Council of the Law Society of NSW v Clarke

NCAT Occupational|2018-04-19

The nature of these proceedings

In these proceedings, the applicant, the Council of the Law Society of New South Wales seeks a finding that the respondent, Daniel Christopher Clarke be found guilty of professional misconduct and an order that his name be removed from the Roll of Solicitors together with other consequential orders. The Application for Disciplinary Findings and Orders filed by the applicant is, relevantly, in the following terms; The applicant seeks the following order/s: 1. The Solicitor's name be removed from the Roll. 2. The Solicitor pay the Society's costs as agreed or assessed. 3. Any further or other order the Tribunal deems fit. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) The Solicitor is guilty of professional misconduct as set out below: 1. The Solicitor attempted to mislead and/or misled officers of the New South Wales' Roads and Traffic Authority ('the RTA'). 2. The Solicitor breached Rule 34.1 of the Revised Professional Conduct and Practice Rules 1995 ('Rule 34.1'). 3. Additionally and/or alternatively, the Solicitor made a false and misleading representation. 4. The Solicitor breached Rule 33 of the Revised Professional Conduct and Practice Rules 1995 ('Rule 33'). 5. Additionally and/or alternatively, the Solicitor breached undertakings. 6. On 27 October 2010 the Solicitor made representations to a solicitor employed by the RTA which to the Solicitor's knowledge were false and misleading. Particulars of Grounds of Complaint In these particulars: The Solicitor means Daniel Christopher Clarke The Society means the Law Society of New South Wales. 1. Between approximately 29 April 2007 and approximately 8 September 2010 the Solicitor applied to the New South Wales Roads and Traffic Authority ('the RTA') for certificates pursuant to section 230 of the Road Transport (General) Act 2005 ('certificates') as follows: Date Number of certificates requested 29.04.10 33 12.07.10 21 16.08.10 36 08.09.10 20 2. In support of each application the Solicitor gave an Undertaking to the RTA in the following terms: 'I, Daniel Christopher Clarke, Solicitor of the Supreme Court of NSW, hereby undertake that I will use the information provided by the RTA from its licensing/registration records solely for purposes related to commencing legal proceedings in respect of a motor traffic accident and not the purpose of commencing of legal proceedings in respect of a judgment, other than the subject of this undertaking.' 3. The Solicitor unilaterally amended the standard form of Undertaking sought by the RTA in applications for certificates without advising or informing any officer of the RTA of the nature and terms of the amendment. 4. The Solicitor later obtained the certificates from the RTA and forwarded them or caused them to be forwarded to his client, Identisearch. 5. The Undertaking contained a representation which was false in that the solicitor knew that he would not use the information provided by the RTA '... solely for purposes related to commencing legal proceedings in respect of a motor traffic accident... ' and thereby breached Rule 34.1. 6. The said representation was misleading in that it was likely to mislead the RTA to form a view that the Solicitor would use any information provided by it to him solely for the purpose of commencing or conducting legal proceedings in respect of a motor traffic accident. 7. In dealing as he did with the information provided to him by the RTA the Solicitor failed to honour the said undertaking and thereby breached Rule 33. 8. On 27 October 2010 the Solicitor had a telephone discussion with Emma Bayley, a solicitor working for the RTA, in relation to a request for a certificate made by the Solicitor in relation to a motor vehicle registered number ZR24BC. 9. During the course of that discussion the Solicitor made inter alia, statements to the following effect: 9.1 after the certificate had been obtained his client subsequently instructed the firm not to institute legal proceedings; 9.2 his firm had terminated the retainer with the client and had returned the file to the client; 9.3 the client may have owned the motor vehicle; and 9.4 there may have been an accident. 10. The statements in 9.1-9.4 inclusive above were not true respectively because the Solicitor: 10.1 knew that his firm had never been instructed to commence legal proceedings in relation to the motor vehicle or any accident in which it might have been involved; 10.2 knew that his firm had not terminated the retainer with Identisearch and that it had not returned any file to it; 10.3 had no basis upon which to assert that Identisearch owned the vehicle; and 10.4 had no basis upon which to assert that the motor vehicle might have been involved in an accident. 11. The statements in 9.1 - 9.4 inclusive above were misleading in that they were likely to mislead Emma Bayley into believing that: 11.1 the certificate had been legitimately requested; 11.2 the Solicitor's firm had been instructed to institute proceedings in respect of a motor vehicle accident; 11.3 those instructions had later been withdrawn; and 11.4 the retainer had been terminated and the file returned to the client.

