I cannot remember reading the 21 February 2008 letter, this does not mean I deny (the mortgagee's solicitors) ever sent it to us. Because I cannot remember reading this letter I was unable to act on it. Had I read the letter I would have gone and acted on it, as there was no reason for me not to do so.

1. Consideration of whether he received and read this letter also involves whether he received and read a similar letter relating to the same topic sent to the respondent by the mortgagee's solicitors dated 21 April 2008. The respondent's response to whether he received it and read it is the same as his response about the 21 February 2008 letter.
2. In his submissions to the Tribunal, at paragraph 23 he said:

I stand by that I cannot remember reading or seeing the 21 April 2008 letter. (the mortgagee's solicitor) were unable to prove that they have sent this letter....

1. Both letters were sent by (the mortgagee's solicitor) in the normal course of business. It is unlikely that the first letter was not received in the office of the respondent and read by him. It is extremely unlikely that both letters were not received and were not read by the respondent.
2. The respondent wrote a letter to the mortgagee's solicitors enclosing a contract on 28 April 2008. This is the letter referred to in paragraph 32 above. It is extremely unlikely that he spontaneously wrote that letter and attached a contract without having seen either or both of the letters of the mortgagee's solicitor.
3. The respondent's letter of 28 April 2008 specifically refers to a letter of the mortgage's solicitor dated 21 February 2008. It is extremely unlikely that the respondent referred to that letter without receiving or reading it. It is almost inconceivable that he would have written the letter of 28 April 2008 had his doing so not been triggered by either or both of the mortgagee's solicitor's letters.
4. In a letter the respondent wrote to the complainants on 23 November 2008, the opening paragraphs are as follows.

I can now say that (the mortgagee's solicitor) have sent two letters to us, on 21 February 2008 and 21 April 2008.

We agree that we have not acted promptly in attending to the requests made by (the mortgagee's solicitor) in their two letters.

1. The respondent makes further reference to receipt of the letter of 21 February 2008 in a letter he wrote to the complainants of 9 December 2008. He says in the letter of 9 December 2008 the following.

Again I took the responsibility, but you will agree that (the mortgagee's solicitor) only contacted us on 21 February 2008.

1. The respondent returned to the same theme in a letter to the applicant of 9 February 2009. He said the following.

When (the mortgagee's solicitor) wrote to us on or about 21 February 2008 I fully agree we should have responded promptly to (the mortgagee's solicitor) letter and provided them with the Contract that they sought. Not providing the Contract as requested was an office administrative error; this is inexcusable.

1. Having regard to the evidence referred to above, the Tribunal is satisfied that the evidence establishes that the respondent received the letter from the mortgagee's solicitor dated 21 February 2008.
2. This finding is not only relevant to this particular, but also to later allegations.
3. The Tribunal is satisfied that the respondent's failure to respond to the letter of 21 February 2008 for over two months, until 28 April 2008 was more than a mere administrative error. The letter requested urgent assistance. It indicated what assistance was sought and the purpose of the request. It should have caused the respondent to be concerned about the position of his clients. The Tribunal is satisfied that his failure to do anything in response was negligent. The necessary result is that the Tribunal finds that particular 1 is made out.
4. The respondent seems to have regarded the need to ensure that his clients were registered as the proprietors of the property purchased in the transaction in which he acted for them, as the responsibility of the mortgagee's solicitor. In any event, having received the communication from them requesting provision of the contract, his duty to his clients was to cooperate in achieving that result. The Tribunal is of the view that the respondent's retainer was still alive at that time, the clients' interest not having been registered then. The Tribunal will return to this issue later.

1. The incorrect contract was sent. The question is whether that was done negligently.
2. The respondent had acted for one of the complainants in the sale of a residential property at about the same time, so that both matters were settled within a short period of each other. The contract that was sent was the contract that related to the other property which was a sale, rather than the purchase by both complainants. On one view, the respondent, knowing that there had been two transactions involving two contracts at about the same time should have used extra care when retrieving a contract, to ensure that it was the correct contract that he sent. The letters of 21 February 2008 and 21 April 2008 clearly showed the details of the contract requested.
3. The respondent in his submissions says that providing the wrong contract was a 'genuine administrative error'. He speculates as to how it may have come about that the incorrect contract was provided, but does not provide a positive explanation.
4. In the absence of a satisfactory explanation, provision of the incorrect contract can only be regarded as having been done negligently. It was certainly not a case in which the covering letter correctly described the contract which the respondent intended to send, and the incorrect contract was mistakenly put in the envelope.
5. The Tribunal cannot regard this as a simple error. Having received two letters correctly identifying the purchase transaction, the respondent did not take sufficient care to ensure that he was complying with the mortgagee's solicitor's request, and provides no satisfactory explanation for failing to do so. Reference to the incorrect transaction in the covering letter of 28 April 2008, excludes the possibility of a 'simple' administrative error. Both letters from the mortgagee's solicitor give the reason for requiring the contract, and stress the urgency of the situation as it affected the respondent's clients. There was a magnitude of risk for his clients and particular attention was required.

