Council of the New South Wales Bar Association v Berwick

reasons for decision

1. On 2 April 2015, the Council of the New South Wales Bar Association (the Council) filed in the Tribunal an application (the application) for disciplinary findings and orders. The application sought the following orders against John Patrick Berwick (the barrister): 1. an order that the barrister by his conduct referred to in the grounds detailed in the application, engaged in unsatisfactory conduct and/or professional misconduct; 2. such orders under s562 of the Act as the Tribunal thinks fit; 3. an order that the barrister pay the Council's costs of the proceedings, as agreed or assessed; and 4. orders pursuant to s573 of the Legal Profession Act 2004 (NSW) (the Act) that the barrister: (a) repay to Mr Fahmid Rahman the amount of $33,000 paid to the barrister on or about 25 June 2012 and 12 July 2012; (b) pay compensation to Mr Rahman in the sum of $26,942.50 being legal fees paid or payable by Mr Rahman to legal practitioners acting on his behalf in relation to an Application in the Case filed by the Commonwealth of Australia (as represented by the Australian Taxation Office) in Federal Magistrates Court Proceedings SYG 842/2011 on 27 July 2012; and (c) pay compensation to Mr Rahman in the sum equivalent to the amount payable by Mr Rahman to the Commonwealth of Australia (as represented by the Australian Taxation Office) pursuant to interlocutory orders made by the Federal Circuit Court of Australia in Proceedings SYG 842/2011 on 12 July 2013 ([2013] FCCA 388).
2. The barrister filed a reply which comprised 17 pages and replied in detail to the allegations made in the application. The barrister denied that he had engaged in unsatisfactory conduct and/or professional misconduct upon which any orders for compensation pursuant to s573 of the Act could be based (par 6 of the reply). He denied that by his conduct pleaded in pars 29 - 43 of the application, he engaged in unsatisfactory professional conduct (par 36 (b) of the reply). He denied that by his conduct pleaded in pars 63, 64 and 65 of the application, he engaged in unsatisfactory professional conduct (par 54 (b) of the reply). He denied that by his conduct pleaded in pars 62, 64 and 65 of the application, he engaged in unsatisfactory professional conduct (par 55 (b) of the reply). He denied that by his conduct pleaded in par 68 of the application, he engaged in unsatisfactory professional conduct (par 57 (b) of the reply). He denied that by his conduct pleaded in pars 7 - 69 of the application, when considered as a whole, he engaged in professional misconduct and/or unsatisfactory professional conduct (par 58 (a) of the reply). In response to Mr Rahman's claim for compensation orders pursuant to s573 of the Act as a whole, he relied on a number of facts and assertions which included a denial that he had engaged in unsatisfactory conduct and/or professional misconduct upon which any orders for compensation pursuant to s573 of the Act could be based (par 66 (b) of the reply). He also denied that in the absence of a finding of unsatisfactory conduct and/or professional misconduct, the Tribunal had jurisdiction to make a compensation order (par 66 (b) of the reply).
3. In support of the application, the Council filed affidavits, including an affidavit of Mr Rahman. No affidavits were filed by the barrister.
4. On 6 May 2016, there was filed in the Tribunal an instrument of consent made pursuant to s564 of the Act signed by the solicitor for each of the Council and the barrister and signed by the Legal Services Commissioner.
5. That instrument sought consent orders and findings as follows: 1. A finding that the barrister engaged in professional misconduct by his conduct set out in pars 42 and 81 of the instrument. 2. A finding that the barrister engaged in unsatisfactory professional conduct by his conduct set out in par 82 of the instrument. 3. An order pursuant to s562 (2) (e) of the Act that the barrister be publicly reprimanded. 4. The barrister pay the Council's costs of the proceedings including costs of the hearing before the Tribunal, agreed in the sum of $70,000 inclusive of all costs, disbursements and counsel's fees. The Tribunal was asked to note the barrister's undertaking to the Tribunal, the Legal Services Commissioner and the Council that he would not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future.
6. For the reasons set out below the Tribunal proposes to make the findings and orders set out in the instrument and note the respondent's undertaking.