The factual background

During the course of the hearing a great deal of documentary evidence was tendered on behalf of both parties, and the respondent gave oral evidence including cross examination. The applicant's witnesses were not required for cross examination. The narration which follows is based upon that evidentiary material.
It will be observed that the allegations of misconduct levelled against the respondent arise firstly out of a number of undertakings which he gave to the former Roads and Traffic Authority ("RTA") concerning the issue of information about the registered owners of motor vehicles and secondly by reason of certain representations which he is alleged to have made to a solicitor employed by the RTA.
Before commencing our consideration of the factual matters which relate to the allegations of misconduct, we observe that the respondent now aged 39 was admitted as a solicitor in New South Wales on 7 July 2006. He holds degrees in law at both Bachelor and Masters levels.
The respondent established his own legal practice as a sole practitioner in March 2009. That practice was said by him to have "specialised in the provision of legal services to small businesses." On 1 April, 2010 he acquired the legal practice of Webb Lawyers which operated out of separate offices in a Suburban location, at some distance from the Sydney CBD address from which his practice operated. Webb Lawyers was a suburban general practice, much of it appearing to be different to the areas of practice in his original firm. One of his employed solicitors, a Mr Menon, had assisted him in carrying out due diligence enquiries with respect to the purchase of that practice, and subsequently assisted him in the transition arrangements for the absorption of that practice within his own firm.
Two solicitors, Mr Morales and Ms Mai had been employed in the practice of Webb Lawyers and remained employed by the respondent to continue to conduct the Webb Lawyers practice. The former principal of that practice, Mr Peter Webb remained as a consultant.
The respondent gave affidavit evidence that he took certain steps during the course of the transition process to identify matters and clients which would require more urgent or greater attention than others. At no stage does he recollect becoming aware of the name of a client of Webb Lawyers, Identisearch before the events which have led to these proceedings took place.

The relevant legislative background

It is uncontroversial that the provisions of the now repealed Legal Profession Act 2004 (NSW) ("the Act") apply to these proceedings by reason of the dates upon which the alleged misconduct of the respondent, and the consequent complaint and investigation, occurred.

The standard of proof

We proceed on the basis that the standard of proof by which the applicant must establish the various grounds of complaint and the misconduct of the respondent is that which is commonly known as the Briginshaw standard, as reflected in the judgement of Dixon CJ in the High Court of Australia in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Dixon CJ said in that case at 361 to 362: "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences".
Of course, subject to the qualification set out above, the civil standard of proof nevertheless applies.

