1. The applicant, the Council of the Law Society of the Australian Capital Territory (the 'Society'), has made application to the Legal Practitioners Disciplinary Tribunal (the 'Tribunal') pursuant to the provisions of section 419 of the Legal Profession Act 2006 (the 'LP Act') regarding the professional conduct of the Practitioner, Y (the 'Practitioner'), who was, at all material times, a local lawyer trading as a law firm (the 'Firm').[1]

1. Mr Beaumont of counsel, instructed by Mr Phelps of Phelps Reid, Solicitors, represented the Society.

1. The Practitioner undertook his own defence. He is, of course, entitled to do so. He is an Australian Lawyer, who, at all material times, was the holder of an unrestricted Practising Certificate in the Australian Capital Territory. However, his choice to do so may have been an unfortunate choice on his part for reasons to which the Tribunal will turn in due course.

1. The Society filed an application on 20 October 2010. The application was subsequently amended. The application before the Tribunal was the second amended application dated 2 August 2011. The Society complained that, as a consequence of acting for a party to a property transaction, the Practitioner engaged in conduct in breach of the Rules 1.2, 36.1 and 39.1 of the Legal Profession (Solicitors) Rules 2007.
2. The Society further contended that such conduct amounted to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal. The Society articulated the complaints thus:

"A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness "

"A practitioner should ensure that his or her practice is efficiently and properly administered and should take all reasonable and practicable steps to ensure that professional engagements are fulfilled or that early notice is given if they cannot be fulfilled."

"Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society."

Failure to act with competence and diligence in breach of Rule 1.

1.1 The Practitioner negligently failed to implement his clients' instructions relating to the transfer of a property to the joint names of the clients and the refinancing of a loan on the property in a competent and timely manner resulting in loss to the complainants in a related matter in which the Practitioner held concurrent instructions,

1.2 The Practitioner failed to provide the complainants with an accurate and complete settlement statement and tax invoices in respect of the two matters in which he had accepted instructions until after a period of two months of the transactions being settled.

Failure to administer his practice efficiently and properly in breach of Rule 36.1

2.1 The Practitioner failed to ensure that his practice was efficiently and

properly administered to deliver the legal services for which he had been retained.

Failure to act honestly and fairly in breach of Rule 1.2

3.1 The Practitioner failed to act honestly and fairly in the service of his clients

in blaming the ACT Revenue Office and his clients' banks for the delay in the settlement of the matters in which he was instructed when that delay was attributable to his own lack of competence and diligence in arranging for the stamping of the transfer document in a timely manner.

Failure to be open and frank in his dealings with Society in breach of rule 39.1 and misleading and deceptive conduct,

4.1 The Practitioner, in his letter to the Society dated 18 August 2009, deliberately attempted to deceive the Society or in the alternative recklessly made a false representation to the Society, in breach of rule 39.1, by stating, in his letter to the Society dated 18 August 2009, with reference to the letter dated 3 July 2009 which was sent to the complainants. "During this period the writer was not in the country"; when in truth, the Practitioner was indeed as at 3 July 2009 when the letter was sent, in the country.

4.2 The Practitioner deliberately attempted to mislead this Tribunal, or alternatively recklessly made a false representation to this Tribunal, by confirming, in his affidavit sworn and filed on 2 February 2011, the correctness of his said letter of 18 August 2009 in that he attached to the said affidavit, relevantly, a copy of that said letter, and deposed to the matters set out in paragraphs 4 and 11 of the said affidavit, without correcting the false statement in the said letter that, "During this period the writer was not in the country"."

1. The main purpose served by disciplinary proceedings is protective. That purpose informs both the manner in which the gravity of the alleged misconduct is determined and what factors influence the disciplinary sanction to be imposed, if one is to be imposed. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers.[2]

1. This recognises the public interest in the integrity of members of the profession.[3] Closely related to the protective object, professional discipline also strives to safeguard the reputation of the profession[4], which is more important than the fortunes of any individual member.[5]

1. There are also lesser, but related objectives of professional discipline. They are: maintaining proper standards in the legal profession[6] and setting an example to other lawyers.[7] A disciplinary order, if one is to be made, also seeks to deter other lawyers from engaging in the conduct impugned.[8] An order in legal professional disciplinary proceedings should send a very clear message to the profession that, regardless of how efficient, hard working, busy or well-regarded the lawyer may be, the impugned conduct in question is unacceptable and will be treated seriously.[9]
2. The main purpose to be served by legal professional disciplinary proceedings, as the Tribunal has noted above, is protection and not punishment.[10] Nonetheless, disciplinary sanctions may be felt as a punishment by, and involve potential deprivation to, the person disciplined. The nature of the potential deprivation is obvious.

1. It is therefore not always easy to separate the effect of a disciplinary order from its purpose or objective.[11] The protection of the public, however, requires that where appropriate, proper punishment be meted out. That remains consistent with the protective purpose or object. That is because the punitive response, where appropriate, is construed with the deterrent aspect of any punishment. Lawyers are to be discouraged from engaging in conduct that threatens the public interest.[12]

1. Natural justice requires that a lawyer be apprised in the most clear and precise terms, prior to the hearing, of the nature and the particulars of the case he or she is required to meet.[13] It is therefore critical to ensure that the particulars of the misconduct alleged against the lawyer are carefully drawn to avoid any ambiguity.[14]

1. The onus of proving misconduct in professional disciplinary proceedings lies with the party bringing the charges, here the Society.

1. The standard of proof to be applied to these proceedings to determine questions of professional misconduct is the civil standard. That is because disciplinary proceedings are directed not chiefly at punishment, but rather at protecting the public. That standard is, however, qualified to a significant degree in consideration of the gravity of the facts to be proved. The formulation of the standard of proof appropriate to grave questions affecting personal conduct expressed in Briginshaw v Briginshaw_[15]_have been accepted by the courts as properly applicable to the standard of proof required in disciplinary proceedings.[16]

1. Rich J's test of 'comfortable satisfaction' provides a succinct description of the standard to be applied in such cases. Proof beyond reasonable doubt - the criminal standard - is not required; but the standard requires more than a mere balancing of the scales. The evidence must be weighed, according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct.

1. The fact that the civil rather than the criminal standard applies, albeit to higher degree, explains why, unlike an accused in a criminal matter, a lawyer respondent must co-operate reasonably in the process and avoid an unduly combative approach. The behaviour of a lawyer respondent can affect the disciplinary approach.[17]

1. Finally, the Tribunal must not be biased and must be completely impartial. It is unfortunate that the Tribunal feels it necessary to raise this issue, but raise it; it must, because throughout these disciplinary proceedings in oral and written submissions, the Practitioner has frequently charged this Tribunal with bias against him and partiality towards the Society. The circumstances of the allegations of bias were invariably associated with adverse rulings in relation to the Practitioner. We will return to those circumstances, the manner in which the Tribunal attempted to assist the Practitioner with understanding the process that these proceedings would adopt and the Practitioner's attitude to that assistance in more detail below. However, it is helpful to set out the relevant test.

1. The test for bias is whether there is a reasonable apprehension on the part of a fair-minded and informed member of the public of a lack of impartiality in the decision-maker or adjudicator.[18]

1. On 4 May 2009, the Firm was instructed to act for Mr N and Ms T, a married couple, (the 'Complainants') on the purchase of a property at Kaleen (the 'first retainer'). A costs agreement in relation the Firm acting on that conveyance was entered into on 5 May 2009. Contracts were exchanged on 6 May 2009 and settlement was to take place on 15 June 2009.

1. On 18 May 2009, the Complainants instructed the Practitioner to act on their behalf on the refinance of their property in Lyneham, which involved the transfer of the title from the sole name of the Complainant husband to the Complainants' joint names (the "second retainer'). Settlement of this transaction, the subject of the second retainer was required to occur simultaneously with the settlement of the Kaleen purchase, the subject of the first retainer. In relation to that transaction (the second retainer), the Firm provided the Complainants with a costs agreement on or about 18 May 2009. The costs agreement appears to have been signed by the husband Complainant on 21 May 2009 and returned to the Firm at or about the same time. The costs Agreement in relation to the second retainer described thirteen (13) tasks or 'Works' to be undertaken by the Firm. One of those was expressed as being:

Communicating and corresponding with the outgoing bank - arranging and attending to the discharge of mortgage and the incoming mortgage.

1. The second retainer required the stamping of the transfer by the ACT Revenue Office with nominal duty (the "exemption from stamp duty") being a transfer of a principal residence from the sole name of the husband Complainant to the joint names of the Complainant husband and wife.

1. The transfer was required by ACT Revenue to be supported by a relatively simple Statutory Declaration attaching relevant documents.

1. On 3 June 2009, the Complainants signed a Statutory Declaration. It purported to attach a large number of supporting documents, which, as will become clear in due course, did not contain what was essential but did contain a lot of material which was probably surplus to requirements, bearing in mind the fact that the Complainants were married and had children. All that was required to support the stamp duty exemption in relation to the transaction was the Complainants' marriage certificate.

1. On 23 June 2009, the Complainants signed yet another Statutory Declaration to which the same comments above are applicable. That statutory declaration was lodged with the Revenue Office on 23 June 2009.

