Legislation cited: ACT Civil and Administrative Tribunal Act 2008 s 82

Legal Profession Act 2006 ss 6, 387, 419, 425

Mental Health Act 2015

Subordinate

Legislation cited: Legal Profession (Solicitors) Conduct Rules 2015 rr 19.1, 43.2

Cases cited: Australian Coal & Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621

Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1

Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52

Council of the Law Society of the ACT v LP 12 [2019] ACAT 68

Council of the Law Society of the ACT v LP 12 (No.2) [2019] ACAT 121

Council of the Law Society of the ACT v Legal Practitioner 201920 [2020] ACAT 31

Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2

Council of the Law Society of New South Wales v Zhulovska [2020] NSWCA 163

Law Society of the ACT v Powrie [2017] ACTSCFC 4

Legal Profession Complaints Committee v Bower [2019] WASC 281

LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27

The Council of the Law Society of the Australian Capital Territory v LP12 [2018] ACTCA 60

Norbis v Norbis [1986] HCA 17

Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239

List of

Texts/Papers cited: Gino E Dal Pont, Solicitor's Manual, Lexis Nexis Australia online, version last updated 2019

COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

2. The parties may within 14 days make submissions in writing as to whether any other orders, including orders as to costs, should be made.

1. The Council of the Law Society of the ACT (Council, Law Society or appellant) has appealed against part of the decision (Original Decision)[1] of a senior member of the ACT Civil and Administrative Tribunal (Original Tribunal) made in relation to the legal practitioner who is the respondent in these proceedings (practitioner or respondent).[2]

2. In summary the practitioner admitted, and the Original Tribunal found, that the practitioner had engaged in professional misconduct,[3] comprised of:

(a) knowingly misleading the Administrative Appeals Tribunal (AAT) and causing the AAT to be misled as to his availability to conduct a hearing and the availability of a doctor for the hearing in the context of an adjournment application;

(b) knowingly misleading his client; and

(c) not furnishing an accurate record of his conduct in relation to the matter to the Law Society.

3. Therefore the primary question for the Original Tribunal to answer was, on the basis of this professional misconduct, what orders should be made in relation to the practitioner, including whether the practitioner's name should be removed from the roll of legal practitioners. The Original Tribunal described the "real issue" in the case as whether the practitioner "has fundamental dishonest qualities."[4]

4. The parties were divided on whether the practitioner's conduct demonstrated, in light of his disciplinary history, that he was no longer fit and proper to remain on the roll. More specifically, the issue was whether the practitioner was at the time of the hearing unfit to practise and was likely to be unfit to practise in the indefinite future.[5]

5. The Original Tribunal ordered, in summary, that:

(a) the practitioner be publicly reprimanded (Order 1);

(b) the practitioner pay the Council's legal costs at the rate of 90% of solicitor-client costs and disbursements in full with such costs to be agreed or assessed (Order 2);

(c) a local practising certificate not be granted to the practitioner before 30 June 2025 unless certain specified conditions (including consultation with and compliance with any treatment proposed by a mental health practitioner, attendance at certain courses, and acceptance by the practitioner that a condition of the restricted practising certificate be that he be supervised and mentored by a senior practitioner in any legal work he undertakes) were satisfied (Order 5); and

(d) the parties had liberty to apply within 14 days of receipt of the orders in respect of the drafting of Order 5, otherwise the orders took effect from 19 May 2020 (Order 6).

6. The Original Tribunal also made non-disclosure and other orders in relation to the respondent, documents and transcript of the proceedings before the Original Tribunal, and public access to the Tribunal's file (Orders 3 and 4).

7. The appeal is from the orders on sanction only. The Council seeks orders to the effect that:

(a) Orders 5 and 6 be set aside and the following orders be substituted:

(i) 5. Pursuant to section 425(3)(a) of the Legal Profession Act 2006 (ACT), the Tribunal recommend that the name of the respondent be removed from the roll of legal practitioners; and

(ii) the respondent pay the Council's costs of the appeal.

8. In this appeal the Council contended in essence that the Original Tribunal erred in failing to find that the practitioner was probably permanently unfit to practise. In oral submissions, counsel for the practitioner stated that there was "present unfitness" but submitted there was not "indefinite unfitness" and hence the Council could not succeed on appeal.[6] The practitioner contended that the sanction ordered by the Original Tribunal was within a given range and was a legitimate and reasonable answer to the question asked of the Original Tribunal.[7]

9. This is an appeal which involves a review of the Original Decision. As such there is a presumption in favour of the correctness of the Original Decision, which should be affirmed unless we are satisfied that the decision is clearly wrong because of material errors. It is not enough that we consider that we would have exercised the relevant discretion differently.

10. The practitioner admitted professional misconduct, so the operative parts of the Original Decision were only those as to the sanction. The Council raised four principal grounds of appeal, and sought a recommendation that the practitioner be removed from the roll. First it was said that the Original Tribunal failed to make a proper assessment of the nature and seriousness of the relevant conduct of the practitioner (Ground 1). The Original Tribunal in fact found that the practitioner's conduct was so serious as to support a recommendation for his removal, but that the effects of his mental illness, which explained but did not excuse the misconduct, were not permanent. The issues raised by the Council in this area did not amount to material errors.

11. Second, it was said that the Original Tribunal erred in the application of the expert psychological evidence (Ground 2). In summary the Original Tribunal found on the basis of expert and other evidence that the practitioner did suffer from depression at the relevant time, that he had numerous stressors at that time, that this explained the conduct but did not excuse it, and that this mental illness could be treated.[8] On this basis, the Original Tribunal did not recommend removal from the roll, but did order a long suspension unless certain conditions were met. This Tribunal finds that there was evidence to support these conclusions, and that the issues raised by the Council did not amount to material errors.

12. Third, it was said that the Original Tribunal erred in the characterisation of the practitioner's disciplinary history (Ground 3). There were two relevant prior matters, the most significant was the LP 12 matter where there was a disbursal in 2011 of settlement moneys to a client but the practitioner retained fees greater than the amount agreed. The Original Tribunal had regard to this history, but did not think that it, together with the more recent conduct, required a recommendation of removal from the roll. The issues raised by the Council did not amount to material errors.

13. Fourth it was said that the Original Tribunal gave too much weight to character evidence (Ground 4). We do not think this Ground was made out.

14. Therefore, we conclude that the appeal should be dismissed. We set out our detailed reasons below.

15. On 25 July 2019, the Council brought an application for disciplinary action against the practitioner pursuant to section 419 of the Legal Profession Act 2006 (the Act). The application was amended on 4 December 2019.

16. On 26 February 2020, the Original Tribunal heard the amended application.

17. In the course of the hearing, evidence was given orally and in writing by the practitioner (who was cross-examined on his affidavit)[9] and Professor Stevens (a psychologist who assessed the practitioner in January 2020 and diagnosed a major depressive disorder with moderate to severe symptoms (single episode))[10]. Written evidence in the form of affidavits or witness statements was provided by Robert Reis (the Council's Professional Standards Manager),[11] Murray Maclean (a former diplomat, mentor of the practitioner and character witness),[12] NW,[13] SD,[14] ZA[15] and ZC (a colleague of the practitioner).[16] There was character evidence from local barristers, a Sydney barrister and a former principal of the practitioner's firm.[17]

18. Significantly, the parties provided a detailed joint submission dated 17 December 2019, an anonymised copy of which was annexed to the Original Tribunal's reasons for decision (Joint Submission). It included a detailed statement of facts, reference to the relevant legislation and rules in relation to the charges against the practitioner, details of each of the five charges and the characterisation of those charges. The Joint Submission noted that the parties would provide separate submissions to the Original Tribunal on the sanction to be determined.

19. The Original Tribunal made orders and gave reasons for its decision on 6 May 2020. The Original Tribunal noted specifically which parts of affidavits and other documents were not read and were excluded from the applicant's or respondent's evidence.[18] The Original Tribunal stated that the facts that it might consider were, for the most part, uncontested. Reference was made to some specific contests when explaining the respective submissions.[19] The decision and orders are summarised at paragraphs [2] to [6] above. We now set out a chronology of the relevant events and a summary of the reasons for the Original Decision.

20. The following chronology sets out the instances of the practitioner's behaviour which gave rise to the proceedings, and other events (including separate disciplinary proceedings commenced against the practitioner in 2016 in relation to his conduct in 2011 (LP 12 proceedings)) over a period of more than two years which provide the context in which his behaviour occurred. The chronology is compiled from the Original Decision, primarily the Joint Submission annexed it. It is included here because it provides the basis for assessing the submissions made by the Council that some of the conclusions reached by the Original Tribunal were a result of the erroneous exercise of discretion in the sense described by the High Court in House v The King.[20]

21. At 9am on 14 March 2017, the practitioner's client met with the practitioner, a junior solicitor employed by the practitioner's firm, and counsel engaged to represent the client at the hearing of the client's psychological injury claim against Comcare. The hearing of that claim was set down before the AAT for the following day, 15 March 2017.

22. At the 14 March 2017 meeting, counsel gave advice to the client about problems with his claim and the need to try to settle the matter. The client was upset by that advice, and counsel's retainer was terminated. The client asked the practitioner to find another barrister to take over or have the hearing adjourned.

23. After the meeting, the practitioner arranged for the junior solicitor to notify a doctor who was scheduled to give evidence on 15 March 2017 that the matter might not be proceeding on that day. The practitioner understands that the junior solicitor notified the doctor accordingly.

24. The practitioner approached another barrister to act in the matter on short notice. That barrister wanted funds in trust prior to accepting instructions and as a result was not briefed.

25. The practitioner wrote to the AAT requesting that the matter be listed urgently for a directions hearing for the purpose of applying for an adjournment due to the absence of counsel. He wrote that, in the circumstances, "we have no option but to advise that we are unable to proceed with the hearing as scheduled and kindly ask for it to be vacated."

26. The AAT convened a directions hearing at 2:23pm on 14 March 2017. The practitioner appeared by telephone and asked for the adjournment. During the directions hearing, the practitioner stated that he was not available to appear on 15 March 2017 because "my family and I need to take my daughter to a medical appointment and that's been scheduled. So I'm personally not available." The AAT Senior Member said that he was happy to consider whether there was a time on 15 March 2017 to allow the practitioner to take his daughter to the medical appointment and still be involved in the hearing. In response the practitioner stated "No, I'm not available at all tomorrow." Later in the hearing, the practitioner stated that "we might have to sort of say that we're sorry we have to perhaps resign as well from this matter."

27. During the directions hearing, the practitioner stated "We have the doctors on stand-by." Counsel for Comcare noted that concurrent evidence from two doctors was scheduled for 11:30am on 15 March 2017. The AAT rejected the adjournment application, stating that the absence of counsel alone is not a sufficient reason for proceedings to be adjourned.

28. The practitioner's daughter did not have a medical appointment on 15 March 2017. He knew this to be the case when he made submissions to the AAT on 14 March 2017. The practitioner stated later that he advised the AAT that his daughter had a medical appointment because he thought that would gain more sympathy from the AAT. The only appointment entered into the practitioner's diary for 15 March 2017 was the client's hearing.

29. At 3:08pm, the practitioner emailed the client informing him that there was a directions hearing and the AAT refused to vacate the hearing on the basis that absence of counsel to conduct the hearing was not sufficient reason to vacate. Consequently, the hearing would have to proceed. The practitioner wrote "I am not available for personal reasons." He stated that the doctor had been put "on stand-by."

30. A little later the practitioner telephoned the client and told him that he could not appear because he had a long-awaited and prearranged medical appointment for his daughter. The respondent knew the statement was false. The practitioner advised that the junior solicitor could not appear because he was not experienced enough to run the hearing, and said that the client would have to appear alone to seek an adjournment. The practitioner asked the client to send an email to him terminating the firm's retainer. He persuaded the client that he would be most likely to get an adjournment if the practitioner was not retained. The practitioner's intention in saying these things was that the firm could be terminated for "strategic" reasons to facilitate the adjournment application. He advised his client that the client could come back to the firm.

31. That afternoon the client sent the practitioner an email advising that he no longer wished the firm or the barrister to represent him in the matter scheduled for hearing the next day. At 4:21pm the practitioner forwarded the client's email to the registry of the AAT and shortly afterwards sent an email to the client advising that he had notified the AAT and that the AAT had advised that there was no need for the firm to appear in the hearing.

32. On 15 March 2017, the client appeared unrepresented at the AAT hearing. Comcare wished to proceed and their counsel wanted to know whether the doctor was available. The client responded that the doctor was not available and that "from the events yesterday, yes, they cancelled him... I mean, solicitors - my counsel cancelled him." The AAT expressed surprise about that and said he thought it was confirmed at the directions hearing that both doctors would be available concurrently. Ultimately an adjournment was granted for seven days.

33. The doctor subsequently rendered an invoice for court attendance/time reserved on 15 March 2017.

34. The client met with the practitioner on 20 March 2017 and the practitioner gave him some advice. The client followed that advice and informed the AAT that he wished to proceed with the claim. Shortly afterwards, he engaged a new solicitor.

35. On or around 5 December 2017, the client made a complaint to the Law Society.

36. In his first response to the Law Society regarding his representation of the client and the termination of the retainer, received on 7 February 2018, the practitioner wrote:

In relation to the matter raised in paragraph 2 on page 5 of [the client's] email about a 'pre-arranged appointment for my daughters'; I do not recall I said that to him. I don't know where this came from. With God's blessings, both of my children are healthy and well and I did not remember having had [sic] to attend an appointment with any doctor on 15 March 2017. In fact my diary for 15 March 2017 did not have in it any other engagement apart from [the client's] hearing at the Tribunal.

37. Around this time, formal steps in the LP 12 proceedings were taken. The application to the Tribunal occurred in July 2016. A no case submission was made at the first hearing on 7 December 2016 and the hearing resumed on 2 March 2017 (just before the misconduct which is the subject of the present proceedings). The decision of the Tribunal on 7 July 2017[21] led to a review application by the practitioner in the ACT Supreme Court. On 23 February 2018, the ACT Supreme Court decided in the practitioner's favour and he obtained a costs order.[22]

38. The LP 12 proceedings then went to the Court of Appeal where, in a judgment delivered on 6 December 2018,[23] the practitioner was unsuccessful and a costs order was made against him. Costs of the Council were $425,876.66. The practitioner also had to pay a substantial amount to his counsel. We were advised that special leave to appeal to the High Court was sought on 17 January 2019 and refused on 17 April 2019.[24] There was a further hearing in the Tribunal on 13 and 14 May 2019 with a decision on 22 July 2019 finding two grounds of misconduct,[25] and a hearing on penalty on 27 September 2019 with a decision on 24 December 2019.[26]

39. The next step in the present proceedings occurred on or about 18 April 2019, when the Council provided the practitioner with a copy of the transcript for the 14 March 2017 directions hearings before the AAT.

40. On 28 April 2019, the practitioner signed and sent a letter to the AAT which stated:

Having now read the transcript, I write to advise that there appears to be an error in the transcript. References were made by me to 'my daughter' and 'her medical appointment' on 15 March 2017. I wish to advise that it was a slip of tongue on my part due to the heavy pressure environment and was an unintentional mistake. What I meant to say was, 'my family or my brother in law' and 'his medical appointment in Sydney'. I did not become aware of the mistake until when the transcript was perused/reviewed on 24 April 2019.

41. By letter dated 28 May 2019, the practitioner provided a copy of his letter to the AAT to the Law Society in support of his submission that he did not know why he referred to his daughter during the directions hearing and that the complaint made by the client should be dismissed.

42. In the hearing before the Original Tribunal on 26 February 2020, the parties agreed that the practitioner was guilty of professional misconduct. The only issue was what sanctions should be applied.[27] We note the key findings and conclusions.

