(a) this Act generally - includes a person to whom or for whom legal services are provided; and

(b) for division 3.2.7 (Costs assessment) - see section 294; and

(c) for part 3.5 (Mortgage practices and managed investment schemes) - see section 369."

1. In relation to the loan transaction, the Respondent acted as solicitor for:

(a) N in his personal capacity with respect to N's purchase of the Griffith Unit;

(b) N in his personal capacity as guarantor;

(c) N in his capacity as attorney for Mr and Mrs X; and

(d) the Company as borrower.

1. Due to the matters stated in paragraphs 48,50 and 51 above, the Respondent was also engaged by N (as attorney) to provide legal services for Mr and Mrs X in relation to the Mortgage and Guarantee and, as such, Mr and Mrs X were people "for whom the solicitor was engaged to provide legal services for a matter",[82] being the Mortgage and Guarantee, and as such were clients of the Respondent in relation to the Mortgage and Guarantee.

1. At the time of acting in relation to the loan transaction, the Respondent was unfamiliar with the limitations in sections 34 and 42 of the Powers of Attorney Act 2006 (ACT) (POAA) which provide that:

(a) a power of attorney does not authorise the attorney to execute an assurance or other document, or do anything else, that would result in a benefit being given to the attorney, unless the power of attorney expressly authorises the giving of a benefit of that kind to the attorney (POAA, section 34); and

(b) an attorney is not authorised to enter into what is defined as a 'conflict transaction' unless expressly authorised to do so in the power of attorney (POAA, section 42).

1. Mr and Mrs X's EPAs did not authorise N as attorney to receive a personal benefit or to enter into a conflict transaction.
2. From the outset of the Applicant's investigation of the complaint against the Respondent, the Respondent freely and openly admitted that he had been unaware of the restrictions in POAA sections 34 and 42. The Respondent was of the mistaken understanding that N (acting as attorney) was entitled to do anything that Mr and Mrs X were capable of doing (within the bounds of the POA).
3. The Respondent said in his 30 August 2022 letter to the Law Society responding to the complaint that, had the Respondent been aware of POAA sections 34 and 42 when acting in the loan transaction, he would have advised N that N was not authorised under the EPAs to execute the Mortgage and Guarantee on behalf of Mr and Mrs X where N was to benefit personally from the loan because N was not expressly authorised to do so under the EPAs.

1. The Application set out the following charges (Charges):

(a) Charge 1: Conduct in relation to acting for N as attorney (Application page 12, paragraph 47) - That the Respondent failed to deliver legal services competently and diligently in breach of Rule 4.1.3 by failing to act with competence and diligence by failing to advise N in his capacity as the attorney for Mr and Mrs X that he could not execute loan documents as attorney for Mr and Mrs X in light of sections 34 and 42 of the POAA.

(b) Charge 2: Conduct in relation to Mr and Mrs X (Application page 13, paragraphs 48(a) - (c)) - That the Respondent:

(i) failed to deliver legal services competently and diligently in breach of Rule 4.1.3; and/or

(ii) failed to act in the best interests of his clients, Mr and Mrs X, in the loan transaction in breach of Rule 4.1.1; and/or

(iii) failed to provide clear and timely advice to Mr and Mrs X to assist them to understand relevant legal issues and to make informed choices about the matter in breach of Rule 7.1.

(c) Charge 3: Conflict of interest (Application page 14, paragraph 49) - That the Respondent failed to avoid a conflict between his duties owed to two or more current clients in breach of Rule 11 in circumstances where he acted for the guarantors (N, and Mr and Mrs X) and the borrower Company in the loan transaction.

(d) Charge 4: Dishonest conduct in relation to the lender and its solicitors (Application page 15, paragraphs 50(a) - (d)) - That the Respondent:

(i) engaged 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 in breach of Rule 5.1; and/or

(ii) failed to be honest in all dealings in the course of legal practice in breach of Rule 4.1.2; and/or

(iii) failed to deliver legal services competently and diligently in breach of Rule 4.1.3; and/or

(iv) failed to avoid any compromise to their integrity and professional independence in breach of Rule 4.1.5.

Charge 1: Conduct in relation to acting for N as attorney

(a) With respect to the Loan Transaction, N was a client of the Respondent, both in N's own right and also in N's capacity as attorney for Mr and Mrs X;

(b) The Respondent was aware that the loan benefitted N (as the loan was for purposes including to enable N to purchase a unit for N's sole benefit and for N to repay some of his unspecified debts); and

(c) The Respondent did not advise N that:

(i) N was not authorised as attorney to do anything that would result in a benefit to himself, per POAA section 34 and the EPAs' terms; and

(ii) the loan was a "conflict transaction" vis-à-vis N's personal interests and his role as attorney and that N was not authorised to enter into a conflict transaction per POAA section 42 and the EPAs' terms.

1. For these reasons, the Respondent admits having breached Rule 4.1.3 by failing to deliver legal services competently and diligently by failing to advise N (in N's capacity as attorney for Mr and Mrs X).

Charge 2: Conduct in relation to Mr and Mrs X

1. The Respondent admits that, in addition to his engagement as in paragraph 59(a) above, the Respondent was engaged by N (as attorney) to provide legal services for Mr and Mrs X in relation to the Mortgage and Guarantee and, as such, Mr and Mrs X were clients of the Respondent in relation to the Mortgage and Guarantee.
2. The Respondent admits that he did not speak with, advise or seek confirmation from Mr and Mrs X in relation to the Mortgage and Guarantee.
3. The Respondent admits that he:

(a) exchanged a Loan Agreement; and

(b) signed the First and Second Acknowledgements,

each of which contained statements and representations which could only have been correct if the Respondent had spoken with, advised and sought confirmation from Mr and Mrs X in relation to the Mortgage and Guarantee which the Respondent admits he did not do. As such, those statements and representations were false.

1. The Respondent admits that, by reason of the matters in paragraphs 62 and above, he breached Rules 4.1.1, 4.1.3 and 7.1 by:

(a) not speaking with, advising or seeking confirmation from Mr and Mrs X in relation to the Mortgage and Guarantee; and

(b) signing the First and Second Acknowledgements which contained statements and representations which were false because they stated that the Respondent had spoken with, advised and sought confirmation from Mr and Mrs X in relation to the Mortgage and Guarantee when the Respondent had not done so.

1. The Respondent repeats paragraph above and admits that:

(a) the Respondent acted for N (in N's personal capacity) and also provided legal services for Mr and Mrs X (via N as attorney) in relation to the Mortgage and Guarantee;

(b) the interests of N and Mr and Mrs X were adverse insofar as (i) the Loan Transaction provided a direct benefit to N and (ii) the Loan Transaction was secured via a mortgage and guarantees provided by Mr and Mrs X. As such, there was a conflict of interests between the interests of N (in N's personal capacity) versus the interests of Mr and Mrs X; and

(c) Mr and Mrs X had not given informed consent to the Respondent acting for N and Mr and Mrs X in relation to the Loan Transaction.

1. For these reasons, the Respondent admits that he breached Rule 11.

Charge 4: Dishonest conduct in relation to the lender and its solicitors

1. The Respondent admits that he signed the First and Second Acknowledgements which contained statements and representations which were false insofar as they stated that the Respondent had spoken with, advised and sought confirmation from Mr and Mrs X when the Respondent had not done so and that, having received that advice, Mr and Mrs X had then authorised N as attorney to sign the Loan Documents.
2. The Respondent says that, at the time he signed the First Acknowledgement, the Respondent:

(a) was aware that he was signing a document titled 'Acknowledgement of Legal Advice by Proposed Guarantor';

(b) read and understood paragraphs 1 and 2;

(c) glanced at paragraphs 3, 4 and 5 but did not read them, in the belief that they were standard paragraphs commonly appearing in a document of this kind. [This is a disputed fact. The Applicant contends that the Respondent read paragraphs 3, 4 and 5 and that his evidence that he only glanced at them is so implausible that it cannot be accepted.];

(d) was aware that he was signing a document that conveyed to the reader that the Respondent had provided legal advice to Mr and Mrs X as guarantors of a loan from the Trust to the Company;

(e) believed that, by providing advice to N as attorney for Mr and Mrs X, the Respondent had provided advice to the guarantors as indicated in the First Acknowledgement; and

(f) was of the mistaken understanding that:

(i) N (acting as attorney) was entitled to do anything that Mr and Mrs Xi were capable of doing (within the bounds of the POA) including seeking and receiving legal advice with respect to the Mortgage and Guarantee; and

(ii) by providing advice on the Mortgage and Guarantee to N (as attorney), the Respondent had provided advice to Mr and Mrs X on the Mortgage and Guarantee.

1. The Respondent further says that, when he signed the Second Acknowledgement, he:

(a) handwrote on the document "- N and E" next to the words "(b) Driver Licence" in paragraph 2;

(b) did not carefully read the Second Acknowledgement, believing that the terms of the Second Acknowledgement were substantively in the same terms as the First Acknowledgement. [This is a disputed fact. The Applicant contends that the Respondent read paragraphs 3, 4 and 5 and that his evidence that he did not carefully read the Second Acknowledgement is so implausible that it cannot be accepted.]; and

(c) held the other beliefs stated in paragraph above as when he signed the First Acknowledgement.

