in deciding whether to recommend roll removal in this case, findings about current unfitness to practise, and permanent or probable indefinite unfitness, are to be made at the time of the Tribunal's Stage 2 hearing.

[14]

Submissions of Law Society - roll removal

While it had previously sought less impactful orders during Stage 1 of the proceedings, the Law Society submits that the persistence of the respondent's inappropriate behaviours in the context of these disciplinary proceedings warrants a more severe order. The Law Society contends that there is no viable alternative option to roll removal as a sanction that would adequately protect the public and safeguard the standing of the legal profession.
The Law Society submits that the respondent's permanent, or at least indefinite unfitness to practise, is demonstrated by:

the continuing nature of the conduct which was the subject of the Stage 1 findings by the sending of discourteous, insulting or threatening correspondence, albeit in a different context to the RAD dispute;
lack of insight into the wrongfulness of his conduct the subject of the Stage 1 findings and of the wrongfulness of his continued behaviours;
continued flouting of the rules that govern the legal profession.

In its written submissions dated 25 March 2024, the Law Society refers us to: (1) the respondent's relevant disciplinary history, which includes the cancellation by the Law Society of his practising certificate; (2) the nature of the Tribunal's findings in the Stage 1 decision; (3) the respondent's conduct in the sending of correspondence in the context of Stage 1 proceedings; and (4) lack of insight on his part into the wrongfulness of his conduct in the context of the Stage 1 proceedings.
In oral submissions at the Stage 2 hearing, the Law Society refers to the further ongoing correspondence of a discourteous or otherwise inappropriate nature from the respondent to the Law Society, solicitors for the Law Society and to the Tribunal in the context of Stage 2 proceedings, as well as to other correspondence from the respondent in the context of the separate Supreme Court proceedings.
The Law Society contends that the respondent's conduct demonstrates a willingness to engage in offensive conduct to achieve a desired outcome where he perceives a person or organisation is acting contrary to his interests. In the context of the Stage 1 proceedings, the trigger for the conduct was the dispute relating to the RAD. The disciplinary proceedings appeared to be the catalyst for the same type of conduct that is the subject of the Stage 1 findings. There is no basis to believe, given his conduct through the course of these disciplinary proceedings, that similar conduct will not occur in the future.
Pointing to evidence attached to the Moore Affidavit of 11 June 2024, the Law Society also says that the nature of the correspondence during the course of these proceedings matches the nature of the correspondence and behaviour exhibited by the respondent during the separate Supreme Court proceedings. The evidence tends to suggest that the respondent believes his conduct is justified. The behaviours appear to be well entrenched.
The Law Society submits that the fact that the respondent has failed to appreciate what is problematic about the nature of his conduct in and "of itself demonstrates his unfitness to belong to a profession where in practice the client must depend upon the standards as well as the skill of his professional advisor": Evatt at 184.
In oral submissions at the Stage 2 hearing, the Law Society pointed to various items of correspondence sent by the respondent in the course of these proceedings, as evidence of indefinite or permanent unfitness. For example, in an email sent to an employee of the Law Society on 28 November 2023, he states "you are a moron - I have no remorse as I was acting for my mother in law you pathetic human being" (CM-1, p 297). The Law Society submits this statement goes to the heart of his lack of insight - he feels as though his actions are justified and he exhibits no remorse for these actions.
On 30 November 2023, the respondent sends another email to an employee of the Law Society containing insults including calling a solicitor at the Law Society a "pathetic human being" (CM-1, p 312). The Law Society submits, that whilst emotions can be heightened during a hearing, the respondent's email was sent shortly after the Stage 1 hearing, the respondent still being critical of the disciplinary process.
In this same email, he also states "You bring in a ridiculous Counsel who 'bantered' on for hours with ludicrous statement which cost the Law Society and me a lot of Money". This is followed by a personal insult directed at a solicitor at the Law Society: "That is why you work for the Law Society because you cannot get another position" (CM-1, p 312). The Law Society submits this demonstrates that the respondent has not taken these proceedings seriously and he feels as though he has not done anything wrong.