1. On 24 June 2009, the Firm received a Notice to Complete and advised the Complainants.

1. On 26 June 2009, the Complainants advised the Firm that they had attended to the stamp duty exemption personally that day and they pressed the Firm for settlement of the transactions, the subject of both retainers. Plainly, the settlement by the Firm of both transactions had now become urgent. The Complainants faced the prospect of forfeiture of their deposit and or penalty interest.

1. On 30 June 2009, both transactions, the subject of both retainers settled. On 3 July 2009, the Practitioner wrote to the Complainants advising them of a number of matters including the fact that the transactions had settled. There can be no doubt that the letter contained a number of errors and omissions, an important omission, amongst others, being that the Complainants had been charged penalty interest of $1,428.77 in respect in the delay in settling the purchase of the Kaleen property.

1. On 20 July 2009, the Complainants wrote to the Society complaining about the manner in which the Practitioner had handled the transactions. On 29 July 2009, the Practitioner was advised of the complaint. And on 18 August 2009, the Practitioner responded to the Complainants' complaint.

1. On 25 August 2009, the Complainant wife responded to the Practitioner's response of 18 August.

1. On 4 September 2009, the Practitioner, through his employed clerk, responded to the Complainants in two letters, which purported to correct the earlier errors and omissions regarding the settlement of the two transactions.

1. On 8 September 2009, the Practitioner responded to the Complainant wife's letter of 25 August 2009.

1. On 20 October 2010, the Society commenced these proceedings by way of lodging an Application for Disciplinary Action. The Application was further amended until the final version of the Application the Second Further Amended Application (the "Application"), dated 2 August 2011, was filed.

1. Requests for further and better particulars of the application were made and the particulars of the complaints provided. The particulars provided by the Society to the Practitioner could not have left the Practitioner in any doubt as to the case he was required to meet. Both the Practitioner and the Society obtained and served expert reports.

1. By direction of the Tribunal, the experts provided a joint report. The joint report was both useful in defining the issues and, importantly, in saving both hearing, and time and costs.

1. The Practitioner and the Society have filed and served a great number of affidavits, which have been lengthy and have comprehensively dealt with the issues.

1. The Society and the Practitioner have filed and served comprehensive written submissions in chief and in reply. The Practitioner has provided further transcript references upon which he relies. The Tribunal has had regard to those references provided.

1. It is sufficient to say the following. These proceedings have been the subject of numerous directions and orders made by the Tribunal. These orders and directions were made by the Tribunal in fulfilling its statutory functions contained in Part 2 of the ACT Civil and Administrative Tribunal Act 2008.

1. However, the Tribunal was also bound by Part 4.7 of the LP Act. Because legal disciplinary proceedings are so important, not only to the practitioner involved, but also, more importantly, in the interests of the public, they are invariably conducted in a rather more formal manner and atmosphere than other proceedings before ACAT are conducted. For example, in disciplinary proceedings pursuant to the LP Act, the Tribunal is bound by the rules of evidence.[19] In addition, the LP Act confers upon the Tribunal the power to make interim orders.[20] Such interim orders may be costs orders.[21] Such costs orders were made during the course of the proceedings, both against the Practitioner and the Society, respectively.

1. So, in this respect, legal disciplinary proceedings, by their very nature and the statutory warrant given to the Tribunal resemble, in the procedural sense at least, standard civil litigation in the courts. That is why legal disciplinary proceedings, which involve fundamental matters of public interest as well as potential detriment to the practitioner, are conducted having regard to these procedural litigation norms, including the fact that the rules of evidence apply and the fact that the proceedings are conducted in an orderly and disciplined manner, namely in a manner that is familiar to Australian Lawyers. Lawyers, especially practitioners faced with disciplinary proceedings, are obliged to comply with the procedure as directed by a Court or, in this case the Tribunal. In that way, legal disciplinary proceedings conducted in ACAT provide a fair, disciplined and ordered process by which procedural fairness is afforded to the Practitioner and the public interest, which is a paramount consideration, may be fairly and justly served.

1. Throughout these proceedings the Tribunal was frequently and at pains to point out and emphasise in clear and unambiguous terms the importance of this process, procedure and the requirement of complying with the rules of evidence to the Practitioner. For the most part, throughout these proceedings and, particularly, during the hearing of the proceedings in the evidentiary and submission phase, the Practitioner appeared to the Tribunal to either completely fail to understand his obligation in this regard, or to ignore it.

1. It is with great regret that the Tribunal has felt compelled to make the observations above and the comments in relation to the Practitioner's choice to represent himself. However, throughout the hearing of these proceedings the Practitioner made frequent, unwarranted criticisms of the process and procedure adopted by the Tribunal, of the fact that the rules of evidence applied and of the directions made by the Tribunal.

1. The Practitioner also occasionally descended into oral and written gratuitous comments in respect of the partiality of the Tribunal in relation to the manner in which the Tribunal considered its own procedures and processes and made rulings. As the Tribunal has noted above, this invariably occurred when the Tribunal made rulings against the Practitioner.[22]

1. As the Tribunal has noted, the Practitioner was entitled to represent himself. Throughout the hearing of these proceedings, the Tribunal recognised his regrettable, in the Tribunal's view, but conscious decision, to represent himself. As the Practitioner was not independently represented, it may be fairly inferred that he neither sought nor received any independent advice in relation to his obligations in respect of the disciplinary proceedings against him. So much is clear from his demeanour and behaviour throughout these proceedings thus far. For that reason, namely the fact that the Practitioner was self-represented, the Tribunal granted the Practitioner such indulgences that may not have been contemplated at all, had he been independently advised and represented.[23]

1. The Tribunal's observations and comments above and ones that follow in these respects are relevant and warranted. While the Tribunal has approached its difficult task of assessing all the evidence and the comprehensive written and oral submissions made by both parties in a purely objective and impartial manner, the behaviour of the Practitioner throughout the proceedings was very often inconsistent with his professional duty to cooperate reasonably in the process and avoid an unduly combative approach.

1. The Society prepared a bundle of documents, which was supplemented from time to time during the course of the hearing. For the most part these documents represented the totality of the Practitioner's file in relation to the two subject transactions, the material produced by the ACT Revenue Office under authority to which we shall return later, subpoenaed material, and annexures from the various affidavits filed by the parties. Suffice to say that the bundle which was referred to as the Court Book ("CB") throughout the hearing, proved to be a valuable and easily accessible resource.

1. The matter was heard between 7 to 10 November 2011. The Tribunal sat for extra time, commencing early and finishing late in order to complete the evidence in the proceedings. Besides the various directions to which reference has been made, the matter was also dealt with for a full day on 24 August 2011 to entertain, at extremely short notice, an application by the Practitioner to vacate a four-day hearing commencing on 24 August 2011. In addition, the Tribunal sat on 13 February 2012 to hear oral submissions.

1. The Society called the Complainants. Both Complainants did their best to recall the relevant events. Ms T, the Complainant wife, impressed the Tribunal as a witness of truth. Her evidence was given in a thoughtful, moderate and considered manner. She made concessions when it was appropriate to do so. Her evidence was not challenged in cross-examination despite a lengthy cross-examination. We say lengthy in the sense that her evidence was necessarily of a relatively narrow compass. We also say lengthy because she was required, after having been excused, to be available a second time by the Practitioner for further cross-examination. Some comment in relation to this application to recall the witness in person rather than take the evidence by way of telephone is warranted.

1. Leave to call Ms T again represented yet another indulgence to the Practitioner by the Tribunal.[24] Despite the indulgence and the obvious inconvenience to Ms T, the mother of small children, the Practitioner behaved with discourtesy towards Ms T returning to the hearing very late without adequate explanation for his tardiness.[25] In any event, the ensuing cross-examination of her by the Practitioner afforded him no forensic advantage.

1. Mr N, like his wife, impressed the Tribunal as a truthful witness. His evidence was given in a careful and thoughtful manner. He readily made concessions when it was appropriate to do so. Indeed, he impressed the Tribunal as being an almost reluctant witness. He, like his wife demonstrated no animus towards the Practitioner.

1. Mr N was not seriously challenged in cross-examination despite an exhaustive cross-examination, which often involved questions, which the Tribunal regarded as being sometimes confusing, unfair and deliberately framed as such by the Practitioner.

1. The Tribunal accepts in its entirety the evidence of both Complainants. Both were modest in demeanour and both made obvious efforts to give well-considered evidence impressing the Tribunal as making every effort to conscientiously tell the truth.

The Witnesses and evidence called by the Practitioner

1. Throughout these proceedings, directions were made concerning the filing and serving of evidence. The directions were that the parties were to file and serve affidavit evidence in support of their respective cases by particular dates. The Practitioner filed and served two very lengthy affidavits affirmed by him on 2 February 2011 and 30 June 2011. Both contained voluminous annexures. Pausing, those annexures were reproduced in the CB. Those directions in relation to evidence also included expert evidence.

1. The experts (Mr J on behalf of the Society and Mr B on behalf of the Practitioner) were experts in property/conveyancing law and practice and each of them swore affidavits. As to the experts' reports contained in their respective affidavits, a direction was sought by the Society and finally made by consent, after hearing some argument against the proposed direction by the Practitioner, that the party's experts should confer and produce a joint report to the Tribunal. That joint report was almost complete at the beginning of the hearing and was completed, a short time after the hearing commenced.