43. The Original Tribunal stated that it was clear, and made a finding, that the conduct was professional misconduct.[28] In reaching the view that "the conduct consists of a course of conduct that amounts to professional misconduct," the Original Tribunal wrote that it was "appropriate to consider the matters globally."[29] That was consistent with the parties' Joint Submission that the charges could be dealt with globally as had been done in previous cases (which were listed). They submitted (at paragraph 64) that, "considered globally," the conduct in the charges constitutes professional misconduct within the meaning of section 387(1) of the Act. [30] The Original Tribunal noted that the Council had submitted that the conclusion about the conduct was "fortified by enumerating the incidents as they occurred and arriving at five individual incidents over a two-day period."[31]

It might be said each charge separately amounts to professional misconduct. Because the charges rely on a combination of facts, some of which are relied on in more than one charge, it is more useful to focus on the particular acts or omissions of the practitioner to assess them. The first is the lie to the [AAT] about the daughter. The repetition of it to the client is the same thing really. The lie about Dr Knox is a separate act. The arming of the client and the email about termination without undoing the misleading effect may be seen as a third act. However, these matters should be seen as all occurring within a short space of time.[32]

45. The Original Tribunal noted next that the practitioner's first response to the Law Society expressing surprise at the suggestion he had used his daughter as an excuse was admitted to be "knowingly untrue." The Original Tribunal characterised that response as "frankly bizarre." In his opinion, it was "hard to understand" how the practitioner thought that such a statement would not be checked when a transcript would be available. He agreed with the Council that a lie is not excused just because it is stupid but stated that "it raises the real question why an intelligent man such as the practitioner would not expect it to be discovered when the transcript would show it to be."[33]

The email to the [AAT] is a separate act as well and is equally bizarre. The next submission to the [Law] Society is really part of the earlier email to the [AAT] but is just as wrong and unusual.[34]

47. Having considered the practitioner's work and disciplinary history, the Original Tribunal noted some unsatisfactory aspects of the evidence but concluded that it was "more probable than not" that the practitioner suffered from depression "to some extent" at the time of his misconduct. It was unchallenged that the practitioner "had numerous external stressors at the time."[35] The Original Tribunal concluded:

The source of the depression is important. It is what might be termed reactive and not something that he suffered from in any event. This enables a conclusion that it need not be permanent.[36]

48. As the Original Tribunal observed, the practitioner's conduct was "so serious that unless I can be satisfied that the flaws that led him to do it are not permanent, the Tribunal should recommend that he be struck off."[37]

49. In the Original Tribunal's view, one relevant matter was the extent of the practitioner's insight into his misconduct. The Original Tribunal thought that the practitioner had shown "significant insight" in taking the unilateral step of handing back his current practising certificate, and that the "capacity to have complete insight is still a work in progress" and the practitioner's current mental state was not helping this.[38]

50. Although the Original Tribunal thought that the stress and depression explained the practitioner's actions, he agreed they did not excuse it. He continued:

The first lie was unplanned and only occurred when the practitioner was suddenly faced with the prospect of running a case himself that he was unprepared for and that he thought he was not up to. That was situational stress. The matters that occurred on that day and the next were a product of this first response. They are indicative of not dealing with the matter in a structured way. The later events occurred when the LP 12 matter had proceeded further, and costs were blowing out. They are bizarre on their face and are explicable in the way Professor Stevens explains. I am satisfied that the mental state of the practitioner at the relevant times is consistent with the issues that he then had with his mental wellbeing.[39]

• 51. In that context the issue was what orders should be made in relation to the practitioner. There was no dispute that there should be a public reprimand and an order for costs as sought by the Council.[40]

52. The Original Tribunal was concerned that the effective suspension of the practitioner for 12 months (as suggested by the practitioner):

(a) would not reflect adequately the disapproval that should be demonstrated as a sign of the standards that the public should expect and to which the profession should adhere (noting that the task is not punitive but protective); and

(b) would be an insufficient period for the practitioner to recover sufficiently "so as to overcome his current issues."[41]

53. In light of those conclusions, the Original Tribunal made the Orders summarised at [5] above.

54. The Original Tribunal characterised the Orders as providing "what is in effect a suspension for five years," although the practitioner may obtain a restricted practising certificate if he meets the conditions not earlier than the year commencing 1 July 2021. The Orders were crafted so as not to make "recovery impossible by placing bigger hurdles in front of the practitioner." However, if the practitioner cannot meet the conditions then "he will not get a certificate and the public will remain protected." In the Original Tribunal's view, "the issue of a sanction reflecting the seriousness of the offences is met by the length of the default period before he may be considered for an unrestricted certificate, the reprimand as well as seeing the desperate situation that the conduct has brought on the practitioner already."[42]

55. The Council submitted that the appeal should proceed, and the orders which it seeks should be made, because, in summary, the Original Tribunal erred:

(a) by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner (Ground 1);

(b) in his application of the expert psychological evidence to the agreed facts and the evidence (Ground 2);

(c) in his characterisation of the practitioner's disciplinary history (Ground 3);

(d) by failing to heed and apply the long line of authority that character evidence carries far less weight where the facts involved repeated dishonesty, as they did here (Ground 4); and

(e) in failing to find that:

(i) the practitioner was, in light of his admitted conduct in this matter and his disciplinary history, probably permanently or indefinitely unfit to practise; and

(ii) a recommendation for the removal of his name from the roll should accordingly be made (Ground 5).

56. The Council submitted that the proper conclusion that this Appeal Tribunal should draw is that there is no proven explanation for the practitioner's conduct other than a fundamental flaw of dishonesty. Consequently, the appeal should be allowed and the practitioner's name should be removed from the roll of legal practitioners.

57. The appeal was dealt with, in accordance with section 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACAT Act) as a review of the Original Decision. Neither party sought to provide additional evidence, and each proceeded by reference to the evidence and submissions before the Original Tribunal, as well as the Original Decision.

58. The parties took different approaches to this appeal. The Council provided a detailed critique of the reasons for decision by the Original Tribunal, compiling five grounds for appeal some of which had numerous components. Those grounds were expressly far from the grounds that constituted the particular complaints dealt with by the Original Tribunal. The Council took issue with the reasoning of the Original Tribunal about the basis of the practitioner's misconduct, namely his mental illness, which, it submitted, was solely the Original Tribunal's own and was not part of the practitioner's case and was not explained by Professor Stevens' evidence.[43] The Council sought to convince this Appeal Tribunal of material errors in the Original Tribunal's reasons for decision so that the Appeal Tribunal would exercise afresh the discretion in relation to the appropriate sanction, rather than assess whether the orders made by the Original Tribunal were preferable or at least within an acceptable range.

59. The practitioner, by contrast, noted that the parties had agreed the facts in the Joint Submission. Based on those agreed facts, the Original Tribunal was invited to make the finding that the conduct considered globally constituted professional misconduct. It was agreed that the only issue that the Original Tribunal had to decide was penalty, and the appeal is only taken in respect of the orders made by the Original Tribunal. Further, the Original Tribunal had to consider that issue within the structure of the charges that were actually preferred, the submissions that were made by the Council at first instance, and the reality of the way the parties approached the matter.

60. The practitioner did not concede that errors were made, and submitted that the findings made by the Original Tribunal were open to him to make.[44] He submitted that, as the Original Tribunal's orders were within the appropriate range, they should not be set aside. In the practitioner's submission, if this Appeal Tribunal were to conclude that the Original Tribunal was in error in a House v The King[45] sense, the Appeal Tribunal should re-exercise the discretion. However, the test remains the same, the onus remains the same, and the outcome should be the same as before the Original Tribunal. Removal from the roll is not the only outcome that is indicated by the circumstances of the practitioner's behaviour in his present condition.[46]

61. In light of those submissions, we make two observations about the appeal. First, the fact that the Original Tribunal adopted a line of reasoning different from that advanced by either party is not of itself a reason for the appeal to succeed. The issue for the Appeal Tribunal is whether the reasoning and the conclusions reached by the Original Tribunal were supported by the evidence before him.

62. Second, in our view the Original Tribunal exercised a discretionary power under section 425 of the Act (considered later in these reasons for decision) in deciding, by reference to a range of options, what orders should be made in light of the admitted professional misconduct.[47] As Justices Mason and Deane explained in Norbis v Norbis, an exercise of a discretion is involved because assessments such as this "call for value judgments in respect of which there is room for reasonable differences of opinion, no particular opinion being uniquely right."[48]

63. The type of decision made by the Original Tribunal affects how the appeal might be decided. In House v The King, Justices Dixon, Evatt and McTiernan wrote:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[49]

64. In Norbis v Norbis, Justices Mason and Deane referred to the principles enunciated in House v The King and continued:

If the questions involved lend themselves to differences of opinion which, within a given range, are legitimate and reasonable answers to the questions, it would be wrong to allow a court of appeal to set aside a judgment at first instance merely because there exists just such a difference of opinion between the judges on appeal and the judge at first instance. In conformity with the dictates of principled decision-making, it would be wrong to determine the parties' rights by reference to a mere preference for a different result over that favoured by the judge at first instance, in the absence of error on his part. According to our conception of the appellate process, the existence of an error, whether of law or fact, on the part of the court at first instance is an indispensable condition of a successful appeal.[50]

65. Consequently, as Justice Kitto stated in Australian Coal & Shale Employees Federation v Commonwealth, there are:

[C]ases of the highest authority which appear to me to establish that the true principle limiting the manner in which appellate jurisdiction is exercised in respect of decisions involving discretionary judgment is that there is a strong presumption in favour of the correctness of the decision appealed from, and that that decision should therefore be affirmed unless the court of appeal is satisfied that it is clearly wrong. A degree of satisfaction sufficient to overcome the strength of the presumption may exist where there has been an error which consists in acting upon a wrong principle, or giving weight to extraneous or irrelevant matters, or failing to give weight or sufficient weight to relevant considerations, or making a mistake as to the facts. Again, the nature of the error may not be discoverable, but even so it is sufficient that the result is so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the discretion which the law reposes in the court of first instance: House v. The King...[51]

66. In light of those authorities, this Appeal Tribunal has to decide this case in accordance with the following principles:

(a) The decision of the Original Tribunal was an exercise of discretionary power.

(b) There is a strong presumption in favour of the correctness of the decision appealed from.

(c) The decision should be affirmed unless the Appeal Tribunal is satisfied that the decision is clearly wrong.

(d) It is not enough that members of the Appeal Tribunal consider that they would have exercised the discretionary power differently if they had comprised the Original Tribunal, or that they would prefer a different result from that favoured by the Original Tribunal.

(e) The Appeal Tribunal may be satisfied that the decision of the Original Tribunal was wrong if the Original Tribunal:

(i) acted upon a wrong principle;

(ii) gave weight to extraneous or irrelevant matters;

(iii) failed to take into account some material consideration;

(iv) failed to give weight (or sufficient weight) to a relevant consideration; or

(v) made a mistake as to the facts or if the result is so unreasonable or plainly unjust that the Appeal Tribunal may infer that the Original Tribunal failed properly to exercise the discretion reposed in it under section 425 of the Act.

(f) The existence of an error of law or fact on the part of the Original Tribunal is an indispensable condition of a successful appeal.

(g) If the Appeal Tribunal is satisfied of one or more of the matters referred to in (e), it may exercise its discretion in substitution for the decision of the Original Tribunal.

Purpose of disciplinary proceedings and the Tribunal's powers

67. Before considering the grounds of appeal, it is appropriate to set out the context in which those grounds are advanced and the criteria by which they must be assessed.

68. Disciplinary proceedings were brought against the practitioner under section 419 of the Act. Given that the parties agree (and the Original Tribunal concluded) that the practitioner engaged in "professional misconduct," it is necessary only to refer to the following sections.

69. Section 387(1) of the Act defines 'professional misconduct' to include:

(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.

71. Section 425 of the Act sets out the range of orders that the Tribunal may make where it is satisfied that the practitioner is guilty of professional misconduct.

425 ACAT orders - Australian legal practitioners

_(1) If, after the ACAT has finished considering an application under this part in relation to an Australian legal practitioner, the ACAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may - _

(a) make 1 or more of the orders mentioned in subsections (3) to (5); or

(b) any other order it considers appropriate.

(3) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

_(d) an order that - _

(i) stated conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a stated period; and

(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

(5) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;

(b) an order that the practitioner undertake and complete a stated course of further legal education;

(c) an order that the practitioner undertake a stated period of practice under stated supervision;

(d) an order that the practitioner do or not do something in relation to the practice of law;

(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;

(f) an order that the practitioner's practice be managed for a stated period in a stated way or subject to stated conditions;

(g) an order that the practitioner's practice be subject to periodic inspection by a stated person for a stated period;

(h) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a stated person;

(i) an order that the practitioner not apply for a local practising certificate before the end of a stated period.

72. As the practitioner submitted, section 425 of the Act does not identify the matters that guide the Tribunal in the exercise of its discretionary power. Rather, the discretion should be exercised by reference to the objects in section 6 of the Act and relevant jurisprudence.[52]

73. It is sufficient to note that section 6(a) of the Act provides:

(a) to provide for the regulation of legal practice in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; [emphasis added]

74. There are also authorities that describe the purpose of disciplinary proceedings such as those in relation to the practitioner, and hence provide guidance about how the Tribunal should exercise its powers under section 425.

75. In Council of the Law Society of the Australian Capital Territory v Davey,[53] a Full Court of the ACT Supreme Court wrote:

22. The Court is very mindful that subjective circumstances may be taken into account and, perhaps more importantly, that the Court's decision should not include "any notion of punishing the practitioner" (Legal Profession Complaints Committee v Bower [2019] WASC 281, at [38] (Bower)). The "protection of the public and the maintenance of the reputation and standards of the legal profession" exceed any mitigatory element that arises from the subjective features (Bower at [38]).

76. The ACT Supreme Court cited the judgment in Bower, where the Supreme Court of Western Australia wrote:[54]

(a) The court's jurisdiction with respect to the regulation of the legal profession is not to be exercised for the purpose of punishing the practitioner concerned, but for the protection of the public and the maintenance of the reputation and standards of the legal profession.

(b) Account must also be taken by the court of the effect which its order will have on the understanding, in the profession and amongst the public, of the standard of behaviour required of legal practitioners.

(c) Where the order sought is for the removal of a practitioner's name from the roll, the critical question for the court is whether the practitioner is shown not to be a fit and proper person to remain a legal practitioner. Such an order is reserved for very serious cases where the character and conduct of the practitioner is seen to be 'inconsistent with the privileges of further practice'.

(d) Fitness to practise law requires that the practitioner must command the personal confidence of his or her clients, fellow practitioners and judges. Honesty, fairness and integrity are essential prerequisites to the right to practise law. The quality most likely to result in removal of a practitioner's name from the roll is conduct which undermines the trustworthiness of the practitioner or which suggests a lack of integrity, or that the practitioner cannot be trusted to deal fairly within the system in which he or she practises. The willingness to engage in dishonest behaviour is of central relevance to an assessment of a practitioner's fitness to practise.

(e) It is 'a matter of the utmost seriousness' for a practitioner to intentionally mislead a court. The administration of justice and public confidence in the system depends upon the assumption and expectation that practitioners will conduct themselves before the court with honesty and candour.

(f) A practitioner's failure to understand the impropriety of his or her conduct may be a factor of great importance in determining whether their name should be permitted to stay on the roll.

77. Later in its judgment, the WA Supreme Court referred to "the principle that the court's jurisdiction to remove a practitioner's name from the roll is principally for the protection of the public."[55]

78. Having considered those statements, the Original Tribunal observed that "the task is not punitive but protective."[56]

79. As the High Court observed in Wentworth v New South Wales Bar Association, disciplinary proceedings have been described as "proceedings concerned with the protection of the public."[57]

80. It is against that background, and in that legal context, that this Appeal Tribunal considers the various grounds of appeal advanced by the Council.

81. The central issue in this appeal is whether, in light of the practitioner's conduct, mental health and disciplinary history, his conduct demonstrated that he was no longer fit and proper to remain on the roll. The Council contended that the Original Tribunal erred in failing to find that the practitioner was probably permanently unfit to practise.

82. In relation to the overall import of the various components of Ground 1, the Council contended that the Original Tribunal failed to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner which, as the Council put it, involved lying to his client, lying to and strategically misleading the AAT, and lying to the Law Society over a two-year period.

83. The Council's case was set out in relation to the components of Ground 1, each of which is considered separately below.

84. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(a) wrongly characterising that the "first ... lie to the [AAT] about the daughter" (at [156], [180]),[58] being a lie both as to the fact of, and the reason for, the practitioner's unavailability, as "unplanned" (at [180]) when, in truth, the practitioner's evidence was only that the latter, i.e. the false reason, was given on the "spur of the moment".[59]

85. The Council highlighted the practitioner's statements to the AAT at the directions hearing on 14 March 2017 that:

(a) he had to take his daughter to a medical appointment the next day (the first lie);

(b) he was not available all of the next day (the second lie),

and the fact that the practitioner knew the statements were untrue but made them in the hope that he would elicit sympathy from the AAT. He also admitted that he did not have an appointment for his daughter, and the only thing in his diary for 15 March 2017 was the AAT hearing.

86. The Council submitted that, although the Original Tribunal fairly stated the relevant facts at this point, he misunderstood the evidence. In particular, the Original Tribunal found that the first lie "was unplanned and only occurred when the practitioner was suddenly faced with the prospect of running a case himself that he was unprepared for and that he thought he was not up to."[60]

87. In the Council's submission, there were two related but separate lies. The first was the false claim that he was not available to appear the next day (when he was available and the AAT hearing was the only matter in his diary) and the second was the reason for his unavailability. It was only the decision to give a full reason for not being able to appear which was, on the practitioner's affidavit evidence, made "on [the] spur of the moment under pressure and was not in any way planned or premeditated".[61] The practitioner gave no such evidence about his false claim to be unavailable at all. If anything, the practitioner suggested the opposite. Consequently, there was no basis for the Original Tribunal to find that both lies were unplanned by finding that the first lie was unplanned.

The practitioner's submissions and the Council's reply

88. The practitioner's submissions in relation to this Ground of appeal had two limbs. First, he drew attention to the way in which the matter proceeded before the Original Tribunal. In essence, although the practitioner was available to appear before the AAT on 15 March 2017, he avoided being forced into doing the hearing by lying about his daughter having a medical appointment to gain sympathy. The charges that were brought against the practitioner did not allege in terms that two lies were involved that warranted separate consideration. Charge 3 stated "The Respondent accepts that he knowingly misled the [AAT] contrary to r 19.1 of the Legal Profession (Solicitors) Conduct Rules 2015 (ACT) and the common law".[62] The evidence of the practitioner was consistent with the framing of the charges. The cross-examination of the practitioner did not seek to impugn the manner in which his affidavit addressed the issue. Nor did the Council's submission invite the Original Tribunal to approach the matter drawing the distinction between the two lies which were set out in this ground of appeal.

