Council of the New South Wales Bar Association v BRJ

Respondent's submissions

1. In pars 5 - 28 of written submissions dated 19 August 2015, the respondent set out arguments as to why exceptional circumstances existed. We have taken all those arguments into account and we set out below a summary of most of them: 1. the respondent was at all relevant times suffering from severe form of anorexia nervosa; 2. the Tribunal concluded that "the respondent's psychiatric disorder caused her lateness for court" [80] and "the respondent's judgment and cognition were affected by the anorexia nervosa with the result that she did not have sufficient comprehension of her conduct nor the ability to properly reason in relation to her conduct" [84]; 3. the Tribunal held that a reprimand should not be ordered as the respondent's judgment and cognition were impaired [85]. The Tribunal implicitly recognised that these circumstances were exceptional as it stated that if the respondent had not been so impaired, a reprimand would be appropriate; 4. the Bar Council was aware that the respondent was seriously unwell at the time of the complained conduct, when it resolved to commence proceedings, and when it commenced proceedings; 5. the respondent's application for renewal of her practising certificate had been constructively refused by the Bar Council by the time it commenced proceedings in the Tribunal on 12 December 2013. She had been unable to practise since 1 July 2013 and her position was as if she had been suspended for 6 months; 6. even if her practising certificate had been renewed, public protection would have been better served by imposing medical and or other conditions on that certificate; 7. the Bar Council was not mandated to commence proceedings, but chose to do so and should bear its own costs. The Bar Council knew the respondent was seriously unwell and could have dismissed the complaint pursuant to s 511 (g) and s 539 (1) (b); 8. the Bar Council could also have chosen not to commence proceedings pursuant to s 540 of the Act. Section 540 was appropriate; 9. the public would not expect the Bar Council to prosecute a person that it knew was suffering from serious illness and who was impaired by that illness; 10. the Bar Council had only limited success as it did not receive any disciplinary orders or a declaration or reprimand, which it had sought; 11. he Bar Council as a model litigant should have known that a reprimand and disciplinary orders were inappropriate in the case of serious illness; 12. where an applicant has only limited success, it does not usually receive costs orders or receive the whole of its costs; and 13. the respondent agreed to a statement of facts to expedite proceedings and minimise Tribunal time.

History of the proceedings and of the receipt by the Bar Council of information concerning the respondent's medical condition

1. On 11 July 2013 the Bar Council resolved to commence the proceedings and they were commenced on 12 December 2013. The respondent filed a reply on 7 March 2014. On 31 March 2014 the respondent filed an affidavit sworn by her on 27 March 2014 which dealt with a range of matters relating to the proceedings and to which was attached a report from Dr Rees dated 18 March 2014.
2. In her reply the respondent admitted that she had engaged in unsatisfactory professional conduct in relation to grounds A and C in the application. She did not admit that she had engaged in unsatisfactory professional conduct in relation to ground B.
3. On 30 April 2014, the solicitor for the Bar Council wrote to the solicitor for the respondent referring to 2 emails from the solicitor for the respondent in which he indicated that the respondent proposed that the Tribunal deal with the matter without further hearing on the basis of an agreed statement of facts. The solicitor for the respondent also stated that the respondent was now reluctant to undertake a further medical assessment and considered this unnecessary in view of the report of Dr Rees dated 18 March 2014. The letter from the solicitor for the Bar Council also stated that the report of Dr Rees dated 18 March 2014 was of little (if any) assistance to the Tribunal and that the Bar Council wished to provide the Tribunal with the benefit of an expert report to be prepared by Prof Russell. The respondent later objected to being examined by Prof Russell and arrangements were made for an examination to take place by Dr Skinner.
4. On 6 May 2014 the solicitor for the respondent emailed the solicitor for the Bar Council stating that to facilitate the resolution of the matter and progress towards proceeding by way of s 564 consent orders without the need for a hearing, the respondent instructed that she wished to amend her reply to now admit ground B of the complaint.
5. On 19 May 2014 the solicitor for the respondent informed the solicitor for the Bar Council that the respondent no longer intended to rely on any medical evidence and that she thought there was no need for any medical evidence from the Bar Council. The respondent's instructions at that stage were that she did not wish to be examined by Dr Skinner. From May onwards the solicitor for the Bar Council made a number of attempts to have the respondent examined by Dr Skinner. The examination finally took place on 15 October 2014.
6. By an amended reply filed on 29 May 2014, the respondent admitted in respect of each of the 3 grounds, that she had engaged in unsatisfactory professional conduct.
7. On 3 June 2014 the solicitor for the respondent wrote to the solicitor for the Bar Council stating that the respondent admitted unprofessional conduct relating to the incidents set out in the application and that "the remaining issue was what orders the Tribunal ought to make, preferably under s 564 of the Act". The letter stated that the respondent no longer wished to press or rely on paragraphs 10 to 12 of her affidavit dated 27 March 2014 (or the further medical reports attached to that affidavit). The letter also stated that the respondent sought to have the proceedings resolved as efficiently and inexpensively as possible and to that end continued to seek the Bar Council's consent to proceed pursuant to s 564 of the Act with the intention of avoiding the need for a hearing.
8. On 5 August 2014 the solicitor for the Bar Council wrote to the solicitor for the respondent concerning a number of matters. One of them was that the solicitor for the Bar Council understood that the respondent now wished to rely on the evidence as to her medical condition contained in and annexed to her affidavit and to attend the appointment with Dr Skinner to obtain evidence, for the purpose of contending that any reprimand issued by the Tribunal in the proceedings should not be published by reason of s 581 of the Act. The letter also stated that in this case, the disciplinary action was taken against the respondent because of her conduct set out in the application; that the evidence did not establish that the respondent was unable to properly carry out the requirements of legal practice; and alternatively, the evidence did not establish that any such inability arose wholly or principally from the respondent's medical condition.
9. On 14 October 2014 the solicitor for the respondent wrote to the solicitor for the Bar Council stating that at that stage, the respondent continued to seek to rely on s 581 and intended to attend the appointment with the Dr Skinner the following day. The letter also stated that if Dr Skinner's report did not support the respondent's position then it was anticipated that the respondent would cease to rely on s 581. It was also stated that they anticipated that Dr Skinner's report would assist in achieving agreement between the respondent, the Bar Council and the Legal Services Commissioner as to the terms of the proposed instrument of consent sent to them on 23 July 2014.
10. On 31 October 2014, Dr Skinner provided to the solicitors for the Bar Council, a copy of her report of her examination of the respondent which took place on 15 October 2014. A copy of that report was attached to an affidavit sworn by Dr Skinner on 3 November which was filed on 5 November and served on the respondent.
11. On 12 February 2015, the Tribunal embarked on the hearing of the s 564 application after having been informed that an instrument of consent, made pursuant to s 564 of the Act, had been signed by the solicitors for each of the applicant, the respondent and the Legal Services Commissioner. The subsequent history of the proceedings is set out in the Tribunal's reasons for decision [2015] NSWCATOD73, published on 16 July 2015 (the Tribunal's first reasons).