1. Before it was tendered, it was provided to each of the parties for their consideration and, pending formal tender or any submissions against its tender and admission into evidence, it was marked for identification. In due course, it was formally tendered and became exhibit A2. The Practitioner made no objection to its tender. The Practitioner did not require, Mr J, the Society's expert for cross-examination[26] and nor was Mr B, the Practitioner's expert required for cross-examination by the Society. The Tribunal will return to this point shortly.

1. Besides his own evidence, to which we shall turn in due course, the Practitioner did not file or serve any other affidavit evidence although, in the circumstances, he had more than ample opportunity and time to do so. During the course of the Practitioner's opening, it became clear that the Practitioner was proposing to rely on documentary evidence in the form of 'file notes', as he described them from his respective files in relation to the subject transactions. When it finally became clear to him that these 'file notes' were not going to be of much evidentiary assistance to him on their own without the supporting evidence of the persons who made the 'file notes' to explain the circumstances in which they were created and say what they meant, which was certainly not obvious on the face of each 'file note', it became clear that the Practitioner would need to call oral evidence from these persons to essentially corroborate what it was that he asserted the 'file notes' meant.[27]

1. The previous directions as to the filing and serving of evidence notwithstanding, The Tribunal granted the Practitioner leave to issue subpoenas for these witnesses to attend with a direction that he provide the Society with an outline of the nature of the evidence they would give.[28]

1. That direction was made after the Tribunal entertained an objection by the Society. The tenor of the objection was that, as there had been directions as to the filing of evidence in affidavit form with which the Practitioner had not complied, the Society should not be taken by surprise by the calling of oral evidence at the eleventh hour. It was submitted, quite correctly, that, if this indulgence was to be granted to the Practitioner, the Practitioner should provide an outline of the evidence he proposed to adduce from these witnesses. In the circumstances, the Practitioner was given sufficient time to provide the Tribunal and the Society with the respective outlines. He did so.

1. The Practitioner advised the Tribunal that he proposed to call the following witnesses; Mr Y, Ms YS, Ms CP, Ms LF and Ms PH. The Practitioner also sought the issue of a subpoena to ACT Revenue to produce documents and later during the course of the hearing, to give evidence. The Tribunal will deal briefly with the subpoena addressed to the Revenue Office.

1. An earlier subpoena had been issued out of the Tribunal at the request of the Society addressed to the ACT Revenue Office. It requested the files relating to the Kaleen purchase and the re-finance of the Lyneham property. The Society was met with an argument from ACT Revenue, which it regarded as unanswerable, that raised a statutory immunity. That is a position with which the Tribunal agreed, but with which the Practitioner persistently and vociferously refused to concede. [29]

1. In any event, the position was remedied, certainly in the Tribunal's view, when the Complainants provided the ACT Revenue Office an authority to release all of the relevant documents to the Society. The Society then, as the Tribunal understood it, copied these documents to the Practitioner.

1. Unfortunately, the Practitioner remained concerned, the tenor of his concern as the Tribunal understood it, being that what ACT Revenue had produced under the Complainants' authority was incomplete. Later on in the proceedings, the Practitioner hinted at a cover-up and or conspiracy on the part of the ACT Revenue Office in relation to the documents produced.[30] In those circumstances, but reluctantly, the Tribunal gave leave for the Practitioner to issue two further subpoenas to the ACT Revenue Office to produce documents and one to give evidence. Because of the statutory immunity and because, in those circumstances, the Tribunal has no coercive powers, the fate of those subpoenas was unremarkable. No documents were produced. [31]

1. Despite the limitation of the Tribunal's statutory powers to coerce production of documents and to require persons to attend to give evidence in the face of a statutory immunity, the Practitioner maintained his complaints that the Tribunal was biased against him in not forcing the ACT Revenue Office to comply with the various subpoenas which were issued at the request of the Practitioner. Indeed in a written submission,[32] the Practitioner, using the language of appeal, alleged that the tribunal had erred in law in not forcing compliance by ACT Revenue. The Tribunal was not persuaded by this submission.

1. As to the subpoenas addressed to, issued and to be served upon Mr Y, Ms YS, Ms CP, Ms LF and Ms PH, the Tribunal understands the following. No subpoena was issued to Mr Y. Pausing. It later transpired that Mr Y had sworn an affidavit on 7 November 2011. The Practitioner did not tender that affidavit during the evidentiary phase of the proceedings between 7 and 10 November 2011. That fact assumed importance later in the proceedings.

1. Subpoenas were issued and served upon Ms CP, Ms LF and Ms PH. Those young women attended and gave evidence to which we shall turn shortly. As to the subpoena addressed to Ms YS, it was issued, but according to the Practitioner, service was not affected. There was no affidavit by a person who had attempted service tendered to the Tribunal as to the failure to affect service, as one would normally have expected to see. Once again, there was merely evidence from the Practitioner from the Bar table relating to the difficulty in finding Ms YS and her apparent reluctance to give evidence in the Practitioner's case.

1. Ms YS may or may not have been able to give evidence helpful to the Practitioner's case. The fact remains, however, that she did not. In any event, the Society did not make any submission as to any negative inference that might be drawn in respect of her failure to give evidence and the Tribunal drew none. However, oral submissions from the Practitioner that the author of various 'file notes' was Ms YS were completely unsupported by any evidence.

Assessment of the evidence called by the Practitioner

1. Ms PH[33] had been a 'legal placement' from the ANU Legal Workshop at the Firm for about ten weeks from 7 February 2011. She had, of course, no first-hand knowledge of the events and circumstances, which gave rise to the complaints that, in turn, became the subject of this legal disciplinary hearing.

1. She was asked questions about the handwriting on Document 208 in the CB and another document referred to by the Practitioner as the 'chain of evidence document'. Both documents had apparently come into existence well after the events and certainly within the dependency of these disciplinary proceedings.

1. A number of questions asked of her were objected to for various reasons, but mostly because the questions fell outside the scope of the outline of the questions that the Practitioner had provided to the Tribunal and to the Society in accordance with a direction made in that respect by the Tribunal and, also because, as a matter of evidence law, they were inadmissible. Mr Beaumont made the objections and argued the basis for the objection. The Practitioner was then invited to make submissions as to why the question/evidence should be allowed. The Tribunal considered both arguments and then made rulings.

1. As to the handwriting on Document 208 in the CB, Ms PH's evidence was that she could not recall if any of it was hers or not. However, while the Tribunal accepts that Ms PH was a witness of truth, her evidence did not advance the Practitioner's case in any relevant respect.

1. Ms CP[34] had worked for the Firm during the relevant period in 2009. She was asked many questions relating to a statutory declaration that had been misplaced. Her evidence was vague, although she did her best to recall. She could only remember the name T (the Complainant wife) in relation to the misplaced statutory declaration. She did not know who had misplaced it. All she could recall was that it had to be re-typed. She was then asked to identify the handwriting on certain 'file notes'. Her evidence was that she was unable to do so without speculating. As with Ms PH, Ms CP's evidence did nothing to advance the Practitioner's case.

1. Ms LF[35] is a Law Clerk and is presently employed by the Firm. She commenced her employment on 15 June 2009. She was therefore present for some of the time when the subject transactions took place. Ms LF had a recollection of the Complainants' conveyancing matter, but could not remember it well as she was working on other matters at the same time. She was, as she put it, only assisting on this matter. She was shown Document 208 of the CB and asked to identify the handwriting on it. She identified the words 'resubmitted stat dec on the 22nd' which she said was likely written after the event.[36] Her evidence was that Ms CP instructed her to write those words.[37] When she was asked to identify the handwriting appearing on another 'file note', she answered that she did not know.[38]

1. For the most part the questions asked of Ms LF by the Practitioner were inadmissible and on one occasion her answer was struck out for that reason. Again and again Ms LF was invited to speculate on the identity of the writer. To the extent that the Practitioner gained any forensic advantage from his examination of Ms LF, which is doubtful, it has no weight in the Tribunal's view.

The demeanour and credit of the Practitioner in giving his evidence and generally during the course of the hearing

1. Before the Tribunal makes the detailed remarks that follow, it is helpful to make a general comment in relation to the evidence given by the Practitioner in chief and in cross-examination. A substantial amount of it may fairly be characterised as submission or argument from the Bar table, rather than evidence in the true sense.

1. True it is that in professional disciplinary hearings the onus of proving misconduct lies with the party bringing the charges and a practitioner is not required to give evidence. However, there is an expectation that legal practitioners will enter the witness box to provide some explanation as to their conduct. In Coe v New South Wales Bar Association [39], Meagher JA observed:

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

1. While in Coe's case, the Practitioner declined to give sworn evidence and relied instead on oral submissions, His Honour's comments are still apposite to this case. The Practitioner purported to give evidence, but in substance, for the most part, as the Tribunal has observed, it was nothing more than argument and submission. Put at its highest, the tenor of his case was that he was a very busy sole practitioner, who had really done nothing wrong, but if he had, then what he done or failed to do amounted to simple, but honest mistakes for which others, in the main, were responsible and that the charges brought by the Society were indicative of a well orchestrated and an unwarranted persecution of him. The submission was repeated by the Practitioner frequently both in oral and in written submissions.