The complaint

1. By letter to the New South Wales Bar Association dated 12 June 2013, a solicitor Mr Seyfi Atila, made a complaint about the barrister on behalf of Mr Fahmid Rahman.
2. On 13 June 2013, the Council forwarded the complaint to the Legal Services Commissioner pursuant to s505 of the Act. Pursuant to s513 of the Act, the Commissioner referred the complaint to the Council. The Council delegated the investigation of the complaint to a Professional Conduct Committee pursuant to s696 (2) of the Act. Following completion of that investigation, the Council resolved that a number of grounds of complaint be referred to the Tribunal. As a result of that resolution, the application was filed in the Tribunal.
3. As the barrister has given his consent in the written instrument, the Tribunal may make orders under Part 4.8 of the Act without conducting a hearing in relation to the complaint (s564 (1) of the Act).
4. Although the Act was repealed, with effect from 1 July 2015, the complaint is to continue to be dealt with in accordance with the provisions of the Act (Legal Profession Uniform Law (NSW), Sch 4 clause 26; Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152 at [41] - [49]).

The instrument of consent

1. Paragraph 3 of the instrument summarised the grounds of the application. The summary was to the following effect: 1. Ground A: the barrister's receipt of two payments of trust money from Mr Rahman in June and July 2012 in contravention of s 252 of the Act, before completing the work for which the moneys had been paid in advance and without issuing a bill. 2. Ground B: the barrister's failure to advise in relation to deficiencies in the statement of claim filed in the proceedings before he was briefed to appear for Mr Rahman and his failure to rectify those deficiencies in an amended statement of claim drafted by him. 3. Ground C: the barrister's failure to undertake the work necessary for the hearing of an application filed by the ATO for summary dismissal of the proceedings and his failure to appear at the hearing of that application. 4. Ground D: the barrister's delay in paying the ATO's costs that he was ordered to pay personally as a result of his failure to appear at the hearing of the summary dismissal application (those costs were not paid until approximately four months after they were assessed). 5. Ground E: the barrister's delay in providing an itemised bill requested on 10 December 2012 until 24 January 2013, in circumstances where he had received payment in June and July 2012. 6. Ground F: the barrister's overcharging Mr Rahman.
2. Paragraph 4 recorded that no resolution had been reached between the barrister and Mr Rahman regarding his claim for compensation pursuant to ss 570 to 573 of the Act and that the Legal Services Commissioner, the Council and the barrister had agreed to dispose of the proceedings, with the exception of Mr Rahman's claim for compensation pursuant to ss 570 - 573 of the Act, on the terms set out in the instrument.
3. Paragraph 5 recorded that the Council and the barrister had agreed to the facts following subject to the Tribunal making orders sought by the Council and the barrister in the instrument.
4. Paragraph 6 recorded that if the Tribunal determined that it would not make the orders sought by the parties in the instrument, the parties reserved their rights to maintain their respective positions.
5. Paragraphs 7 - 42 set out an agreed statement of facts for Ground A. For present purposes those facts can be summarised as follows: 1. The barrister is, and was at all material times, an Australian lawyer within the meaning of s 5 of the Act, having been admitted to the Supreme Court Roll of Barristers (as it then was) in New South Wales on 2 August 1991. He was also at all material times an Australian legal practitioner within the meaning of s 6 of the Act, having been first issued with a barrister's practising certificate on 26 August 1991 and having held a barrister's practising certificate at all times thereafter until 30 June 2014. 2. On 2 May 2011, Mr Rahman commenced proceedings in the Federal Magistrates Court of Australia and on 1 August 2011 filed a statement of claim in those proceedings. In or about May 2012 Mr Atila took over the conduct of the proceedings as solicitor for Mr Rahman. In or about May 2012 he briefed the barrister to appear for Mr Rahman at the hearing of the proceedings, which was then listed for four days commencing on 17 July 2012, and to advise on matters relevant to protecting Mr Rahman's interests. The barrister's brief was terminated on or about 10 December 2012. 