Council of the Law Society of New South Wales v Tangsilsat

Judgment (7 paragraphs)

[1]

Background

These proceedings have their genesis in an application filed by the applicant Council of the Law Society of New South Wales on 6 March 2018 seeking the making of disciplinary findings and orders against the respondent solicitor Jaruwan Tangsilsat based on an allegation that the respondent was guilty of professional misconduct as that term is defined in the Legal Profession Uniform Law (NSW) ("the Uniform Law"). That application came before this Tribunal as currently constituted. By Orders made on 20 August, 2018 we found the respondent guilty of professional misconduct and stood the proceedings over for a Stage 2 hearing to enable the Tribunal to determine what protective orders should be made consequent upon the finding of professional misconduct (Council of the Law Society of New South Wales v Jaruwan Tangsilsat [2018] NSWCATOD 138).
The respondent's appeal to the NSW Court of Appeal against this decision was dismissed on 19 June 2019 (see Tangsilsat v Council of the Law Society of New South Wales [2019] NSWCA 144).
On 25 June, 2019 this Tribunal published a decision in Council of the Law Society of NSW v DXW [2019] NSWCATOD 101, in which it was held that an application for disciplinary orders made by the applicant in those proceedings against a solicitor had not been validly made because of deficiencies in the processes by which the applicant had become entitled to prosecute a complaint against that solicitor.
Following the publication of the decision in DXW, the applicant sought to have the proceedings against the respondent dismissed and an order to this effect was made by this Tribunal as currently constituted on 22 August 2019.
The Uniform Law was amended on 22 November 2019 when the Justice Legislation Amendment Act (No 2) 2019 (NSW) was assented to. This Act inserted Pt 5 to Sch 9 of the Legal Profession Uniform Law Application Act 2014 (NSW). Relevantly, cl 23 provides: Part 5 Provisions consequent on enactment of Justice Legislation Amendment Act (No 2) 2019 23 Validations (1) The 2015 delegation is taken to be, and always to have been, validly made under section 406 of the Uniform Law. (2) The 2015 delegation is taken to have had the following operation during the relevant period for the purposes of this Act and the Uniform Law - (a) the delegation of functions to the Bar Association also operated to delegate the functions to the Bar Council, (b) the delegation of functions to the Law Society also operated to delegate the functions to the Law Society Council, (c) the delegation authorised the Bar Association, Law Society and each Council (an authorised delegate) to make further delegations of functions to another entity (a subdelegate), (d) the delegation authorised an authorised delegate or a subdelegate to appoint investigators under section 282 of the Uniform Law (whether generally or in relation to a particular law practice or a particular complaints investigation), (e) the delegation authorised an authorised delegate or a subdelegate to exercise the Chapter 5 functions of the NSW Commissioner in relation to complaints even if - (i) a complaint was made to or by the delegate or subdelegate instead of the Commissioner, or (ii) a disciplinary matter or consumer matter dealt with by the delegate or subdelegate was a matter other than one the Commissioner decided not to deal with or continue to deal with, or (iii) a decision or determination was made or other action taken by a delegate or subdelegate concerning a disciplinary matter without the matter being referred to the delegate by the Commissioner, or (iv) a decision or determination was made or other action taken by a delegate or subdelegate concerning a consumer matter without the matter being referred to the delegate by the Commissioner. Note. Under the Uniform Law, Chapter 5 functions means - (a) functions under Chapter 5, or (b) functions under another provision of that Law relating to Chapter 5, or (c) functions under the Uniform Rules relating to Chapter 5. (3) Without limiting subclause (2), an authorised delegate or a subdelegate is taken during the relevant period - (a) to have been authorised under this Act and the Uniform Law - (i) to receive or make complaints in exercise of the Chapter 5 functions of the NSW Commissioner, and (ii) to initiate or prosecute proceedings in respect of complaints in a court or tribunal in exercise of the Chapter 5 functions of the NSW Commissioner, and (b) to have made a complaint even if there was non-compliance with a requirement of section 267 of the Uniform Law. (4) Accordingly - (a) any