1. It is therefore relevant and important to comment upon the demeanour of the Practitioner throughout the hearing of these disciplinary proceedings. Despite the fact that the Tribunal found it necessary to remind him on many occasions that it had set out in directions the procedure that was to be followed for the preparation and hearing of this matter, the manner in which the proceedings would be conducted at hearing and the fact the proceedings were bound by the rules of evidence, the Practitioner contumaciously ignored and or declaimed the Tribunal's directions, comments, advice and rulings. Regrettably, throughout the hearing, his demeanour and conduct appeared to the Tribunal to be recalcitrant at times and often combative at other times. Unfortunately, this was not helpful, to his interests.

1. He made lengthy, and often rambling, irrelevant and unhelpful speeches from the Bar table[40] despite being asked to desist from doing so. He appeared to either have no understanding of the differences between evidence, more importantly, admissible evidence and submission or argument when the proceedings were at the evidentiary stage, despite being constantly reminded of them or chose, for reasons not apparent to the Tribunal, to ignore them and the Tribunal's frequent attempts to help him understand and co-operate with the process.[41] It was for that reason that most of his 'evidence' in his case was rejected or was given little weight by the Tribunal.[42]

1. During the course of cross-examination by Mr Beaumont, the Practitioner refused to answer simple and reasonable questions[43] or make concessions when they ought properly to have been made. When asked questions in cross-examination from Mr Beaumont or from members of the Tribunal, he gave un-responsive answers, engaged in what appeared to the Tribunal to be obfuscation, prevarication[44] and resorted to irrelevant lengthy speeches,[45] complaints and insulting remarks[46] directed, not only at the Tribunal, but also at Mr Beaumont personally.[47] In light of the foregoing, the Tribunal made the not unreasonable and fair assessment of the Practitioner's evidence in cross-examination, namely that it unfortunately did not assist the case. The Tribunal will return to that point in more detail in due course.

1. On the day set down for hearing oral submissions, the Practitioner sought leave to re-open his case to lead evidence from Mr Y in the form of an affidavit sworn on by Mr Y on 7 November 2011, the date the hearing of the proceedings had commenced. That leave was opposed by the Society. The Tribunal refused it after hearing submissions from the Practitioner, which were entirely unsatisfactory in terms of why he had not led this evidence at the hearing when it was plainly available to him. In any event, upon analysis of the evidence of Mr Y, it was the Tribunal's view that it was of little or no forensic assistance to the Practitioner's case.

1. The Practitioner continued to complain that he ought to be permitted to lead evidence from his expert, Mr B, despite the fact that Mr B had not been required for cross-examination by the Society and the fact that the Practitioner had consented to the tendering of the joint expert report. The fact was, therefore that neither of the respective experts' reports was in evidence before the Tribunal. Nevertheless, the Practitioner persisted in his contention that Mr B appear in person to give evidence.

1. In view of the fact that the joint expert report was largely critical of the Practitioner and the fact that the Society did not require him for cross-examination, it was reasonably inferred by the Tribunal that the only purpose for which the Practitioner required Mr B to give oral evidence was to make an attempt to effectively cross-examine his own expert out of the view that he ultimately expressed in the joint expert report. Regardless, the Practitioner insisted, in making written submissions based on a report of Mr B that was not in evidence before the Tribunal and seeking to rely upon it in oral submissions in circumstances where the Tribunal had made the relevant ruling.

1. Indeed, the Practitioner frequently cavilled with Tribunal rulings on a number of issues after they had been made. He appeared to have no appreciation of the process, which the Tribunal found it necessary to often explain to him, namely, that if an objection was made by either party, the Tribunal would entertain the objection by hearing argument as to its basis or bases by the objecting party, would then invite a response by way of submission from the party leading the evidence or advancing the proposition as to why the question/evidence ought to be allowed or the proposition entertained and then the Tribunal would consider the submissions from both sides and rule upon the question. In many instances, the Tribunal took the time to give formal reasons for its decisions in these respects.

1. The Tribunal's assessment of the Practitioner's evidence and oral submissions was that for much of it, it consisted of inadmissible and sometimes evasive evidence, unhelpful submissions and irrelevant and occasionally offensive comments. The Tribunal found that some of the evidence that he gave was, at best given with scant regard for its truth or accuracy and, at worst with reckless disregard as to the truth of what he was saying.[48] Again and unfortunately, none of this assisted his cause.

1. The affidavit evidence of the Practitioner was voluminous. Much of it was arguably inadmissible. As the rules of evidence applied, the Society was entitled to take these evidentiary points in objecting to it and it did so in writing. The Tribunal dealt with the many objections in a global fashion as the following extract from the transcript demonstrates.[49]

I wanted to just raise with you, Mr Beaumont, the objections.

Look, I, the Tribunal, has before it a pretty lengthy document. It's about 15 or so pages that [the Practitioner] has plainly spent a great deal of time on. Now, I haven't seen in its original form your objections. Am I to take it that the objections that he refers to in bold at the beginning of each paragraph are your objections?

MR BEAUMONT_: And they were, at least I understand they were, filed. In any event - - -_

MEMBER DONOHOE: Well, they may have been, but they haven't made it. But that's here, is it?

MR BEAUMONT: Can I assist by giving - I think I've got a spare.

MEMBER DONOHOE: Well, you can, but that may or may not be necessary at the end of the day. Look, can I ask you to give between now and whenever this issue is raised, some very serious consideration to how many of these you really do press. I'll tell you why. Because even though I understand the rules of evidence apply to a hearing such as this, objections as to form, and I really, I don't know that they take us anywhere and they're going to take us an awful long, a great deal of time to argue. Why aren't we entitled, pursuant to section 146 of the Act, to look at all of the objections that you make in relation to conclusion, speculation, opinion, comment and so forth, why couldn't we admit those for the limited purpose of the state of [the Practitioner's] mind?

MR BEAUMONT: Subject to one important qualification, I have no difficulty with that and I totally, with respect, adopt the need for a pragmatic approach rather than a tedious one. The only problem is, it appears that, and indeed, is often the use of a present tense. The state of [the Practitioner's] mind appears to be, at least on a number of occasions, the state of his mind at the time of his swearing the affidavit, rather than at the time - - -

MR BEAUMONT: - - - these events took place. And that's the vice in what he's doing. It really is a true reconstruction where he says, "Well, look at this, this is what I say happened." But can I give some further thought to this? But it may be that provided it's not said that in each and every case, I have to take him to his evidence and say, "No, that's wrong. That's not what this file note says." And provided that it's understood by everybody that if the underlying records don't prove what he asserts, then his own - - -

MR BEAUMONT: It may be that we don't need to, I don't need to - your suggestion, with respect, is entirely appropriate, and that we don't need to engage in the tedious exercise of going - - -

MEMBER DONOHOE: Yes. I mean, if there's certain, certain things are critical. Look, start from first principles. You're entitled to make all these objections, but you know, if you could just give some thought to how many of them you really press, and I note what you say, and plainly, if the assertions aren't made out, then they're not made out.

MR BEAUMONT: And they're not made out and I don't have to tediously put every single one to [the Practitioner] - - -

MR BEAUMONT: - - - to say, you know, "You say the file note says X but it doesn't." I mean, there are file notes, for example - I'll give you, if I may give you just one example, he says that, "Here's a file note showing that we lodged the stat dec with the ACT Revenue Office on 9 June." You go to the file note and the file note is a sort of aide memoir saying "We need to do it."

MEMBER DONOHOE: Yes, no, I've seen that, and I understand that point, and indeed - - -

MEMBER DONOHOE: - - - a file note that was produced today, I couldn't tell you what it meant.

MEMBER DONOHOE: So if it's going to be asserted that it says something, then unless it actually does, that's the end of the matter.

MR BEAUMONT: Well, if that's, with respect, understood by everybody, then I don't, as long - in other words, I don't have to Browne v Dunn on the actual underlying transaction documents - - -

MR BEAUMONT: Then I think most, if not all, of my objections to

[the Practitioner's] main or second affidavit can be just admitted, received subject to objections if that was

1. This approach to the Practitioner's affidavit evidence, much of which was, in fact, in the view of the Tribunal, plainly inadmissible, was yet another indulgence made by the Tribunal in favour of the Practitioner, but was also made by the Tribunal in the interests of getting to the heart of the matter expeditiously.

1. The written submissions in chief and in Reply to the Society's written submissions filed on behalf of the Practitioner require some comment. They consisted of 60 pages. Dealing first with the written submissions in chief, much of that material was, unfortunately, unhelpful to the Tribunal. That was so because much of the material was either:

• 26, 27, 28, 31, s,69 Evidence Act, (i)-(x), page 17(viii), 50(o) 50(v), 50(y), 51(iii), 51(xi), 51(xxv), 51(xxvi), 51(xxix), 72, 73, 75.

• 9, 10, 23, 43(b), (d), (e), 37-42, 45, 134, 135, 162-164, 200.