1. This particular relates to the period between the mortgagee's solicitor telling the respondent that the incorrect contract had been provided, and the actual provision by the respondent of the correct contract. The period alleged is between 5 September 2008, and 30 October 2008. This period does not include a previous period during which the applicant alleges there were phone calls from the mortgagee's solicitor to the respondent's office to chase up the correct contract. Those calls are the subject of dispute.
2. The respondent throughout the case has been critical of what he alleges to have been delays caused by the mortgagee's solicitor. Any issue of delay on the part of the mortgagee's solicitor does not arise for the period in question. It was the respondent's task and duty to provide the correct contract. The antecedent delay, whatever its cause, only underscored the need for the respondent to take timely and effective action once he received the letter of 5 September 2008.
3. It is difficult to distil from the respondent's written submission what precisely the evidence he says that the Tribunal should have regard to in relation to this issue. He admits the delay. He opens his submissions relating to this particular as follows.

I admitted in my evidence that it was unfortunate that it took us nearly 8 weeks to find the correct Contract for Sale. It is true that so much time was spent on finding the correct Contract for Sale, after making several visits to the archives, and having gone through so many archive boxes, so many times, the Contract for Sale was finally found.

1. Later in the submissions (Para 16) he suggests that after settlement he was entitled to close his file. "This is because the mortgagee/mortgagee's solicitor attends to post-settlement work. If there is no mortgagee's solicitor (example, where the buyer is a cash purchaser, without a bank), then the solicitor will continue to act for the client until the title is registered."
2. This is a misconception of the duty of a solicitor acting for the purchaser of a property post settlement, and cannot be regarded as a satisfactory explanation for the delay alleged.
3. The evidence of the respondent indicates that after he was advised by the mortgagee's solicitor of his having sent the incorrect contract, he made many visits to his archives and went through many boxes of archived files in order to locate the relevant contract, but in spite of these concerted efforts, it was not until late October that he was able to locate and provide the contract.
4. The Tribunal rejects that evidence.
5. In his affidavit of 27 April 2010, RC deposes to a conversation that he had with the respondent on approximately 29 September 2008. In that conversation RC says that he told the respondent that there was an ongoing problem getting the property transferred. In response, the respondent said: "This is the first time I have heard that there is a problem. I would need to look at the file to know anything about it. The file will be in archives and it will be some effort to get it out." There was no challenge to this evidence in cross examination. The clear inference is that the respondent had done nothing in response to the letter of 5 September 2008 at that stage.
6. It became apparent in cross examination that the respondent used an outbuilding at his residence as a storage facility. His affidavit affirmed 11 June 2010, Para. 21 indicates that both sale and purchase files were closed on the same day, 21 November 2007. They were numbered consecutively 3405 and 3406 for archival purposes, and placed in the same box, numbered 154, and then placed in storage. He says the sale file was just below the purchase file. In those circumstances, the Tribunal cannot give any credibility to the claim that the purchase contract was difficult to find.
7. The complainants prepared what they describe as a timeline which appears in Annexure 'A' to Mr Reis' affidavit of 7 December 2009, commencing at page 24. This sets out the actions taken by the complainants during September and October 2008, attempting to expedite registration of their transfer. This includes brief description of their communications with the respondent and his responses.
8. This evidence indicates that the respondent took no action to locate the contract referred to in the letter from the mortgagee's solicitors of 5 September 2008 at least until 29 September 2008. The Tribunal is satisfied that thereafter his attempts to locate the contract were either non-existent or ineffective for another 4 weeks.
9. References in the emails that passed between the respondent and the complainants in this period do not support his assertions that he had to go to the archives several times to locate the file. His correspondence makes it clear that an attitude that it was the responsibility of the mortgagee's solicitors to protect his client's interests by attending to rectification drove his inactivity. Even as late as 29 October 2008, he wrongly asserted that the correct contract had been delivered to the mortgagee's solicitor.
10. It was not until the clamour from his clients had reached what apparently was an unbearable level that the contract was produced. He appears to have been untroubled by the assertion of the mortgagee's solicitor that his own clients were in default throughout this period.
11. The Tribunal is satisfied that the respondent's conduct in this regard was negligent and that this particular is made out.