decision, determination or other action of an authorised delegate or subdelegate during the relevant period that would have been valid if subclauses (1)-(3) had been in force at the time is validated, and (b) any proceedings commenced by an authorised delegate or subdelegate during the relevant period that would have been validly commenced if subclauses (1)-(3) had been in force at the time are validated, and (c) any order or other decision of a court or tribunal made during the relevant period in proceedings referred to in paragraph (b) that would have been valid if subclauses (1)-(3) had been in force at the time is validated. (5) Any proceedings commenced in a court or tribunal by an authorised delegate or subdelegate that were terminated on a relevant invalidity ground during the relevant period at the instigation of an authorised delegate or subdelegate - (a) may be recommenced under the authority of this clause by the same delegate or subdelegate in the court or tribunal on the basis of the applications and other documents by which those proceedings were last commenced, and (b) any thing done in the terminated proceedings (other than the termination of the proceedings) is taken to have been done in the recommenced proceedings. (5A) Any proceedings not commenced in a court or tribunal by an authorised delegate or subdelegate may be commenced under the authority of this clause if - (a) the authorised delegate or subdelegate made a decision between 1 January 2019 and 25 June 2019 to commence proceedings, and (b) the proceedings had not commenced by 25 June 2019. (6) Proceedings may be commenced or recommenced under the authority of this clause despite section 137 of this Act, but only if they are commenced or recommenced no later than 6 months after the day on which this clause commences. (7) Without limiting any other power to make rules of court, rules of court may be made under the Civil Procedure Act 2005 and the Civil and Administrative Tribunal Act 2013 for or with respect to the practice and procedure to be followed in connection with recommenced proceedings. (8) To avoid doubt - (a) any decision that terminated proceedings during the relevant period on a relevant invalidity ground is not affected by this clause unless proceedings are recommenced, and (b) any decision as to costs made in respect of terminated proceedings is not affected by this clause regardless of whether proceedings are recommenced. (9) This clause (including anything authorised by this clause) has effect despite anything to the contrary in - (a) the 2015 delegation, or (b) this Act, the Uniform Law or any other law. (10) In this clause - 2015 delegation means the delegation of the NSW Commissioner's functions to the Bar Association and Law Society purportedly made by the NSW Commissioner under section 406 of the Uniform Law on 18 June 2015. action includes an omission. commenced, in relation to proceedings, includes initiated or prosecuted. consumer matter has the meaning given by section 269 of the Uniform Law. disciplinary matter has the meaning given by section 270 of the Uniform Law. proceedings include purported proceedings. relevant invalidity ground, in relation to proceedings, means on the ground that the proceedings were not validly commenced by an authorised delegate or subdelegate because of any one or more of the following reasons - (a) the delegate or subdelegate was not authorised to commence the proceedings by the 2015 delegation, including because - (i) the 2015 delegation was not valid, or (ii) the terms of the 2015 delegation did not allow the delegate or subdelegate to commence the proceedings, or (iii) the delegate, subdelegate or NSW Commissioner did not comply with a provision of the 2015 delegation, (b) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where this Act or the Uniform Law required the complaint to have been made to or by the NSW Commissioner, (c) the proceedings were based on a complaint purportedly made to or by the delegate or subdelegate in circumstances where there was non-compliance with a requirement of section 267 of the Uniform Law. relevant period means the period commencing on 18 June 2015 and ending immediately before the day on which this clause commences. rules of court, in relation to the Civil and Administrative Tribunal, means - (a) Tribunal rules referred to in section 25 of the Civil and Administrative Tribunal Act 2013, and (b) procedural directions given by the President of the Tribunal under section 26 of that Act. terminated includes withdrawn, stayed, dismissed, discontinued or otherwise not proceeded with. Uniform Law means the Legal Profession Uniform Law (NSW).

