1. On 13 May 2016, the respondent appeared before Nettle J in the SZUSH proceeding in the High Court. According to the respondent's evidence, the Application for an Order to Show Cause filed with Court included the following grounds:
   1. In Minister for Immigration and Multicultural and Indigenous Affairs v SGLB [2004] HCA 32; (2004) 207 ALR 12; (2004) 78 ALJR 992 (17 June 2004) The majority of the Court warned against the drawing of adverse inferences due to the existence of inconsistent statements which may have been made by the plaintiff. The Court stated that individuals should not be punished for the making of an inconsistent statement.
   2. In this case, the Refugee Review Tribunal used the existence of an inconsistent statement about one matter to form the basis for the denial of all of the plaintiff's claims. The fact that the plaintiff may have made an inconsistent claim about one matter does not mean that the plaintiff is making an inconsistent claim about another matter.
   3. The Refugee Review Tribunal has taken account of an irrelevant consideration, that is, the existence of an inconsistent statement when rejecting the claims of the plaintiff.
   4. The credibility of the plaintiff is an irrelevant consideration. When the tribunal engages in a process of the assessment of the plaintiff's credibility, this is an unlawful practice.[24]
2. The respondent's outline of submissions filed with the Court included the following submissions:
   1. The decision of the Refugee Review Tribunal in this matter contains a number of jurisdictional errors. The jurisdictional errors are those errors as enunciated by his Honour Justice Kirby in the SGLB case. That is, the Tribunal has drawn adverse inferences from the inconsistent statements made by the plaintiff at the Tribunal hearing. The fact that the plaintiff may have made an inconsistent statement does not mean that the applicant was not the subject of persecution. The plaintiff should not in the words of his Honour Justice Kirby be 'punished' for making an inconsistent statement.
   2. The Refugee Review Tribunal regularly ignores the rulings of the High Court in this regard. The Tribunal appears to be of the opinion that it can make findings about the plaintiff's credibility. The credibility of the plaintiff is however an irrelevant consideration and is also further evidence of a jurisdictional error.[25]
3. At the hearing before Nettle J on 13 May 2016, the respondent submitted:

Essentially, every decision of the Administrative Appeals Tribunal in the Refugee Review Division infringes the principles stated by his Honour Justice Kirby in SGLB. There is a consistent, constant assessment of credibility, there is never any assessment of the particular claims of the applicant and, as such, all decisions of the Refugee Review Tribunal - sorry, the Refugee Review Division in the Administrative Appeals Tribunal is now open to question.[26]

1. Considering that evidence, the Tribunal is satisfied the respondent made a submission to the Court that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa.
2. Nettle J rejected the respondent's argument and gave the following reasons in SZUSH v Minister for Immigration and Border Protection & Ors [2016] HCATrans 112 at pages 9 to 10, lines 313 to 340:

The complaint that the RRT committed jurisdictional error by deciding SZUSH's application for review on the basis of an assessment of SZUSH's credibility was dealt with at length in the Federal Circuit Court's reasons for judgment and nothing which has been said today casts any doubt on the correctness of the Federal Circuit Court's rejection of the complaint.

Contrary to SZUSH's contentions, it is not the law that the credit and reliability of an applicant's evidence is irrelevant in the determination of a review of an application for protection visa. Where the establishment of facts is dependent on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment (Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 ("MIMIA") at 21-22 [42] - [44] per Gummow and Hayne JJ).

No doubt, as SZUSH contends, refugee cases involve special considerations where credibility is in issue (MIMIA (2004) 207 ALR 12 at 33 [73(7)] per Kirby J, in dissent). As Kirby J observed in MIMIA, "There is no necessary correlation between inconsistency and credibility in such cases". It is necessary to keep in mind that there may be a host of ethnic, cultural, lingual, physical, behavioural and psychological considerations peculiar to refugees which, depending upon the circumstances of a given case, may explain inconsistencies that would otherwise be thought to reveal dishonesty. But, that said, it remains a process of evaluation for the tribunal of fact to determine what, if any, weight is to be placed on an applicant's version of events; and where, as here, there were many reasons to disbelieve an applicant's version of events it is not in error to reject it.

1. On 2 August 2016, the respondent appeared before Justice Bell in the MZAHH proceeding in the High Court. In his evidence to the Tribunal, the respondent tendered a document he said was his written outline of submissions in MZAHH but in fact appears to be an early draft. It makes no reference to credibility.[27] However, the respondent admitted that her Honour "rejected the [r]espondent's submission that the credibility of an applicant for review before the AAT is an irrelevant consideration".[28] On that basis we are satisfied that the respondent made a submission to the Court that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa.
2. Bell J rejected the respondent's argument and gave the following reasons in MZAHH v Federal Circuit Court of Australia & Ors [2016] HCATrans 177 at page 27:

The contention that the credibility of an applicant for review before the Tribunal is irrelevant to its determination appears to be based on a misreading of this Court's decision in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB. To the contrary, as Justice Nettle held in SZUSH v Minister for Immigration and Border Protection, where the establishment of facts depends on oral evidence, the evidence must be assessed and weighed in light of its apparent credibility and reliability and findings must be made according to that assessment.

1. On 24 August 2017, the respondent appeared before Bell J in the C7 proceeding in the High Court. According to the respondent's evidence to the Tribunal, his written Outline of Submissions filed with the Court commenced as follows:

At the heart of this matter are the comments of the majority of the Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB... In particular the comments of His Honour Justice Kirby. The comments of the Court are not as commonly misconceived the comments of the minority Court. The comments of His Honour represent the views of the majority of the Court. Further, the High Court has not derogated in any way from the comments of the majority in the SGLB case.[29]

1. After setting out the passage from Kirby J's dissenting judgment in SGLB, the submissions continued:

This is not a matter that should be remitted. The lower courts have consistently made errors of law in the course of reviewing the decisions of the Minister. His Honour Justice Kirby is of the view that the lower courts must be firmly told of the correct legal position. The lower courts have consistently ignored the comments of the High Court.

After an examination of many many such decisions, it is clear that the Minister and the Tribunal have adopted an overly formulaic approach to the jurisdiction. It would appear that the decision-maker has been instructed to examine the papers, find an inconsistency in the papers, and use such an inconsistency as a basis to refuse the visa...

1. In relation to assessment of credibility, the respondent submitted at paragraph 7:

Just to be clear, the visa applicant does not assert that the decisionmaker cannot engage in a process of credibility assessment. It is the visa applicant's contention that the process of credibility assessment must be a lawful process. That is, the decisionmaker cannot take irrelevant considerations into account when making a finding about the credibility of the applicant. The decisionmaker must have some evidence in order to base a finding about the credibility of the applicant. There is no necessary correlation between inconsistency and credibility.

1. Later, the respondent submitted at paragraph 10 that:

At no stage did the decisionmaker ask the applicant about the acts of persecution. When did this occur, what time did it occur, did anyone see you, did you go to the hospital, did you tell any of your friends about it. Instead the decisionmaker simply finds an inconsistency and uses the inconsistency as a basis to refuse the visa. This is an entirely unreasonable process.

1. The Law Society did not refer to the respondent's written Outline of Submissions but relied on the following exchange between the respondent and Bell J at the hearing:

MR FORD:...Now, the other reason why this matter should not be remitted is because this case and many thousands of other cases turned on the issue of credibility. In my submissions, your Honour, I pointed to the comments of his Honour Justice Kirby - in the SGLB Case - who made very strident and definite directions to the Court as to how they are supposed to deal with the issue of credibility.

HER HONOUR: Mr Ford, I think this submission is directed to a submission that you have previously put - I note on occasions amongst others in an application dealt with by his Honour Justice Nettle - just bear with me one moment.

HER HONOUR: Yes, that is the matter - in May of last year.

HER HONOUR: When his Honour dealt with what I was subsequently to observe appeared to be a misconception in the argument that you developed in SZUSH and later before me in MZAHH respecting the analysis in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB - the same argument that has been rejected by Justice Nettle and by myself on earlier occasions is the matter central to an aspect of the relief that you claim on this occasion. Is that so?

MR FORD: That is right, your Honour...[30]

I suppose in response to that I would say that I do not accept that my views on the matter are misguided. I do not accept that these are matters - the issues which are raised by his Honour Justice Kirby are just as pertinent today as they were when you dealt with this matter; in fact, they are even more problematic.

Unfortunately, the Tribunal and the Minister have continually ignored the protestations of Justice Kirby in this regard. While I accept that the predominant legal view is that the comments of Justice Kirby are in a minority, as I have indicated in my submissions, the majority of the Court in the SGLB Case did not derogate from or did not disagree with, and in a number of other cases that have subsequently dealt with his Honour's comments in SGLB they have not disagreed with the principles as enunciated by his Honour but they have disagreed on the facts of the particular matter.

So, the issue of credibility is an enormous issue, your Honour, and unfortunately the Tribunal and in particular the Federal Circuit Court seem to be condoning this approach that an inconsistency in the argument bases a finding that the applicant's claims are to be rejected. As his Honour Justice Kirby has indicated, the fact that there is an inconsistency does not form a basis for the rejection... of the claims.[31] [Emphasis in original]

1. It must be remembered that the issue the Tribunal must decide is not whether the respondent's submission to the Court about the process the AAT and Federal Circuit Court followed in assessing credibility of an applicant was sound, or whether the respondent's reliance on the comments of Kirby J in SGLB was well founded. The issue the Tribunal must decide is whether, as the Law Society has alleged, the respondent made a submission to the Court in the C7 proceeding that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. We are not satisfied that the respondent made such a submission. It is clear from paragraph 7 of the respondent's written Outline of Submission that the respondent was objecting to the way the decision-maker assessed the applicant's credibility and not to the fact that such an assessment was made.

1. On 24 August 2017, Bell J remitted the C7 proceeding to the Federal Circuit Court.
2. There the matter came before Judge Neville on 26 September 2017. The respondent appeared for the applicants, where he made an oral application to transfer the proceedings to Darwin. He informed the Court he had received instructions to make the application "about two days ago". In response to his Honour's question "How long has your client been living in Darwin?" the respondent answered, "Approximately six months". The respondent acknowledged that a formal transfer application was necessary. His Honour proposed the transfer application should be decided on the papers and ordered the applicants to file and serve a transfer application and written submissions by 10 October 2017.[32]
3. The respondent continued to act for the applicants at least for some time, but failed to file a transfer application or written submissions. He claimed in evidence to the Tribunal that this was because he was no longer instructed in the matter, although there is no evidence as to the date on which he says his instructions were withdrawn. He claimed he attempted to obtain his client's instructions, but his client did not return his calls. He also claimed he was telephoned by another unidentified solicitor who "had carriage of the matter and who advised that he would be able to lodge the necessary documents with the Court". The Tribunal does not accept the respondent's explanation. Inconsistently with his version of events, on 10 October 2017 the respondent filed an affidavit by the first applicant in support of the (oral) transfer application, in which the first applicant said he had lived in Darwin for four years. The respondent did not offer any explanation to the Tribunal why he was not constrained from filing an affidavit, but was constrained from complying with the Court's directions for filing a transfer application and written submissions. In fact, the respondent stated in written submissions to show cause why a copy of Judge Neville's reasons for judgment should not be referred to the Law Society, that the written submissions, in his view, were "otiose".[33] We find that the respondent failed to file submissions in compliance with the orders of the Court because he decided they were not necessary. His evidence that there were other reasons for his failure to file submissions is rejected.
4. The respondent failed to explain the discrepancy between the first applicant's evidence that he had lived in Darwin for a period of four years and the respondent's earlier statement to the Court that the period was approximately six months. In his show cause submissions to the Court, the respondent stated:

I note the assertion that there is some dispute as to the length of time the Applicant was said to have lived in Darwin.

My instructions were clear and the client informed me and I also informed the Court that it was 4 years in the Affidavit.

I have no personal knowledge of any lesser period but do agree that in error I said "6 months" when my instructions were that she had resided in Darwin for 4 years.[34]

1. On 2 March 2018, Judge Neville dismissed the C7 transfer application: C7A/2017 & Ors v Minister for Immigration & Anor [2018] FCCA 458. Some 19 paragraphs of his Honour's judgment, in a section headed 'Other Matters: the Conduct of the Applicant's Solicitor' were devoted to criticising the respondent's "conduct in the current matter, and in other matters before this Court",[35] including "his continued insistence on using as precedent a dissenting judgment of the High Court" (referring to Kirby J's comments in SGLB).[36] His Honour prepared that part of the Reasons for Judgment with a view to referring them to the Law Society.[37] Subsequently, the Registrar of the Court did so at his Honour's request.
2. The Law Society failed to explain what use the Tribunal could or should make of his Honour's comments or the respondent's admission that the comments were made. Ultimately, under pressure from the Tribunal to show its hand, the Law Society submitted that "the evidence establishing the facts set out in the facts statement are based on either the contemporaneous documents, the evidence of witnesses or admissions made by the respondent" and that it did not "rely on any findings of fact in the judgements [sic] to establish the facts for which the applicant contends".[38] The reasons for judgment in the C7 transfer application do not attribute to the respondent a submission made on that occasion that the credibility of an applicant is an irrelevant consideration. Although the Law Society's closing submissions asserted that the respondent had made such a submission, it referred to no evidence that he had done so.[39] It is difficult to understand why the allegation was made in the first place, considering the Law Society alleged the respondent failed to comply with orders requiring the filing of written submissions, and the transfer application was decided on the papers without oral submission.

1. On 4 June 2018, the respondent appeared before Farrell J in the AQF17 proceeding in the Federal Court. According to the respondent's evidence in the Tribunal, the Amended Application for Relief filed with the Court relied on the following ground (among others):
   1. The IAA has drawn adverse inferences from a number of inconsistencies. The High Court in the SGLB case criticised any attempt by the IAA to punish visa applicants for making inconsistent statements. Here the applicant is being punished for the making of an inconsistent statement. Even if an inconsistent statement exists, this does not of itself mean that the Applicant was not the subject of persecution. It is unreasonable for the IAA to draw adverse inferences from the making of an inconsistent.[40] [sic]
2. There is nothing in the Amended Application to suggest the respondent was continuing to maintain that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. To the contrary, the focus of ground 6 appears to be whether it was reasonable and logical for the IAA to disbelieve the applicant's claims of persecution based on identified inconsistencies in the applicant's evidence.
3. Farrell J referred to ground 6 in AQF17 v Minister for Immigration and Border Protection [2018] FCA 966 as follows:
   1. Without particulars, ground 6 of the notice of appeal takes issue with the Authority's reliance on inconsistency in AQF17's evidence to draw inferences adverse to AQF17's claims, characterising the inferences as "punishment" for the inconsistencies. He relies on the decision of the High Court in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB... As may be inferred from Mr Ford's written submissions to the Federal Circuit Court, he relies in particular on what was said by Kirby J at [73(7)] in his dissenting judgement as follows...
   2. Mr Ford has raised this argument in a number of matters without success...
   3. It is true that credibility findings are not beyond scrutiny and jurisdictional error may occur where such findings are unreasonable or without a logical, rational or probative basis or founded on an objectively minor matter...
   4. In their essentials, the Authority accepted AQF17's claims made in his entry interview concerning the incidents in 2007 and 2010. The differences between AQF17's entry interview account of the 2007 incident... and his subsequent accounts vary in significant ways which support the Authority's findings that AQF17's claims made after the entry interview were an "embellishment"...
   5. In my view, the FCC Judge did not err when he found that the inconsistencies identified by the Authority... cannot properly be characterised as minor or insubstantial in most instances...
   6. In his submissions, Mr Ford reiterated a number of times the argument that it is neither reasonable nor logical for the Authority to conclude from the identified inconsistencies in AQF17's evidence that he was not persecuted. That submission cannot be accepted: the inconsistencies in the evidence went to the basis of his claims to fear persecution.
4. In his response to the Statement of Facts, the respondent admitted the Law Society's allegation that in the AQF17 proceeding "the Respondent made an argument based on Kirby J's comments in Minister for Immigration and Multicultural and Indigenous Affairs v SGLB (2004) 207 ALR 12 to the same effect as the argument referred to by Judge Neville in the C7 Judgment".[41] Exactly what that means is unclear. It is true the respondent's submissions referred to Kirby J's comments in SGLB as appears from what Farrell J said in AQF17, but it was not in the context of a submission that the credibility of an applicant is an irrelevant consideration in the determination of a review of an application for a protection visa. We are not satisfied that the respondent made such a submission on that occasion.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 of the Rules by repeatedly making an argument without merit.
2. The Law Society alleged the respondent raised an argument to the effect that the credibility of an applicant is an irrelevant consideration, based on comments by Kirby J in Minister for Immigration and Multicultural Affairs v SGLB [2004] HCA 32 at [73], in five proceedings spanning a two-year period from May 2016 to June 2018.
3. The respondent's closing submissions stated:

The respondent[']s conduct is admitted and reflects his dogmatic, albeit unsubstantiated certainty, regarding the legal principles underpinning the cases he presented however it is noteworthy that multiple other grounds were relied upon in the cases referred to.[42]

1. The evidence, however, is to the contrary. The evidence establishes that the respondent did so twice only: on 13 May 2016 in the SZUSH proceeding before Nettle J and on 2 August 2016 in the MZAHH proceeding before Bell J. It is clear the respondent's submissions in the SZUSH and MZAHH proceedings reflected his misunderstanding of the effect Kirby J's comments in SGLB.[43] However, the allegation that the respondent made the same submission in the C7 transfer application was unfounded.[44]
2. The respondent's submissions in the C7 proceeding before Bell J and the AQF17 proceeding before Farrell J relied on SGLB in support of the proposition that the process of credibility assessment was flawed because it relied unreasonably on inconsistencies in an applicant's account as a basis for disbelieving claims of persecution. This is not the same as saying that credibility is irrelevant.[45]
3. The Tribunal notes that Justice Kirby's comments in SGLB continue to be cited in support of the proposition that perceived inconsistencies or embellishments in particular aspects of an applicant's evidence should not be transformed impermissibly into a finding that the applicant's claims of persecution are either wholly or partly untrue.[46]
4. Rule 4.1.1 requires a solicitor to act in the best interests of the client in any matter in which the solicitor represents the client.
5. Rule 4.1.3 requires a solicitor to deliver legal services competently, diligently, and as promptly as reasonably possible.
6. Rule 5 provides that a solicitor must not engage in conduct, in the course of practice or otherwise, which demonstrates that the solicitor is not a fit and proper person to practise law, or which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute.
7. We find the charge that the respondent breached all or any of these rules is not proved.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 of the Rules by failing to comply with orders of the Court for the filing and service of a transfer application and written submissions in the C7 transfer application.
2. We find the charge that the respondent breached rules 4.1.1 and 4.1.3 proved.[47]

1. The issue is whether the respondent breached rules 19.1 and/or 19.2 of the Rules and his common law duty of honesty and candour to the Court in the C7 transfer proceeding, by making a statement to the Court dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity, or if the statement was made mistakenly, failing to take steps to correct the misleading statement.
2. Rule 19.1 states that a solicitor must not deceive or knowingly or recklessly mislead the court.
3. Rule 19.2 states that a solicitor must take all necessary steps to correct any misleading statement made by the solicitor to a court as soon as possible after the solicitor becomes aware that the statement was misleading.
4. The Law Society did not establish that the respondent knew, when he told the Court that the applicant had lived in Darwin for six months, that the statement was false or that he was recklessly indifferent to its truth or falsity. However, the evidence supports a finding that the statement was made carelessly. Although the first applicant's affidavit deposed to the true facts, in the Tribunal's view it neither explained nor corrected the respondent's earlier misleading statement. Rather it exposed an apparent inconsistency in the first applicant's position that remained unexplained.[48]
5. We find the charge that the respondent beached rule 19.2 and his common law duty of honesty and candour to the Court proved.

