Council of the Law Society of New South Wales v Sideris

Procedural issues prior to the hearing

1. On 4 July 2023, the Tribunal made directions for the Solicitor to file and serve a reply to the disciplinary application, and any affidavit evidence on which he seeks to rely, by 28 July 2023. No reply was filed by the Solicitor. Evidence was filed and served by both parties in accordance with the Tribunal's directions.
2. On 1 August 2023, directions were made for the filing and serving of any written submissions from the Law Society by 30 August 2023, and any written submissions in response from the Solicitor by 27 September 2023. Any written submissions in reply were to be filed by 11 October 2023 and 11 November 2023 by the Law Society and the Solicitor, respectively. The Law Society filed written submissions on 30 August 2023. No written submissions were filed by the Solicitor.
3. The matter was initially set down for a two-day hearing on 27 and 28 November 2023. Those dates were later varied (by consent of both parties) to 23 and 29 November 2023 to enable the in-person attendance of Mr Geary after the Solicitor requested that the witness be made available for cross-examination.
4. Prior to the hearing date of 23 November 2023, the Solicitor made two adjournment applications, which were each refused (with written reasons provided).
5. The Solicitor then sought leave to appear by AVL. On 20 November 2023, in emails between the parties, copied to the Registry, the Solicitor indicated he would be with Mrs Norma Sim "at the hospital" on 23 November 2023. On 20 November 2023 at 10:27am, the Solicitor sent an email to the Law Society, copied to the Registry, which relevantly stated "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".
6. On 22 November 2023, the Tribunal refused the Solicitor's request to attend the hearing by AVL (with detailed written reasons provided).
7. The Tribunal gave leave to the Solicitor to renew his application to appear remotely once cross-examination at the first day of the hearing was complete, at which time the benefit to the Solicitor of allowing him to appear at the balance of hearing remotely may outweigh the other competing factors.
8. The Solicitor sent various emails on 22 November 2023 to the Registry in which he appeared to accept that his application to appear by AVL had been refused, but wrongly interpreted the Tribunal's reasons for that decision as a further order that the substantive hearing (of the disciplinary application), as opposed to the application in issue in the Tribunal's orders and directions of 22 November 2023 (the request to appear at the hearing remotely), would proceed to be determined by the Tribunal "on the papers" (under s 50(2) of the NCAT Act). The Tribunal directed the Registry to issue the following correspondence: "For the avoidance of doubt all parties are required to attend the hearing tomorrow 23 November 2023 at 10am."
9. The Solicitor sent further emails to the Registry concerning the hearing on 23 November, including on 23 November 2023 at 7:42am, in which he wrote: "In case you did not get my message - I am with the elderly lady this morning and will not attend any meeting today."
10. At the commencement of the hearing on 23 November 2023, the Solicitor failed to appear. We stood the matter down to 12pm, and directed the Registry to telephone and email the Solicitor to inform him that the matter had been stood down to facilitate his attendance. The Solicitor did not answer the telephone call and a voicemail was left by a member of Registry staff. At 11:00am, the Solicitor sent an email to the Registry, in which he stated (amongst other things) that he could not attend, "so stand the matter down till 2024".
11. At 12pm, there was again no appearance by the Solicitor. The Tribunal decided to adjourn the commencement of the hearing to 10am on 29 November 2023, directing the parties to appear in person. It was made clear in notations to the Tribunal's orders and directions that, in the event a party failed to appear at the hearing on 29 November 2023, the hearing would proceed in that party's absence and orders may be made, which may be orders against the party's interests.
12. On the afternoon of 28 November 2023, the Solicitor emailed various documents to the Tribunal, copying the Law Society. Some of those documents were copies of documents already included in the evidence, filed and served in accordance with earlier directions. In respect of certain other documents emailed to the Tribunal on that afternoon, the Solicitor appeared to foreshadow that he would be seeking to tender "late" documentary evidence at the hearing on 29 November 2023.
13. The Solicitor appeared at the hearing on 29 November 2023. The Tribunal made clear to the parties at the commencement of the hearing that it would deal solely with Stage 1 (or liability) issues at the 29 November hearing, and that Stage 2 proceedings would follow at a later date only in the event that the Solicitor was found guilty of professional misconduct or unsatisfactory professional conduct.

Evidence and other material sought to be relied on

1. In addition to its disciplinary application, the Law Society relies on: 1. an affidavit of Mr Luke Geary sworn 22 June 2023 (Geary Affidavit) and Exhibit LG-1; 2. an affidavit of Nadya Haddad affirmed 28 June 2023 (Haddad Affidavit) and Exhibit NJH-1; 3. written submissions dated 29 August 2023, filed and served on 30 August 2023; 4. three aides memoire; 5. the Law Society's written objections to an affidavit of Mr Sideris affirmed 10 July 2023 and a statutory declaration of Dr Fiona Sim made 11 July 2023; and 6. oral application made on 29 November 2023 for costs thrown away by the failure of the Solicitor to attend at the hearing set down for 23 November 2023, with written submissions and supporting evidence (invoices).
2. The Solicitor relies on: 1. an affidavit of Mr George Sideris affirmed 10 July 2023 (Sideris Affidavit) and two annexures; 2. a statutory declaration of his former wife, Dr Fiona Gordon Sim, made on 11 July 2023 (Sim Statutory Declaration); 3. document entitled "Enduring Power of Attorney Norma Elaine Sim And George Sideris And Fiona Gordon Sim" dated May 2016; 4. unsworn written statements of Dr Fiona Sim dated 20 and 26 November 2023; 5. letter from Mr George Sideris and Dr Fiona Sim to Services Australia dated 16 February 2021; and 6. letter from Mr George Sideris to Services Australia dated 14 July 2021.
3. At the hearing on 29 November 2023, Dr Fiona Sim affirmed the contents of her unsworn written statements dated 20 and 26 November 2023 as being true and correct.

Admission of evidence filed and served prior to the hearing

1. Because professional misconduct is alleged in these proceedings, the rules of evidence apply: NCAT Act, s 17(3), Sch 5, cl 20. The Evidence Act 1995 (NSW) is therefore applicable.
2. The Law Society's objections to the Solicitor's evidence filed and served prior to the hearing (being the Sideris Affidavit and Sim Statutory Declaration) are as set out in Annexure C to these reasons for decision, and were provided to the Solicitor in advance of the hearing. We had counsel for the Law Society speak briefly to the nature of the objections for the benefit of the Solicitor. The Solicitor made no meaningful submissions about the objections other than as to relevance. After confirming the process that would be involved, the parties were content for the Solicitor's material to be accepted provisionally subject to our determination as to relevance once we had heard the parties (Evidence Act, s 57) and further subject to our determination of the Law Society's specific objections other than as to relevance to be announced in these reasons.
3. We made plain that, although we would be aware of the objectionable material, we would disregard it if we took the view that the objection taken was sound. We note that is a process adopted in McIlwain v Ramsey Food Packaging Pty Ltd [2006] FCA 828 where, as here, such a course was necessary to avoid any further delay in the conduct of the hearing. That need was acute here, as the first allocated day of hearing had been lost through the Solicitor's non-attendance. Further, because the Solicitor had failed to lodge written submissions in advance of the hearing (other than as contained in his documents lodged as evidence) we could not be sure of the relevance of all of the evidence until the Solicitor's defence was clarified. The Solicitor was also clear that he did not wish to give any further evidence orally, irrespective. To the extent the objections were raised on the basis that the relevant parts of the Sideris Affidavit and Sim Statutory Declaration were based on the content being speculation or opinion evidence, the Solicitor had the opportunity in oral submissions to raise those matters for us to consider on the evidence that remained before us having regard to our decision about the objections.
4. Having heard the parties, we are in a position to uphold each of the objections made by the Law Society, on the bases outlined in Annexure C.
5. To provide some further clarity to the Solicitor, admissible direct evidence is generally confined to what a witness saw, did, and where appropriate, heard. It may also extend to what they experienced or thought, but rarely will a statement of opinion of a lay witness be admissible where it is simply an opinion about the facts in issue and given to prove the existence of a fact about which it is expressed: Evidence Act, s 76. Whilst there are exceptions, none are relevant here: Evidence Act, ss 77, 78, 80. That is why, for example, the Solicitor's statement in the Sideris Affidavit that (formatting in original): "I particular (sic) the Affidavit of Luke Geary which was undertaken in a spiteful manner to hurt an old 93 year old lady and demoralise the writer as the writer did not abide my Mr Luke Geary's attempts to hurt an elderly lady." is inadmissible in these proceedings.
6. So, too, is the statement made by Dr Fiona Sim (in the Sim Statutory Declaration) that (formatting in original): "In particular, I disagree with most of the detail in the Affidavit of Luke Geary which I believe was undertaken in a manner not in the spirit of helping an old lady Of 93 years of age."
7. In respect of why the objections on the basis of relevance are upheld, the objectionable material relates to either the Solicitor's, or Dr Sim's, opinion as to why the Solicitor was correct about Mrs Sim's RAD liability in respect of the dispute, and why Mr Geary and TSA were incorrect, as opposed to any fact in issue in this proceeding.
8. Had the Solicitor relied upon the exculpatory subclauses of r 33, particularly in respect of r 33.1.2, that evidence may have had relevance in establishing a foundational basis for the Solicitor's reliance on that sub-rule. However, as we deal with elsewhere, we gave the Solicitor the opportunity to consider the exculpatory clauses of r 33 and he made no submission in respect of them. On that basis, the underlying dispute regarding the RAD has no relevance as to whether the Solicitor breached r 33 or engaged in discourteous correspondence.

Admission of late documentary evidence sought to be tendered at the hearing

1. At the hearing, the Solicitor sought to tender documentary evidence, copies of which had been emailed to the Tribunal (and copied to the Law Society) on the afternoon of 28 November 2023, i.e., the day before commencement of the hearing. We explained to the Solicitor the need for him to seek leave for the admission of late evidence (being evidence filed outside the time permitted by Tribunal directions in the case management of the proceedings); the Solicitor sought leave for an extension of time for the filing of evidence in his case at the hearing.
2. In deciding whether to accept "late" documentary evidence sought to be tendered at the hearing, relevant principles include what is required for the just resolution of proceedings, the nature of the case and its importance to the party seeking an extension of time. Reasons for failure to comply with Tribunal directions concerning the filing and serving of documentary evidence will generally need to be provided and must be weighed against the effect any delay will have on the other party and the Tribunal. While a party should be afforded a reasonable opportunity to present its case, there are limits, which may involve consideration of delay and cost to the other party and the Tribunal. There is no entitlement to an extension of time, even if the consequence of refusal effectively prevents a party from presenting relevance evidence in support of its case (see e.g. Westbury v The Owners - Strata Plan No 64061 [2021] NSWCATEN 3).
3. The Solicitor failed to give any plausible reason why the documents sought to be tendered were sent to NCAT, and copied to the other party, only on the afternoon before commencement of the hearing on 29 November 2023. The Solicitor contended that some documents had been lost and that he had had some trouble with sending to and receiving emails from the Law Society due to a purported size or capacity limit of the Law Society's email inbox. That said, in respect of the document titled "Enduring power of attorney", the Law Society did not object to its admission on the ground of lateness. There was no prejudice to the Law Society, and the fact that the Solicitor held a power of attorney in respect of his mother-in-law is not controversial. Counsel submitted that the power of attorney document was not relevant to any fact in issue in the proceedings but did not ultimately object to its admission into evidence. We decided to admit the document into evidence.
4. Turning to the written statements of Dr Fiona Sim dated 20 and 26 November 2023, the statement dated 20 November 2023 is short (one page) and the Law Society did not object to its admission on the basis of lateness. In respect of the statement dated 26 November 2023, being a longer statement, the Law Society initially objected to its admission on the ground of lateness, and to the admission of any parts of the statement to the extent that it contained any material that is different to that contained in the Sideris Affidavit and Sim Statutory Declaration. After the Solicitor asserted that the material included in the list of facts numbered 1-27 was the same as in the Sideris Affidavit, the Law Society submitted that any prejudice could be cured - if the Tribunal took the view that there were any differences with the Sideris Affidavit - by relying on the Sideris Affidavit rather than any alternative material set out in that list of facts. The Law Society also objected to the statements of 20 and 26 November 2023 being admitted into evidence on their lack of relevance to any fact in issue and on the same grounds (opinion and speculation evidence) raised in respect of the Sideris Affidavit and Sim Statutory Declaration. On that basis, the Law Society did not object to the statements of 20 and 26 November 2023 being admitted subject to relevance and to its objections on the grounds of opinion and speculation.
5. As to the two letters sent to Services Australia, the Law Society did not object to the tender of these documents on the basis of lateness, but it did object on the basis of a lack of relevance to any fact in issue.
6. For the reasons given earlier, this late material (excluding the document entitled "Enduring power of attorney") was admitted provisionally under s 57 of the Evidence Act, subject to the Law Society's objections based on relevance, opinion, and speculation evidence.
7. We uphold the objections made by the Law Society in respect of the two written statements of Dr Fiona Sim dated 20 and 26 November 2023 and the two letters to Services Australia on the basis of relevance, for the reasons given above. Put simply, they relate to the substance of the dispute and not to whether the Solicitor breached r 33 or engaged in discourteous correspondence.