The Law Society contends that the respondent's discourteous behaviour, as seen in further emails, continues to escalate. On 10 December 2023, he sends an email to a solicitor at the Law Society stating: "I do not care how NCAT responds but I will sue your arse big time" (CM-1, p 360). On 9 January 2024, the respondent sends an email to the Law Society similarly stating: "If the Law Council wants to be difficult so be it but give me names and I will tell them what to do as currently I do not care about you or the Law Society or the Law Council as I need to look after an old lady" (CM-1, p 439). On 21 March 2024, the respondent begins an email to the Tribunal's Registry with "I will respond again to you all you pathetic group of human beings" (Annexure A of Moore Affidavit of 18 April 2024, p 2).
The Law Society submits that further correspondence, while remaining discourteous, goes a step further in stating the Tribunal's processes were not entirely proper. For example, in an email to the Law Society, Hicksons Lawyers and the Tribunal on 13 February 2024, he refers to the Tribunal as a "pathetic group … that does not want to recognise facts and supports a lawyer Clown" (CM-1, pp 482-485). In an email sent 22 January 2024 to the Law Society and the Tribunal's Registry, he states "I am a little more mature than you and do not take bullshit from anybody including NCAT" (CM-1, p 469). He also demands that the Tribunal issue him a formal apology, clearly refusing to accept the Tribunal's Stage 1 decision (Annexure A of Moore Affidavit of 18 April 2024, p 2).
On 22 April 2024, the respondent sends an email to Hicksons Lawyers, copied to the Law Society and the Tribunal, stating "So SHUT this bloody mess down and if not I will pursue it to the nth degree and sue the Law Society" (CM-3, p 4). On 9 May 2024, the respondent writes an email to the Law Society, Hicksons Lawyers and the Tribunal's Registry and states that the Tribunal "illegally" found him guilty of professional misconduct, and continues with: "I suggest NCAT and the applicant and the law firms are very careful as I have nothing to lose in suing all of you for vast damages" (CM-3, p 26).
The Law Society contends that a further aggravating factor is that the respondent has been explicit in his disregard for the Law Society's fulfilment of its obligation as a regulator and the Tribunal's processes, such that it is contended that it is likely that his behaviour will continue unchecked. In an email sent 15 November 2023 to the Law Society, the respondent states: "So cut your Law Society Rubbish" demonstrating a clear disregard for the Law Society as a regulator (CM-1, p 222). This email also includes a threat to sue an employee of the Law Society personally. The respondent also refers to the action as "stupidity", asserting "I cannot understand the stupidity of this action by [the complainant] given that he was aware at all times that I was acting as the son in law … You may get upset at my comment but I am at the stage of not caring" (CM-1, p 335).
The respondent's disregard for the disciplinary process is also indicated by his statements that NCAT has been "irresponsible" and "What is wrong with NCAT to support a person like [complainant] (and I will not again call him a pathetic Human) that went out of his way to hurt Norma Sim and Fiona Sim" (CM-1, pp 487-488). These statements were made in an email addressed to the presiding Tribunal Member and sent to a Tribunal Registry email address on 12 February 2024. That email was forwarded by the Registry to the Law Society and the respondent, with a reminder that all correspondence to the Tribunal must be sent to all parties. A solicitor from Hicksons Lawyers then replied confirming its representation of the Law Society, to which the respondent replied on 13 February 2024 stating: "I do not care who act for (sic) and I will send detail to NCAT and the Law Society as I wish in this ridiculous matter" (CM-1, p. 485). In a later email sent on 14 February 2024 to Hicksons Lawyers, he refers to the Tribunal as being "horrific in their attitude and unwarranted action against me" and states: "[t]he NCAT attitude is despicable indeed" (CM-1, pp 490).
The Law Society contends that these threats and insults are intended to stop the Tribunal proceedings. They go beyond discourtesy and constitute an attempt to intimidate.
In the Law Society's submission, while the conduct the subject of Stage 1 proceedings was directed to employees of TSA, the respondent has had no qualms about directing his conduct to others including the Law Society, its lawyers, and the Tribunal, in the context of these disciplinary proceedings. He does not accept the authority of the Tribunal or the regulatory function of the Law Society. There exists a clear uninterrupted pattern of behaviour continuing up until the day of the Stage 2 hearing, which mirrors the conduct which was the subject of these proceedings to begin with. There is no evidence that that behaviour would not continue in the future. This raises a question of not only current fitness, but permanent unfitness.
The Law Society contends that this behaviour will continue unchecked without roll removal. While the conduct may well continue in any event, from the perspective of the legal profession his behaviour is damaging and brings it into disrepute. There is no evidence before the Tribunal to suggest that the respondent is not likely to remain permanently unfit to practise as a legal practitioner, or at a minimum, indefinitely unfit to practise.