1. The Respondent now appreciates and acknowledges that his understandings in paragraphs 68(e) and 68(f) above were wrong.
2. The Respondent accepts that the contents of the First and Second Acknowledgements could only have been true if the Respondent had spoken with, advised and sought confirmation from Mr and Mrs X personally, which the Respondent had not done.
3. The Respondent acknowledges that the First and Second Acknowledgements contained statements and representations which were false because they falsely conveyed to the reader an impression that the Respondent had directly spoken with, advised and obtained confirmation from Mr and Mrs X when he had not done so and, having received that advice, Mr and Mrs X then authorised N to sign the Loan Documents.
4. The Respondent acknowledges that this breached rule 4.1.3.
5. Accepting the matters set out in paragraphs 67 to 72 above, the Respondent:

(a) says that he did not provide the signed First and Second Acknowledgements with the express knowledge that they contained false information. [This is a disputed fact. The Applicant contends that the Respondent read the Acknowledgements and knew that they contained false information; alternatively, by not reading the Acknowledgements, the Respondent was recklessly indifferent to the truth or falsity of what he was certifying.];

(b) acknowledges that he did not pay close attention to the specific wording in paragraphs 3, 4 and 5 of the First and Second Acknowledgements on the mistaken assumption that he was signing a form to the effect as Schedule 4 Part 2: Acknowledgement of Legal Advice by Proposed Guarantor which is an approved form under rule 11 of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (NSW). [This is a disputed fact. See subparagraph 74(a) above.]

(c) Whilst the ACT does not prescribe equivalent forms to those NSW prescribed forms, it is common practice for ACT lenders to require guarantors to sign an Acknowledgement reflecting the same terms as that NSW form (and which is so commonly used that it has been incorporated into the Respondent firm's document management system as a precedent form). When he signed the First and Second Acknowledgements, the Respondent assumed that (apart from the fact that he signed the form rather than the clients) the terms of the form were otherwise the standard terms of the NSW form (above), the Respondent's firm's precedent form (reflecting the NSW form) and equivalent forms used by ACT lenders (commonly reflecting the NSW form);

(d) accepts that, in signing the First and Second Acknowledgements, he was careless (or reckless, in the sense of grossly negligent) as to whether or not they created a misleading impression. [This is disputed by the Applicant. See subparagraph 74(a) above.]; and

(e) denies having breached Rules 4.1.2, 4.1.5 and 5.1 as stated in Application paragraph 50. [This is disputed by the Applicant. The Applicant contends that the Respondent breached Rules 4.1.2, 4.1.5 and 5.1.]

1. The Respondent accepts that his conduct, as admitted by him in relation to each of Charges 1, 2 and 3, constitutes unsatisfactory professional conduct within the meaning of section 386 of the Act when each charge is considered both individually and globally. [This is disputed by the Applicant. The Applicant contends that the conduct the subject of Charges 1, 2 and 3 should be characterised as professional misconduct within the meaning of subsections 387(1)(a) and 387(1)(b) of the Act when considered globally.]
2. The Respondent accepts that his conduct as admitted by him in relation to Charge 4 constitutes professional misconduct within the meaning of subsection 387(1)(a) of the Act, as a substantial failure to reach or maintain a reasonable standard of competence and diligence. [This is disputed by the Applicant. The Applicant contends that the conduct the subject of Charge 4 should be characterised as professional misconduct within the meaning of both subsections 387(1)(a) and 387(1)(b) of the Act.]
3. The Respondent denies that his conduct as admitted by him in relation to Charge 4 constitutes professional misconduct within the meaning of subsection 387(1)(b) of the Act, as conduct that would, if established, justify a finding that the Respondent is not a fit and proper person to engage in legal practice. [This is disputed by the Applicant. See paragraph 76 above.]

Australian Capital Territory Civil and Administrative Tribunal

Council of the Law Society of the Australian Capital Territory

1.1 The parties have agreed on the issues for determination as identified in the document dated 17 March 2025.

2.1 Legal Profession Act 2006 (ACT) (LPA), ss 11, 36, 386, 387, 425, 427, 433 and 585.

2.2 Powers of Attorney Act 2006 (ACT), ss 34 and 42.

2.3 Legal Profession (Solicitors) Conduct Rules 2015 (ACT), rules 4.1, 5.1, 7.1 and 11.

3.1 Derry v Peek (1889) 14 App. Cas. 337, esp., at 374.

3.2 Fidock v Legal Profession Complaints Committee [2013] WASCA 108, esp., at [93] - [100].

3.3 Giudice v Legal Profession Complaints Committee [2014] WASCA 115, esp., at [2], [95]-[100], [102] and [156].

3.4 Hughes & Vale Pty Ltd v New South Wales (No 2) [1955] HCA 28; (1955) 93 CLR 127 at 156.

3.5 Law Society v Ford (No 2) [2024] ACTSCFC 2, esp., at [120]-[122] and [125].

3.6 Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19, esp., at [65]-[69].

3.7 Walsh v Legal Practitioners Conduct Board (2016) 125 SASR 111, esp., at [42], [43] and [77].

4.1 The applicant's arguments are set out in the outline of submissions dated 3 March 2025.

4.2 The most controversial issue remaining for determination is whether the respondent's conduct was dishonest in signing the acknowledgement of legal advice on 20 March 2019 and 22 March 2019, or alternatively on one of those occasions: the acknowledgments as signed by the respondent are at AT1 pp 52-53 and pp 61-62.

4.3 The respondent's evidence that he did not read paragraph 5 of the acknowledgement before signing it is so implausible that it cannot be accepted at face value. Amongst other things, the respondent is a solicitor of considerable experience and is respected for his diligence and integrity. It cannot seriously be doubted that he understood the importance of signing a document which certified the giving of legal advice by him. However, the factual determination as to whether the respondent read paragraph 5 of the acknowledgement before signing it will need to await the completion of the evidence, including the cross-examination of the respondent.

4.4 Irrespective of whether the respondent read paragraph 5 of the acknowledgement before signing it, there should be a finding that his conduct was dishonest.

4.5 If the Tribunal finds that the respondent read paragraph 5 of the acknowledgement before signing it, then it necessarily follows that the respondent knew that he was certifying something which was untrue. The respondent accepts as much in [65] and [68] of his affidavit. On this factual finding, the respondent engaged in deliberate dishonesty being the first specie of dishonesty identified by Lord Herschell in Derry v Peek (1889) 14 App. Cas. 337 at 374.

4.6 If the Tribunal finds that the respondent did not read paragraph 5 of the acknowledgement before signing it, then it should be inferred that he did so with reckless indifference to the truth or falsity of what he was certifying being the alternative specie of dishonesty identified by Lord Herschell. By failing to read paragraph 5 of the acknowledgement before signing it, the respondent could not have been sure as to the truth of what he was certifying and therefore consciously disregarded the risk of certifying something which was untrue.

4.7 On repeated occasions, Courts have been emphatic in stating that honesty is a fundamental requirement for the practice of law. If the Tribunal finds that the respondent's conduct in respect of charge 4 was dishonest, it is conduct which indicates unfitness to practice within the definition of professional misconduct stated in s 387(1)(b) of the LPA.

4.8 Even if the Tribunal finds that the respondent's conduct was grossly negligent as contended by the respondent, it involved such a grave departure from the standards of competence and diligence required of a solicitor so as to indicate unfitness to practice within the definition of professional misconduct stated in s 387(1)(b) of the LPA.

4.9 If the Tribunal finds that the respondent's conduct was dishonest, whether knowingly or recklessly, the appropriate sanction should involve a period of exclusion from legal practice so as to publicly mark for the profession the seriousness of the misconduct.

5.1 The orders which are sought by the applicant are:

(a) suspension for a period of six months pursuant to s 425(3)(b) of the LPA;

(b) a fine of $20,000 pursuant to ss 425(5)(a) and 427(1)(b) of the LPA;

(c) a public reprimand pursuant to s 425(3)(e) of the LPA; and

(d) that the respondent within 12 months undertakes a course in legal ethics approved by the applicant pursuant to s 425(5)(b) of the LPA.

Counsel for the applicant Counsel for the applicant

Ground Floor Wentworth Chambers/ Ground Floor Wentworth Chambers/

Instructed by Katie Binstock and Samuel Harper of Thomson Geer

Appendix B2: Applicant's Submissions on breach, characterisation and penalty for Hearing on 26 March 2025

Australian Capital Territory Civil and Administrative Tribunal

Council of the Law Society of the Australian Capital Territory

APPLICANT'S SUBMISSIONS ON BREACH, CHARACTERISATION AND PENALTY FOR HEARING ON 26 MARCH 2025

• 1.1 These are the written submissions on behalf of the applicant in relation to breach, characterisation and penalty provided pursuant to the orders of the Tribunal made on 6 November 2024.
• 1.2 The proceeding has been set down for hearing on 26 March 2025.
• 1.3 There are four remaining issues in dispute, with the first, second and fourth issues being significantly inter-related:

(a) First, whether the conduct the subject of charge 4 of the application dated 7 May 2024 (Application) involved:

carelessness in the sense of gross negligence and breached rule 4.1.3 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules), as contended by the respondent; or

dishonesty and breached rules 4.1.2, 4.13, 4.1.5 and 5.1 of the Rules in addition to rule 4.1.3, as contended by the applicant.