3. On 18 June 2012, the barrister sent Mr Atila an offer to make a costs agreement. That document set out the barrister's estimate of the likely amount of legal fees and costs to be charged by him for work relating to the proceedings as $70,000 (plus GST). The document included an offer by the barrister to reduce his estimate to $30,000 (plus GST) if that amount were paid to the barrister one week before the first day of the hearing. The costs document included other provisions one of which was that any bill for work performed must set out the work done and the fee charges. 4. Paragraph 18 stated: "On or about 18 June 2012, the barrister told Mr Rahman and Mr Atila that he would not charge more than his reduced estimate so that his fees were capped at $30,000 (plus GST) if that amount was paid one week before the first day of the hearing." 5. Mr Atila accepted the barrister's offer to enter into a costs agreement contained in the costs document by continuing to instruct the barrister in the proceedings after 18 June 2012. 6. Paragraph 20 stated: "On or about 25 June 2012 Mr Rahman paid the barrister $25,000 (the First Payment)." 7. Paragraph 21 stated: "On or about 26 June 2012, the Respondent deposited (or caused or allowed to the deposited) the First Payment in a National Australia Bank mortgage account held by the Respondent and Dr Devleena Ghosh (the Mortgage Account)." 8. Paragraph 22 stated: "The deposit of the First Payment into the Mortgage Account immediately reduced the debit balance of that account." 9. At the time of receiving the First Payment, the barrister was acting for Mr Rahman in the proceedings on instructions from Mr Atila. 10. The barrister did not issue a bill to Mr Rahman or Mr Atila before receiving the First Payment and he kept no record of the time he spent working on the proceedings during the period up to 25 June 2012. 11. The First Payment was trust money within the meaning of Part 3.1 of the Act. Regulation 106A of the Legal Profession Regulation 2005 (NSW) did not apply because the barrister was instructed by a solicitor. The barrister received the First Payment and applied it to reduce the debt balance owing on the Mortgage Account in breach of s 252 of the Act. 12. Paragraph 29 stated: "On or about 12 July 2012, Mr Rahman paid the barrister $8,000 (the Second Payment)." 13. Paragraph 30 stated: "On or about 13 August 2012, the Respondent deposited (or caused or allowed to be deposited), the Second Payment in the Mortgage Account." 14. Paragraph 31 stated: "The deposit of the Second Payment into the Mortgage Account immediately reduced the debit balance of that account." 15. At the time of receiving the Second Payment, the barrister was acting for Mr Rahman in the proceedings on instructions from Mr Atila. The barrister did not issue a bill to Mr Rahman or Mr Atila before receiving the Second Payment. The barrister kept no record of the time he spent working on the proceedings during the period up to 12 July or during the period up to 13 August 2012. The Second Payment was made by Mr Rahman and accepted by the barrister, as part payment of the barrister's capped fee referred to above in advance of the hearing of the proceedings. 16. The Second Payment was trust money within the meaning of Part 3.1 of the Act and the barrister received it and applied it to reduce the debit balance owing on the mortgage account, in breach of s 252 of the Act. 17. On or about 10 December 2012, Mr Atila and Mr Rahman requested the barrister to provide an itemised bill for his fees. The request was repeated on 21 December 2012, 7, 9, 11 and 17 January 2013. The barrister first provided a bill for his fees on 24 January 2013. The itemised bill included charges for 44.75 hours' work that the barrister claimed he had performed on 18 June 2012. 18. Paragraph 42 stated: "By accepting the First and Second Payments, each of which was trust money within the meaning of Part 3.1 of the Act and which together comprised payment in advance of the hearing of the whole amount of the Respondent's capped fee referred to in paragraph 18 above, and receiving those trust moneys (as referred to in paragraphs 20 - 22 and 29 - 31 above) before completing the work for which the trust moneys were paid and before issuing any bill, the Respondent engaged in professional misconduct within the meaning of s 497 of the Act."