[16]

(i) Nature of Tribunal's findings in the Stage 1 decision

As set out in the Stage 1 decision, we made findings of professional misconduct on two separate grounds. In breaching the relevant Conduct Rules, we found that the respondent acted "in the course of legal practice" or "in representing a client" based on the type of work done by a solicitor and by inferences drawn from his frequent use of email sign-offs as "solicitor" and "Principal Solicitor" of "George Sideris and Associates" and similar, as well as his use of disclaimers about limited liability and privileged communications.
On Ground 1, we found that the respondent breached r 33 of the Conduct Rules on repeated occasions. That rule (subject to exceptions not relevant here) prohibits a solicitor, in representing a client, from direct communication with the client of another solicitor.
We found that the sending of 46 items of correspondence particularised in Schedule 1 to those reasons amounted to deliberate and wilful breaches of r 33, and that the respondent's conduct amounted to professional misconduct (Stage 1 decision at [162]-[163]). It represented a substantial and consistent failure to maintain a reasonable standard of competence under s 297(1)(a) of the Uniform Law (at [168]).
There had been repeated requests by TSA's external solicitor that the respondent cease contacting TSA and he was warned that a complaint would be made to the Legal Services Commissioner on his client's behalf if the direct correspondence continued. The respondent continued sending direct correspondence notwithstanding those warnings, and being notified that a complaint had been lodged with the Legal Services Commissioner (at [164]-[165]). We further found that the purpose of the respondent's communication with TSA was to influence TSA's position in the underlying dispute between Mrs Sim and TSA, which heightened the seriousness of the breaches (at [166]-[168]).
On Ground 2, we found that the respondent breached r 4.1.2 of the Conduct Rules on repeated occasions. That rule provides, as a fundamental ethical duty, that a solicitor must "be honest and courteous in all dealings in the course of legal practice".
Some items of correspondence sent by the respondent in the course of the RAD dispute were discourteous due to the inclusion of profanities, offensive or otherwise inappropriate language; or discourteous because statements were included that were condescending or expressions of ridicule or contempt or contained allegations that the recipients of the correspondence did not act in good faith or contained baseless allegations of poor conduct. While we did not find that every item of correspondence particularised breached r 4.1.2, we nonetheless found that the sheer volume of discourteous correspondence spanning the period from 23 July 2021 to 17 February 2022, taken with the highly, and obviously, inappropriate language repeatedly used, warranted the conclusion that the respondent's conduct evidenced by that material was professional misconduct. It represented a substantial and consistent failure to maintain a reasonable standard of competence under s 297(1)(a) of the Uniform Law (at [189]).
Having determined that his conduct constituted professional misconduct under s 297(1)(a) of the Uniform Law on both Grounds 1 and 2, it was unnecessary for us to decide whether the conduct in question also fell within s 297(1)(b) of the Uniform Law, i.e. whether the conduct in question justifies a finding that the lawyer is not a fit and proper person to engage in legal practice (at [190]).

[17]

(ii) Insight into wrongfulness of conduct that was the subject of Stage 1 findings