89. Second, the practitioner submitted that if there was an error on the part of the Original Tribunal (and it is not conceded that there was), it cannot be said that it was material.

90. In reply, the Council contended that it was not an agreed fact that the lie was either wholly or partly unplanned. The onus fell on the practitioner to prove that it was unplanned if he sought to do so as a matter of mitigation. There was no onus on the Council to cross-examine on evidence not given. The Original Tribunal's error was material because it brought about a wrongful finding of mitigation.

91. Charge 3, which the practitioner accepted, did not particularise the two lies set out in Ground 1(a). But that fact does not dispose of that Ground.

92. The chronology of events on 14 March 2017 (set out at [21] to [31]) and the transcript of the directions hearing before the AAT on 14 March 2017 show that:

(a) the practitioner wrote to the AAT requesting that the matter be listed urgently for a directions hearing for the purpose of applying for an adjournment due to the absence of counsel;

(b) at the directions hearing by telephone, the AAT Senior Member asked the practitioner why it would not be possible for him or someone from his firm to put the client's case;

(c) the practitioner replied that "We [presumably his firm] are not able to do that at all" and the case needed to be "properly put." If they were to put his case, they would not do the client any service themselves and that is why they had to find another barrister which was "the only reason why we had to have this adjournment";[63]

(d) when pressed, on the basis that his firm had had the carriage of the matter for some time, the practitioner replied "We do have the carriage of this matter, but the case needs to be properly put and we're not in a position to do so, besides I am not available anyway tomorrow";[64]

(e) after further discussion about whether another solicitor would be available, the AAT Senior Member asked why the practitioner was not available, particularly given what had transpired, and the practitioner replied "I have other arrangements made, so I am not available tomorrow";[65]

(f) when the Senior Member asked, "exactly why it is you can't make yourself available tomorrow now", the practitioner replied "I need to take my daughter to a medical appointment and that's been scheduled. So I'm personally not available";[66]

(g) after further discussion between the legal representatives and the AAT, the Senior Member said he was happy to consider whether there was a time on 15 March 2017 to allow the practitioner to take his daughter to the medical appointment and still be involved in the hearing, and the practitioner stated "No, I'm not available at all tomorrow."[67]

93. That summary identifies a series of lies, moving from the general to the specific. They were told in response to questions asked by the AAT in the context of an application for an adjournment of the hearing scheduled on 15 March 2017. The practitioner's explanation set out in his affidavit of 17 February 2020,[68] acknowledges that the AAT Senior Member pressed him in relation to appearing on behalf of the client. According to the practitioner:

I had tried to avoid saying anything specific about why I could not appear. I eventually said to him that I had to take my daughter to a medical appointment. I acknowledge that to be untrue. I said it because I thought that it would provide a compelling reason why I could not be there. I acknowledge that I directly and also implicitly repeated the remarks in my interchange with Senior Member Mr Popple. I did so because I wanted to avoid having to run the matter myself. I also thought the client's interests were best served by having the matter adjourned. Frankly, I was not anticipating a refusal from the Tribunal of the adjournment application in light of the client's last-minute withdrawal of counsel.

My decision to give a reason for not being able to appear was made on a spur of the moment under pressure and was not in any way planned or premeditated.

94. The transcript of the AAT proceedings on 14 March 2017 and the extract from the practitioner's affidavit provide a complete answer to the Council's submissions in relation to Ground 1(a). The several lies were related in content, proximate in time, and responsive to one set of circumstances. It was open to the Original Tribunal to consider them together and not draw the distinctions highlighted by the Council. The Appeal Tribunal is not satisfied that the Original Tribunal made a material error of the kind necessary to support the appeal being granted.

Ground 1(b) - were the further lies a product of the first?

95. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(b) in any event, wrongly finding that the "matters that occurred on the day and the next [i.e. the subsequent lies and misleading on 14 and 15 March 2017] were a product of this first response [i.e. the lie to the AAT about his daughter]" (at [156], [180]), when in truth they were separate and further, albeit related, lies, which were not told on the spur of the moment but, instead, were motivated in part by the practitioner's admitted "strategy" (at [147]) for the client to obtain an adjournment by misleadingly claiming to be unrepresented.[69]

96. The Council stated that, following the lies told by the practitioner on 14 March 2017, he went on to tell a series of further lies to his client. They included lies which caused his client unknowingly to mislead the AAT on 15 March 2017 when the client appeared for himself and obtained an adjournment on a fundamentally false understanding of the facts. In particular, the practitioner emailed his client on 14 March 2017 reporting that, at the directions hearing, the adjournment application had been refused and stating that:

(a) he was not available for personal reasons; and

(b) the client's doctor (Dr Knox) had been "put off standby."

97. In the Council's submission, those further lies were not the inevitable result of the first and second lies but were separate lies of the practitioner's own doing and choice. Accordingly, although the Original Tribunal found that the matters that occurred on 14 and 15 March 2017 were the "product of this first response"[70] these lies to the client were independent and did not inevitably flow from the earlier lies that the practitioner had told the AAT about his unavailability. In particular, the Council contended that:

(a) it was not inevitable that (merely because, unbeknownst to the client, the practitioner had lied to the AAT about his daughter's medical appointment) the practitioner would tell the same lie to his client; and

(b) the practitioner had not told the AAT the lie about the unavailability of Dr Knox.

98. Rather, the Council submitted, the practitioner's conduct was part of an admitted strategy (or in pursuance of a deceptive strategy) that included the termination by the client of his retainer with the practitioner's firm to facilitate an adjournment, on the basis that the client would come back to the firm later. That much is apparent from the following passage from the reasons for decision of the Original Tribunal:

Then followed a phone call by the practitioner in which he said he could not appear because he had a long-awaited prearranged appointment for his daughter. The only thing in his diary was the hearing. It is admitted that the statement was false. The practitioner said his junior solicitor could not appear as he was not experienced enough, and the client would have to appear alone and seek an adjournment. He also asked the client to send an email terminating the firm's retainer. He persuaded the client that this would assist an adjournment. It is admitted that the intention was for strategic reasons to facilitate an adjournment. The client was also told that he could come back to the firm later. It is assumed that this was to happen if the case was adjourned.[71]

99. The Council submitted that these later lies were not the inevitable consequence of the initial lies and the Original Tribunal was in error in describing the "repetition" to the client of the lie about his daughter being "the same thing really" as the lie to the AAT.[72] It was argued that it was not. Also, the lie about Dr Knox was, as the Original Tribunal acknowledged, a "separate act."[73] However, the Original Tribunal's finding that those matters were the "product of this first response"[74] was not consistent with that observation.

100. Further, the Council noted the Original Tribunal's statement that the arming of the client and the email about termination without undoing the misleading effect may be seen as a third act.[75] The Council contended that although the statement understates the deliberately and strategically dishonest nature of the acts, it at least acknowledged their separateness. That acknowledgement, however, was undone when all these matters were simply described and downplayed as a "product" of the practitioner's first response.

The practitioner's submissions and the Council's reply

101. The practitioner submitted that no error was demonstrated. He did so on the basis that the ground of appeal and the associated submissions do not make clear that the comment made by the Original Tribunal was made to address a specific submission that stress and depression did not explain the actions taken by the practitioner. As the submissions made by the Council in respect of this issue made clear, the Original Tribunal found that the practitioner's conduct was part of an overall strategy to facilitate an adjournment of the case. That was the basis of charges 1 to 3 and the Joint Submission. The parties invited the Original Tribunal to find that this conduct, on its own and with other conduct, amounted to professional misconduct.

102. In reply, the Council submitted that because the practitioner's conduct was part of an overall strategy to facilitate an adjournment of the case, that is why the Original Tribunal erred in characterising the first lie as unplanned and in describing the matters occurring on 14 and 15 March 2017 as a "product of this first response." The conduct was not a product of the first response but was (as the parties agree) part of an overall strategy to facilitate the adjournment of the case.

103. The practitioner's lies to the client were separate in time from his lies to the AAT at the directions hearing. However, the first lie (that the practitioner was not available on 15 March 2017 for personal reasons), if not the inevitable result or product of the lies to the AAT, was consistent with those lies and provided a context for the client to seek an adjournment from the AAT on 15 March. It also provided a reason for the client to terminate the firm's retainer. It was part of a developing strategy to facilitate an adjournment. If the repetition of the lie to the client was not, strictly speaking "the same thing really," it was consistent in content and purpose when conveyed to the client.

104. The Original Tribunal correctly identified the lie about Dr Knox as separate.

105. It is at least arguable that it was a deliberate part of a misleading strategy to assist the client to make a more compelling application for an adjournment. Indeed, having referred to that and the other lies to the client, the Original Tribunal wrote:

The arming of the client and the email about termination without undoing the misleading effect may be seen as a third act. However, these matters should be seen as all occurring within a short space of time.[76]

106. Even if one accepts that the practitioner told more lies as part of a misleading strategy that he was developing in order to secure an adjournment of the AAT proceedings, the lies to the client were told soon after the directions hearing. Accordingly, we are not satisfied that the Original Tribunal erred in assessing or characterising those lies to the client.

107. Significantly, the Original Tribunal did not downplay the seriousness of these separate lies. Rather, the Original Tribunal recognised the significance of the lies when he described the practitioner's conduct as "so serious that unless I can be satisfied that the flaws that led him to do it are not permanent, the Tribunal should recommend that he be struck off."[77]

108. The real issue in this appeal is whether the flaws which caused the practitioner to tell those lies was permanent. That issue is dealt with later in these reasons. We are not satisfied that, for the purpose of this appeal, the minor errors identified in ground 1(b) were material errors.

Ground 1(c) - was the lie to the Law Society bound to be shown up?

109. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(c) wrongly finding (J [157]) that the lie that the practitioner told in his first response to the Law Society on 7 February 2018 about his daughter would be (inevitably) shown up by the checking of the "transcript" when, in truth, (J [20]-[21], [29], [30]) this lie to the Law Society was about what the practitioner had told the complainant, not the [AAT].[78]

110. As noted earlier, the client complained to the Law Society about the practitioner on or around 5 December 2017. In response to the allegation by the client that the practitioner had told the client that he was unavailable because his daughter had a medical appointment, the practitioner wrote to the Law Society on 7 February 2018 in the following terms:

In relation to the matter raised in paragraph 2 on page 5 of [the client's] email about a 'pre-arranged appointment for my daughter', I do not recall I said that to him. I don't know where this came from. With God's blessings, both of my children are healthy and well and I did [sic] not remember having had to attend an appointment with any doctor on 15 March 2017. In fact my diary for 15 March 2017 did not have in it any other engagement apart from [the client's] hearing at the Tribunal.

111. However, the practitioner ultimately admitted that he knowingly misled his client by falsely advising his client on 14 March 2017 that he had to take his daughter to a medical appointment when there was no such appointment and his diary had no engagement apart from the client's hearing in the AAT. The Original Tribunal referred to that admission, but continued:[79]

It is frankly bizarre. It is hard to understand how he thought such a statement would not be checked when a transcript would be available. The Council said a lie is not excused just because it is stupid. That is obviously right, but it raises the real question why an intelligent man such as the practitioner would not expect it to be discovered when the transcript would show it to be.

112. The Council submitted that the Original Tribunal's reasoning is based on a wrong premise. The practitioner admitted to telling a lie directly to his client in the conversation with the client on 14 March 2017. There was no transcript of that conversation. It was not inevitable that the Law Society would think to check whether a similar thing might have been said by the practitioner to the AAT. As it happened, about one year later the AAT transcript was obtained and the first lie was uncovered.

113. In the Council's submission, all of this shows the fundamental dishonesty on the part of the practitioner. That is the answer to the "real question" referred to by the Original Tribunal at [157] of his reasons for decision.

The practitioner's submissions and the Council's reply

114. The practitioner submitted that no error was demonstrated, let alone a material error. In his submission, the Original Tribunal dealt with this issue as the matter was charged and how the parties invited the Original Tribunal to proceed by reference to the admission made. Charge 5 (which in the Joint Submission is shown as 6) was that the practitioner did not furnish an accurate record of his conduct in relation to the matter to the Law Society, contrary to r 43.2 of the Legal Profession (Solicitors) Conduct Rules 2015. That charge treated the response given by the practitioner as an attempt to mislead the Law Society as to both what he said to his client and to the AAT. The reality was that the practitioner would have known that the terms of his client's complaint to the Law Society reflected what he had said to the AAT.

115. In reply, the Council noted that particular (a) to charge 5 is only about what the practitioner claimed to have said to his client in his first response to the Law Society on 7 February 2018. Particular (b) to charge 5 is about the practitioner's response two years later to the Law Society in which the practitioner attempted to mislead the Law Society about why he had said what he did to the AAT (i.e., it was a slip of the tongue). These are separate (although related) complaints relating to different letters written at different times in different circumstances. It is beside the point that the practitioner "would have known" that his client's complaint to the Law Society reflected what he had said to the AAT. The client's initial complaint to the Law Society was relevantly about what the practitioner had said to his client, not to the AAT.

116. Charge 5 was that the practitioner did not furnish an accurate record of his conduct in relation to the matter to the Law Society. The particulars referred to his responses to the Law Society in February 2018 and May 2019 about the reason why he could not attend the hearing at the AAT on 15 March 2017. The particulars referred to the practitioner's statement to the AAT and the client.

117. As noted earlier, the practitioner emailed the client informing him that the AAT had refused to vacate the hearing and wrote "I am not available for personal reasons."[80] It was after that email that he telephoned the client and told him that he could not appear because he had a long-awaited and prearranged medical appointment for his daughter.

118. To the extent that the Original Tribunal reasoned that the practitioner would have thought that such a statement would not be checked when a transcript would be available, he was in error. There was no transcript of his conversation with his client. That error influenced the Original Tribunal to characterise the practitioner's behaviour as "bizarre."

119. However, to the extent that the practitioner was repeating to the client what he had told the AAT soon before writing and speaking to the client, he would have known that a transcript of the directions hearing before the AAT could (and possibly would) have been prepared.

120. We are not satisfied that the error in the Original Tribunal's reasoning was a material error. The real issue is what caused the practitioner to lie again in the way described, long after the AAT directions hearing. Whether or not his behaviour was bizarre, the issue on appeal is whether that behaviour illustrated a form of misconduct that is permanent and warrants the removal of the practitioner's name from the roll. That issue is dealt with later in these reasons for decision.

121. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(d) wrongly finding that the lies in March 2017 to the [AAT] and the client, as well as the failure to reveal the full facts, did not in fact "cause any detriment to anyone" (J [147]) when:

(i) the lies did indeed cause detriment to the client, the opposing party, the AAT, and the public generally, as they led to the client having personally to seek, and the AAT granting, an adjournment, over the opposing party's objection, on a fundamental misapprehension of the true facts, on 15 March 2017; and

(ii) in any event, the focus should have been on how these lies and deceptions reflected on the practitioner's honesty.[81]

122. In the Council's submission, the various lies that the practitioner told, and caused to be told, to the AAT and to the client, together with the strategy in which the practitioner engaged, caused profound detriment, not the least being damage to the administration of justice. In particular, the practitioner's lies and deceptions caused the AAT to grant an adjournment on a false basis. Having refused the practitioner's adjournment application on the afternoon before the hearing, the AAT was deflected from its course when it granted the client an adjournment at the start of the hearing on a number of false premises induced by the practitioner's misleading comments. That deprived the opposing party (Comcare) of the opportunity of successfully opposing the adjournment, thereby avoiding the throwing away of the parties' costs and the waste of the AAT's resources.

123. Further, the Council submitted that, when wrongly concluding an absence of detriment, the Original Tribunal wholly failed to apply the principles set out in authorities on the gravity of misleading the Court[82] to the admitted facts.

124. The practitioner submitted that no error by the Original Tribunal was demonstrated. In his submission, the Original Tribunal's finding that the conduct of the practitioner "did not in fact cause detriment to anyone"[83] asserted no more than that the AAT was not deflected from its course in insisting that the matter proceed. The practitioner contended that, given the advice that had been given by counsel, it was at best ethically problematic for the practitioner to appear to further his client's claim. The appropriate course for the practitioner to take was to explain to the client that it was open for him to obtain another opinion (which he did) and withdraw from the matter if the client insisted on the hearing proceeding, without misleading the client and the AAT in so doing (which he did not do).

125. Further, the practitioner contended, the Original Tribunal made no finding that the misleading of the AAT was anything other than serious misconduct inviting consideration of being removed from the roll. The finding made by the Original Tribunal was made against the background of him:

(a) having quoted with approval relevant authority as to how serious it is for a practitioner to mislead a court or tribunal;[84] and

(b) finding in the circumstances of this case that the lie to the AAT justified a finding of professional misconduct.[85]

126. We conclude that the application for an adjournment was appropriate in circumstances when the client had sacked his counsel and lacked adequate legal representation. The directions hearing on 14 March 2017 originally proceeded on that basis. It was only when the AAT pursued the practitioner to explain why the hearing could not proceed on 15 March 2017 that the practitioner told lies. Those lies did not convince the AAT to grant an adjournment.