1. In March 2015, Ms O consulted a migration agent, Ms Melany Ramos, in relation to an application for a protection visa. In early April 2015, Ms O applied to the Minister of Immigration and Border Protection (the Minister) for a protection visa. On 10 November 2016, a delegate of the Minister refused the application. Ms O was notified of the decision by email the same day. Pursuant to section 412(1)(b) of the Migration Act 1958 (Cth) and regulation 4.31 of the Migration Regulations 1994 (Cth), an application for review of the decision had to be made to the AAT within 28 days after Ms O was notified of the decision. The period within which to do so ended on 8 December 2016.
2. Ms Ramos claimed she completed an online application for review of the decision late in the evening on 7 December 2016 and lodged it with the AAT by pressing the 'Enter' button on the screen. On 9 December 2016 - i.e., the day after the time limit to lodge the application expired - she realised a problem with her IT system had prevented the application from being uploaded. She immediately prepared and lodged another application online. On 12 December 2016, the AAT acknowledged receipt of the application lodged on 9 December 2016.
3. On 23 January 2017, the AAT determined it did not have jurisdiction to hear the application for review of the decision because it was filed out of time. Ms Ramos received notice of the AAT decision on 25 January 2017.

1. The evidence is not clear as to what happened next. According to an affidavit Ms Ramos swore on 10 July 2017 (which we discuss in detail later):

On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn't able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assist in the case of [Ms O]. Unfortunately a Migration Lawyer said yes to represent [Ms O] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who said that he will represent to [Ms O] but he took so much time and he did not lodge the application to the Court.[49] [All errors in the original]

1. Ms Ramos said, in evidence to the Tribunal, that the first migration lawyer, whom she claimed initially agreed to represent Ms O but later said 'no', was a Mr P.[50]
2. Ms Ramos identified the "second Migration Lawyer" as Mr D in correspondence to the Law Society.[51]
3. Her first contact with Mr D was by email on 14 February 2017. After introducing herself, she described Ms O's circumstances briefly, including that her bridging visa was due to expire on 20 February 2017 and that this was the last day to file an application in the Federal Circuit Court (which apparently was a pre-requisite for Ms O to be eligible to apply for a further bridging visa). Ms Ramos asked whether Mr D would represent Ms O, noting that Ms Ramos would be his client and would be responsible for payment of his fees. She requested him to forward his fee agreement and bank account details.
4. There were various telephone and email communications between Mr D and Ms Ramos in the following fortnight. It appears Ms Ramos contacted her professional indemnity insurer because she forwarded an email from the insurance broker to Mr D on 22 February 2017.[52] On 23 February 2017, Ms Ramos wrote to Mr D that "I am a bit worry (sic) because tomorrow her [Ms O's] BVE [bridging visa class E] would be due and she does not have any more argument to get another BVE" and sought advice "if her application will be lodge (sic) tomorrow?" Mr D responded by asking "Will the insurer agree to cover your exposure to High Court costs? You need to find out". Ms Ramos replied that she would enquire tomorrow and asked for an estimate of the costs and, "on which grounds will I request for another BVE?"[53]
5. In the early afternoon on 27 February 2017, the insurance broker notified Ms Ramos of the insurer's response:

We have not been notified of any claim for compensation having being [sic] made by the insured's client as a result of the insured's failure to lodge the application with [sic] the specified time period. The potential claim, if made, is one for a loss of opportunity to have had the original decision (by the delegate of the Minister for Immigration and Border Protection) reviewed by AAT.

At this stage the insuring clause has not been triggered as we are not aware that a Claim has been made against the insured by [Ms O]. To improve her client's position the insured has already instructed a solicitor from [Mr D's visa agency] to take her client's case to the Federal Circuit Court.

We will at this stage treat this matter as a notification of a circumstance which may give rise to a claim against the insured. Please keep us advised of all developments.[54]

1. Later that afternoon, Ms Ramos forwarded the email to Mr D and said:

Please find below about the response from the insurance company, please let me know what I would do next; please remember [Ms O] Visa is only until this Friday otherwise she would be in high risk to be in detention because she does not have a case in process nor a ticket to departure from Australia. I will highly appreciate your opinion about this situation.[55] [All errors in the original]

We will represent your client-but note our contract for services will be with you, and your client will need to be aware that the costs awarded to the Minister can be very high if the case is referred to a court of three, five or 7 judges (as opposed to one judge). Will the insurance company cover those costs-does your client need to put in a claim first-and then the insurance company sees how the negligence can be cured (by way, for example, of a court case).[56]

1. Later in the evening on 27 February 2017, Ms Ramos wrote to Mr D:
   1. I am accepting the contract will be with me/services, (as we are responsible for miss the AAT date) and my client will aware of the costs, and the costs for the Minister.
   2. Could you provide me a draft how my client put in the claims (normal letter or statutory declaration) and what information from [Mr D's firm] must be sent to the Insurance company?
   3. Do you have any idea how much will be cost of your representation and/or if I have to give your representation cost to the insurance company?[57] [All errors in the original]
2. On 28 February 2017, Ms O lodged a claim under Ms Ramos' professional indemnity insurance policy:

Ms Melanie Ramos missed to lodge my application to the Administrative Appeals Tribunal (AAT), on my behalf therefore I am in a disadvantage position, and I seek for advice with a solicitor to represent me at the Federal Circuit Court. Mr [D] from [Mr D's firm] he had accepted to represent my case at the FCC.

Due to I am in a Bridging Visa E, we are urged to get your response as soon as possible, and my BVE is due on this Friday, 3 March 2017.[58] [All errors in the original]

1. Although this and earlier communications from Ms Ramos referred to commencing proceedings in the Federal Circuit Court, it appears Mr D considered that only the High Court had jurisdiction to review the delegate's decision to refuse Ms O's application for a protection visa.[59]
2. In the morning on 1 March 2017, Mr D advised Ms Ramos:

We would charge set professional fees $20,000 plus GST for the High Court case, if it is heard by a single judge. You must also pay for all extras, at cost (High Court application fee, hearing fee, hotel for one night and economy airfare return). Note if the case loses, the Minister's costs could be higher than our costs, especially if a Senior Counsel/Queen's Counsel is appointed to act for the Minister. Your client needs to be aware of that and she has to agree that we can act for her in the High Court, being aware of her exposure to costs. I presume you would have some agreement with her to cover her costs.[60]

1. Ms Ramos replied by email sent shortly before 5 pm on 1 March 2017:

[Ms O] had tried to talk to you but it was not possible.

She in her concerns about this situation went to see a solicitor in Canberra; he rang me, Hugh Ford, I did explain to him what happened and amongst other things that we talked, he suggested to lodge the Ministerial Intervention, which we know the it may not be successful due to the circumstances, and then applied to the circuit court??, also he said that is better to withdrawn Matilda's Insurance complaint against me because the Insurance company will report me to MARA and most possible I will lose my license that I have since 1998. I worry about because this in my only income and I am a sole parent. I am trying to be justice, and honest with Matilda.

Could you give your opinion about it, please.[61] [All errors in the original]

I am not prepared to discuss what Hugh Ford says. I have informed you of what I think should be done.[62]

1. In the afternoon on 2 March 2017, Ms Ramos wrote to Mr D:

Due to the Matilda is so worry about her BVE, and she is not sure that you will represent her, she has decided to give her case to another solicitor who will represent her tomorrow at court initial process.

I personally highly appreciate all your instructions and communication provided to me.[63] [All errors in the original]

What were Ms Ramos' instructions to the respondent?

1. Ms O went to see the respondent in Canberra on 1 March 2017 and Ms Ramos (who lived in Sydney) spoke with him by telephone the same day. The next day Ms Ramos forwarded copies of her email correspondence with Mr D to the respondent, including the initial email sent on 14 February 2017.
2. Whatever instructions Ms Ramos gave the respondent, they did not include instructions that Mr D had been assisting her in relation to the AAT matter before the AAT made its decision.[64] Clearly, Mr D was not involved at that time.
3. On 6 March 2017, the respondent filed an application in the Federal Circuit Court on behalf of Ms O seeking judicial review of the AAT decision and an extension of time for filing the application in the Court. The respondent certified there were reasonable grounds for believing the application had a reasonable prospect of success pursuant to section 486I of the Migration Act 1958 (Cth). In support of the application the respondent filed an affidavit in which he deposed:[65]
   1. That on 1 April 2015 the applicant lodged an application for a protection (subclass 866) visa.
   2. The delegate of the Minister for Immigration made a decision to refuse the application on 10 November 2016.
   3. The applicant had to submit her review application within 28 days from the date of the decision.
   4. The Migration Agent of the applicant Ms. Ramos filed an online application on the applicant's behalf with AAT.
   5. Ms. Ramos prepared and filed the application but due to the malfunctioning of the IT system in her office, the application did not go through. Ms. Ramos was satisfied and confident that the AAT had received the application. But later it came to her notice that the application filed from her office was not received by AAT. She lodged another application but the AAT refused the application on the basis that it was out of time.
   6. The AAT asked Ms. Ramos to show the evidence that the application was filed on time and that the IT system in her office had problems. Ms. Ramos provided the evidence but the AAT refused to accept Ms. Ramos's evidence and did not accept the application. Just to be clear, the assistant pushed the button on the computer and the application was lodged.
   7. The applicant's Migration Agent tried her best to resolve the issue and requested another Solicitor [Mr D] from...Lawyers to file the application on the applicant's behalf.
   8. The decision of the AAT is attached at "Annexure A". [Emphasis added]
4. The Law Society submitted that the respondent asserted in paragraph 7 that Ms Ramos had requested Mr D to file an application in the AAT on Ms O's behalf (rather than in the Federal Circuit Court). The Law Society submitted the respondent made the statement in paragraph 7 knowing it to be false or alternatively with reckless indifference as to its truth or falsity.
5. The respondent accepted that the statement in paragraph 7 was incorrect, but for a different reason. He submitted that "the respondent had all of the material before him but for reasons that are not entirely clear reached the conclusion that Mr D was assisting Ms Ramos with an application at the FCC".[66]
6. The meaning of paragraph 7 is a matter to be determined objectively. We do not accept that it bears the meaning the Law Society seeks to give it. The beginning of the sentence says the applicant's migration agent "tried her best to resolve the issue". Plainly "the issue" refers to the late filing of the application in the AAT due to an IT malfunction described in paragraph 5. The migration agent's attempts to resolve the issue are those described in paragraph 6. In that context the migration agent's request for another solicitor "to file the application on the applicant's behalf" can refer only to something done in furtherance of the migration agent's attempts to resolve the issue after her attempts to persuade the AAT had failed. On a plain reading of paragraph 7, the "application" Mr D was asked to file refers to an application in the Federal Circuit Court and not an application to the AAT in November or December 2016 as the Law Society alleged.
7. This is consistent with Ms Ramos' emails to Mr D copied to the respondent on 2 March 2017. It is consistent with the insurance broker's email to Ms Ramos on 27 February 2017 which said, "To improve her client's position the insured has already instructed a solicitor from [Mr D's visa agency] to take her client's case to the Federal Circuit Court". It is consistent also with Ms O's insurance claim on 28 February 2021 which said "I seek for advice with a solicitor to represent me at the Federal Circuit Court. Mr [D] from [Mr D's firm] he had accepted to represent my case at the FCC".
8. Against this is the respondent's evidence in cross-examination where he said:

So, what you were - what you were intending to convey by paragraph seven is that Ms Ramos had requested the assistance of Mr [D] in making the AAT application on behalf of [Ms O]. Is that correct?--- Yes.

Do you now accept that Ms Ramos did not ask Mr [D] to file an application in the AAT on behalf of [Ms O]?--- Are you asking me today?

Yes?--- Yes, it would appear that that was the case. It would appear that Ms Ramos did not ask Mr [D] to help her with the AAT application.

So, do you accept now that what is stated in paragraph seven of your affidavit of 6 March 2017 is untrue?--- Well, at the time when I signed the affidavit on 6 March 2017, I believed it to be true, that was my honest belief, and that's why I put it in there.

Can you answer my question, please, Mr Ford?--- The answer is no, I don't accept that that's incorrect.

Mr Ford, if you could please listen to my question, I made it very clear to you that I am asking you for your understanding now?--- Yes.

And what I am asking you is do you now accept that what is stated in paragraph 7 of your affidavit of 6 March 2017 is untrue?--- Yes.[67]

1. We consider the respondent's admission about the meaning he intended to convey by paragraph 7 is the product of reconstruction, rather than genuine recollection as to his state of belief or intention at the relevant time. We discuss the respondent's evidence about his instructions in detail later in these reasons.
2. First it is necessary to refer to the submissions the respondent prepared on 30 March 2017 in support of the application. The submissions were filed the next day. We reproduce them in full (with immaterial exceptions):[68]
   1. The applicant applied for a visa. The application was refused. The applicant had a right of review by the Administrative Appeals Tribunal provided the application was made within the prescribed period. The applicant did not however get her application to the Tribunal for the review of the decision within time. The applicant cannot now seek the review of that decision by the Tribunal because the applicant is out of time.
   2. The Tribunal has made a decision that the applicant is out of time in which to seek the review of that decision. It is this decision, that is, the decision of the Tribunal that the application is out of time which is now the subject of an application to the Federal Circuit Court...
   3. The applicant applied to the Federal Circuit Court for the review of the Tribunal decision...within time. The applicant sought the review of the Tribunal decision within the thirty-five-day period which is prescribed.
   4. This means that Section 477 of the Migration Act does not raise itself in this case. Section 477 applies only to decisions of the Tribunal and not the primary decision. A decision was made by the Tribunal, and the applicant has applied to seek the review of that decision within time.
   5. In this case, the applicant had a Migration Agent who was representing her at the time. Her name is Melany Ramos. Ms Ramos was well aware of the time period in which to seek the review of the decision by the Tribunal. The applicant was well aware of the time period in which an application for the review of the decision of the Tribunal must be made.
   6. The agent was however sick. She had a severe back problem and was unable to process the Tribunal application within time. The agent contacted a well-respected Solicitor/Migration Agent who is known as [Mr D]. Mr [D] was well aware of the time period in which to seek the review of the decision by the Tribunal. Unfortunately, Mr [D] was unable to get the papers into the Tribunal within the prescribed period.
   7. Given the above, Ms Ramos attempted once again to lodge the application on the last day for making an application to the Tribunal. Ms Ramos went online and attempted to lodge the application. She pushed the button which is called 'enter' and the application was apparently lodged.
   8. Ms Ramos did not hear anything back from the Tribunal concerning the application. As far as she was concerned, she thought that the application had been lodged within time and there were no problems. Ms Ramos contacted the Tribunal in order to find out the status of the application, and the Tribunal advised her that no such application had been made, and that now the applicant was precluded from making an application because the applicant was statute barred.
   9. The applicant is now seeking a Declaration from the Court that the application which was made to the Tribunal was a valid application, and further, that the Tribunal is now under a statutory obligation to assess that application.
   10. If necessary, Both Ms Ramos and Mr [D] would be prepared to put on an affidavit attesting to the situation.
   11. In the light of the above, it would not in my opinion be appropriate for this matter to be dealt with on the papers. [Emphasis added]
3. Paragraph 6 claimed that Mr D was "unable to get the papers into the Tribunal within the prescribed period". This was a reference to filing an application in the AAT for review of the Minister's decision to refuse Ms O's visa application, the time for which expired on 8 December 2016. Paragraph 10 claimed that Mr D was prepared to give evidence attesting to those circumstances.
4. In early July 2017, the respondent prepared a draft affidavit for Ms Ramos, which said in part:
   1. At the time [Ms O] came to see me, there was approximately 10 days in which to commence proceedings in the Administrative Appeals Tribunal.
   2. Given that I was sick, I decided to enlist the support of another migration agent who is known as Mr [D]. I was hoping that Mr [D] could lodge the papers with the Administrative Appeals Tribunal within the prescribed period of time.
   3. Unfortunately, Mr [D] was unable to lodge the papers within the prescribed time.
   4. On the last day when the application was to be lodged with the Tribunal, even though I was sick, I lodged the application for the review of the decision with the Tribunal. The application was lodged electronically. That is, online.[69]
5. Clearly, whatever the respondent meant by paragraph 7 of his 6 March 2017 affidavit, several weeks later when he prepared the submissions and several months later when he prepared Ms Ramos' draft affidavit, he appeared to be operating under the mistaken belief that Mr D had some involvement in the failure to lodge the application in the AAT for review of the delegate's decision to refuse Ms O's visa application. We say 'appeared to be operating' because whether the respondent held that belief at relevant times, and if he did, what was the source of the belief and whether there were reasonable grounds for it, are important issues.
6. The Law Society submitted that the respondent made the statements in paragraphs 6 and 10 of the submissions without instructions, knowing the statements were false or with reckless indifference as to their truth or falsity.
7. A difficulty the Tribunal saw with this part of the Law Society's case was the lack of any affidavit evidence from Ms Ramos deposing to her instructions to the respondent. Further, it appeared the Law Society did not intend to call her as a witness. The problem was that Ms Ramos had sworn an affidavit on 10 July 2017 in support of Ms O's application in the Federal Circuit Court deposing to the following matters at paragraph 17:

On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn't able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assist in the case of [Ms O]. Unfortunately a Migration Lawyer said yes to represent Ms [Ms O] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who said that he will represent to [Ms O] but he took so much time and he did not lodge the application to the Court.[70] [All errors in the original]

1. This begged the question as to the identity of the two "Migration Lawyers" and the nature of their involvement. It also begged the question whether Ms Ramos had said something to the respondent about the involvement of either or both lawyers that may shed light on his conduct - specifically, whether what the respondent said about Mr D's involvement at the AAT stage was the product of misunderstanding, or a deliberate untruth as the Law Society alleged.
2. Mr D referred to paragraph 17 of Ms Ramos' affidavit in an affidavit he affirmed on 3 October 2017 where he said:

If the 'second Migration Lawyer' that Ms Ramos refers to in her affidavit (at paragraph 17) is meant to be my firm or myself personally, I confirm that my firm (and including myself) was never retained to act for the Applicant.

Ms Ramos states that the lawyer "took so much time and he did not lodge the application to the Court". Assuming Ms Ramos means my firm (and including myself), such statement is patently false, if she means that we were retained and did not lodge a judicial review application in time.[71]

1. The Law Society provided a copy of Mr D's affidavit to Ms Ramos as part of its investigation and asked her to provide all emails and file notes supporting what she said in paragraph 17 of her affidavit.[72] Ms Ramos responded as follows:

In this paragraph, I want to give my apologies to Mr D, because under any circumstances I want to implicate Mr D in his awkward matter; my apologies to the lack of meaning of those words that I used, but never wanted to involve negatively his attention paid to [Ms O's] case.