(b) Second, whether the conduct the subject of charge 4 of the Application should be characterised as:

(a) professional misconduct within the meaning of subsection 387(1)(a) of the Legal Profession Act 2006 (ACT) (Act) only, as contended by the respondent; or

professional misconduct within the meaning of both subsections 387(1)(a) and 387(1)(b) of the Act, as contended by the applicant.

(c) Third, whether the conduct the subject of charges 1, 2 and 3 of the Application should be characterised as:

(a) unsatisfactory professional conduct within the meaning of s 386 of the Act, as contended by the respondent; or

professional misconduct within the meaning of s 387 of the Act, as contended by the applicant.

(d) Fourth, the appropriate sanction to be imposed under s 425 of the Act depending on the Tribunal's determination as to breach and characterisation of the respondent's conduct.

• 1.4 Reference will be made below to the following:

(a) the Application;

(b) amended response dated 22 November 2024 (Amended Response);

(c) the respondent's admissions attached to the Amended Response (Admissions); and

(d) the respondent's affidavit made on 7 February 2025 (Respondent affidavit).

1. Factual background relevant to remaining issues in dispute

• 1.1 Many of the facts set out in the Application are admitted by the respondent. For that reason, the facts set out below are confined to those which are of most salience for determining the issues remaining in dispute.
• 1.2 In March 2018, the respondent provided legal services to E and L by advising on and preparing their wills and enduring powers of attorney (EPA). Both Mr and Mrs X appointed their sons, G and N X, to be their attorneys under their respective EPAs: Admissions [4]-[8]. Without intending disrespect and to avoid confusion, G and N will be referred to by their first names.
• 1.3 The respondent gives evidence that in early 2019, N phoned him to advise of the following matters:

(a) N intended to buy an apartment in Kingston;

(b) Mr and Mrs X would be helping him with the deposit;

(c) money was to be borrowed from a private lender to help with the deposit and to consolidate some of N and Mr and Mrs X's debts;

(d) Mr and Mrs X were going to Greece; and

(e) N would be signing for them under the EPAs: Respondent affidavit [29].

• 1.4 In March 2019, the respondent received various documents described as Loan Documents in paragraph 30 of the Application: see also Amended Response at [4(d)].
• 1.5 The Loan Documents were intended to give effect to the advancement of a loan to a company of which N was a shareholder and the repayment of the loan being guaranteed by Mr and Mrs X,
• 1.6 On 20 March 2019, the respondent signed a document described as "Acknowledgment of Legal Advice by Proposed Guarantor" (First Acknowledgment): Exhibit AT1 at 52-53.
• 1.7 The First Acknowledgement identified Mr and Mrs X as guarantors.
• 1.8 Paragraph 5 of the First Acknowledgement stated:

After receiving the above advice the guarantors freely and voluntarily authorised their attorney to sign the loan documents.

• 1.9 On 20 March 2019, the respondent sent the Loan Documents including the First Acknowledgement to the solicitors for the lender: Respondent affidavit [46].
• 1.10 On 22 March 2019, the respondent received an email from the lender's solicitor, which acknowledged receipt of the Loan Documents: Exhibit AT1 at 54-55. Point 3 of the email stated:
  1. Acknowledgement of Legal Advice by Proposed Guarantor for E and L- we enclose revised acknowledgement noting the insertion of N's name in paragraph 5, and point 1(iii) updated to Annexure to Mortgage, and please advise what identification documents should be circled;
• 1.11 Paragraph 5 of the Acknowledgement of Legal Advice by Proposed Guarantor (AT1 at 56-57) attached to the email of 22 March 2019 (Second Acknowledgement) stated:

After receiving the above advice the guarantors freely and voluntarily authorised their attorney N to sign the loan documents.

• 1.12 On 22 March 2019, the respondent signed and dated the Second Acknowledgment, and handwrote in paragraph 2 "N & E" next to the words "(b) Driver License": Amended Response [22.b.iii] .
• 1.13 The respondent signed the Second Acknowledgment without speaking with, advising or seeking confirmation from Mr and Mrs X: Admissions [64].
• 1.14 The First and Second Acknowledgements contained statements and representations which were false because they conveyed to the reader an impression that the respondent had directly spoken with, advised and obtained confirmation from Mr and Mrs X when that was not the true position: Admissions [65].
• 1.15 On 27 March 2019, the respondent sent the Second Acknowledgement to the lender's solicitor: Exhibit AT-1 at 60.

The protective jurisdiction conferred by the LPA in relation to the legal profession

• 3.1 The object of disciplinary action against a lawyer is not punitive or to exact retribution, it is to protect the public and the reputation of the profession: Attorney General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 244; Council of the Law Society of the ACT v Giles [2020] ACTSCFC 1 at [115]; see also Prothonotary of the Supreme Court of NSW v Thomson [2018] NSWCA 230 at [12], cited with approval by a Full Court of the Supreme Court of the ACT in The Council of The Law Society of ACT v Hoyle [2020] ACTSCFC 3 at [19].
• 3.2 In Law Society (NSW) v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408 at 441, Mahoney JA said the following in relation to protection of the public:

In the relevant sense, the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done.

• 3.3 In Council of the Law Society of the ACT v Legal Practitioner 201822 (Alveer Singh) [2019] ACAT 27 at [68], Presidential Member Symons cited the decision of QCAT in Legal Services Commissioner v Smith [2014] QCAT 518 at [35] where the following was said:

The primary purpose of disciplinary proceedings is to protect the public. The purpose is furthered, and the public interest is served, if the effect of an order made is to deter other practitioners from engaging in professional misconduct. Whilst the primary aim is not to punish the legal practitioner, a significant consideration in relation to penalty is the deterrent element. Practitioners must appreciate that conduct which is unsatisfactory professional conduct or professional misconduct carries with it a serious risk, and so should be deterred from such conduct.

The importance of honesty for the practice of law

• 3.4 The Courts have been emphatic that the highest standards of integrity and trustworthiness are essential qualities for the practise of law.
• 3.5 In Law Society (ACT) v Bangura [2024] ACTSCFC 1 at [10], the Supreme Court of the ACT in a Full Court decision recently reiterated that the public interest requires that those who practise as lawyers must be held to the highest standards of honesty and integrity.
• 3.6 In New South Wales Bar Association v Sahade [2007] NSWCA 145 at [58], the NSW Court of Appeal stated that a willingness to engage in dishonest conduct in the practice of law "will usually give rise to heightened concern" as to a person's fitness to practise law.
• 3.7 Spigelman CJ said in NSW Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [19] - [20] (cited with approval by the ACT Court of Appeal in Legal Practitioner v Council of the Law Society of the ACT [2015] ACTCA 20 at [94] and by a Full Court of the Supreme Court of the ACT in Bangura at [10]):

[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

[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.

Dishonesty in the form of reckless indifference to the truth

• 3.8 A person may engage in dishonest conduct by making a false statement "(1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false": Derry v Peek (1889) 14 App Cas 337 at 374 per Lord Herschell. This principle has been applied in disciplinary cases involving misconduct on the part of solicitors e.g., see Fiddock v Legal Profession Complaints Committee [2013] WASCA 108, esp., at [93] - [100].
• 3.9 The seriousness of dishonest conduct is not minimised where it involves reckless indifference to the truth or falsity of a statement as opposed to making a knowingly false statement. As Lord Herschell explained in Derry v Peek at 374, making a statement with reckless indifference to its truth or falsity is to make a statement with no real belief in its truth. Such conduct cannot be reconciled with the standards and values of a profession committed to honesty and the truth. As the Supreme Court of the ACT said in a Full Court decision in Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [163], misleading conduct, whether reflective of dishonesty or recklessness, is antipathetic to the practice of law.

• 3.10 Character references can only provide the Tribunal with limited assistance.
• 3.11 It is the Tribunal which has the ultimate responsibility for determining the appropriate penalty where misconduct is proven. As Basten JA (with whom Mason P and Santow JA agreed) stated in The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [46]:

The relevance of the affidavit material must be understood in a practical way. Tribunals dealing with professional discipline are routinely supplied with character references ... On the ultimate issues, the Tribunal must form its own views and is entitled to disregard, or at least give little weight, to the views of others.

• 3.12 A similar view was expressed by MacKenzie J of the Queensland Court of Appeal in Barristers Board v Young [2001] QCA 556, who stated the following in relation to character references at [48]:

The references ... suggest that the respondent is well thought of by friends and workmates and has innate qualities upon which she could build if the predicted outcome of treatment occurs. As against this, the respondent demonstrated ... conduct of a kind that is the antithesis of what the authorities referred to in paras [42] and [43] require of a Barrister. There is authority that it is the intrinsic character of the person under inquiry that should be the focal point. .. In Re Bell (Full Court; Motion 622 of 1991, 6 December 1991, unreported), Williams J said that what is in issue is the person's intrinsic character, not necessarily his or her good fame either within the profession or the community at large. That was a case where a former practitioner was seeking reinstatement, but the principle is, in my opinion, also relevant in an application to strike off ...