Documentary evidence sought to be tendered subsequent to the hearing

1. At the conclusion of the Stage 1 hearing, the Tribunal made directions as to the filing and service of evidence and submissions on the limited issue of the Law Society's costs thrown away application. The notation to the Tribunal's 29 November 2023 orders and directions stated: "Evidence and/or submissions relating to any other issue in the proceedings will not be considered."
2. Even prior to the issue of these orders/directions, the Solicitor commenced further correspondence with the NCAT Registry which included submissions and attached evidentiary material seemingly on Stage 1 issues. That correspondence continued over a number of days. Almost none of the correspondence was copied to the Law Society, despite the Registry's continued requests for the Solicitor to do so. Only some of this material could be said to address the costs thrown away application.
3. To the extent that the Solicitor's material is not responsive to the Tribunal's orders and directions of 29 November 2023 concerning the Law Society's costs thrown away application, and where the Tribunal is reserved on Stage 1 issues and no application was made by the Solicitor to reopen the proceedings, that material has not been considered: see the principles in Carr v Finance Corporation of Australia Ltd (No 1) (1981) 147 CLR 246; [1981] HCA 20 at [29]; Eastman v Director of Public Prosecutions (ACT) (2003) 214 CLR 318; [2003] HCA 28 per McHugh J at [29] (with whom Gleeson CJ agreed); Bale v Mills (2011) 81 NSWLR 498; [2011] NSWCA 226 at [57] to [61].

Jurisdiction under Uniform Law

1. We are satisfied that the Tribunal has jurisdiction to hear the application, which relates to a complaint made under the Uniform Law: ss 300 and 302. The Solicitor is a lawyer within the meaning of Ch 5 of the Uniform Law. He is an Australian lawyer, admitted to the legal profession in NSW, and the conduct the subject of the allegations took place wholly within Australia: Uniform Law, ss 6, 261(c) and (d), 262(1)(a). Chapter 5 extends to former Australian legal practitioners such as the Solicitor, who held a practising certificate at the time of the impugned conduct: Uniform Law, ss 261(c) and (d), 262(4)(b).

Onus and standard of proof

1. The rules of evidence apply in these proceedings, as provided in s 17(3) and cl 20 of Sch 5 to the NCAT Act. Accordingly, the standard of proof to be applied is that prescribed by s 140 of the Evidence Act. Under s 140(1), NCAT "must find the case of a party proved if it is satisfied that the case has been proved on the balance of probabilities". Without limiting the matters that that may be considered in deciding whether it is so satisfied, NCAT is to consider the nature of the cause of action or defence, the nature of the subject-matter of the proceedings and the gravity of the matters alleged: s 140(2). The considerations under s 140(2) constitute the statutory application of the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34. The Law Society bears the onus of proof in these proceedings.

Unsatisfactory professional conduct and professional misconduct

1. 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": Uniform Law, s 296.
2. Professional misconduct can occur where the requirements of the statutory definition in s 297(1)(a) or (b) of the Uniform Law are made out. Section 297 is as follows: 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.
3. It has been accepted by the NSW Court of Appeal that the definition of "professional misconduct" in s 297 is inclusive, and only one of either sub-ss (a) or (b) need be proved: see e.g. Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144 at [62]-[68]. In its application before the Tribunal, the Law Society relies on: 1. in relation to Ground 1: a substantial or consistent failure to reach a reasonable standard of competence; 2. in relation to Ground 2: both limbs in s 297(1)(a) and (b) are relied upon in the alternative; and 3. in relation to all conduct considered cumulatively: both limbs are relied upon in the alternative.
4. Section 298 expands upon the definitions of unsatisfactory professional conduct and professional misconduct by identifying several further categories of specific conduct that are capable of constituting unsatisfactory professional conduct (or professional misconduct). Those categories include contraventions of the Uniform Law or the Legal Profession Uniform General Rules 2015 (NSW), which relevantly include the Conduct Rules.
5. If the Tribunal finds the Solicitor guilty of professional misconduct or unsatisfactory professional conduct, it may make "any orders that it thinks fit" including any of the orders that a local regulatory authority can make under s 299 and any one or more of the orders listed in s 302(1) of the Uniform Law.

Relevant Conduct Rules

1. The Conduct Rules provide relevantly as follows: 4 Other fundamental ethical duties 4.1 A solicitor must also - … 4.1.2 be honest and courteous in all dealings in the course of legal practice, … 33 Communication with another solicitor's client 33.1 In representing a client, a solicitor shall not communicate about the subject of the representation with a person the lawyer knows to be represented by another practitioner unless - 33.1.1 the other practitioner has previously consented, 33.1.2 the solicitor believes on reasonable grounds that - (i) the circumstances are so urgent as to require the solicitor to do so, and (ii) the communication would not be unfair to the opponent's client, 33.1.3 the communication is solely to enquire whether the other party or parties to a matter are represented and, if so, by whom, or 33.1.4 there is notice of the solicitor's intention to communicate with the other party or parties, but the other practitioner has failed, after a reasonable time, to reply and there is a reasonable basis for proceeding with the communication.

Acting "in the course of legal practice" and "in representing a client"

1. The Law Society submits that the Tribunal should take an approach consistent with those taken to breaches of ss 10 and 11 of the Uniform Law. Those sections refer to "engag[ing] in legal practice".
2. "Engage in legal practice" is defined in s 6 of the Uniform Law to include "practise law or provide legal services". "Practise law" is not defined in s 6, but "legal services" is defined in that section to mean "work done, or business transacted, in the ordinary course of legal practice". The word "or" in the definition of "engage in legal practice" "indicates that an activity may constitute the provision of legal services … even if it does not constitute practising law": Overdean Developments Pty Ltd v Garslev Holdings Pty Ltd (No 3) [2021] NSWSC 1482 (Overdean) at [786].
3. Historically, courts have held that a person "act[s] as a solicitor" "if a person does a thing usually done by a solicitor, and does it in such a way as to lead to the reasonable inference that he is a solicitor - if he combines professing to be a solicitor with action usually taken by a solicitor": Re Sanderson, ex parte Law Institute of Victoria (1927) VLR 394 (Re Sanderson) at 397, quoted with approval in The Law Society of NSW v Seymour [1999] NSWCA 117 (Seymour) at [16].
4. In Seymour, Fitzgerald JA (Priestley and Stein JJA agreeing) determined at [21] that the inference test in Re Sanderson: "must be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities misrepresents that he or she is a solicitor or explains that he or she is not a solicitor. The reasonable person to be considered is a person dealing with the person alleged to have acted as a solicitor."
5. More recently, in Council of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 (Dwyer), Emmett JA (Basten and Ward JJA agreeing) held at [12] that "[a] person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner" (citing Council of the Law Society of New South Wales v Australian Injury Helpline Ltd (2008) 71 NSWLR 715; [2008] NSWSC 627 (Australian Injury Helpline) at [52]-[55]).
6. It is an objective test of fact and degree: Australian Injury Helpline at [55]. Frequently, that assessment is determined by reference to a course of conduct: Seymour at [20].
7. In Overdean, Williams J held: "787. … it is my opinion that the definition of "legal services" as "work done, or business transacted, in the ordinary course of legal practice" means work or business of a kind that is done or transacted in the ordinary course of legal practice, irrespective of whether it is in fact done in such a manner as might lead third parties to reasonably infer that the person is acting as a legal practitioner and irrespective of whether the third party holds themselves out as an Australian legal practitioner. The addition of the "provide legal services" element to the definition of "engage in legal practice" would otherwise add nothing to the "practise law" element of that definition. … 793. Generally speaking, the giving of professional legal advice, and the conduct of litigation … are exclusively within the province of those trained in the law and having the necessary expertise." (Emphasis in original, footnotes omitted)
8. Williams J determined the matter on the basis that the relevant conduct was "work of that kind or work intimately connected with such work", although her Honour did find that the work had been undertaken in a manner which would lead to the reasonable inference that the person was an Australian legal practitioner, if it were necessary that the relevant work be done in such a manner: at [794].
9. We adopt the approach in Dwyer for assessing whether the Solicitor in the present circumstances acted as a solicitor, and more specifically, "in the course of legal practice" for the purposes of r 4.1.2, and also in "representing a client" for the purposes of r 33. Thus, we will consider whether the work done by the Solicitor was work of a kind usually done by legal practitioners (which includes solicitors), and whether that work was done in such a way to lead to the reasonable inference that the Solicitor was acting as a legal practitioner.

Communication with another solicitor's client

1. Rule 33 is also known as the "no contact" rule, and was first developed by the courts: see, e.g., Re Margetson [1897] 2 Ch 314 at 318; Jones v Jones (1847) 5 Notes of Cases in the Ecclesiastical and Maritime Courts 134 at 140. It is a professional obligation which prohibits a solicitor from directly communicating with the client of an opposing solicitor, apart from certain exceptions. Its "chief rationale … is to prevent a lawyer from circumventing the protection that legal representation provides to a client": Legal Services Commissioner v Poole [2019] QCAT 381 (Poole) at [82]. The rule does not prohibit a solicitor from communicating with a person represented by another solicitor on matters unrelated to the relevant proceeding or transaction.
2. Where breach of the "no contact" rule has been a "one-off", or only occurred on very few occasions, that conduct is more often characterised as unsatisfactory professional conduct: see Council of the Law Society of New South Wales v Byrnes [2016] NSWCATOD 64; Legal Services Commissioner v Mercader (Legal Practice) [2011] VCAT 2062; Poole. However, in Orlov and Pursley [1995] NSWLST 3 (Orlov and Pursley), both Mr Orlov and Ms Pursley were found guilty of professional misconduct, where Mr Orlov had approached Ms Pursley and asked her to (and Ms Pursley did) speak to the client of another solicitor to attempt to have the matter settled on terms favourable to his client. See also Legal Services Commissioner v Tuferu (Legal Practice) [2013] VCAT 1438, where the practitioner was found guilty of professional misconduct for contacting an officer of another party and later sending a fax to that person.
3. In Legal Practitioners Conduct Board v Daryl Wharff [2012] SASCFC 116 (Wharff), the Full Court of the Supreme Court of South Australia found that the practitioner engaged in improper conduct which failed to meet the standard observed by a competent legal practitioner of good repute in directly communicating with clients of two separate law firms in thirty separate communications over a period of ten months. The Court considered that "the nature and extent of the direct communications over 10 months and his persistence in making them after being warned by" one of the firms, meant that his conduct "involved both a substantial and a recurrent failure to meet the requisite standard of conduct and thereby comprised unprofessional conduct". The definition (at that time) of "unprofessional conduct" in the Legal Practitioners Act 1981 (SA) is similar to the definition of professional misconduct in s 297(1)(a) of the Uniform Law.
4. In Legal Services Commissioner v Paric (Legal Practice) [2015] VCAT 703 (Paric), the practitioner had sent eleven emails either directly to another solicitor's clients or copied to them. The Victorian Civil and Administrative Tribunal (VCAT) noted that, in terms of seriousness, the emails did not directly ask the other solicitor's clients to take any action. Each email was the subject of a separate charge. As a result, VCAT considered that the "consistent" element did not apply. The Tribunal found that each email constituted unsatisfactory professional conduct, bar one email sent after the practitioner had been warned by a representative of the Law Society of his professional obligations, which VCAT found to be professional misconduct.