Disputed facts Ground A

1. Paragraphs 43 - 46 of the instrument of consent set out disputed facts for Ground A. For present purposes they can be summarised as follows: 1. The barrister claims that, at the date of the First Payment he was entitled to charge and receive payment of fees in relation to the proceedings in the sum of approximately $22,800 (plus GST). 2. The barrister claims that at the date on which the Second Payment was made, he was entitled to charge and receive payment of fees in relation to the proceedings in the sum of approximately $26,050 (plus GST). 3. The barrister denies that, on the date on which the Second Payment was credited to the mortgage account, he was not entitled to charge and receive payment of fees in relation to the proceeding in the sum of approximately $33,000 (including GST). 4. The Council denies that the barrister's claims in par 16 (1) and (2) above and does not accept the barrister's denial in par 16 (3) , on the following grounds: 1. the barrister did not issue a bill to Mr Rahman or Mr Atila before receiving the First Payment; 2. the First Payment was made by Mr Rahman and accepted by the barrister, as part payment of the barrister's capped fee referred to in par 15 (3) above in advance of the hearing of the proceedings; 3. the barrister kept no record of the time he spent working on the proceedings during the period up to 25 June 2012; 4. the barrister did not issue a bill to Mr Rahman or Mr Atila before receiving the Second Payment; 5. the Second Payment was made by Mr Rahman and accepted by the barrister, as part payment of the barrister's capped fee referred to in par 15 (3) above in advance of the hearing of the proceedings ; 6. the barrister kept no record of the time he spent working on the proceedings during the period up to 12 July 2012 or during the period up to 13 August 2012; and 7. the barrister's itemised bill issued on 24 January 2013, which the barrister said in par 56 of his reply that he prepared after he took time to "reconstruct his approach to the brief", included in the bill charges for 44.75 hours' work allegedly performed on one day. The Council infers from this that the barrister did not recall as at January 2013 (and still does not recall) the time that he spent working on the proceedings during the period up to December 2012.

Agreed Statement of Facts - Ground B

1. Paragraphs 47 - 59 of the instrument of consent set out an agreed statement of facts for Ground B. For present purposes those facts can be summarised as follows: 1. The statement of claim filed in the proceedings pleaded that Mr Rahman's employer, the Australian Taxation Office (ATO), had breached: 1. the express or implied terms of the employment contract; 2. its duty of care; and 3. ss 340, 341, 342, 345 and 351 of the Fair Work Act 2009 (Cth) (the FW Act). 1. The statement of claim was not drafted by the barrister. 2. The FW Act commenced on 1 July 2009. Paragraphs 50 and 51 set out relevant parts of sections of the FW Act. 3. Paragraph 52 stated that the statement of claim was deficient in that: (a) it did not plead any "workplace right" of Mr Rahman within the meaning of s 341 of the FW Act; (b) it did not plead any "adverse action" within the meaning of s 342 of the FW Act allegedly taken by the ATO against Mr Rahman because Mr Rahman had a workplace right, had or had not exercised a workplace right or proposed to exercise or proposed not exercise a workplace right; and (c) it did not plead any "adverse action" within the meaning of s 342 of the FW Act allegedly taken by the ATO against Mr Rahman on any one or more of the grounds referred to in s 351 of the FW Act. 4. By reason of those deficiencies, the statement of claim did not disclose a reasonably arguable cause of action for contravention of the FW Act. 5. The scope of the barrister's brief included advising on matters relevant to protecting Mr Rahman's interests. 6. On 18 July 2012, an amended statement of claim drafted by the barrister in consultation with, and on instructions from Mr Atila, was filed in the proceedings. 7. The amended statement of claim relied on acts allegedly committed by the ATO prior to the commencement of the FW Act as constituting "adverse action" within the meaning of s 342 of the FW Act, but suffered from the same deficiencies as the statement of claim as referred to in par 17 (4) and (5) above and so did not disclose a reasonably arguable cause of action for the contravention of the FW Act. 8. The barrister failed to rectify the deficiencies referred to above when drafting the amended statement of claim and failed to advise Mr Rahman (or Mr Atila) of the deficiencies in the statement of claim and amended statement of claim.

Disputed Facts - Ground B

1. Paragraph 60 of the instrument of consent set out claims by the Council to the effect that the reliance on acts allegedly committed by the ATO prior to the commencement of the FW Act as constituting "adverse action" within the meaning of s 342 of the FW Act was unreasonable in the face of the transitional provisions .
2. The barrister denied those further claims of the Council and set out his reasons which were to the effect that acts allegedly committed by the ATO prior to the commencement of the FW Act constituted a continuous course of conduct which arguably overcame the difficulty with events occurring before the commencement of the FW Act being non-justiciable. The barrister also contended that based on prevailing authority at the time the amended statement of claim was filed, it disclosed a reasonably arguable cause of action for breach of contract based on an implied term of trust and confidence separate to the alleged breaches of the FW Act and that events that occurred before the introduction of the FW Act were relevant to the alleged breach of an implied term of trust and confidence justiciable pursuant to the accrued jurisdiction of the court.