TO THE CONTRARY, I highly appreciate his time gaving me advice how to deal with a court case, because I never being involved in a situation like that; obviously I requested for his professional services but before to agree with he asked me for, the refusal decision record, a translations of verbal interview held at the the Department of Immigration by translated by professional services, which took some time.

Then explained to me about his professional fees, court costs, and other expenses, also he did explain if the case file, the applicant (in this case my services) must pay the the Ministerial Lawyers; and other cost, so I decided to open my professional indemnity insurance to make sure to cover all the expenses, but it took some time to deal with the Insurance Company as well.

Now reading what I wrote, it was incorrect wrote "HE TOOK" it should said "IT" TOOK SOME TIME THE whole MATTER...and obviously [Ms O] was under so much pressure from the Department of Immigration in relation to the BVE to stay lawful in Australia, according to her the Department will put her in detention if she does not have an application in process.

Then I sent an email to Mr D explaining her decision to take Mr Ford services, and I thanking him for his attention to this matter - so THAT IS WHAT I MEANT HE DID NOT LODGE THE APPLICATION TO THE COURT. [All errors and emphasis in the original] [73]

1. The fact remains that on a plain reading of paragraph 17 of Ms Ramos's affidavit, it creates the false impression that the second migration lawyer had agreed to represent Ms O and that the delay in filing the application in the Federal Circuit Court (which necessitated the application for an extension of time) was his fault. Whether the false impression was deliberate, careless, or the product of poor language skills was never tested.
2. At the final directions hearing the Tribunal, constituted at the time solely by Senior Member Orlov, remarked on the absence of evidence from Ms Ramos and the possibility that her credit may be in issue. The Law Society's response was to obtain an affidavit from Ms Ramos sworn on 15 March 2021 (the day before the hearing) and arrange for her to be available for cross-examination.
3. Ms Ramos' affidavit, which became exhibit I, was carefully drafted, evidently by a lawyer. In it Ms Ramos responded to the respondent's 5 March 2021 affidavit (exhibit 3). She denied meeting with the respondent at his office on 3 March 2017. She said her first meeting with him was shortly before the hearing in the Federal Circuit Court on 19 July 2017. Ms Ramos denied ever saying to the respondent words to the effect of "I asked [D] to help in relation to the AAT application, which I attempted to file on behalf of Ms O in December 2016". She also denied ever asking Mr D to provide an affidavit or telling the respondent that Mr D was prepared to do so. Ms Ramos did not, however, give an account of her instructions to the respondent. Nor did she give any explanation for what she said in paragraph 17 of her affidavit filed in the Federal Circuit Court.
4. The Law Society submitted that Ms Ramos presented as a careful and honest witness who had no interest in the outcome and was anxious to assist the Tribunal. It was said that her evidence was corroborated by documents and objective facts, and the Tribunal was invited to accept her evidence in its entirety. However, her evidence was not seriously tested and the implications that might be thought to arise from some of her responses to the Law Society's letters, remained unexplored.
5. In the end the respondent admitted that Ms Ramos did not instruct him that Mr D was assisting her in relation to the AAT matter before the AAT made its decision. We accept that she did not do so. However, the Law Society alleged that the respondent made statements about Mr D's involvement from the very beginning knowing they were false or with reckless indifference as to their truth or falsity. But what would prompt him to do so? What possible motive could he have? It defies logic that the respondent would invent a false factual narrative, out of the air so to speak, and later invite Ms Ramos to depose to facts in an affidavit he knew were false, and that he knew Ms Ramos would know were false. The allegation that the respondent lied about his instructions to the Law Society and the Tribunal, is an entirely different matter. The motive to lie then is obvious.
6. The question that remained unanswered by Ms Ramos' evidence was what did she say to the respondent about Mr D's involvement? Did the respondent misunderstand his instructions where, by his own admissions, the respondent's conduct generally demonstrated carelessness, laziness, a lack of diligence and a dogmatic certainty that whatever he said was correct?[74] Or was he, as the Law Society submitted, dishonest and a liar?
7. As Lord Diplock said in Horrocks v Lowe,[75] in his Lordship's classic speech explaining the common law principles of qualified privilege:

In ordinary life it is rare indeed for people to form their beliefs by a process of logical deduction from facts ascertained by a rigorous search for all available evidence and a judicious assessment of its probative value. In greater or in less degree according to their temperaments, their training, their intelligence, they are swayed by prejudice, rely on intuition instead of reasoning, leap to conclusions on inadequate evidence and failed to recognise the cogency of material which might cast doubt on the validity of the conclusions they reach. But despite the imperfection of the mental process by which the belief is arrived at it may still be "honest," that is, a positive belief that the conclusions they have reached are true.

1. We turn now to consider what the respondent said were his instructions.
2. In his affidavit filed on 25 November 2020 (exhibit 1) the respondent deposed that Ms Ramos and Ms O came to see him on 1 March 2017 and annexed a diary entry for that day that said "5 PM MATILDA".[76] However, he did not mention his instructions.
3. The respondent affirmed a second affidavit on 5 March 2021 (11 days before the hearing) in relation to application OR 13/2020. A document annexed and marked 'I' purportedly contained file notes relating to Ms O's matter.

Matildas matildas arrives 8.20am I see her at 9.02am sign 1005 and she will now go and lodge the papers. She is scared??

10.58am talked to Zac about matildas deport give matildas a bv until Monday and then we can prepare the papers for Monday [77] [All errors in the original]

(b) The file note for 7 March 2017 said: "Rang matilda 11.22 am".[78]

(c) The file note for 20 March 2017 said:

10am [Ms O] went to fcc and sorted consent orders[79]

9am Went to law society this morning and Neville.

(e) The following 'diary entries' appeared on the next page:

17/2/17 Ramos and [D] have further discussions with each other.

1/3/17 Diary entry Ramos and [Ms O] come to see me. Ramos tells me that [D] has been helping her with the matter and he has let her down. She had been sick and that she was relying on Mr [D] to help her lodge the AAT application. We talked about the lodging of the Application for the review of the matter by the AAT and that she had pushed the button on the last day in which to seek the review of the decision.

2/3/17 Diary entry Ramos and [Ms O] came to see me again. There were further discussions. We discussed the same issues as above.

3/3/17 Diary entry [Ms O] about making an application for a BVE.

8/3/17 Diary entry [Ms O] drops of Form 956 for completion.

30/3/17 Diary entry. [Ms O]. Submissions to the Court lodged.

18/4/17 Diary entry [Ms O] Respondent to file papers.

1/5/17 Diary entry.[80] [All errors in the original]

1. Several features should be noted. First, the position of the 'diary entries' at the end of the document suggest they are not part of a running record of contemporaneous file notes but were added later. Second, the entries for 14, 17 and 27 February 2017 refer to communications between Ms Ramos and Mr D that predate the respondent's involvement. Third, the content and style of the 'diary entries' is markedly different to the cryptic content and style of other, apparently contemporaneous, file notes bearing similar dates.
2. The respondent provided an "electronic file record" of the matter to the Law Society on 6 March 2018.[81] Comparing that document with Annexure 'I' certain features stand out. The original does not include entries for 3, 7 and 20 March 2017 that appear in Annexure 'I'. The original includes many entries dated from 19 April to 4 May 2017 and in July 2017 that are not in Annexure 'I' although it is difficult to determine whether any of them relate to the matter. The entry for 4 July 2017 in the original includes additional (although apparently irrelevant) information compared to what appears in Annexure 'I'. The original includes an entry for 15 August 2017, referring to the preparation of submissions and filing of contentions of fact and law in the Ms O matter, that is missing from Annexure 'I'. The original includes an entry for 13 September 2017, only the first line of which appears in Annexure 'I'. Immediately after the entry for 13 September 2017 in the original is an entry for 14 September which says "[Ms O] sees me at 8.45am appeasl (sic) to the FCC. Consent. Bve stuff". In Annexure 'I', the entry for 14 September 2017 is replaced by the 'diary entries' for '14/2/17' to '1/5/17'.
3. The original electronic file record does not contain any entry that records, or purports to record, Ms Ramos' instructions to the respondent.
4. In a related proceeding in the ACT Supreme Court on 29 October 2018, in which the respondent challenged the cancellation of his practising certificate, the respondent admitted he did not have any file note recording instructions from Ms Ramos that she engaged Mr D to assist her with Ms O's application to the AAT.[82] If the 'diary entry' for 1 March 2017 existed, we expect the respondent would have mentioned it.
5. However, in evidence to the Tribunal the respondent denied preparing Annexure 'I' after he became aware of the complaint against him and claimed he could not recall whether he made the 'diary entries' for 1 and 2 March 2017 on or about those dates.[83] We are satisfied the respondent was not telling the truth about this. It is obvious simply by comparing the respondent's electronic file record given to the Law Society with Annexure 'I' that the latter was prepared by cutting and pasting into a new document the material upon which the respondent intended to rely. The evidence does not establish when the respondent prepared the document. Whether he prepared it at or about the same time as the affidavit of 5 March 2021, or earlier in connection with the Law Society's investigation is immaterial. He clearly intended to rely on the 'diary entry' for 1 March 2017 as evidence that Ms Ramos said to him in a meeting that day, in the presence of Ms O, that Ms Ramos had been relying on Mr D to help her lodge the application to the AAT.
6. On the morning of the third day of the hearing the respondent volunteered an admission that his evidence of having had meetings with Ms Ramos in March 2017 was mistaken.[84] He also volunteered that he "suspect[ed]...in hindsight that possibly around some time 1 May 2017, at some point I drafted this page 25, and it's clear that I've got it wrong."[85] 'Page 25' refers to page 25 of exhibit 3, which contains the suspect diary entries for 1 and 2 March 2017. Further, the respondent admitted in the Amended Facts Response that Ms Ramos did not instruct him that Mr D was assisting her in relation to the AAT matter before the AAT decided the application was lodged out of time.[86] The admissions confirm our view that the diary entries were fabricated.
7. The respondent dug a deeper hole for himself as the cross-examination continued. After saying that he could not recall whether the diary entries for 1 and 2 March were prepared on or around those dates, he was asked whether he had taken any other file note in March 2017 recording Ms Ramos' instructions in relation to Mr D being asked to do anything in relation to the application to the AAT. The respondent replied in the affirmative. When asked to identify the file note, the respondent referred to the file notes dated 3, 7 and 20 March 2017, which he said were prepared in March 2017. When pressed to explain his evidence, the respondent claimed that 'Matildas' referred interchangeably to Ms Ramos and Ms O and where 'Matilda' appeared, it referred to Ms Ramos.[87]
8. The following evidence related to his file note for 3 March 2017:

My question to you was do you have file notes recording instructions from Ms Ramos about Mr [D] being asked to do anything in the AAT?--- Yes.

And you are saying this file note records such instructions, are you?--- Yes.

So this is a file note which says, 'Matildas Matildas arrive at 8.20 am. I see her at 9.02 am'?--- Yes.

'She will now go and lodge in the papers. She is scared.' You are saying that records your instructions in relation to being told something about Mr [D's] involvement in the AAT application?--- Yes.

I am putting to you it is not a truthful answer?--- It is a truthful answer?

... Is it your evidence, Mr Ford, that in relation to the file notes which you had made on 3 March 2017 - is it your evidence that you relied on those when you made the statement that you did in paragraph seven of your affidavit of 6 March 2017?--- Yes.[88]

1. The Tribunal intervened to ask what the respondent understood counsel for the Law Society meant when he asked whether a file note 'recorded' Ms Ramos' instructions. The respondent answered:

They're simply an aide memoire, for want of a better word. Simply a word which jogs my memory as to what transpired. It doesn't have to be a complete verbatim record of what happened. It is simply something to jog my memory as to what has transpired and look at the particular entry and go, 'Yes, yes, yes, yes, yes'. So a record of saying 'Matildas Matildas' brings back in my memory what transpired. Not just the entry, all the details surrounding that entry. That's my view on what 'recorded' means.[89]

1. The respondent's apparently contemporaneous file notes for 3, 7 and 20 March 2017 obviously are not a written record of his instructions. The questions counsel for the Law Society asked about this were unambiguous. A negative response was the only answer the respondent could give truthfully. We consider the respondent's evidence was dishonest.
2. The respondent claimed in evidence to the Tribunal that:

Well, as I said, I had a conversation with Ms Ramos and she indicated to me that Mr [D] was in the matter and I interpreted that to mean that he was in the matter at the AAT stage and I looked at all his emails to further substantiate, corroborate those - that view, and I came to the basis, based on these emails and on my file notes and on her statements to me that Mr [D] was in the matter at the - at an earlier stage. [90]

1. We are satisfied that Ms Ramos must have discussed Mr D's involvement with the respondent. It is likely that happened more than once. What was said on those occasions is a different matter. The context in which the discussions must have occurred is important.
2. The starting point is that Ms Ramos failed to lodge the AAT application on time, which put Ms O at risk of deportation. Ms Ramos was the subject of a claim by Ms O against her professional indemnity insurance policy. She discussed the claim with the respondent when he spoke to her by telephone for the first time on 1 March 2017. Ms Ramos reported the respondent's opinion that the insurance claim should be withdrawn to Mr D in an email the same afternoon, where she expressed concern she may lose her licence as a migration agent, at that time her only source of income.[91] Ms Ramos had undertaken previously to pay Ms O's legal costs but until then did not know how much Mr D proposed to charge, although she had asked for a fee estimate several times. Mr D replied that he would charge a set fee of $20,000 and emphasised that if, as he recommended, the application was brought in the High Court, the Minister's costs could be much higher, adding that he presumed Ms Ramos had some agreement to cover Ms O's costs.[92]
3. The respondent claimed Ms Ramos was anxious and upset when he spoke to her.[93] It would be surprising if she was not. Her emails to Mr D bespeak of her anxiety and concern.
4. The respondent claimed Ms Ramos said she felt Mr D had let her down.[94] Ms Ramos denied doing so,[95] but that is precisely the meaning conveyed by paragraph 17 of the affidavit she swore on 10 July 2017. It is eminently believable she may feel that way without there being any legitimate cause to criticise Mr D's conduct.
5. Further, English is not Ms Ramos' first language. While the respondent admitted in cross-examination that he never said to Ms Ramos that he had any difficulty in understanding what she said, that does not exclude the possibility he misconstrued the effect of what she said.
6. The respondent's statement about Mr D in paragraph 6 of the 30 March 2017 submissions reflected seriously on Mr D's professional conduct, notwithstanding the respondent's denials, which we consider were dishonest.[96] Rule 32.1 of the Legal Profession (Solicitors) Conduct Rules 2015 provides that a solicitor must not make an allegation against another legal practitioner of unsatisfactory professional conduct or professional misconduct unless the allegation is made bona fide and the solicitor believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it. If the respondent held the honest belief (whatever its source) that Mr D was at least partly responsible for the failure to lodge the application to the AAT on time, he had an ethical duty to satisfy himself that there was material available to support the allegation and provided a proper basis for it, before making the allegation in paragraph 6 of his 30 March 2017 written submissions. We are satisfied that the respondent did not do so. The respondent was given copies of the emails between Ms Ramos and Mr D, including her first email to Mr D sent on 14 February 2017, which, if he had read them, left no room to doubt that Mr D had no prior involvement in the matter.[97] The respondent admitted he read the emails but, even if he did, whether he paid any attention to what he read is open to serious doubt.
7. The Western Australian Court of Appeal said in Fidock v Legal Profession Complaints Committee:[98]

Candour and honesty are essential ingredients of the practitioner's obligations to the court. Thus, for example, a practitioner who makes a false assertion in closing submissions to the court about the facts, in the absence of any genuine belief that the evidence support such an assertion, would ordinarily be acting dishonestly toward the court even if the practitioner did not know that the statement was misleading. Also, as noted above, if a solicitor swears an affidavit recklessly, careless whether it be true or false in the sense discussed in the authorities on fraudulent misrepresentation, the practitioner's conduct will generally properly be characterised as professional misconduct.

1. In that regard the Court referred to the observations of Bowen LJ in Angus v Clifford [1891] 2 Ch 463, 470 - 471:

It has always been the law that a man must have a belief, because, as Lord Bramwell points out in the case of Smith v Chadwick and Lord Herschel in Peek v Derry, a man who affirms that he knows a thing, affirms implicitly that he believes it, and if he does not believe it, that affirmation is false. It is not the less false because the affirmation he makes is an affirmation about the state of his own mind. A man may tell a lie about the state of his own mind, just as much as he can tell a lie about the state of the weather, or the state of his own digestion... There is nothing outside his mind which is an absolute indication of what is going on inside. So far from saying that you cannot look into a man's mind, you must look into it, if you are going to find fraud against him; and unless you think you see what must have been in his mind, you cannot find him guilty of fraud. It seems to me that a second cause from which a fallacious view arises is from the use of the word 'reckless'. Now, what is the old common law direction to juries?... - the old direction, time out of mind, was this, did he know that the statement was false, was he conscious when he made it that it was false, or if not, did he make it without knowing whether it was false, and without caring? Not caring, in that context, did not mean not taking care, it meant indifference to the truth, the moral obliquity which consists in a wilful disregard of the importance of truth, and unless you keep it clear that that is the true meaning of the term, you are constantly in danger of confusing the evidence from which the inference of dishonesty in the mind may be drawn - evidence which consists in a great many cases of gross want of caution - with the inference of fraud, or of dishonesty itself, which has to be drawn after you have weighed all the evidence.[99] [Original emphasis]

1. With those principles in mind, we are not persuaded to the Briginshaw standard[100] that when the respondent made the statement in paragraph 6 of his 30 March 2017 submissions, he did so knowing it to be false.
2. There were times during the cross-examination (which, while hostile, did not cross the line to become unfair) when it seemed to the Tribunal that the respondent's answers suggested he had reconstructed events to suit his preferred narrative to such an extent that he no longer had any genuine recollection of what was true and what was not, but nevertheless was prepared to resort to confabulation.[101] However, the respondent's evidence about the file notes, and his adherence to the untenable position that Ms Ramos instructed him that Mr D was involved in the application to the AAT, was not in that category. We find that his evidence to the Tribunal about these matters was dishonest.
3. We find that the respondent:

(a) prepared the diary entries for 1 and 2 March 2017 intending to pass them off as a contemporaneous written record of Ms Ramos' instructions in connection with the Law Society investigation, or the proceedings in the Tribunal, or both;

(b) did so in the absence of any genuine belief that the statement that Ms Ramos told him she "was relying on Mr [D] to help her lodge the AAT application" was true; and

(c) included the diary entries in annexure 'I' to his 5 March 2021 affidavit with the intention to mislead the Tribunal.

1. We find that the respondent knew when making the statement in paragraph 6 of the written submission filed on 31 March 2017, that his allegations against Mr D lacked any proper evidentiary basis. We find that the respondent lacked any genuine belief that the statements were true and made the statements not caring whether they were true or not.
2. We find also that the respondent made the statement in paragraph 10 of the submissions that Mr D "would be prepared to put on an affidavit attesting to the situation" not caring whether it was true or not.
3. The respondent did not contact Mr D to ascertain whether he was prepared to give evidence because he did not think there was a need to do so.[102] The respondent claimed initially that he had spoken with Ms Ramos about Mr D giving evidence in March 2017.[103] Later he claimed there were a number of conversations with Ms Ramos and Ms O and "both told [him] that Mr [D] was prepared to put on an affidavit attesting to what had happened".[104] This was one of many examples during the hearing where the respondent, lacking any genuine recollection, resorted to confabulation. The first and only mention of Mr D in connection with being a witness is in the respondent's file note for 18 April 2017 (which appears to be contemporaneous), where he said "witnesses [D] and ramos spoke the Melany".[105] Whatever may have been said on that occasion, which was not explored at the hearing, it was after the respondent had prepared his submissions.
4. We consider the respondent made the statement in paragraph 10 of the submissions hoping that Mr D would provide evidence of the asserted facts, but without any genuine belief that he could or would do so.