The undertakings the subject of these proceedings

In an affidavit sworn 30 November 2017 the respondent said that the first occasion on which he became aware of any matter involving Identisearch was about early April 2010 when, to the best of his recollection, Ms Mai brought him some papers including an undertaking in support of an application for a certificate under section 230 of the Road Transport (General) Act 2005 (NSW). He said that he had no knowledge of the provisions of that legislation and in particular section 230 "or of the nature and purpose of such applications or the reason for the undertaking." He said that he did realise, however, that the document that he was being asked to sign was in the form of an undertaking, that it was a serious matter and as such he asked Ms Mai for an explanation about the matter. She informed him that Mr Webb had made applications of this kind for a client called Identisearch, and the certificates were obtained for that client. He said that it was his understanding at the time that the certificates were being obtained "to ultimately enable Identisearch, or clients of Identisearch, to pursue recovery of damages for motor vehicle property accident damage." In his affidavit the respondent said that he recalled that the application which he was asked to sign made reference to an accident and a date of the accident, and that he took comfort in the fact that Mr Webb had an established practice and routine and he trusted that that practice had operated "honestly and diligently." On this basis he determined to sign the undertaking but altered the form on the understanding that the alteration that he made was consistent with his understanding of the use that Identisearch would make of any certificates obtained.
In order to understand the context in which that undertaking was given, and what it was that the respondent thought that he was undertaking to do, it is necessary to have regard to the relevant legislation. (We are indebted to research undertaken by counsel for the respondent for enabling us to make the following brief succinct summary of that legislation.) In effect, s 230 of the Road Transport (General) Act 2005 as it applied to the circumstances of these proceedings enabled the RTA to issue certificates (section 230 certificates) evidencing the ownership of certain motor vehicles which certificates would be prima facie evidence of that ownership and admissible as such in any court proceedings. In his affidavit sworn on 30 November 2012 Mr Peter Ramsey, Manager Driver Administration of the now Roads and Maritime Services (RMS), states that the RTA was required, as a public sector agency, to create a privacy management plan under the Privacy and Personal Information Protection Act 1998 (NSW), under which there are procedures for management and release of personal information of owners of motor vehicles and holders of driver licences. Officers are authorised to issue section 230 certificates of ownership to a solicitor provided that the solicitor gives an undertaking that the information would be used for certain limited purposes.
It may be assumed, therefore, that from the point of view of the RTA it was content to issue certificates of ownership concerning motor vehicles to solicitors who were not necessarily acting for the owners, provided however that the certificates were to be used for those limited purposes. The nature and extent of those purposes may be gained from the provisions of the undertaking which was sought from a solicitor making an application for a certificate.
Mr Ramsay's evidence is that at the time that the respondent signed the undertaking which was required by the RTA it was to be reproduced on the letterhead of the solicitor, and was to be in the following terms; I Solicitor of Supreme Court of New South Wales undertake that I will use the information provided by the Roads and Traffic Authority of New South Wales from it's (sic) motor vehicle registration/driver licensing records solely for the purpose of commencing legal proceedings in respect of a motor traffic accident but not the purpose of commencing legal proceedings in respect of a judgement, other than the subject of this specific undertaking.
The form of undertaking actually given personally by the respondent on 29 April 2010 was on the letterhead of Webb Lawyers, referred to "Identisearch RTA Certifications" and stated that the respondent, being a Solicitor of the Supreme Court of New South Wales; hereby undertake that I will use the information provided by the RTA from its motor vehicle registration/driver licensing records solely for purposes related to commencing legal proceedings in respect of a motor traffic accident and not the purpose of commencing of legal proceedings in respect of a judgement, other than the subject of this specific undertaking.
The respondent asserted that by reason of the substitution of the words "related to" for "of" was a change which he insisted upon and which had the effect of allowing Identisearch to use the certificates to commence proceedings for the recovery of moneys arising out of a motor accident consistent with the undertaking which he had given. This understanding by the respondent of the nature and extent of the undertaking which he had given was one of two significant areas of controversy litigated in these proceedings.
The respondent said that he understood at the time, and still has the same understanding that the form of undertaking which he gave did not preclude the certificates to be provided by the RTA from being used by Identisearch in commencing recovery proceedings arising out of a motor accident. That is, the undertaking was not confined to such proceedings which would be commenced personally by him or his firm. The respondent had a belief that Identisearch "represented the interests of motor vehicle insurers", although he was unable to say how he came to have that belief. However, the respondent did not personally communicate with anyone from Identisearch, nor did he conduct any enquiries of his own about the nature of that company's business. He trusted the process which had been established by Mr Webb's law firm. We shall refer to this matter later in these reasons for decision.
The respondent said that he recollected giving a direction to either Mr Morales or Ms Mai that they should remind Identisearch that certificates being obtained could only be used for the purpose of commencing or conducting motor vehicle accident recovery actions. There is in evidence a letter of 3 June 2010 under the hand of the respondent to Identisearch enclosing RTA searches requested on 16 March 2010. The letter said; "We note that you and/or your agents will use the information provided by the RTA from its motor vehicle registration/driver licensing records solely for the purpose of commencing legal proceedings in respect of a motor traffic accident and not the purpose of commencing of legal proceedings in respect of a judgement, other than the subject of this specific undertaking." The letter also contained an invitation to make contact should clarification be necessary. There is in evidence a further communication from Mr Morales to Identisearch by email of 29 June 2010 confirming that RTA searches would only be conducted with respect to motor vehicle accidents. A further invitation was issued to make contact if clarification was needed.
The respondent signed further undertakings on 12 July, 16 August and 8 September 2010 in the form stipulated by the RTA and without any amendment. At the time of signing these undertakings the respondent had the same beliefs as to their use as he had on 29 April 2010 and nothing was brought to his attention which would have caused him to change those beliefs.