1. A submission, which was irrelevant or repetitious:
   • 25, 30, 43, 46, page 12 (h), 47, 48, page 14-15, page 17((vi), (x), (xii), 50 (c) (ee), (ff), (gg), (ii), (kk), (ll), (mm), (oo), (pp), (qq), (rr), (ss), (tt), (uu, (vv), 51(xx), 51(xvi), 51(xxiv), 51(xxvii), 51(xviii), 51(xix), 51(xxx), 52-55, 60, 62-71, 74-80, 81-86, 87, 99, 111-118, 127, 128, 129, 130, 131, 132, 133, 134, 135, 136, 137, 139, 142 (should have been Danica and not Carly, had done the letter), 143, 144, 145, 150, 161, 162-164, 165, 174, 175, 201, 202, 205, 206.

1. A submission, which was either not supported by the evidence or not in evidence at all:
   • 5, 7, 8, 9, 10, 12, 15, 18, 19, 22, 23, 24, 29, 32, 34, 37-42, 44, 45, page 12(d), 49, page 14(ix), page 15(xvii)-(xviii), page 16(iv), (v), 50(b), 50(g), 50(k), 50(q), 50(x), 50(z), 50(aa), 50(aa), 50(bb), 50(cc), 50(gg), 50(nn), 50(qq), 50(rr), 50(ss)), 50(uu), (c), 92, 101-105, 106, 107, 109, 111-119,116 [sic], 125 (for 31/2 months he had tried to go and see his father, but all his attempts failed), 134, 135, 142 (should have been Danica and not Carly, had done the letter), 151, 200.

• Revenue Office (iii), (a), (fn5), Page 14 (vi), (vii), Page 16 (ii), Page 17 (xi), 50 (hh), 51(v), 51 (vii), 51 (viii), 51(x), 51(xi), 51(xxx), 59, 61, 87, 91, 112, 145, 169, 194, 202, 254, 260, 261, 268, 254 [sic] page 59, 260-261 [sic] page 60, 264 [sic] page 60.

G. A submission, which cavilled with earlier rulings/directions or orders:

H. A submission, which was, in fact, an appeal point:

• 51(i), 51(ii), 51(v), 51(xii), 51(xiii) (a)-(g), 51(xv), 231-266.

1. The criticisms of the Practitioner's written submissions in chief set out above are not exhaustive.

1. The Tribunal now turns to the written submissions filed by the Practitioner in reply to the Society's written submissions. They comprised 26 pages of submissions in reply and a further 10 pages of a document entitled 'Schedule 1'. The Tribunal will return to Schedule 1 shortly. Again, regrettably, much of the material contained in the written submissions in reply was unhelpful to the Tribunal for the following reasons:

• 2 (certainly in the view of the Tribunal), 5(i)- 5(x), (There was never any proper or credible evidentiary bases for his honest/genuine belief. His assertions were made recklessly without any regard for the accuracy or truth of them. Had the Tribunal not pointed this out to the Practitioner, the Tribunal infers that the Practitioner would have maintained the false and or careless assertion or, to paraphrase the Practitioner's words he would have continued to boldly state that it was Carly who had signed the 3 July 2009 letter. Then he gave relatively emphatic oral evidence that it was Lisa's signature. However, this proved to be wrong as well according to Lisa. At best, his evidence in this regard can be regarded as being so careless, having regard the seriousness of these disciplinary proceedings, that they may fairly be said to constitute reckless indifference to the truth. The submissions in this respect are rambling, repetitive and self-serving.), 11, 20, 22, 23, 25 (not supported by the preponderance of evidence), 37, 50, 53, 61, 62, 65 (The Tribunal does not accept that when the Practitioner wrote the letter to the Society stating that he was not in the country on 3 July 2009, he made an honest mistake. In matters as serious as complaints made against a lawyer and an ensuing investigation by the relevant body, it is incumbent upon a lawyer to respond with frankness and candour. This obligation is instinctively well known to Australian Lawyers. In discharging that obligation, an Australian Lawyer instinctively knows or should know that he or she must use care, indeed great care in responding to such and investigation. The Practitioner's excuse of an honest mistake, in all of the circumstances of this case comfortably established by the evidence, is not credible), 70 (The Tribunal has made relevant comments above regarding its view of the unsatisfactory nature of the Practitioner's evidence, his demeanour and credit. The submissions of the Society in this respect are unfounded.),

B. A submission in reply, which failed to expressly address the submission it purported to address:

• 3, 4, 5(i)-5(x), 10, 11, 12,13, 14, 15, 18(c), 18(d), 18(f), 18(g), 19(a), 19(b), 19(c), 22, 23, 26, 27, 28, 29, 37, 38-44, 45(j), 52(a), 53(a), 54 and 55 (b) and (c), 63, 64, 65, 69(a), 69(b), 69(c).

C. A submission in reply, which was irrelevant or repetitious and, importantly, was generally unresponsive to the submission it purported to address:

• 5(i)-5(x), 5(xiii)-5(xxx), 10,11, 12,13, 14, 15, 17,18(a), 18(b), 18(c), 18(f), 18(g), 19(a), 19(b), 19(c), 23, 25, 26, 27, 28, 29, 37, 38-44, 45(d), 45(j), 50, 51, 52(a), 52(b), 52(c), 53(a), 60(a), 63, 64, 65, 69(a), 69(b), 69(c), 70.

1. A submission, which was either not supported by the evidence or not in evidence at all:

• 5 (...this shows during this time he honestly believed it was Carly's signature), 18(b), 18(d), 19(a), 19(b), 23, 24, 25 (not supported by the preponderance of evidence), 26, 28, 35(a), 37, 45(b) and (c), 45(d), 45(e)-(h), 52(a), 52(c) and (d), 54 and 55 (b) and (c), 60(a).

E. A submission, which misrepresented the submission purportedly being

• 15, 16 (these 'file notes' or writings were all made well after the event. The best evidence was that of Ms T), 18(c), 22, 59(a) and (b) (The preponderance of evidence is that the Practitioner only accepted responsibility for errors, misstatements and mistakes in circumstances where he could no longer refuse to take responsibility for them.).

• 5(xi)-5(xii), 5(xv), 5(xxii), 5(xxiii), 26, 37, 45(j) 51, 52(a).

G. A submission in reply, which cavilled with earlier rulings/directions or

H. A submission in reply, which was, in fact, an appeal point:

1. The criticisms set out above in relation to the Practitioner's written submissions in reply are not exhaustive.

1. The Tribunal now turns to the document contained in the Practitioner's written submissions in reply entitled 'Schedule 1'. It can be dealt with briefly. This document took the Practitioner's case no further. It was replete with irrelevant matters, unrelenting repetition, unremarkable submissions, and evidence that was not before the Tribunal. Suffice to say, the Tribunal is of the view that the matters contained in that document were not helpful to the Practitioner's case.

1. The Tribunal thus finds itself, in respect of the evidence it must assess and the submissions it must consider in relation to the Practitioner's case in the position of having virtually no evidence before it in support of the Practitioner's case, and written and oral submissions, which were not particularly helpful for the reasons set out above. However, the Tribunal considered with some care and indeed sympathy, the evidence from the Practitioner as to his state of mind as at early July 2009. His father had just died and he gave evidence, which the Tribunal accepted that he was extremely close to his father and very distressed that he could not be at his dying father's bedside. However, the Practitioner's evidence also revealed that the urgency to see and comfort his father before he died had passed by 3 July 2009 and the earlier distressed state of mind of the Practitioner before his father died, one might reasonably infer, had likely eased by 3 July 2009 as his father had died some days prior to that. That, in the view of the Tribunal, is further evidenced by the fact that the Practitioner did not arrive in the overseas country until 8 July.

2. The Tribunal now turns to the submissions made on behalf of the Society. They were first responsive to the Practitioner's written submissions in chief and then responsive to the Practitioner's written submissions in reply to the Society's written submissions.

Ground 1 (Stamp duty exemption (see Particular 1.1)

1. The Practitioner's retainers were signed[50] and returned[51] on 21 May 2009. The experts agree in their joint report dated 7 November 2011 that on this basis, the Practitioner had adequate time to prepare, lodge and stamp the necessary documentation within 4 weeks.[52]

1. The preponderance of the evidence revealed that the Practitioner did not lodge any statutory declaration or transfer in relation to the exemption from stamp duty (other than nominal) of the Lyneham transfer (the second retainer) until 23 June 2009.

1. Bearing in mind the common position, which the parties' experts reached in the joint report, the Practitioner had, on any view of it, failed to attend to the stamp duty exemption in the manner expected of a reasonably competent and diligent solicitor. In particular, in their joint report, the experts concluded in section 4 after discussing a number of apparent difficulties with the attachments to the initial statutory declaration:

'It is however our view that if the Tribunal is satisfied that no Birth Certificate was lodged, then we agree the form of statutory declaration was deficient in that it failed to enclose the prescribed number and type of documentary requirements specified under the Revenue' Circular' (which Circular is Annexure A to the joint report).