127. The practitioner's further lies to the client provided part of the basis for the client's success in securing an adjournment on 15 March 2017. To that extent, the practitioner's lies and deceptions prompted, if not persuaded, the AAT to grant an adjournment on a false basis. In obtaining the adjournment which he sought, the client did not suffer detriment other than the cost of Dr Knox's invoice for court attendance time reserved on 15 March 2017. However, there must have been some detriment to Comcare and, although it is more difficult to quantify, there was some waste of the AAT's resources and an unmerited, if short term, interference with the administration of justice. Accordingly, the Original Tribunal was in error in finding that the attendance did not cause detriment to anyone. We are not satisfied that it was a material error for the purpose of the appeal.

128. The Original Tribunal acknowledged that the authorities state that it is serious for a practitioner to mislead a court or a tribunal. It is clear from the reasons for decision of the Original Tribunal that the Senior Member recognised the seriousness of the behaviour and found in the circumstances of this case that the lies to the AAT justified a finding of professional misconduct and a recommendation that his name be struck off the roll of legal practitioners.[86] Whether the Original Tribunal was in error in not recommending that outcome is considered later in these reasons for decision.

Ground 1(e) - the nature of the lies in the letter to the AAT

129. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(e) failing properly to grapple with the letter to the [AAT] of 28 April 2019 in which the practitioner absent any circumstances of urgency knowingly misled the [AAT] by falsely claiming that the statement earlier made about his daughter was a "slip of the tongue" and an "unintentional mistake", by merely characterising it as "equally bizarre" (J [158], [180]).

130. The Council quoted from the practitioner's letter to the AAT on 28 April 2019 in which he stated:

References were made by me to 'my daughter' and 'her medical appointment' on 15 March 2017. I wish to advise that it was a slip of tongue on my part ...and was an unintentional mistake.

131. In the Council's submission, by making that statement the practitioner did not admit and apologise for misleading the AAT but continued the deception. As the practitioner ultimately admitted, he did not have a medical appointment for his daughter on 15 March 2017 and the only appointment in his diary was the hearing before the AAT.

132. On that basis, the Council submitted that, in characterising the compounding of lies as "equally bizarre", the Original Tribunal failed to grapple with the significance of the lies in that letter. In the Council's submission, there were no circumstances of urgency in which the letter was sent and the mere fact that it was sent nearly five months after the decision of the ACT Court of Appeal in the unrelated LP 12 proceedings cannot justify it.

133. Further, it was not part of the practitioner's case at trial that his conduct must be explicable on the grounds of a mental health problem.

(a) if the basis of this ground is that the Original Tribunal failed to give the circumstances sufficient weight, that submission should be rejected. Matters of weight in the context of discretionary decision-making were for the Original Tribunal and not the Appeal Tribunal unless the treatment of an issue can be characterised as manifestly unreasonable.

(b) The misleading nature of the letter sent to the AAT was not a particular of a charge, but was referred to in the Joint Submission.[87] The contention that the Original Tribunal was obliged to treat the lie as two lies should again be rejected.

(c) The finding made by the Original Tribunal that the telling of that untruth was "equally bizarre" involved no finding that it was not serious. Rather, it is a finding that the untruth was, to the objective observer, obviously transparent. In that respect, the telling of the truth threw light on the mental health of the practitioner (a matter discussed separately later in these reasons for decision).

135. Accordingly, the practitioner submitted that no error was demonstrated. Rather, it was open for the Original Tribunal to make the findings that he did.

136. In order to understand the import of the Council's submission, it is appropriate to consider the circumstances and content of the practitioner's letter to the AAT on 28 April 2019.

137. It appears that the practitioner first became aware of the transcript of the directions hearing on 14 March 2017 when he received it from the Law Society on or about 18 April 2019.

138. The introductory paragraphs of his letter to the AAT indicate that the letter was volunteered by the practitioner who had received a copy of the transcript of the directions hearing in relation to the matter "which has now resolved." He noted that the directions hearing was listed at his firm's request so that the AAT could decide whether the hearing scheduled for 15 March 2017 should be the vacated "on account of the sudden sacking of counsel" by the client. The letter continued:

Having now read the transcript, I write to advise that there appears to be an error in the transcript. References were made by me to 'my daughter' and 'her medical appointment' on 15 March 2017. I wish to advise that it was a slip of tongue on my part due to the heavy pressure environment and was an unintentional mistake. What I meant to say, was 'my family or my brother in law' and 'his medical appointment in Sydney'. I did not become aware of the mistake until when the transcript was perused/reviewed on 24 April 2019.

In reality, although who and whose medical appointment on 15 March 2017 were not significantly relevant to the question his Senior Member was asked to decide on that day, since I have now discovered the mistake, I feel obligated to write to you with a view to correcting it for the record.

Please contact me if you have any queries. Thankyou for your cooperation. [Emphasis added, errors in original]

139. It is apparent from its terms that the practitioner generated this letter in order to identify what he described as an "error" and "mistake" and then "correcting it for the record" by substituting one lie for another. There is no suggestion that he was asked to write this letter. As the matter before the AAT had, by that stage been "resolved", there was no apparent pressure on him from the AAT or a party to write to the AAT in these terms. The letter was written more than two years after the lie to which it referred but was written in the context of responding to a complaint made by the client about him to the Law Society. The letter was written in detailed and considered language.

140. It is not clear what weight the Original Tribunal gave to this lie, either separately or as part of his consideration of the lies globally. The fact that the Senior Member described the letter to the AAT as "a separate act" that was "equally bizarre" does not mean that the Original Tribunal failed to appreciate the lie or to comprehend its seriousness. Rather, the word "bizarre" suggests that he did 'grapple' with the letter, albeit briefly. That statement by the Original Tribunal has to be considered in the context of his assessment of other examples of the practitioner's professional misconduct, and his overall assessment of their seriousness. We are not satisfied that the Original Tribunal made a material error.

Ground 1(f) - the nature of the lies in the May 2019 letter to the Law Society

141. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(f) failing properly to grapple with the final response to the Law Society dated 28 May 2019, again made absent any circumstances of urgency by wrongly holding that it was "really part of the earlier email to the [AAT] but is just as wrong and unusual" (J [158]).

142. The Council noted that the practitioner wrote to the Law Society on 28 May 2019 contending that the complaint should be dismissed by reason, among other things, of the letter he wrote to the AAT. In his letter to the Law Society, the practitioner repeated the "slip of the tongue" lie about his earlier lie. Ultimately the practitioner admitted that the statement was not an unintentional mistake but was knowingly made to attempt to gain the sympathy of the AAT.[88]

143. In the Council's submission, the practitioner knowingly misled the Law Society on 7 February 2018 and then again on 28 May 2019 by relying on a letter in which he knowingly misled the AAT. However, other than making some brief remarks at paragraph [180],[89] the Original Tribunal described the "next submission to the Society" (that is, the submission dated 28 May 2019) as being "really part of the earlier email to the tribunal but is just as wrong and unusual."[90] The Council submitted that nothing could explain the quite wrong description of the misleading letter to the Law Society as "really part of the earlier email to the Tribunal" although the Council suggested that the motivation for writing to the AAT was to support the practitioner's letter to the Law Society. The Original Tribunal did not expressly acknowledge that the practitioner knowingly misled the Law Society other than by referring to Charge 5 in a few lines at paragraph [40] of the reasons for decision.

(a) if the basis of this ground is that the Original Tribunal failed to give the circumstances sufficient weight, that submission should be rejected. Matters of weight in the context of discretionary decision-making were for the Original Tribunal and not the Appeal Tribunal unless the treatment of an issue can be characterised as manifestly unreasonable;

(b) Submissions made on this point on behalf of the Council provide the answer to the complaint that is made. The incident was a particular of Charge 5.[91] The Original Tribunal found that the practitioner's submission to the Law Society was "just as wrong" and unusual as the email to the AAT[92] and hence the separate lie was acknowledged, as was its seriousness. The relative brevity of its consideration cannot be the basis of a finding of error.

145. The practitioner submitted that no error was demonstrated and it was open for the Original Tribunal to make the findings that he did.

146. In his detailed letter to the Law Society dated 28 May 2019, the practitioner repeated what he had written to the AAT. At paragraphs 39-41 of his letter the practitioner wrote:

It appears from the transcript of the directions hearing on 14 March 2017 that I said to the AAT my unavailability was because I had to take my daughter to a medical appointment. I was not aware of having referred to my daughter, as opposed to my brother-in-law, until the Law Society sent me the transcript and I read it. I did not then and do not have any recollection of having said that. I do not know why I would have referred to my daughter when the true medical need was for my brother-in-law.

After seeing that, I sent the AAT a letter correcting the record. A copy of my letter dated 28 April 2019 is at Attachment D.

Unfortunately I cannot now account for the mistake. I have written to the AAT drawing the error to the AAT's attention and doing what I now can to correct the record.[93] [Emphasis added]

147. Approximately one month after writing to the AAT, the practitioner was still referring to an "error" or the "mistake", denying any recollection of that error and offering no explanation for it. He reiterated that he was doing what he could to "correct the record." As with the letter to the AAT, this was expressed in detailed, considered language. As his later admissions demonstrate, the contents of the 28 May letter were wrong, repeating and compounding the lies told to the AAT.

148. The lies in that letter, as with the previous lies to the AAT, were long after the date, circumstances and pressure of the directions hearing before the AAT. The seriousness of the lies in that letter about the earlier lies is manifest. The Original Tribunal recognised that when he wrote that the practitioner's submission to the Law Society was "just as wrong and unusual" as the email to the AAT.[94] Rather than fail to grapple with those lies (and the others), the Original Tribunal observed that the practitioner's conduct was "so serious that unless I can be satisfied that the flaws that led him to do it are not permanent, the Tribunal should recommend that he be struck off."[95]

Ground 1(g) - was the practitioner at least prima facie unfit to practise?

150. The Original Tribunal erred by failing to make a proper assessment of the nature and seriousness of the conduct engaged in by the practitioner by:

(g) failing, including as a result of the foregoing errors, to find that the conduct engaged in, considered as a whole, constituted a series of related but separate acts of deliberate dishonesty involving deliberately misleading, and causing the misleading of, the AAT, the Law Society, and his own client on several occasions over a two-year period, rendering the practitioner at least prima facie permanently unfit to practise.[96]

151. In the Council's submission, a common feature of the associated errors by the Original Tribunal (outlined earlier) is the fundamental failure to grapple with the admitted facts. In summary, the practitioner:

(a) lied to his client orally about his unavailability;

(b) lied to his client in writing about his unavailability and by falsely claiming that the psychiatrist had been taken off standby;

(c) lied to the AAT by falsely claiming to be unavailable and that the reason for his unavailability was that his daughter had a medical appointment;

(d) developed a strategy by his own admission whereby the client would terminate his engagement then re-engage him once he had obtained an adjournment, and caused the client to mislead the AAT into granting him an adjournment on these false premises;

(e) knowingly misled the Law Society by denying what he had said to his client about his daughter and her alleged medical appointment;

(f) wrote to the AAT and told the further lie about a slip of the tongue, when it was a deliberate lie; and

(g) knowingly misled the Law Society on 28 May 2019 by promulgating his misleading letter to the AAT.

152. The Council observed that this conduct occurred over a period of more than two years and (with the sole exception of the lie to the AAT about the reason for his unavailability) was either told as part of a strategy or, at least, was not said on the spur of the moment. In the Council's submission, none of the lies to the Law Society or the AAT was told in circumstances of urgency. The Original Tribunal needed to grapple with and objectively characterise these facts before proceeding to the subjective matters.

153. The practitioner described this ground as a rolled-up ground that, at least in part, seeks to aggregate the complaints made in the preceding grounds. He noted that in their joint and separate submissions the parties urged the Original Tribunal to find that (separately or globally) the conduct complained of amounted to professional misconduct exposing the practitioner to the possibility of having his name removed from the roll. The practitioner submitted that the Original Tribunal's findings were consistent with that approach. The fact that the Original Tribunal weighed in the balance other considerations does not suggest that the Original Tribunal did not acknowledge the seriousness of the practitioner's conduct.

154. Further, the practitioner submitted, this ground of appeal does not suggest that the Original Tribunal's findings were not open to him or that (taken as a whole) the findings were unreasonable or plainly unjust. The Appeal Tribunal should not find that they were. Indeed the findings made by the Original Tribunal were clearly open to him.

155. When listed as in [151] above, and considered individually or collectively, the lies show consistent and repeated attempts by the practitioner to explain his situation to the AAT, the client, and the Law Society. His subsequent acknowledgement that the statements were untrue came more than two years after the first of the lies were told in the pressurised and unexpected circumstances of 14 March 2017.

156. None of that is in dispute. Nor was it ignored by the Original Tribunal. Some of the incidents were noted briefly and with little analysis. But that does not mean there was a material error or errors in the Original Tribunal's reasons for decision. Rather:

(a) as noted earlier, the Original Tribunal considered the evidence of individual instances of misconduct globally; and

(b) the Original Tribunal concluded that the conduct was so serious that, unless he could be satisfied that the flaws that led the practitioner to do it are not permanent, the Original Tribunal should recommend that the practitioner be struck off.[97]

157. No error is shown. The real issue in this appeal is whether the flaws which caused the practitioner to tell those lies was permanent. That issue is dealt with in the next part of these reasons.

158. The focus of Ground 2 of the appeal is the mental health of the practitioner. In our view, it is important to remember that the evidence as to the practitioner's mental health in these proceedings is relevant only to whether it supports the Original Tribunal's orders made as to sanction. The practitioner did not argue that his mental health prevented a finding of professional misconduct. Indeed he agreed he was guilty of professional misconduct. The Original Tribunal found he was guilty of professional misconduct; and no challenge was made to this finding in these proceedings. Rather, the challenge is by the Council to the sanction, including in light of the evidence of the practitioner's mental health. Therefore, in this appeal, the substantive issue is whether the evidence as to the practitioner's mental health supported the sanction imposed, or, as the Council argued, whether, when combined with other evidence, it required a sanction of removal from the roll. We set out and consider each component of Ground 2 further below.

159. Before dealing with Ground 2, it is useful to make some general comments about the evidence concerning the practitioner's mental health and the Original Tribunal's findings. The Original Tribunal noted that Professor Stevens made a diagnosis of a "major depressive disorder with moderate to severe symptoms (Single Episode)," on the basis of a consultation with him on 14 January 2020. Professor Stevens stated in oral evidence that when he saw the practitioner he was "very stressed ... [he] gave him a diagnosis of depression ... speaking figuratively - 9 out of 10 on a stress scale."[98]

160. The Original Tribunal noted that the practitioner's evidence, given in his own affidavit and in the hearing, supported the expert evidence of Professor Stevens.[99] The Original Tribunal also noted the evidence of the practitioner's colleague, which discussed the behaviour of the practitioner.[100] No contrary evidence by a psychologist or psychiatrist was called by the Council, which seemed to accept Professor Stevens' diagnosis.[101]

161. There was some suggestion by the Council in the Original proceedings that the practitioner was exaggerating his condition, but this was not accepted by Professor Stevens nor the Original Tribunal. Professor Stevens stated that, if anything, the practitioner was minimising his condition.[102] The Original Tribunal accepted that, contrary to the arguments of the Council, the tests performed by Professor Stevens reinforced the diagnosis and that the practitioner tended to understate what was wrong with him.[103]

162. There was an issue as to when the practitioner had this disorder and as to its severity from time to time. Professor Stevens did not see him at the time of the relevant conduct for this complaint. However, the practitioner gave Professor Stevens his history. This included stressful events in relation to LP 12, his brother-in-law's illness, losses in the family, and problems with his father. These events stretched back over a number of years, including the time of the relevant conduct. Professor Stevens also stated that the practitioner reported symptoms of depression over the previous two to three years, which included lost motivation, trouble sleeping, loss of appetite, guilt, loss of confidence and self-esteem, and suicidal thoughts. Professor Stevens stated that the practitioner "reported that he's felt this way for most of the last three years".[104] In his executive summary, Professor Stevens stated that the practitioner "was affected by severe stress and this might account for his behaviour which has become a matter of professional complaint."[105]

163. In re-examination before the Original Tribunal, Professor Stevens stated that he used three 'legs' to support his assessment: the Personality Assessment Inventory (PAI) tests, the history given by the practitioner, and the presentation of the practitioner.[106] In his view the timeframe over which the practitioner had the symptoms for the major depressive illness was two to three years, presumably before his consultation. He said that "you only need two weeks for a major depressive episode, so yes, it certainly was more set in you might say ... over the extended period of time he - he reported symptoms of depression. That's the best way I can say it."[107]

164. The practitioner gave evidence that in the lead up to March 2017 he was not feeling right and he described his symptoms. Professor Stevens characterised these as symptoms relating to depression.[108]

165. One of the practitioner's work colleagues gave evidence that during the three years from 2016 he noticed a visible change in both the demeanour and capacity for work in the practitioner, some of which correspond to the symptoms of depression in Professor Stevens' report. It appears that Professor Stevens did not have access to this statement.[109] But this statement is consistent with the practitioner's evidence and Professor Stevens' assessment of his symptoms.