Exceptional circumstances

1. There was a difference of opinion between Dr Rees and Dr Skinner concerning the respondent's conduct the subject of grounds B and C (see par 69 of the Tribunal's first reasons for Dr Rees' opinion and par 76 for Dr Skinner's opinion).
2. Without attempting to provide a meaning of "exceptional circumstances" in s 566 of the Act, which is all encompassing, we are of the view that for the purposes of this application, a circumstance is exceptional where it is one which is such as to form an exception, which is out of the ordinary course, or unusual, or special or uncommon. It need not be unique or unprecedented or very rare, but it cannot be one that is regularly, or routinely, or normally encountered in cases heard in the Tribunal in which findings of unsatisfactory professional conduct or professional misconduct are made. A circumstance will not be exceptional if it is only relevant to penalty or mitigation of penalty. It is implicit in s 566 (1) that an order exempting a respondent practitioner found guilty of unsatisfactory professional conduct or professional misconduct from paying costs incurred by the applicant, is not warranted simply because exceptional circumstances of some kind or other are present. The nature of the exceptional circumstances must be such as to justify displacement of the normal rule that a costs order should be made. If the Tribunal is satisfied that exceptional circumstances in this sense exist, it has a discretion under s 556 (1) not to order a respondent legal practitioner to pay the applicant's costs or the whole of the applicant's costs (see R v Kelly (Edward) [2000] QB 198 at 208; San v Rumble No2 [2007] NSWCA259 at [67]; Council of the Law Society of New South Wales v Gallego (No 3) [2015] NSWCATOD37 at [33]; Council of the Law Society of New South Wales v Hinde [2011] NSWADT 20 at [31]; and Legal Services Commissioner v O'Connor (No 2) [2006] LPT 002 at [15]).
3. We are of the opinion that the matters referred to in pars 24 to 33 below are relevant to the question whether there are exceptional circumstances.