Courtesy in all dealings

1. The Western Australian Court of Appeal considered the meaning of "courteous" in the context of r 6 of the now-repealed Legal Profession Conduct Rules 2010 (WA) in Legal Profession Complaints Committee v Lourey [2022] WASCA 114 at 173: "In our opinion, the word 'courteous' in r 6(1)(b) of the Conduct Rules takes colour from the context in which it appears. The relevant context is a legal practitioner's dealings with clients, other practitioners and other persons involved in a matter where the practitioner acts for a client. The word 'courteous' in that context conveys politeness, rather than kindness or consideration, in manner or approach. … The manner of expression or approach adopted in the communication, having regard to the relevant subject matter and the nature of any assertions or demands made in the communication, will be relevant in evaluating whether the communication was 'courteous' or not within Conduct Rule 6(1)(b)."
2. Offensive and derogatory comments made by a solicitor may amount to professional misconduct: Griffin v The Council of the Law Society of New South Wales [2016] NSWCA 364 (Griffin) at [106].
3. In Paric, the practitioner had also sent emails to another solicitor which were discourteous, offensive and/or provocative, in that they contained broad ranging and personal allegations against the other solicitor, alongside comments about his character and fitness to practise. Four emails were also sent to third parties which were critical of the other solicitor. VCAT was satisfied that the conduct in question constituted unsatisfactory professional conduct.
4. In Griffin, the practitioner, after the dismissal of an application in the Federal Court, had sent a letter to the Judge making serious allegations (including that the Judge had acted vindictively, may not have written the judgment himself, and that the decision had been made "without good faith and with bias") and requesting that the Judge vary his decision. The NSW Court of Appeal approached the issue of unfounded allegations on the basis that the allegations in question had been made without supporting evidence: at [112]. We adopt that approach in the present case.
5. On a separate point, the Court held that where a legal practitioner "is accused of professional misconduct by reason of a communication to or about a judicial officer, more is required of the Tribunal than simply to characterise the practitioner's conduct as "grossly offensive" and asserting that the conduct departs from the standards expected of a solicitor": at [110]. Thus, the Court characterised the communication as follows: "111. … These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgment as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor's actions. 112. The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The "discourtesy" and "offensiveness" lay both in the making of scurrilous allegations by the Solicitor about the Judge's conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation. Moreover, the Letter was "discourteous" and "offensive" because it implied that the Judge would be prepared to alter costs orders because of a threat that he could be embarrassed by the Solicitor's "legitimate" actions. 113. In my view, the Tribunal was entitled to find that the Solicitor was guilty of professional misconduct on the basis of the contents of the Letter. …"
6. This requirement applies not only to allegations of discourtesy towards a judge, but more generally to allegations of discourtesy. We think this same reasoning should be applied in respect of the current allegations, and the Tribunal is required to do more than find that the relevant conduct departs from the standards expected of a solicitor. Any findings we make will identify the discourtesy and offensiveness in order to determine whether the allegations of professional misconduct or unsatisfactory professional conduct are made out.

Repeated or consistent conduct

1. In Clyne v Bar Association (NSW) (1960) 104 CLR 186 at 199-200; [1960] HCA 40 (Clyne), the High Court held that a breach of the rules "designed primarily to regulate the conduct of members of the profession in their relations with one another" is treated seriously, "but would not warrant disbarment - at least unless it were shown to be part of a deliberate and persistent system of conduct."
2. The Court of Appeal in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 (Webb) considered the distinction between conduct involving a "substantial" failure to reach or maintain the required standard and conduct which involves a "consistent" failure to do so. Meagher JA (Leeming JA and Simpson J agreeing) held: "22. … The former directs attention to the nature and consequences of the failure, which may be sufficiently serious to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial". The reference to a "consistent failure" is to ongoing or persisting acts of failing on different occasions to reach or maintain the required standard. The same or similar failures which occur on a series of related occasions and are explained by an overarching error of judgment on the part of the lawyer (which is not itself the or a relevant failure which is the subject of complaint) do not involve a "consistent failure" in the sense in which that expression is used in this definition. … 26. … [I]t is the persistent occurrence of the same or similar failures to reach or maintain a reasonable standard of competence and diligence on separate occasions which gives them the quality of being "consistent". The fact that they have that quality makes it likely that the explanation for the conduct is a want of fitness or competence rather than a series of casual or uncharacteristic lapses or, as in this case, a single overarching mistake made in the context of related transactions."

Did the Solicitor act "in the course of legal practice" and "in representing a client"

1. Here, the Law Society accepts that the Solicitor's conduct must have been done "in the course of legal practice" to constitute a breach of r 4.1.2 of the Conduct Rules; the same must follow from the terms of r 33, which provides for conduct done "[i]n representing a client". Indeed, counsel submitted that the Law Society's case "stands and falls" (Tcpt, 29 November 2023, p 66(10)) on the question of whether the Solicitor's conduct was "in the course of legal practice".
2. We accept this to be the case. We will consider the material relied upon by the Law Society against the Solicitor's denials and decide whether it satisfies us that the Solicitor was "representing a client" in the period from 1 July 2021 to 13 February 2022 in respect of Ground 1 (alleged breach of r 33), and whilst "in the course of legal practice" from 23 July 2021 to 17 February 2022 in respect of Ground 2 (alleged breach of r 4.1.2). If he was acting as a solicitor for Mrs Sim in relation to the dispute, at relevant times, we consider that he was thereby acting "in the course of legal practice" and "in representing a client".
3. As we said earlier, we adopt the Dwyer approach. Thus, we will consider whether the work done by the Solicitor was work of a kind usually done by legal practitioners, and whether that work was done in such a way to lead to the reasonable inference that the Solicitor was acting as a legal practitioner.

The Law Society's submissions

1. The Law Society says an objective test should be applied with respect to the nature of the work performed by the Solicitor, and further or in the alternative, how the Solicitor held himself out to those with whom he corresponded on Mrs Sim's behalf. Such an approach is consistent with the test in Overdean and more generally the approach is consistent with that taken to breaches of the Uniform Law, ss 10 and 11.
2. In submitting that the work performed by the Solicitor for Mrs Sim was objectively "work of a kind that is done in the ordinary course of legal practice" and "a thing usually done by a solicitor" (per Overdean at [787]), the Law Society points to the following conduct. The Solicitor: 1. engaged in correspondence on behalf of Mrs Sim with both TSA and Services Australia; 2. advocated for and negotiated on behalf of Mrs Sim with both TSA and Services Australia; 3. prepared and considered draft agreements and other documents on her behalf; 4. apparently engaged in legal analysis on behalf of Mrs Sim; and 5. threatened to take legal action on behalf of Mrs Sim.
3. The Law Society submits that each of these characterisations sits as an increasing degree of the kind of work done by lawyers, beginning with work that is sometimes done by lawyers and concluding with work that is exclusively performed by lawyers. This is sufficient to meet the Overdean test.
4. If we find that both tests must be met - the Overdean test and the "reasonable inference test" (Re Sanderson) - the Law Society also submits that the Solicitor acted, when engaging in the relevant correspondence "in such a way as to lead to the reasonable inference that" he was acting as Mrs Sim's solicitor (Re Sanderson at 397). The Law Society says that this is a consequence of the correspondence itself, having regard to its fundamental nature as a course of advocacy on Mrs Sim's behalf, reinforced by: 1. the Solicitor's use of letterheads and email signatures which stated that he was a solicitor and writing on behalf of a firm, reinforced by the frequent inclusion of the "liability limited" statement and a statement concerning the confidentiality of and potential privilege in relation to the correspondence. The Law Society says these statements would have no application to correspondence engaged in as a capacity other than as a legal practitioner; 2. the Solicitor's reference to himself as a solicitor or lawyer; 3. the language used by the Solicitor generally, including legal analysis and threats to take legal action, as well as the language of "acting for" Mrs Norma Sim and/or Dr Fiona Sim; and 4. the Solicitor's failure to contradict Mr Geary when Mr Geary addressed him in terms that made it clear Mr Geary believed the Solicitor was acting as Mrs Sim's solicitor.
5. The Law Society also says that it is relevant to the Tribunal's assessment that Mr Geary held a contemporaneous belief that the Solicitor was acting as Mrs Sim's solicitor.

The Solicitor's submissions

1. The Solicitor submits that he was not acting for Mrs Sim in the course of legal practice. Rather, he was acting as a son-in-law to "protect" her from TSA and Mr Geary, and (at times) as an attorney.
2. In oral submissions, he said that to the extent he included a legal firm letterhead ("George Sideris & Associates" or similar) on certain items of correspondence sent to Mr Geary, Mills Oakley or TSA, there is no such law firm nor has any such law firm ever existed. Similarly, with reference to correspondence containing statements included below his email signature to the effect that his liability was limited by a scheme approved under Professional Standards Legislation and/or that the communication was subject to legal professional privilege, he said he did not believe this was actually the case and he only included statements of that kind in correspondence because a colleague had told him to do so. The Solicitor also claimed that those emails of his which included the statement that communications were subject to privilege were in fact not subject to legal professional privilege.
3. The Solicitor seemed to raise these points in support of his submission that he did not act in the course of legal practice at any relevant time, saying, "I shouldn't have a letterhead like that because I'm not acting as a solicitor": Tcpt, 29 November 2023, p 98(24).
4. The Solicitor further suggested, in oral submissions, that because the practising certificate he held at the relevant time was granted to him in the capacity of "corporate solicitor", he did not practise law as what he described as a "normal" solicitor, and he had never acted in the course of legal practice. He submitted: "I never - I never practised in the course of legal practice at all. Therefore, I don't believe I've breached rule 33 because - and I've never practised in the course of legal practice …" (Tcpt, 29 November 2023, p 87(43)-(46)) "I've been a very, very respected senior lawyer in corporate, not in normal (sic). I've never practised with a law firm, nor have I wanted to practise with a law firm because in corporate I can give people advice not only legal but commercial whereas as a lawyer I can't give them commercial advice." (Tcpt, 29 November 2023, p 95(45)-(48))
5. It should be noted that the Solicitor also made a number of submissions that do not go directly to the issues for consideration in these proceedings. For example, he asserts that that Mr Geary acted for TSA in a position of conflict, being a former employee of TSA. The Solicitor also spends significant time in his written material and oral submissions focussed on the underlying dispute (and hardship said to be caused to his mother-in-law) as justifying his conduct. We will address only those of his submissions which are relevant to the issues for determination.

Particulars

1. We turn to the particulars of the Law Society's complaint, which asserts that the Solicitor was acting as Mrs Sim's solicitor (particulars 6, 13(a) and (b), 19(a) and (b)). Particular 6 states that, considered as a whole, the Solicitor's communications and correspondence on behalf of Mrs Sim in the course of the dispute demonstrated that he was acting as Mrs Sim's solicitor because: "(a) on several occasions the Solicitor stated that he would commence court proceedings against TSA; (b) on occasion, referred to Mrs Sim and Dr Sim as his "clients" in correspondence; (c) emails sent by the Solicitor in connection with the dispute frequently contained the signoff "Principal Solicitor, George Sideris and Associates"; (d) the Solicitor frequently referred to his experience as a lawyer in correspondence; (e) Mr Geary's reference to Mrs Sim and Dr Sim as the Solicitor's clients in his (Mr Geary's) emails to the Solicitor were not corrected; and (f) on 10 November 2021, the Solicitor sent, or caused to be sent, a letter to Robert Donaldson, Chairman TSA, bearing the letterhead "George Sideris and Associates, Business and Commercial Lawyers", with the sign off "A H Sideris for George Sideris and Associates" and copying the Solicitor, including the following: "We act for Mrs Norma Elaine Sim and Ms Fiona Gordon Sim in connection with moneys paid as a RAD to the Salvation Army in 2017 by Fiona Sim as a loan to Norma Elaine Sim. We will not go into the facts which are very well known to the Salvation Army through a multitude of communications direct to Salvation Army and to your Lawyer Mr Luke Geary. As you are aware Sir, we are in the process of commencing legal action against Salvation Army as a result of the treatment of monies that were provided by Fiona Sim to the Salvation Army for and on behalf of Norma Sim who is a widow…""
2. In determining whether Particular 6 is made out, we will consider whether the work done by the Solicitor was work of a kind usually done by a legal practitioner, and what reasonable inference is objectively drawn from the correspondence sent by the Solicitor to Mr Geary and TSA in the relevant period which is in evidence before us. Whilst we have considered each item of correspondence individually, we approach the correspondence cumulatively as a course of conduct: Seymour at [20]. Both tests - the work done and reasonable inference - will be considered in this light.