There is in evidence a letter under the letterhead of Webb Lawyers dated 29 April, 2010 forwarded to the RTA requesting 33 Information Searches. The undertaking signed by the respondent accompanied that letter. Each of the vehicles was identified by reference to an accident date, a vehicle registration number, the type of vehicle, and the specified reason for seeking that information which was either "left scene of accident" or "left previous address." Enquiries conducted by an officer of the NSW Police Force, Detective Heath Silvester, who swore an affidavit on 5 November 2012, indicated that of the 21 entries stating that the information was being sought by reason of "left scene of accident", there were no matched recorded accident events in the police record system relating to those vehicles, but three of them were noted as having been repossessed. The schedules which were presented as part of the documentation including the three later undertakings were in similar form. Detective Silvester's evidence was that the police records are indicative to varying extent that many of the vehicles the subject of the request for certificates had not been involved in a recorded accident. There is no suggestion that the respondent either knew or ought to have known that the information which was being provided by him to the RTA on the instructions of Identisearch was in fact incorrect. As will be seen, Identisearch was involved inter alia in tracing vehicles which were the subject of loans in default.
On 26 October 2010 sometime after 10:40 AM the respondent became aware of an email from Emma Bayley a solicitor with the RTA Legal Branch which referred to his letter of 29 April, 2010 requesting 33 Information Searches, and referring to a section 230 certificate issued with respect to a nominated vehicle. That email sought information in respect of the motor traffic accident alleged to have occurred on 18 March 2010 including the place of the accident, the vehicle registration numbers of any other vehicles involved, the names of the parties of the legal proceedings in respect of the accident, the name of the court hearing the legal proceedings and the proceedings number. The respondent instructed Mr Menon to have Mr Morales make urgent enquiries of Identisearch concerning the query raised by Ms Bayley. As at 10:55 AM on 27 October 2010 Mr Morales was advised by telephone by a representative of Identisearch that the RTA search in question had been sought in connection with the repossession of the vehicle, the ultimate client being the Bank of Queensland. There is a notation that Identisearch was aware that the information provided from RTA searches could only be used for motor vehicle accidents only.
Upon receipt of this information, the respondent telephoned Ms Bayley on 27 October 2010. The contents of this telephone conversation represent the second major area of controversy in these proceedings. Neither the respondent nor Ms Bayley are now able to recollect details of the conversation which occurred, but we have available to us hand written notes which she took during the course of the conversation and a typed file note which she said she prepared between 4:50 PM and 7 PM that day. Ms Bayley annexed the handwritten notes and the typed file note to an affidavit sworn on 5 October 2012, filed in these proceedings. There is nothing contained within the handwritten notes which is inconsistent with anything contained within the more expanded typed file note. Ms Bayley was not required for cross examination on her affidavit. There is no reason why we should not accept the contents of the file note as reflecting in some little detail what was discussed during the course of the conversation, noted to have occurred at about 4:50 PM that day.
The file note is in the following terms; At about 4:50 PM on 27 October 2010, I received a telephone call from a male person and had a conversation with words to the following effect: I said: Emma Bayley. He said: It's Daniel Clarke. I'm calling about your email. I'll give you a proper response soon but just wanted to have a chat off the record. I said: Mmmh He said: It looks like our client has done something wrong. I've looked at the files. I've asked the people at the office. We don't have any debt proceedings. I found out who made the request. Our client asked for the information. They subsequently instructed us not to do any legal action and they got the file back. We've terminated the retainer with the client. We're not very happy. We told the client, or former client I should say, not to use the information for any purpose. I spoke to the Law Society Ethics Committee today. They said not to disclose anything at this stage unless privilege is waived. I think the client may have owned the vehicle. I said: So your client is (name suppressed), the name on the certificate, the registered operator? He said: No. I think my client may have owned the vehicle. I was told the accident date was, what was it, 16 March 2010. I think the client may have used the information for other purposes otherwise you wouldn't be emailing me. I can't say whether or not there was an accident. There may have been an accident and then the client decided not to proceed. I'm hoping that the client didn't make up the date. I said: I understand. Look you've taken me a bit by surprise. I thought you were going to just say Yep the accident occurred at this place and that would be it. I'll have to speak to my supervisor and get back to you. It might not be tomorrow so it might be early next week. It might be Peter Robinson because I am only here for a couple more days. He said: Yes, he was cc'd in your email. I said: Yes. Ok, bye.
In his affidavit the respondent clarified that the reference to his client made in the conversation was to Identisearch.
It is clear from his evidence that the respondent now has no detailed recollection of his conversation with Ms Bayley. He said the first time he became aware that the details were significant was when the conversation was raised by a Law Society investigator in 2013 "by which time I had no precise recollection as to the words used in that conversation." He said that it was "unlikely" that he had told Ms Bayley that the retainer with the client had been terminated, but "it is possible." We are satisfied, to the requisite standard that the contents of the file note form a significantly accurate basis for us to consider whether and to what extent the misconduct of the respondent concerning this conversation as alleged by the applicant occurred. We shall return to this aspect later in these reasons for decision.
The respondent said that following that conversation his firm did not undertake any further work for Identisearch nor were any further applications made to RTA for certificates.
The applicant tendered into evidence affidavits from Frank Cirrone a director of a company which trades as Identisearch and his wife Lucy Cirrone the office manager of Identisearch. It is clear from their evidence that a principal business activity of Identisearch involved locating debtors whose addresses were no longer available to lenders and that one means of doing so was conducting searches for current addresses through motor vehicle registration records. This information was made available to Webb Lawyers at a time prior to the respondent acquiring that practice. It is also clear from this evidence that Lucy Cirrone had been made aware that the request for vehicle registration records had to be made by reference to an accident, even though many of the requests were associated with debt recovery actions including vehicle repossessions.
In his affidavit, Frank Cirrone referred to a conversation which he had with Ms Mai of Webb Lawyers on 29 June 2010 concerning the inability to obtain RTA records with respect to a particular vehicle. He said that in that conversation "I made it clear that Identisearch was seeking the information on behalf of Skip Investigations Pty Ltd who were acting on behalf of National Bank who wished to locate and recover vehicles. I then said so in my email….. After the emails of June 2010 and until October 2010 Webb Lawyers continue to request searches at our request and no-one from Webb Lawyers ever asked me to verify for whom I was acting or why my business was seeking the address." Whilst this information was known to employees of Webb Lawyers, there is no suggestion that the respondent was told about it.