There is limited evidence that the respondent has accepted that he had done anything inappropriate or demonstrated remorse for, or insight into, the wrongfulness of his conduct the subject of the Stage 1 findings. During the course of these proceedings, he appeared to believe he was being victimised. At the Stage 1 hearing he indicated in oral submissions that the disciplinary proceedings were a "waste of time" and that the purpose of the proceedings was to "crucify" him (CM-1, p 32). He also referred to the action as "totally bloody ridiculous" (CM-1 p 51).
Throughout the entire proceedings, the respondent has maintained his position that he did not act as a solicitor in the RAD dispute. In relation to the conduct the subject of the allegations in Ground 1 (direct communications with TSA), he has sought to minimise his wrongdoing by seeking to blame others for his conduct. He has consistently stated that TSA's solicitor (the complainant) was intentionally seeking to harm his mother-in-law (see e.g. CM-1 p 32). In his affidavit affirmed 10 July 2023 he states: "I do not regret at all going directly to the Salvation Army to protect my mother in Law as [complainant] would always support the Salvation Army to the detriment of a 93 year old lady in need of support". Similarly, in that same affidavit, he shows a strong disdain for the complaints process and action taken by the Law Society: "[I]f the Law Society and the Law Society Counsel wish to cause me issues because I protected an elderly lady from FIENDS, then go ahead BUT I will take legal action (believe me as I am not saying this is jest ) against the Law Society and also go to the press if adverse action is taken against me because I helped a 93 year old sick lady. … his [complainant] actions to complain to the Law Society about me when he does not have the ability to handle matters without going to " mummy " - the Law Society to handle matters rather than handle matters himself . Then again, some lawyers are like that . they complain to the Law Society because they do not have the ability to handle matters themselves like I did and have done over many years."
We agree with the Law Society's submission that the closest that the respondent came to acknowledging that he may have acted inappropriately is found in his oral submissions at the Stage 1 hearing but, even then, that acknowledgement was heavily qualified and devoid of taking any personal responsibility for his behaviour: "So, if I made a mistake, I sincerely apologise but I believe, your Honour it's basic frustration that I'm dealing with the gentleman in Queensland, mind you- he's an ex-employee of the Salvation Army in Sydney and he's in Queensland. As an ex-employee, he should have disqualified himself. He shouldn't have been acting for the Salvation Army because it becomes one of those intimate situations. They should have given it to somebody totally removed who had no relationship and had no right to work for the Salvation Army to try and get extra fees for Mills Oakley which is what he was doing" (CM-1, p 130)
While the respondent went on to offer an apology (of sorts) for a potential breach of r 33 of the Conduct Rules, he failed to acknowledge that he was wrong to engage in direct communications with TSA when he had been asked not to do so: "I don't believe I've breached Rule 33.... If you feel that I've breached Rule 33, I apologise, but I don't think I have. I think I've acted at all times as an independent person looking after…the elderly lady" (CM-1, p 131).
In relation to conduct the subject of the allegations in Ground 2, all that the respondent was willing to concede, during oral submissions at the Stage 1 hearing, was that the language he used in his emails was "very strong" (CM-1, p 128) and on occasion "rather coarse" (CM-1, p 129). He said: "I don't think there were discourteous. If they were discourteous, I would have been a hell of a lot more direct in what I said" (CM-1, p 128). In relation to breach of r 4.1.2 of the Conduct Rules, he has continued to maintain that he was not acting as a lawyer, or alternatively, that he did not send emails in the context of the RAD dispute that were discourteous or otherwise inappropriate.
We bear in mind that contesting these disciplinary proceedings does not disentitle the respondent from establishing insight into his conduct: see e.g. Gautam v Health Care Complaints Commission [2021] NSWCA 85 at [11]-[13] per Leeming JA. However, other than the parts of his oral submissions at the Stage 1 hearing we have referred to above, there has been no submission made (nor any evidence tendered) by the respondent which demonstrates insight into, or understanding of, the wrongfulness of the conduct the subject of the Stage 1 findings. Similarly there has been no remorse or contrition demonstrated. Indeed, the converse would appear to be the case. In his email to the Law Society on 28 November 2023, he expressly states: "I have no remorse as I was acting for my mother in law you pathetic human being" (CM-1, p 297).
After the Stage 1 decision, the respondent sent further correspondence to the Law Society, Hicksons Lawyers, and the Tribunal, in the context of Stage 2 of the proceedings, in which he indicated his view that he had not done anything wrong. In an email sent to the Law Society and the Tribunal's Registry five days after the Stage 1 decision was published, he refers to the whole action as "just pure 'bullshit'" (CM-1, pp 444-445). He also labels the Tribunal's finding of professional misconduct as a "ludicrous decision" and "totally irresponsible" (CM-1, pp 487 and 504). In an email on 13 February 2024 to the Law Society and the Registry he writes: "DO YOU UNDERSTAND THE FACTS NCAT OR AM I DEALING WITH PEOPLE AT NCAT THAT DO NOT WANT TO UNDERSTAND OR ARE INCAPABLE OF UNDERSTANDING. I SUGGEST THAT NCAT DO NOT WANT TO UNDERSTAND AND ARE HAPPY TO CONDONE THE CRUCIFICATION OF NORMA SIM AND FIONA SIM" (CM-1, p 504).
The respondent also continued to express his view that the Law Society brought proceedings before this Tribunal to try to hurt (or "crucify") him or his former mother-in-law or ex-wife, together with continued denials that he was acting as a solicitor, in correspondence sent in the course of Stage 2 proceedings. On 22 March 2024, the respondent writes to an employee of the Law Society: "So now watch my next steps as I will sue you personally for $2.5M. You can explain to the Court why you tried to crucify me because I helped my MOTHER IN LAW … So simply put go f-ck yourself" (Annexure A of Moore Affidavit of 18 April 2024, p 5). Other emails state that he wants written apologies from the Tribunal and the Law Society.
The respondent does not acknowledge that he should not have emailed TSA directly (the subject of the finding of professional misconduct on Ground 1). Other than describing the language used in his emails as "rather coarse" or "very strong" in oral submissions at the Stage 1 hearing (without acknowledgement that he made a mistake in use of any such language), there is no insight shown into the inappropriateness of the language used, including profanities, and the frequent use of insults, offensive or intimidatory comments, which formed the basis of the finding of professional misconduct on Ground 2.
We agree with the Law Society's submission that the respondent's refusal to accept responsibility or wrongdoing for his conduct the subject of Stage 1 findings indicates that he "does not have the benefit of a mind which urges caution when he is planning to take action which will or can have adverse consequences for another person, and where he is likely to be the subject of criticism from his peers and his colleagues in the legal profession" or action from the Law Society: citing Council of the New South Wales Bar Association v de Robillard [2023] NSWCATOD 75 (Robillard) at 96, [386].
In sum, as to Ground 1 allegations, we accept that the respondent offered an "apology" during oral submissions at the Stage 1 hearing with respect to a potential breach of r 33 (while denying that he breached the conduct rule). However, he otherwise attempted to justify his conduct by blaming the complainant, and making unsubstantiated allegations that the complainant had a conflict of interest. Accordingly it is difficult to see that there is genuine insight demonstrated, let alone remorse or contrition. As to Ground 2 allegations, the respondent submitted that his emails were strong or coarse but denied they were discourteous, and we think that no insight has been shown by the respondent about his breach of r 4.1.2 of the Conduct Rules. Certainly, no remorse or contrition has been demonstrated.
On the evidence before us, we are satisfied that there is lack of genuine insight, contrition or remorse on the respondent's part for the conduct which we found amounted to professional misconduct on Grounds 1 and 2.