Work done by the Solicitor

1. Particular 6(a) pertains to work of a kind usually done by a legal practitioner. The Solicitor repeatedly threatened to take legal action on behalf of Mrs Sim. That conduct can be seen in correspondence at: Schedule 1, items 8, 11, 16, 17, 18, 19, 20, 22, 23, 24, 25, 28, 29, 30, 32, 34, 36; Schedule 2, items 2, 8, 11, 12, 15, 18, 22, 23, 24, 25, 28, 30, 31, 33, 34, 35, 37, 38, 41; email from the Solicitor to Mr Geary, copied to Mr Donaldson and a K Oberg, dated 15 November 2021 at 2:48pm (formatting and style in original): "GO AHEAD as I will and am sure a Court will support Norma Sim..." (Schedule 1, item 8) "when I take legal action against the Salvation Army" (Schedule 2, item 2) "on the basis that you MR Donaldson and Ms Donaldson assist me and Norma Sim , I will not … lodge a claim which will be rather embarrassing for the Salvation Army" (Schedule 1, item 11) "reserve your rights and I will reserve mine" (Schedule 2, item 8) "I will take out an injunction … I will … commence legal action" (Schedule 2, item 11) "… then I will take action." (Schedule 2, item 12) "I will have non choice but to take legal action" (Schedule 1, item 16) "I will take legal action" (Schedule 2, item 15) "I have a claim prepared to be lodged with the Court" (Schedule 1, item 17 - forwards an email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 25 October 2021 at 5:26pm, in which he states as extracted) "I will … start legal action" (Schedule 2, item 18) "If you do not agree then made my day and you can explain to the press and the court…" (Schedule 1, item 18) "Deadline is Friday then you can deal with the Court…" (Schedule 2, item 22) "So you and TSA can answer to the press and the legal action… As to the legal action I will serve on TSA unless …" (Schedule 2, item 23) "If TSA try to use that money I will take out an injunction…" (Schedule 1, item 19) "If they try to use that money I will take out an injunction - of that you can be sure" (Schedule 2, item 25) ""I thought I would give this a last chance before I file with the court … The issues are as below which will be represented to the court… I want a response today from TSA NOT Luke Geary and if not I will file documents to see what the Court will say ." (Schedule 1, item 20) "Think about that and what the press will say about that as well as the Court" (Schedule 2, item 24) "I ask , does TSA want the embarrassment of a law action …" (Schedule 1, item 22) "you guys try and defend that in court …" (Schedule 1, item 23) "So lets get this whole mess finalised so that Norma Sim can claim for Financial hardship Assistance and I do not file my Legal action that has been prepared ." (Schedule 1, item 24; Schedule 2, item 28) "We are now at the very serious end of the matter . We have already prepared the filing for Court … this Firm as stated above will commence legal action against the Salvation Army for damages" (Schedule 1, item 25, attaching letter dated 10 November 2021 signed by "A H Sideris for George Sideris and Associates", with same words as extracted) "I have the documents ready to file with the Court" (email from the Solicitor to Mr Geary, copied to Mr Donaldson and a K Oberg, dated 15 November 2021 at 2:48pm) "I do not want to file a legal action …" (Schedule 1, item 28; Schedule 2, item 30) "I did what I could do now let the courts decide …" (Schedule 1, item 29; Schedule 2, item 31) "4. So before I file a legal action we propose the below :" (Schedule 1, item 30) "If we do not get a positive response by the end of this week then , I will have no choice but to present papers to Court … Surely TSA does not want any legal action." (Schedule 1, item 32; Schedule 2, item 33) "now I will file the court action" (Schedule 2, item 34) "Legal action and the press …" (Schedule 2, item 35) "push me to legal action and I have prepared documents" (Schedule 2, item 37) "Do you guys really want to answer to a Court ????" (Schedule 1, item 34; Schedule 2, item 38) "… I do not want to file an action" (Schedule 1, item 36; Schedule 2, item 41)
2. The Law Society contends that threatening legal action on behalf of another person is something that only a lawyer can do. This was said to be inherently the act of a legal practitioner. The Law Society submits that where a non-legal practitioner threatens to commence legal action on behalf of another person, there would be a strong case that person had engaged in the offence of engaging in legal practice or providing legal services without being a legal practitioner. We accept that this is generally the case. Threatening legal action on another person's behalf is almost exclusively the domain of legal practitioners, save a few exceptions (e.g., a tutor for a person under an incapacity).
3. A factor raised by the Solicitor for consideration is whether the apparently valid power of attorney held by him for Mrs Sim - that would allow him to act as attorney either jointly with or severally (that is individually and independently) from Dr Fiona Sim - affects the characterisation of the work done by the Solicitor. An attorney could also threaten to, and commence, legal action on behalf of their principal, although it would usually be expected that the attorney would engage a solicitor for such work.
4. However, the Solicitor's characterisation of his work as "assisting pro - bono" (Schedule 1, item 6) and emphasis that his "fees … are ZERO" (Schedule 2, item 21) detracts from any argument that the relevant work was work done as an attorney, rather than as a legal practitioner. In that regard, an attorney may generally not charge his principal (here Mrs Sim) for his work as an attorney unless specifically authorised to do so: Powers of Attorney Act 2003 (NSW), s 12; common law as set out in Dal Pont, Powers of Attorney (2011, LexisNexis Butterworth) at [6.38]. On the evidence before us, the Solicitor had no authority to charge Mrs Sim for any work he carried out as an attorney. Thus, the inference that should be drawn from these items of correspondence is that the Solicitor would be entitled to charge fees, but that he has elected to waive any such fees.
5. In any event, the Court of Appeal considered a not dissimilar relationship - appearing as a McKenzie friend for a spouse - in Odtojan v Condon [2023] NSWCA 129. There, the applicant was a solicitor, who had appeared for herself in proceedings; her husband, also a solicitor, appeared as her McKenzie friend. At issue was whether rr 5 and 32 of the Conduct Rules applied to the solicitor (in representing herself) and her husband (in appearing as a McKenzie friend). Relevantly, r 5 contains the phrase "in the course of legal practice or otherwise" - the relevant conduct was in the course of the proceedings. The Court held: "32. The applicant is a solicitor. The fact that she is acting for herself does not excuse her from her ethical obligations. Nor does the fact that Mr Bryl sought to appear merely as a McKenzie friend excuse him from his. … 34. The suggestion that Ms Odtojan is free from her professional obligations because she herself is a litigant misapprehends the obligations of a solicitor. It suffices to mention rules 5 and 32 of the [Conduct Rules]… 35. Both of those rules were applicable to Ms Odtojan when she was appearing for herself in the proceedings in the District Court. Both of those rules were applicable to Mr Bryl when he was speaking for Ms Odtojan in this Court." Undertaking work of a kind done by a solicitor, even if it is work of a kind sometimes done by a non-solicitor, did not excuse Mr Bryl from his ethical obligations.
6. A similar point could be taken from the Court of Appeal's decision in Dwyer. Emmett JA (Basten and Ward JJA agreeing), held at [12] that "[a] person does something as a legal practitioner if the person does something that is usually done by a legal practitioner and does it in such a way as to lead to the reasonable inference that the person is a legal practitioner" (our emphasis). Most explicitly, the Court of Appeal in Seymour held at [19]: "…the second question is whether a person who has performed activities which, although not required to be done by a solicitor, are usually performed by a solicitor, did so in such a way ..." That is, the test is not whether the work is exclusively done by legal practitioners. That the work in question may be work done by non-legal practitioners does not preclude a finding that the Solicitor was acting in the course of legal practice, particularly if the reasonable inference objectively drawn from his conduct is that he was acting as a legal practitioner.
7. Thus, we turn to consider what reasonable inference is to be drawn from the Solicitor's conduct.

Reasonable inference

1. Particulars 6(b) to (f) concern conduct that is relevant to the "reasonable inference" test. In determining what reasonable inference can be drawn from the Solicitor's conduct, we consider the work done as described above - that is, work of a kind usually done by a legal practitioner - in combination with the factors below.
2. To give some context and provide clarity to what follows, it is necessary to record that the voluminous correspondence sent by the Solicitor, which forms part of the particulars of the complaint, was not uniformly formatted.
3. Relevantly, the Solicitor used a signature block styled: "George Sideris […] Principal George Sideris & Associates -Business and Commercial lawyers . [Mobile number]" Of the correspondence in evidence before us, this signature block was used in: Schedule 1, items 1, 3, 9, 17, 18, 19, 21, 23, 27, 28, 29, 30, 31, 33, 34, 35, 38, 39, 41, 42, 43, 44, 45; Schedule 2, items 2, 3, 4, 5, 6, 7, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 30, 31, 32, 35, 36, 37, 38, 39, 40, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52; email from the Solicitor to Mr Geary, copied to Mr Donaldson and a K Oberg, dated 15 November 2021 at 2:48pm. Some of these items of correspondence also included "BSC (Eng),LLB ,Grad Dip Lgl Prct." below the Solicitor's name.
4. Another signature block was styled: "George Sideris Principal Solicitor George Sideris and Associates Technical ,Business and Commercial Lawyers [Mobile number] Liability limited by a Scheme approved under Professional Standards Legislation.

PLEASE NOTE if this email transmission is NOT INTENDED FOR RECEIPT BY YOU please contact our office immediately. This is a privileged legal communication and any use or disclosure by other persons is strictly prohibited. Privilege in the documents transmitted is not waived or lost as a result of a mistake or error in transmission." Of the correspondence in evidence before us, this signature block was used in: Schedule 1, items 2, 4, 5, 6, 7, 8, 10, 16, 20, 24, 25, 32; Schedule 2, items 1, 8, 9, 10, 11, 28, 29, 33; email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021.