1. There is therefore no issue on the expert evidence that the statutory declaration, whenever it was lodged, was in any event, deficient. The Complainant wife herself finally remedied the position when, after emailing the Practitioner,[53] she finally personally dropped in the Marriage Certificate to ACT Revenue on 26 June 2009, and then delivered it to the Practitioner.[54] Following this, on the same day, ACT Revenue produced the assessment.[55] In particular, Ms T, the Complainant wife, managed to persuade them to do this 'on the spot'.[56]

1. There was, it was submitted by the Society no basis for any speculative submission by the Practitioner that he may have attached the Birth Certificate to the statutory declaration. The evidence in relation to this point was reasonably clear and persuasive in the Tribunal's view. It does not appear in the Revenue Office files. Ms T and Mr N's evidence was to the contrary of this asserted possibility. Moreover, it was not referred to in any of the three versions of the statutory declaration, and nor does it appear as an attachment to them.[57]

1. Again there was no reference to the Birth Certificate in the statutory declaration and nor was it attached to the documents or otherwise in the Revenue office files.[58]

1. It follows from the foregoing that, regardless of whether the Practitioner lodged or attempted to lodge any statutory declaration on 9 June 2009, the statutory declaration (and each version thereof) was at all material times defective.[59]

1. Further, and in any event, the Society submitted that the Tribunal should comfortably conclude that, for whatever reason (whether it was lost within the Practitioner's office or otherwise) the statutory declaration and transfer were not lodged by the Practitioner until 23 June 2009, and, indeed, no transfer of any kind was ever signed by the Complainants until 23 June 2009. Nor, as to the latter point, was the contrary ever put to either of the Complainants in cross-examination.

1. The documentary evidence from ACT Revenue was clear and unequivocal.[60] In his oral evidence, the Society submitted that the Practitioner was quite unable to explain the documentary evidence from ACT Revenue. The Practitioner purported to deal with it in his written submissions in chief.[61] The Tribunal dismisses these submissions in as much as they allege some sort of conspiracy.

1. The Society summarised the evidence thus:
   • The Notice of Assessment from the ACT Revenue Office referred to the 'documents lodged on 23 June 2009'.[62]
   • The lodgement form filled out by the staff of the Firm was stamped as received on 23 June 2009.[63]
   • The Firm itself stated on the lodgement form that the 'Date of first execution' of the transfer was 23 June 2009.[64] This is at complete odds with the claim of the Practitioner[65] that the Transfer was earlier lodged on 9 June 2009 but then 'returned'
   • There was no letter on the file kept by the Practitioner recording or documenting the 'return' by the ACT Revenue of the transfer, nor any explanation as to why this would occur, and nor was there any explanation as to why, if the transfer was returned, the date of its first execution is stated by the Firm to be 23 June 2009;
   • The transfer itself, bears only one date, namely 23 June 2009, which appears not only initially,[66] but also as the assigned date for the Contract for Sale;[67]
   • The statutory declaration, which was actually lodged, was the original statutory declaration executed on 5 June 2009. Again, if this had been 'lost' as alleged, then one asks rhetorically, how it found its way on to the ACT Revenue file? If it had been 'returned', then why was the document that is included among those accepted for lodging and stamped as lodged? Why again, one asks rhetorically, would it have been accepted the second time around, but not the first?
   • The only relevant receipt from the Revenue Office on the Practitioner's own file was for documents lodged on 23 June 2009.[68] The Practitioner provided no explanation for the absence of a receipt for 9 June 2009, which should have been on his file had the Practitioner in fact lodged the statutory declaration and transfer at that time.

1. The Society submitted that the Practitioner's various versions of the event are both contradicted by the documents (and the absence of documents from his file) and are internally inconsistent, as well as implausible. That is submission with which the Tribunal concurs.

1. Thus, the Practitioner's first version of the events was that the ACT Revenue 'incorrectly returned' the documents - he said this in his letter to ACT Revenue of 26 June 2009[69] and said nothing, notably, about the documents being lost. It is an unremarkable proposition that the documents could not be both lost and incorrectly returned. Nor did the Practitioner say anything explicit about the documents having been 'rejected' in this letter.

1. In his second version, in relation to his first letter to the Law Society,[70] the Practitioner asserted for the first time (without any foundation that was obvious to the Tribunal) that ACT Revenue had 'lost' the 'documents' and that 'thus' they 'returned the transfer to us'. That version does appear to the Tribunal to be implausible. As noted above, the Society submits and the Tribunal agrees, that this is illogical, is not supported by the file, and does not explain why the actual transfer, being the only transfer appearing or referred to in the evidence, was stated by the Firm to have been first created on 23 June 2009.[71] Nor it was submitted by the Society, was the Practitioner able to account for this inconsistency in his oral evidence.[72]

1. The Practitioner's third version of events was that the clients did not return the 3 June 2009 statutory declaration until 9 June 2009 and that it was then lodged.[73] The Society submits and the Tribunal agrees that this is patently false, as the Practitioner accepted in his oral evidence.[74]

1. In truth, far from not being returned until 9 June 2009, the statutory declaration was signed in the Practitioner's office and witnessed by the Practitioner on 5 June 2009. The Practitioner, it was submitted by the Society, had sought in his affidavit evidence to conceal this fact in his explanation of the events by pointing to the 3 June 2009 statutory declaration as the applicable one, and seeking to make mileage of the fact that it had the words 'cancelled' on it.[75] But on his oral evidence, it emerged that this statutory declaration was 'cancelled' owing to a witnessing defect by the Practitioner himself.[76]

1. The Complainants came in to see the Practitioner on 5 June 2009 and executed the statutory declaration on that date.[77] The Practitioner asserted in his 30 June 2011 Affidavit that the ACT Revenue had misfiled the 3 June 2009 statutory declaration or lost it. [78]

1. For emphasis, it is submitted that the Complainants did not receive the 3 June 2009 statutory declaration, because it was replaced by the 5 June 2009 version. In short, it is submitted by the Society that the Tribunal should comfortably conclude that the Practitioner has simply concocted a story about having ever lodging the application for stamp duty exemption, let alone the transfer, with the ACT Revenue Office on 9 June 2009. The Tribunal is persuaded by the society's submission in this regard.

1. The Society submitted the oral evidence led by the Practitioner from former employees and one present employee took the matter no further. The Tribunal agrees with this assessment of that evidence as we observed above.

1. As Ms T's experience on 26 June 2009 clearly demonstrated, all the Practitioner in truth needed to do was to supply the ACT Revenue with a copy of the Marriage Certificate. This he failed to do and it was left to Ms T to fix up the problem as a matter of urgency, bearing in mind the Notice to Complete. She managed to achieve this task in one day, on 26 June 2009. For the reasons explained by Mr J and Mr B,[79] the statutory declaration was inadequate. The Tribunal concurs with this assessment.

1. The fundamental point about the discharge is that the Practitioner undertook to the Complainants that he would attend to the discharge of the mortgage.[80] He knew from 29 April 2009 that the incoming mortgagee would want security over the Lyneham property.[81] The Complainants each deposed that they told the Practitioner this again on 4 May 2009.[82] The Practitioner did not seriously dispute this.[83]

1. The Society submitted that the Practitioner knew, or should have known, that it followed that the two matters would need to settle together, and that there was a real likelihood that a transfer into the joint names would be required.

1. It was quite wrong; it was submitted by the Society, of the Practitioner to simply assume that the Commonwealth Bank would attend to the discharge.

1. Messrs J and B agreed that there is no such presumption.[84] The Practitioner, if anything, implied in his evidence, without apparently realising it, that he would ordinarily be responsible. When it was pointed out to him that one of the tasks that he included in the costs agreement was arranging the discharge, he replied, 'That's a standard costs agreement for the refinance client'.[85] In other words, so far as the Practitioner was concerned, it was 'standard' for him to undertake to do that work.

1. It is true that the Commonwealth Bank took some (inadequate) steps to begin this process,[86] but it is equally true, as the Society contends, that, as at 10 June 2009, the Firm did not know either way whether or not the Commonwealth Bank were doing the discharge for the Lyneham property - there is no other explanation for the file note of that date,[87] which relevantly states, 'call CBA and ask if they're doing the discharge for the Lyneham property'.

1. The Practitioner's oral evidence on this topic did nothing to assist his case.[88] He was unable to point to any letter passing the relevant responsibility to the Commonwealth Bank.[89]

1. Having taken responsibility to undertake the discharge, it is submitted by the Society, that it was not for the Practitioner purport to delegate that to anybody else, including the Commonwealth Bank.

118. [the Practitioner] should have taken control of the discharge, ensured that it was ready, and not relied on unjustified and dubious assumptions and allowed, in his own words, 'confusion'[90] to exist until it was too late to act. His failure to do so was unsatisfactory.[91]

1. As to section 8 of Ex A2, while the Society contends that the position of Mr J is to be preferred, this question is one of fact for the Tribunal to decide. The Society submits that there is no evidence that the Commonwealth Bank advised the Practitioner that it, rather than he, would attend to the discharge of Bank West's mortgage over the Lyneham property. The Tribunal agrees with that submission.

1. The Tribunal is therefore persuaded by the Society's submission in respect of the stamp duty exemption and the discharge of mortgage point.

1. The initial letter reporting of 3 July 2009[92] was full of serious errors. First, settlement did not occur, of course, on 19 June 2009. It was delayed until 30 June 2009. Secondly, the 'total fees and disbursements' were not of '$975.80' but rather also included a further invoice of '$646.50'.[93] Thirdly, the cheque directions[94] were substantially inaccurate.[95] Fourthly, there was, of course, no mention of the penalty interest payable, or of the $300.00 payable for the payment of the vendor's solicitors' legal fees as a consequence of the delay. This is set out, but not explained, in the settlement statement, which was attached to that letter.[96]

1. Notably, even in the 'correction' letter of 4 September 2009,[97] while the penalty interest of $1,128,77 is referred to in the covering letter, the additional $300.00 is not.