Failure to provide disclosure as to costs and receipt of funds on account of future costs into the respondent's office account

1. The respondent admitted he failed to provide disclosure of costs to Ms O or Ms Ramos as sections 269 and 271 of the LP Act require.
2. On 6 March 2017, the respondent issued Ms Ramos with an invoice in the sum of $6,115 for services described as "Representation of Ms O in the Federal Circuit Court".
3. The invoice identified the account for payment as Westpac "Account 252619", which was not the solicitor's trust account of the respondent's firm.
4. On 7 March 2017, Ms Ramos paid the respondent's invoice in full into the earlier mentioned Westpac account.
5. We reject the respondent's submission that the invoice was for work done. We consider the respondent's attempt to justify the invoice on the basis that he had undertaken 30 to 40 hours of research was dishonest. As of 6 March 2017, the only work the respondent had done was review emails between Ms Ramos and Mr D and draft the application and his supporting affidavit. He later informed the Law Society that he charged about $6,000-$7,000 for an action in the Federal Circuit Court and that it would take "approximately 15 minutes" to prepare an application. We are satisfied that the invoice sought payment for services provided to the date of the invoice and on account of future services. We find that the invoice sought payment of trust money.[106]
6. Ms Ramos claimed in a letter to the Law Society that the respondent asked for his fees up front.[107] She did not verify the allegation in her affidavit. Nor was she cross examined about it. On its own, the evidence cannot be given much weight. However, it is consistent with the inferences we have drawn from other evidence and allows us to be more confident in the conclusions we have reached.

1. On 18 April 2017, Judge Neville made orders for the filing and service of affidavits and written submissions.
2. On 4 July 2017, the respondent emailed a draft affidavit to Ms Ramos, saying she needed to read it as she would need to make some changes. He said he would call soon to discuss the draft. The evidence does not establish whether he did so. He followed up by email on 6 July 2017, asking whether Ms Ramos had looked at the affidavit. On 7 July 2017, Ms Ramos replied, saying: "This is the second Draft that I complete and improved ...call me or send a text to know if I have to do any change or just to sign to forward to your attention". Ms Ramos' affidavit filed in the Tribunal (exhibit I) did not mention her draft affidavit, the circumstances in which it was prepared, or any communications she had with the respondent about its contents. Her evidence at the hearing was that she prepared two drafts, both of which she provided to the respondent. The first draft was never identified, and a copy was not provided to the Tribunal. [108] Whether the respondent saw the first draft was not established.
3. On 10 July 2017, Ms Ramos swore her affidavit. According to the respondent's file note for 12 July 2017 (which appears to be a contemporaneous record) Ms O filed the affidavit and the respondent sent a copy to his opponent, Mr Powell.[109] We are satisfied that the respondent had a copy of the affidavit.
4. The relevant parts of Ms Ramos' affidavit said as follows:
   1. On late evening 7th December 2016 I filled the form for an Application for Review at the AAT - Refugee section, on line and when the details of the application had been entered on the system, I then pressed the button which is known as 'enter' and the system indicated that the application had been lodged...
   2. Unfortunately, I did not realise that our system failed and all work done online were not uploaded, on that day we were unaware about the failure until a client called us on the 9th December telling that she had not received some documents that she expected on the 7th.

1. After we did received a phone call from our client telling that documents were not lodged on the date 9th December 2016, I started to check all work sent on that date and we realise that [Ms O] application for review at the AAT was not uploaded online, so immediately on the 9th I filled the application online again and lodged it.

1. On 12th December 2016, we received a letter from the AAT- acknowledge letter and also a little explanation that "Please note the validity of your application has not yet been assessed. We can only review a decision if a valid application for review has been made. You will be advised if it appears that your application may not be valid."
2. On the 3rd of January 2017, we received a letter from the AAT- Invitation to Comment on Validity of application for review - _ [Ms O]._
3. On 13th January 2017, I did response to the invitation to comment on validity of application for review - _ [Ms O]; also I did enclose evidence such as the Tax Invoice from the technician and evidence payment for work done in our office._

1. _On 25th January 2017, we received a letter from the AAT -Notification of Decision - _ [Ms O] - "the decision was the Tribunal does not have jurisdiction in this matter."

1. On January 2017 I was sick from my spine and waiting for a back surgery at my spine, the hospital admitted me on 4th of February 2017 I was in hospital for 7 days, then I wasn't able to work for what I did ask to my assistance to be in contact with referred Migration Lawyer to assit in the case of [Ms O]. Unfortunately a Migration Lawyer said yes to represent [Ms O] but then a couple of week later he said that he will not take the case, then I was in contact with a second Migration Lawyer who said that he will represent to [Ms O] but he took so much time and he did not lodge the application to the Court.
2. Then [Ms O] was in contact with the Migration Lawyer Mr Hugh Ford from Canberra and he agreed to represent to [Ms O] at the Federal Circuit Court in Canberra.[110] [All emphasis and errors in the original]
3. It will be recalled that paragraphs 6, 7 and 8 of the draft the respondent sent Ms O on 4 July 2017 said:
   1. Given that I was sick, I decided to enlist the support of another migration agent who is known as Mr [D]. I was hoping that Mr [D] could lodge the papers with the Administrative Appeals Tribunal within the prescribed period of time.
   2. Unfortunately, Mr [D] was unable to lodge the papers within the prescribed time.
   3. On the last day when the application was to be lodged with the Tribunal, even though I was sick, I lodged the application for the review of the decision with the Tribunal. The application was lodged electronically. That is, online.[111]
4. Ms Ramos replaced those paragraphs with her paragraph 17, which referred to the involvement of two Migration Lawyers after Ms Ramos's attempt to lodge Ms O's application at the AAT had failed, one of whom we now know was Mr D.
5. The respondent filed submissions on 12 July 2017 which made no mention of the prior involvement of other lawyers:

1) The applicant applied for a visa. The application was refused, and the applicant wished to seek the review of the decision by the Administrative Appeals Tribunal. The applicant needed to lodge her application with the Tribunal within a prescribed period of time.

2) The applicant approached a migration agent in order to facilitate the application for review. The agent was at the time sick. She had a severe neck problem which required surgery. The cut-off date for making the application was fast approaching, and the agent was having great difficulty in lodging the application within the prescribed period.

3) On the last day in which to lodge the application, the agent attempted to lodge the application online. She filled in all of the details online, and then pushed the enter button on the computer in order to lodge the application.

4) The applicant and the agent were both of the opinion that the application for the review of the application had been lodged within the prescribed period. The Administrative Appeals Tribunal however is of the opinion that no such application had been lodged by the applicant. The tribunal apparently has no evidence to suggest that an application has been made.

5) The migration agent involved will be giving evidence in this matter.

6) It is the applicant's contention that she has made a valid application for the review of the decision, and that further, the application for the review of the application had been lodged within the prescribed period of time.

7) The applicant is seeking a declaration that the application for the review of the application was lodged within the prescribed period of time.[112]

1. On 19 July 2017, Judge Neville heard Ms O's application for an extension of time within which to make her application for substantive relief in the Court. The respondent represented Ms O at the hearing. He met Ms Ramos for the first time that day.
2. Judge Neville had before him the respondent's affidavit of 6 March 2017 and Ms Ramos' affidavit filed on 12 July 2017 and the respondent's submissions filed on 31 March 2017 and 12 July 2017. The transcript of the hearing is in evidence.[113]
3. An issue arose in cross-examination whether the respondent had read Ms Ramos' affidavit before the hearing on 19 July 2017. The respondent claimed he had not. We accept the Law Society's submission that his evidence about this was manifestly implausible.
4. The respondent informed the Court he was proposing to call Ms Ramos to give evidence.[114] His opponent said he was content to deal with her evidence in submissions and did not require her for cross-examination.[115]
5. The following exchange with the judge related to Ms Ramos' affidavit:

HIS HONOUR: Thank you, Mr Powell. Mr Ford, so you've heard what Mr Powell has said. Ms Ramos is not required for cross-examination. So is there anything else that you would seek to elicit from her other than what's in her affidavit?

HIS HONOUR: Very well. Thank you. So we need to press on, then, with the application.

HIS HONOUR: So is there anything other than what's in the written submissions that you've filed - these are the submissions that are dated 12 July and that were filed on that date?

MR FORD: No, your Honour. They are the submissions that - all I propose to do now is just very briefly run through Ms Ramos' affidavit.

HIS HONOUR: But you can take it that I've read it.

MR FORD: Yes, yes, I understand that. But I just - would like to---[116]

1. The respondent made the following submissions to the Court:

MR FORD: Well, you - the court has a discretion to extend time if it so desires, given that there are - the circumstances of the case warrant an extension. And this particular case, as is clear from the affidavit of Ms Ramos, that Ms Ramos made every effort to lodge the application within time. She is of the view, the honest view, that she pushed the button on the laptop.

HIS HONOUR: No, no, I understand all that, but---

HIS HONOUR: ---it's a matter of grappling with ---

MR FORD: Well, I'm saying the circumstances in this case, your Honour - and I think you should exercise your discretion to allow the extension of time because the circumstances were sort of not of the making of the applicant. They were --- unfortunately, we had one agent who made every effort to lodge the application within time, and then attempted to elicit the support of not one but two very experienced migration lawyers, who unfortunately let the applicant down in a most unprofessional way, when it was quite clear that what they should have done is lodge these documents as soon as possible, but they chose not to.

And unfortunately, the applicant is now suffering as a consequence of the poor professional practice of two other migration lawyers, one of which is highly respected and should have known better than - in conclusion, your Honour, the applicant really shouldn't be punished, for want of a better word, for the actions of not one but two experienced migration lawyers. And in the interests of justice, your Honour, it would be appropriate that the applicant be given the opportunity to have her day before the tribunal.[117]

...But as I've already indicated to you, the applicant is seeking the exercise of your discretion to allow an extension of time, essentially because of the circumstances which were not of her doing but the doing of other members of the migration profession...[118]

1. Mr Powell, who appeared for the Minister, commenced his submissions with the following remarks:

...Just in terms of - something your Honour observed was that the applicant's outline of submissions summarises Ms Ramos' affidavit. I just thought, your Honour, it is worthwhile pointing out that there are actually a number of what I would refer to as material inconsistencies between the submissions and Ms Ramos' evidence, and some inconsistencies in the submissions Mr Ford has made today as well, including what might be regarded as scandalous remarks about other practitioners, who of course aren't before this court to say anything about that.[119]

1. Mr Powell submitted in reference to paragraph 17 of Ms Ramos' affidavit:

What I would like to say there is, clearly AXY17 illness is raised an issue about applying to this Court, not the applications to the Tribunal. So that is an inconsistency in the applicant's submissions. Secondly, that the remarks that Mr Ford made about the other migration practitioners, which I presume are a reference to those mentioned in paragraph 17 of Ms Ramos' affidavit, again are references to the process by which an application would be made to this Court, not to the Tribunal and Mr Ford has said today that it was somehow their involvement in the process in applying to the Tribunal which prevented that from happening in time.

It's pretty clear there that what's being claimed is the reason, if you like, for the delay in filing the application is a technical malfunction or error. No reference to sickness; no reference to the conduct of other migration agents. So, I really - I think it's - it will be up to Mr Ford whether he wishes to withdraw his submissions about those other practitioners, but the evidence just does not support the submission he has made there.[120]

1. The respondent's oral submissions on 19 July 2017 reflect the substance of Ms Ramos' evidence in paragraph 17 of her affidavit. The nub of the submission was that two experienced migration lawyers had become involved after Ms Ramos's failed attempt to lodge the application with the AAT and that they should have "lodged these documents" - i.e. the application to the Court - as soon as possible but chose not to. It was not a submission that the migration lawyers had been involved in the failed attempt to lodge the application at the AAT. A submission to that effect, referring to Mr D's involvement only, was before the Court in the respondent's original outline of submissions filed on 31 March 2017. On our reading of the transcript, the submission was not repeated on 19 July 2017. However, nor was it withdrawn. Rather, after the Court's attention was drawn to inconsistencies between the respondent's earlier outline of submissions and Ms Ramos' affidavit, the respondent agreed with Judge Neville's assessment that they were "not pivotal".[121]
2. On 19 July 2017, Judge Neville reserved his decision.
3. On 15 August 2017, without leave of the Court and without notice to the first respondent's solicitors, the respondent filed Contentions of Fact and Law. This was a considered submission in which the respondent stated:
   1. At the time of making the application for review to the Court, the migration agent was very sick. She was unable to prepare the papers within the prescribed period of time. She engaged the services of two very experienced migration lawyers who unfortunately let her down and the Application was not lodged with the Court within the prescribed period of time. There was a relatively short period between the date of the Application and the expiration of the period in which to seek review by the Court.
   2. After the expiration of the period of time, the agent sought my advice and I commenced proceedings as soon as I became aware of the matter. It was not my fault that the Application to the Court was lodged late. It was not my fault that the agent pushed the button on the computer.
   3. When the agent came to me for advice, I was of the opinion that given that the agent pushed the button on the last day in which to make the application, and given that the Application for the review of the decision by the Court was only a short period outside of the prescribed period of time, that the Application did have reasonable prospects of success, and further, that the Court would grant an extension of time pursuant to subsection 477(2) of the Migration Act 1958.[122] [Emphasis added]
4. We are satisfied that the respondent's oral submissions on 19 July 2017 and his written submissions in the Contentions of Fact and Law, attributing responsibility for the delay in filing the application to the two migration lawyers 'engaged' by Ms Ramos, one of whom the respondent knew was Mr D, were made with reckless indifference as to their truth or falsity. When making the submissions the respondent possessed information that, contrary to his written submissions filed on 31 March 2017, Mr D was not involved in the late lodgement of the application to the AAT. Ms Ramos was the most likely source of that information, considering the changes she made to the draft affidavit the respondent prepared for her. We think it is highly improbable that the respondent did not know, when making the submissions, that Mr D had not been retained in the matter. However, the gaps in the Law Society's evidence relating to Ms Ramos' instructions, the circumstances surrounding the preparation of her affidavit, and the respondent's awareness of the contents of, and/or the basis for, Ms Ramos' assertions in paragraph 17 of the affidavit, preclude a finding of actual knowledge. However, we are satisfied that if the respondent did not know, it could be only because he was wilfully blind to the truth.
5. On 7 September 2017, Judge Neville delivered judgment in the application.[123] His Honour found that the application had no reasonable prospects of success and ordered that the application be dismissed, the respondent personally pay the Minister's costs in the sum of $3,606 and that he should repay to Ms O within 14 days any costs she had paid him already.
6. At paragraph 42 of the Reasons for Judgment, his Honour said:

In my view, the circumstances of the matter confirm that, faced with the clear statutory provisions and the long-standing, unchallenged jurisprudence that patently stood in the way of the Applicant's success both before the Tribunal and in this Court, however well-intentioned, Mr Ford clearly chose to proceed with the Application. He actively took steps to continue and to aid the Application, including filing an affidavit on behalf of the Applicant, and filing various, albeit repetitive in style and content, written submissions. In doing so, in my view, in the light of the clear authority from the Federal Court over many years in relation to applications of the kind currently before this Court, he must be taken not to have properly considered the [reasonable] likelihood of success of the Application as he was required to do under s.486E(1)(b)(i). Respectfully, it defied "common sense", as well as abundantly clear judicial authority, to continue the Application and to risk his client incurring an adverse costs Order.

Communications with Ms Ramos after judgment was delivered

1. On 15 September 2017, the respondent, obviously incensed by the decision, wrote to Ms Ramos as follows:

When it became clear of the AAT position, you correctly deduced that we needed ty [sic] appeal to the Federal Circuit Court. In this regard, you decided to once again leave the appeal until the end of the appeal period. At that time, you then decided to enlist the support of Mr [D]. Mr [D] should have known better. He should have lodged the appeal within the prescribed period even though the money for the payment of his fees was not paid. The fact that there was a dispute between you and Mr [D] does not mean that Mr [D] should not have lodged the application. Mr [D] knew that it was imperative that the application be lodged within time, he chose not to lodge it within time. The fact that the application was not lodged within time to the Court was however ultimately your responsibility. Even though Mr [D] was at fault, you are the one who is ultimately responsible. I had nothing to do with this. You came to see me after the prescribed period had expired.

You came to see me on or about the 3rd of March 2017 well and truly outside of the prescribed period. It is my understanding that the application was made about three weeks after their expiration of the prescribed period which is not a long period of time, and further, in the normal course of events, this would enable the Court to extend time. In this case however, the Court acted unlawfully by refusing to extend time. When I received the application, I lodged the papers with the Court the next day. Less than 24 hours. I made every effort to lodge the documents as quickly as possible. The fact remains that the application was lodged out of time and there was a real chance of the application being refused. There was also a real chance of the application being granted given that the period in question was relatively short.

What is important to note here is that you contacted me and you told me to lodge the application as quickly as possible. I had very little choice as to whether to lodge it or not. You said that it had to be lodged, and I lodged it. Despite the above, I carefully considered that application. I thought that given the relatively short period of time between the expiration of the prescribed period and the appeal, that there was a good chance of getting an extension of time.

When the matter gets to court, the Court made a number of legal errors in the course of its consideration of the matter. The Court did not give any consideration to the application for an extension of time. Instead the Court just concentrated on imposing a personal costs order on me for some reason. It was not my fault that the application was lodged late. It was not my fault that the application to the AAT was lodged late. It was your fault. Despite the fact that this was all of your fault, I have to pay a personal costs order.

The Court has dismissed the matter, and [Ms O] now has no choice but to appeal to the Federal Court. This is going to cost about $9600. [Ms O] has no money. It is not [Ms O's] fault that this has happened. It was your fault, and you should now pay this money. In addition to this, there is the personal; costs order of $3600.

Your need to get back to me as soon as possible as to what you are going to do about this.[124]

1. The opening paragraph shows that the respondent knew that Ms Ramos attempted to secure Mr D's assistance only after the application to the AAT was rejected as being out of time and that the terms of Mr D's retainer were never agreed. It should have been apparent to the respondent that Mr D had not been engaged to file an application in the Federal Circuit Court and that he was not responsible for the delay in doing so.
2. Ms Ramos forwarded the email to Mr D the same day and sought his advice. This was the first notice Mr D received of the allegations the respondent had made against him.

1. On 25 September 2017, Ms Ramos wrote to the respondent requesting him to repay the costs paid to him on 7 March 2017 in accordance with the order made on 7 September 2017.
2. The respondent failed to comply with the order and, as at the date of the hearing, had not repaid the costs.