Grounds of complaint that the respondent is guilty of professional misconduct

Having regard to the evidentiary material which we have set out above we shall now consider each of the 6 grounds and particulars contained in the Application.

Ground 1

This is expressed in the alternative, namely that the respondent attempted to mislead "officers" of the RTA or in fact misled them. As with most of the grounds relied upon, much will depend upon the content of the undertakings given by the respondent, and the parties were diametrically opposed as to its meaning. In dealing with this matter, our observations will apply to all of the undertakings, because there is no material difference for present purposes between the form of undertaking first given and the three subsequent undertakings as was agreed by both parties..
There can be no doubt that the respondent, albeit mistakenly, was led to believe that the certificates which he sought on behalf of Identisearch related to a motor vehicle accident. Furthermore, the evidence does not support any suggestion that the respondent knowingly attempted to mislead the RTA. The gravamen of this aspect of the complaint as developed by the applicant was that the form of undertaking was such that the information provided would be used by the respondent's law firm in connection with legal proceedings initiated by it on behalf the client in respect of a motor traffic accident. In summarising the allegation in this way we shall ignore the concluding words of the form of undertaking as provided by the RTA namely "but not the purpose of commencing of legal proceedings in respect of a judgement, other than the subject of this specific undertaking." For our part, we have some difficulty in comprehending what is meant by these words and what the RTA intended by including them in the form of undertaking. Fortunately, it is not necessary that we resolve this matter for the purpose of determining these proceedings. We do observe, however, that the respondent submitted that by reason of the difficulty in comprehending what was meant by the latter part of the form of undertaking that his judgement concerning the overall effect of the undertaking was clouded, and this contributed to the view that he took concerning its meaning, and in particular by whom the information provided by the RTA might be used, albeit in connection with a motor accident.
The applicant argued that the form of the undertaking given by the respondent confined the use of the information to the respondent's firm in the manner described. In support of this argument emphasis was placed on the words "that I will use the information provided…." Given the context of an undertaking given by a solicitor with respect to the use by him or her of the information for the purpose of commencing legal proceedings, the undertaking should be construed as being confined to proceedings commenced by the solicitor or the law firm with which he was associated.
The respondent argued that the use of the information for the stated purpose by a third party was consistent with the undertaking given. We acknowledge that this might conceivably have some merit if the respondent was acting as an agent for another firm of lawyers, but there is no suggestion that Identisearch might be so characterised. In addition, given the context in which the undertaking was given, namely to create a privilege in favour of solicitors in gaining access to information which might otherwise have privacy considerations attached to it, any circumstance whereby the solicitor lost control over the use of the information would tend towards a breach of the undertaking. We do not regard the difficulties in comprehending what is meant in the latter part of the form of undertaking as detracting from the plain intention of the words used in the initial part, as indicating that the information was to be used by the applicant solicitor or his firm in pursuing legal proceedings arising out of an accident involving the particular motor vehicle about which ownership details were sought.
It follows that we agree with the construction of the undertaking contended for by the applicant. In these circumstances the undertaking should not be read as extending to the use by the solicitor of that information on a subcontracted basis to third parties, especially a third party which is not a solicitor, but, as the respondent thought, was a business representing insurance companies.
Once the form of undertaking is read in this way, the fact that the respondent had no intention of commencing legal proceedings on behalf of Identisearch because it was not the type of work which he wished to undertake in his law practice demonstrates that the undertaking was false. It follows that the giving of the undertaking in the circumstances was misleading.
The respondent argued that such a conclusion should not be made because there is no evidence given by any officer of the RTA that he or she was actually misled, and in the absence of such evidence we could not conclude that the respondent had either attempted to mislead or had actually misled offices of the RTA. We reject this approach to the construction of ground 1. The RTA is comprised of officers, who are persons engaged by it to process applications for information concerning the owners of registered motor vehicles. They are the only persons who could be misled. Misleading information given to the RTA must be received by its officers. Accordingly, if it is misleading, and certificates have issued after receipt of that information, then they have been misled.
We are comfortably satisfied to the requisite standard that ground one has been established by reason of the approach to construction of the undertaking which we have preferred, albeit that there are mitigating circumstances surrounding the giving of the undertaking. These include the fact that Identisearch had arguably misled the practice of Webb Lawyers prior to the respondent becoming involved with that practice, Webb Lawyers itself having failed to appropriately satisfy itself about the veracity of prior undertakings given to the RTA, and the possibility that employed solicitors had failed to inform the respondent of the nature and extent of the Identisearch business. Although the respondent conceded that he made no attempt to undertake his own enquiries concerning Identisearch before giving the undertakings, some allowance must be made for the fact that he had initially only recently taken over the law practice, and that the Identisearch matters were, on the evidence, an insignificant part of the practice.