Agreed Statement of Facts - Ground C

1. Paragraphs 62 - 68 of the instrument of consent set out an agreed statement of facts for Ground C. For present purposes those facts can be summarised as follows: 1. On 27 July 2012, the ATO filed an Application in a Case in the proceedings seeking orders for summary dismissal of all or part of the proceedings (the Summary Dismissal Application). 2. On 1 August 2012, the barrister appeared at an interlocutory hearing in the proceedings at which the court made orders in relation to the Summary Dismissal Application which included that it be listed for hearing on 3 December 2012 at 10.15am. 3. During the period between 1 August 2012 and 8 October 2012, the barrister rescheduled conferences scheduled with Mr Atila for the purpose of drafting or settling Mr Rahman's evidence in relation to the Summary Dismissal Application, with the result that no such conference occurred prior to 8 October 2012. 4. On or about 23 November 2013 the barrister settled submissions drafted by Mr Atila on behalf of Mr Rahman in relation to the Summary Dismissal Application and undertook to Mr Atila to provide supplementary submissions in relation to the question whether a claim could be made under the FW Act in respect of the alleged conduct prior to the commencement of the FW Act (the retrospectivity issue). 5. The barrister failed to provide supplementary submissions in relation to the retrospectivity issue prior to 3 December 2012, or at all. 6. The barrister failed to appear at the hearing of the Summary Dismissal Application on 3 December 2012. 7. On being reminded by Mr Atila on the morning of 3 December 2012 that the Summary Dismissal Application was listed for hearing that day, the barrister: 1. declined to make himself available to appear later that day if the court was prepared to adjourn the hearing to a time later than 10.15am; 2. declined to appear to make an application for an adjournment, but the barrister says that he declined to do so as it would not be an efficient use of the court's time to delay the application for an adjournment until he was in a position to attend court, when such an application could be made by Mr Atila; and 3. advised Mr Atila to apply for an adjournment on the basis that he (the barrister) should pay the ATO's costs incurred as a result of the adjournment personally on an indemnity basis.

Disputed Facts - Ground C

1. The barrister claims that he failed to appear at the hearing due to an erroneous assumption that he made in assuming that 3 December fell on the Tuesday rather than the Monday of that week. The Council does not accept this, noting that the barrister maintained a diary at the time in which he had entered "Rahman v ATO" for Monday, 3 December 2012.

Agreed Statement of Facts - Ground D

1. Paragraphs 70 - 73 of the instrument of consent set out an agreed statement of facts for Ground D. For present purposes those facts can be summarised as follows: 1. On 3 December 2012 the court made orders which included orders that the ATO's costs thrown away by reason of the adjournment be paid on an indemnity basis as soon as assessed and having regard to the barrister's unavailability for the hearing, those costs be borne by the barrister personally. 2. The barrister was notified of the orders on or about 4 December 2012. The ATO's costs were assessed on 9 May 2013 in the amount of $6,672.38. The barrister did not pay that amount to the ATO's solicitors until about 31 August 2013.

Disputed Facts - Ground D

1. In par 74 the barrister contended that the delayed payment to the ATO arose due to an error which occurred in late June 2013 when he initially attempting to issue a cheque to the ATO in payment of those costs.

Agreed Statement of Facts - Ground E

1. Paragraphs 75 - 78 of the instrument of consent set out an agreed statement of facts for Ground E. For present purposes those facts can be summarised as follows: on or about 10 December 2012 Mr Atila and Mr Rahman requested the barrister to provide an itemised bill for his fees in relation to the proceedings. The request was repeated on 21 December 2012, 7, 9, 11 and 17 January 2013. The barrister first provided an itemised bill on 24 January 2013. The barrister did not have a record of when he had undertaken items of work in relation to the proceedings and he was required to reconstruct his approach to the brief in order to prepare the itemised bill dated 24 January 2013, which took some time.