166. The Original Tribunal agreed that the history given by the practitioner should be treated with caution, but accepted "his history as given in his affidavit and as given to Professor Stevens".[110] However, it was said that the evidence about the duration of the major depressive episode is not completely without doubt. The Original Tribunal went on to state that the practitioner had significant stressors at the time of the first instances of misconduct; it seems probable that this got worse as the LP 12 matter progressed; and was most devastating when the Court of Appeal decided against him. The Original Tribunal was not satisfied that the practitioner was suffering a "major depressive episode then", but "it is more probable than not that he did suffer from depression then to some extent."[111]

167. There is some ambiguity as to what the term "then" is referring to here, as three events are mentioned in the preceding paragraph: the time of the first instances of misconduct (which was March 2017); as the LP 12 matter progressed (which was from July 2016 when proceedings were commenced in the Tribunal till July 2019 when they were resolved); and when the Court of Appeal decided against him (which was on 6 December 2018).[112] The Council suggested at some points in its written submissions[113] that the 'then' referred only to the last event, that is on 6 December 2018. In our view, this is not correct. In our view, it is more likely that the Original Tribunal was referring to the period of the three events, which would be the period from 2017. This was the period that the practitioner and Professor Stevens had both talked about, and which the Original Tribunal accepted at paragraph [168]. This was the time of the numerous external stressors referred to in paragraph [171], and this term is used in relation to March 2017 in paragraph [170]. And we note that this also seems to be the period raised in Ground 2(a) of the appeal itself, which refers to the practitioner's conduct generally. There is no basis in the evidence, nor elsewhere in the Original Decision, for suggesting that the depression was limited to 6 December 2018. We proceed on the basis that the "then" in paragraph [171] means from 2017.

168. The Original Tribunal found on the basis of this evidence that, while he agreed that the history given by the practitioner should be treated with caution, he accepted it was more probable than not that the practitioner did suffer from depression from 2017 to some extent.[114]

Did the untreated depression affect the misconduct?

169. As noted, Professor Stevens stated in his Report that the practitioner "was affected by severe stress and this might account for his behaviour which has become a matter of professional complaint". He went on and stated that "it", which it seems means the practitioner's professional behaviour, "has exposed a problem with how he deals with stress, which will need to be addressed in a hopefully medical and psychological way". Professor Stevens also noted that the testing indicated some problems with concentration. One of the symptoms indicating depression was "diminished ability to think or concentrate, or indecisiveness, nearly every day" It is not clear from the Report that the practitioner had this symptom, although the comment that the testing indicated some problems with concentration suggests he did. Further again, the Report found that that the practitioner's symptoms caused significant distress or impairment in social, occupational or other important areas of functioning, which could include impairment in dealing with litigation and responding to the issues raised by the Law Society.[115]

170. As noted, the practitioner himself gave evidence as to his condition, and his work colleague observed a visible change in the practitioner's capacity for work. Previously he was able to grasp technical aspects, the content of a claim, retain and recall information, and was articulate and did not waste time on extraneous observations. More and more this was no longer the case, and the practitioner got bogged down on issues which were less relevant, dwelt on what others may think rather than the merits of a claim, and was unable to understand the case. The colleague stated that "this is not the smart, analytical and objective solicitor I had known". He thought that many of the comments in Professor Stevens' report rang true, in particular the difficulty the practitioner had with concentrating on an issue and being over focussed on a need to tell his story.[116]

171. The Original Tribunal held that the mental illness of the practitioner explained his actions, but did not excuse them.[117]

172. The Original Tribunal found that the depression was reactive, presumably to stress, and need not be permanent. It was not something that the practitioner suffered from in any event, which we take to mean it came and went, and this enabled the conclusion that it need not be permanent.[118]

173. Professor Stevens stated that the problems which the practitioner had with dealing with stress "will need to be addressed in a hopefully medical and psychological way rather than punitive legal actions". He recommended that that the depression be addressed through medication and treatment, and specifically recommended a consultation with his general practitioner to consider antidepressant medication, a mental health care plan, and referral to a clinical psychologist for a minimum of 10-12 sessions.[119]

174. The Council did not challenge this evidence nor did it provide contrary evidence.

175. The evidence was therefore that the practitioner's depression was treatable, and the Original Tribunal accepted this position.[120] The Council also said it accepted this position.[121]

176. In the light of these general comments we deal with the specific Grounds of appeal.

177. The Original Tribunal erred in his application of the expert psychological evidence to the agreed facts and the evidence by:

(a) having found that he was not satisfied that the practitioner was necessarily suffering from a major depressive episode when the misconduct occurred, but rather "depression to some extent" with numerous external stressors (J [170]), concluding (J [180]) that those factors explained the practitioner's misconduct (while not excusing them) when the evidence of Professor Stevens was only that "severe stress" "might account for" his actions: J [104];

(b) wrongly reasoning, including as a result of the errors in Ground 1(c), (e) and (f) above, that the practitioner's lies to the Law Society in February 2018 and May 2019, and to the [AAT] in April 2019, rather than demonstrating a character flaw of fundamental dishonesty, were so "bizarre" as to point to an alternative explanation, namely stress and depression, for telling of the lies: J [157]-[158], J [180];

(c) including as a result of the error set out in Ground 2(b), holding that the lies which the practitioner told to the [AAT] and to the Law Society in 2018 and 2019 were attributable to his mental state "and are explicable in the way Professor Stevens explains" when Professor Stevens' evidence (J [180]) was only that those stressors "might account for" his conduct;

(d) failing to heed and apply the well-established principle that there is a natural reticence to allow mental illness to excuse repeated acts of dishonesty...[122]

178. The Council submitted that there is a long line of authority holding that great care is needed before dishonest conduct is exonerated solely by reason of mental health difficulties. Further it was argued that the medical evidence did not demonstrate the link between the metal illness and the conduct, in particular in relation to the statements to the AAT and the Law Society in April and May 2019, nor did it demonstrate that the unfitness demonstrated by the practitioner was of limited duration.[123]

179. The practitioner argued that there were two streams of relevant evidence. First, Professor Stevens gave evidence that the practitioner had a major depressive episode and reported symptoms of depression over a two to three year period. Second, there was a range of situational stressors on the practitioner. He submitted that it was open to the Original Tribunal to conclude that the depression and stress explained but did not excuse the practitioners' actions.[124]

Ground (2)(a) - did Professor Stevens' report support the conclusions?**

180. In Ground 2(a) the Council argued that that the Original Tribunal erred in finding that the practitioner had depression when the misconduct occurred since the evidence of Professor Stevens was only that "severe stress ... might account for" his actions (at [104]). In our view, there was no error.

181. As we have noted, Professor Stevens only saw the practitioner on 14 January 2020. On the basis of the PAI test, the history given by the practitioner, and his presentation, Professor Stevens concluded had the practitioner had a major depressive disorder with moderate to severe symptoms. Professor Stevens had not seen the practitioner when the relevant misconduct occurred, nor had he tested him then. No psychologist or psychiatrist had done so as the practitioner did not know he had depression and his condition was untreated.

182. Professor Stevens' view about the practitioner's condition since 2017 was therefore appropriately more guarded. However he also stated that, from what the practitioner told him in the relevant period, the practitioner was subject to stressful events and had the symptoms of depression. Therefore he said that this stress might account for the misconduct.

183. The Original Tribunal, as was its role, was able to put the whole of the evidence of Professor Stevens, not just the statement in the executive summary, together with the Joint Submission (which included an agreed statement of facts, including as to the misconduct), the statement of the practitioner, his response to cross-examination, the statement of his work colleague, and other evidence to conclude that in the period of the misconduct it was probable that the practitioner had significant stressors, did suffer from depression to some extent, and that the stress and depression explained the actions although they did not excuse them. In doing so, the Original Tribunal was not uncritically accepting of the evidence. He accepted that the history given by the practitioner should be treated with caution, and he thought the evidence about the duration of the major depressive episode was not without doubt, but none-the-less concluded that the practitioner did suffer from depression to some extent and that this affected his actions. Further, whilst the practitioner accepted some onus lay on him, the Council provided no medical evidence in reply, nor any evidence of the practitioner's condition during the period, except the acts of misbehaviour and the conduct of the LP 12 proceedings, which we deal with below.

184. On this basis, in our view there was no error in the Original Tribunal drawing these conclusions from all the evidence available.

Grounds 2(b) and (c) - were some of the acts of misconduct so bizarre as to suggest mental illness?

185. In Grounds 2(b) and (c) the Council focused on one particular strand of the Original Tribunal's reasoning, namely that the practitioner's lies to the Law Society in February 2018 and May 2019, and to the AAT in April 2019, rather than demonstrating a character flaw of fundamental dishonesty, were so bizarre as to point to an alternative explanation, namely stress and depression (Original Decision at [157]-[158], [180]).

186. At paragraph [180] of the Original Decision it was said that the first lie was unplanned, occurred when the practitioner was suddenly faced with the prospect of running a case himself that he was unprepared for and thought he was not up to, and the further lies on that day and the next were a product of the first response. It was said that they are indicative of not dealing with the matter in a structured way.

187. The later statements to the Council and the AAT occurred when LP 12 case had proceeded further and costs were blowing out. These statements are said to have been "bizarre" (a term also used for them at paragraphs [157] and [158]). The Original Tribunal said that these statements "are explicable in the way Professor Stevens explains".[125]

188. It is not completely clear to what "the way Professor Stevens explains" refers to here. It seems probable that it is the executive summary in his Report where it is stated that the practitioner was affected by severe stress which might account for his behaviour, which has exposed a problem with how he deals with stress, and which will need to be addressed. That is, the explanation is that severe stress and depression explained the statements. Further, it might be the statement that the testing indicated some problems with concentration. Further again, the Report found that that the practitioner's symptoms caused significant distress or impairment in social, occupational or other important areas of functioning, which could include impairment in responding to the issues raised by the Law Society.[126] Whatever the specific statement, it seems that the Original Tribunal meant that the practitioner's unprofessional behaviour was related to stress and depression.

189. There are a number of difficulties with this consideration by the Original Tribunal, and this Ground of Appeal. First, we note again that the practitioner admitted that his statements were untrue and making them amounted to professional misconduct, the Original Tribunal found this to be the case, and no appeal is made to this finding. The current relevance of the statements is whether they were affected by the mental illness of the practitioner, which can be treated, and are therefore relevant to the issue of the appropriate sanction.

190. Second, we agree to some extent with the points raised by the Council that the language of the Original Decision is not very helpful. The term "bizarre" is not particularly informative. And the logic of the consideration is not particularly clear.

191. But, third, we take the Original Tribunal as finding that the terms of the practitioner's statements are relevant to deciding whether they were made under the influence of a mental illness which can now be treated, or whether they were made unaffected by the mental illness, and thus, as suggested, were simple dishonesty. In our view, if the Council is arguing that the Original Tribunal could not consider the statements, we do not agree. The terms of the statements are relevant. These are the very acts which amounted to misconduct; these are the very acts which the sanction is addressing. They are clearly relevant to whether the misconduct was influenced by mental illness, and if so what is the appropriate penalty.

192. But we do agree with the Law Society that care needs to be taken in assessing the nature of the statements. As the Council argued, the conclusion that because these acts were so blatant and brazen that they must be the product of a mental condition rather than dishonesty ignores human experience that some peoples' character is marred by dishonesty.[127]

193. If the fact that these statements were "blatant" and "brazen", to use the Law Society's words, or "bizarre", to use the Original Tribunal's words, or wrong, to use a less colourful term, was the only evidence of mental illness, then we would agree with the Council that there was an error. But as we have noted, there is other evidence that the practitioner had a mental illness and that this affected his statements. In our view, it is not an error to use the content of the statements as simply supportive of such a conclusion, and not wholly determinative. This Ground is not made out.

Ground 2(d) - was the practitioner's mental illness relevant to the sanction?

194. Under ground 2(d) the Council argued that the Original Tribunal erred in failing to heed and apply the well-established principle that there is a natural reticence to allow mental illness to excuse repeated acts of dishonesty. As we have noted the practitioner did not seek to excuse his conduct on the basis of his mental illness, nor did the Original Tribunal do so. Rather, the Original Tribunal took his mental health into account in determining the sanction. The appropriate question is therefore, can mental illness be relevant to the sanction?

195. We have discussed above the nature of the practitioner's conduct, and the nature of the practitioner's mental illness. We further note that, in the period in which the misconduct occurred, the practitioner had not had any treatment for his illness. Professor Stevens noted that, at the time he saw him, the practitioner had not seen a psychologist and had never had counselling.[128] In his oral evidence the practitioner indicated that he had seen a Dr Nomchong, apparently a psychologist, for half an hour in about in 2018 or 2019 on the basis that he needed to talk to somebody, and that Dr Nomchong provided some teaching on how to relax.[129]

196. It is clear that Professor Stevens was of the view that the depression could be treated. He recommended a consultation with a medical practitioner to consider anti-depressant medication and a mental health care plan and referral to a clinical psychologist for treatment for depression and help with system stress reduction techniques, and suggested he will need a minimum of 10 to 12 sessions.[130] The view that mental illness can be treated is now generally accepted, and incorporated into the ACT legal system, in particular in the terms of the Mental Health Act 2015.

197. The practitioner stated that he will undergo such treatment.[131]

198. The practitioner submitted that an effective suspension of 12 months should be made. The Original Tribunal did not agree to this on a number of grounds, one of which was that there was a "real concern that the practitioner will be able to recover sufficiently in that time to overcome his current issues".[132] The relevant order was that the practitioner was not to be granted a practising certificate before 30 June 2025, but could be granted a restricted certificate after July 2021 if he has consulted a registered psychologist or psychiatrist for the purpose of treatment for the condition described in the report of Professor Stevens, the practitioner complies with any treatment proposed, and the treating mental health practitioner provides a report to the Council that he has now recovered from the condition and other requirements.

199. As to the relevant legal principle, the decision as to the sanction is made under section 425 of the Act. This makes clear that in relation to a finding that a legal practitioner is guilty of professional misconduct the Tribunal may make an order recommending that the name of the practitioner be removed from the roll. But there is no requirement to make such an order. The Tribunal has a discretion whether to do so, and there is a range of other possible orders.

200. Under the case law in relation to such decisions, we do not conclude there is a prescriptive legal principle that removal is required. Rather, there is support for an appropriate legal approach to the issue which, as set out in the Solicitors Manual,[133] is that where the relevant behaviour involves dishonesty there is a natural reticence to countenance mental illness as a mitigating factor. After discussing the support for this approach the Solicitor's Manual stated that this "does not mean that an order for the striking off is always the correct disciplinary response for serious misconduct even though mental illness is pleaded." A range of factors may suggest otherwise. These include that the misconduct is attributable to the disorder, as the Original Tribunal found was the case here. Another is that, at the expiry of the suspension, the lawyer will be mentally fit to practise law. In this case the evidence was that the condition could be treated. The order requires proof of this in the period to 2025. The Solicitor's Manual also notes that in many of the cases where the lawyer was struck off there was a "litany of unprofessional behaviour" and that a tribunal may be more inclined to order a period of suspension where the conduct is more isolated, contributed by a medical condition of a temporary nature, now controlled by medication. Again the orders made require control of the illness for the practitioner to practise before 2025. This discussion in the Solicitor's Manual and the cases it draws on do not suggest there is a formula for deciding these issues. It is a matter for the relevant tribunal to consider the relevant facts and considerations and make a discretionary judgment.

201. In our view the Original Tribunal applied this approach. Here there were a number of incidents but it was open to the Original Tribunal take the view that there was no litany of unprofessional conduct. There was dishonesty, but it was open to the Original Tribunal to find that this was affected by the untreated mental illness of the practitioner. It was open for the Original Tribunal to find that this illness could be treated. In order for the practitioner to obtain a certificate before 2025 there will need to be successful treatment. In our view, the Original Tribunal applied section 425 of the Act and the accepted legal approach to this issue appropriately. There is no error.

Ground 2(e) - were the LP 12 proceedings a stressor which explained the practitioner's actions?

202. The Original Tribunal erred in his application of the expert psychological evidence to the agreed facts and the evidence by:

(e) concluding that the "stressor" of the LP 12 proceedings, especially at the time when "the Court of Appeal found against him" (J [171], [180]) was a factor which "explained" his "actions" (at [180]) when:

(i) as the Court of Appeal found (at [60]-[61]) the practitioner's conduct of those proceedings had been "unduly confrontational and aggressive" and "obstructive" (J [180]);[134]

(ii) the Court of Appeal's decision was delivered on 6 December 2018, which is well after the initial misleading of, and lies to, the AAT and misleading of the client in March 2017, and several months before the written lies, not told in circumstances of any urgency, to the [AAT] and the Law Society in April and May 2019; and

(iii) no such evidence as to the Court of Appeal's decision was given by Professor Stevens.[135]

203. The Council argued that the Original Tribunal should not have allowed the practitioner to rely on the LP 12 matter as a stressor for his mental illness because of his own confrontational and aggressive conduct in those proceedings which were unrelated to the misconduct at issue in these proceedings, and at any rate there was no evidence as to the significance of the Court of Appeal decision in the LP 12 matter.[136]

204. The practitioner argued that the Original Tribunal looked at the issue more broadly and found that the practitioner had depression and that there were a number of stressors which affected this, including the LP 12 proceedings.[137]

205. The Council raises, in particular, the consideration by the Original Tribunal of the LP 12 proceedings in which the practitioner was involved. The Original Tribunal saw these proceedings as stressors, in particular what he described at paragraph [170] as the "devastating" decision of the Court of Appeal, and that the stress that these events caused, with other events, and the depression, explained but did not excuse the misconduct (at paragraph [180]).