1. On 26 September 2017, Mr D made a written complaint to the Law Society. In relation to paragraphs 6 and 10 of the respondent's written submissions filed on 31 March 2017, which were reproduced in Judge Neville's reasons for judgment in unredacted form, Mr D stated:

The content of these paragraphs, in so far as they relate to me, are completely false. I was never instructed to act for the applicant in relation to lodging an application for review at the Administrative Appeals Tribunal or in the Federal Circuit Court of Australia. Nor did I say I was prepared to affirm an affidavit 'attesting to the situation', as Mr Ford puts it. ... He has, in substance, submitted to the Court that I did not lodge the review application to the Administrative Appeals Tribunal in time (that is, that I was professionally negligent and I would be prepared to attest to that). This is simply scandalous.

I have been in contact with the associate to the learned judge who dismissed the application, in order to see if I can have my name redacted from the published judgment, given the falsehoods put to the Court by Mr Ford_._ [125]

1. On 3 October 2017, Mr D affirmed an affidavit in support of an application to have his name redacted from the reasons for judgment in AXY17 v Minister for Immigration [2017] FCCA 2006 (AXY17). In relation to paragraph 6 of the respondent's submissions filed on 31 March 2017, Mr D deposed:
   1. The content of paragraph 6 of the submissions filed by Mr Ford, as extracted above, is completely false. My firm (including myself) was never retained to act for the Applicant in relation to lodging an application for review at the Tribunal, or in the Federal Circuit Court of Australia, or in the High Court of Australia. I mention all three options, because Mr Ford states 'Mr [D] was well aware of the time period in which to seek the review of the decision by the Tribunal. Unfortunately, Mr [D] was unable to get the papers into the Tribunal within the prescribed period.' As the Tribunal had made its decision on 23 January 2017, it was functus officio by the time Ms Ramos contacted me about it on 14 February 2017, such that the statement that I was unable to get the papers into the Tribunal within the prescribed period is nonsense.[126]
2. In relation to paragraph 8 of the respondent's submissions, Mr D stated:

This extract is also a falsehood, in so far as it relates to me. I never said that I was prepared to affirm an affidavit 'attesting to the situation', despite Mr Ford's submissions to the contrary. In fact, Mr Ford never contacted me about this falsehood.

The respondent's conduct in relation to the Law Society's investigation

1. On 16 October 2017, the Law Society gave written notice to the respondent of Mr D's complaint and the Law Society's decision to investigate, and sought his response.
2. The respondent provided a written response on 10 November 2017. As the Law Society's allegations of professional misconduct include that the respondent made statements to the Law Society in connection with its investigation that he knew were false, or with reckless indifference as to their truth or falsity, and that he failed to provide a full and accurate account of his involvement in the matter, we reproduce his response in full. We have emphasised several passages where the respondent made statements that he knew were false. Considered as a whole, the response demonstrates the respondent's lack of candour, dishonesty, and lack of insight in responding to the complaint.

[Ms O] applied for a visa and she was refused. [Ms O] goes to see a migration agent Melany Ramos and Ramos needed to appeal to the AAT within a certain time period. [I have complained to the MARA about the conduct of Ramos. She is quite clearly negligent] During this period, that is, the period leading up to the making of the AAT application, Ramos told me that she had engaged the services of Mr [D]. That is, to help her with making of an application to the AAT. [D] however denies this. Whether [D] was or was not helping Ramos with the AAT application, Ramos told me that [D] was helping her. That's what she told me during the course of this matter and that is why I told the Court this.

Ramos screwed up the AAT application...The applicant could not seek review of the decision of the AAT.

When I looked at the matter, it appeared to me that the Applicant had made a valid application because the applicant through Ramos had pushed the button on the laptop on the last day, and therefore, the application was deemed to have been made within time. The applicant was not out of time because the migration agent had lodged the application on the last day.

There was therefore an issue as to what constitutes a valid application. Further there was also an issue as to what is the effect of pushing a button on the laptop and whether the pushing of the button means that there was in fact a valid application within time. These are important issues which the Federal Circuit Court needed to resolve. Unfortunately the Federal Circuit Court was biased in this matter and they did not accord the applicant with procedural fairness.

When it became apparent to Ramos that the application for the review of the matter had not been made to the AAT, Ramos correctly decided that the applicant needed to appeal to the Federal Circuit Court about the matter in order to determine whether there was or was not a valid application for the review of the decision by the AAT.

Ramos had a prescribed period of time in which to seek the review and the decision by the AAT. Once again she mucked it up. It also appears that Ramos engaged the services of Mr [D] to help her with her application for the review of the decision by the Federal Circuit Court.

It appears that [D] was asking a very high fee in which to commence proceedings in the Federal Circuit Court. Approximately $10,000. I charge about $6,000-$7,000 for such an action. It also become apparent that the applicant could not afford such a high fee, and therefore Mr [D] could not or would not appear in the matter.

Despite the above, Mr [D] was acutely aware of the fact that time was ticking. It would have taken Mr [D] approximately 15 minutes in order to printout a pro forms [sic] request for review and given this to Ramos and the application could have been lodged within time. Yes the application could have been amended later on, but the application would have been lodged within time.

Unfortunately Mr [D] did not do this. Despite the fact that I think that Mr [D] was duty bound to do this. This is what I would have done.

It is clear that Mr [D] was engaged in the period between the decision of the AAT to refuse the matter and the appeal to the Federal Circuit Court. Ramos told me that Mr [D] was involved in the matter leading up to the application for AAT review. That's why I told the court that Mr [D] had been involved in the matter leading up to the AAT review and further leading up to the Federal Circuit Court review. It doesn't really matter what I said to the Court because the Court ignored everything I said. The Court never ever discussed the substantive issue about whether there was or was not a valid application for the review of the decision, rather, the Court concentrated solely on whether I should be liable to pay a personal costs order. The Court was completely biased and for some reason chooses to penalise me for not lodging the papers with the Federal Circuit Court within the prescribed period of time.

It was not my fault that the papers were not lodged with the Court within time. This was the fault of Ramos and/or Mr [D].

After the time period in which to seek the review of the decision had passed, Ramos came to me begging me to lodge the papers with the Court even though the time period in which to lodge in the Court had expired. Within 48 hours of receiving the papers, I lodged the papers with the Federal Circuit Court. Even though the application was approximately 4 days late, the Court still saw fit to deny the application because it was out of time. This was a disgraceful decision. Very rarely is an application for review denied in those circumstances where they application [sic] is only 4 days late. The Court was quite clearly more intent on punishing me for what I did instead of seeking justice for the applicant.

When the matter came before the Court, the Respondent immediately went to the issue of a personal costs order. There was no discussion about the substantive issue of the case, that is, whether there was or was not a valid application for AAT review. Instead the Court just made me pay a personal costs order. I have subsequently paid the personal costs order even though I did nothing wrong. It was a disgraceful decision and now the client [Ms O] is going to suffer. She is destitute, she sleeps on the streets and further she is liable to be deported. This is all because the Court was more intent on punishing me rather than according the Applicant with procedural fairness.

Mr [D]'s complaint is also disgraceful. Instead of acknowledging that he screwed [sic] because he did not lodge the papers with the Court within time, he criticises me for mentioning that he was involved in the matter at the AAT stage??

The complaint is entirely vexatious and it is a disgrace...[127] [Emphasis added]

1. On 31 January 2018, the solicitors for the Law Society (McInnes Wilson) wrote to the respondent seeking further information, including whether he drafted or settled Ms Ramos' affidavit; what instructions she gave in relation to its contents; and what inquiries he made of Ms O, Ms Ramos and/or Mr D to ensure the affidavit was accurate. Similar questions were raised in relation to paragraphs 6 and 10 of the submissions filed on 31 March 2017. The respondent was asked also whether, considering the contents of Mr D's affidavit affirmed on 3 October 2017, a copy of which was provided with the letter, the respondent remained of the view that his submissions and response to the Law Society in relation to Mr D's involvement were accurate.[128]
2. The respondent replied by email sent on 5 March 2018, where he stated:

...Mr [D] acknowledges that he was involved in the appeal to the Administrative Appeals Tribunal and not the appeal to the Federal Circuit Court.

1. The respondent admitted in cross-examination that he knew the Law Society's investigation was a serious matter, as was the Law Society's letter raising questions in relation to his professional conduct. He knew also that he was under an obligation to give a full and frank account of his conduct to the Law Society. He accepted that he could and should have read Mr D's affidavit before replying. The respondent submitted the response was careless, but not an attempt to mislead the Law Society. We disagree. We accept the Law Society's submission that the respondent made the statement knowing it to be false, or with reckless indifference as to its truth or falsity.
2. The respondent stated in the same email, "There was never at any time any misrepresentation of the facts by me". We are satisfied that the respondent knew, when he made the statement, that it was false.
3. The respondent also stated:

Mr [D] has been engaged in a vendetta against me over this matter, and it is clear that he withdrew from the matter before the Federal Circuit Court and this is what I told the Court. It was completely unacceptable for Mr [D] to back out of representing [Ms O] so late in the proceedings. It is Mr [D] who is trying to cover up his poor conduct and not me.

1. The respondent's closing submissions conceded that the respondent made the statement with knowledge of its falsity or with reckless indifference as to its truth or falsity and sought to explain the respondent's conduct on the basis that "the 'reactive' and 'defensive' setting of the Respondent's personality led him into error and the incorrect statements made in the email".[129] There was no psychological evidence before the Tribunal from which an assessment could be made of the respondent's personality traits and whether they explained his conduct. Whatever part his personality may have played, we are satisfied that the respondent knew, when he made the statement, that it was false.
2. On 22 March 2018, McInnes Wilson wrote to the respondent on behalf of the Law Society following up on the earlier request for information on 31 January 2018 that remained partly unanswered.
3. The respondent provided the following response on 6 April 2018:

Ms Ramos did not read the submissions. There was no need. This is what she told me. I don't have any emails or instructions in relation to the submissions. I'm not going to repeat myself. Ms Ramos told me that that Mr [D] was going to represent her in the Federal Circuit Court. She has stated this in two documents. This is what she told me and that's the end of the matter.

I confirm that my submissions in the matter are accurate.

1. The Law Society submitted that the respondent made the statement that he did not draft or settle Ms Ramos' affidavit knowing it to be false, or with reckless indifference as to its truth or falsity. We disagree but we accept that the response lacked candour. The respondent's closing submissions conceded as much.[130] We have referred earlier to the gaps in the Law Society's evidence in relation to how the affidavit was prepared and the respondent's part in it. While we accept that the respondent prepared an initial draft, some paragraphs of which were included in the affidavit Ms Ramos swore on 10 July 2017, the latter departed from the respondent's draft in significant respects.
2. However, we accept the Law Society's submission that the respondent made the statement that his "submissions in the matter are accurate" knowing the statement to be false. The respondent's closing submissions admitted as much.[131]
3. On 16 May 2018, McInnes Wilson wrote to the respondent on behalf of the Law Society requesting a copy of his affidavit made on 6 March 2017. The respondent replied by email on 22 May 2018, stating that he "did not file any affidavit in this matter". The respondents' closing submissions argued that the statement was the product of carelessness, caused by his 'reactive' and 'defensive' personality.[132] We do not accept that the statement was made carelessly. We accept the Law Society's submission that the respondent made the statement knowing that it was false.
4. In the same email, the respondent also said, "I wanted to tender the affidavit and put her in the box. Judge Neville however refused to allow the tender of the document and refused to allow her to give evidence". We reject the respondent's submission that the statement was careless.[133] We accept the Law Society's submission that the respondent made the statement knowing that it was false.
5. Later, McInnes Wilson sent an email to the respondent noting his response that he had not filed any affidavit in the matter and drawing his attention to paragraphs 20, 38 and 53 of the reasons for judgment in the AXY17 matter, which referred to the respondent's affidavit made on 6 March 2017_._ The solicitors renewed their request for the respondent to provide them with a copy of the affidavit.
6. At 5:40pm on 22 May 2018, the respondent replied by email in which he said:

Yes I did file an affidavit. That was the decision of the Tribunal in this matter. This is the usual course of events. The affidavit did not summarise the facts. It just attached the decision of the Tribunal. As usual Judge Neville has got it wrong. There was no affidavit of Ramos tendered to the Court as the Court refused to allow such attender [sic].

...I came in at the last minute. I wasn't paid and now I am being investigated because I came in to help out [Ms O]...

1. The Law Society submitted that these statements were false in that the respondent's affidavit did not just attach a copy of the AAT decision, Ms Ramos' affidavit was read at the hearing, and the respondent was paid for the work he did for Ms O. We agree and accept the Law Society's submissions that the respondent made the statements knowing they were false. We note that the respondent belatedly admitted under cross-examination that he knew, when making the statement that "the affidavit did not summarise the facts" that it was untrue.[134]

The respondent's letter to the Chief Judge of the Federal Circuit Court

1. On or about 12 October 2017, the respondent wrote a lengthy letter of complaint about Judge Neville to the Chief Judge of the Federal Circuit Court.[135]
2. The respondent claimed he was an expert in migration law. He said he had appeared in approximately thirty matters before Judge Neville, but had never won a case. The reason, so the respondent said, was not due to some defect in his logic or that his knowledge of migration law was somehow lacking, but rather because Judge Neville was a political appointee who "clearly displays his distaste for those individuals who are opposed to the government's policy on migration".[136] It was clear that the judge was biased and "the mere fact that I have not won a case before Judge Neville is evidence of a reasonable apprehension of bias".[137]
3. The respondent accused the AAT of acting "unlawfully" in every case involving applicants for protection visas, by focussing on minor inconsistencies to conclude that an applicant's case is concocted. The respondent asserted that the "approach of the Tribunal is a most disgraceful approach, yet Judge Neville condones such a practice and never ever confronts this issue and is content to hide behind absurd legal principles".[138]
4. The respondent referred to a case in which he raised the issue of bias before Judge Neville, where he claims his Honour refused to rule on the issue "even though he could not rule on it because he is not for the purposes of the test a reasonable man". Further, the "reason why Judge Neville refused to deal with the matter is because he knew he was biased and he did not want to confront the issue".[139]
5. The respondent complained that Judge Neville referred to him by name in several judgments, alleging that he did so "because he wants to intimidate me and criticise me personally because I dare to make submissions which do not accord with his views."[140]
6. The respondent alleged that Judge Neville had "repeatedly behaved unreasonably towards [the respondent] as a worker" evidenced by Judge Neville's displays of bias, imposition of a personal costs order and references to the respondent by name in decisions, which created a risk to the respondent's health and safety. The respondent said the Chief Justice had a duty of care to ensure the respondent's workplace was free of harassment and intimidation and claimed that both the Chief Justice and Judge Neville had breached the duty.[141]
7. The respondent claimed that other practitioners had similar concerns to him but "are too scared to come forward" and that it was "not appropriate for Judge Neville to intimidate young female practitioners with absurd requests".[142] He also claimed that Judge Neville would "routinely conduct proceedings without ever getting to the substantive issue" and often "just wastes the Courts precious time with irrelevancies".[143]
8. The respondent characterised the imposition of a personal costs order on him as "disgraceful" and "more evidence of the attempt by Judge Neville to intimidate and harass me". The respondent said this was "completely unacceptable and Judge Neville's position on the bench must now be called into question".[144]
9. The respondent questioned Judge Neville's knowledge of the Federal Circuit Court Rules and suggested that he did not understand that the Court was not a pleadings jurisdiction. This appears to be a reference to circumstances relating to the CFMMEU proceeding, which is the subject of application OR 14/2020.
10. The respondent claimed that many practitioners were commencing proceedings in other registries rather than appear before Judge Neville, commenting that "[p]ractitioners should not have to commence in other jurisdictions because of one particular judge".[145]
11. The respondent attributed Judge Neville's complaint to the Law Society to the judge "want[ing] to make my life as difficult for me as possible" and claimed this "is more evidence of conduct unbecoming of a judge".[146]
12. One may be forgiven for wondering what purpose the letter was intended to serve. The answer emerges only on the last page where, after asserting that Judge Neville was entitled to be told the substance of the complaint but not to see it, the respondent said:

The substance of the complaint is that Judge Neville is biased and he should not be sitting on cases that involve me or my associates. He is biased against me and a number of other practitioners who are all too scared to come forward for fear of reprisal.

Judge Neville should be removed and a new Judge selected on merit and not on political affiliation.

1. The issue is whether the respondent breached rules 19.1 and/or 19.2 and his common law duty of honesty and candour to the Court by making a statement to the Court in the AXY17 proceeding dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity, or if the statement was made mistakenly, failing to take steps to correct the misleading statement.
2. Charge 1 relates to the statement made in paragraph 7 of the respondent's affidavit affirmed on 6 March 2017 that "the applicant's Migration Agent tried her best to resolve the issue and requested another Solicitor [Mr D]...to file the application on the applicant's behalf."
3. The respondent's closing submissions stated:

This conduct was driven by the honest belief (albeit mistaken) of the practitioner. The failure of the Respondent to obtain clear instructions and to document them coupled with the aggravating features of his temperament and personality led him into error and further; the making of a series of allegations concerning another practitioner that were plainly incorrect and potentially injurious to the honour and reputation of that practitioner was a very serious breach of his obligations. [147]

1. However, we have found that the Law Society incorrectly characterised the statement as an allegation that Ms Ramos had requested Mr D to file an application in the AAT, instead of the Federal Circuit Court, which is the meaning we consider the statement bears. It is clear that Ms Ramos did ask Mr D to file an application in the Federal Circuit Court on behalf of Ms O. We therefore find that charge 1 is not proved for the reasons stated earlier. [148]
2. Charge 2 relates to the statements made in paragraph 6 of the written submissions filed on 31 July 2017 that "Unfortunately Mr [D] was unable to get the papers into the Tribunal within the prescribed period" and in paragraph 10 that "Mr [D] would be prepared to put on an affidavit attesting to the situation".
3. The respondent's closing submissions accepted that paragraphs 6 and 10 were misleading, attributing the respondent's conduct to "a catastrophic failure to understand his instructions" which "had the consequential effect of misleading the Court and the dogmatic reiteration of 'facts' which were incontrovertibly incorrect aggravated the conduct".[149]
4. We find the charge that the respondent breached rule 19.1 and his common law duty of honesty and candour to the Court by recklessly misleading the Court is proved. We refer to our findings at paragraphs 139 to 145.
5. We find the charge that the respondent breached rule 19.2 and his common law duty of honesty and candour to the Court by failing to correct the misleading statements as soon as possible also is proved. We refer to our findings at paragraph 168.

1. The issue is whether the respondent breached rules 19.1 and/or 19.2 and his common law duty of honesty and candour to the Court by making a statement to the Court in the AXY17 proceeding dishonestly, knowing the statement to be false or recklessly indifferent to its truth or falsity.
2. Charge 3 relates to the respondent's oral submissions to the Court on 19 July 2017.
3. The Law Society said the respondent's submissions were to the effect that Ms Ramos attempted to elicit the assistance of lawyers with the making of the application to the AAT. However, at paragraph 168 the Tribunal found that the true effect of the submissions was that Ms Ramos enlisted the assistance of two experienced lawyers, both of whom let her down by failing to lodge the application in the Court within the prescribed period.
4. The respondent's closing submissions acknowledged that the submissions were "incorrect and unfounded" and sought to explain the respondent's conduct as follows:[150]

The dogmatic insistence on facts now known to be incorrect, betrays a temperament or disposition to certainty which, on the facts, was plainly misconceived. The inadvertent misleading of the Court was driven by the Respondent's failure to adhere to ordinary expectations concerning the making and maintenance of records and a willingness to listen, comprehend and then act on those instructions rather than to pursue a 'case theory' driven by his own dogmatic certainty.