1. Other signature blocks were styled: "George Sideris BSC (Eng),LLB , Grad Dip Lgl Prct. Principal George Sideris & Associates -Business and Commercial Lawyers [Mobile number] This email including any attachments is intended only for the intended addressee(s). It is confidential, subject to copyright, and may be the subject of legal or other privilege, none of which is waived or lost by reason of this transmission. If you are not the intended recipient of this message, please accept our apology, notify the sender immediately, and delete the message and any attachments. Any disclosure, reproduction, distribution or other use of this message or any attachments by an individual or entity other than the intended recipient is prohibited." (Schedule 1, item 26) "George Sideris Son In Law to Norma Sim This email including any attachments is intended only for the intended addressee(s). It is confidential, subject to copyright, and may be the subject of legal or other privilege, none of which is waived or lost by reason of this transmission. If you are not the intended recipient of this message, please accept our apology, notify the sender immediately, and delete the message and any attachments. Any disclosure, reproduction, distribution or other use of this message or any attachments by an individual or entity other than the intended recipient is prohibited." (Schedule 1, item 11) "George Sideris LLB; Bsc( Eng ) [Mobile number] PLEASE NOTE if this email transmission is NOT INTENDED FOR RECEIPT BY YOU please contact our office immediately. This is a privileged legal communication and any use or disclosure by other persons is strictly prohibited. Privilege in the documents transmitted is not waived or lost as a result of a mistake or error in transmission." (Schedule 1, item 40)
2. Further items of correspondence contained a signature block styled: "George Sideris [Mobile number]" Of the correspondence in evidence before us, this signature block was used in: Schedule 1, items 13, 14, 15, 36, 37, 46; Schedule 2, item 34, 41, 42. Schedule 1, item 12 was signed only with the Solicitor's name.
3. The balance of these signature blocks tends towards the Solicitor sending this correspondence on behalf of Mrs Sim as a solicitor, rather than as a son-in law or as an attorney. Most made reference to a legal firm bearing the name "George Sideris and Associates" and described the Solicitor as "Principal" or "Principal Solicitor". These signature blocks, considered cumulatively and in light of the contents of the emails in which they are included, particularly, threats to commence legal action against TSA, significantly bolster an inference that the Solicitor was acting as a legal practitioner representing Mrs Sim , in the dispute.
4. Through concessions made by the Solicitor from the bar table it became apparent that, whilst he may have intended to do so at some time in the past, he has never formed a legal firm of "George Sideris & Associates" or registered a business name in that style. The evidence tendered by the Law Society in its complaint indicates that Mr Sideris was not authorised to operate a law practice in the relevant period.
5. Assertions by the Solicitor that no legal firm existed by that name and that he was not entitled to practise as a sole practitioner or principal in a firm do not detract from the proper inference to be drawn from those factors where such assertions were by no means made clear to a reasonable person reading his correspondence. The reasonable inference test, as explained in Seymour by Fitzgerald JA at [21] (Priestley and Stein JJA agreeing), is to "be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities misrepresents that he or she is a solicitor …".
6. Further, Schedule 1, item 25 (email from the Solicitor to a R Donaldson, copied to Mr Geary and a J Donaldson and a K Oberg, dated 11 November 2021 at 2:53pm) attached a letter dated 10 November 2021, addressed to Mr Donaldson. That letter had letterhead styled: With address and contact details listed below the image. The contact email was "george.sideris[X]@[X]". The signature block of the letter was styled "A H Sideris for George Sideris and Associates". The Solicitor was copied in the letter.
7. The letter, whilst not signed by the Solicitor, was sent on letterhead bearing his name, with what appears to be his email address as the contact email. The letter commences: "[w]e act for Mrs Norma Elaine Sim and Ms Fiona Gordon Sim in connection with moneys paid as a RAD to the Salvation Army in 2017 by Fiona Sim as a loan to Norma Elain Sim ." The "[w]e act" invokes the language of a firm of solicitors corresponding on behalf of a client. Where that firm is purportedly named "George Sideris and Associates" and the Solicitor has repeatedly held himself out as the "Principal" of such a firm, a strong inference is available that the Solicitor acted for Mrs Sim in the dispute. This is not substantially weakened by the reference to "[o]ur Client Mr George Sideris" later in the letter.
8. Further, it was the Solicitor himself who attached and sent the above described letter by email on 11 November 2021 to Mr Donaldson, copied to Mr Geary, Ms Donaldson and a K Oberg. The covering email uses the language of "we" throughout (formatting and errors as in original): "We confirm as below : … this Firm as stated above will commence legal action against the Salvation Army for damages … We strongly suggest that you read the letetr (sic) and take action as is suggested above . George Sideris … Principal Solicitor George Sideris and Associates Technical ,Business and Commercial Lawyers"
9. Significantly, the Solicitor also referred to himself - explicitly and implicitly - as a solicitor in the content of his correspondence with TSA and Mr Geary on a number of occasions: see Schedule 1, items 2, 6; Schedule 2, items 1, 8, 18, 21, 48; email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021 (formatting and style in original): "we ( Fiona Sim and I as an independent Solicitor ) will provide personal guarantees … my personal guarantee as a Solicitor" (Schedule 1, item 2) "I am … assisting pro - bono" (Schedule 1, item 6) "Luke we are both lawyers … " (Schedule 2, item 1) "am acting now as a solicitor as necessary and a relative as necessary but both at time" (Schedule 2, item 8) "4. As to George Sideris , I am an in dependant person and the TSA has no rights to any of my information as I am not to guarantee anything but am acting as a support Solicitor ," (Email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021) "So advise your client and I will as well…" (Schedule 2, item 18) "because we want to be lawyers and carry on with our bullshit for fee . Your fees would be a lot more than $100,000 and mine are ZERO" (Schedule 2, item 21) "we are both lawyers … I was a lawyer when you were in nappies…" (Schedule 2, item 48)
10. On two occasions, the Solicitor explicitly states that he is acting as a solicitor: "acting as a support Solicitor" (email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021) and "am acting now as a solicitor as necessary as a solicitor as necessary and a relative as necessary but both at time" (Schedule 2, item 8). In the latter statement, "at time" could be "at time[s]" or "at [the same] time". The Solicitor may not "dip" into and out of acting as a solicitor so as to avoid his professional obligations. Once it is established that he is acting in the course of legal practice, his professional obligations are engaged for the entirety of the course of conduct engaged in by the Solicitor in the dispute. We place little weight on the Solicitor's assertion later in the email - "I am her relative I can act as a relative full stop" (emphasis in original) - where it does not directly contradict his earlier assertion of acting "as a solicitor as necessary and a relative as necessary". It could not be said to be a retraction of that statement.
11. In any event, "am acting now as a solicitor as necessary" is a clear acknowledgement from the Solicitor that he had, at the very least from the date of this email, commenced acting as a solicitor in the dispute. The better inference to be drawn is that he had been acting as a solicitor from at least the date on which Mr Geary was instructed in the matter. This is so in light of the fact that the Solicitor's email was sent less than two hours after an email from Mr Geary that relevantly stated: "[y]ou are acting as a Solicitor for Mrs Sim. You have repeatedly told me so in writing." Schedule 2, item 8 is a reply to this email. We are satisfied that the Solicitor's statement is responsive to this email. We further accept that this represents a failure on the part of the Solicitor to correct Mr Geary if he was in fact not acting as Mrs Sim's solicitor. As the Court of Appeal said in Seymour at [21], the inference test "must be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities misrepresents that he or she is a solicitor or explains that he or she is not a solicitor" (our emphasis). The absence of any correction when clearly confronted with Mr Geary's belief is relevant in light of this approach.
12. Further comment is also required in relation to the statement in Schedule 2, item 18: "[s]o advise your client and I will as well…". We accept that "and I will as well" can be read in two ways - that is, "I will [advise my client] as well" or "I will [advise your client] as well". The latter is an available interpretation in the context of the Solicitor's repeated correspondence with Mr Geary's client. Isolated from context, we would give less weight to this statement. However, in the context of repeated reminders that the Solicitor is a solicitor and acting or assisting as a solicitor, we do not think the latter interpretation detracts from the overall inference to be drawn. Indeed, the inference for the latter interpretation would be that the Solicitor would give such advice to TSA as a solicitor, drawing on his legal knowledge and skills.
13. Objectively, the overall inference that can be drawn from the Solicitor's repeated reference to the fact that he was a solicitor or lawyer, and particularly his explicit statements to the effect that he was acting as a solicitor in the dispute, in the context of the work done as described above, is that the work in question was being undertaken in his capacity as a legal practitioner; Mrs Sim's solicitor. As the Court held in Re Sanderson at 397 (cited with approval in Seymour at [16]): "if he combines professing to be a solicitor with action usually taken by a solicitor - I think he then does act as a solicitor."
14. We accept that the reasonable inference test is to "be considered by reference to a reasonable person with knowledge of the material activities, which will include any statement by which the person performing the activities … explains that he or she is not a solicitor." That would include explanations that a person is acting as an attorney or as a son-in-law.
15. We were only able to identify one occasion in the particularised items of correspondence on which the Solicitor made explicit reference to holding a power of attorney for Mrs Sim. On 27 August 2021 at 5:35pm, the Solicitor sent an email to Mr Donaldson, copied to Ms Donaldson, in which he stated: "I am the Son in law of Ms Norma Elaine Sim" and later "I have an Enduring Power of Attorney and am assisting Norma Elaine Sim on this matter" (Schedule 1, item 11, style as in original). The email was signed: "George Sideris Son In Law to Norma Sim This email including any attachments is intended only for the intended addressee(s). It is confidential, subject to copyright, and may be the subject of legal or other privilege, none of which is waived or lost by reason of this transmission. If you are not the intended recipient of this message, please accept our apology, notify the sender immediately, and delete the message and any attachments. Any disclosure, reproduction, distribution or other use of this message or any attachments by an individual or entity other than the intended recipient is prohibited."
16. Taken individually, this email is not probative toward a finding that the Solicitor was acting in the course of legal practice. However, taken as a part of a course of conduct, the email followed a series of emails copied to various staff members of TSA with signature blocks extracted above referring to the Solicitor as a solicitor and the principal of a firm. It also followed a number of emails sent to Mr Geary, with similarly styled signature blocks, in which the Solicitor had referred to himself as a solicitor and threatened legal action. The many emails which followed Schedule 1, item 11 only strengthen the inference that the Solicitor was acting in the course of legal practice. It is not a clear statement to the effect that the Solicitor was acting as an attorney rather than as a solicitor. In light of the course of conduct as a whole, we give this email little weight.
17. Similarly, it was only on 20 January 2022 that the Solicitor explicitly stated "I am a son in law and am not acting directly as a lawyer" in correspondence sent to Mr Geary or TSA. This statement was made in an email sent to the Law Society on 20 January 2022 at 10:17am, in response to being notified that additional correspondence had been included in the complaint. That email was then forwarded to Mr Geary at 3:46pm, beginning "[s]ee below …" and with a further seven paragraphs of content. As above, this email does not exist in isolation, but in a course of conduct which included explicit statements by the solicitor to the effect that he was acting as a solicitor. We give this email little weight.
18. Any assertion by the Solicitor that he was acting as an attorney or son-in-law, as opposed to as a solicitor on behalf of a client - those being few in any event - is diminished in the context of the conduct outlined above. That is, the kind of work usually done by the Solicitor, his signature blocks on all but a few of the particularised items of correspondence, his references to himself as a solicitor or lawyer, his failure to correct Mr Geary's belief that he was acting as Mrs Sim's solicitor and the sending of the letter dated 10 November 2021.
19. For the reasons set out above, and having regard to the Solicitor's correspondence to Mr Geary and TSA cumulatively, we are satisfied that the reasonable inference to be drawn is that the Solicitor was acting as a legal practitioner in the course of the dispute from 1 July 2021 to 17 February 2022.

Conclusion

1. Particulars 6(a), (c), (d), (e) and (f) are made out on the evidence before us, set out in "Work done by the Solicitor" and "Reasonable inference" above, and we make these findings. There were numerous occasions on which the Solicitor threatened legal action or to commence proceedings: particular 6(a). All but a few of the Solicitor's email sign-offs describe the Solicitor as "Principal" or "Principal Solicitor" with reference to a legal firm "George Sideris and Associates": particular 6(c). There are eight occasions on which the Solicitor referred to his experience as or the fact that he is a lawyer or solicitor in the correspondence, with two further occasions on which the clear implication is that the Solicitor is a lawyer: particular 6(d). We accept that the Solicitor did not correct Mr Geary's belief that he was acting for Mrs Sim and Dr Sim, whom Mr Geary believed were the Solicitor's clients: particular 6(e). We accept that the Solicitor sent an email to Mr Donaldson, copied to Mr Geary and Ms Donaldson, which attached the letter dated 10 November 2021: particular 6(f).
2. As to Particular 6(b), this is not entirely made out in its terms. That is, we were unable to identify an occasion on which the Solicitor explicitly described Mrs Sim or Dr Sim as his "clients" in the correspondence before us. However, the strong implication of the 10 November 2021 letter, attached to an email sent by the Solicitor on 11 November 2021 (Schedule 1, item 25), is that this was the case. In that letter, it is stated: "[w]e act for Mrs Norma Elaine Sim and Ms Fiona Gordon Sim". The "we" is the (fictitious) legal firm "George Sideris and Associates", of which the Solicitor held himself out as "Principal Solicitor". Inherent in a legal firm acting for a person is that the person is a client of the legal firm, regardless of whether fees have been charged. Thus, whilst Particular 6(b) is not made out in its precise terms, it is made out in substance.
3. Assessed as a course of conduct, the work done by the Solicitor, set out in Particular 6 as made out, was work of a kind usually, although not always done by a solicitor. However, the conduct of the Solicitor leads to the reasonable inference that the Solicitor was acting as a solicitor. We find that the Solicitor was both acting "in the course of legal practice" and "in representing a client" from 1 July 2021 to 17 February 2022.

Further indicia of acting "in the course of legal practice" and "in representing a client"

1. There are further indicia, which were not expressly pleaded, that the Solicitor was acting as a legal practitioner and thereby "in the course of legal practice" and in "representing a client".