[18]

(iii) Surrounding conduct during course of Tribunal proceedings

As noted, the Moore affidavits attach emails and other correspondence sent to the Law Society, its lawyers and the Tribunal during the course of, or in the context of, these disciplinary proceedings. From a study of those items of correspondence in evidence before us, it is clear that the respondent has engaged in conduct which is inappropriate - either because his correspondence is discourteous, insulting or worse - throughout the course of these disciplinary proceedings. We agree with the Law Society's submission that this conduct demonstrates the respondent's willingness to engage in offensive conduct to achieve a desired outcome where he perceives a person or organisation is acting contrary to his interests.
The Tribunal, the Law Society its employees and lawyers, have been the recipients of an unrelenting stream of discourteous, insulting or offensive correspondence from the respondent. The respondent has sent various emails similar to the following email on 7 December 2023 to a Law Society employee: "Mate you have not heard the last of this - mark my words" (CM-1, p 357), and on 17 February 2024, "As I [have] said I have not finished with you all yet - mark my words - I will do everything to destroy [name omitted - Law Society employee] and [name omitted - Law Society employee]" (CM-1, p 510). He writes to Hicksons Lawyers on 3 May 2024, "GO JUMP all of you and grow up" (CM-3, p 7). The respondent also sent correspondence on repeated occasions, similar to the following emails to the Law Society : "So Fuck off you moron and fuck off the Law Society" (13 December 2023, CM-1, p 362) and "So simply put you fucking moron - FUCK OFF" (16 December 2023, CM-1, p 394).
Some emails go beyond discourteous or insulting conduct and would appear to be an attempt to intimidate the Law Society and Tribunal, including by threats to sue both institutions "for huge damages" if things are not "shut down". Whilst an assertion of a genuine legal right is not inappropriate, that is not what has occurred in this instance, as the threats of legal action were linked to the Law Society's continuation of these proceedings. He also writes to the Law Society, Hicksons Lawyers and the Tribunal's Registry that the Tribunal "illegally" found him guilty of professional misconduct. A blatant disregard for the institutions charged with responsibilities to apply the Uniform Law cannot be said to uphold the standards expected of a legal practitioner.
There are also emails sent by the respondent in short succession which show his persistence in the sending of inappropriate correspondence. For example, on 29 May 2024, he sent six emails at 1:09pm, 1:15pm, 2:35pm, 2:49pm, 2:55pm, and 3:18pm (CM-3, pp 34-41). The majority of these emails copy in both the Tribunal and Hicksons Lawyers. At 1:15pm, the respondent stated: "you bunch of morons want me to stop and have stupid unnecessary meetings with you". Then at 2:35pm, he wrote: "Get it into your bloody heads - I am helping as a SON IN LAW", and at 2:49pm sent "SON IN LAW - in case you do not understand - that means I am a relative NOT a BLOODY LAWYER … [Law Society employee - name omitted] and [Law Society employee - name omitted] are idiots". This pattern of behaviour relating to several emails being sent in short succession illustrates the intemperate nature of the respondent's conduct.
While the context differs from the initial RAD dispute, we find that there exists a continuing and entrenched pattern of behaviour, as shown by correspondence annexed to the Moore Affidavits, in the sending of discourteous or offensive communications designed to achieve a desired result. In the context of the disciplinary proceedings, the respondent's desired result would seem to have been to stop the proceedings or to avoid an outcome adverse to his interests.
The Law Society also points to discourteous correspondence sent by the respondent to the Supreme Court, in the context of the separate Supreme Court proceedings. Because this evidence relates to separate and unrelated proceedings, we have not had regard to it insofar as it might otherwise bolster our decision as to the appropriate protective order we should make. However, it does not assist the respondent by way of mitigation or permit a finding that his conduct is isolated to these proceedings.
For the sake of completeness, we note that the Law Society, in written submissions, points to the respondent's correspondence: sent to the Tribunal's Registry without the consent of the Law Society as applicant; often sent to the Tribunal containing matters of substance in connection with the proceedings (in breach of r 22 of the Conduct Rules); and not copied to the applicant despite him being reminded to do so on several occasions by the Registry. This is said to be further evidence of a continued pattern of behaviour, similar in nature to the correspondence the subject of Stage 1 findings. The Law Society did not elaborate on these points in oral submissions at the Stage 2 hearing.
We have had regard to correspondence sent by the respondent to the Tribunal in the course of these proceedings, to the extent it is in evidence before us, insofar as that correspondence is discourteous, insulting, offensive or otherwise inappropriate and forms part of a pattern of behaviour in the sending of discourteous correspondence. We have found that this is a continuation of the same type of conduct which we found amounted to professional misconduct on Ground 2. However, no breach of r 22 of the Conduct Rules was raised, even indirectly, in the Stage 1 proceedings, and we are not persuaded that the type of conduct referred to in the above paragraph is the same type of conduct as that found to be proven misconduct in Stage 1. Accordingly we do not think that this is further evidence of a continued pattern of behaviour similar in nature of the correspondence the subject of Stage 1 findings. However, again, it does not assist the respondent's position by way of mitigation or demonstrated insight into the need to comply with his professional responsibilities.

