1. At the hearing on 14 October 2013, the applicant was represented by counsel with the applicant's solicitor. The practitioner was not present, but by prior agreement was on the telephone. In another occupational regulation matter concerning the practitioner heard before me, he indicated that he was not present because he could not afford to come to Canberra for the hearing.
2. The tribunal considered medical reports dated 25 August 2013 and 7 September 2013 about the practitioner in the other matter. The reports indicated that the practitioner had been suffering a major depressive illness and elaborated on his present condition and the prospects for the future. It is not necessary to refer to the content of the reports in detail in this decision. Although the reports were not placed before the tribunal in any formal way, they were admitted without objection as relevant to the reason for the practitioner's non-attendance.
3. The reasons for allowing the practitioner to participate in the hearing by telephone and the difficulties for the proper hearing of the case were referred to in paragraph 47 of my decision in the matter of Council of the Law Society of the ACT v Legal Practitioner "D2" [2014] ACAT 6. It should also be noted that I enquired from the practitioner whether in the view of the content of the medical reports he felt able to participate in the hearing, and he confirmed that he did.
4. The practitioner sought an adjournment of the hearing on the basis that it should have been referred to mediation because of the substantial factual differences between the parties in terms of the calculation of the amounts owing. He also objected to the proposal to file a further affidavit from the complainant.
5. The affidavit from the complainant referred to in paragraph 26 above was in response to the provision to the tribunal by the practitioner of the PAYG summary report.
6. The practitioner also submitted that the tribunal does not have jurisdiction to make a finding about a failure to comply with a taxation obligation. The practitioner alleged that in essence, the complainant was seeking to resolve a workplace relations dispute through a complaint to the applicant regulatory body.
7. I refused the application to adjourn the matter. The provisions of the LP Act make it clear that conduct which may involve a breach of the taxation obligations of an employer, or which may be categorised as a workplace dispute, may constitute unsatisfactory professional conduct. I determined that the hearing should continue.
8. Even though the practitioner had not given any notice that he wished to cross-examine the complainant, the applicant arranged for the complainant to be available if required. The practitioner elected not to cross-examine her. I am therefore entitled to rely on her declaration and affidavit evidence as to the truth of the matters asserted. In his submissions, the practitioner sought to reflect on the accuracy of the complainant's declarations and affidavit. I refused to accept those submissions on the basis that he had not taken the opportunity to cross-examine the complainant and could not now dispute the accuracy of what she said.
9. While no objection was taken to the introduction of the medical reports referred to earlier, counsel for the applicant properly pointed out that it is not appropriate for a practitioner in a professional conduct case to not make himself available for cross-examination on the allegations. While the practitioner offered to give evidence on oath over the telephone, the difficulties in trying to do this by telephone without having the witness in the room are obvious. As counsel for the applicant noted, during the time that concerned these proceedings, the applicant was involved in extensive legal proceedings on his own account. This has been the subject of other proceedings before this tribunal.
10. Notwithstanding these proper criticisms of the failure of the practitioner to appear, I allowed him to make submissions in relation to the matters the subject of the complaint.

1. The definitions of unsatisfactory professional conduct and professional misconduct are set out in sections 386 and 387 of the LP Act.
   1. What is unsatisfactory professional conduct?

unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening 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.

Note See also s 389 (Conduct capable of being unsatisfactory professional conduct or professional misconduct).

(a) unsatisfactory professional conduct of an Australian legal practitioner, if 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 happening in connection with the practice of law or happening 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 suitability matters that would be considered 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.

1. The High Court case of Briginshaw v. Briginshaw [1938] HCA 34; (1983) 60 CLR 336, and the professional conduct cases that follow its authority, require me to be comfortably satisfied, having regard to the gravity of the matter, that the complaint has been made out. I note that an allegation of unsatisfactory professional conduct or professional misconduct is a serious matter for any practitioner and may result in a public record of that finding, fines or restrictions and in the most extreme cases an application to the Supreme Court in relation to the standing of the practitioner.