1. The Society adopts the further criticisms of the letter of 3 July 2009[98] set out in section 9 of Ex A2. In addition, as pleaded in particular 1.2 to Ground 1, even after the Practitioner was informed of the complaint by letter dated 29 July 2009,[99] he failed promptly to correct the position, but rather took over two months until 4 September 2009[100] to write or cause a correct and accurate letter to be written.

1. Ground 2 to the Application states follows in particular 2.1:

'The Practitioner failed to ensure that his practice was sufficiently and

properly administered to deliver the legal services for which he had been

This, if proved, would constitute a breach of rule 36.1.

1. The Society submits that the breaches pleaded in Ground 1, if found to be proved by the Tribunal, also evidence a breach of rule 36.1 as pleaded in Ground 2. The Tribunal is persuaded by this submission.

1. The Practitioner virtually admitted as much in respect of the letter reporting, the subject of particular 1.2 to Ground 1. He rightly characterised the errors as 'inexcusable'.[101] If, as he claimed, he did not see the letter, then he plainly failed to organise his practice so as to ensure that the author accurately drafted what was an important letter in an important context.

1. Likewise, the failures with respect to the relatively straightforward matters of attending properly to the stamp duty exemption and the mortgage refinance evidence were the same failure to comply with rule 36.1. The Tribunal agrees with this submission.

1. A breach of the rules is capable of constituting either professional misconduct or unsatisfactory professional conduct.[102] The Society submits that in this case, these breaches of the rules (rule 1.2 in the case of ground 1 and rule 36.1 in the case of Ground 2) do constitute unsatisfactory professional conduct, because of the collection of these shortcomings in the one transaction, the potential serious outcome for the clients, and the Practitioner's failure to correct the 3 July 2009 letter for a period of 2 months.

1. The Society submits that within the definition of unsatisfactory professional conduct, and noting that the conduct involves breaches of the rules particularised, it amounts to conduct which falls 'short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Practitioner'.[103]

1. The Tribunal is persuaded by the Society's submission in relation to grounds 1 and 2.

'The Practitioner failed to act honestly and fairly in the service of his clients in blaming the ACT Revenue office, and his clients' banks for the delay in the settlement of the matters in which he was instructed when that delay was attributable to his own lack of competence and diligence in arranging for the stamping of the transfer document in a timely manner.'

1. Ground 3 accordingly charges a failure to act honestly and fairly in breach of rule 1.2 as quoted in the recitals to the application. This Ground is predicated upon the success of particular 1.1. The Society accordingly first repeated its submissions with respect to particular 1.1.

1. The Tribunal is persuaded by the Society's submission in relation to ground 3.

1. The Society next made the point that the truth was, at all times, within the Practitioner's knowledge and means of knowledge. The Society quite properly submitted that it was quite wrong of the Practitioner to attempt to divert blame to the Revenue Office or the Banks for the delay in settlement in a context in which, at all material times, he had to provide valid documentation, including the simple step of providing a Marriage Certificate which would have satisfied the stamp duty exemption.

1. The attempts by the Practitioner to blame the Revenue Office and the Banks include:

• The discussion (which the Practitioner does not deny) with the Complainants on 23 June 2009[104] in which the Practitioner 'said that ACT Revenue had delayed the process'. He said this to the Complainants, notwithstanding that, in truth, no statutory declaration and certainly no valid statutory declaration, and no transfer, had ever been lodged; and
• Again, in his letter to the Society of 18 August 2009[105] and at a time when the Practitioner had not completed his retainer with the Complainants (for reason that he sent the correction letter on 4 September 2009), the Practitioner repeatedly blamed the Banks and the Revenue Office.[106]

1. Especially in the case of the 23 June 2009 discussion, occurring at a critical moment when the Complainants were at peril of forfeiting the deposit and having the contract rescinded, the Society submitted that it was quite wrong of the Practitioner to falsely portray the fault as being that of ACT Revenue or, for that matter, the Banks, as opposed to his own fault which it plainly was. This is accordingly a breach of rule 1.2. The Tribunal agrees.

1. Although more serious in a sense than the acts of incompetence alleged above with respect to Grounds 1 and 2, the Society contends that, if proved, Ground 3 constitutes unsatisfactory professional conduct rather than professional misconduct, albeit of a fairly high order. The Tribunal is persuaded by the Society's submissions in respect Ground 3.

Failure to be open and frank in his dealings with Society in breach of Rule 39.1 and misleading and deceptive conduct.

It is submitted by the Society that the Practitioner, in his letter to the Society

dated 18 August 2009, deliberately attempted to deceive the Society or, in

the alternative, recklessly made a false representation to the Society, in

breach of rule 39.1, by stating in his letter to the Society dated 18 August

2009, with reference to the letter dated 3 July 2009, which was sent to the

Complainants, 'during this period the writer was not in the country', when in

truth, the Practitioner was indeed, as at 3 July 2009 when the letter was sent,

1. The Society submitted that the Practitioner deliberately attempted to mislead this Tribunal, or alternatively recklessly made a false representation to this Tribunal, by confirming, in his affidavit affirmed and filed on 2 February 2011, the correctness of his letter of 18 August 2009, in that he annexed to that affidavit, relevantly, a copy of that letter, and deposed to the matters set out in paragraphs 4 and 11 of his affidavit, without correcting the false statement in that letter that, 'during this period the writer was not in the country'.

1. The Society submits that the Tribunal should be comfortably satisfied that the Practitioner knowingly and deliberately attempted to mislead the Society when he claimed in his letter to the Society of 18 August 2009 that he was 'not in the country' when the settlement letter of 3 July 2009 was sent.[107]

1. The Society submitted that this entirely false assertion occurred only some six weeks after the event (that is 18 August 2009, with the letter and day in question being 3 July 2009). The 3 July 2009 letter was, as has been submitted, replete with significant and, in the circumstances, embarrassing misstatements.

1. It was the one thing, which, as the Practitioner conceded, he could not blame on the banks, ACT Revenue, or his clients.[108] Indeed, in the Tribunal's view, it was in fact, the only concession he made and he had to make it because nothing else except the term 'inexcusable' could adequately describe the contents of the letter.

1. The Society contends that the Practitioner's claim not to have been in the country was a dishonest statement or a statement made recklessly with scant regard for the accuracy or indeed the truth of the statement in circumstances, which the Tribunal has noted above sits most uncomfortably with the Practitioner's duty of frankness and candour.

1. Having regard to the evidence which the Tribunal has found in relation to the grounds already proved, it is conduct which is characteristic of the Practitioner's attempts to blame others for his own shortcomings.

1. Not only was the Practitioner in Australia on 3 July 2009, he was in the office, working. Indeed, the Practitioner signed the locum agreement with Mr Y on 3 July 2009.[109] This agreement provided that his locum (while undoubtedly present and introduced to staff for some at least some of the time on 3 July 2009) would begin in earnest on 6 July 2009.

1. It beggars belief that the Practitioner could possibly have forgotten that he was still in the office as of this day, and indeed that he did not arrive at his destination until 5 days later on 8 July 2009.

1. Having regard to the evidence, the Tribunal regarded the Practitioner's submission that the letter of 3 July 2009 was the responsibility of his locum,

1. The true facts were readily at his disposal when he wrote this letter and indeed he had had a considerable amount of time to respond to the complaint of 20 July 2009, having been asked to do so on 29 July 2009 by the Law Society.[110]

1. The Society submitted that the Practitioner's oral evidence on this topic merely underscored his evasiveness and mendacity, as well as exemplifying his appalling approach to giving evidence.[111]

1. Having regard to the foregoing, the Society submitted that the Tribunal should be comfortably satisfied that this false representation could only have been deliberate. Alternatively, the Society submits that, if the conduct was not deliberate, it was at least reckless, given the ease with which Practitioner could have ascertained the true position, the importance of the letter, in the context of a duty of frankness and candour to the Society, and the closeness in time of the events.

1. More serious still is the Practitioner's attempted misleading of the Tribunal by the repetition, some considerable time later in February 2011, in his affirmed evidence, by adoption, of the falsehood that he was 'not in the country' on 3 July 2009. In particular the chronology following the above events is that:

• On 9 June 2011, the Society served a notice on the Practitioner returnable at the hearing, then set to commence on 9 August 2011, to produce his passport which was current in and around June 2009, and sought in the meantime a copy of the same.[112] The Practitioner failed to provide any such copy;
• On 16 June 2011, the Practitioner, quite inappropriately, and yet not for the first time, corresponded directly with the learned General President of the Tribunal and;
• Asserted that the passport was 'irrelevant to the matter at hand and also breaches my privacy and confidentiality' and that he 'opposed' the notice to produce;
• Agreed to show 'the page of my passport to the Law Society that proves I have travelled overseas during early July 2009, a fact I have stated previously. This should be sufficient for the present purpose'.[113]

1. Pausing, it is obvious to the Tribunal that the Practitioner was aware of what the passport truly showed, and that, far from being frank, even at this late stage, he was attempting to prevaricate both as to the facts and as to how he had characterised them.