[19]

(iv) Current fitness to practise

We turn to the question of the respondent's fitness to practise. The first question for the Tribunal is present fitness; that is, whether we can be satisfied now that the respondent is a person who may properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner.
We have set out in detail in the Stage 1 decision our reasons for concluding that the respondent is guilty of professional misconduct on two separate grounds. We have stated our conclusion that the conduct is serious. If that conduct were isolated and we were confident that the respondent would not be likely to be repeat that type of conduct, we would not be minded to recommend roll removal on the basis of Stage 1 findings alone (and the Law Society did not make such request). However, given the continuing and entrenched pattern of behaviour which we have found, this is not a case where we could be confident that the respondent would not repeat that same type of conduct.
There is a demonstrable lack of insight by the respondent in relation to our Stage 1 findings. His failure to appreciate the wrongfulness and gravity of proven misconduct goes towards a finding of unfitness. One reason is that it increases the risk of its recurrence and with it, the need to protect the community from misconduct of that kind. More generally, a lawyer's "failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend on the standards as well as the skill of his professional advisor": Evatt at 184; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 472 per Giles AJA.
While the absence of remorse is not always an aggravating factor, it is relevant here because the respondent's explicit statement that "I have no remorse [as I was acting for my mother in law" (email 28 Nov 2023) implies he cannot comprehend the significance of his misconduct and will not alter his behaviour to ensure it aligns with the requisite professional standards (Khosa at [58]; CM-1, p 297). A strident and explicit lack of remorse is indicative of the respondent's incapacity to change (Bandarage at [126]). In the absence of any evidence to indicate that the respondent has insight as to the gravity of his misconduct, or that he possesses any contrition or remorse for his actions, it must be assumed that misconduct of this kind may well continue into the future, warranting a more severe protective order (Council of the Law Society of New South Wales v King [2018] NSWCATOD 157 at [52], see Potkonyak v Legal Services Commissioner (No 2) [2018] NSWCA 173 at [21]-[22]).
We are satisfied that there exists a continued pattern of behaviour in the sending of discourteous or otherwise inappropriate correspondence in the context of these disciplinary proceedings, similar to the conduct the subject of our Stage 1 finding on Ground 2. Given this pattern of behaviour, the respondent's conduct in sending the discourteous, insulting or threatening correspondence clearly cannot be deemed 'isolated', nor cannot it be said to be transitory. It is well established that whether incidents can be viewed as isolated, or passing departures from proper standards, will be relevant. Here, the evidence shows that there are serious deficiencies in the respondent's standards of conduct and attitude as a lawyer admitted to the roll, such as to demonstrate that he is presently unfit to be a legal practitioner.
Just as the respondent has failed to acknowledge that his conduct in the sending of discourteous or otherwise inappropriate correspondence in the context of the RAD dispute was wrong and a breach of professional standards, he has not recognised that his conduct in the sending of discourteous or otherwise inappropriate correspondence in the course of these proceedings is a serious departure from proper professional standards. The discourtesy shown to the Law Society, its lawyers and the Tribunal in numerous items of correspondence in evidence, including use of profanities, is extreme. This continued pattern of behaviour is, in our assessment, incompatible with the respondent's name remaining on the roll of solicitors.
There are other relevant circumstances to consider in this case. Separately to the issue of the respondent's discourteous communications in the course of these disciplinary proceedings, the Law Society points to the respondent's flouting of the rules governing the legal profession by his continued reference to a non-existent law firm and by repeatedly calling himself a solicitor despite the cancellation of his practising certificate on 23 February 2024. Following that date, and the course of communications in the course of, or in the context of, these proceedings, the respondent describes himself as a "solicitor" 25 times in his email signature included in correspondence sent to the Law Society, together with reference to the professional standards scheme 7 times and a disclaimer as to the communication being legally privileged 7 times.
The respondent has also used the sign-off of "George Sideris & Associates" or similar on a number of emails sent to the Law Society, its lawyers and the Tribunal in the course of, or in the context of, these proceedings. As is apparent from evidence tendered by the Law Society concerning the respondent's prior disciplinary history, in November 2022 he was required to complete further education which dealt with the obligations of solicitors to comply with practising certificate conditions, the Uniform Law and their obligations when dealing with the Law Society as regulator. The requirement for completion of this educational component was primarily in response to instances where he impermissibly described himself as "principal", "principal solicitor" or "sole practitioner" of the law practice, George Sideris & Associates, and appeared to carry out work in that name (Moore Affidavit of 21 March 2024, CM-1, pp 178-9). The respondent's ongoing conduct is incompatible with his acknowledgment after completion of that tuition that he had learnt from it and that he recognised his errors.
At the Tribunal's Stage 1 hearing on 29 November 2023, the respondent acknowledged, in oral submissions, that he should not have used the sign-off "George Sideris and Associates" in any of his correspondence in the context of the RAD dispute, as there was no such law firm, and this was a "mistake" (CM-1, pp 117-118). However, despite that acknowledgement, and in the course of sending further emails during Stage 2 of the proceedings, he continued to include "George Sideris and Associates" in his email signature block on 23 occasions.
The fact that the respondent has, in the course of these disciplinary proceedings and on repeated instances, identified himself as a solicitor in various correspondence, despite not having a practising certificate, and continued, on some occasions, to use a letterhead which suggests he is acting for a law firm, are factors relevant to his fitness to practise. His failure to abide by the rules governing the legal profession or his unwillingness to comply with them is concerning. Again, this is not isolated or transitory conduct and it is incompatible with his name remaining on the roll of solicitors, in our view.
We have considered whether there are mitigating or extenuating circumstances in this matter relating to the proceedings or arising from the conduct the subject of Stage 1 findings. The respondent did not make any submission to this effect. In relation to his conduct the subject of Stage 1 findings, his firmly expressed position is that he was acting for his former mother-in-law as a relative (or, on occasion, as an attorney holding a power of attorney from Mrs Sim). There is evidence from Mrs Sim and Dr F Sim that he was trying to help them in their dispute with TSA. We accept that his subjective motivation was to assist Mrs Sim, and that he was not charging her for his services.
As to the respondent's personal qualities or good character, there is little to assist us in the nature of evidence. He has produced no character witnesses apart from the evidence from Mrs Sim and Dr F Sim that the respondent was helping them in a dispute with TSA and his own evidence to similar effect.
The Law Society has not addressed us on the character of the respondent other than indirectly through its evidence in support of the complaint prosecuted in the Stage 1 hearing, and providing evidence of his disciplinary history and evidence to support its submissions at the Stage 2 hearing about the respondent's continuing behaviour. We accept that the respondent does not appear to have been the subject of disciplinary action prior to 2022, and that he practised in NSW for many years without having come to the attention of the regulator.
Considering all of the factors we have mentioned, in our assessment, the respondent's behaviour cannot be said to embody a person who may properly be held out to the public as a fit and proper person to be entrusted with the duties and responsibilities of a legal practitioner. His conduct is a significant departure from expected standards, and his inability to comprehend what is problematic about the nature of his conduct in the context of these proceedings, as well as his inability to understand the gravity of the Stage 1 findings, is in our view incompatible with him continuing to practise.
The respondent has not demonstrated to us that he understands, or accepts, the ethical rules governing the legal profession and the need to safeguard the public perception of lawyers. He has not demonstrated that he will abide by those standards if he is permitted to continue as a practising lawyer. As the Tribunal stated in Robillard at p 96(4): The ability to practise as a lawyer carries with it a great responsibility to the Court, the public and to the reputation of the profession as a whole. It also carries with it specific obligations to fully recognise the role of the regulatory body in respect of overseeing the professional standards required of practitioners. Those requirements, set by the regulatory body, ensure that standards are met and the public are thereby protected. Fitness to practise as a lawyer requires the recognition of that responsibility and an understanding of the limits which should not be crossed.
We are satisfied, on the civil standard, that at the time of this determination the respondent is not fit to practise as a legal practitioner.