First issue: whether the respondent's conduct the subject of charge 4 was dishonest

• 3.13 The respondent gives evidence that he "did not carefully read" paragraph 5 of the First and Second Acknowledgements: Respondent Affidavit [62] and [67]. The respondent accepts that had he read paragraph 5 of the First and Second Acknowledgements, he would have realised that by signing the documents he was giving the false impression that he had directly advised Mr and Mrs X about the Loan Documents when that was not the true position: Respondent Affidavit [67].
• 3.14 The respondent's evidence that he did not read paragraph 5 cannot be accepted because it is inherently implausible for the following reasons:
  • 3.14.1 when he signed the acknowledgements, the respondent understood their legal nature and effect: Admissions [22.1.b];
  • 3.14.2 in the email of 22 March 2019, the lender's solicitor specifically alerted the respondent to the fact that paragraph 5 of the acknowledgement had been revised: Exhibit A1 at 54;
  • 3.14.3 paragraph 5 only comprised two lines;
  • 3.14.4 in circumstances where a number of practitioners have giving character references attesting to the respondent's high standards of professionalism, it is implausible that the respondent failed to read the two lines of paragraph 5:
  • 3.14.5 knowing the legal nature and effect of the document he was signing; and
  • 3.14.6 having been specifically alerted to the revision of that paragraph;
  • 3.14.7 having signed both the First and Second Acknowledgement the respondent had two opportunities to read paragraph 5 of the acknowledgement; and
  • 3.14.8 the respondent indicated on the Second Acknowledgement how he had identified "E" for the purpose of the Second Acknowledgement: Exhibit A1 at 61.
• 3.15 If the Tribunal finds that the respondent did read paragraph 5 of either the First or Second Acknowledgements, it follows that the respondent's conduct was dishonest in signing a document which he knew stated a false position.
• 3.16 Even if the Tribunal accepts the respondent's evidence that he did not carefully read paragraph 5 of the First and Second Acknowledgements, he was nonetheless recklessly indifferent to the truth or falsity of what he was certifying.
• 3.17 If the respondent signed the First and Second Acknowledgements without knowing the contents of paragraph 5, he did so with "no real belief of the truth of what he states" in the sense referred to by Lord Herschell in Derry v Peek (1889) 14 App Cas 337 at 374.
• 3.18 As a solicitor, the respondent can be taken to have known that others should be able to trust his word in his professional dealings. The respondent can also be taken to have known of the importance of the First and Second Acknowledgements to the legal interests of the lender, N and Mr and Mrs X. Prior to signing the Second Acknowledgement, he had specifically been advised by the lender's solicitor that paragraph 5 had been revised. In not reading paragraph 5, before he signed the Second Acknowledgement, he did not satisfy himself as to the nature or effect of the revision that had been made. Notwithstanding the revision having been brought to his attention, he persisted in not reading the document to satisfy himself as to the truth of what he was certifying. By not reading what he was certifying, the respondent cannot have cared whether what he was certifying was true or false.

Second issue: the characterisation of conduct the subject of charge 4

• 3.19 The respondent's conduct the subject of charge 4 should be characterised as professional misconduct within the meaning of both s 387(1)(a) and 387(1)(b) of the LPA.
• 3.20 To fall within the definition of professional misconduct as stated in s 387(1)(b) of the LPA, the conduct must indicate unfitness to engage in legal practice. As stated by Kitto J in Ziems v The Prothonotary of the Supreme Court of NSW [1957] HCA 46; (1957) 97 CLR 279 at 297 the concept of unfitness "depend upon one's conception of the minimum standards demanded" by the role and functions performed by lawyers.
• 3.21 Honesty is a fundamental requirement for legal practice. In Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [163] it was said that misleading conduct, whether reflective of dishonesty or recklessness, is antipathetic to the practice of law. It would therefore follow that if the Tribunal finds that the respondent's conduct was dishonest, such conduct is indicative of unfitness to engage in legal practice so as to bring the conduct within the definition of s 387(1)(b) of the LPA.
• 3.22 Even if the Tribunal finds that the conduct was gross negligence but not dishonest, the First and Second Acknowledgements significantly affected the legal interests of the lender, N and Mr and Mrs X. As the Full Court observed in Law Society v Ford (No 2) [2024] ACTSCFC 2 at [125], competence and diligence are necessarily of fundamental important to the practice of law. Having regard to the importance of the acknowledgements, the respondent's failure to read what he was certifying must be taken to have fallen so far below the minimum standards demanded of solicitors so as it indicate unfitness.

Third issue: the characterisation of conduct the subject of charges 1, 2 and 3

• 3.23 The conduct the subject of charges, 1, 2 and 3 involved on the part of the respondent, among other things:
  • 3.23.1 a failing to apprehend a significant conflict of interests between the interests of N, on the one hand, and of Mr and Mrs X, on the other;
    • 3.23.2 a failing to give the appropriate advice which this conflict of interest necessitated; and
  • 3.23.3 a failing to satisfy himself as to whether Mr and Mrs X gave informed consent to a transaction which significantly affected their legal interests.
• 3.24 The conduct the subject of charges 1, 2 and 3 fell so far below the minimum standards demanded of solicitors so as to warrant the characterisation of the conduct as professional misconduct.

• 3.25 If the Tribunal makes a finding of dishonesty, including a finding that the respondent acted with reckless indifference as to the truth or falsity of what he was certifying, the appropriate penalty should include a suspension from legal practice. Having regard to the fundamental importance of honesty for legal practice, dishonest conduct warrants a period of suspension for the purposes of both general and personal deterrence. As the authorities recognise, the Tribunal need not be satisfied that the respondent is presently unfit to practice to make a suspension order.

In Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [194], Murphy and Beech JJA said:

A suspension order may also be a valuable measure by way of general or personal deterrence, for the protection of the public and the maintenance of the reputation and standards of the legal profession, even without concluding that the conduct demonstrated or should be characterised as indicating that the practitioner was not a fit and proper person. A suspension order entails greater denunciatory and deterrent effect than a reprimand and fine. [emphasis added]

• 3.26 The authorities recognise the seriousness of dishonest conduct by a legal practitioner and the critical importance of deterring such conduct. In particular, reference can be made to the observations in:
  • 3.26.1 New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [20] (Spigelman CJ) that many aspects of the administration of justice depend on the trust by clients, fellow practitioners, the judiciary and/or the public in the honesty and integrity of lawyers;
  • 3.26.2 Law Society of NSW v Foreman [1994] NSWCA 69; (1994) 34 NSWLR 408 at 445 (per Mahoney JA) that the administration of justice would be seriously impeded if solicitors cannot assume that they can rely on the word of another colleague; and
  • 3.26.3 Legal Practitioner v Council of the Law Society of the ACT [2018] ACTCA 19 at [72] (per Mossop and Collier JJ, Robinson A) that confidence of all participants in the administration of justice required that the word of solicitors must be able to be trusted to be true and that solicitors will not make false statements or create misleading impressions.
• 3.27 In Bolton v Law Society [1993] EWCA Civ 32; [1994] 2 All ER 486 at 491- 492, the English Court of Appeal stated the following in relation to the imposition of a suspension (with emphasis added):

Any solicitor who is shown to have discharged his professional duties with anything less than complete integrity, probity and trustworthiness must expect severe sanctions to be imposed upon him by the Solicitors Disciplinary Tribunal. Lapses from the required high standard may, of course, take different forms and be of varying degrees. The most serious involves proven dishonesty, whether or not leading to criminal proceedings and criminal penalties. In such cases the tribunal has almost invariably, no matter how strong the mitigation advanced for the solicitor, ordered that he be struck off the Roll of Solicitors. ... Only in a very unusual and venial case of this kind would the tribunal be likely to regard as appropriate any order less severe than one of suspension.

• 3.28 A further relevant consideration is that the respondent's conduct had a significant adverse impact on the legal interests of Mr and Mrs X in that the guarantee was produced without their knowledge or informed consent.
• 3.29 Notwithstanding the character references which attest to the respondent's high standards of professionalism, it remains for the Tribunal to determine the appropriate penalty, especially having regard to the public interest which underlies legal disciplinary proceedings: see Council of the Law Society (ACT) v LP 12 (2018) 14 ACTLR 45; [2018] ACTCA 60 at [58] per Murrell CJ and Burns J.
• 3.30 Having regard to all of the above considerations, a suspension is warranted.

Counsel for the applicant Counsel for the applicant

Ground Floor Wentworth Chambers/ Ground Floor Wentworth Chambers/

Instructed by Katie Binstock and Samuel Harper of Thomson Geer

Appendix C1: Respondent's written outline of submissions on facts, charges, characterisation and sanction to be determined at hearing

Australian Capital Territory Civil and Administrative Tribunal

Council of the Law Society of the Australian Capital Territory

Respondent's written outline of submissions on facts, charges, characterisation and sanctions to be determined at hearing

1. Pursuant to the Tribunal's Orders of 11 November 2024 and 21 February 2025, the Respondent provides these submissions in advance of the hearing on breach, characterisation and penalty at 10am Wednesday 26 March 2025. The Respondent notes that he will be giving oral evidence on 26 March 2025.