Work done by the Solicitor

1. Below, we address the further aspects of the Solicitor's conduct identified in the Law Society's submissions that is said to be work of a kind done by a solicitor.
2. The Solicitor sent correspondence on behalf of Mrs Sim to TSA and Mr Geary (and Services Australia). That is the case for all items of correspondence particularised in Schedules 1 and 2. We accept that, whilst this is work that is frequently done by a solicitor (and work solicitors are frequently engaged to do), this is work that could be done by a non-solicitor. In itself, it is not determinative.
3. The Solicitor also advocated for and negotiated on behalf of Mrs Sim with TSA and Mr Geary (and Services Australia). That conduct can be seen generally in correspondence at: Schedule 1, items 1, 2, 3, 6, 12, 16, 19, 24, 27, 30, 32, 36, 41; Schedule 2, items 1, 10, 11, 12, 14, 28, 33, 41, 45; email from the Solicitor to Mr Geary, copied to Ms Brodie (of Mills Oakley), dated 15 October 2021. In those emails, the Solicitor conveys Mrs Sim's position to the recipients and/or seeks to achieve Mrs Sim's desired result (formatting and style in original): "We need to get concurrence from the Salvation Army , a Variation agreement …" (Schedule 1, item 1) "We need to get hardship assistance for Norma … They , Service Australia have confirmed that Everything else will be deemed an asset and the mans [scil - means] test will apply …" (Schedule 1, item 3) "We are now in receipt of the letter In respect of the contents of the letter of 15th October 2021 , I on behalf of Norma Sim and Fiona Sim have commented and you have the response which is below ;" (Email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021) "I thought we had agreed without all the extra detail on how the $100,000 held by TSA would be refunded" (Schedule 2, item 10) "the offer is not acceptable" (Schedule 2, item 11) "Luke , I have an email that we agreed to the below …" (Schedule 2, item 12) "we discussed and agreed on the details for release of the $100,000 and the bank Guarantee and I spoke to CBA …" (Schedule 2, item 14) "this money belongs to Fiona Sim and we ask to have it refunded forthwith" (Schedule 1, item 19) "we are prepared to close this out as below" (Schedule 1, item 32; Schedule 2, item 33) "I have suggested a good solution…" (Schedule 1, item 41; Schedule 2, item 45) The Solicitor actively advocated for and negotiated on behalf of Mrs Norma Sim in several items of correspondence. This is still a kind of work occasionally done by non-lawyers, but - particularly negotiating on someone's behalf with another lawyer - is work commonly performed by lawyers.
4. The Solicitor also prepared and considered draft documents on Mrs Sim's behalf. That conduct can be seen at: Schedule 1, items 1, 5, 6, and 8 (formatting and style in original): "We need to get … a Variation agreement and I will need to put in a new application for Financial hardship for Norma Sim. I have prepared the new application in readiness . Can you please advise status ." (Schedule 1, item 1) "When the original arrangement entered into, it was clear at the time from the Salvation Army that the RAD was clearly a refundable deposit and we clearly stated that … A RAD of this type is unheard of as we have determined … The above is a sensible solution so can you please get instructions so we can stop this interest payment …" (Schedule 1, item 5) "I … will look at the documentation you sent me and respond tomorrow" (Schedule 1, item 6) "I have had a good review of the document you emailed yesterday... I have reviewed the Resident and Accommodation Agreement ( RAA) and there is no clause in that agreement …" (Schedule 1, item 8) The Solicitor clearly engaged with draft documents prepared by Mr Geary on behalf of Mrs Sim, and at times played a role in their preparation. Such conduct is much more likely to be work done by a solicitor than a non-solicitor. It would likely be a rare case where a non-solicitor undertakes such work on behalf of another person. Work of this kind often involves an element of the provision of legal advice and the use of legal knowledge, as can be seen by the overlap of these extracts with the Solicitor's apparent engagement in legal analysis on behalf of Mrs Sim.
5. The Solicitor apparently engaged in legal analysis on behalf of Mrs Sim on a number of occasions. That conduct can be seen in correspondence generally at: Schedule 1, items 5, 8, 9, 11, 19, 24, 31, 42; Schedule 2, items 10, 18, 25, 28, 32, 46; email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021 (formatting and style in original): "When the original arrangement entered into, it was clear at the time from the Salvation Army that the RAD was clearly a refundable deposit and we clearly stated that … A RAD of this type is unheard of as we have determined …" (Schedule 1, item 5) "I have reviewed the Resident and Accommodation Agreement ( RAA) and there is no clause in that agreement …" (Schedule 1, item 8) "this has to cease immediately as it is not a valid charge …" (Schedule 1, item 9) "We are now in receipt of the letter In respect of the contents of the letter of 15th October 2021 , I on behalf of Norma Sim and Fiona Sim have commented and you have the response which is below ; … Fiona Sim and Norma Sim reserve their rights at law and equity ." (Email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021) "I thought we had agreed without all the extra detail on how the $100,000 held by TSA would be refunded … So legally they have confirmed it was a loan and the monies are the property of Fiona Sim. … In respect of the contents of the letter of 15th October 2021 , I on behalf of Norma Sim and Fiona Sim have commented and you have the response which is below ; … I respect to your latest letter I respond as below in parentheses …" (Schedule 2, item 10) "As to the $100,000 I put you and TSA on notice that TSA have no right to such money …" (Schedule 2, item 18) "If TSA have no right to the loaned funds - this money belongs to Fiona Sim and we ask to have it refunded forthwith" (Schedule 1, item 19) "they have no right to the loaned funds" (Schedule 2, item 25) "I advise that TSA does not have a right to the monies as they were a loan and TSA had no right to have the large and inequitable amount classified as a RAD" (Schedule 1, item 24; Schedule 2, item 28) "it does not belong to Norma Sim - it belongs to Fiona Sim and was a clear loan under duress" (Schedule 1, item 31; Schedule 2, item 32) "I put you on notice that the money you hold does not belong to Norma Sim" (Schedule 1, item 42; Schedule 2, item 46)
6. Engaging in legal analysis on behalf of someone else is a kind of work expected to be undertaken solely by legal practitioners. As submitted by the Law Society, it involves the use of legal skills and knowledge and, to some extent, the provision of legal advice. As Williams J acknowledged in Overdean at [793]: "Generally speaking, the giving of professional legal advice … [is] exclusively within the province of those trained in the law and having the necessary expertise."
7. Some, but certainly not all, of the work described above could potentially be characterised as work of a kind done by an attorney. For example, engaging in correspondence, advocating for, and negotiating on behalf of Mrs Sim could all be said to be work of a kind done by an attorney. However, an attorney would not be expected to prepare and consider draft agreements and other documents on behalf of their principal, particularly where legal analysis and skills are required and/or overlap with such work (as is the case here). Further, an attorney would not engage in legal analysis on behalf of their principal. This is similarly supported by our discussion above as to the Solicitor's implied purported entitlement to charge fees.
8. Further, as set out above, the test is not whether the work is exclusively done by legal practitioners. That some of the work done may be work done by non-legal practitioners does not preclude a finding that the Solicitor was acting in the course of legal practice, particularly if the reasonable inference objectively drawn from his conduct is that he was acting as a legal practitioner.

Reasonable inference

1. Beyond the description of the Solicitor in his email sign-offs as "Principal" or "Principal Solicitor" of a firm styled "George Sideris and Associates", many signature blocks made reference to his legal qualifications: "LLB" and "Grad Dip Lgl Prct." Many emails also included disclaimers relating to the Solicitor's liability being limited and to legal professional privilege. In respect of the former, such a statement would only be correct if a solicitor was working as a solicitor in the course of legal practice. A reasonable observer would draw the inference that this was the case. In respect of the latter, the correspondence would only be a privileged legal communication if it reflected confidential communications passing between a client and the client's legal adviser for the dominant purpose of obtaining or giving legal advice: Baker v Campbell (1983) 153 CLR 52 at 122; [1983] HCA 39. Where the disclaimer stated "[t]his is a privileged legal communication" as opposed to "[t]his email … may be the subject of legal or other privilege", a reasonable observer would draw an inference that the Solicitor (even if incorrectly) believed that the correspondence related to the provision of legal advice to his client. These elements of the signature blocks (in addition to those considered above as set out in particular 6(c)) considered cumulatively and in light of the contents of the emails in which they are included, bolster an inference that the Solicitor was acting as a legal practitioner; Mrs Sim's solicitor, in the dispute.
2. That inference is further strengthened by the language used by the Solicitor in his emails to Mr Geary and TSA generally, including legal analysis and threats to take legal action, as well as the specific language of "act[ing] for" Mrs Sim and Dr Sim (each as described above). A further example is the Solicitor's statement "Fiona Sim and Norma Sim reserve their rights at law and equity" (email from the Solicitor to Mr Geary, copied to Ms Brodie, dated 15 October 2021). The clear inference available there is that a solicitor was acting to protect those parties' legal positions notwithstanding the content of the correspondence. Similarly, the Solicitor's language of "assisting pro - bono" (Schedule 1, item 6) and emphasis that his fees "are ZERO" (Schedule 2, item 21) would lead to a reasonable inference that he was a solicitor acting pro bono for a client.
3. Any reliance by the Solicitor on the statements "I am the Son in law of Ms Norma Elaine Sim" and later "I have an Enduring Power of Attorney and am assisting Norma Elaine Sim on this matter" in Schedule 1, item 11 would be further diminished in light of the above further indicia. Taken as a part of a course of conduct, the email followed a series of emails copied to various staff members of TSA with signature blocks that included references to liability being limited and legal professional privilege, in which the Solicitor advocated for and negotiated on behalf of Mrs Sim, prepared and considered draft documents on her behalf, and apparently engaged in legal analysis on her behalf. The many emails which followed Schedule 1, item 11 in a similar style only strengthen the inference that the Solicitor was acting in the course of legal practice.
4. Any further assertion by the Solicitor that he was acting as an attorney or son-in-law, as opposed to as a solicitor on behalf of a client - those being few in any event - is diminished in the context of the conduct outlined above. That is, the kind of work done by the Solicitor, his signature blocks on all but a few of the particularised items of correspondence, and the language used by the Solicitor generally.
5. We also accept that Mr Geary held a contemporaneous belief that the Solicitor was acting as Mrs Sim's solicitor. We note also the comments of Barr J in Law Society of New South Wales v Seymour (Supreme Court (NSW), Barr J, 2 December 1997, unrep), the decision under appeal in Seymour, where the trial judge stated: "evidence about the belief of individuals concerned with the case, whilst it may not determine the result of the inquiry, is, I think, relevant." The Court of Appeal did not challenge this statement or disturb the findings made by the trial judge as to those individual's beliefs. Mr Geary's contemporaneous belief is not determinative of the issue, but we take it into account in our consideration.
6. For the reasons set out above, the reasonable inference to be drawn from the further indicia considered here is that the Solicitor was acting as a legal practitioner in the course of the dispute from 1 July 2021 to 17 February 2022.

Ground One - Did the Solicitor breach r 33 and is the Ground made out?

Submissions

1. The Law Society submits that each instance of correspondence set out in Schedule 1, sent to representatives and staff of TSA, contravened r 33 of the Conduct Rules and thus was unsatisfactory professional conduct. Each item of correspondence sent in Schedule 1 was sent after a request by Mr Geary that the Solicitor cease communicating directly with TSA, and this request was repeated on several occasions. Thus, each item of correspondence breached r 33 of the Conduct Rules, and that breach is compounded by the fact that the correspondence was sent despite Mr Geary's repeated requests. The Law Society contends that the deliberate and wilful nature of the breaches is of such a character that a finding of unsatisfactory professional conduct is appropriate.
2. Further, considering each instance of unsatisfactory professional conduct cumulatively, the Law Society submits that the Solicitor is guilty of professional misconduct, because the conduct represents either a substantial or consistent failure to reach or maintain the requisite standard. The failure is a consistent one because of the number of occasions on which correspondence was sent, such that his conduct represents a "want of fitness or competence" (Webb at [26]). Further or in the alternative, the Solicitor's failure to reach or maintain the relevant standard is substantial in circumstances where the repeated breaches involved correspondence, giving his conduct the nature of harassment. The repeated breaches make the Solicitor's conduct serious in the sense that his failure to appreciate the ethical requirements which applied "raise questions as to [his] competence and diligence and thereby warrant the description "substantial"" (Webb at [22]). The Law Society argues that either or both of these bases would satisfy the Tribunal that the Solicitor's conduct constitutes professional misconduct.
3. The Solicitor submits that he did not breach r 33 because he did not act in the course of legal practice, and in representing a client. He does not dispute that he sent correspondence directly to TSA when TSA was represented by a solicitor. He says that he became frustrated in corresponding with Mr Geary, as he was not receiving assistance or seeing progress, and so contacted TSA directly. The Solicitor contends that he "had no other choice but to contact the Salvation Army senior management to get assistance as Luke Geary would not assist in any way". He says he does not regret contacting TSA directly. Whilst his attention was drawn to the exception in r 33.1.2 during his oral submissions, he did not contend that it applied to the circumstances in question. In other words, the sole basis on which he says Ground 1 is not made out is that he did not act in the course of legal practice, or in representing a client, rather he acted as a son-in-law or (at times) as an attorney under a power of attorney.