Ground 1 Generally - Failure to properly and promptly discharge the retainer

1. The Tribunal finds that each particular of this ground is made out. What was a relatively simple error involving the mis-description of RC, capable of relatively easy rectification, through mistake and subsequent inactivity became an unnecessary debacle. This was more than human error of a busy practitioner that it would be reasonable to excuse. It was conduct that fell short of the standard of competence and diligence that RC and LF were entitled to expect. The Tribunal accepts that the respondent's acts amounted to a contravention of each of the rules relied on and should be characterised as unsatisfactory professional conduct.

1. It is convenient to deal with Particulars 2.1.1 and 2.1.2 together.
2. These rely on statements made by the respondent in a letter dated 20 November 2008 to the complainants. The letter is produced in full at paragraph 19 of these decisions. The letter opens with a statement that the sequence of events was set out 'as far as we can remember'. It then incorrectly refers to settlement having occurred on 2 November 2007, rather than 9 November. The subject statement is in the second paragraph:

Nearly 7 months after the settlement, on or about 28 April 2008, we were asked by (the mortgagee's solicitors) to provide them with the original contract for sale. They did not give us a reason for the request.

1. In his submissions, the respondent makes the point that the 20 November 2008 letter does not precisely refer to a letter from the mortgagee's solicitor of 21 April 2008, nor does it refer to a letter from the same source of 21 February 2008. He submits that accordingly, the letter cannot be said to include any deliberate or reckless misrepresentations as alleged by the applicant. He submits that on that basis the Tribunal (Para. 22) should dismiss grounds 2.1.1 and 2.1.2 straight away. This is a simplistic analysis.
2. The paragraph contains a number of representations: first, that it was nearly seven months after settlement that the respondent was asked to provide the original contract for sale; secondly, that the request was made on or about 28 April 2008 (and by inference, this was the first request) and thirdly, no reason was given for the request. Each assertion is incorrect.
3. There were two requests for the contract from the mortgagee's solicitors, made in letters dated 21 February 2008 and 21 April 2008. The first request was made approximately 3 and a half months after settlement. The second request was made approximately 5 and a half months after settlement. The reference to 'nearly 7 months' is incorrect, even if the time frame referred to is accepted as relating to the second request only.
4. The Tribunal's findings in relation to the letter of 21 February 2008 are set out in paragraph 65. Against the background of those findings, the first and second representations must be regarded as incorrect and as involving, by necessary inference, misrepresentations concerning the letter of 21 February 2008. Given the Tribunal's findings, they must be taken to be deliberate misrepresentations.
5. It is clear that it is the letter of 21 April 2008 that the respondent is referring to in his letter of 20 November 2008. The letter of 21 April 2008 contains, on its face, a reason for requesting the contract. It is alleged by the applicant that the respondent's incorrect assertion that he was given no reason for the request, was either deliberate or reckless. It is a very obvious error for the respondent to have made. The content of the letter of 20 November 2008 and what is known of surrounding events supports the inference that the mis-description was not just careless, but was made with an absence of any care as to the accuracy of the statement.
6. Indeed, in his letter to the complainants of 21 November 2008, the respondent indicated that he had no record of receiving, or recollection of seeing, the letter of 21 April 2012. There was no basis then for him to make any assertion on 20 November about whether he had been given a reason for the request for the contract. On his own case, he had not read the latter and could not recall it. It is open to infer that his assertion was something that was simply made up at the time. At the very least, it was a reckless misrepresentation.
7. The Tribunal finds that particulars 2.1.1 and 2.1.2 are made out.

1. This particular relates to the following statement in the letter of 20 November 2008:

You will agree that most of the delays in relation to registration of the title has been due to the inaction of [the mortgagee's solicitor].