1. The Respondent is a 63-year-old solicitor, admitted to legal practice in 1986, who has continuously practised law in the ACT for almost 39 years and who has continuously held an unrestricted practising certificate since 1989. The Respondent is a legal practitioner director of an ACT incorporated legal practice, and he works predominantly in property and commercial law.
2. The complaint which is the subject of this proceeding is the first conduct complaint and occupational disciplinary action against the Respondent, apart from a 'firm based' complaint1 to which the Respondent was joined as the firm's then managing partner although he was not directly involved in the subject of that complaint.2
3. The Respondent acted for N in relation to a conveyance and N's dispute with a builder in around 2014.3 The Respondent acted for Mr and Mrs X in 2018 when the Respondent arranged their wills and for their sons N and G to be appointed as their attorneys via enduring powers of attorney (EPAs).4 Both before and after the Respondent's professional dealings with N and Mr and Mrs X, the

1 Respondent's affidavit sworn 7 February 2025, paragraph 108.

2 Respondent's letter to the Applicant 30 August 2022, paragraph 51, at SWH-137-138.

3 Respondent's affidavit sworn 7 February 2025, paragraph 17.

4 Respondent's affidavit sworn 7 February 2025, paragraphs 18-26.

Respondent knew and had intermittent contact with the X family via his involvement in the Canberra Greek community.5

1. By its Application for Disciplinary Action dated 6 May 2024, the Applicant brought professional conduct charges concerning the Respondent acting in relation to:

(a) N's intended purchase of a residential unit in Griffith, ACT. The Respondent accepted instructions from N in around November 2018. Contracts were exchanged on 8 April 2019 although the contract was later rescinded;6 and

(b) in early 2019 to March 2019, a $250,000 loan from a Trust to a Company. The Company's directors and shareholders were N and Mr and Mrs X, with N's daughter I as alternate director.7

1. In early 2019, N advised the Respondent that the purpose of the loan was to (a) consolidate some debts for himself and Mr and Mrs X and (b) enable Mr and Mrs X to assist N with a deposit on the Griffith unit.8 Both from N and lawyers representing the Trust, the Respondent understood that Mr and Mrs X were, or were going, overseas and therefore N would sign Loan Documents as attorney for Mr and Mrs X.9 N told the Respondent that Mr and Mrs X were aware of and supported the loan and mortgage.10
2. Whilst acting on the loan transaction, the Respondent dealt only with N (apart for when the Respondent met with both N and I to sign loan documents), and the Respondent had no contact with Mr and Mrs X.11 There was no express retainer between the Respondent and Mr and Mrs X.12
3. In March 2019, the Respondent received loan documents from the Trust's lawyers which provided for a $250,000 loan from the Trust to the Company, secured via personal guarantees from N and Mr and Mrs X and secured via a mortgage over Mr and Mrs X's family home at Watson, ACT later registered on 1 May 2019.13
4. The Respondent arranged for I's appointment as alternate director and on 20 March 2019 the Respondent met with N and I to sign loan documents which the Respondent witnessed. On that same date, the Respondent signed an

5 Respondent's affidavit sworn 7 February 2025, paragraphs 16, 18 and 27.

6 Application for Disciplinary Action, paragraphs 7-10 and 32.

7 Application for Disciplinary Action, paragraph 11.

8 Application for Disciplinary Action, paragraph 14.

9 Application for Disciplinary Action, paragraph 14.

10 Application for Disciplinary Action, paragraph 14.

11 Application for Disciplinary Action, paragraphs 16-17, 34(a) and 35.

12 Application for Disciplinary Action, paragraph 18.

13 Application for Disciplinary Action, paragraphs 30, 31 and 33.

Acknowledgment of Legal Advice by Proposed Guarantor (First Acknowledgment) which the Respondent sent together with the signed loan documents to the Law Firm. Paragraph 5 of the First Acknowledgment stated:

"5. After receiving the above advice the guarantors freely and voluntarily authorised their attorney to sign the loan documents."

1. Two days later, the Law Firm emailed the Respondent requiring other things including a revised Acknowledgment of Legal Advice by Proposed Guarantor (Second Acknowledgment) which, as observed in the Law Firm's cover email, inserted N's name into paragraph 5 which stated:

"5. After receiving the above advice the guarantors freely and voluntarily authorised their attorney N to sign the loan documents."

1. The Respondent signed the Second Acknowledgment on 22 March 2019 and emailed that to the Law Firm on 27 May 2019 together with a separate Acknowledgment of Legal Advice by Proposed Guarantor signed by N dated 25 March 2019.

The Applicant's charges and the Respondent's position

1. By its Application for Disciplinary Action dated 6 May 2024, the Applicant brought professional conduct charges, paraphrased as:

(a) Charge 1 - The Respondent failed to deliver legal services competently and diligently by failing to advise N that he could not execute loan documents as attorney for Mr and Mrs X because of the constraints in Powers of Attorney Act 2006 (ACT), sections 34 and 42, thereby breaching rule 4.1.3.

(b) Charge 2 - Despite the absence of a formal retainer or any contact between the Respondent and Mr and Mrs X with respect to the loan transaction, Mr and Mrs X were the Respondent's clients in relation to the loan transaction. As such, by various failures to advise and communicate with Mr and Mrs X, by signing the Acknowledgment and by exchanging the Loan Agreement, the Respondent failed to deliver legal services competently and diligently to Mr and Mrs X (rule 4.1.3), failed to act in their best interests in relation to the loan transaction (rule 4.1.1) and failed to provide clear and timely advice to Mr and Mrs X to assist them to understand relevant legal issues and to make informed choices (rule 7.1).

(c) Charge 3 - The Respondent had a conflict of interest between the interests of N (in receiving part or all the loan funds) versus Mr and Mrs X who provided guarantees and a mortgage, thereby breaching rule 11.

(d) Charge 4 - By signing the Acknowledgment which contained terms which could only have been true had the Respondent provided advice to all guarantors (including Mr and Mrs X), the Respondent engaged in conduct demonstrating that he is not a fit and proper person to practise law or which is likely to a material degree to be prejudicial to or diminish public confidence in the administration of justice or bring the profession into disrepute (rule 5.1), failed to be honest in all dealings in the course of legal practice (rule 4.1.2), failed to deliver legal services competently and diligently (rule 4.1.3) and failed to avoid any compromise to his integrity and professional independence (rule 4.1.5). The Respondent signed the Acknowledgment either knowing that it contained false information or, alternatively, he was recklessly indifferent as to whether it created a misleading impression.

1. By his Amended Response, the Respondent admitted alleged facts and rules breaches for Charges 1, 2 and 3,14 other than that the Respondent does not admit that Mr and Mrs X were unaware that he was acting for N in relation to the purchase of the Griffith unit.15
2. In relation to Charge 4, by his Amended Response16 and the withdrawal of his admission of a breach of rule 4.1.2 as stated in his affidavit sworn 7 February 2025,17 the Respondent admits alleged facts (other than that he signed the Acknowledgment knowing that it contained false information) and a breach of rule 4.1.3 but not breaches of rules 4.1.2, 4.1.5 and 5.1 as contended by the Applicant.
3. In relation to Charge 4, the Respondent's position includes that he:

(a) was aware that he was signing a document that conveyed to the reader that the Respondent had provided legal advice to Mr and Mrs X as guarantors of a loan from the Trust to the Company;18

(b) admits that the Acknowledgments contained statements and representations which were false insofar as they stated that the Respondent had spoken with, advised and sought confirmation from Mr and Mrs X when the Respondent had not done so and that, having received that advice, Mr and Mrs X had then authorised N as attorney to sign the Loan Documents;19

14 Amended Response dated 22 November 2024, paragraphs 19, 20, 25-34.

15 Amended Response dated 22 November 2024, paragraph 32(a).

16 Amended Response dated 22 November 2024, paragraphs 21-23.

17 Respondent's affidavit sworn 7 February 2025, paragraphs 78-81.

18 Amended Response dated 22 November 2024, paragraph 22(b)(v).

19 Amended Response dated 22 November 2024, paragraph 22(f).

(c) was of the mistaken understanding that:20

(i) N (acting as attorney) was entitled to do anything that Mr and Mrs X were capable of doing (within the bounds of the EPAs) including seeking and receiving legal advice with respect to the mortgage and guarantee; and

(ii) by providing advice on the mortgage and guarantee to N (as attorney), the Respondent had provided advice to Mr and Mrs X as indicated in the Acknowledgment;

(d) read and understood paragraphs 1 and 2 but only glanced at paragraphs 3, 4 and 5 believing that they were standard paragraphs commonly appearing in a document of this kind;21 and

(e) acknowledges that he did not pay close attention to the specific wording in paragraphs 3, 4 and 5 of the Acknowledgment on the mistaken assumption that he was signing a form to the effect as Schedule 4 Part 2: Acknowledgment of Legal Advice by Proposed Guarantor which is an approved form under rule 11 of the Legal Profession Uniform Legal Practice (Solicitors) Rules 2015 (NSW):22

(i) Whilst the ACT does not prescribe equivalent forms to those NSW prescribed forms, it is common practice for ACT lenders to require guarantors to sign an acknowledgment reflecting the same terms as that NSW form. Such a form is so commonly used that it has been incorporated into the Respondent firm's document management system as a precedent form; and

(ii) When he signed the Acknowledgment, the Respondent assumed that the terms of the form were otherwise the standard terms of the NSW form (above), the Respondent's firm's precedent form (reflecting the NSW form) and equivalent forms used by ACT lenders (commonly reflecting the NSW form).