206. The Council says that this finding was in error for a number of reasons. Ground 2(e)(i) raises one reason, namely comments made by the ACT Court of Appeal in the LP 12 proceedings. LP 12 concerned events in June and July 2011. The operative application to the Tribunal occurred in July 2016 and the Tribunal made a first decision on 7 July 2017.[138] This led to a judicial review application by the practitioner to the ACT Supreme Court, which was successful, and then an appeal by the Council to the Court of Appeal where, in a judgment delivered on 6 December 2018,[139] the Council was successful and the practitioner therefore unsuccessful and was ordered to pay the costs of the Council. In that decision, Murrell CJ and Burns J made some comments (at [56] and [57]) that the practitioner approached the proceedings as if they were criminal proceedings in which he was charged with an offence, took an unduly confrontational and aggressive approach "which does little credit to him or those representing him," was "obstructive," and rather the practitioner should advance his defence on the merits. Their Honours said that it was not suggested that it was never appropriate to seek judicial review in disciplinary proceedings, such as where procedural unfairness is alleged, but "this Court is loath to entertain applications concerning disputed interlocutory rulings." Justice Charlesworth agreed with these comments at [71].

207. We do not agree with the Council's argument that these comments or the conduct they refer to cast any doubt on the Original Tribunal's decision that the LP 12 proceedings were a stressor for the practitioner and explained his actions.

208. First, as the Original Tribunal stated, the relevant conduct was not the conduct of the practitioner. He was not conducting the proceedings himself. Rather, in ACAT he was represented by senior counsel and solicitors, and in the Supreme Court and the Court of Appeal the proceedings were conducted by senior counsel, junior counsel and solicitors. Of course the proceedings were against the practitioner so he was no doubt instructing. But his evidence was that the argument that the Law Society did not have a case "was a new approach adopted by [his] legal team but [he] was unsure that it was the right and most cost-effective approach."[140]

209. Second, the comment quoted above was not a finding by the Court of Appeal. It is unclear what evidence was relied upon to support it, although we note that the Council indicated that the transcript of the proceedings before the Tribunal was before the Court of Appeal.[141] It is unclear what, if any, procedural fairness was accorded the practitioner and his legal team in relation to the comment. The proceedings were not in their terms an inquiry into the conduct of the litigation and the practitioner's role in it.

210. Third, we think it is clear that the fact that the practitioner and his legal team disputed the allegations of misconduct in LP 12, used available legal proceedings to do so, and were criticised for doing so, are not in any way proof that he was guilty of the misconduct at issue in LP 12, or the misconduct at issue in these proceedings. The Council properly conceded this.[142] Further, we cannot see how this conduct and criticism can in any way be proof that the practitioner did not have a mental illness which affected the actions subject to these proceedings. Most relevantly, we cannot see how it is that the conduct and criticism can prevent the practitioner suggesting, and the Original Tribunal finding, that the LP 12 proceedings were stressful to the practitioner, caused his depression and affected his conduct.

211. Fourth, even if, as seems unlikely, the practitioner was the driving force of the litigation strategy in LP 12, the Court of Appeal did not have one key piece of information which the Council, the Original Tribunal and this Appeal Tribunal now have, namely that the practitioner has a major depressive disorder with moderate to severe symptoms, and at the time of the relevant parts of the LP 12 hearings it is likely he had depression to some extent. If there was any poor decision-making by the practitioner in relation to LP 12, his mental health may well have played a role in this. The evidence of his colleague supports this.

212. In our view, the comments of the Court of Appeal provide no basis for thinking that the LP 12 proceedings were not a stressor on the practitioner. Rather, as the Original Tribunal found, those comments would have further added to his stress. In our view, it was clearly open to the Original Tribunal to find that those comments would have been devastating to the practitioner. We simply cannot see how the fact that the practitioner and his legal terms undertook the course of conduct criticised would make the conduct and criticism less stressful for the practitioner. Ground 2(e)(i) is not made out.

213. In relation to ground 2(e)(ii), the Council raised some issues about the timing of the Court of Appeal decision. As discussed, in our view paragraph [171] of the Original Decision refers to the period from March 2017 onwards (see paragraph [167] above).

214. The first acts of misconduct in these proceedings were on 14 and 15 March 2017. The first hearing of the LP 12 matter by the Tribunal was on 7 December 2016 and it resumed on 2 March 2017, a matter of days before the misconduct in these proceedings. The practitioner gave evidence that in the lead up to 14 March he was under a great deal of pressure in relation to the LP 12 matter.[143]

215. The first letter to the Law Society about the misconduct was sent on 7 February 2018. The Tribunal had given its first decision in the LP 12 matter on 7 July 2017 and the judicial review hearing was in the Supreme Court on 12 and 16 February 2018. Therefore the letter was composed and sent just before the judicial review hearing in the Supreme Court, when the practitioner would have been assisting in the preparation for that case.

216. The decision of the Supreme Court in the LP 12 matter was handed down on 23 February 2018.[144] The Court of Appeal decision was handed down on 9 December 2018.[145]

217. Special leave to appeal to the High Court was sought on 17 January 2019 and refused on 17 April 2019,[146] that is just before the letter was sent to the AAT on 28 April 2019. The further hearings in Tribunal were on 13 and 14 May 2019, just before the further letter to the Council on 28 May 2019.

218. It seems to us that that this chronology is consistent with the finding that the LP 12 proceedings were a stressor on the practitioner, and that this got worse as the LP 12 matter progressed. The statements in March 2017 occurred shortly after a Tribunal hearing in LP 12.

219. There was no finding by the Original Tribunal that the statements made in February 2018, April and May 2019 were made in any circumstance of urgency, as suggested by Ground 2(e)(ii). It was only the March 2017 statements that were said to have occurred when the practitioner was suddenly faced with the prospect of running a case he thought he was not up to. Rather, it was said that the later events occurred when the LP 12 matter proceeded further and costs were blowing out. This is correct. The first letter to the Law Society was sent after the Tribunal found against him, and just before the Supreme Court judicial review hearing. The letter to the AAT was sent on 28 April 2019 after he had lost in the Court of Appeal, been criticised by the Court, made the subject of an order for costs and just after special leave to appeal to the High Court was refused. The letter to the Council on 28 May 2019 was sent just after the further hearings in ACAT on 13 and 14 May 2019. It was open to the Original Tribunal to find that all the acts of professional misconduct therefore occurred near events in the LP 12 proceedings which would have been stressful to the practitioner and affected those acts.

220. We do not see any error in the findings of the Original Tribunal in this regard.

221. Ground 2(e)(iii) argues that concluding that the LP 12 proceedings, especially at the time of the Court of Appeal decision, were a stressor was not supported by Professor Stevens. This ground is not made out.

222. Professor Stevens referred to the proceedings in his Report. He wrote that the multiple stressors on the practitioner included "a nine-year legal investigation with a LP 12 matter which was not only stressful, impacting his family, but financially difficult," He noted later that the practitioner was "under considerable stress [from the] LP 12 matter for nearly 10 years", which involved judicial review to the Supreme Court which he won and then appeal to the full Supreme Court, then the High Court, then back to the Tribunal. As discussed, the oral evidence of Professor Stevens suggested that, in his view, the timeframe over which the practitioner had the symptoms for the major depressive illness was two to three years.[147] The Original Tribunal did not wholly accept this, and held only that he did suffer from depression "to some extent" over this period. We think it was open to the Original Tribunal to reach the view that at some periods there was a major depressive illness, and to reach the view that this occurred at important points of the LP 12 proceedings, especially where the practitioner was unsuccessful and criticised.

223. The practitioner himself gave evidence of the effect of this litigation on him. In particular he said that "words cannot describe how LP 12 has devastated me and my family and how it has affected my self-estimation, feelings of self-worth and confidence".[148] It is difficult to imagine any more forceful evidence of the stressful impact of these proceedings on the practitioner. The Original Tribunal noted that the evidence was not challenged and is consistent with common experience.[149]

224. His work colleague stated that the LP 12 matter was complicated, costly and stressful. In relation to the three years of litigation he stated that he noticed a visible change in both the demeanour and capacity for work in the practitioner.[150]

225. We do not think that this Ground is made out.

Ground 2(f) - did the practitioner show he was fit to practise?

226. The Original Tribunal erred in his application of the expert psychological evidence to the agreed facts and the evidence by:

(f) failing to hold that the evidence did not discharge the onus on the practitioner to satisfy affirmatively the Tribunal of his fitness (J [174]), and instead making orders on an unsupported premise that such fitness would return by the effluxion of five years.

227. The Council argued that, even accepting the finding that the practitioner suffered from depression to some extent, he did not demonstrate that his mental condition explained his conduct. It was argued that Professor Stevens did not provide evidence that the depression of the practitioner deprived him of the capacity to understand he was acting dishonestly, nor was there cogent and compelling evidence of the relationship between the condition and the conduct in order for the penalty to be mitigated due to mental illness'.[151]

228. The practitioner argued that the Original Tribunal found, and was satisfied that, stress and depression explained the relevant conduct. The evidence of Professor Stevens and the practitioner supported this conclusion and was accepted.[152]

229. The key issue raised by this ground is as set out at paragraph [174] of the Original Decision as whether "there are permanent character flaws that make [the practitioner] unfit to practise" or whether, alternatively, the practitioner's mental illness explained the actions and that this can be treated, which would allow for a lesser sanction, such as that his practising certificate be suspended for a period. The practitioner seemed to accept that there was some sort of onus on him to show the latter.

230. The Original Tribunal found that the practitioner had committed professional misconduct. The practitioner did not argue, and Original Tribunal did not find, that the practitioner lacked capacity to understand he was acting dishonestly.

231. The Original Tribunal also found that practitioner was subject to stress and had a mental illness, that this explained his actions, and that this illness can be treated. The Original Tribunal found this on the basis of the evidence and reasoning set out in the Original Decision, which we have considered above. As discussed there, we do not think there is an identified error in the approach of the Original Tribunal. Therefore we do not think that this broad-brush ground of appeal is made out.

232. These findings allowed the Original Tribunal to decline to make an order that the practitioner be removed from the roll, and provide for a lesser sanction. However, that penalty is significant. As the Original Tribunal noted at paragraph [183], the orders provide in effect for a suspension for five years, but that the practitioner may obtain a restricted practising certificate after 1 July 2021 if a number of conditions are met, including evidence of successful treatment.

233. The report of Professor Stevens indicated that the mental illness can be treated, and he summarised a treatment regime. That the mental illness can be treated is therefore not an unsupported premise. It is also now generally accepted that mental illnesses can be treated, and this is reflected in the ACT legal regime. It is no longer necessary to rely on the effluxion of time, or miracles, to treat mental illnesses.

234. However, the Original Tribunal was concerned that a short suspension would not adequately reflect the disapproval that should be demonstrated, and that the practitioner would be able to recover sufficiently in a short period of time. Therefore the orders provided for a long period of suspension to enable recovery and, in effect, for the period to be reduced upon evidence of actual recovery.

235. In our view these reasons and the order were supported by the evidence, and reveal no error.

Ground 3 - previous disciplinary proceedings issues

236. The practitioner had been subject to two previous disciplinary proceedings. Ground 3 concerns the treatment of these by the Original Tribunal. The first was described as Complaint by V, which related to events in 2009 and a complaint dated 20 April 2010, and which resulted in a public reprimand.[153] This matter is discussed principally at paragraph [53] of the Original Decision.

237. The second was LP 12. This had a complex history which involved conduct in June and July 2011, a hearing in the Tribunal on 7 December 2016 and 2 March 2017 with a decision on 7 July 2017,[154] a decision of the Supreme Court on 23 February 2018 (LP 12 Supreme Court decision),[155] and a decision of the Court of Appeal on 6 December 2018 (LP 12 Court of Appeal decision).[156] The further hearings in the Tribunal were on 13 and 14 May 2019, with a decision on 22 July 2019 that two allegations of misconduct were made out (LP 12 misconduct decision),[157] and then a hearing on 27 September 2019 with a decision on 24 December 2019 as to penalty (LP 12 penalty decision).[158] This matter is discussed principally at paragraphs [54]-[61] of the Original Decision.

238. The grounds of appeal were that the Original Tribunal erred in his characterisation of the practitioner's disciplinary history by:

(a) wrongly discounting altogether the initial conduct that was the subject of an internal reprimand by the Law Society (J [53]) and, albeit not involving dishonesty, wrongly characterising it as no more than a "miscommunication";

(b) wrongly characterising the matter in LP 12 as involving merely (in 2011) "initial dishonesty", when in truth, while the misconduct occurred in 2011, in terms of insight, the practitioner conducted his defence of the LP 12 proceedings in an "unduly confrontational and aggressive" and "obstructive" manner, maintained his denial of wrongdoing until after the Tribunal's finding against him in its decision on liability, and still had quite limited and questionable insight at the time of the penalty hearing in that matter (J [160]);

(c) wrongly and without a proper basis, finding that the Law Society shared the "blame" with the practitioner for the delay in the conclusion of the matter (J [160]) when that was neither correct, nor relevant, and wrongly conflated (J [70]) the question of delay with the vigorous denial, and contesting by the practitioner, of the charges until at least the Tribunal's finding of liability;

(d) wrongly holding (J [160]) that the difference between the dishonesty in LP 12 and at the present case was a factor in the practitioner's favour when any such difference should have counted against him or in any event not assisted him; and

(e) wrongly characterising the facts in LP 12 in a manner unsupported by or inconsistent with the findings of the Tribunal in that matter in the finding (J [56]) that:

(i) the fees would have been "reasonable but for an agreement to give a discount" when in truth the Tribunal in LP 12 made no such finding, and there was no basis to do so; and

(ii) there was "no deception involved as the client was under no misapprehension that it had happened" when in truth, as the Tribunal found in LP 12, the practitioner had effected the transfer without the client's knowledge or consent, and only a few weeks after unsuccessfully pleading with the client to allow this to occur, and the client only discovered the excessive transfer after it had happened.

239. The Council argued that the Original Tribunal materially mischaracterised the practitioner's disciplinary history and therefore his fitness. As to the first matter, the Complaint by V, it was argued that the Original Tribunal was wrong to characterise this as one of miscommunication or lack of it, and too remote. It was said to involve breaches of statutory obligations which conferred a financial advantage on the practitioner. As to the second matter, LP 12, it was argued that the Original Tribunal was wrong to find that responsibility for the delay could be shared by the parties, that the relevant fees would have been reasonable but for an agreement to give a discount, and that there was no deception involved. Further, the appellant argued that it was relevant to these proceedings that the practitioner was said to have conducted the LP 12 matter in a confrontational and aggressive way.[159]

240. The practitioner argued that it was correct that the Complaint of V did not involve dishonesty and was appropriately characterised as miscommunication, and at any rate this was not material to these proceedings. It was admitted that the LP 12 matter involved a finding of dishonesty, that it was said that the practitioner demonstrated some lack of insight, but that in the current case the practitioner had shown significant insight.[160]

Ground 3(a), first issue - discounting the Complaint by V matter**

241. The Original Tribunal gave the Complaint by V matter "little if any weight in determining [the] appropriate sanction" in this case. The Original Tribunal seemed to reach this conclusion for a number of reasons. First, the Original Tribunal noted that in the LP 12 misconduct decision the Tribunal there thought the Complaint by V "too remote in time to be relevant."[161] The relevant comment is at paragraph [19] of the LP 12 penalty decision which stated "because of its age and unrelated nature it [the Complaint of V matter] does not affect the respondent's present fitness to practise in any way."[162] This may be a finding by the LP 12 penalty decision tribunal. But this paragraph was under the heading 'Submissions of the respondent', and the previous two sentences in paragraph [19] set out the position of the respondent. It seems likely, as the Council argued and the practitioner conceded,[163] that the comment was therefore a summary of the practitioner's position, and not a finding by the tribunal in the LP 12 penalty decision.

242. As the Council also noted, the LP 12 decision on penalty goes on to deal with the Complaint by V in paragraphs [32]-[33]. But the focus is not the actions at issue in the Complaint by V, but the practitioner's understanding and insight in relation to these. It refers in particular to a letter he wrote in April 2011, and the practitioner's reliance on this in the LP 12 decision on penalty hearing, which is said to indicate "that his lack of insight continues at least up to 3 September 2019".[164] The Original Tribunal characterised this as the LP 12 decision on penalty finding that the practitioner did not have complete insight into his misconduct in relation to the Complaint by V matter. But the Original Tribunal then went on to note that in these proceedings the practitioner "has shown significant insight in taking the unilateral step of handing back his current practising certificate ... [and] that the capacity to have complete insight is still a work in progress and his current mental state is not helping this".[165]

243. It is clear that the Original Tribunal was wrong in suggesting that the LP 12 penalty decision expressly characterised the complaint of V as too remote in time to be relevant. But none-the-less, the conduct giving rise to the Complaint of V was a long time ago. Also the tribunal in the LP 12 penalty decision did not expressly rely on the conduct in relation to the Complaint of V, suggesting that they also saw it as remote. The relevance of the Complaint of V matter to the LP 12 penalty decision was the practitioner's insight in relation to it.