Ground 2

This ground asserts a breach of Rule 34.1 of the former Revised Professional Conduct and Practice Rules 1995, which provides that; A practitioner must not, in any communication with another person on behalf of a client: 34.1 represent to that person that anything is true which the practitioner knows, or reasonably believes, is untrue
In its written submissions, the applicant asserted that the breach of Rule 34.1 occurred because the undertaking "contained a representation which was false in that the solicitor knew that he would not use the information provided by the RTA "…..solely for purposes related to commencing legal proceedings in respect of a motor traffic accident…." The respondent said that this approach involved a consideration of a lack of subjective belief in the truth of the representations and thereby misapplied Rule 34.1 which involved a consideration of the respondent's subjective belief in the falsity of the representations.
Our understanding of the evidence of the respondent aided by the fact that he queried the circumstances surrounding the giving of an undertaking when it was first presented to him is that he firmly believed, albeit incorrectly, that the undertaking permitted the use of the information gained by Identisearch. In order for a breach of Rule 34.1 to be proven it is necessary that we be satisfied to the requisite standard that the respondent knew that the representation which he made in the undertaking was untrue or that he reasonably believed it to be untrue. We are unsure as to whether "knowledge" and "belief" in the circumstances overlap to any extent, and whether there might be some circumstances where a belief that something is true does not cover all of the area covered by knowledge that something is untrue. For present purposes we are persuaded that the belief which the respondent held that the contents of the undertaking were true, even if mistaken cannot be equated with knowledge that the contents of the undertaking were not true. The same conclusion applies when considering the reasonable belief of the respondent about whether the contents of the undertaking were not true.
Rule 34.1 applies to a positive representation made by a legal practitioner accompanied by actual knowledge or reasonable belief that it is untrue. In all the circumstances, we cannot conclude to the requisite standard that this ground has been made out for the reasons stated above.

Ground 3

This ground asserts that the respondent made a false and misleading representation. Once the undertaking is construed in the manner which we have set out above, it follows that it contained a false and misleading representation in that the respondent had no intention of using the information in his legal practice for the stated purpose. Furthermore, the respondent was not in a position to assert that the information would be so used by Identisearch, other than by reference to a vague understanding that that company represented motor vehicle insurers.
We are comfortably satisfied that this ground has been made out.

Ground 4

This ground relies on the provisions of Rule 33 of the Rules referred to above. It is in the following terms; 33. A practitioner who, in the course of providing legal services to a client, and for the purposes of the client's business, communicates with a third party orally, or in writing, in terms which, expressly, or by necessary implication, constitute an undertaking on the part of the practitioner to ensure the performance of some action or obligation, in circumstances where it might reasonably be expected that the third-party will rely on it, must honour the undertaking so given strictly in accordance with its terms, and within the time promised (if any) or within a reasonable time.
There can be no doubt that the undertakings given by the respondent to the RTA were given in the course of providing legal services to Identisearch, and that they constituted an undertaking in circumstances where it might reasonably be expected that the RTA would rely on it. That officers of the RTA in fact relied on the undertaking having been provided was confirmed in the evidence of Mr Ramsey. By this Rule the respondent was bound to honour the obligation strictly in accordance with its terms. Once the undertakings are to be construed in the manner which we have previously concluded, in circumstances where the respondent did not at any stage contemplate that his firm would be commencing legal proceedings, and that the information would be referred on to Identisearch without any specific knowledge that the information would be so used, it follows that the respondent could not honour them as contemplated by the Rule.
On this basis we are satisfied to the requisite standard that this ground has been established.

Ground 5

Once it has been established that the respondent was unable to honour the undertaking in the manner described in Ground 4, it follows that the respondent has breached this ground, in that the undertakings were breached.
The Application states that this ground is to be considered either as an additional or alternative ground, or in both capacities. Whatever the approach, unspecified by the applicant, the breach of the undertaking is part of the same course of conduct described and dealt with in the earlier grounds, and as such its repetition will not alter our determination of whether the respondent is guilty of professional misconduct.

Ground 6

The determination of this ground involves a consideration of whether the respondent made representations to Ms Bayley which to his knowledge were false and misleading. We have previously set out the substance of the file note recorded by Ms Bayley shortly after the conversation and which we accept for the purpose of these proceedings as being accurate. In essence, the applicant identified three representations which it alleged were knowingly false and misleading. We shall deal with each of them in turn.