1. The applicant alleges that when he made the representation, the respondent knew that the representation was incorrect and that he made it deliberately, or that he was reckless about it.
2. The representation has been made repeatedly by the respondent. Indeed as late as 3 September 2010 the respondent, in his written submissions to the Tribunal at Para. 45, says as follows.

I standby my statement in (the letter of 20 November 2008) final dot point - "You will agree that most of the delays in relation to registration of the title has (sic) been due to the inaction of (the mortgagee's solicitors)". I am defending a serious Complaint against me, the consequences of which will have a drastic/severe effect on me. I am entitled to say my true belief, and I have proved this by evidence. I am not making an unfair accusation.

1. Whatever other problems there may be with that statement, it does indicate a firm belief in the truth of his criticism that most of the delay in registration was attributable to the mortgagee's solicitor. At all relevant times the respondent was of that view. It was not a deliberate misrepresentation, nor are we satisfied that it was made recklessly. The Tribunal has other concerns about the statement that are set out in greater detail below.
2. Particular 2.1.3 is not established.

1. This particular alleges that the respondent continued the misrepresentation referred to in particular 2.1.3. For the reasons set out above, this particular is also not established.
2. Having said that, the respondent's attitude to the responsibility of and actions of the mortgagee's solicitor compared to his own is very concerning because it suggests that the respondent misunderstands the duty that a solicitor owes to his or her clients.
3. The respondent in justifying the statements that he made regarding delay, takes a quantitative approach based on periods of inactivity and attributes fault to others and sometimes to himself, for each period isolated. This approach ignores two fundamental and related principles.
4. The first is that the respondent's retainer and his duty to his client did not end at the settlement table. The Tribunal takes the view that the respondent's retainer to his clients was to act on the conveyance of the particular property to them. In general terms, this retainer would have ceased only when the title to the property was successfully transferred to them, subject to any mortgage or other agreed third party interest.
5. The second principle is that the duty that he owed to his clients was not transferred to the solicitors for the mortgagee, in spite of a conveyancing practice of convenience that after settlement involving registration of a mortgage; lodgement of documents and registration is done by the mortgagee's lawyers.
6. There were long periods during which the respondent's duty was clear, but he was inactive, or he was inactive and relying on the mortgagee's solicitor to take action. There was no evidence that he, at any time, followed up, pursued or took any real interest in, the resolution of the serious problem that his clients faced. The evidence was to the contrary.
7. The Tribunal makes no comment on the actions of the mortgagee's solicitor, because what they did or did not do, was essentially irrelevant to the continuing obligation the respondent had to his clients to ensure that registration of their interest had been attended to at the earliest reasonable opportunity.
8. The Tribunal does not agree with the submission of the respondent that he had no responsibility for any delay from the date of settlement to 28 April 2008. That approach is built on his misconception that the mortgagee's solicitor bore the sole responsibility for registration of his clients' title.
9. After 28 April his duty to effect registration of his clients' title remained, and the mistaken provision of the incorrect contract did not relieve him of that burden. Having regard to the findings made about the respondent's knowledge of the letters of 21 February and 21 April 2008, the Tribunal is satisfied that he was on notice of a serious problem that affected his clients' interests. He should have, at the very least, made his own enquiries to check with the mortgagee's solicitor after 28 April 2008, that the problem was fixed and the transfer of title and security documents satisfactorily finalised.
10. In this regard, his denial of any communication between his firm and the mortgagee's solicitors between 28 April and 5 September 2008 does not reflect particularly well on him - it begs the question of why he wasn't chasing them to confirm that the problem had been fixed. It was not good enough for him to say that the mortgagee's solicitor bore the sole responsibility.
11. He should also, in our view, have alerted his clients to the fact that there was a problem, rather than leaving it for them to discover it some months later when they received a bill for overdue rates.
12. The application in this matter does not include any general allegation of unsatisfactory professional conduct or professional misconduct. There is no allegation that the respondent's conduct generally was such that he failed to act in a way that accords with a reasonable standard of competence or diligence. The application is narrowly focussed on particulars that relate to specific matters. It is not open to the Tribunal to go beyond the grounds and particulars relied on by the applicant to make findings against the respondent in respect of matters that were not raised in the application. While section 421 of the LP Act does allow the Tribunal the power to amend an application on its own motion, that is not a power that is easy to exercise before the evidence is heard and submissions made.