244. While the Original Tribunal did not expressly say that he thought the Complaint of V matter was too remote in time to be relevant, it seems a reasonable implication that he did. At the time the Original Tribunal was making its decision, the events the subject of the Complaint of V were more than 10 years old. We conclude that it was open for the Original Tribunal to take this position.

245. As we noted at paragraph [242] above, the Original Tribunal thought that there was evidence that the practitioner's insight had improved but there was still some way to go, which was understandable given his mental state.

246. Therefore, insofar as the Original Tribunal did give the complaint of V little weight because it was too remote in time, we do not find that this was an error.

Ground 3(a), second issue - was the Complaint by V about miscommunication?

247. A second reason for the Original Tribunal giving the Complaint of V little weight was said to be that that it "seems also as far as the information goes to be a miscommunication or lack of it and was certainly not regarded as dishonest" (at paragraph [53] of the Original Decision). We have highlighted the words "as far as the information goes" since it seems there was little information before the Original Tribunal, and this is an important condition on the statement which follows.

248. In ground 3(a) the Council seems to concede that the complaint did not involve dishonesty, but that the Original Tribunal wrongly characterised it as no more than a miscommunication. The Council simply asserts this and provides no reference to any evidentiary base for the assertion.[166] This Appeal Tribunal has made some efforts to find that base. The affidavit of Mr Reis dated 9 December 2019 stated at paragraph 9 that the complaint was that "had she [the client] been informed that she would not have received the full amount of $60,000 'in hand' she would not have accepted the settlement offer". The reprimand was said to be on the basis that the practitioner failed to obtain instructions.[167] "Miscommunication or lack of it," presumably meaning lack of communication, seems an acceptable summary of this finding. The reprimand was also said to be made on the basis that the practitioner failed to provide additional disclosure, which on its face could also be characterised as lack of information, and charged an amount in excess of that permitted by a costs agreement, but no primary information was provided about these matters. On this basis, miscommunication or lack of communication seems an appropriate brief summary of the basic complaint. But at any rate the Original Tribunal noted the lack of evidence before it on this issue, as does this Appeal Tribunal. In our view there is no basis in the material before this Appeal Tribunal for finding that it was wrong to characterise the Complaint of V as "a miscommunication or lack of it". It was open for the Original Tribunal to do so, and no error is made out.

249. For completeness we note that the Original Tribunal gave as a third reason for giving the Complaint of V little weight that "the amounts are not on their face unfair" (at paragraph [53]). No challenge was made to this reason.

250. We find that there was no error in the Original Tribunal considering the Complaint of V but giving it little weight.

Ground 3(b) - characterisation of the complaint in LP 12

251. The second previous disciplinary matter was LP 12. This is discussed extensively at paragraphs [54]-[61] of the Original Decision. We have discussed it earlier in these reasons at paragraphs [37]-[38] and [205]-[212].

252. Ground of appeal 3(b) is a little hard to follow. First, it is said that the Original Tribunal wrongly characterised the matter in LP 12 as involving merely (in 2011) "initial dishonesty." No basis is given for thinking this was an error.

253. Second, the error alleged in part seems to be that this was not the full story, which includes consideration of insight by the practitioner into the LP 12 matter. As noted earlier, the Original Tribunal discussed the issue of insight raised by the LP 12 decision on penalty, and then specifically considered insight himself. The Original Tribunal found that by then the practitioner had developed some insight, but had a way to go, because of his mental state.[168] We are not persuaded there is any error here.

254. Third, the ground then refers to the practitioner conducting his defence of the LP 12 proceedings in an "unduly confrontational and aggressive" and "obstructive' manner." We have discussed a related issue extensively above at [205]-[212], and much of what we say there is relevant here. It seems that the Council is suggesting that the practitioner should have been harshly punished in these proceedings because of the conduct of seeking judicial review and the criticism of that conduct by the Court of Appeal in the LP 12 proceedings. In our view such an approach would be inappropriate and unfair. The relevance of the LP 12 proceedings is the findings made against the practitioner in the substantive proceedings, as the Original Tribunal discussed.

255. Following on from this, fourth, it is then said that the practitioner maintained his denial of wrongdoing in the LP 12 matter until after the Tribunal's finding against him in its decision on liability. Again it seems that the Council is suggesting that the practitioner should be harshly punished in these proceedings because he disputed the complaint against him in in the LP 12 proceedings. In our view, that would also be inappropriate and unfair. To begin with, we note that the original five charges in the LP 12 proceedings were amended a number of times, and in the end only two were made out.[169] It is unclear why this occurred, but at very least it indicates that as a matter of fact, leaving aside fundamental legal principle, the practitioner had some basis for disputing the charges. But further, in our view, it would be inappropriate and unfair to impose a harsh penalty on the practitioner in these proceedings on the basis that he defended himself against complaints in the LP 12 proceedings before there was a finding by the Tribunal. Again, the relevance of the LP 12 proceedings is the findings made against the practitioner in the substantive proceedings, as the Original Tribunal discussed.

256. In relation to the issues discussed in paragraphs [254] and [255], even if we are completely wrong about these issues, and somehow the fact of bringing judicial review proceedings and being criticised by the Court of Appeal for doing so in LP 12, and disputing the complaint against him before a decision of the Tribunal was made, are a relevant factor in favour of imposing a harsh penalty on the practitioner in these proceedings, we now know that the practitioner has been diagnosed with having a major depressive disorder with moderate to severe symptoms, and it is likely that he had depression to some extent at the time of the relevant parts of the LP 12 proceedings. If there was any poor decision-making by the practitioner in relation to the LP 12 proceedings, his mental health may well have played a role in this, as the Original Tribunal found it did in the acts at issue in these proceedings.

257. Fifth, the Council alleges that the practitioner still had quite limited and questionable insight at the time of the penalty hearing. This seems to be a reference to the discussion in the LP 12 penalty decision at [23]-[31].[170] But the Original Tribunal specifically considered this at paragraph [179].

258. In our view there is no error disclosed in the Original Tribunal's approach to these issues.

Ground 3(c) - did the Law Society share the blame for the delay in determining LP 12?

259. We have outlined the history of the LP 12 matter above at [37]-[38] and [237]. The Original Tribunal said of this history that the relevant conduct occurred many years ago, that it was extremely unsatisfactory that the LP 12 proceedings had only just been finalised, and that "no doubt the practitioner might take the blame for part of this but there is more blame to be shared".[171] The Original Tribunal had earlier stated at paragraph [70] that, while it was not possible to unpick the reasons for delay, "the time between the events and the initial application arguably does not reflect well on those bringing it either."[172]

260. The Council argues in ground 3(c) that the Original Tribunal wrongly and without a proper basis, found that the Law Society shared the blame with the practitioner for the delay in the conclusion of the matter (at [160]) when that was neither correct, nor relevant.

261. As to whether it is correct, the LP 12 proceedings were commenced on 20 July 2016 in relation to conduct in June and July 2011. The Council was the moving party. This is a significant delay. In the material before us, no explanation for this delay was provided to the Original Tribunal. It was reasonable in our view for the Original Tribunal to take the view that some responsibility, that is blame, for the delay rested with the Council. The Supreme Court took a similar view.[173]

262. The Council now states in submissions to this Appeal Tribunal that, while the Original Tribunal found that the application to ACAT in LP 12 was not made until July 2016, this is wrong, and that there was an initial application about two years earlier which was withdrawn or discontinued while under judicial review challenge. It was said: "This was due to an accidental failure to afford procedural fairness to the respondent (the evidence briefly touched on these earlier proceedings: AB 25 lines 10-30)."[174] In correspondence with the Tribunal the Council confirmed that the reference to AB 25 was wrong, and it should have been to AB 98 lines 10-30.[175] This is a reference to cross-examination of the practitioner before the Original Tribunal about his costs in the LP 12 matter. There is mention here of "earlier proceedings", which we take to mean that they were related to LP 12, "where ... [the practitioner] succeeded ultimately before Burns J"[176] and apparently obtained a costs order and presented a bill of costs to the Law Society. There were some questions about those costs. There is no further information about what those proceedings were about.

263. The Council's submission that there had been "an accidental failure to afford procedural fairness"[177] was made without any evidentiary basis in these proceedings or, on the evidence before us, the Original Tribunal proceedings. Accepting none-the-less for this limited purpose the correctness of the submission, we note the asserted ability of the Council to excuse itself of the consequences of its own unlawful acts, a privilege not accorded to the practitioner. Leaving this to one side, what little we know of these earlier proceedings is that the practitioner was successful and obtained a costs order on the basis that the Council failed to afford procedural fairness, that is it acted unlawfully. Whatever delay these earlier proceedings occasioned, it is hard to see that the practitioner was to blame, since it seems he was simply successfully enforcing his legal rights in relation to the proceedings.

264. There was evidence that the Council contributed to the delay in the LP 12 proceedings. The comments in the Original Decision were reasonable. No error was made. We do not see how this is relevant to the appeal.

265. The Council also alleges in ground 3(c) that the Original Tribunal "wrongly conflated (J [70]) the question of delay with the vigorous denial, and contesting by the practitioner, of the charges until at least the Tribunal's finding of liability."[178] It needs to be remembered that paragraph [70] of the Original Decision is principally summarising the evidence of the practitioner (see the heading before paragraph [62]). The focus of this paragraph is the impact of the LP 12 proceedings on him. It is unclear precisely where it is said the conflation takes place, but in the absence of any assistance we assume this is alleged to arise from the sentence: "Some aspect of the Council's submission sought to assert that he was to be seen as being dishonest over a long period of time because of his resistance to owning up to the initial charge." This is a very brief summary of some of the arguments of the Council. No basis is provided for saying it is incorrect. In our view there may be a better way of providing such a brief summary, but it is a reasonable one and reveals no error.

266. The Original Tribunal then went on to make comments about the delay, apparently following up the reference to "long period of time" in relation to his resistance, which in turn was made in the context of the summary of the practitioner's evidence in this paragraph [70] that the LP 12 matter had been hanging over his head for six years which was distressing and devastated him and his family. We do not see how it can be an error of law to discuss the delay in this context. The Original Tribunal discussed the criticisms of the Court of Appeal elsewhere.[179]

267. The Original Tribunal concluded by stating that, in any event, the practitioner's evidence as to the effect of the LP 12 proceedings on him was not challenged and was consistent with common experience. The discussion at [70] of the Original Decision was focussed on this issue. The issues raised by the Council are minor, immaterial and irrelevant to this issue. No error is established.

Ground 3(d) - was the behaviour the subject of LP 12 different from the behaviour at issue here?

268. Ground 3(d) was that the Original Tribunal wrongly held (at the conclusion of paragraph [160]) that the difference between the dishonesty in LP 12 and in the present case was a factor in the practitioner's favour.

269. What the Original Tribunal said was that the initial dishonesty in the LP 12 matter "was very different from the conduct here." That seems to be correct. The Council said that, as both involved deception, to that extent they are not different. With respect this is a false logic. At a high level of generality things can be the same, even though they have many significant differences. We discuss the nature of the complaint in LP 12 at [273] below, and in these proceedings at [20]-[41] above. We think that there is no error in saying that the LP 12 events and the events at issue here were very different.

270. The Council said that any such difference should have counted against the practitioner, or in any event, not assisted him. In the Council's submissions this ground is simply restated without reference to evidence or further reasoning. A reference to the Solicitor's Manual is provided.[180] This states, in summary, that where there is previous proven misconduct a tribunal may legitimately conclude that the lawyer has not learned from these previous indiscretions. It is said that this does not mean that a lawyer is repeatedly disciplined for the same misconduct, but that findings of misconduct must be viewed in the context of the earlier findings, especially those of a similar nature. However, it is later said that the fact that the subsequent misconduct is different in nature says little in the lawyer's favour, especially where it is serious and persistent and reveals that the previous penalties had little deterrent effect. This can all be accepted, but it clearly gave the Original Tribunal significant room to exercise discretionary judgment, as he did in this case.

271. In paragraph [160], the Original Tribunal drew on a number of other factors as to why the LP 12 is of limited assistance in this matter. First, the conduct in issue in LP 12 occurred many years ago. This is correct. Second, there was delay in resolution of the complaint. This is also correct. Third, the Original Tribunal found unpersuasive the Council's submission that the practitioner's action at issue in LP 12 "was turned into some persistent course of conduct because it was fought so hard by the practitioner". We have also found the position of the Council to be unpersuasive, indeed inappropriate and unfair, and the position of the Original Tribunal to be reasonable and involving no error. These factors support the position of the Original Tribunal on the relevant issue, in addition to the finding that the "initial dishonesty" in LP 12 was very different from the conduct here. Further, we note again that the relevant issue here is whether the practitioner's mental illness affected his conduct and supports a penalty of suspension with conditions rather than removal from the roll.

272. In our view it was open to the Original Tribunal to find that the initial dishonesty in LP 12 was very different from the dishonesty in this case. Of course the Council and others may take a different view. It was also open to the Original Tribunal to take the view that the dishonesty in LP 12 did not compel removal from the roll here. Again the Council and others may take a different view. But no material error is involved in the Original Tribunal's findings.

Ground 3(e)(i) - were the relevant fees in the LP 12 matter reasonable but for the agreement?

273. In ground 3(e) it is said that the Original Tribunal made two factual errors about LP 12. The first was the comment in paragraph [56], after stating the amount of money involved was not large, that the amount would have been "reasonable but for an agreement to give a discount." In summary terms, drawn from the various LP 12 decisions, several claims were made for compensation by a client of the practitioner. Some of them were transferred from Firm B to the practitioner's firm, called 'Firm A', where the practitioner took them over. The claims were settled and the legal fees were said by the practitioner to be about $47,000 including all disbursements and firm B's fees, for claims which were settled in total for about $352,000. The client sought a reduction of the legal fees of $5,000, in particular in relation to the fees for firm B, and agreed to pay an amount of $42,000. The practitioner in fact disbursed about $47,000 as legal fees. This was done by various transactions in August and September 2011 and when the client noticed that the fees amount exceeded $42,000, he complained to the practitioner in October 2011.[181]

274. In the disciplinary proceedings, there was no allegation that the fees of $47,000 were unreasonable. The allegations were rather that they were disbursed contrary to the client's instructions and amounted to a misappropriation from the client of about $5,000. The Original Tribunal could have been more precise with the summary of the situation, and perhaps said that there was no allegation that the fees were unreasonable, rather the allegation was that the agreement as to fees had not been complied with. But we do not think the less precise summary formulation used amounts to a material error.

Ground 3(e)(ii) - was there deception in the LP 12 conduct?

275. The second alleged error was said to be the Original Tribunal's statement that there was "no deception involved as the client was under no misapprehension that it had happened" (at paragraph [56]). The Council argued that the practitioner had effected the transfer without the client's knowledge or consent, and the client only discovered the excessive transfer after it had happened. This is correct, as we have set out above.

276. The Original Tribunal stated that it was conceded by the practitioner that the conduct was dishonest, and he was dealt with for that matter. But deception is different, and is generally defined as "misleading by deliberate misrepresentation."[182] As the Council admits, the practitioner told his client about the disbursements shortly after they were made, and the client complained. The allegations were that the practitioner disbursed funds contrary to the client's instructions which amounted to a misappropriation from the client, but there was no allegation that there was deception about the payment. The Original Tribunal noted that it was not clear what the practitioner's state of mind was, but that he had a "complicated argument about what was the [costs] agreement", an argument which was not accepted by the tribunal.[183]

277. Again the Original Tribunal could have said more and perhaps been more precise. But we have concluded that there was no material error in what he said.

278. Ground 4 is that the Original Tribunal erred (at [175]) by failing to heed and apply the long line of authority that character evidence carries far less weight where the facts involve repeated dishonesty, as they did here.

279. The Council simply restated the Ground that the Original Tribunal failed to apply the long line of authority that character evidence carries less weight where the facts involve repeated dishonesty.[184]

280. The practitioner argued it was a matter of weight and therefore had little relevance to an appeal against a discretionary decision. References are a matter relevant to the determination of whether the practitioner is permanently unfit to practise.[185]

281. The Council argued in reply that this was a matter of principle, not a mere matter of weight.[186]

282. The Original Tribunal summarised the references provided in support of the practitioner at paragraphs [120] and [159] of the Original Decision (see also at [79]). He then considered the evidence that the practitioner had a mental illness, which was said to be reactive and not permanent (paragraphs [165]-[173]). He then formulated the issue as whether the practitioner had permanent character flaws that made him unfit to practise; stated that he did not think he was so fit at the time of the Original Tribunal decision; but then asked "is that a permanent situation" (at [174]). It is in this context at paragraph [175] that he said that, whilst the role of character evidence and other subjective factors (which are not specified) cannot override the need to protect the public and show the standard that the profession should aspire to, "they can where the objective facts assist in assessing the character and the flaws". He noted that he "was particularly assisted" by the letter from Mr McLean who had extensive history as a diplomat and had known the practitioner since 1989, before he came to Australia, in a professional capacity. He therefore had experience of the practitioner before the onset of his mental illness. This reference provided support for some of the comments about the practitioner's intelligence and strength character.[187] The Original Tribunal also noted here the evidence of the practitioner's work for his church and other deserving causes.

283. The Original Tribunal then went on to note at paragraph [179] that the practitioner had shown significant insight in handing back his practising certificate, and then discussed why he thought that stress and depression explained but did not excuse his actions.