1. These 'insights' into the respondent's character were not based on evidence before the Tribunal. The evidence does not provide any basis to find that the respondent misled the Court inadvertently. We find that, in making the submission, the respondent breached rule 19.1 and his common law duty of honesty and candour to the Court by recklessly misleading the Court. We refer to our findings at paragraph 171.

1. The issue is whether the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the Law Society by making a statement to the Law Society in connection with its investigation of the complaint, knowing the statements to be false or recklessly indifferent to its truth or falsity.
2. Rule 43.1 provides that subject only to his or her duty to the client, a solicitor must be open and frank in his or her dealings with a regulatory authority.
3. Rule 43.2 provides that a solicitor must respond within a reasonable time and in any event within 14 days (or such extended time as the regulatory authority may allow) to any requirement of the regulatory authority for comments or information in relation to the solicitor's conduct or professional behaviour in the course of the regulatory authority investigating conduct which may be unsatisfactory professional conduct or professional misconduct and in doing so the solicitor must furnish in writing a full and accurate account of his or her conduct in relation to the matter.
4. Under the common law, a solicitor has a duty to inform and assist an inquiry into the solicitor's conduct. In Re DP and the Legal Practitioners Act 1970 [2005] ACTSC 78, the Full Court of the ACT Supreme Court said at [3]:

The Law Society must, and indeed should, if it finds a complaint to have apparent substance, seek an explanation from the solicitor concerned. And if the Law Society lacks the power to do that then the system will not work satisfactorily for the protection of clients generally. So it must be emphasised that the Society has that power, is entitled to exercise it, and the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed.

1. In The Council of the Law Society of the ACT v LP 12 [2018] ACTCA 60, the Court of Appeal said at [56]:

...a confrontational and obstructive approach to disciplinary proceedings, and taking technical issues in an endeavour to bring the complaint to a conclusion otherwise than on the merits, is inappropriate and inconsistent with a practitioner's obligation to provide reasonable assistance in the conduct of such an inquiry, by reason of their position as officers of the Court. In Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6, Moffit P, with whom Hope and Mahoney JJA agreed, said:

The obligation to inform and assist has always been regarded as resting upon a solicitor or barrister whose conduct is the subject of an inquiry whether by the court or the committee, as appears in the court's observations on numerous occasions, an example being in Re Vernon; Ex Parte Law Society of New South Wales (1966) 84 WN (Pt 1) 136 at p 141.

1. Charge 4 relates to the statement on 5 March 2018 that Mr D "acknowledges that he was involved in the appeal to the AAT". We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 186.
2. Charge 5 relates to the statement on 5 March 2018 that "There was never at any time any misrepresentation of the facts by me". We find the charge that the respondent breached rules 43.1 and 43. and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 187.
3. Charge 6 relates to the statement on 5 March 2018 that Mr D "withdrew from the matter before the Federal Circuit Court". We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraphs 188 and 189.
4. Charge 8 relates to the respondent's statement in his letter to the Law Society's solicitors dated 6 April 2018 to the effect that his submission in the matter were accurate. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 193.
5. Charge 9 relates to a statement on 22 April 2018 that the respondent did not file any affidavit in the matter. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 194.
6. Charge 10 relates to a statement on 22 April 2018 to the effect that Judge Neville refused to allow the respondent to tender Ms Ramos' affidavit and for her to give evidence. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 195.
7. Charge 11 relates to a statement on 22 April 2018 to the effect that Ms Ramos' affidavit did not summarise the facts. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 197 and 198.
8. Charge 12 relates to a statement on 22 April 2018 to the effect that there was no affidavit of Ms Ramos tendered to the Court. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 197 and 198.
9. Charge 13 relates to the statement on 22 April 2018 that the respondent was not paid. We find the charge that the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 197 and 198.

1. The issue is whether the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the Law Society by failing to be open and frank with the Law Society and failing to provide a full and accurate account to the Law Society of his involvement in a matter that was material to the Law Society's investigation of the complaint against him.
2. Charge 7 relates to the respondent's statement in his letter to the Law Society's solicitors that he did not draft or settle Ms Ramos' affidavit. The respondent's closing submissions admitted that the respondent had failed to provide a full and frank account of his involvement in the drafting of the affidavit.[151] We find the charge that the respondent breached rule 43.2 and his common law duty to inform and assist the inquiry is proved. We refer to our findings at paragraph 192.

1. The issue is whether the respondent breached section 222(1) of the LP Act by failing to deposit trust money received on account of legal costs in a trust account.
2. Section 222(1) of the LP Act provides that as soon as practicable after receiving trust money, a law practice must deposit the money in a general trust account of the practice kept in the ACT. The definition of 'trust money' in the Dictionary to the LP Act includes money received by the practice on account of legal costs in advance of providing the services.
3. We find the charge that the respondent breached section 222(1) of the LP Act is proved. We refer to our findings at paragraphs 146 to 151.

1. The issue is whether the respondent misappropriated trust moneys in breach of the common law by causing trust moneys received on account of legal costs to be deposited in an office account.[152]
2. The Law Society submitted that the respondent's conduct was "objectively dishonest by the ordinary standards of reasonable and honest people" citing Council of the Law Society of the ACT v LP201809 [2019] ACAT 11 at [64] which referred to following statements by Bell J in Brereton v Legal Service Commissioner [2010] VSC 378:
   1. It follows that the word 'misappropriation' in its ordinary sense involves a mental element. Misappropriation is dishonestly misapplying property, including money, held on behalf of another. In the criminal context, misappropriation by and to the trustee personally is not a crime at common law because the trustee already has the property; but it is conduct which, but for that, would be theft. It is 'stealing' in another guise because it is wrongful appropriation by the trustee of property being held for another.

1. While an allegation of dishonesty requires consideration of the person's mental state, in neither the criminal nor the civil context is it necessary to establish that the person subjectively knew or believed that the actions concerned were dishonest. What must be established is that the person subjectively intended to do the acts which are said to be objectively dishonest by the ordinary standards of reasonable and honest people. Thus the course to be adopted in determining whether conduct is dishonest was explained by Toohey and Gaudron JJ in Peters v R as follows:

In a case in which it is necessary for a jury to decide whether an act is dishonest, the proper course is for the trial judge to identify the knowledge, belief or intent which is said to render that act dishonest and to instruct the jury to decide whether the accused had that knowledge, belief or intent and, if so, to determine whether, on that account, the act was dishonest ... If the question is whether the act was dishonest according to ordinary notions, it is sufficient that the jury be instructed that that is to be decided by the standards of ordinary, decent people.

1. The steps involved in this formulation are: (1) identify the knowledge, belief or intent which is said to render the acts dishonest; (2) determine whether the accused (or defendant in the civil context) subjectively had that knowledge, belief or intent; and (3) determine whether, on that account, the acts were objectively dishonest according to the standards of ordinary and decent (that is reasonable and honest) people.
2. When applying these principles in a civil case, the civil standard of proof on the balance of probabilities applies. Of course, where the allegation in a civil case is of misappropriation, a high standard of probability is required, due to the gravity of the allegation. In a criminal case, the criminal standard of proof beyond reasonable doubt applies.
3. The Law Society submitted that the respondent knew, when nominating the account into which his fees should be paid, that the money was on account of legal services to be provided in the future and that he was under a legal obligation to deposit money received on trust in a trust account. In taking the benefit of money to which he had no legal entitlement it was said that he acted dishonestly by the standards of reasonably honest people.
4. The respondent submitted that as he was billing for work already done, the funds were not trust moneys. We have found against the respondent on that issue at paragraph 150, including that his evidence that the invoice was for work done and not for costs in advance was dishonest.
5. We are satisfied that when the moneys were received into the respondent's Westpac account, he had done some work for which he was entitled to receive payment. However, where the invoice was intended to cover future legal costs, including the respondent's costs of appearing at the hearing of the application, we consider that ordinary people would regard the respondent's conduct in taking the benefit of a substantial sum, to which he was not presently entitled, to be dishonest. We find the charge that the respondent misappropriated trust moneys is proved. We refer to our findings at paragraphs 146 to 151.

1. The issue is whether the respondent breached section 269 of the LP Act by failing to give the required costs disclosure to the client.
2. We find the charge that the respondent breached section 269 is proved. We refer to our findings at paragraph 146.
3. The respondent's closing submissions characterised the respondent's conduct as "a serious traversal of his statutory obligations under Part 3.2" of the LP Act.[153] We agree.

1. The issue is whether the respondent breached rule 5 by failing to comply with an order of the Court requiring him to repay costs to his client.
2. The respondent claimed in an affidavit filed shortly before the hearing that "I am unable to recall what I paid the Respondents as regards their costs or what I repaid Ramos".[154] We consider this evidence was dishonest. In closing submissions the respondent admitted the breach but claimed (without evidence) that the failure to comply was "driven" by his lack of funds.[155] We accept the Law Society's submission that the objective seriousness of the breach is aggravated by the fact that the respondent had no entitlement to retain money received as trust money and that the respondent's failure to explain the conduct suggests that the breach was wilful.
3. We find the charge that the respondent breached rule 5 by engaging in conduct, in the course of practice, which is likely to a material degree to bring the profession into disrepute, is proved.

1. The issue is whether the respondent breached rule 4.1.3 by failing to deliver legal services competently and diligently in circumstances where he knew, or should have known, that the application on behalf the client had no reasonable prospects of success.
2. In AXY17 the Court found that the application brought by the respondent on behalf of his client had no reasonable prospects of success and made costs and other consequential orders on that basis.
3. The Law Society did not rely on the finding. Rather, it relied on Judge Neville's reasoning in paragraphs [33] to [36] and [42] of the judgment. How the Tribunal should apply his Honour's reasoning without also relying on the findings of fact on which the decision was based was not explained. The issue whether section 91 of the Evidence Act 2011 precluded reliance on the Court's findings was not argued although the Tribunal invited submissions from the parties.[156] If it had been argued and section 91 was found to apply (about which we express no view) we consider this would have been an appropriate case to exercise the Tribunal's discretion under section 190(3) to dispense with the application of the section (which is in part 3.5 of the Act), on the basis that the matter to which the evidence relates - namely, whether the application had reasonable prospects of success - was not genuinely in dispute. In that regard it is significant that the respondent did not appeal the orders made against him. A similar approach was suggested by Emmett AJA in King v Muriniti [2018] NSWCA 98 at [96].
4. The need to consider this issue more closely is obviated by the concession made in the respondent's closing submissions that the application to the Federal Circuit Court was misconceived.[157]

1. The issue is whether the respondent breached rules 4.1.2, 5.1.1 and 5.1.2 by making allegations of serious improper conduct against a judge of the Federal Circuit Court in a letter to the Chief Judge of the Court, without particularising, justifying, or substantiating the allegations.
2. Rule 4.1.2 provides that a solicitor must be honest and courteous in all dealings in the course of legal practice.
3. Rules 5.1.1 and 5.1.2 provide that a solicitor must not engage in conduct, in the course of practice or otherwise, which is likely to a material degree to be prejudicial to, or diminish the public confidence in, the administration of justice, or bring the profession into disrepute.
4. In Griffin v The Council of the Law Society of NSW,[158] the NSW Court of Appeal considered whether a solicitor had engaged in professional misconduct by forwarding a letter to a judge alleging that the judge had acted in bad faith and displayed actual bias towards a litigant and vindictiveness to the solicitor. The parallels with the present case are obvious. Sackville AJA (with whom Ward and Gleeson JJA agreed) described the contents of the letter, particularly the accusation of bad faith and dishonesty in the preparation of the judgment, as "clearly inconsistent with the minimum degree of trust and civility between legal practitioners and the judiciary that is essential to the administration of justice and the integrity of the judicial system".[159] Later, his Honour said:

These allegations necessarily suggested that the Judge breached the most fundamental duties he owed as a judicial officer, acted dishonestly (by passing off a judgement as his own that he had not written), acted in bad faith, and displayed actual bias towards a litigant and vindictiveness to the Solicitor. In addition, the Letter demanded that the Judge alter orders made in open Court and threatened that if his Honour did not do so, he would suffer embarrassment as a result of the Solicitor's actions.

The contents of the Letter must be judged on their face. There is not a shred of evidence advanced in the Letter to support any of the allegations of impropriety made against the Judge. The "discourtesy" and "offensiveness" lay both in the making of scurrilous allegations by the Solicitor about the Judge's conduct, and the manifest absence of any material that could possibly justify making the allegations in any forum, let alone in a private communication to the Judge. The Letter showed that the Solicitor was prepared to make allegations that the judicial process had been undermined by improper behaviour of the Judge, without any material that could justify any such allegation... [160]

1. Sackville AJA concluded from the contents of the letter that the "finding of professional misconduct was open because the Solicitor made allegations of serious misconduct against a judicial officer before whom the Solicitor had appeared, without providing any supporting evidence".[161]
2. The Law Society referred to the respondent's admission in cross-examination that whatever basis he thought he had for making the allegations was contained in the letter[162] and submitted that the contents of the letter did not disclose any objectively reasonable basis for the accusations of serious misconduct against Judge Neville.
3. The respondent's closing submissions claimed that the "breach of the rules of propriety driven by the Respondents reactive and defensive personality was impermissibly offensive and discourteous".[163]
4. We refer to our findings at paragraphs 199 to 210. The contents of the letter were not merely impermissibly offensive and discourteous. The respondent made unsubstantiated allegations of the most serious kind against Judge Neville in an improper attempt to damage his standing and reputation at the Court and to procure his removal from hearing cases in which the respondent and his unidentified "associates" may appear. We are satisfied that the allegations were of serious impropriety involving breaches of fundamental duties owed by a judicial officer and which questioned Judge Neville's competence and fitness to continue as a judicial officer. The contents of the letter provided no evidence capable of substantiating the allegations and that could justify the respondent making them in a letter to the Chief Judge of the Court.
5. In an affidavit filed a few days before the hearing, the respondent deposed:

I do not regret writing to the Chief Judge as it correctly reflected my feelings and my perceptions about the conduct of his Honour Judge Neville.[164]

1. The respondent relied on the affidavit without withdrawing the paragraph.
2. We find the charge that the respondent breached rules 5.1.1 and 5.1.2 in the manner alleged, is proved.
3. We find that the respondent's conduct, and his lack of insight demonstrated by his evidence in an affidavit filed shortly before the hearing deposing that he did not regret writing to the Chief Justice in the terms that he did because it "correctly reflected [his] feelings and...perceptions about the conduct"[165] of Judge Neville, shows that he is not a fit and proper person to practise law.

1. On 23 March 2017, the applicant in the CFMMEU proceeding filed an application and lengthy statement of claim in the Federal Circuit Court alleging the respondents had contravened the Fair Work Act 2009 (Cth) by entering into sham contracting arrangements regarding the employment of several construction workers.
2. On 17 July 2017, the Court made orders for the respondents to file a response and defence by 31 August 2017.
3. Rule 4.01 of the Federal Circuit Court Rules 2001 (FCCR) requires a proceeding to be started by filing an application in the approved from unless otherwise provided by the rules. Rule 4.03 requires a respondent to an application to file a response in accordance with the approved form. Rule 4.05 requires that a person filing an application or response must also file an affidavit stating the facts relied on. Rule 4.05(2)(b) creates an exception in a proceeding that is not a child support or family law proceeding if the person filing an application files a statement of claim instead of an affidavit. In such a case rule 4.05(3)(a) requires the respondent to file a defence instead of an affidavit. Rule 1.06(2) provides that if the Court gives a direction or makes an order that is inconsistent with any of the rules, the direction or order prevails.
4. The respondents filed a response but failed to file a defence.
5. On 26 September 2017, the Court made further orders requiring the respondents to file a defence. The Court noted that if no defence was filed by 7 October 2017 the respondents were at risk that default judgment may be entered against them.
6. On 3 October 2017, the respondent prepared, certified, signed and filed a defence which asserted among other things that:

... this Court does not have "legal authority" to order "the Respondents" to file a Defence (par.1); in ordering that a Defence be filed the Court has acted "ultra vires" (par.2); and that, in any event, "the Respondent is not bound by any statements made in the Defence. The Defence is irrelevant" (par.5).[166]

1. The defence failed to plead to the allegations in paragraphs [11]-[43], [45]-[83], [85]-[118] and [120]-[133] of the statement of claim.
2. On 10 October 2017, the applicant filed an application for the defence to be struck out and for default judgment to be entered.
3. On 18 May 2018, Judge Neville ordered the defence to be struck out and default judgment to be entered in favour of the applicant.
4. On 1 June 2018, the Registrar of the Federal Circuit Court, at Judge Neville's request, furnished a copy of the orders and his Honour's reasons for judgment to the Law Society.
5. On 16 November 2018, Judge Neville delivered judgment in respect of costs. His Honour ordered the respondent to personally pay the applicant's costs in the sum of $5,000.

1. Mr Singh sought a review of the delegate's decision not to grant him a visa. On 11 September 2015, the Migration Review Tribunal wrote to Mr Singh's authorised agent, Mr Hourigan, to advise him of a hearing on 15 September 2015. On 14 September 2015, Mr Hourigan informed the Tribunal that he would not be appearing on behalf of Mr Singh.
2. On 15 September 2015, Mr Singh attended the hearing with the respondent. The hearing record indicates that the respondent was to complete a Notice of Appointment as Mr Singh's agent. However, the respondent failed to do so.
3. On 23 September 2015, the Tribunal affirmed the delegate's decision to refuse to Mr Singh's visa application. On the same day, the Tribunal notified Mr Hourigan of its decision.
4. On 27 March 2017, the AAT forwarded a copy of the decision to the respondent.
5. On 28 March 2017, the respondent filed an application in the Federal Circuit Court on behalf of Mr Singh seeking a review of the Tribunal's decision and an extension time for making of the application. In support of the application, the respondent affirmed and filed an affidavit in which he deposed:

The AAT notified the Applicant of its decision on 27 March 2017 by way of e-mail addressed to the deponent. A copy of the notification attached as [sic] Annexure 'D'.[167]

1. On 18 May 2018, Judge Neville refused the application for an extension of time.
2. On 1 June 2018, the Registrar of the Federal Circuit Court, at Judge Neville's request, furnished a copy of the orders and his Honour's reasons for judgment to the Law Society.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 by filing a defence in the CFMMEU proceeding that he knew, or should have known, exposed his client to the risk of default judgment and which resulted in that outcome.
2. The Law Society submitted that in preparing the defence in the manner that he did, the respondent prioritised pursuing his personal idiosyncratic notion that a defence was not warranted over advancing and protecting his client's interests as best he could. Further, it appears that the respondent filed the defence without instructions from his client, who was overseas at the time and could not be contacted.[168]
3. The respondent's closing submissions conceded that the pleadings were "inadequate and in breach of what amounted to a "guillotine order" and were in a form and had content that was irrelevant to the conduct of the proceedings".[169]
4. We find the charge that the respondent breached rules 4.1.1 and 4.1.3 is proved. We refer to our findings at paragraphs 270 to 278.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 by failing to file a Notice of Appointment in the Singh proceeding.
2. The respondent admitted failing to do so.[170]
3. We find the charge that the respondent breached rule 4.1.1 is proved. We refer to our findings at paragraph 280 and 281.