Agreed Statement of Facts - Ground F

1. Paragraph 79 of the instrument of consent stated that by issuing the itemised bill on 24 January 2013, the barrister: 1. Charged Mr Rahman a total amount of $33,000 (including GST) being the amount of the barrister's capped estimate of fees to be charged for all of the services in the schedule to the costs document, including the substantive hearing listed for four days, in circumstances where the barrister had failed to appear at the hearing of the summary dismissal application and the substantive hearing had not yet taken place. 2. Attributed the total amount of $33,000 (including GST) to work described as having been done on particular dates and taken specified amounts of time, in circumstances where the barrister did not have a record of when he had undertaken work. 3. Charged Mr Rahman for a total of 44.75 hours of work said to have been performed on 18 June 2012.

Disputed Facts - Ground F

1. Paragraph 80 of the instrument of consent stated that the barrister says that each of the items in the itemised bill were in fact carried out by him in the course of acting for Mr Rahman but he is unable to identify the precise dates on which they were undertaken.

Agreed Statement of Facts - Grounds A to F considered as a whole

1. Paragraphs 81 and 82 of the instrument of consent set out an agreed statement of facts for Grounds A to F considered as a whole. 1. Paragraph 81 stated: "As stated in paragraph 42 above, the Respondent engaged in professional misconduct within the meaning of s 497 of the Act by accepting the First and Second Payments, each of which was trust money within the meaning of Part 3.1 of the Act and which together comprised payment in advance of the hearing of the whole amount of the Respondent's capped estimate referred to in paragraph 18 above, and receiving and depositing those trust moneys in the Mortgage Account as referred to in paragraphs 20 - 22 and 29 - 31 above, before completing the work for which the trust moneys were paid and before issuing any bill (Ground A)." 2. Paragraph 82 stated: "Further to paragraphs 42 and 81 above, the Respondent engaged in unsatisfactory professional conduct within the meaning of s 496 of the Act by: 1. failing to advise Mr Rahman of and/or rectify deficiencies in the pleadings (Ground B); 2. when the ATO filed the Summary Dismissal Application: 1. not making himself available to attend conferences for the purpose of drafting or settling Mr Rahman's evidence in relation to the application (Ground C), 2. failing to provide supplementary submissions in response to the application (Ground C); and 3. failing to appear at the hearing of the application (Ground D); 1. delay in paying the ATO's costs that he was ordered to pay personally as a result of his failure to appear on 3 December 2012 until approximately four months after those costs were assessed (Ground D); 2. delay in providing the itemised bill requested on 10 December 2012 until 24 January 2013, notwithstanding that he had received the First and Second Payments in June and July 2012 and despite numerous requests for an itemised bill (Ground E); 3. claiming in the itemised bill an entitlement to be paid $33,000 (including GST) on the basis of time-based charging in circumstances where the barrister had no record of work performed (Ground F); and 4. claiming in the itemised bill an entitlement to be paid for 44.75 hours for work allegedly performed on 18 June 2012 (Ground F)."

Disposition of the Application

1. In par 83 the Council acknowledged that there remained a dispute between the parties in relation to some factual matters relevant to Grounds A, B, C, D and F. Paragraph 84 stated that in agreeing to resolve the application on the terms set out in the instrument, the Council had regard to: 1. The extent to which the barrister had agreed to the facts relevant to Grounds A to F. 2. The time and legal costs which would be associated with proceeding to hearing in order to resolve the disputed factual matters. 3. The fact that the barrister does not currently hold a local practising certificate. 4. The fact that the barrister has offered an undertaking not to apply for a practising certificate as a barrister or solicitor in any jurisdiction at any time in the future.