20 Amended Response dated 22 November 2024, paragraph 22(b)(vii).

21 Amended Response dated 22 November 2024, paragraphs 22(b)(ii) and 22(b)(iv).

22 Amended Response dated 22 November 2024, paragraph 22(h).

1. Rule 4.1 relevantly provides: "A solicitor must also be honest and courteous in all dealings in the course of legal practice." The Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (the Rules) unsurprisingly do not attempt to define "honest" or "dishonest". The legal issue in this case is what is meant by those terms.
2. The Applicant refers interchangeably to "dishonesty", "recklessness" and "misleading conduct."23 Each term has different shades of meaning.
3. In Legal Services Commissioner v Brereton [2011] VSCA 241, a solicitor, who was a director of a seller and also acted for the seller, received the buyer's deposit into his trust account and then disbursed trust monies to himself and an associate before the release of the deposit. Amongst other things, he was charged with common law misconduct via misappropriation. The Victorian Court of Appeal held:

(a) Whilst there was some doubt as to whether the charge of misappropriation required dishonesty, as the Commissioner had relied upon accusations of dishonesty, it was necessary to apply the appropriate test for 'dishonesty' as set out in _Peters v The Qu_een (1998) HCA 7; (1998) 192 CLR 49324 - see paragraph

(a) As the party alleging dishonesty, the Commissioner bore the onus of proving dishonesty to the requisite (Briginshaw) standard; it did not fall to the practitioner to prove that he acted honestly.25

1. The requirements of Peters26 were summarised by the trial judge in Brereton and quoted in the appeal judgment:27

"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."

1. In Berger v Council of the Law Society (NSW) [2019] NSWCA 119, a solicitor was charged with professional misconduct and unsatisfactory professional conduct arising from, among other things, purporting to act under a power of attorney without authority because of the death of the grantor of the power, and acting as the executor of the

23 Applicant's submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 3.9.

24 Legal Services Commissioner v Brereton [2011] VSCA 241 at [74].

25 Legal Services Commissioner v Brereton [2011] VSCA 241 at [77] and [79].

26 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 at [15] and [18]. Although this case concerned the elements of offence of conspiracy to defraud, an important aspect of the decision concerned the test for dishonesty.

Peters rejected the English Court of Appeal's test for dishonesty in Ghosh [1982] EWCA Crim 2; [1982] QB 1053, namely - a person is dishonest if what he did was dishonest by current standards of ordinary and reasonable honest people and the person must have realised it was dishonest by those standards. The Peters test focuses on the actual knowledge, belief and intent of the accused.

27 Legal Services Commissioner v Brereton [2011] VSCA 241 at [66].

estate without authority in favour of himself.28 The Court of Appeal affirmed that "[t]he common law of Australia about the meaning of 'dishonesty', unless a specific statutory definition applies, has been clear since Peters v The Queen".29

1. In finding against the appellant, the Court of Appeal cited the earlier decision of Kumar v Legal Services Commissioner [2015] NSWCA 161 at [60]. In that case, Leeming JA held that "there was and is no plausible explanation inconsistent with deliberate dishonesty".30
2. This is consistent with the finding of the High Court in Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 at [34] that "fraudulently" and "dishonestly" are synonymous; reflecting the requirement of a knowledge, belief or intention that the act of the accused was dishonest.31
3. Similarly, it is settled that recklessness can amount to dishonesty. To amount to recklessness, what is required is a subjective "awareness of the risk in each case, that the statement made...may be untrue but that [the risk was consciously] disregarded... in those circumstances".32 The ACT Court of Appeal Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19 at [65] gives the example that a person may be guilty of recklessness if they were to certify that they had completed a minimum of 10 hours of professional development, where their state of mind was that they were not sure the hours had been completed. This would demonstrate "an advertence to the possibility of the statement made being untrue and a conscious decision to disregard that risk".33
4. There is a key distinction to be drawn between negligence, and indifference to the truth, such that a reckless statement can be regarded as dishonest. As was held in Pollard v Director of Public Prosecutions (1992) 28 NSWLR 659 at 672, there is a distinction:34

"...between negligent or careless statements, which he treated as honest and on the other hand, recklessness as to the truth, that is to say some indifference to truth and which was to be regarded as being dishonest".

28 Berger v Council of the Law Society (NSW) [2019] NSWCA 119 at [240].

29 Berger v Council of the Law Society (NSW) [2019] NSWCA 119 at [240]; citing Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 at [15] and [18].

30 Berger v Council of the Law Society (NSW) [2019] NSWCA 119 at [271]; citing Kumar v Legal Services Commissioner [2015] NSWCA 161 at [60].

31 Citing Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 at [18]; cited in Berger v Council of the Law Society (NSW)

[2019] NSWCA 119 at [242].

32 Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19 at [66], [68] and [71]; citing Guidice v Legal Profession Complaints Committee [2016] WASCA 159 at [31]; and G E Dal Pont, Solicitors Manual (LexisNexis Butterworths, 2005) at [35,035]. Note that Du Pont observes that a false or misleading statement without the relevant intention or belief is not indicative of dishonesty.

33 Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19 at [65].

34 Pollard v Director of Public Prosecutions (Cth) (1992) NSWLR 659 at 672; citing Angus v Clifford [1891] 2

1. In Pollard, the NSW Supreme Court was citing R v Weaver [1931] HCA 23; (1931) 45 CLR 321 at 354, to the effect that, if a representation is false, "it may be shown to have been...made...with a dishonest indifference to its truth".
2. In Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115, a solicitor was charged with professional misconduct by filing a client affidavit in Family Court proceedings which he knew was false or with recklessly disregard as to whether the statement was true or false. The Western Australian Court of Appeal held that this required a subjective assessment of the solicitor's actual state of mind as to whether he either "wilfully disregarded the truth or falsity of the relevant portion of the affidavit or, put another way, had closed his mind to the question of whether it was true or false".35 Put another way, the subject assessment was one of "not caring in the [practitioner's] own heart and conscience whether it was true or false".36
3. The Court held that acting recklessly involved two components: (1) a finding that the relevant part of the affidavit was false, and (2) "a finding that the practitioner recklessly disregarded the truth or falsity of the relevant portion of the affidavit".37
4. The Court held that the solicitor would have recklessly disregarded whether a statement in the affidavit was true or false if: (1) at the time of filing, he was aware that the statement was untrue/false and (2) he consciously disregarded the risk38. Both elements concerned the solicitor's actual state of mind.39 The second element ("consciously disregarded") connotes that the solicitor "wilfully or deliberately shut his eyes to, or excluded from contemplation, the risk that the statement was untrue or false".40 Put another way, recklessness can only be made out if it is established that the solicitor's actual state of mind was "indifference" or "not caring" about the truth of the statement.41

Why the Respondent was not dishonest as alleged with respect to Charge 4

1. At the time that the Respondent signed and emailed the First Acknowledgment to the Law Firm Partners on 20 March 2019, he had glanced at but did not read paragraphs 3, 4 and 5, instead believing that they were standard paragraphs commonly appearing in a document of this kind.42
2. After receiving the Second Acknowledgment from the Law Firm on 22 March 2019 which included a cover email from the Law Firm pointing out the insertion of N's name into paragraph 5, the Respondent did not carefully read the Second Acknowledgment as it appeared to be in the same terms as the First Acknowledgment.43

35 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [2].

36 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [2].

37 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [37].

38 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [95].

39 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [96].

40 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [97].

41 Giudice v Legal Practitioners Complaints Committee [2014] WASCA 115 at [2], [44] and [130].

42 Amended Response, paragraph 22(b)(iv); Respondent's affidavit sworn 7 February 2025, paragraph 59.

43 Respondent's affidavit sworn 7 February 2025, paragraph 62.

1. Paragraph 5 in both the First and Second Acknowledgments were tailored to suit the unique circumstances of this loan, i.e. that N would sign loan documents as attorney for Mr and Mrs X who were guarantors.
2. The Respondent was inexperienced in advising guarantors signing loan documents via an attorney exercising a power of attorney.44 He was familiar with typical 'standard' forms of similar acknowledgments which do not involve an attorney signing loan documents on behalf of a guarantor.45
3. The Respondent believed that the First and Second Acknowledgments simply contained terms typical of acknowledgments/certificates of advice to guarantors, which would not ordinarily have contained a provision such as. paragraph 5) requiring that he speak directly with Mr and Mrs X about the guarantees.
4. The Respondent also positively believed that, by advising N (as attorney) about the guarantees, the Respondent had thereby advised the guarantors (including Mr and Mrs X) as required by the First and Second Acknowledgments.46
5. As the party asserting that the Respondent was dishonest, the Applicant bears the onus of proving dishonesty, to the requisite Briginshaw standard, and it does not fall to the Respondent to prove that he acted honestly.47
6. In these circumstances:

(a) The Respondent did not sign the First and Second Acknowledgments knowing that he had made a false representation that he had personally advised Mr and Mrs X when he had not done so.

(b) The Respondent was not reckless in that he had not wilfully disregarded the truth or falsity or closed his mind as to whether he had personally advised Mr and Mrs X.