1. The issue is whether the respondent breached rules 5 and 19.1 by making a misleading statement in an affidavit filed in the Singh proceeding without taking any steps, or any reasonable steps, to ascertain the true facts.
2. The affidavit conveyed the misleading impression that responsibility for the approximately 18-month delay in the Mr Singh receiving notice of the AAT's decision to refuse his visa application lay with the AAT, when the true position was that the respondent was not notified of the AAT's decision on the day it was handed down because he failed to file a notice of appointment. We accept the Law Society's submission that the respondent failed to state the whole truth in his affidavit in circumstances where it was known to him.
3. We find the charge that the respondent breached rule 19.1 and his common law duty of honesty and candour to the Court proved. We refer to our findings at paragraphs 281 to 287.

1. On 1 September 2016, the respondent represented an applicant seeking a review of a decision to refuse him a protection visa before Member Short in the AAT.
2. Shortly after the hearing began, the respondent asked the Member to recuse himself on the grounds of bias. The respondent claimed that Member had dismissed a high percentage of cases in the previous four years and that this was evidence of bias. The Member declined to recuse himself, noting that the Full Court of the Federal Court had ruled against using statistical arguments of that kind to support an allegation of bias.
3. As the hearing progressed the respondent:

(a) frequently spoke over Member Short, the interpreter and the applicant;[171]

(b) frequently interrupted saying words to the effect that "the applicant is not answering that question";[172]

(c) several times directed his client that he must not answer the Member's question;[173]

(d) frequently interrupted saying words to the effect that "the applicant refuses to answer the question on the grounds that it may incriminate him";[174]

(e) repeatedly accused Member Short of bias and disgraceful conduct.

1. The following are examples from the transcript of the hearing.

Representative: If you continue with this matter and you've continued to ask questions which display your bias, we will be raising the issue of bias at each and every question and my client will not be answering those questions if I decide that this is evidence of further bias. If you continue to act in this manner, then we will be leaving these proceedings.

Member: Right, so just so I'm clear, were you married at the time of that incident?

Representative: The applicantis not answering that question.

Member: Well [redacted], it's entirely up to you whether you answer the question or not, but um, if you refuse to answer the question it does create a problem for you.

Redacted: Yes, the document that I have turned in in [redacted] I had a wife.

Representative: For the record the applicant is not answering that question.

Member: Well for the record Mr Ford he just has answered the question.

Representative: Right, well that answer is to be struck out from the record.

Member: It's not going to be struck from the record, we don't strike things from the record in this Tribunal Mr Ford.

Representative: The applicant did not answer that question.

Member: The applicant did answer the question and his response has been noted.

Representative: Well the applicant wishes to state that he was not answering this questions.

Member: The applicant doesn't wish to state anything Mr Ford. You're stating things for him.

Representative: That's right, I've been instructed by the applicant.

Member: You haven't been instructed by the applicant.

Member: You haven't taken any instructions from him at all, Mr Ford.

Representative: Yes I have, yes I have, I have instructions from my client and it's nothing to do with you what those instructions are.

Representative: This is further evidence - this is further evidence of your bias and you've got, you're on one more, one more, one more chance and we're out of here.

Member: [redacted] once again, it's entirely up to you whether you remain in the hearing room. This hearing is your opportunity to give evidence in relation to your claims.

Representative: It's up to you to ask in an unbiased manner and not

Member: Will you let the interpreter interpret what I have just said Mr Ford? Please. Thank you. Would you please let the interpreter interpret what I just said?

Representative: No, No, not while you continue to act in this biased manner.

Member: Mr Ford if you don't let the interpreter interpret what I just said, there is no point in continuing with the hearing and I'll take an adjournment.

Representative: Honest, that's my view, there's very little point in continuing because you are biased.

Representative: You must not answer the questions.

Member: For the record, Mr Ford, you've just instructed your client not to answer questions?

Member: You're aware that a, you're aware that's a criminal offence?

Member: It's a criminal offence not to answer questions before this Tribunal [redacted], you should be aware of that.

Representative: Listen, the applicant has instructed me he is not answering these questions because these questions are entirely prejudicial to my client, and you know that, that's why you're asking them. The question about passport issue is totally irrelevant to the member before the court, before the Tribunal.

Member: Can you tell me [redacted] if you had any difficulty obtaining your passport?

Representative: The applicant is not answering that question. The applicant is not answering that question.

Representative: The applicant refuses to answer the question on the grounds it may incriminate him.

Member: [Redacted] it's entirely up to you whether you answer the question, it's entirely up to you whether you keep Mr Ford in the room or not.

Representative: The applicant understands, the applicant refuses [redacted] [overtalking]

Member: You can dismiss Mr Ford at any time. Mr Ford is not helping your case.

Representative: You are to recuse yourself from this matter. I am raising this through bias, you are biased in this matter, I want you to recuse yourself?

[redacted]: If you do not recuse yourself - we are leaving the meeting if you do not recuse yourself.

Representative: Are you going to recuse yourself - are you going to recuse yourself or not, yes or no?

Representative: Are you going to recuse yourself, yes or no?

Member: [Redacted], this hearing is your opportunity to give evidence - this is your opportunity [redacted]. You can stay there or you can go. If you go I'm going to make the decision on the basis of the material already before me.

Representative: Your conduct is disgraceful. Absolutely disgraceful.[175] [Redactions in original]

1. The respondent then left the hearing with his client.
2. On 30 November 2016, Member Short decided the application adversely to the applicant.
3. The applicant subsequently sought judicial review of the decision in the Federal Circuit Court in EAN16 v Minister for Immigration and Border Protection & Anor, Case No: CAG90/216. On or about 14 July 2017, the Court made orders by consent quashing Member Short's decision.
4. The consent orders included the following notation:

In accordance with s 425 of the Migration Act 1958 the Applicant was not afforded a "real and meaningful" opportunity to appear at the hearing to give evidence and present arguments because of his representative's conduct, which included the representative repeatedly interrupting the proceeding in a way which did not allow the Applicant to answer the Tribunal's questions and ended in the representative "manhandling" the Applicant out of the hearing room: see Minister for Immigration and Border Protection v MZAIV [2016] FCA 251 at [57]- [61]; Minister for Immigration and Multicultural and Indigenous Affairs v SCAR [2003] FCAFC 126; 128 FCR 553 at [37]. [176]

1. On 11 May 2018, Peter Dwyer from the Department of Home Affairs provided a copy of the consent orders and transcript of the proceedings before Member Short to the Law Society.

1. On 26 November 2014, a delegate of the Minister for Immigration refused to grant a protection visa to an applicant referred to as BNJ17.
2. BNJ17 applied to the AAT for a review of the decision. The AAT dismissed the application on 6 December 2016, when BNJ17 failed to appear at a scheduled hearing. BNJ17 was notified of the decision and advised that reinstatement of the application could be sought within 14 days. BNJ17 failed to do so. On 22 December 2016 the AAT confirmed the decision to dismiss the application.
3. On 7 April 2017, the respondent prepared and filed an application for judicial review of the AAT decision and the Minister's decision on behalf of BNJ17 in the Federal Circuit Court. The respondent certified that there were reasonable grounds for believing that the application had a reasonable prospect of success.
4. On 10 April 2017 the respondent filed an application for an extension of time for filing the application for judicial review. The grounds included:
   1. That the Applicant applied for a protection visa under the Migration Act 1958 (Cth).
   2. The delegate to the Minister for Immigration refused to grant the visa to the applicant on 26 November 2014.
   3. The applicant, through a migration agent, filed a review application with the Tribunal against the decision of the Minister.
   4. The matter was set for hearing on 6 December 2016 at the Tribunal before a member.
   5. The applicant was not made aware about the hearing date by her migration agent at the Tribunal and missed the opportunity to give evidence and to make arguments in favour of her case.
   6. The authorised migration agent of the applicant, after receiving the decision, never disclosed outcome of the application to the applicant.
   7. The Tribunal advised the migration agent about reinstatement option of the application and that the reinstatement could be sought within 14 days from the date of refusal.
   8. The migration agent kept the applicant in dark and did not tell her about the given opportunity of the reinstatement and lost the opportunity to appear before the Tribunal. [177]
5. Subsequently, the Minister's legal representative informed the respondent by email that the AAT file contained no indication that a migration agent had been involved at any time prior to the AAT making its decision.
6. On 5 April 2018, the respondent prepared and filed an amended application in which the references to "migration agent" in the grounds of application were replaced by references to "a friend". The respondent again certified that there were reasonable grounds for believing that the application had a reasonable prospect of success.
7. On 27 April 2018, the application for an extension of time was heard by Judge McNab. The respondent appeared for BNJ17. The respondent did not present any affidavit evidence from the applicant, or the applicant's friend, deposing to the facts outlined in the grounds of application.
8. During the hearing the respondent submitted:

Now, it's important to note here, your Honour, that even if the case is a hopeless case, an application can be extended - the time can be extended.[178]

1. The respondent was unable to refer the Court to any authority for that proposition.
2. The following exchange related to the references to a migration agent in the original application:

HIS HONOUR: I'm telling you that you really ought to listen to what is being said. And I'm trying to impress on you the importance and the seriousness of this.

MR FORD: Well, your Honour, I'm simply - the applications that were lodged - - -

HIS HONOUR: It doesn't stop - may not necessarily stop with a costs application.

_MR FORD: Yes. I accept that, your Honour. But I'm simply trying to explain that I was simply acting on the instructions of my client, in terms of who was representing her at the - _

HIS HONOUR: But if you're instructing - if you were taking instructions and you were signing off, you would say, "Well, who was the migration agent; what's their name and address?"

MR FORD: Well, with respect, your Honour, the status of the representative is, in the applicant's submission, not relevant here, because at the end of the day it's the applicant's contention that that representative - - -

HIS HONOUR: Yes. But a paid representative - when a paid representative is in error, that is of a different species of error to a layperson attempting to help someone and then messing it up. But when you have a paid agent who is negligent, then that is a different species of error and is treated differently by courts. Do you appreciate that?

MR FORD: Well, I accept that, your Honour. But the evidence, as I understand it from my client, is that the person who helped the applicant was a friend. And that's why I put it in the subsequent document. The issue that's at stake here, your Honour, is that the applicant - the friend did not tell my client about any tribunal hearing and had no knowledge whatsoever of any tribunal hearing. And that's why she didn't attend. If she knew, she would have attended. Now, I wasn't involved in this matter in any way, shape or form when all this happened. I came in after the event and I took instructions from my client.

HIS HONOUR: But why didn't you then deal with the matter, once you had received notification by the email?

MR FORD: Well, because I don't think the status of the applicant is relevant to the issue which is before the court. And the issue which is before the court is that there has been a failure to exercise the statutory duty.

HIS HONOUR: Yes. But you know that that's not the case.[179]

1. The following exchange concerned the failure to file any evidence:

HIS HONOUR: But it's a jurisdiction which relies on evidence, if there is evidence to be given. And you can file affidavits, which haven't been filed. There were orders made in relation to the filing of material; material hasn't been filed. You've made statements from the bar table.

MR FORD: Well, it would appear, your Honour, that you're simply placing great weight on an apparent inconsistency between the first application and the second application.

HIS HONOUR: No. I'm talking about the absence of any evidence from the friend.

HIS HONOUR: There's no evidence from the applicant or the friend as to the circumstances of this delay.

MR FORD: Well, because the applicant and the friend don't need to give evidence, your Honour, because the -

HIS HONOUR: Well, you can't just give evidence from the bar table about things.[180]

1. On 27 April 2018, Judge McNab delivered an ex-tempore judgment, which was later published, finding that the application had no reasonable prospects of success.[181] His Honour made orders dismissing the application, requiring the respondent to pay the Minister's costs and repay to BNJ17 any costs paid to the respondent in connection with the proceedings, and precluding the respondent from recovering any costs he had incurred in commencing and continuing the proceedings.
2. On 11 May 2018, Peter Dwyer of the Department of Home Affairs, provided a copy of the transcript of the proceedings before Judge McNab to the Law Society.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and/or 5 by his conduct during the AAT proceeding in talking over the Tribunal Member, directing his client not to answer questions asked by the Tribunal Member, pressing the Tribunal Member to recuse himself, leaving the hearing with his client before the Tribunal Member had concluded the hearing and accusing the Tribunal Member of disgraceful conduct.
2. The Law Society submitted that in directing his client not to answer the Tribunal's questions, the respondent revealed a lack of understanding of his client's rights and obligations in relation to a tribunal hearing and his role as the client's representative at the hearing. As such the respondent failed to act in the best interests of his client and failed to deliver legal services competently and diligently. The Law Society submitted also that the respondent breached his ethical obligations in alleging that the Tribunal Member's conduct was disgraceful.
3. The respondent's closing submissions conceded that the respondent's conduct, particularly his comments to the Member, was grossly discourteous and without a proper basis and as such the respondent failed to act in the best interests of his client and failed to deliver legal services competently and diligently.
4. The respondent's affidavit affirmed on 25 November 2020 dealt with this incident.[182] It is apparent that the respondent saw nothing wrong with his conduct. Rather, we surmise he sought to justify it by annexing an undated letter that he wrote to Tribunal Member Short in relation to a different matter in which he accused the Tribunal Member of bias and suggested that "you must now resign given that you are completely compromised."[183] Also included as part of the annexure is a letter the respondent wrote to the Attorney-General, dated 5 September 2016, in which he made allegations of bias and improper conduct against the Tribunal Member, including that the Tribunal Member "engag[ed] in a rather crude form of intimidation" of the respondent's client. The respondent requested that the Attorney-General investigate the matter and offered his opinion that the "member has clearly established a case of proven misbehaviour and his position at the Tribunal should be terminated".[184]
5. We refer to our findings at paragraphs 298 to 305. We find the allegation that the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and 5 proved. By his reliance on the abovementioned correspondence, we consider the respondent has demonstrated a complete absence of insight in relation to his failure to comply with acceptable standards of professional conduct and a lack of understanding of basic ethical rules governing practise as an advocate before a court or tribunal.

1. The issue is whether the respondent breached rules 4.1.1, 4.1.3 and/or 5 by providing legal services connected with an application filed on 10 April 2017 in the BNJ17 proceeding, which had no reasonable prospects of success.
2. The respondent's closing submissions conceded that the respondent had failed to conduct the proceeding in a manner reflecting a satisfactory degree of competence, in clear breach of rules 4.1.1 and 4.1.3. We agree.
3. We find the charge that the respondent breached rules 4.1.1 and 4.1.3 is proved. We refer to our findings at paragraphs 307 to 318.

1. The issue is whether the respondent breached rules 19.1 and/or 19.2 and his common law duty of honesty and candour to the Court by filing an application on 10 April 2017 in the BNJ17 proceeding, knowing that the application contained false information or with reckless indifference as to the truth or falsity of the contents.
2. The Law Society submitted that the respondent's failure to provide any explanation as to why he stated inaccurately in the application that the client had engaged the assistance of a migration agent, and the lack of any evidence that the respondent had a proper basis for the statement allows the Tribunal to "more safely conclude" that the respondent made the statements "knowing them to be misleading " or with reckless indifference as to their truth or falsity.
3. The respondent's closing submissions admitted the breach but said it was due to the respondent's failure to document and understand his instructions. Thus it was said that the "breach was driven by carelessness and was not a purposeful misleading of the Court nor was the conduct driven by reckless indifference to the truth"[185]
4. The allegations that the respondent drafted detailing the involvement of the migration agent were quite elaborate. They included that the migration agent filed the review application but failed to inform the applicant of the hearing date, then concealed the outcome after receiving notice of the decision to reject the application and kept the applicant in the dark about the AAT's advice that reinstatement could be sought provided the application was made within 14 days. How those allegations can be squared with the respondent's subsequent statement to the Court that his client instructed him that a friend, rather than a migration agent, had been assisting with the application was not explained to the Court. Nor was it explained in the respondent's evidence to the Tribunal. What is clear, however, is that the respondent failed to make even the most basic enquiries to confirm that there was a proper basis to make the allegations about the migration agent's involvement. We consider that the respondent made the statements with reckless indifference as to their truth or falsity.
5. We find the charge that the respondent breached rules 19.1 and 19.2 and his common law duty of honesty and candour to the Court by recklessly misleading the court and failing to correct the misleading statements as soon as possible, is proved. We refer to our findings at paragraphs 307 to 318.

1. Section 386 of the LP Act states that '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.

1. Section 387 states that 'professional misconduct' includes:
   1. 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
   2. 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. Section 389(a) provides that, without limiting sections 386 or 387, conduct consisting of a contravention of the LP Act can be unsatisfactory professional conduct or professional misconduct.
3. The Law Society submitted that there was little utility in characterising separately the conduct in relation to each charge and that there were compelling reasons for the Tribunal to characterise globally the respondent's conduct in respect of each application. The Law Society gave five reasons.

(a) First, all the conduct underlying the 19 charges in OR 13/2020 had its genesis in legal services performed on behalf of Ms Ramos and the facts underlying the charges were inextricably interwoven.

(b) Second, while the other applications related to conduct in respect of different clients and matters, there was a unifying aspect in that they all involved breaches striking at the heart of qualities essential for a lawyer - i.e. honesty, integrity, reliability, and trustworthiness.

(c) Third, many of the breaches were of sufficient seriousness to be regarded of themselves as professional misconduct.

(d) Fourth, it was appropriate to have regard to a range of the respondent's conduct to determine whether it involved a consistent failure to reach or maintain professional standards.

(e) Fifth, a global characterisation in respect of each application did not carry the risk of certain charges being used as an aggravating factor in respect of other charges, whether in respect of characterisation or penalty. This was a reference to the cautionary comments expressed in LP 201823 v Council of the Law Society of the ACT [2019] ACAT 97 at [215]- [221].

1. The respondent agreed, in closing submissions, that it was preferable for the Tribunal to consider the respondent's conduct globally in respect of each application, rather than undertake a piecemeal assessment of individual acts.
2. The multiplicity of charges in separate applications involving different parties and proceedings and covering different but often overlapping time periods makes it difficult to obtain a chronological overview of the respondent's conduct. We think such an overview is necessary to decide whether any kind of global assessment of the respondent's conduct is appropriate, including where it is alleged that there has been a substantial or consistent failure to reach or maintain a reasonable standard of diligence and competence.
3. We have found the following charges proved.