Section 564 of the Act

1. Section 564 of the Act relevantly provides: (1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. … (4) This section does not apply to consent given by the practitioner unless the practitioner, the Commissioner and (if applicable) the relevant Council have agreed on the terms of an instrument of consent. (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including as to the grounds of complaint) and may contain undertakings on the part of the practitioner. … (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
2. It is our understanding that how the Tribunal should deal with s 564 applications where the parties have agreed to the Tribunal making a consent order, has not been considered by a court. However there have been many cases where a court has dealt with civil penalty proceedings where one of the parties is a regulator and the parties have agreed that the court should make consent orders or have made submissions as to an agreed amount of the civil penalty to be imposed.
3. One of those cases is Commonwealth of Australia v Director, Fair Work Building Industry Inspectorate; CFMEU v Director, Fair Work Building Industry Inspectorate (2015) 326 ALR 476 ([2015] HCA 46). There, the plurality of the High Court, French CJ, Kiefel, Bell, Nettle and Gordon JJ, contrasted civil proceedings with criminal proceedings and in pars 57 - 59 said: (57) In contrast, in civil proceedings there is generally very considerable scope for the parties to agree on the facts and upon consequences. There is also very considerable scope for them to agree upon the appropriate remedy and for the court to be persuaded that it is an appropriate remedy. Accordingly, settlements of civil proceedings are commonplace and orders by consent for the payment of damages and other relief are unremarkable. So are court-approved compromises of proceedings on behalf of infants and persons otherwise lacking capacity, court-approved custody and property settlements, court-approved compromises in group proceedings and court-approved schemes of arrangement. More generally, it is entirely consistent with the nature of civil proceedings for a court to make orders by consent and to approve a compromise of proceedings on terms proposed by the parties, provided the court is persuaded that what is proposed is appropriate. [58] Possibly, there are exceptions to the general rule. There is, however, no reason in principle or practice why civil penalty proceedings should be treated as an exception. Subject to the court being sufficiently persuaded of the accuracy of the parties' agreement as to the facts and consequences, and that the penalty which the parties proposed is an appropriate remedy in the circumstances thus revealed, it is consistent with principle and, for the reasons identified in Allied Mills, highly desirable in practice for the court to accept the parties' proposal and therefore impose the proposed penalty. To do so is no different in principle or practice from approving an infant's compromise, a custody or property compromise, a group proceeding or a scheme of arrangement. [59] It is true that there is a public interest in the imposition of civil penalties as opposed to the purely private interests which are in issue in many proceedings. But civil penalty proceedings are by no means the only civil proceedings in which the public interest is involved. Custody disputes involve the public interest. So do proceedings and schemes of arrangement. So also do taxation, customs and social security appeals, and detention orders; and examples can be multiplied. Yet in each of those cases, it is wholly unexceptionable for a court to accept an agreed submission as to the nature and quantum of relief, provided the court is persuaded that it is an appropriate remedy. Once it is understood that civil penalties are not retributive, but like most other civil remedies essentially deterrent or compensatory and therefore protective, there is nothing odd or exceptionable about a court approving an agreed settlement by civil proceeding which involves the public interest; provided of course that the court is persuaded that the settlement is appropriate.
4. The main purpose served by disciplinary proceedings against lawyers, is protective. The chief purpose served by those proceedings is protection, not punishment (Lawyers' Professional Responsibility - Dal Pont, 5th ed. See also Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 440G - 441C).
5. In Council of the New South Wales Bar Association v Butland [2009] NSWADT 177, the New South Wales Administrative Decisions Tribunal considered the operation of s 564 of the Act and some of its conclusions were that: 1. The Tribunal does not act, nor should it be seen, as merely a rubber stamp. Nonetheless, the consent of the parties and the Legal Services Commissioner are matters that deserve significant weight [29]; 2. Some guidance can be derived from cases where courts exercising regulatory or disciplinary powers are presented with joint submissions by the parties. If the necessary adjustments to the principles stated in a number of these cases are made to take into account the express statutory regime under s 564 and the particular nature of disciplinary powers exercised by the Tribunal, they provide useful guidance as to the exercise of the Tribunal's discretion.
6. In Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152, the Tribunal made reference to the High Court decision in the Fair Work Building case and concluded that the approach adopted in Butland remained applicable.
7. In our view the statements made by the plurality in the Fair Work Building case give relevant guidance to the Tribunal as to how it should exercise its discretion given by s 564. In particular we are of the view that if we are persuaded as to the accuracy of the agreed facts and consequences, and that the findings and orders which the parties propose are an appropriate remedy in the circumstances thus revealed, it is consistent with principle and highly desirable in practice for the Tribunal to accept the parties' proposal and therefore make the proposed findings and orders.