Ground 2 Generally - Engaging in Misleading Conduct

1. Particulars 2.1.1 and 2.1.2 are established and Ground 2 supported, notwithstanding that the applicant has not discharged its onus in relation to particulars 2.1.3 or 2.2.
2. The conduct of the respondent contravenes rules 1.1 and 1.2. Findings that the respondent has made both deliberate and reckless misrepresentations to his clients have been made. The applicant submits that this should lead the Tribunal to characterise the conduct as professional misconduct. This is not conduct that is about the standard of the practitioner's work, his diligence or his competence, but about his candour when dealing with his clients. The Tribunal accepts, following the authorities referred to in Riley Solicitors Manual [35,040.5][5] that this is appropriately characterised as professional misconduct.

1. This ground alleges that the respondent engaged in threatening and intimidating conduct. There is one particular as follows:

By his letter dated 12 December 2008 to the complainants, the respondent engaged in conduct which was intended to intimidate his clients to dissuade them from lodging a complaint with the Law Society by threatening to contact the employer of one of the complainants.

The allegation relates to the final sentences of a letter written by the respondent to the complainants on 12 December 2008. They read as follows.

Please note we are considering writing to University of Wollongong, enquiring whether you have also been paid wages by them for the times you were allegedly doing work on this matter. You will agree you cannot claim monies from two parties for the same times.

1. There were a number of preceding communications between the respondent and the complainants which are relevant to understanding the above quotation.
2. The requested contract, or part of it, needed to achieve rectification, was supplied to the mortgagee's solicitor at the end of October 2008. RC sent an email to the respondent on 9 November 2008 pointing out that the title had not been transferred at that time. He said in that email; 'we have spoken to the Law Society as we are frustrated by the lack of progress'.
3. The respondent wrote to the complainants on 20 November 2008. This is the letter set out at paragraph 19 that has been referred to previously.
4. RC responded by email of 20 November 2008. He concluded it as follows:

We have suffered considerable stress and lost time due to your persistent neglect and delay in handling our matter. We were at significant risk of much more substantial damage. We are drafting a letter to the Law Society and will forward you a copy.

1. The response from the respondent was a letter of 21 November 2008 to the complainants. The respondent referred to errors he had made and said that he was happy to compensate the claimants for their loss arising out of his lapse. This offer to compensate was repeated in a further letter of 23 November 2008 in the following terms.

We apologise to you for our lapse, which was un-intentional. We request you to provide particulars of your said economic and other loss. We will pay you when you have provided the particulars.

1. It is interesting to note the timing of the mention of a complaint to the Law Society and the making of the offer to compensate by the respondent. This is particularly so having regard to the robust wording of the respondent's letter of 20 November 2008.
2. The complainants wrote to the respondent on 30 November in response to his offer to compensate. They had kept detailed records and particularised a claim which consisted of the respondent's fees for acting on the purchase, interest paid on statutory charges, a title search, and a costing of the time spent by the complainants in dealing with the problem that arose. Their letter referred to seeking outside advice in the preparation of the review. There was a reference to a meeting with the Law Society on 21 October 2008 in which the complainants were advised 'on the process for lodging a formal complaint'. There was also a reference to a meeting with a private lawyer who gave advice and spoke to the mortgagee's solicitors.
3. The respondent wrote a three page letter to the complainants in response on 9 December 2008. It is useful to set out the last page of that letter in full:

...If the ACT Law Society has advised you that we should refund the fees and disbursements back to you, plus pay huge compensation, then they are wrong.

You will agree that the duty of the ACT Law Society is to advise the disgruntled clients of the avenues available for them to make a complaint against the Solicitor. Again, without knowing the full situation, the staff of the ACT Law Society are unable to make a determination that we were wrong and that we should pay back all the fees and disbursements paid by you plus the huge amount of compensation that you are seeking. Please note that it is only a court of law, not the ACT Law Society, who can order that we should pay any compensation, as demanded by you.

Any court of law will also hold the [mortgagee's solicitor] liable for the delays occurred in your matter.

We believe we have been generous and forthright enough to accept responsibility to the matter, albeit [mortgagee's solicitor] are also responsible for the delay, but unfortunately you would not want to accept this. We have been humbled enough to apologise to you. We have written to you promptly, despite our workload. We have tried to discuss the matter amicably with you to resolve it, but you have refused such contact. We offered to pay just compensation to your economic and other loss, but you are making demands that are most unfair, unjust and unreasonable.