[20]

(v) Permanent or probable indefinite unfitness to practise

We are satisfied that the respondent is probably indefinitely unfit to practise. He chose not to file and serve any evidence in Stage 2 of the proceedings. He failed to attend the Stage 2 hearing. For us to be confident he might be fit to practise in the future, he would have needed to demonstrate insight which would satisfy us that he understood what that improper conduct was (and continued to be, during the course of these disciplinary proceedings), how he came to conduct himself in relation to same, and what he has done or will do to ensure no such circumstance will occur again. That has not occurred.
There is no submission put to us by the respondent, and no medical evidence before us, to indicate that his improper conduct may have been due to some temporary episode, impairment or disability. Whilst such evidence would not excuse such conduct, it would allow for an avenue of future treatment and improvement.
The respondent does not understand the error of his ways and there is no evidence to suggest that at some point in the future he will be fit to practise. He has tried to blame others, particularly the complainant and later the Law Society in its taking of disciplinary action in relation to the conduct the subject of the complaint. Just as he sent discourteous, insulting or offensive emails to the solicitor for TSA in the RAD dispute, he has sent numerous discourteous emails, insulting or offensive emails to the Law Society and its solicitors, as well as to the Tribunal. There is no evidence of any plan or steps being taken to address his conduct so that he may be fit to practise in future. There is no reason or explanation as to why that type of behaviour would not continue in the future.
We cannot be satisfied there exists an 'appreciable likelihood' that there will come a time when the respondent will be fit to practise (Zhukovska at [130]). We are satisfied, on the civil standard, that at the time of this determination, the respondent is likely to be unfit to practise for the indefinite future, and we make this finding.