1. The Applicant submits that it is implausible that the Respondent did not read paragraph 5. These issues will no doubt be covered in oral evidence by the Respondent, and detailed submissions are more appropriate after that evidence. Suffice to say that the Respondent submits that his affidavit sets out a plausible explanation for signing the acknowledgements inconsistent with dishonesty.
2. The Applicant submits that the Respondent has admitted that, when he signed the Acknowledgments, he understood their legal nature and effect, citing "Admissions [22.1.b]." This reference is incorrect. The Applicant appears to be referring to Amended Response paragraph 22(b.48 This submission misrepresents what is stated

44 Respondent's affidavit sworn 7 February 2025, paragraph 66.

45 Amended Response, paragraph 22(h); Respondent's affidavit sworn 7 February 2025, paragraphs 60-62.

46 Amended Response, paragraphs 22(b)(vi) and 22(b)(vii); Respondent's affidavit sworn 7 February 2025, paragraph 63.

47 Legal Services Commissioner v Brereton [2011] VSCA 241 at [77] and [79].

48 Applicant's submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 4.2(a).

in Amended Response paragraph 22(b). The Respondent does not admit to understanding the legal nature and effect of the acknowledgements he signs.

1. The Respondent denies that he was deliberately dishonest or so reckless as to amount to dishonesty. The Respondent did not breach rules 4.1.2 or 4.1.5 which require a finding that the Respondent acted dishonestly in signing the Acknowledgments. The Respondent has admitted that he was careless by signing the Acknowledgments without having properly read them, including paragraph 5.49 The Respondent denies breaching rule 5.1 by signing the Acknowledgments.50

1. 'Unsatisfactory professional conduct' is defined:51

unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

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

1. The statutory definition of 'professional misconduct' is:

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

51 Legal Profession Act 2006 (ACT), section 386.

1. At Common Law, 'professional misconduct' is:52

...where a professional engages in behaviour that would reasonably be regarded as disgraceful or dishonourable by professional colleagues who are of good repute and competency that constitutes professional misconduct...Such conduct requires more than mere negligence, though it may be constituted by gross negligence or recklessness.

1. In its Application for Disciplinary Action, the Applicant contends that the Applicant's conduct which is the subject of Charges 1-4 (inclusive), considered globally or in each case, is professional misconduct either within Legal Profession Act 2006 (ACT) (LPA) section 387 or at common law53 or is otherwise unsatisfactory professional conduct as defined in LPA section 386.54 In its written outline of submissions, the Applicant contends that:

(a) the Respondent's conduct in relation to Charges 1-3 (inclusive) should be characterised as professional misconduct, although the Applicant does not say whether that should be professional misconduct within LPA sections 387(1)(a) and/or 387(1)(b);55 and

(b) the Respondent's conduct in relation to Charge 4 should be characterised as professional misconduct within the meaning of both LPA section 387(1)(a) ("a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence") and LPA section 387(1)(b) ("conduct...that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice").56

(a) the Respondent's conduct in relation to Charges 1-3 (inclusive), considered individually and globally, constitutes unsatisfactory professional conduct within LPA section 386;57 and

(b) the Respondent's conduct in relation to Charge 4 should be characterised as professional misconduct within the meaning of LPA section 387(1)(a) but not

52 _Legal Practitioner v Council of the Law Society of the Australian Capital Terri_tory [2014] ACTSC 13, Refshauge J at [77].

53 Application for Disciplinary Action dated 6 May 2024, paragraph 51.

54 Application for Disciplinary Action dated 6 May 2024, paragraph 67.

55 Applicant's submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 6.2.

56 Applicant's submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraph 5.1.

57 Amended Response dated 22 November 2024, paragraph 68.

section 387(1)(b).58

1. In Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34, an experienced solicitor erroneously advised Mrs Smith (who held an EPA for her mother) that she and her husband could borrow $400,000 from Mrs Smith's mother to temporarily reduce their mortgage, borrowed from surplus funds after Mrs Smith sold her mother's house to pay a nursing home bond. The solicitor failed to advise Mrs Smith that the loan was impermissible per Powers of Attorney Act 2006 (ACT) (POAA) sections 34 and 42.
2. In Legal Practitioner 20215, the solicitor was charged with and conceded breaches of rules 1.1, 1.2 and 7.2 of the repealed Legal Profession (Solicitors) Rules 2007 (ACT) for:

(a) failing to treat Mrs Smith fairly and in good faith, having regard to her dependence upon him - rule 1.1;59

(b) failing to act with competence and diligence by failing to advise Mrs Smith, in her capacity as her mother's attorney, that the loan was not permitted by the POAA - rule 1.2;60 and

(c) acting for more than one party to the transaction, namely Mr and Mrs Smith (in their personal capacity as borrowers), and Mrs Smith (in her capacity as her mother's attorney i.e. the lender), where their interests were in conflict - rule 7.2.61

1. In Legal Practitioner 20215, the parties jointly submitted and the ACAT accepted that the solicitor's conduct was properly characterised as unsatisfactory professional conduct.62
2. The Respondent's conduct in relation to Charges 1-3 (inclusive) is broadly comparable to that in Legal Practitioner 20215 and should similarly be characterised as conduct falling 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, but not within the common law or statutory definitions of professional misconduct.

58 Amended Response dated 22 November 2024, paragraph 69.

59 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [25].

60 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [26].

61 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34 at [27].

62 Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34, at [29] and [44].

1. The Respondent adopts the Applicant's submissions as regards the protective purpose of disciplinary proceedings.63
2. The Respondent submits that appropriate sanctions under LPA section 425 are:

(a) The Respondent is publicly reprimanded.

(b) The Respondent is to pay a fine in the order of $10,000.

(c) Within 12 months, the Respondent is to undertake a course in legal ethics approved by the Applicant.

(d) The Respondent further offers to participate in legal ethics or similar educational sessions to share with other members of the profession the lessons learnt from this matter particularly regarding the pitfalls of busy practice even for experienced practitioners.

1. The Respondent will seek to be heard as to the appropriate order as to costs to be made under LPA section 433.

63 Applicant's submissions on breach, characterisation and penalty for hearing on 26 March 2025, paragraphs

Appendix C2: Respondents case outline - summary of issues for determination, relevant legislation, authorities and summary of argument, filed 26 March 2025

Australian Capital Territory Civil and Administrative Tribunal

Council of the Law Society of the Australian Capital Territory

Respondent's case outline - summary of issues for determination, relevant legislation, authorities and summary of argument

1. In accordance with Orders of Senior Member Neville made 20 March 2025, the Respondent provides the following case outline.

1. Matters to be determined at hearing are set out in the parties' joint Statement of Real Issues in Dispute dated 17 March 2025.

1. Legislation directly relevant to the matter is:

(a) Legal Profession Act 2006 (ACT) (LPA), sections 386, 387(1)(a) and 387(1)(b) - definitions of 'unsatisfactory professional conduct' and 'professional misconduct';

(b) Legal Profession (Solicitors) Conduct Rules 2015 (ACT) (Rules), rules 4.1.1, 4.1.2, 4.1.3, 4.1.5, 5.1, 7.1 and 11;

(c) Powers of Attorney Act 2006 (ACT), sections 34 and 42.

Pollard v Director of Public Prosecutions (1992) 28 NSWLR 659

_Peters v The Qu_een [1998] HCA 7; (1998) 192 CLR 493

Giudice v Legal Profession Complaints Committee [2014] WASCA 115

Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230

Legal Services Commissioner v Brereton [2011] VSCA 241; (2011) 33 VR 126

_Legal Practitioner v Council of the Law Society of the Australian Capital Terri_tory [2014] ACTSC 13

Kumar v Legal Services Commissioner [2015] NSWCA 161

Guidice v Legal Profession Complaints Committee [2016] WASCA 159

Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19

Berger v Council of the Law Society of New South Wales [2019] NSWCA 119

Council of the Law Society of the ACT v Legal Practitioner 20215 (Occupational Discipline) [2022] ACAT 34

G E Dal Pont, Solicitors Manual (LexisNexis Butterworths, 2005) at [35,035]

1. The Applicant's four charges and the Respondent's position on those charges are summarised in paragraphs 12-15 of the Respondent's written submissions filed 21 March 2025.
2. A key issue for the Tribunal to determine at hearing is, in relation to Charge 4, whether the Respondent was dishonest and thereby breached Rules 4.1.2,
3. 4.1.5 and 5.1 of the Rules (as contended by the Applicant) when the Respondent signed the First and Second Acknowledgments (the Acknowledgments). The Respondent says that he was careless (and thus breached Rule 4.1.3) but that he was neither deliberately nor recklessly dishonest in signing the Acknowledgments and therefore he did not breach Rules 4.1.2, 4.1.5 and 5.1 by signing the Acknowledgments.
4. As the party asserting that the Respondent was dishonest, the Applicant bears the onus of proving dishonesty, to the requisite Briginshaw standard, and it does not fall to the Respondent to prove that he acted honestly in signing the Acknowledgments.
   1. The Respondent refers to paragraphs 16-28 of his written submissions filed 21 March 2025 with respect to relevant principles and authorities.
5. As to why the Respondent was not dishonest in signing the Acknowledgments, the Respondent refers to paragraphs 29-39 of his written submissions of filed 21 March 2025.
6. As regards characterisation of his conduct:

(a) The Respondent contends that his conduct in relation to Charges 1, 2 and 3 constitutes 'unsatisfactory professional conduct' (LPA section 386) but not 'professional misconduct' as contended by the Applicant.