Making a totally unreasonable, unjust and unfair claim for compensation, albeit maybe due to incorrect advice you have received from the ACT Law Society, makes it extremely difficult for the two parties to resolve this matter amicably.

As stated before, we are willing to pay majority of interest (say 75%) and for the full title search fee...Furthermore, to settle the matter amicably, in addition to the compensation, we will pay another $100... in good faith, if you agree to call off this matter completely and end it in a friendly, than hostile, manner.

1. The repeated references to incorrect advice that may have been given by the ACT Law Society and to the courts rather than the Law Society being the arbiter of compensation claims, are striking. The complainants had only referred to the ACT Law Society briefly as having given advice about the process for lodging a complaint. Nothing was said about advice about compensation. It is possible to read this letter as an attempt to divert the complainants away from that course by asserting that the Law Society was giving incorrect advice, or because only a court could deal with the complainant's claim.
2. RC replied by email saying that they were not satisfied with the respondent's response; 'Possibly you are right that the Society will not be able to assist us with compensation. Our main objective is to prevent future clients from going through our experience.'
3. The respondent's letter of 12 December 2008 then followed with its indication that the respondent was now considering writing to RC's employer and its inference that RC's claim 'for the times you were allegedly doing work on this matter' was perhaps improper, or in some way fraudulent.
4. These communications indicate that the respondent, at least initially, was taking a robust approach to the complaints. His letter of 20 November 2008 sets out a chronology of events, referring to the sending of the incorrect contract and the delay in locating the correct contract. There is no mention of apology and certainly no compensation offer. His final paragraph blaming the mortgagee's solicitor for most of the delays is referred to above.
5. However, this letter was followed by the complainants' response which referred to the drafting of a complaint to the Law Society. There followed the two letters of 21 November and 23 November 2008 written in a more conciliatory tone and making an unsolicited offer of compensation.
6. The timing of those letters invites the inference that it was the mention of complaint to the Law Society which changed the respondent's approach. That is to say, in order to stave off the complaint, the offers to settle were made in order to reach an accommodation with the complainants which would result in withdrawal, or the "calling off" of any complaint.
7. Later correspondence from the complainants made it clear that a settlement with the complainants was not possible on the terms the respondent was offering, so that in the letter of 9 December and then 12 December 2008, stronger steps in bringing pressure to bear were needed.
8. The respondent was cross-examined at length about his motivations. He admitted that when he wrote the letter of 12 December 2008, he was angry; although he told the complainants that he was considering writing to the employer, he was not going to do so; and, wanted to 'get the settlement thing happening'.
9. This evidence strongly suggests that the respondent threatened to contact RC's employer in order to intimidate the complainants into dropping their complaint and accepting the respondent's offer. The making of the settlement offer immediately after the advice that a complaint to the Law Society is to be made, links the offer to the complaint, and indicates a hope on the part of the respondent that a settlement would result in the complainant's 'calling off the whole thing completely'. This can only be read as a reference to the complainant calling off the foreshadowed complaint. When the complainants made it clear that compensation was not the main objective, a different tact was adopted by the respondent.
10. In his affidavit of 11 June 2010, the respondent says that he was attempting to demonstrate to the complainants that they were being unreasonable in the quantum of their claim for compensation. The Tribunal rejects that evidence. Threatening to contact a client's employer could only be at least embarrassing for the client. It is impossible to see that such an experience could in some way educate the client as to the unreasonableness of an offer he had made.
11. In the circumstances of the case, and particularly in view of the sequence of correspondence between the parties between19 November and 23 November 2008, the Tribunal finds that Ground 3 is made out.
12. The threat was made by the respondent on only one occasion and was not carried out. However, it must be viewed seriously since it was an attempt to coerce and manipulate his clients to avoid a complaint. The Tribunal takes the view that this conduct constitutes professional misconduct.

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

[1] This decision was previously anonymised and cited as Council of the Law Society of the ACT v The Legal Practitioner X [2012] ACAT 34 pursuant to section 423A of the Legal Profession Act 2006. As the appeal period has ended, the practitioner has now been identified in the citation of this decision. The reasons for decision otherwise remain unchanged from the date of publication.

[2] [1938] HCA 34; (1938) 60 CLR 336 at 368

[3] see NSW Bar Association v Livesey [1982] 2 NSWLR 231 at 237-8 and the line of authorities cited.

[4] Dal Pont, G. E. Riley Solicitors Manual 2005 at [33,040.10]