1. I am satisfied that a failure to promptly and accurately provide an employee with all the documentation required by Australian taxation legislation and a failure to forward amounts deducted from an employee's salary on account of taxation liabilities within the time required by the legislation, is conduct "happening in connection with the practice of law..." within the meaning of section 386 of the LP Act. If a practitioner employs a person in his or her practice, conduct in relation to the taxation obligations of the employer to the employee satisfies this requirement of the definition. This is to be contrasted with conduct which is of a purely private or personal nature. The fact that the conduct complained of may also contravene other legislation, such as income tax legislation or workplace relations legislation, does not of itself exclude the conduct from the definition of unsatisfactory professional conduct.
2. I am satisfied that the complainant gave the practitioner, at or about the time she commenced employment, all details including her tax file number, necessary for the practitioner to comply with his obligations. Had she failed to do so at that time, it was incumbent upon the practitioner as her employer to actively seek those details from her. If the necessary details are not provided, it is the employer's responsibility to obtain the details.
3. I am satisfied that the statement sent to the tribunal by the practitioner on 12 September 2013 and dated 20 November 2012, had not been supplied to the complainant before it was sent to the tribunal. It was not provided within the time required.
4. The insertion of the complainant's tax file number as "123456789" reinforces the view that I have come to, namely, that the practitioner did not know or enquire about the complainant's tax file number and inserted something just for the sake of completing the field.
5. Whether or not the statement was an accurate summary of the gross payments made to the complainant may be a matter of dispute between them: what cannot be disputed is that if tax was withheld by the practitioner as asserted in the summary, then on the undisputed evidence of the complainant, I am satisfied that the withheld tax was not paid to the Australian Taxation Office as required.
6. The practitioner acknowledged that he had failed to provide the certificate within the time required. Any finding of unsatisfactory professional conduct or professional misconduct requires me to be satisfied as to the elements of the offence as alleged by the applicant in its application. The practitioner disputed whether, in view of the medical reports referred to above, his failure amounted to a "reckless or intentional" failure as alleged in the application. It should be noted that these words do not form part of the statutory definitions set out above.
7. The practitioner disputed whether his conduct could be so classified in an exchange with me. I put to him, "the difficulties in your mind in satisfying yourself about what she should have been paid, meant that you couldn't issue a certificate at all and that is a factor which negates the recklessly or intentionally element of the offence?" The practitioner agreed.[2] He submitted that because of his debilitating health condition his capacity to deal with anything, let alone payment summaries, diminished.[3] He conceded that his conduct in this regard, did fall short of a standard of competence and diligence that a member of the public would expect of a reasonably competent legal practitioner.[4] He also acknowledged that at the time, he was not competent to conduct his own affairs.[5]
8. Having considered the evidence, together with the evidence in the other proceedings before the tribunal, I am not satisfied that the practitioner's illness was such that his actions were not at least reckless, if not intentional, or that his illness provides an excuse for his conduct. The practitioner was conducting other legal cases at the time. There was no evidence that he sought the assistance of his professional body to engage a manager, or that he sought assistance from some other person who could responsibly conduct his practice at a time when he was so unwell that he should not have exercised the powers of a practitioner holding an unrestricted certificate. I note the content of the medical reports referred to earlier, but there was no effort to produce any more detailed evidence about the effect of the practitioner's illness on his behaviour at the relevant time, nor were the medical practitioners who prepared the reports made available for cross-examination. Had the practitioner intended to rely on these matters in any formal way, he should have complied with directions and filed witness statements from those medical practitioners so that the applicant was on notice of them before the hearing and could have decided whether to call them for cross-examination.
9. Having regard to the findings set out in paragraphs 42 to 49 above, I am satisfied that the conduct of the practitioner has fallen 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 and that his conduct therefore constitutes unsatisfactory professional conduct. I note that the applicant also characterised the conduct in this way.[6] I am not satisfied that the conduct is such that it constitutes professional misconduct.
10. I am also satisfied that the practitioner breached rule 39.2 when he failed to provide the response required by the applicant's solicitor's letter of 4 March 2013. The Full Court of the Supreme Court has determined that it is unsatisfactory professional conduct for a practitioner to fail to respond to a requirement, when notified of the obligation to do so under the rules.[7] I am satisfied that in the facts of this case there has been unsatisfactory conduct as a result of that failure.
11. The tribunal orders that the practitioner be publicly reprimanded pursuant to section 425(3)(e) of the LP Act. There are no circumstances that warrant a private reprimand.
12. Pursuant to section 433(1) of the LP Act, the practitioner is to pay the applicant the costs of and incidental to the application at the full Supreme Court scale, and disbursements in full in an amount to be agreed or, failing agreement, as assessed by the registrar of the tribunal.

[1] This decision was previously anonymised and cited as Council of the Law Society if the ACT v Legal Practitioner "D1" [2014] ACAT 17 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.

[7] In the matter of DP and the Legal Practitioners Act 1970 [2005] ACTSC 78