Particulars - Ground One

1. Particulars 1-5 and 7-8 concern backgrounds facts, most of which have been described earlier in the "Background" part of these reasons for decision. None of the facts contained in Particulars 1-5 and 7-8 are in dispute, and we make these findings. Particular 6 is made out as addressed above in our consideration of whether the Solicitor acted as a legal practitioner, and thereby acted in the course of legal practice and in representing a client.
2. In respect of the particulars of Ground 1, we find that the Solicitor sent the correspondence particularised in Schedule 1 that is relied upon by the Law Society between 1 July 2021 and 13 February 2022: particular 9. Each such email was sent directly to employees and representatives of TSA who were not partners, employees or representatives of Mills Oakley: particular 10. The relevant communications from the Solicitor to TSA related to the dispute in relation to which TSA retained Mr Geary: particular 12.

Did the Solicitor send correspondence to representatives of TSA, knowing TSA was represented by another solicitor, in breach of r 33?

1. The Solicitor does not deny that he sent correspondence directly to TSA when TSA was represented by Mr Geary. Further, there is an unchallenged and documented history of Mr Geary repeatedly advising the Solicitor that because TSA was represented by a solicitor, the Solicitor should not write to TSA direct.
2. We find that, subsequent to the email from Mr Geary to the Solicitor on 18 May 2021 in which Mr Geary advised that he acted for TSA and asking that any further correspondence concerning the dispute in question be directed to his office (Mills Oakley), the Solicitor continued to send emails directly to TSA representatives despite correspondence from Mr Geary requesting the Solicitor cease emailing his client directly, including emails sent by Mr Geary on 5 July 2021; 8 July 2021; 30 August 2021; and 6 September 2021: particular 11.
3. We are satisfied that, in sending each of the items of correspondence listed in Schedule 1 to TSA, that he did so while representing his client, Mrs Norma Sim, in her dispute with TSA, with full knowledge that TSA was represented by another solicitor, Mr Geary. Mr Geary did not consent to the Solicitor contacting TSA in respect of the dispute. We make these findings.
4. Rule 33 contains some carve-outs (or exceptions) at r 33.1.1- 33.1.4, none of which were relied on by the Solicitor in his defence, and none of which apply here.
5. Applying the "no contact" rule in r 33 where the opposing (or other) party is an organisation, rather than a natural person, may present challenges in certain circumstances, such as where a solicitor may have other legitimate reasons to interact with the organisation or its personnel. That is not the case here.
6. Organisations such as TSA act through the agency of natural persons, such as their directors, employees or contractors. Guidance issued by regulators in several other jurisdictions is to the effect that it is an organisation's authorised representatives or decision-makers with respect to a given matter, as well as its directors or senior management, that should be regarded as representing the other party for the purpose of the "no contact" rule and it is therefore to dealings with those individuals to which the "no contact" rule relates (see Queensland Law Society, Guidance Statement No 29 "Applying the 'no contact' rule when the other party is an organisation" at [2.1]; see also Law Institute Victoria, Ethics Guidelines, "Communicating with Another Solicitor's Client"). As far as we are aware, there is no judicial guidance on the issue. Neither party has raised any contention, nor made any submission, in relation to this issue.
7. The correspondence particularised in Schedule 1 was sent or copied variously and in differing combinations to: a Mr R Donaldson (the Chair of TSA); a W Merrett (the Chief Secretary of TSA); a Ms J Donaldson (described as a member of the "senior leadership" and "senior executive personnel" of TSA); a K Oberg (described as a member of the "executive personnel" of TSA); a J Russell, a S Gibson and a M Thusanthan (described as "staff"); and a "communications@" email address. The vast majority of the correspondence particularised in Schedule 1 was sent to TSA senior and/or executive personnel, including Mr and Ms Donaldson, W Merrett and K Oberg. Only ten of the forty-six items were sent or copied to "staff" of TSA.
8. When (as here) an organisation is the "client" for the purposes of r 33, and if there is an implicit requirement that the direct communications in question be made to persons within the organisation who form part of the senior management or who otherwise have relevant decision-making authority, we think that any such requirement is met in the present circumstances. The recipients of the emails to TSA included persons who are likely to have had the authority to represent TSA in relation to the dispute in question between Mrs Sim and TSA. Indeed, the very reason that the Solicitor sought to communicate directly with TSA was to contact TSA representatives who may have authority to influence TSA's position concerning Mrs Sim's liability to pay the RAD (and the amount of any refund payable by TSA to Mrs Sim). That is the case even for the emails sent by the Solicitor to "staff" (as opposed to members of the "senior leadership" or "executive personnel") of TSA. Such is clear on an objective reading of those emails.
9. We are satisfied that the Solicitor breached r 33 of the Conduct Rules on each occasion he sent correspondence to TSA as listed in Schedule 1: particular 13.

Does each instance of the correspondence sent to representatives of TSA constitute unsatisfactory professional conduct?

1. A breach of the Conduct Rules is capable of constituting unsatisfactory professional conduct: Conduct Rules, r 2. The sending of each item of correspondence particularised in Schedule 1 amounts to a breach of r 33. Each item of correspondence was sent after a request from Mr Geary that the Solicitor "direct any further correspondence concerning this matter to my office." We agree with the submissions of the Law Society that the deliberate and wilful nature of the Solicitor's breaches of r 33 justifies a finding of unsatisfactory professional conduct in relation to each item of correspondence particularised in Schedule 1, because each instance was conduct that fell short of the standard of competence a member of the public is entitled to expect of a reasonably competent lawyer. Particulars 14(a) and (b) are made out and we make these findings.

Does the Solicitor's correspondence sent to TSA found to be unsatisfactory professional conduct, considered cumulatively, amount to professional misconduct?

1. Considered cumulatively, we find that the conduct by which the Solicitor sent the forty-six items of correspondence to TSA, as particularised in Schedule 1, amounts to professional misconduct.
2. Each item of correspondence was sent after Mr Geary wrote to the Solicitor on 18 May 2021, in which he confirmed that he acted for TSA and requested future correspondence be directed to his office. Despite repeated requests that the Solicitor cease contacting TSA on 5 July 2021, 8 July 2021, 30 August 2021, 6 September 2021, 19 October 2021 and 29 October 2021, the Solicitor continued to do so. On 6 September and 19 October 2021, the Solicitor was warned that Mr Geary would make a complaint on his client's behalf if the direct correspondence continued. Mr Geary advised the Solicitor that he had lodged a complaint with the Legal Services Commissioner on 27 October 2021. The Solicitor was notified of the complaint by the Law Society on 7 December 2021.
3. Notwithstanding Mr Geary's warnings about making a complaint and being notified that a complaint had been made, the Solicitor continued to send correspondence to TSA: for correspondence after Mr Geary's warning, see Schedule 1, items 16-46 and Schedule 2, items 13-52; for correspondence after being notified by Mr Geary that he had made a complaint, see Schedule 1, items 18-46 and Schedule 2, items 18-52; for correspondence after being notified of the complaint by the Law Society, see Schedule 2, items 33-46 and Schedule 2, items 34-52. The course of correspondence amounted to a "deliberate and persistent system of conduct": Clyne at 200.
4. We have found that the purpose of the Solicitor's communication with TSA was to influence TSA's position concerning Mrs Sim's liability to pay the RAD (and the amount of any refund payable by TSA to Mrs Sim). This heightens the seriousness of the breaches: c.f. Paric at [20]; see Orlov and Pursley.
5. As in Wharff, the "nature and extent of the direct communications … and his persistence in making them after being warned", considered cumulatively justifies a finding of professional misconduct. It represents a consistent and substantial failure to reach or maintain a reasonable standard of competence. We agree with the submissions of the Law Society that the number of occasions on which correspondence was sent constitutes "consistent" conduct that represents a want of fitness or competence": Webb at [26]. And further, the Solicitor's repeated breaches of r 33, and the purpose for which the breaches were undertaken, make his conduct serious in that they reflect his failure to appreciate the ethical requirements which applied, "rais[ing] questions as to [his] competence and diligence and thereby warrant[ing] the description 'substantial'" (Webb at [22]). Both of these characterisations, "consistent" and "substantial", justify a finding of professional misconduct.
6. We find that, considered cumulatively, the conduct by which the Solicitor sent the forty-six items of correspondence to TSA as set out in Schedule 1 amounts to professional misconduct, because the conduct constituted a consistent failure to reach or maintain a reasonable standard of competence. In addition, the Solicitor's conduct amounts to a substantial failure to reach or maintain a reasonable standard of competence. Particular 14 is met.

Ground Two - Did the Solicitor send discourteous communications and is the ground made out?

The Law Society's submissions

1. The Law Society submits that each instance of correspondence set out in Schedule 2, sent variously to Mr Geary and staff and representatives of TSA, was discourteous and plainly inappropriate in that they: 1. alleged that the recipient had not acted in good faith; 2. included baseless allegations about the conduct of Mr Geary and/or representatives of TSA in the absence of any material that could justify those allegations; 3. included comments which were inappropriate, offensive and derogatory; and 4. included threats to go to the press and commence legal proceedings in an attempt to elicit the desired outcome of having money refunded.
2. Further, the emails are not what professionals expect from one another, nor what a client might expect to receive from the practitioner on the other side of a matter.
3. The Law Society emphasises that the discourteous conduct continued in a number of emails over a number of months, and that the correspondence was sent to both Mr Geary and TSA directly. The factors set out in the paragraph above, considered cumulatively, give the Solicitor's discourteous conduct the character which would justify a finding that he is not a fit and proper person to engage in legal practice and thus constitutes professional misconduct within the meaning of s 297(1)(b) of the Uniform Law.
4. With respect to s 297(1)(a) of the Uniform Law, the Law Society submits that each instance of conduct engaged in as set out in Schedule 2 contravened r 4.1.2 of the Conduct Rules and thus constituted unsatisfactory professional conduct. The repeated instances demonstrate a "persistent occurrence of the same or similar failures … on separate occasions" (per Webb at [26]) and the language and tone of the correspondence, alongside repetition, give it the nature of harassment and thus the seriousness which "warrant[s] the description 'substantial'" (per Webb at [22]). On either of these grounds, the Law Society argues that the Solicitor's conduct in respect of Ground 2, considered cumulatively, constitutes professional misconduct.
5. Further or in the alternative, the Law Society submits that the Solicitor's conduct, considered cumulatively, constitutes professional misconduct on either limb in s 297 of the Uniform Law. The Solicitor's discourtesy is aggravated by the fact that it occurred as part of a general course of conduct in communicating directly with his opponent's client. As such, the conduct the subject of Ground 2, taken together with the conduct the subject of Ground 1, justifies a finding that the Solicitor is not a fit and proper person to engage in legal practice.
6. Further or in the alternative, when the Solicitor's conduct set out in Schedules 1 and 2 is taken together for the purpose of considering his failure to reach the relevant standard, the "persistence" of his conduct and/or its seriousness is even more apparent, and the Tribunal can be satisfied on that basis that his conduct involves a consistent and/or substantial failure to reach or maintain the relevant standard and thus he is guilty of professional misconduct.

The Solicitor's submissions

1. The Solicitor conceded in oral submissions that his use of language in some of the correspondence in question was "very strong" and, at times, he was "rather coarse". However, he submits that he did not act in the course of legal practice, or otherwise as a solicitor, and that at all times he acted only as a son-in-law or (at times) as an attorney. The Solicitor submits that his conduct does not amount to professional misconduct (or unsatisfactory professional conduct)..

Particulars - Ground Two

1. In respect of the particulars of Ground 2, there is no dispute, and we find, that the Solicitor sent the correspondence particularised in Schedule 2 that is relied upon by the Law Society between 23 July 2021 and 17 February 2022: particular 15. Each such piece of correspondence self-evidently related to the dispute: particular 16.

Was the Solicitor's correspondence in Schedule 2 not courteous?