(a) In September 2015, in the Singh proceeding, the respondent breached rule 4.1.1 by failing to complete and file a notice of appointment.[186]

(b) In September 2016, in the AAT proceeding, the respondent breached rules 4.1.1, 4.1.2, 4.1.3 and 5 by his conduct at the hearing before Tribunal Member Short.[187]

(c) In March 2017, the respondent:

(i) in the AXY17 proceeding, breached rule 4.1.3 by failing to deliver legal services competently and diligently;[188]

(ii) breached sections 222 and 269 of the LP Act and misappropriated trust moneys received in relation to the AXY17 proceeding;[189]

(iii) in the AXY17 proceeding[190] and Singh proceeding, breached rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[191]

(d) In April 2017, in the BNJ17 proceeding, the respondent breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently, and rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[192]

(e) In July 2017, in the AXY17 proceeding, the respondent breached rule 19.1 and his duty of honesty and candour to the Court by recklessly misleading the Court.[193]

(f) In September 2017, in the AXY17 proceeding, the respondent breached rule 5 by failing to comply with a Court order requiring him to repay costs to his client.[194]

(g) In October 2017, the respondent:

(i) in the C7A proceeding, breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently, and rule 19.2 and his duty of honesty and candour to the Court by failing to correct an earlier misleading statement made carelessly to the Court;[195]

(ii) in the CFFMEU proceeding, breached rules 4.1.1 and 4.1.3 by failing to act in the best interests of the client and failing to deliver legal services competently and diligently;[196]

(iii) breached rules 5.1.1 and 5.1.2 by making unsubstantiated allegations of serious improper conduct against a judicial officer.[197]

(h) Between November 2017 and May 2018, the respondent breached rules 43.1 and 43.2 and his common law duty to inform and assist the inquiry into his conduct by making statements to the Law Society that the respondent knew to be false and in failing to provide a full and accurate account of his involvement in the matter.[198]

1. We agree that it is not appropriate to attempt to characterise the respondent's conduct by reference to each individual charge. On the other hand, we see real practical difficulties in attempting to characterise the respondent's conduct globally in relation to each application. We consider that where the categories of conduct and the times at which it occurred are closely related, even if relating to different matters, a hybrid approach is preferable.
2. The conduct in September 2015 involved a relatively minor and isolated instance of unsatisfactory professional conduct that might well be the result of mere oversight.[199] It is not appropriate to consider it in assessing whether there has been a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence where the other potentially relevant instances of unsatisfactory professional conduct occurred some 18 months to 2 years later, as we explain shortly.
3. The respondent's conduct in connection with the hearing in the AAT proceeding in September 2016 was sufficiently serious to warrant consideration whether it amounts to professional misconduct.[200] The respondent's conduct was grossly offensive, incompetent, and inexcusable. It was clearly prejudicial to the administration of justice, resulting as it did in the respondent's client effectively being denied a real and meaningful opportunity to have his case heard and determined on its merits. It was conduct that in our view is likely, to a material degree, to bring the profession into disrepute. It demonstrates, clearly in our view, that the respondent is not a fit and proper person to practise law. His lack of insight into the gravity of his departure from required standards of professional conduct when appearing as an advocate, after having ample opportunity to reflect on his conduct, confirms our opinion that he is not fit to practise law. We consider the respondent's conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
4. The respondent's failure to act in the best interests of his clients and failure to deliver legal services competently and diligently at various times between March and October 2017 in the AXY17, BNJ17, C7A and CFFMEU proceedings, in our view should be characterised globally as involving a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence.[201] We consider the respondent's conduct meets the definition of professional misconduct in section 387(1)(a).
5. The respondent's conduct in recklessly misleading the Court at various times between March and July 2017 in the AXY17, Singh and BNJ17 proceedings and in failing, in October 2017, to correct an earlier misleading statement made carelessly in the C7A proceeding all involved serious breaches of the respondent's duty of honesty and candour to the court.[202] The breaches in relation to the AXY17 proceeding were particularly egregious. The duty was described by Mahoney JA in Law Society of (NSW) v Foreman[203] as the "the first and primary obligation of a solicitor practising before the courts". It has also been described as a duty that is "of fundamental importance in the due administration of justice".[204] The respondent's conduct reveals him to be a person lacking in the essential qualities of a solicitor practising before the courts - honesty, integrity, reliability, and trustworthiness. We consider the respondent's conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
6. We consider the respondent's breach of his costs disclosure obligations under sections 269 to be unsatisfactory professional conduct.[205]
7. The breach of section 222 relating to his failure to deposit money paid on account of costs into a trust account, his misappropriation of trust moneys by retaining the funds paid into his office account to his use before becoming entitled to them, and his failure to repay costs to his client in compliance with the Court's orders, are closely related and should be characterised collectively as conduct involving dishonesty.[206]
8. In Law Society of NSW v Jones (NSW Court of Appeal, unreported, 27 July 1978) Street CJ said at page 10:

Reliability and integrity in the handling of trust funds are fundamental prerequisites in determining whether an individual is a fit and proper person to be entrusted with the responsibilities belonging to a solicitor. Members of the public, many of them wholly inexperienced and unskilled in matters of business or of the law, inevitably must put great faith and trust in the honesty of solicitors in the handling of moneys on their behalf. The court must ensure that this trust is not misplaced.

1. As the Full Court of the ACT Supreme Court said in Council of the Law Society of the Australian Captial Territory v Giles:

Honesty in relation to trust account funds is critical to the proper practise of law. A lawyer's trust account has been described as "sacred", and the importance of dealing strictly with trust monies has been emphasised repeatedly.[207] (Citations omitted)

1. We consider the respondent's conduct meets the definition of professional misconduct in section 387(1)(b) of the LP Act.
2. The respondent's conduct in making unsubstantiated allegations of serious improper conduct against a judicial officer in an improper attempt to damage the judge's reputation and standing with the Federal Circuit Court and to procure his removal from hearing cases in which the respondent appeared,[208] meets the definition of professional misconduct in section 387(1)(b) of the LP Act: see Griffin v The Council of the Law Society of NSW [2016] NSWCA 364 at [108], [111]-[112] per Sackville AJA referred to earlier at paragraph 261.
3. The respondent's conduct in making statements to the Law Society in connection with its investigation of the complaint arising out of the AXY17 proceeding, that the respondent knew to be false and in failing to provide a full and accurate account of his involvement in the matter,[209] in our view also meets the definition of professional misconduct in section 387(1)(b) of the LP Act.

1. It has been emphasised repeatedly that honesty, integrity, and reliability are essential qualities for the practise of law. In NSW Bar Association v Cummins [2001] NSWCA 284, in a passage that has been adopted by the Full Court of the ACT Supreme Court in Law Society of the ACT v Stubbs [2017] ACTSCFC 3 at [33] and Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [143], Spigelman CJ said at [20]:

There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

1. The Law Society submitted that the respondent's conduct demonstrates that he cannot be trusted: by courts and tribunals to state legal and factual matters accurately; by fellow practitioners to state matters correctly and reliably in submissions, affidavits and court documents; by the Law Society to be open and frank in respect of his conduct; and by clients and the public in relation to the handling of client money, to provide legal services in a manner which will best protect their interests and to comply with mandatory costs disclosure obligations. It was profoundly disquieting that notwithstanding the respondent had prepared seven affidavits, he had not expressed any insight or understanding of the seriousness of his misconduct and neither had he expressed any remorse or contrition.
2. The Law Society submitted that the paramount consideration for the Tribunal is the protection of the public, the administration of justice and public confidence in the legal profession.[210] In discharging its protective jurisdiction, the only appropriate order the Tribunal should make is to recommend that the respondent's name be removed from the Roll.
3. The respondent's closing submissions characterised the respondent's conduct as unsatisfactory professional conduct that reflected poor organisation of work, a failure to understand and record his client's instructions, impulsivity, and a general lack of competence. The submissions accepted the respondent had mislead the Court and the Law Society but claimed this was "not driven by malicious intent but rather carelessness, laziness and a dogmatic certainty that what he was saying to the Court was correct".[211] The submissions also denied any misleading statements were made recklessly as to whether they were true or not. The submissions said the respondent's conduct demonstrated a consistent failure to conduct his practice in accordance with the minimum standards expected of a solicitor with an unrestricted practising certificate driven by the respondent's carelessness and laziness. It was submitted that those 'habits' could be broken by retraining and supervision.
4. The respondent submitted that protection of the public had been achieved by the cancellation of his practising certificate. The appropriate penalty, considering the totality of the respondent's conduct, is to dispose of the charges by a modest fine and a requirement that prior to making an application for reinstatement of his practising certificate, the respondent should undertake retraining through the ANU College of Law and appropriate CPD. Any practising certificate issued to the respondent should be restricted to require the respondent to remain under the supervision of a solicitor with good standing for an appropriate period.
5. The respondent's submissions cannot stand with our findings that the respondent is guilty of professional misconduct on multiple grounds. We accept the Law Society's submission that the respondent's conduct demonstrates that he cannot be trusted in respects that are essential to the practise of law and that he lacks any insight into, or understanding of, the seriousness of his misconduct. His conduct at the hearing, where we found his evidence lacked candour and in important respects was dishonest,[212] reinforces our opinion that the respondent is permanently unfit to engage in legal practice.
6. We are satisfied that the appropriate order that should be made under section 425(3) of the LP Act is an order recommending that the respondent's name be removed from the roll of legal practitioners kept by the Supreme Court of the Australian Capital Territory.

1. Section 433(1) of the LP Act provides that if the ACAT finds a legal practitioner guilty of unsatisfactory professional conduct or professional misconduct the ACAT must order the practitioner to pay costs unless the ACAT is satisfied that exceptional circumstances exist. Section 433(5) provides that an order for costs may be for a stated amount or, if for an unstated amount, must state the basis upon which the amount is to be decided.
2. Our preliminary view is that there are no exceptional circumstances that would justify not making an order for the respondent to pay the Law Society's costs of each application. We propose to allow the parties time to confer with a view to reaching agreement on the terms of any costs order, failing which they will be required to file and serve submissions on costs within 14 days of the date of the final orders.

1. Section 423A of the LP Act restricts publication of an account or report of a disciplinary application that allows the identity of the person concerned to be worked out. The identity of the person concerned may be disclosed if a final decision has been made that the person is guilty of the conduct complained of and either the appeal period has elapsed and no appeal has been made, or any appeal has been decided against the person involved.
2. The nature of the charges makes it impractical to anonymise the reasons for decision to preclude the name of the respondent to be worked out. Accordingly this decision will not be published until the later of the ending of the appeal period or the final determination of any appeal.

Mr C Levingston, Christopher Levingston & Associates

[1] OR 12/2020 application for disciplinary action filed 2 July 2021 at [12], [13], [23]-[25], [29]; OR 13/2020 application for disciplinary action filed 2 July 2021 at [53]-[58]; OR 14/2020 application for disciplinary action filed 2 July 2021 at [16]-[20], [37]-[39]; OR 15/2020 application for disciplinary action filed 2 July 2021 at [21], [46]-[48]

[2] See for example Hilton v Legal Profession Admission Board at [54]-[58]; Prothonotary v Comesky at [48]; King v Muriniti at [34]-[36]; Davidson v Legal Profession Admission Board at [21]-[24]; Council of the Law Society of NSW v Yoon at [24], [25] and [32]

[3] Transcript of proceedings 16 March 2020, page 40, lines 30-35

[4] Amended Respondent's Reply to Applicant's Statement of Facts, dated 22 April 2021

[5] Statement of Facts at [25], [26], [36]-[38], [42], [97]-[101], [164]-[167], [185]-[186], [203], [230]-[231]

[6] Applicant's Submissions on Breach, Characterisation and Penalty dated 16 April 2021

[7] Transcript of proceedings 6 May 2021, page 3 line 37 to page 4 line 22

[8] Transcript of proceedings 6 May 2021, page 39 line 35 to page 40 line 1

[9] Transcript of proceedings 6 May 2021, page 41, lines 20-29

[17] Statement of Facts at [2], [3]

[22] Amended Facts Response at [3], [6], [7], [8], [9], [11]

[23] Application in OR 12/2020 at [36]

[24] Exhibit 7 at [3]-[7] and page 8, Annexure 'A'

[25] Exhibit 7 pages 11-12, Annexure 'A'

[27] Exhibit 7 at [14] and page 19, Annexure C

[29] Exhibit 7 at [8]-[13] and page 15, Annexure B

[31] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) page 13; Exhibit A, page 18

[32] Statement of Facts at [26]-[32]

[35] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) at [19]

[36] C7A/2017 v Minister for Immigration [2018] FCCA 458 (Neville J) at [20]; Statement of Facts at [36], [37], [38]

[37] See [3] of the orders made by Neville J on 2 March 2018; Exhibit A, page 33

[39] Applicant's submissions on Breach, Characterisation and Penalty at [3.2]

[40] Exhibit 7 at [15] and Annexure D

[42] Respondent's Submissions on Breach, Characterisation and Penalty at [3.4]

[45] Findings above at [46], [54], [56]

[46] See e.g. SZRVA v Minister for Immigration and Border Protection [2019] FCA 630 (Flick J) at [20]

[50] Transcript of proceedings 16 March 2021, page 44, lines 14-37

[64] Amended Facts Response at [58], [59]

[65] Statement of Facts at [61], [62]

[66] Amended Facts Response at [63], [64]

[67] Transcript of proceedings 16 March 2021, page 83 line 20 to page 84 line 11

[68] Statement of Facts at [71], [72]

[71] Exhibit B, page 18 at [12] and [13]

[74] Respondent's Submissions on Breach, Characterisation and Penalty at [7.4]

[75] [1975] AC 135 at [149H]-[150E]

[77] Exhibit 3, [15], annexure 'I' (incorrectly identified as 'H')

[78] Exhibit 3, [16], annexure 'I' (incorrectly identified as 'H')

[79] Exhibit 3 at [17], annexure 'I' (incorrectly identified as 'H')

[80] Exhibit 3, annexure 'I' (incorrectly identified as 'H')

[82] Exhibit K - extract of transcript of hearing in SCA 33 of 2018 (Legal Practitioner v Council of the Law Society of the ACT) before Mossop J on 29 October 2018 at page 43 lines 22-28

[83] Transcript of proceedings 16 March 2021, page 99 line 41 to page 100 line 28

[84] Transcript of proceedings17 March 2021, page 133 line 42 to page 134 line 17

[85] Transcript of proceedings 17 March 2021, page 134, lines 38-41

[87] Transcript of proceedings 16 March 2021, page 100 line 30 to page 101 line 11, page 102 line 1 to page 103 line 40

[88] Transcript of proceedings 16 March 2021, page 103, lines 17-46

[89] Transcript of proceedings 16 March 2021, page 104, lines 16-23

[90] Transcript of proceedings 16 March 2021, pages 91, line 46 to page 92 line 5

[93] Transcript of proceedings 16 March 2021, page 87, lines 20-25

[94] Transcript pages of proceedings 16 March 2021, page 120 lines 26-35, 17 March 2021 page 134, lines 1-5, page 134 lines 41-46

[95] Transcript of proceedings 16 March 2021, page 55, lines 45-47

[96] Transcript of proceedings 16 March 2021, page 117, lines 31-34, page 119 lines 23-41

[98] [2013] WASCA 108 at [100]

[99] [2013] WASCA 108 at [96]

[100] The seriousness of an allegation, and the gravity of the consequences if the allegation is made out, bear upon whether the allegation is established to the reasonable satisfaction of the decision maker: Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336; The Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 (Murrell CJ, Burns and Perry JJ) at [43].

[101] An example is the respondent's adherence to the manifestly implausible position that he did not read Ms Ramos' affidavit before the hearing on 19 July 2017.

[102] Transcript of proceedings 16 March 2021, page 113, lines18-24

[103] Transcript of proceedings 16 March 2021, page 113, line 35 to page 114 line 11

[104] Transcript of proceedings 16 March 2021, page 121, lines 11-14

[106] See the Applicant's Submissions on Breach, Characterisation and Penalty at [4.45]-[4.48] and the evidence referred to there.

[108] Transcript of proceedings 16 March 2021, page 53 line 1 to page 54 line 8, page 57 lines 15-32, page 61 line 37 to 62.4

[116] Exhibit B, page 267 line 36 to page 268 line 10

[117] Exhibit B, page 268 line 33 to page 269 line 13

[119] Exhibit B, page 270, lines 13-20

[120] Exhibit B, page 272 line 14 to page 273 line 1

[121] Exhibit B, page 280, line 12-14, page 281 lines 3-5

[123] AXY17 v Minister for Immigration & Anor [2017] FCCA 2006

[129] Respondent's Submissions on Breach, Characterisation and Penalty at [4.14], [4.15]

[130] Respondent's Submissions on Breach, Characterisation and Penalty at [4.18]

[131] Respondent's Submissions on Breach, Characterisation and Penalty at [4.22]

[132] Respondent's Submissions on Breach, Characterisation and Penalty at [4.26]

[133] Respondent's Submissions on Breach, Characterisation and Penalty at [4.30]

[134] Transcript of proceedings 17 March 2021, page 179, lines 31-47

[147] Respondent's Submissions on Breach, Characterisation and Penalty at [4.2]

[148] Findings above at [80], [82], [86], [87], [95]-[97]

[149] Respondent's Submissions on Breach, Characterisation and Penalty at [4.5]

[150] Respondent's Submissions on Breach, Characterisation and Penalty at [4.7]

[151] Respondent's Submissions on Breach, Characterisation and Penalty at [4.18]

[153] Respondent's Submissions on Breach, Characterisation and Penalty at [4.43]

[155] Respondent's Submissions on Breach, Characterisation and Penalty at [4.45]

[157] Respondent's Submissions on Breach, Characterisation and Penalty at [4.47]

[158] [2016] NSWCA 364

[159] [2016] NSWCA 364 at [108]

[160] [2016] NSWCA 364 at [111]- [112]

[161] [2016] NSWCA 364 at [113]

[162] Transcript of proceedings 17 March 2021, page 194, lines 6-7

[163] Respondent's Submissions on Breach, Characterisation and Penalty at [4.54]

[169] Respondent's Submissions on Breach, Characterisation and Penalty at [5.7]

[170] Respondent's Submissions on Breach, Characterisation and Penalty at [5.9]

[172] Statement of Facts at [194(a)]

[173] Statement of Facts at [194(b)]

[174] Statement of Facts at [194(c)]

[181] [2018] FCCA 1359

[185] Respondent's Submissions on Breach, Characterisation and Penalty at [6.5]

[186] OR 14/2020, charge 2 - considered above at [292]-[294]

[187] OR 15/2020, charge 1 - considered above at [320]-[324]

[188] OR 13/2020, charge 18 - considered above at [254]-[257]

[189] OR 13/2020, charges 14, 15 and 16 - considered above at [240]-[250]

[190] OR 13/2020, charge 2 - considered above at [215]-[218]

[191] OR 14/2020, charge 3 - considered above at [295]-[297]

[192] OR 15/2020, charges 2 and 3 - considered above at [325]-[332]

[193] OR 13/2020, charge 3 - considered above at [219]-[223]

[194] OR 13/2020, charge 17 - considered above at [251]-[253]

[195] OR 12/2020, charges 2 and 3 - considered above at [67]-[73]

[196] OR 14/2020, charge 1 - considered above at [288]-[291]

[197] OR 13/2020, charge 19 - considered above at [258]-[269]

[198] OR 13/2020, charges 4 to 13 - considered above at [224]-[239]

[201] Charge 18 in OR 13/2020, charge 2 in OR 15/2020, charge 2 in OR 12/2020 and charge 1 in OR 14/2020

[202] Charge 2 in OR 13/2020, charge 3 in OR 14/2020, charge 3 in OR 15/2020, charge 3 in OR 13/2020 and charge 3 in OR 12/2020

[203] [1994] NSWCA 69; (1994) 34 NSWLR 408 page 447

[204] Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115 (Parker J) at [67]

[206] Charges 14, 15 and 17 in OR 13/2020

[207] [2020] ACTSCFC 1 at [121]

[210] Council of the Law Society of the Australian Captial Territory v Giles [2020] ACTSCFC 1 at [115]

[211] Respondent's Submissions on Breach, Characterisation and Penalty at [7.3], [7.4]

[212] Findings at [29], [49], [124], [125], [129], [136], [140], [141], [144], [150], [161], [246], [252]