The agreed statements of facts

1. The agreed statements of facts appear to the Tribunal to be thorough and consistent. There does not appear to the Tribunal to be any reason for it to doubt the accuracy of those agreed facts and the Tribunal will proceed on the basis that they are accurate.

Professional misconduct and unsatisfactory professional conduct

1. We are of the view that the conduct referred to in par 42 of the instrument of consent means that the barrister engaged in professional misconduct within the meaning of s 467 of the Act (Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407 at [87] and [88]).
2. In our view the disputed facts on Ground A do not detract from the findings we have made in par 37.
3. We are of the view that the conduct referred to in par 81 of the instrument of consent means that the barrister engaged in professional misconduct within the meaning of s 467 of the Act (Council of the New South Wales Bar Association v Costigan).
4. In our view none of the disputed facts on any of the grounds detract from the findings we have made in par 39.

What orders should be made

1. In pars 2 and 3 of his reply, the barrister stated that he was now retired from practice and did not intend to return to practice as a barrister or as a solicitor at any time in the future. He stated that he did not renew his practising certificate for the 2015/2016 year and that he was prepared to agree in writing not to apply for a practising certificate to practise law as a barrister or solicitor at any time in the future.
2. The barrister proposes to give an undertaking to the Tribunal, the Legal Services Commissioner and the Council that he will not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future. The undertaking has an effect similar to a striking off order.
3. The Tribunal is not aware of any written undertaking given to the Tribunal and is of the view that the proposed undertaking should be in writing signed by the barrister, witnessed by his solicitor and filed in the Tribunal. The orders which the Tribunal will therefore make will be conditional upon such an undertaking being filed in the Tribunal within 21 days of the publication of the orders.
4. The parties seek an order that the barrister be publicly reprimanded. Although such an order is usually confined to findings of professional misconduct or more likely unsatisfactory professional conduct, that are insufficiently serious to merit suspension or striking off, being reprimanded remains a serious matter (Solicitors Manual - The College of Law - vol 1 [33060], F/N 1 and 3).. The situation here is that the proposed undertaking is similar to a striking off. Notwithstanding that fact, the Tribunal is of the view that a public reprimand will further emphasise the seriousness of the barrister's conduct and that as the parties seek the order, it is appropriate that a public reprimand be ordered.
5. A question arises as to whether the barrister should be fined. However in view of the proposed undertaking, the reprimand, the findings of professional misconduct and unsatisfactory professional conduct and the order for payment of the Council's costs in the sum of $70,000, the Tribunal is prepared to proceed on the basis that no fine is imposed.
6. The Tribunal is of the view that the proposed findings and orders are an appropriate remedy in the circumstances revealed by the agreed facts and that it should accept the parties' proposal and make the proposed findings and orders and they are set out in par 47 below.

Orders

1. Conditional upon the respondent signing an undertaking in writing, witnessed by his solicitor and filed in the Tribunal within 21 days of the publication of these orders, that he will not apply for a practising certificate as a barrister or as a solicitor in any jurisdiction at any time in the future, the Tribunal makes the following findings and orders: 1. The Tribunal finds that the respondent engaged in professional misconduct by his conduct set out in pars 42 and 81 of the Instrument of Consent. 2. The Tribunal finds that the respondent engaged in unsatisfactory professional conduct by his conduct set out in par 82 of the Instrument of Consent. 3. Pursuant to s 562 (2) (e) of the Legal Profession Act 2004, the Tribunal orders that the respondent be publicly reprimanded. 4. The respondent pay the applicant's costs of the proceedings, including costs of the hearing before the Tribunal, agreed in the sum of $70,000 inclusive of all costs, disbursements and counsel's fees.

Claim for compensation by Mr Rahman

1. On 23 May 2016 Mr Rahman sought an adjournment of the proceedings. The Tribunal explained to him that he had no right to seek an adjournment and that he would have an opportunity later on to appear before the Tribunal in relation to his claim for compensation. It will be necessary for that claim to be listed before the Registrar so that directions may be given for the hearing of that claim. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 23 June 2016