1. We must then acknowledge that the way in which the Law Society has particularised its complaint in respect of Ground 2 differs from how its case was presented and argued. Schedule 2 lists fifty-four items of correspondence (reliance on the last two being later abandoned) and explains the Law Society's concern about each item of correspondence and why each item was discourteous. The complaint particularises the concerns in respect of using "profanities, offensive and otherwise inappropriate language" in forty-nine of those documents (particular 17(a)) and making "derisive, derogatory and condescending remarks" in twenty-six of them (particular 17(b)).
2. There is no lack of clarity in the allegations that some of the correspondence was discourteous due to the inclusion of profanities, offensive or otherwise inappropriate language. We accept the Law Society's submission that relevant documents which contain allegations that the recipients of the correspondence did not act in good faith may be derisive or derogatory. So might baseless allegations of poor conduct. However, the submission that some of the correspondence included "threats to go to the press and commence legal proceedings in an attempt to elicit the desired outcome of having money refunded (Law Society's submissions lodged 30 August 2023, [67(d)]) was not a particular of the complaint. Therefore, despite such conduct, if proven, potentially breaching r 34 of the Conduct Rules, we will not consider that issue further.
3. We find that the Solicitor used profanities or otherwise offensive and inappropriate language that was discourteous in the particularised correspondence. For example: "If you think I sound frustrated well you are NOT WRONG . Pissed off I think is the word" (Schedule 2, item 1) "So basically I am fed up with your crap so test my patience no more … So you test with me if you wish and pay the consequences or get the Salvation Army - Salvation Army - shit what a farce the name is … do you understand what that would mean to Norma Sim - no because you are caught with your bullshit legal ego and do not care about a sick old lady … Basically i am sick of your shit and all the emails … So for a fucking lousy $100,000 … you want to screw an old lady over ." (Schedule 2, item 2) "Luke , let me say nicely - spoke to the elderly lady again a while ago - I am sick of all this delay or should I say SHIT and if I do not get a good response tomorrow - then let's see what the Salvation Army thinks. An old lady is suffering financially and the old elderly lady is going bankrupt - fuck mate - no respect at all." (Schedule 2, item 5) "And tell the salvation Army ( Salvation Army HAAAAAAAAAAAAAA ) …" (Schedule 2, item 8) "I hope not or are you just trying to be a lawyer trying to think you can push people around in this silly 'I am a lawyer bullshit '" (Schedule 2, item 9) "I am over the legal bullshit … Think about all this mate and let's get over the bullshit and get the job done" (Schedule 2, item 14) "So with respect , grow up mate , open your eyes and cut this legal bullshit and let's common sense prevail . I am very upset and If you want to make my day go ahead with all your legal rubbish . GO AHEAD MAKE MY DAY" (Schedule 2, item 16) "If you think I am pissed off - then try me further as I am really pissed off that an old lady can be treated this way by you and TSA. What sort of people are we dealing with here. Yes, I forgot, stupid lawyers that are embroiled in their self-importance." (Schedule 2, item 17) "As to you not wanting to discuss the matter is pathetic and I am concerned about you calling yourself a lawyer ." (Schedule 2, item 18) "you can play your childish games but remember we are both lawyers and your senior partners will soon hear about your antics to really crucify an old lady . I suggest you look at yourself and grow up rather than pretend you are independent where really you have a major conflict . You want to complain to the law Society , well let's see who wins here you pathetic human. Mate I was a lawyer when you were in nappies so I suggest you grow up or we can really have a fight . … Grow up , that is what I say to you . In short I could say f- -k off but I am too much of a gentleman trying to protect a 91 year old that needs help . " (Schedule 2, item 48)
4. Comments to similar effect were included in the correspondence contained in Schedule 2, items 9, 14, 21, 26 and 47; and further than that quoted in Schedule 2, items 2 and 48. In each instance, the relevant aspect of each of those items of correspondence was discourteous.
5. Further, the Solicitor made assertions that the recipients of his correspondence acted in bad faith; including allegations of poor conduct by Mr Geary or TSA in the particularised correspondence which, on the material before us, are without foundation. Such conduct was discourteous for that reason. For example: "You can now deal with the fallout by intentionally and purposely stopping an old lady from getting some Financial Hardship assistance... You people have no respect for aged people - non (sic) at all and I am surprised at your attitude as a lawyer as you seem to not be able to understand or do not want to understand the situation here." (Schedule 2, item 6) "You had a conflict as you were an ex GC of the Salvation Army but did you declare that - NO - you should have removed yourself but thought only of fees. … you just resisted and I suggest in spite . I have also found out that you have not briefed your client fully but let not go there." (Schedule 2, item 8) "TSA has the opportunity to help Norma Sim, the way it has helped other people in need but the whole matter has been spiteful and now I have a very sick old lady in need of Financial hardship assistance yet TSA just wants to continue to torture her to the end and just wants her to die." (Schedule 2, item 11) "TSA could have agreed to refund the LOAN MONEY - YES LOAN MONEY THAT SHOULD NOT HAVE BEEN CLASSIFIED AS A RAD but no just wanted to torture the old lady . Why we do not know????" (Schedule 2, item 11) "I am totally surprised with you stooping to the level you have stooped with Law Society complaints. Cheap trick rather than getting a good resolution fir (sic) an old lady." (Schedule 2, item 34) "Why is it you just want to torture her by not reducing the money you are holding …" (Schedule 2, item 41) "the lady needs financial hardship assistance and you guys just sit there and let her suffer . Shame on you all" (Schedule 2, item 43) "What sort of people are you . The lady is 91 and the way things are going she will die soon abd it will be your fault ." (Schedule 2, item 45) "Luke , you are playing a game here using your position as a Solicitor to not give the right advice to your client . That is basically negligence if not tantamount to criminal action against an old lady that has been screwed over by the Salvation Army ." (Schedule 2, item 47)
6. Comments to similar effect were included in the correspondence contained in Schedule 2, items 7, 9, 10, 12, 14, 18, 19, 20, 26, 27, 35, 37, 42, 46, 48 and 49 and further than that quoted in Schedule 2, items 8, 11, 43, 45, 47. In each instance, the relevant aspect of each of those items of correspondence was discourteous.
7. We are also satisfied that the Solicitor otherwise communicated in a manner that was unsuited to professional communication because it was discourteous, in that it was condescending or used otherwise inappropriate language. For example: "Further you or the Salvation Army do anything at all to hurt the nice 91-year-old lady that is in the home and you will deal with me personally." (Schedule 2, item 3) "Luke please do not treat me like peasant." (Schedule 2, item 4) "Shame on all of you" (Schedule 2, item 7) "I do not want to say things that will upset me as a gentleman and you . But you can imagine what I would say to you so lets leave it at that ." (Schedule 2, item 8) "Me at my age could not give a stuff about the legal services Commissioner or the Law Society or God as I had a practising certificate when you were not even in diapers and I am a scientist, engineer and lawyer and the most successful of seven children who came out after the war in Europe with only a pair of underpants and no shoes." (Schedule 2, item 9) "I am fed up with the TSA attitude … The attitude is terrible and the old lady is suffering." (Schedule 2, item 12) "My threats have not been bad - on the contrary you have been nasty with the law Society complaints … A bit of decency would go down well ." (Schedule 2, item 37)
8. Comments to similar effect, and which were also discourteous, were included in the correspondence contained in Schedule 2, items 10, 17, 19, 21, 23; and further than that quoted in Schedule 2, items 1, 9. Unfounded suggestions that another solicitor is treating someone "like a peasant" or that they lack requisite knowledge and experience because of their relative youth (see "in diapers"), are expressions of contempt or ridicule. A comment that Mr Geary would have to deal with the Solicitor "personally" can only be read as a threat of action going beyond the expression of Mrs Sim's lawful rights. Nor is it courteous to send correspondence inviting Mr Geary to guess at the unpleasant things the Solicitor might say would it not upset him "as a gentleman" or to criticise Mr Geary for making what, as we have found, was an entirely legitimate complaint to a regulatory body. The Solicitor's own views were irrelevant to the outcome Mrs Sim was entitled to agitate for in respect of the dispute, meaning that where he felt "shame" should lie or whether he was "fed up" are simply not issues that should have found their way into the correspondence.
9. As can be seen from the above, not each aspect of the characterisations attributed to each item of correspondence contained in Schedule 2 by the Law Society were made out in respect of each item of particularised correspondence. Many that were suggested to contain profanities, for example, did not.
10. Specifically, in respect of Schedule 2, item 25, we find nothing in it meeting any of the Law Society's concerns. It does not contain allegations of bad faith, derogatory or offensive material. Whilst it does, on one view, contain a threat to Mr Geary that the Solicitor would write to the TSA without authorisation, that is not a particularised concern and, given the weight of our other findings, is of little moment in the overall consideration of the Solicitor's conduct. It does not warrant further attention.
11. Similarly, we see nothing discourteous in item 40 of Schedule 2.

Does each instance of discourteous correspondence constitute unsatisfactory professional conduct?

1. Each instance of conduct above that is within the four corners of the complaint as particularised is a breach of r 4.1.2 of the Conduct Rules, which is capable of amounting to unsatisfactory professional conduct: Conduct Rules, r 2. All but five of the particularised items of correspondence were sent by the Solicitor after Mr Geary wrote to the Solicitor, saying: "I do not think it is appropriate for solicitors to use language of the kind you have used, in professional communications … please ensure your compliance with the Solicitors' Rules regarding communications between practitioners." The breaches of the rule after this warning can be characterised as deliberate and wilful. Each instance of 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 is capable of sustaining a finding of unsatisfactory professional conduct: Uniform Law, s 296. Particulars 19(a), (b), (c) and (d) are made out and we make these findings.

Does the Solicitor's discourteous correspondence found to be unsatisfactory professional conduct, considered cumulatively, amount to professional misconduct?

1. Unsatisfactory professional conduct is also capable of amounting to professional misconduct where it involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence: Uniform Law, s 297(1)(a). In that regard, 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, warrants the conclusion that the Solicitor's conduct evidenced by that material was professional misconduct. It represents both a substantial and consistent failure to maintain a reasonable standard of competence. Particulars 19(e) and (f) are thereby made out, and we make these findings.

Did the Solicitor engage in professional misconduct because his discourteous correspondence, considered cumulatively, justifies a finding that he is not a fit and proper person to engage in legal practice?

1. Having determined that the Solicitor's conduct constituted professional misconduct under s 297(1)(a) of the Uniform Law, it is unnecessary to decide whether it also falls within s 297(1)(b) of the Uniform Law, which was particular 18. Nor do we need to consider the cumulative effect of those findings and the balance of the particulars.

Finding

1. We find the Solicitor guilty of professional misconduct in respect of both Ground 1 and Ground 2.

Costs

1. As earlier noted, at the hearing on 29 November 2023 the Law Society made an application concerning costs thrown away by the Solicitor's failure to attend the first day of the hearing on 23 November 2023. The Solicitor opposes the payment of any costs in connection with his failure to attend the Tribunal hearing on 23 November 2023.
2. Clause 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 unsatisfactory professional conduct or professional misconduct to pay the costs of the complainant, unless the Tribunal is satisfied that exceptional circumstances exist (see also s 303(1), Uniform Law). Because we have found the Solicitor guilty of professional misconduct, it may become unnecessary for us to separately determine the Law Society's application for costs thrown away on 23 November 2023.
3. We will reserve our decision in that regard until the completion of Stage 2 of the proceedings, in which we will also take submissions from the parties about whether they assert that exceptional circumstances relevant to the issue of costs exist.

Directions in relation to next stage of the proceedings

1. Having found the Solicitor guilty of professional misconduct, we make the following directions in relation to the next stage of these proceedings involving the making of any protective orders, together with the awarding of costs: (i) The Council of the Law Society of New South Wales is to provide to the Tribunal, and to Mr Sideris, any further evidence on which it intends to rely, and any further submissions, including as to the proposed wording of any orders sought, within 14 days of the publication of this decision. (ii) Mr Sideris is to provide to the Tribunal, and to the Council of the Law Society of New South Wales, any further evidence on which he intends to rely, and any further submissions, including as to the proposed wording of any orders sought, within a further 14-day period. (iii) The Council of the Law Society of New South Wales is to provide to the Tribunal, and to Mr Sideris, any material in reply, within a further 7-day period. (iv) The Parties are to include in their submissions their views as to whether the issues for determination in relation to the making of protective orders and the awarding of costs in the proceedings can be adequately determined on the basis of the written material lodged with the Tribunal, in the absence of the parties and without a hearing, under s 50 of the Civil and Administrative Tribunal Act 2013 (NSW).

Annexure A - Applicant's Schedule 1 (3148199, pdf) Annexure B - Applicant's Schedule 2 (8674149, pdf) Annexure C - Applicant's objections to Respondent's evidence (115305, pdf) I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 21 May 2024 - Cover sheet - Cases cited - changed Law Society of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 to Council of the New South Bar Association v Dwyer [2015] NSWCA 302 Paragraph 68 - changed Law Society of the New South Wales Bar Association v Dwyer [2015] NSWCA 302 to Council of the New South Bar Association v Dwyer [2015] NSWCA 302 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: 21 May 2024