(b) The Respondent contends that his conduct in relation to Charge 4 constitutes 'professional misconduct' per LPA section 387(1)(a) ("a substantial or consistent failure to reach of maintain a reasonable standard of competence and diligence") but not (as contended by the Applicant) per LPA section 387(1)(b) ("conduct...that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice").

1. As regards sanctions, the Respondent submits that appropriate sanctions under LPA section 425 are:

(a) The Respondent is publicly reprimanded.

(b) The Respondent is to pay a fine in the order of $10,000.

(c) Within 12 months, the Respondent is to undertake a course in legal ethics approved by the Applicant.

(d) The Respondent further offers to participate in legal ethics or similar educational sessions to share with other members of the profession the lessons learnt from this matter particularly regarding the pitfalls of busy practice even for experienced practitioners.

[1] See T 73. In the same place, the further comment was made that ... "it is not contended that this practitioner is unfit [to continue to practise]." Curiously, notwithstanding these appropriate comments, as set out in the Statement of Agreed Facts (at pars.75-77), the Applicant pressed for the Respondent to be found to be in breach of s.387(1)(b) of the Legal Profession Act 2006, which refers specifically to "professional misconduct" which would, if established, "justify a finding that the practitioner is not a fit and proper person to engage in legal practice." More is said throughout these reasons on this regularly appearing incongruity.

[2] Throughout these reasons, while there will be regular reference either to "Charge ...", or, from time to time, the parlance shifts to "count ...". Nothing turns on any change in language in this regard.

[6] Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 at [71]. See also [74].

[7] Formally, I should note that an Amended Application under s.419 of the Legal Profession Act 2006 (ACT) was filed by the Applicant on 20 March 2025. The amendments noted in this Amended Application all relate to matters concerning charge 4. A Further Amended Response was filed by the Respondent on 21 March 2025.

[9] Documents regarding these matters were at Tab 8 of the Respondent's Tender Bundle. The relevant document is an Affidavit of a lawyer who was instructed by Mr N. X to arrange a discharge of mortgage for the loan there specified; the loan was secured by a mortgage over the family home of the X family in Watson ACT, and in relation to which Mr and Mrs X were guarantors.

[15] King v The Queen [1986] HCA 59; (1986) 161 CLR 423 at 426.

[16] For example, Rule 62 of the ACT Bar Rules states (emphasis added): "A prosecutor must fairly assist the court to arrive at the truth, must seek impartially to have the whole of the relevant evidence placed intelligibly before the court, and must seek to assist the court with adequate submissions of law to enable the law properly to be applied to the facts."

[17] See G. E. Dal Pont, Lawyers' Professional Responsibility (8th edition) (Sydney: Thomson Reuters/Lawbook Co. 2025) at par.23.65, citing Legal Services Commissioner v Adamakis [2013] VCAT 1970 at [31].

[21] The correspondence referred to below is at pp.129-138 of exhibit SWH1.

[22] The Respondent's Senior Counsel noted this in his oral submissions; see T 85.

[23] See the comments by McCallum CJ quoting and confirming this responsibility in Council of the Law Society of the ACT v ACAT [2025] ACTSC 251 at [1].

[24] The lengthy entanglements between the witness and Counsel for the Applicant are at T 28-35.

[28] T 49. See also T 50 ff regarding (a) the Respondent's belief, at the relevant time, that he was advising N as his parents' attorney, (b) the signing of the second acknowledgment, (c) the distinction between "failing to read something and failing to read it properly", and (d) the Respondent's direct denial that in signing the acknowledgments he knew that what he was certifying was untrue (T 53).

[32] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[33] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170-171 (Mason CJ, Brennan, Deane, Gaudron JJ).

[34] The bulk of the documents here referred to were contained within Exhibit SWH1, to the Affidavit of Mr SW Harper, affirmed 4th December 2024. Page references are to the relevant document in this Exhibit.

[46] The letter of 25th January 2024 is at SWH1 218-219.

[47] See the details set out in p.2 of the letter; SWH1 219.

[50] Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256.

[51] 176 CLR at 270. There are multiple other, similar examples of such statements, which I need not note, except perhaps the comments by the NSW Court of Appeal in O'Reilly v Law Society of NSW (1988) 24 NSWLR 204 at 211 (Kirby P) and at 224 (Clarke JA). Kirby P said (at 211; emphasis added)): "But the duty of this Court is to consider that conduct carefully and to measure the matters proved against the specific charges which were brought. The Court must protect the public. But it must do so in proceedings which are fair to the solicitor. Upholding fair procedures, including for solicitors charged with professional misconduct, is part of the fabric of the law by which the Court defends the public interest." For his part, Clarke JA said (at 220; internal citations omitted): "... because of the grave nature of the charges there must be clear proof of the facts said to give rise to the misconduct so as to induce "on a balance of probabilities, an actual persuasion of the mind as to [their] existence".

[52] The authorities here include Commonwealth v Fernando [2012] FCAFC 18; (2012) 200 FCR 1 at [129]- [130]; and the prominently political controversies ventilated in Ashby v Slipper [2014] FCAFC 15; (2014) 219 FCR 322 at [69] (Mansfield and Gilmour JJ), as well as the two remarkable decisions in the Roberts-Smith litigation itself.

[53] Metaxis v Legal Profession Complaints Committee [2020] WASCA 27. Their Honours' comments are, of course, similar to those made by Clarke JA in O'Reilly quoted above, where his Honour said: "(at 220; internal citations omitted): "... because of the grave nature of the charges there must be clear proof of the facts said to give rise to the misconduct so as to induce "on a balance of probabilities, an actual persuasion of the mind as to [their] existence".

[54] Kumar v Legal Services Commission of NSW [2016] NSWCA 161.

[58] Roberts-Smith v Fairfax Publications Pty Ltd (Reopening Application) [2025] FCAFC 66 at [71]. See also [74].

[60] Again, see pars.54-69 of the Respondent's Affidavit, filed 7 February 2025.

[62] The Respondent's Case Outline (filed 26 March 2025) notes most of the same sections and provisions as in that from the Applicant but is not quite as expansive as the latter.

[63] A Solicitor v Council of the Law Society of New South Wales [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor).

[64] Among many decisions, see Weaver v Law Society of New South Wales [1979] HCA 35; (1979) 142 CLR 201 at [13] (Mason J; all other members of the Court agreeing); Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 252 (Deane, Dawson, Toohey and Gaudron JJ).

[65] Re a Legal Practitioner (1981) 55 FLR 405 at 423.

[66] Among many places, see Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 286 (Dixon CJ); Law Society of New South Wales v Foreman (1994) NSWLR 408 at 441 (Mahoney JA).

[67] See the comments by the Full Court of the ACT Supreme Court in Re Robb (1996) 134 FLR 294 at [178] (Miles CJ, Gallop & Higgins JJ).

[68] See, for example, the brief comments by Deane J in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 270, and the cases his Honour there discusses. The cautionary comments by the plurality (Brennan, Dawson, Toohey and Gaudron JJ) at [30] - [40] regarding belief or non-belief of the evidence of a witness, the lawyer in question in particular, are salutary.

[69] A Solicitor 216 CLR at [16] (Gleeson CJ, McHugh, Gummow, Kirby & Callinan JJ).

[70] The Council of the Law Society of the ACT v ACT Civil and Administrative Tribunal [2025] ACTSC 251 at [1].

[71] Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 (Peters).

[72] See, for example, Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230 (Macleod), and more recently, the NSW Court of Appeal in Berger v New South Wales Law Society (2019) NSWCA 119 at [240] (Payne JA; Meagher JA and Simpson AJA agreeing).

[73] Macleod 214 CLR at [100] and earlier at [18]. Also in Macleod, see the informative discussion of Peters by the plurality (Gleeson CJ, Gummow and Hayne JJ) at [35] - [38]. See also the application of Peters in DPP (Vic) v Morley [2020] VSCA 313; and Berger v Council of the Law Society (NSW) [2019] NSWCA 119 at [240].

[75] Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19 at [65].

[76] Derry v Peek (1889) 14 App Cas 337.

[77] Nocton v Lord Ashburton [1914] UKLawRpAC 31; [1914] AC 932.

[78] Relevant references are set out in Australia's own locus classicus of Meagher, Gummow & Lehane's Equity: Doctrines & Remedies (5th Edition) (Sydney: LexisNexis Butterworths, 2015) at [12-030] (MGL).

[79] See Peters v The Queen 192 CLR at [18]. See also the comments in Legal Practitioner v Council of the Law Society (ACT) [2018] ACTCA 19 at [65], [66], [68] and [71] (emphasis added) regarding the necessity that the accused had an "awareness of the risk in each case, that the statement made ... may be untrue but that [the risk was consciously] disregarded ..."; and Pollard v Director of Public Prosecutions (1992) 28 NSWLR 659 at 672, discussing the difference between negligence and indifference to the truth, which can lead to a reckless statement being regarded as dishonest.

[80] Legal Profession (Solicitors) Conduct Rules 2015 (ACT), glossary of terms.

[81] Legal Profession Act 2006 (ACT), dictionary.

[82] Per the definition of "client" in the Legal Profession (Solicitors) Conduct Rules 2015 (ACT), glossary of terms.