The first representation

This was said to be constituted by the respondent informing Ms Bayley; "Our client asked for the information. They subsequently instructed us not to do any legal action and they got the file back." The applicant asserted that the respondent was stating that at some stage his firm had been instructed by Identisearch to take some form of "legal action", that those instructions had been withdrawn and that the file had been returned to Identisearch The applicant said, as is apparent, that no such instructions had ever been received, there was thus no question of them being withdrawn and there was no evidence of the withdrawal of a "file". This was particularly because, on the evidence, Identisearch had never instructed the respondent's law firm nor Webb Lawyers to commence any legal proceedings.
In his submissions the respondent noted that he was at a distinct and serious disadvantage because of the time which had elapsed between the conversation occurring and the hearing, a period of almost 8 years. Whilst we have a degree of sympathy for the respondent in this regard, any concern about the evidence given is mitigated by the existence of the contemporaneous record made by Ms Bayley. There is no reason to believe that she had any motivation to record anything other than her best recollection of what had been said, within a short period after the conversation occurred.
The respondent emphasised that it was he who had elected to telephone Ms Bayley voluntarily as soon as he became aware of the difficulties disclosed to him, and that he was clearly putting matters on a preliminary basis and was thus not expressing any concluded view. This was particularly so because he had told her that he would give her "a proper response soon." Whilst it is admittedly difficult to discern what was in the mind of the respondent at the time that he spoke the words recorded by Ms Bayley, we understand him to have properly and honestly to the best of his knowledge endeavoured to explain to her what he knew. His reference to the discussion being "off the record" is corroborative of this understanding.
In all the circumstances, we regard the contents of the discussion as recorded by Ms Bayley as indicating that that were no current "debt proceedings" because after the client, referring to Identisearch, had sought the information, instructions to "do any legal action" had been withdrawn and the file had been returned. It might be inferred that the respondent was endeavouring to colour the information obtained by him to present it in the best possible light to Ms Bayley. We accept the characterisation of what he said in terms of this first representation as containing information which was knowingly false and thereby misleading as alleged by the applicant.

The second representation

This was said to be constituted by the respondent informing Ms Bayley that the retainer of Identisearch, also described as "former client" had been terminated by him. There is no evidence that this had occurred.
The respondent in reply said that he must have been referring to an intention to terminate the Identisearch retainer after taking the necessary formal steps to do so. He now considers that it was unlikely that he would have used those words during the course of the conversation. However, we find it unlikely that Ms Bayley would have recorded those words, including a reference to "former client" if they had not been said by the respondent. Those words are corroborative of the misinformation which the applicant alleges the respondent conveyed to Ms Bayley.
We accept the characterisation of what was said by the respondent in this representation as containing information which was knowingly false and thereby misleading as alleged by the applicant.

The third representation

This was said to be constituted by the respondent telling Ms Bayley that "I can't say whether or not there was an accident. There may have been an accident and then the client decided not to proceed."
The respondent had been informed in an email from Mr Morales at 11:09 AM on the day of the conversation that the vehicle in question had not been involved in an accident but was the subject of a debt recovery matter. In the circumstances the applicant asserted that the representation was false in that it endeavoured to colour the matter by leaving open the possibility of a motor accident having been involved.
In response, the respondent emphasised that even though he may have been aware that the search was conducted in connection with a debt collection matter this did not necessarily exclude the existence of a motor accident. This is because there had been a reference to a motor accident when the search had originally been made. We do not accept this explanation because it is clear from the information contained in the email from Mr Morales that the enquiry clearly related to "a repossession matter" ultimately on behalf of the Bank of Queensland. It may be inferred from the contents of that email, which we have previously summarised, that the reference to motor vehicle accidents was a device to enable Identisearch to secure information from the RTA through the services of Webb Lawyers. In these circumstances we accept the characterisation of what was said by the respondent in this representation as containing information which was knowingly false and thereby misleading as alleged by the applicant.