Protective orders

Consequent upon the finding of professional misconduct which we have made we are empowered to make orders under s 302 of the Uniform Law, which provision incorporates orders that may be made under s 299 of that Act. The relevant parts of these provisions are as follows: 302 Determination by designated tribunal - disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period; (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct. (2) Subject to section 303, the designated tribunal may make ancillary or other orders, including - (a) an order for payment by the lawyer of expenses associated with orders under this section, as assessed or reviewed in or in accordance with the order or as agreed; and (b) an interlocutory or interim order, including an order of the kind referred to in subsection (1). (3) The designated tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct. (4) If the designated tribunal makes an order that a lawyer pay a fine, a copy of the order may be filed in the registry of a court having jurisdiction to give judgment for a debt of the same amount as the amount of the fine and the order may be enforced as if it were an order of the court. (5) To avoid doubt, the power of the designated tribunal under subsection (1) to make any of the orders that the designated local regulatory authority can make under section 299 extends to making orders of that kind in relation to a lawyer whom the tribunal finds is guilty of professional misconduct. (6) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision. AND 299 Determination by local regulatory authority - unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders - (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring - (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice - to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice.
It is well established that disciplinary orders made consequent upon a finding of professional misconduct or unsatisfactory professional conduct are protective in nature. In Law Society of New South Wales v Walsh [1997] NSWCA 185, Beazley JA said, at p 40: It is undisputed that disciplinary proceedings are concerned with the protection of the public: Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 per Deane, Dawson, Toohey, and Gaudron JJ at 251; Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt [1968] HCA 20; (1986) 117 CLR 177 at 183-184; Weaver v Law Society of New South Wales [1979] HCA 35; (1979) 142 CLR 201 at 207; and Walter v Council of Queensland Law Society Inc [1988] HCA 8; (1988) 62 ALJR 153 at 157. The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors.
Hence there are four matters which we are required to take into account in determining what are appropriate protective orders in the circumstances of these proceedings. These are the need to protect the public from any further misconduct by the respondent, the deterrent effect that the order may have on the respondent to these proceedings, the deterrent effect on other solicitors who might be tempted to engage in the same kind of or similar conduct, and the enhancement of the confidence of the public in the integrity of the profession.
In our Stage 1 decision we found that the respondent had made a false declaration in her application for renewal of a practising certificate for the 2017/18 year by failing to disclose that she had been the subject of disciplinary action in another profession or occupation as required by r 13(1)(g) of the Legal Profession Uniform General Rules 2015 (NSW). The respondent had become registered as a migration agent from 29 May 2009. The Migration Agents Registration Authority ("MARA") suspended her registration as a migration agent on 8 May 2017, four days before she submitted an online application for a renewal of her practising certificate as a solicitor by way of electronic transmission forwarded to the applicant, and without disclosing the fact of her suspension. The respondent had informed us that she had made "an honest mistake" by not disclosing the fact of suspension of her right to practise as a migration agent, and she had completed the application without looking at it fully because she was in a hurry to see a client.
In that earlier decision we described the Respondent's conduct in the following terms 30 …we conclude that the respondent: (1) did not have an appreciation of her obligation of candour in relation to any improper conduct and; (2) did not fulfil her obligation of candour and thereby demonstrated a want of understanding of the high degree of trust which must repose in a person who asserts that she is a fit and proper person to practise the profession of solicitor; (3) did not understand the significance of the deficiencies revealed by the reasons of the Delegate for the suspension of her registration as a migration agent and thereby demonstrated a lack of insight into her serious misconduct as found and a lack of understanding of her duty to make full and accurate disclosure to the applicant; (4) was recklessly indifferent to the adequacy of her disclosure. … 32 …The definition in s 297 of the Uniform Law refers to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. We regard the failure of the respondent to have complied with the fundamental obligations of disclosure in all the circumstances as we have described them, as constituting a substantial failure to both reach and maintain the standard of competence and diligence which we have identified in determining that the respondent is guilty of unsatisfactory professional conduct. Furthermore, the conduct of the respondent as we have described it may be seen as reflecting unfitness to practice law. Whether or not the respondent accepted the findings of the Delegate, and whether or not she intended to institute an appeal to have those finding (sic) set aside, their significance is such that there can be no excuse for having failed to disclose them. It beggars belief that even though the respondent failed to have regard to the provisions of r 13(1)(g) of the Rules, she failed to understand that they are matters which went to the heart of her fitness to practice law and needed to be disclosed in any event. They are prima facie matters of significance in the context of fitness to practice as a legal practitioner and should have been regarded as such by the respondent if she had possessed the appropriate insight. These failings constitute professional misconduct. We find accordingly that the respondent is guilty of professional misconduct.
During the course of her oral submissions the respondent said that although she understood that the applicant regarded her misconduct as being a serious matter, she did not engage in that conduct with any intention to mislead the Law Society of NSW when she applied for renewal of her registration and she was not dishonest. Although she did not specifically state as such, we infer that the respondent was at the very least regretful of the circumstances in which she now found herself with an intention that she would not engage in conduct of this kind in the future. The respondent informed us that she was the only legal practitioner of a Thai cultural background in NSW providing legal services to the Thai community in NSW, most of whom were engaged in buying or selling businesses. Her income was substantially diminished by the effects of the current COVID-19 pandemic on the financial circumstances of her clients.
The applicant submitted that we should impose protective orders consisting of a reprimand and the imposition of a fine together with an order for payment of its costs. The applicant also proposed for our consideration a protective order requiring the respondent to successfully complete a course of legal ethics as a means of enhancing her understanding of her fundamental responsibilities to the applicant as a regulatory body. However, enquiries made by the applicant indicate that such a course would only be available through the NSW College of Law, whose activities are presently constrained by the current COVID-19 pandemic. The applicant proposed for our consideration an order requiring the respondent to undertake, complete and pass at her own expense within six months an appropriate course in legal ethics as approved by a representative of the applicant. The respondent indicated that she would be prepared to undertake such a course.
The respondent asked that we not impose a fine because of her impecuniosity, and that no costs order should be made for the same reason. Although we engaged in some general discussion with the respondent concerning her financial circumstances, she did not provide any specific information, let alone evidence, about her financial circumstances and no documentary evidence was tendered by her. Nor did the respondent seek to provide any evidentiary material in the nature of character references and the like.

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Judgment (7 paragraphs)

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Legislation Cited (2)

Cases Cited (14)