[21]

Consideration of alternative protective orders

We are satisfied that the making of a roll removal recommendation is appropriate in this case, and that less impactive protective orders are not sufficient. We agree with the Tribunal's observation in Robillard at [95] that any order made by the Tribunal other than a dismissal will, in some measure, serve as a deterrent for the legal profession. The more severe and impactive on the respondent the protective order might be, the greater the impact will be on the broader legal fraternity. Even the imposition of a reprimand and fine (as sought by the Law Society if we do not consider a roll removal recommendation to be appropriate), would have a deterrent impact upon the profession. However, we have concluded that, in this case, a more serious protective order is necessary to have the required general deterrent impact.
In terms of specific deterrence, given the repeated instances of improper conduct directed towards the Law Society, its solicitors and this Tribunal in the context of these proceedings, the respondent's behaviour that was the subject of our Stage 1 finding (on Ground 2) cannot be deemed an isolated instance of professional misconduct. He has not demonstrated any learnings from the findings made in Stage 1. The disciplinary proceedings appear to have little deterrent effect on the respondent, and we are satisfied that a reprimand and fine would likewise have little effect.
We cannot see any utility in imposing education requirements in connection with any future application by the respondent for a practising certificate. Despite the training he undertook with the Law Society on 29 November 2022 about ethical conduct requirements and the rules governing the legal profession, he has affixed a signature to correspondence which includes the sign-off "George Sideris & Associates", or refers to the Professional Standards Scheme, or privileged communications, on a substantial number of items of correspondence, in the context of these proceedings, including during Stage 2 of the proceedings (the most recent example being an email sent by the respondent on 29 May 2024: CM-3, p 36). He has failed to make substantive changes in his behaviour to meet the professional standards required of a solicitor. We cannot be satisfied that further education would be likely to have an appreciable impact on the respondent's conduct.

[24]

Costs

The Law Society seeks an order that the respondent pay its costs. We take the respondent's position to be that he opposes any costs order in favour of the applicant.
The starting point in these proceedings is that cl 23(1) of Sch 5 to the NCAT Act provides that, despite s 60 of the Act, 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 Council of the NSW Law Society), unless the Tribunal is satisfied that exceptional circumstances exist (see also s 303(1), Uniform Law).
The Tribunal has previously considered the phrase "exceptional circumstances" for the purposes of cl 23 of Sch 5 to the NCAT Act and s 566 of the LPA. In Council of the New South Wales Bar Association v BRJ (No 2) [2015] NSWCATOD 140, the Tribunal said, in relation to the predecessor provision to both cl 23(1) of Sch 5 to the NCAT Act and s 303(1) of the Uniform Law, the term "exceptional circumstances" is "all-encompassing", and we agree with the statement of the Tribunal at [22] that, without attempting to provide a definition of "exceptional circumstances": "… a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional conduct are made."
The Law Society's position is that the respondent has not established that any exceptional circumstances apply, and that therefore, as we have determined that the respondent is guilty of professional misconduct, we should make an order that the respondent pay its costs of these proceedings.
Whilst no formal submissions were made by the respondent in relation to costs, email correspondence sent by him might be taken to indicate that he opposes any cost order being made against him. We note that in an email dated 18 March 2024, the respondent wrote "As to cost , I WILL PAY NO COSTS as a clown like [name omitted], supported by [name omitted] started this ludicrous action against me". The respondent had also stated "I am not paying any fucking costs" in an email dated 28 November 2023 (CM-1, p 278).
There are no exceptional circumstances that might justify any costs order other than the respondent is to pay the applicant's costs of the proceedings.
To provide clarity for the respondent as to the scope of our costs order, the order encompasses the costs of the applicant "thrown away" by his failure to attend the first day of the Stage 1 hearing on 23 November 2023. That hearing was set down for two days (23 and 29 November 2023). The respondent opposed the payment of any costs in connection with his failure to attend the Tribunal hearing on 23 November 2023.
During oral submissions on 29 November 2023, the respondent said that he had experienced cardiac troubles in the past, and implied that this was the reason for his failure to attend on 23 November 2023. He sought to distance himself from his earlier correspondence where, prior to the first day of the hearing on 23 November 2023, he indicated that he would decide for himself whether or not to appear: see, for example, the respondent's email to the Law Society, copied to the Tribunal's Registry, on 20 November 2023 at 10:27am: "if NCAT continues with this hearing , I will decide, given the current circumstances , if I attend OR NOT as it is a bullshit meeting and of NO SUBSTANCE". Rather, he sought to put his non-attendance down to the effect of medical complaints.
However, the medical certificates later provided by the respondent (in response to Tribunal directions) did not support this submission. No medical certificate was provided which covered the first day of the hearing, or provided a reason for his failure to attend the Tribunal on 23 November 2023. He provided a medical certificate dated 16 November 2023, which stated that he "has had no symptomatic AF [scil - atrial fibrillation]", and a certificate dated 27 February 2023, which confirmed "that he appears to be in very good health with no issues with his heart. … He has on examination no atrial fibrillation or arrhythmia." In short, the medical evidence provided no basis on which the Tribunal could properly conclude that he was not fit to attend the Tribunal hearing on 23 November 2023.
In conclusion, there is nothing put by the respondent as to costs thrown away on 23 November 2023 to persuade us that there were "exceptional circumstances" such that he should not be required to pay such costs (as agreed or assessed).

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