Characterisation of the misconduct as found

The applicant asserted that each of the breaches of the undertaking which we have found and each of the misrepresentations made by the respondent to Ms Bayley, taken individually or in the aggregate constituted professional misconduct by the respondent. The respondent denied that he had been guilty of professional misconduct and denied also that he was guilty of the lesser level of misconduct, namely unsatisfactory professional conduct. In order to determine this matter it is necessary to have regard to the following provisions of the Act which define these terms. 497 PROFESSIONAL MISCONDUCT (1) For the purposes of this Act: "professional misconduct" includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner 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 practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
It will be observed that the definition includes unsatisfactory professional conduct which is defined in the Act as follows; 496 UNSATISFACTORY PROFESSIONAL CONDUCT For the purposes of this Act: "unsatisfactory professional conduct" includes conduct of an Australian legal practitioner 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 Australian legal practitioner.
Whether and to what extent conduct constitutes unsatisfactory professional conduct or professional misconduct will require attention to the statutory definitions coupled with an evaluative judgment. In making these observations we are cognisant also of the ability to have recourse to the common law definitions of professional misconduct in authorities including Allison v General Council of Medical Education and Registration [1894] QBD 750 to which, in the circumstances of these proceedings, it is not necessary to refer.
The starting point is a consideration of whether the conduct falls short of the standard of competence and, diligence that a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. We have found that the respondent proffered undertakings to the RTA for the purpose of giving his client Identisearch access to information which would not otherwise generally be available to the public. The community is entitled to expect that the furnishing of an undertaking to secure such information would be in all the circumstances a matter of serious consideration. Furnishing such an undertaking which is false will entitle legal practitioners and their clients to access information of a kind which attracts a degree of privacy. It is well recognised that the proper and efficient functioning of the legal system can only operate if legal practitioners, who play a significant and important role conduct themselves with the utmost propriety and in a manner which is consistent with upholding the integrity of the system. These trite observations apply equally to the operation of the legal system itself, as well as carrying on the operation of the legal system. Representations made by and undertakings of legal practitioners must be capable of being accepted without reservation. The practice of law is an honourable profession and its members are required to act honourably at all times.
We regard the giving of undertakings by legal practitioners in the course of carrying on their profession as matters of great seriousness, and which commands compliance except in significant extenuating circumstances which, in most cases, would be out of the control of the legal practitioner or not reasonably foreseeable by him or her.
If authority for such fundamental principles is required, we refer to the decision of the former Administrative Decisions Tribunal in Law Society of NSW v Martin [2002] NSWADT 27, citing the decision of the Legal Services Tribunal in Vincent Cofini [1994] NSWLST 25. At page 6 the Tribunal said; There are limited circumstance in which an undertaking should not be honoured.... Undertakings are given by legal practitioners for the specific purpose of enabling legal activities to be carried out. Other persons rely on those undertakings. The undertakings are personal to the legal practitioner and bind that practitioner, not as a matter of contract but as a matter of professional conduct and comity, and will be enforced by the Courts because legal practitioners are officers of the Court and because without enforcement undertakings would be worthless, persons and Courts would be unable to rely on the word of the legal practitioner and this aspect of legal practice, that demands compliance for legal efficiency, would collapse.
We have no difficulty in characterising the conduct of the respondent in connection with the breaches of the undertakings as constituting unsatisfactory professional conduct. Furthermore, we regard this matter seriously and we regard the breaches by the respondent of the undertakings given by him in all the circumstances to constitute, at the very least in the aggregate, professional misconduct. This is because even though there may be some argument as to whether the several breaches might be said to be "consistent", in the sense explained by Meagher JA (with whom Leeming JA and Simpson J agreed) in Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 at [22], it is clear that they are matters of substance and constitute a substantial breach of the standard referred to in the definition. Each of the breaches of the undertakings was sufficiently serious so as to raise questions as to the lawyer's competence and diligence and thereby warrant the description "substantial": Webb at [22]. This is so even allowing for the mitigating features of the respondent's conduct to which we have earlier referred in the course of these reasons for Decision.
We next deal with the false and misleading information given to Ms Bayley about which we have earlier made findings. As is the case with undertakings, the truthfulness of information conveyed between legal practitioners is an essential element of the effective operation of our legal system. Without the ability to rely on such information, legal practitioners will be hampered in furnishing advice and receiving instructions from clients, and in the circumstances of these proceedings, the efficient and effective operation of government will be impeded. Legal practitioners should be careful concerning the accuracy and fullness of information conveyed between them.
We regard the false information provided by the respondent to Ms Bayley as colouring not only the breach by the respondent of his undertakings, but more importantly affecting the overt concern expressed by Ms Bayley about compliance with the release of information to which privacy considerations would normally apply under the protocols established by the RTA.
In our opinion this conduct of the respondent, constitutes at the least unsatisfactory professional conduct. Such conduct, when considered in the aggregate with the breaches of the respondent's undertakings as we have found them, is such as to represent "…a want of fitness or competence rather than a series of casual or uncharacteristic lapses.." as discussed in Webb at [26], and to justify a finding that the respondent is guilty overall of professional misconduct, and we so find.

The further course of the proceedings

Both parties asked that the present proceedings be confined to a consideration of whether or not the respondent was found guilty of either unsatisfactory professional conduct or professional misconduct. This would enable the parties to have regard to our findings in considering what protective orders might be appropriate in all the circumstances and in marshalling such evidentiary material as they may wish to present to the Tribunal in connection with a consideration of any appropriate protective orders. By arrangement with the parties the proceedings are stood over for a further stage 2 hearing on 3 August 2018 and to hear submissions with respect to any costs order. We confirm that we have fixed a timetable for the filing and exchange of evidence of which the parties are aware.

Orders

As a consequence of the findings of professional misconduct which we have made, we make the following orders; 1. The proceedings are stood over for further hearing at 10 AM on 3 August 2018 2. We grant liberty to apply which may be exercised by either party at short notice.

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 11 May 2018 - Amendments to update citations 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: 11 May 2018

Legal Profession Act 2004(NSW)

Road Transport (General) Act 2005(NSW)

At a glance

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Judgment (20 paragraphs)

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Legislation Cited (3)

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Cited By (1)