1. On 17 June 2011 the Society requested a copy of the relevant pages of the Practitioner's passport indicating the period during which he was overseas in June/July 2009 for the present purposes.[114]

1. The Practitioner failed over the ensuing month to provide this material even though he had alleged that it would be 'sufficient'. The Society followed up the Practitioner by an email and, in response on 22 July 2011, he finally provided a copy of his passport pages indicating, as he stated in his covering letter, arrival at his overseas destination on 8 July 2009 and departure on 22 July 2009.[115]

1. The Practitioner attempted in his evidence to portray his ultimate 'disclosure' of having been in the country in his affidavit of 30 June 2011 as demonstrative of his frankness and candour. That a lawyer does not attempt to conceal or downplay the seriousness of his or her misconduct, responding in an honest and frank manner to the inquiries of the relevant professional body, tribunal or court 'may well demonstrate that he is a person truly to be relied on'.[116] That is simply not the case here. The Tribunal does not accept that assertion made by the Practitioner. In all of the circumstances of this case, that assertion made by him is specious. That is because, upon analysis, the contrary is the case.

1. The Practitioner's oral evidence and his tone, demeanour, and characteristic evasiveness, reinforces the conclusion that arises from the surrounding circumstances outlined above, namely that he engaged in a deliberate act of dishonesty, or, in the alternative, at the very least was reckless in making on his affirmation a false statement to the Tribunal.[117]

1. The Tribunal is comfortably satisfied, as to the submissions in relation to each of Grounds 4.1 and 4.2. The Tribunal finds them proved.

1. To attempt to mislead the Society, and then this Tribunal in affirmed evidence is, in each case, professional misconduct of a high order. The same is true of recklessly making so false a statement to the Society, and of recklessly giving false evidence in disciplinary proceedings, concerning the Practitioner and as to a material matter.

1. Either alternative (deliberate or reckless), each charge would justify a finding that the Practitioner is not fit and proper to engage in legal practice.[118]

1. Further, under the common law definition which section 387 encompasses, each charge (4.1 and 4.2) on either alternative of deliberateness or recklessness would reasonably be regarded as disgraceful and dishonourable conduct by practitioners of good repute and competency.[119]

1. The Tribunal had regard to the submissions made in relation to the Practitioner's credit in Schedule 1 to the submissions made by the Society and agrees with them. The Tribunal also had regard to the second round of written submissions made on behalf of the Society, but considered that, in view of its assessment of the Practitioner's second round of written submissions, it need not refer to them although, the Tribunal was assisted by them. The Tribunal finds all grounds alleged by the Society against the Practitioner proved. Moreover, the Tribunal agrees with the Society's characterisation of the Practitioner's conduct as being, in the first instance (breach of rules 1, 1.2 and 36.1), unsatisfactory professional conduct and, in the second instance (breach of rule 39.1), professional misconduct.

FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )

[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT & The Legal Practitioner 'Y' [2012] ACAT 40 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[2] Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 622 per O'Connor J; Weaver v Law Society of New south Wales (1979) ALJR 585 per Mason J: Wentworth v New South Wales bar Association [1992] HCA 24; (1992) 176 CLR 239 at 252 per Deane, Dawson, Toohey and Gaudron JJ; Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 270 per Deane J.

[3] New South Wales Bar Association V Meakes [2006] NSWCA 340 at [114} per Basten JA.

[4] (Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 622 per O'Connor J; Re a Legal Practitioner (1981) 55 FLR 405 at 423 (FC/ACT): Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486 at 492 per Sir Thomas Bingham MR)

[5] (Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486 at 493 per Sir Thomas Bingham MR; Sidney v Auckland District Law Society [1996] NZLR 431 at 434-436)

[6] (Ziems v the Prothonatory of the Supreme Court of New South Wales (1957) 57 CLR 279 at 286 per Dixon CJ; Re a Barrister and Solicitor (1979) 40 FLR 1 at 24-25 (FC/ACT))

[7] (De Pardo v Legal Practitioners Complaints Committee [2000] FCA 335; (2000) 170 ALR 709 at 724 per French J)

[8] Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 471 per Giles AJA; Attorney-General v Bax [1999] 2 Qd R 9 at 22 per Pincus JA.

[9] (Re Robb (1996) 134 FLR 294 at 330 (FC/ACT))

[10] Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609 at 625 per Isaacs J; Ziems v the Prothonatory of the Supreme Court of New South Wales (1957) 57 CLR 279 at 286 per Dixon CJ; Clyne v New South Wales Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 201-202 (FC))); Smith v New South Wales Bar Association (1992) 176 CLR at 256 at 270 per Deane J.

[11] R & T Thew Ltd v Reeves (no 2) [1982] QB 1283 at 1285-6 per Lord Denning MR.

[12] Council of the Law Society of New South Wales v Treanor [2009] NSWADT 115 at [17]; Council of the Queensland law Society Inc v Roche [2004] 2 Qd R 754 at [57] per McMurdo P; Quinn v Law Institute of Victoria [2007] VSCA 122 at [30]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441 per Mahoney JA.

[13] Re Evatt (1967) 67 SR (NSW) 236 at 238 (CA); Re a Barrister and Solicitor (1979) 40 FLR 1 at 18 (FC/ACT); Johns v The Law Society of New South Wales [1982] 2 NSWLR at 6 per Moffitt P; O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 211 per Kirby P, at 224 per Clarke JA; R v Solicitors' Disciplinary Tribunal [1988] VicRp 72; [1988] VR 757 at 770 (FC); Smith v New South Wales Bar Association (1992) 176 CLR at 256 at 270 per Deane J.

[14] Kerin v Legal Practitioners Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149 at 166 per Debelle J. See generally, 'Lawyers Professional Responsibility', Dal Pont, GE Law Book Company 4th ed 2010.

[15] [1938] HCA 34; 1938 60 CLR 336 per Dixon J (as he then was) at 368 and Rich J at 350.

[16] New South Wales Bar Association v Liversey [1982] 2 NSWLR 231 at 237 - 8 and the cases cited therein.

[17] Hannebery v Legal Ombudsman [1998] VSCA 142 at [22] per Tadgell J.

[18] Newfoundland Telephone Co v Board of Commissioners of Public Utilities [1992] No 1 SCR (4th) 623 at 636 per Cory J (SCC); Carver v Law Society of New South Wales (1998) 43 NSWLR 71 at 87, 99 per Powell JA; Roylance v General Medical Council (No 2) [1999] UKPC 16; [2000] 1 AC 311 at 319 (PC)

[19] Section 420.

[20] Section 428.

[21] see for example section 433 (2)(b) and (3).

[22] Paragraph 5(xv) page 5 of the Practitioner's written submissions in reply.

[30] See one example of such a theory at paragraph 52 of the Practitioner's written submissions in chief.

[32] Paragraph 51(x)-(xiii), page 25-27 of the Practitioner's submissions in chief.

[39] [2000] NSWCA 13 at [21] per Meagher JA.

[44] T482.1-T487.45-T492.45; T495.5-T498.25; T501.10-T506.30;T518.35-T518.40; T573.25-T475.25.

[45] T431.25; T588.10-T589.45; T592.35-T593.30.

[47] T281.25-T287.10 T417.15-T40; T422.1-T422.15; T650.1-T652.35.

[52] Ex A2, section 5.

[54] See Ms T's affidavit of 23 August 2011 at [4] - [5] ; CB 104; T 169.1-12.

[57] See: CB 32 - 33, being the original statutory declaration dated 3 June 2009, which on the evidence was cancelled by the Practitioner; CB 110 - 117, being the statutory declaration which on the Practitioner's own oral evidence was executed by the Complainants before him in his office on 5 June 2009 (T 313.25-45), and which, the Society contends, was lodged by the Practitioner's office on 23 June 2009 (being part of the material lodged at CB 107ff).

[58] CB 95 - 96 and CB 96A - 96 C, being the statutory declarations sworn in turn by Mr N and Ms T on 23 June 2009 which, contrary to the Practitioner's evidence, were not simply 'redone' but rather involved for the first time two separate statutory declarations which added a new paragraph about attaching a driver's licence, and this new attachment, but which, again, make no reference to, and do not attach, the Birth Certificate.)

[59] As concluded in section 4 of the joint expert report and as expanded upon in section 3 of that report (ExA2).

[68] CB 212, (likewise, there is a receipt for the Kaleen contract date 25 May 2009 - CB 213).

[72] T 523.35-45, and see generally on this topic T 513.40 - 523.45.

[73] See the Practitioner's affidavit of 30 June 2011 at [22]-[23].

[82] T209.5-35; 272.1-40; T280.10 - 281.5.

[83] T303.28-29 and see more generally T303.15-35.

[84] Ex A2, section 6.

[91] See further Ex A2, sections 6-7, which the Society adopted.

[95] Compare the correct cheque directions at CB 143.

[102] See Sections 5 85 (2) of the LP Act.

[116] New South Wales Bar Association V Levees [1982] 2 NSWLR 231 at 233 per Soffit P.

[118] See Section 387 (1) (i) of the LP Act.

[119] Council of Law Society of the Australian Capital Territory v The Legal Practitioner (Occupational

Discipline) [2010] ACAT 2 (1 February 2010) at [201] - [202].