284. In our view, the Original Tribunal considered various factors in deciding what the appropriate penalty should be. In particular, the Original Tribunal considered whether the practitioner's conduct was the result of permanent character flaws and the practitioner should therefore be struck off, or whether his conduct was affected by a mental illness which was not permanent and a lesser penalty should be provided.

285. We accept that there is a principle that "where the misconduct is more serious, and especially where it involved repeated dishonesty, character evidence carries far less weight".[188] But the principle contains a significant initial requirement, and even then does not suggest that no weight should be given to references. It is true that references are of more use when the referee has had dealings in a professional context and understands the practise of law.[189] Here, there were references from the practitioner's colleague, other lawyers, and Mr Maclean.

286. There is also the principle that in general removal from the roll is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration.[190] It is clear that the Original Tribunal principally relied on the evidence of Professor Stephens, the practitioner himself, and his work colleague, on this issue. But he also had regard to referees in determining whether the conduct was the result of permanent flaws or mental illness. Indeed, because of the nature of mental illness, and that sometimes as here expert evidence of the practitioner's mental state at the time he committed the misconduct is not available, referees can provide some relevant evidence of his condition before the illness. This is exactly what his work colleague and Mr Maclean did. In our view this was reasonable and in accordance with the legal principles noted.

287. We think that the Council's arguments have more strength in relation to the reference by the Original Tribunal at paragraph [175] to the considerable undisputed evidence of the commendable good work the practitioner does for his church and other deserving causes. We do not see how this supports the practitioner on the relevant issue of his mental illness and its effect. But even so, all that the Original Tribunal did was note the evidence. There is no basis for thinking this was determinative in any way, or that these references were given any more than minimal weight.

288. No material error is made out in relation to the Original Tribunal's use of character evidence.

Ground 5 - should the practitioner be removed from the roll?

289. The Original Tribunal erred, including as a consequence of the errors set out in Grounds 1 to 4, in failing to find that:

(a) the practitioner was, in light of his admitted conduct in this matter and his disciplinary history, probably permanently or indefinitely unfit to practise; and

(b) a recommendation for the removal of his name from the roll should accordingly be made.

290. Rather than constituting a separate ground of appeal, Ground 5 draws together the previous grounds of appeal in order to support the Council's submissions that the practitioner's name should be removed from the roll. In summary, the Council submitted that the Original Tribunal:

(a) failed to make a proper assessment of the sustained and dishonest nature of the conduct engaged in by the practitioner;

(b) misapplied the psychological evidence;

(c) mischaracterised the practitioner's disciplinary history; and

(d) failed to apply the principle that character evidence is of far less weight where dishonesty is involved.

291. On that basis, the Council submitted that this Appeal Tribunal should conclude that there is no proven explanation for the practitioner's conduct other than a fundamental character flaw of dishonesty. Accordingly, the appeal should be allowed with costs. The lesser order of effective suspension should be set aside and substituted by a recommendation pursuant to section 425(3)(a) of the Act that the name of the practitioner be removed from the roll.

292. The practitioner adhered to his submissions made in relation to the specific grounds of appeal.

293. The practitioner noted that the original hearing proceeded by reference to agreed facts on the basis of which the Original Tribunal was invited to make the finding that the conduct considered globally constituted professional misconduct. The live issue at the hearing was whether the admitted dishonesty, considered in the context of the antecedents of the practitioner and the evidence of him and Professor Stevens as to his history of depression, warranted a finding that he was probably permanently or indefinitely unfit to practise, thus justifying the removal of his name from the roll.

294. In relation to the appropriate order, the practitioner submitted that the outcome of the proceedings before the Original Tribunal was within a given range and was a legitimate and reasonable answer to the question asked of the Original Tribunal. In his submission, it would be wrong for the Appeal Tribunal to set aside the decision at first instance simply because another outcome may have been open.

295. Further, the practitioner noted that the orders made by the Original Tribunal placed very substantial restrictions on his right to practise. He is currently 56 years old. He will not be entitled to an unrestricted practising certificate in the ACT until June 2025 unless, before that date, the Council is of the view that he is fit to hold such a certificate. His right to apply for a restricted certificate was curtailed by time (1 July 2021) and the grant of such certificate was subject to further conditions addressed substantially at ensuring his psychological well-being.

296. For the reasons set out above, this Appeal Tribunal has concluded that no material error was made by the Original Tribunal in relation to any of the Grounds of Appeal in this case. Consequently, Ground 5 is not made out.

297. As noted earlier, the purpose of disciplinary proceedings is to protect the public, not to punish the practitioner.[191] The issue in cases such as this is what are appropriate orders to achieve that outcome. In some cases, that is the removal of a practitioner's name from the roll.

298. As the Original Tribunal recognised, the relevant general principles in deciding a statutory application for removal were set out by the Full Court of the ACT Supreme Court in Council of the Law Society of the Australian Capital Territory v Davey,[192] which quoted from the Court's judgment in Council of the Law Society of the ACT v Bandarage.[193] The Original Tribunal also referred to what the Court said in the earlier judgment in Law Society of the ACT v Powrie.[194]

299. The Original Tribunal quoted the passages in full.[195] We do not need to do so again. It is sufficient to note the following salient propositions:

(a) Under the Act, if the Tribunal finds a practitioner guilty of professional misconduct, the Tribunal may recommend that the practitioner's name be removed.

(b) A finding of professional misconduct does not, of itself, demand an order removing a practitioner's name from the roll.

(c) Removal from the roll is reserved for the most serious cases of wrong conduct, where the character and conduct of the practitioner is assessed to be inconsistent with the privileges of further practise.

(d) In general, removal is appropriate only where the underlying reason for disqualification is permanent, or at least of indefinite duration.

(e) The personal attributes of a practitioner are integral to an assessment of whether the person is a fit and proper person to practise law.

(f) Honesty and integrity are important to the practise of the law for the interests of clients, fellow practitioners, the judiciary and the public.

(g) A willingness to engage in dishonest conduct often compels a finding of unfitness to practise.

(h) A finding that a practitioner knowingly misled a court (for example, in his application for an adjournment of proceedings before that court) is one of the most serious offences that an advocate or litigator can commit.

(i) Persistent misconduct will ordinarily justify a finding of unfitness to practise.

(j) A penalty of suspension is usually inappropriate if there is a finding of unfitness to practise.

(k) Insight into previous wrongdoing is another personal attribute that is important to an assessment of whether a person is a fit and proper person to practise law (and a legal practitioner's failure to appreciate the gravity of misconduct may be indicative of unfitness to practise).

(l) It is for the practitioner to affirmatively satisfy the court that the unfitness was, or is, of limited duration.

300. The extent to which some or all of those propositions apply in a particular case will be influenced by the circumstances of that case. In the present proceedings, we are satisfied that the Original Tribunal took into account the relevant propositions and gave appropriate weight to evidence in relation to them.

301. Having concluded that the Original Tribunal made no material errors in the reasons for the Original Decision, and having considered the propositions set out above as they apply in the present case, this Appeal Tribunal is satisfied that the orders made by the Original Tribunal were supported by the evidence and did not involve an erroneous exercise of discretion. Consequently, we are not satisfied that the sanctions put in place by the Original Tribunal in relation to the practitioner should be set aside, varied or replaced.

302. As noted earlier, the Council sought an order that the practitioner pay the Council's costs of the appeal. At the conclusion of the hearing, counsel for the practitioner sought to be heard on the question of costs once the decision of this Appeal Tribunal was released.

303. We are satisfied that it is appropriate for each party to be given an opportunity to make submissions in relation to an order for costs of the appeal proceedings if they wish to do so. Accordingly, we will order that each party has 14 days within which to provide to the Tribunal and the other party any submissions it wishes to make about whether the Appeal Tribunal should make an order for costs.

304. For the reasons set out above, the Appeal Tribunal orders that:

(a) The appeal be dismissed.

(b) The parties may within 14 days make submissions in writing as to whether any other orders, including orders as to costs, should be made.

[1] Council of the Law Society of the ACT v Legal Practitioner 201920 [2020] ACAT 31 (Original Decision)

[2] This decision was previously anonymised and cited as Council of The Law Society of The Australian Capital Territory v LP 201920 (Appeal) [2021] ACAT 16 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.

[3] The definition of 'professional misconduct' in section 387 of the Legal Profession Act 2006 is set out at paragraph [69] below

[5] See the Respondents speaking notes paragraph 3; the Council's submissions paragraphs 2-5. See Original Decision at [123], [140], [174]

[6] Transcript of proceedings 14 September 2020 page 40-42

[7] Council's submissions paragraph 5; Practitioner's submissions paragraph 17

[8] Original Decision at [104], [168]-[172], [180], [182]

[9] Original Decision at [8], [62]-[90]

[10] Original Decision at [8], [103]-[119]; see also [87]-[90], [146], [165], [166], [168], [169]

[12] Original Decision at [7], [74]-[78], [159], [175]

[16] Original Decision at [91]-[102]; see also [107]

[18] Original Decision at [5], [6]; and the document titled Evidence of the Applicant not relied on and List of evidence of the respondent not read after objection annexed to the Original Decision

[21] Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52

[22] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27

[23] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60

[24] Transcript of proceedings 14 September 2020 page 26

[25] Council of the Law Society of the ACT v LP 12 [2019] ACAT 68

[26] Council of the Law Society of the ACT v LP 12 (No.2) [2019] ACAT 121

[27] Original Decision at [2], [41]

[28] Original Decision at [49], [185]

[29] Original Decision at [43], [156]

[43] Transcript of proceedings 14 September 2020 pages 4-5

[44] Respondent's submissions paragraphs 8-9

[45] House v The King (1936) 55 CLR 499

[46] Transcript of proceedings 14 September 2020 page 43

[47] See Council of the Law Society of New South Wales v Zhulovska [2020] NSWCA 163 at [95]- [97] per Leeming JA (Macfarlan and McCallum JJA not deciding)

[48] Norbis v Norbis [1986] HCA 17 at [4]

[50] Norbis v Norbis [1986] HCA 17 at [5]

[51] Australian Coal & Shale Employees Federation v Commonwealth [1953] HCA 25; (1953) 94 CLR 621 page 627

[52] Respondent's submissions paragraph 11

[53] [2019] ACTSCFC 2

[54] Legal Profession Complaints Committee v Bower [2019] WASC 281 at [38]

[55] Legal Profession Complaints Committee v Bower [2019] WASC 281 at [42]

[57] Wentworth v New South Wales Bar Association [1992] HCA 24; (1992) 176 CLR 239 page 251

[58] The numbers cited in each ground refer to numbered paragraphs in the Original Tribunal's reasons for decision.

[61] Practitioner's affidavit dated 17 February 2020 at paragraph [27], [28] at AB page 239

[62] Joint submission dated 18 December 2019 at [61] at AB page 204

[63] Transcript of AAT proceedings 14 March 2017 page 4, at AB page 320

[64] Transcript of AAT proceedings 14 March 2017 page 4 at AB page 320

[65] Transcript of AAT proceedings 14 March 2017 page 5 at AB page 321

[66] Transcript of AAT proceedings 14 March 2017 page 5 at AB page 321

[67] Transcript of AAT proceedings 14 March 2017 page 8 at AB page 324

[73] Original Decision at [156]; see also at [147]

[82] See Original Decision at [125]-[127]

[84] Original Decision at [46], [47], [49]-[51]; See also at [125]-[127]

[85] Original Decision at [49]; See also at [176]

[86] Original Decision at [46], [47], [49]-[51], [125]-[127], [176]

[88] See Joint Submission at paragraph 63

[89] The Original Tribunal wrote: "The later events occurred when the LP 12 matter had proceeded further, and costs were blowing out. They are bizarre on their face and are explicable in the way Professor Stevens explains."

[91] Joint Submission, which is attached to the Original Decision

[98] Report of Professor Stevens at AB pages 291-299, especially page 291; transcript of proceedings 26 February 2020 pages 47-48 at AB 120-121; Original Decision at [103]-[119], [168]-[171]

[99] Statement of the practitioner at AB pages 232-263; Original Decision at [168]; see also at [173]

[100] Statement of ZC at AB pages 264-285; Original Decision at [91]-[101], [167]

[101] Original Decision at [168], [172]; transcript of proceedings 14 September 2020 page 19

[102] Transcript of proceedings 26 February 2020 page 37 at AB page 110

[103] Original Decision at [165],[112]-[119]

[104] Report of Professor Stevens at AB pages 291-294; transcript of proceedings 26 February 2020 page 37 at AB page 110

[105] Report of Professor Stevens at AB pages 291-292

[106] Transcript of proceedings 26 February 2020 page 46 at AB page 119

[107] Transcript of proceedings 26 February 2020 page 48 at AB page 121

[108] Affidavit of 17 February 2020 at AB page 244; Report of Professor Stevens at AB page 294

[109] Affidavit of 17 February 2020 at AB pages 264, 265-268; Original Decision at [91]-[102], [167]

[112] Original Decision at [59], footnote 16

[115] Report of Professor Stevens at AB pages 291, 292, 294, 295, 297

[116] Affidavit of 17 February 2020 at AB pages 264-268; Original Decision at [95]-[98], [167]

[118] Original Decision at [168]-[172]

[119] Report of Professor Stevens at AB page 292

[121] Transcript of proceedings 14 September 2020 page 22

[123] Appellant's submissions paragraphs 51-55

[124] Respondent's submissions paragraphs 38-39

[126] Report of Professor Stevens at AB pages 291, 294, 297

[127] Transcript of proceedings 14 September 2020 page 5

[128] Report of Professor Stevens at AB page 293

[129] Transcript of proceedings 26 February 2020 at AB pages 101-103

[130] Report of Professor Stevens at AB page 292

[131] Statement of the practitioner at AB page 250

[133] Gino E Dal Pont, Solicitor's Manual, Lexis Nexis Australia online, last updated 2019 (Solicitors Manual), as provided to the Tribunal by the Council's solicitors, at [33,095.5] and [33.095.10]

[134] The Tribunal notes this quote appears at [56] of the Court of Appeal decision and the Original Decision at [60]

[136] Appellant's submissions at paragraphs 56-58

[137] Respondent's submissions at paragraph 40

[138] Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52

[139] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60

[140] Practitioner's statement of 17 February 2020 at AB page 244; Original Decision at [61], [70]

[141] Transcript of proceedings 14 September 2020 page 40

[142] Transcript of proceedings 14 September 2020 page 24

[144] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27

[145] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60

[146] Transcript of proceedings 14 September 2020 page 26

[147] Transcript of proceedings 26 February 2020 page 48 at AB page 121

[148] Statement of the practitioner on 17 February 2020 at AB page 244

[150] Statement of the practitioner on 17 February 2020 at AB 264; Original Decision at [95]-[97]

[151] Appellant's submissions at paragraphs 59; Appellant's submissions in reply at paragraphs 19-21

[152] Respondent's submissions at paragraph 41

[154] Council of the Law Society of the ACT v Legal Practitioner 12 [2017] ACAT 52

[155] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27

[156] The Council of the Law Society of the Australian Capital Territory v LP 12 [2018] ACTCA 60

[157] Council of the Law Society of the ACT v LP 12 [2019] ACAT 68

[158] Council of the Law Society of the ACT v LP 12 [2019] ACAT 121

[159] Appellant's submissions at paragraphs 60-72; Appellant's submissions in reply at paragraphs 23-28

[160] Respondent's submissions at paragraphs 42-46

[161] Original Decision at [53]; LP 12 penalty decision at [19]

[162] LP 12 penalty decision at [19]

[163] Respondent's submissions at paragraph 43

[164] LP 12 penalty decision at [33]

[166] Appellant's submissions at paragraphs 62-63; Appellant's reply at paragraphs 23-24

[169] LP 12 misconduct decision at [2]-[4], [47]

[170] Appellant's submissions at paragraph 66

[172] Original Decision at [70], [160]

[173] LP 12 v The Council of the Law Society of the ACT [2018] ACTSC 27 at [83]- [84]

[174] Appellant's submissions at paragraph 67

[175] Email dated 13 January 2021 from McInnes Wilson Lawyers

[176] Transcript of proceedings 26 February 2020 page 25 at AB page 98

[177] Appellant's outline of submissions at [67]

[180] Solicitor's Manual at [30,070.10]

[181] LP 12 misconduct decision at [6]-[17]; LP 12 Supreme Court decision at [84]

[182] Lexis Nexis Concise Australian Legal Dictionary (4th edition, 2011)

[183] Original Decision at [55], footnote 11; see also Council of the Law Society of the ACT v LP 12 [2019] ACAT 68 at [27]- [32]

[184] Council's submissions at paragraph 73

[185] Practitioner's submissions at paragraph 47

[187] Letter from Murray McLean dated 16 January 2020 at AB 305-308; see Original Decision at [74], [159]

[188] Solicitors Manual at [33,090.15]

[189] Solicitors Manual at [33,090.20]

[190] Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [149]

[192] Council of the Law Society of the Australian Capital Territory v Davey [2019] ACTSCFC 2 at [13]

[193] Council of the Law Society of the ACT v Bandarage [2019] ACTSCFC 1 at [137]

[194] Law Society of the ACT v Powrie [2017] ACTSCFC 4 at [88]

[195] Original Decision at [46], [123], [125]