The facts set out in pars 9 - 20 above and the history of the proceedings subsequent to 12 February 2015, set out in the Tribunal's first reasons

1. It was the respondent's proposal that the s 564 application should be pursued. Apart from the expenses incurred in obtaining a report from Dr Skinner, all of the other expenses and legal costs associated with that application were thrown away on 13 February 2015 when the respondent made clear that she was no longer consenting to the s 564 application proceeding.
2. The respondent objected to the affidavit of Alastair McConnachie. That objection was overruled (see pars 49 and 50 of the Tribunal's first reasons).
3. The respondent made submissions on legal issues based on ss 562 (1) and 576 of the Act. Those submissions were rejected by the Tribunal (see par 34 of the Tribunal's first reasons).
4. The respondent submitted that the aims of protecting the public and deterring unsatisfactory professional conduct by practitioners did not require findings or orders to be made against a practitioner whose conduct was due to serious illness The Tribunal did not accept that submission so far as the making of findings was concerned (see par 39 of the Tribunal's first reasons).
5. The respondent submitted that the Tribunal should not make a formal finding of unsatisfactory professional conduct and it should dismiss the Bar Council's application because, so it was submitted, the respondent's conduct was wholly or principally due to illness. This was rejected by the Tribunal (see pars 40 - 42 of the Tribunal's first reasons).
6. The Bar Council received a copy of the report of Dr Rees on or about 31 March 2014, but its solicitor informed the solicitor for the respondent on 30 April 2014 that Dr Rees' report dated 18 March 2014 was of little (if any) assistance to the Tribunal and that the Bar Council wished to provide the Tribunal with the benefit of an expert report to be prepared by Professor Janice Russell. The respondent did not agree to see Dr Russell due to previous conflict between them. The Bar Council continued to seek to have the respondent examined by an expert and it was not until 15 October 2014 that the respondent saw Dr Skinner. Dr Skinner provided a report on 31 October 2014 and an affidavit on 3 November 2014. It was not until this time that the Bar Council became aware of Dr Skinner's opinion. That opinion was that the respondent was probably suffering from cognitive impairment at the time of the alleged unsatisfactory professional conduct because of her psychiatric disorder. Her lateness for court and her poor judgment in relation to the lease to her client occurred because her judgment was impaired as discussed in her report (see par 76 of the Tribunal's first reasons).
7. Notwithstanding the opinion expressed by Dr Skinner, the respondent joined in the s 564 application. The instrument of consent recorded that the respondent admitted, in respect of the three grounds of complaint, that she engaged in unsatisfactory professional conduct.
8. The instrument of consent included consent orders to be made by the Tribunal. Those consent orders included findings by the Tribunal that the respondent engaged in unsatisfactory professional conduct in respect of the allegations made against her; an order that the respondent be reprimanded; and an order pursuant to s 581 of the Act that the reprimand should not be recorded in the register or otherwise publicised under Part 4 of the Act.

Consideration of the respondent's submissions

1. In the following subparagraphs the Tribunal will give consideration to the respondent's submissions, summarised in par 9 above. Pars 9 (a) and (b) above 1. Whilst these matters might be unusual circumstances, for the reasons set out in pars 32-34, we are of the view that they are not exceptional circumstances which justify displacement of the normal rule that a costs order should be made. Par 9 (c) above 1. All that the Tribunal decided in pars 83 and 84 was that because the respondent's judgment (or judgment and cognition) were affected, it was inappropriate that she be reprimanded for her conduct. There is nothing in pars 83 or 84 which says anything about the question whether exceptional circumstances existed. Par 9 (d) above 1. The significant evidence as to the respondent's health was the evidence of Dr Skinner which was not received by the Bar Council until the end of October 2014. Par 9 (e) above 1. This is disputed by the Bar Council which relies upon evidence given by Philip Alan Selth in an affidavit dated 2 September 2015. That evidence shows that the respondent withdrew her application for renewal of her practising certificate on 12 January 2014, having lodged an application to renew her local practising certificate on 3 June 2013. That evidence includes evidence that on 12 June 2013 the Professional Conduct Department of the Bar Association referred the application for renewal to the Bar Council in light of medical information received in the course of the investigation of two complaints made by the Legal Services Commissioner against the respondent. That evidence shows that on 20 June 2013 the Bar Council resolved pursuant to s 105 of the Act to require the respondent to be medically examined. The respondent subsequently attended an appointment with Professor Russell on 3 August 2013 and Professor Russell provided her report to the Bar Council on 10 August. The respondent was provided with an opportunity to make submissions in relation to her application to renew her practising certificate. The last of the submissions made by the respondent were received on 20 November 2013. 2. In the meantime on or about 27 September 2013 the Bar Council became aware of the happening of a show cause event in respect of the respondent in or about March 2013. Section 68 of the Act required the Bar Council, upon becoming aware of the show cause event, to investigate and determine whether the respondent was a fit and proper person to hold a practising certificate. 3. On 16 October 2013 a notice pursuant to s 68 (2) of the Act was sent by the Bar Council to the respondent. It sought a written statement from the respondent pursuant to s 67 (2) (b) within 28 days. The respondent did not respond to that notice and on 21 November 2013 the Bar Council sent a further letter to the respondent. The respondent did not respond to the notice prior to her withdrawing her application for a practising certificate. Mr Selth's affidavit sets out more detail of these events in pars 5 - 9. It is unnecessary for all the detail to be recorded in these reasons for decision. The Tribunal is not satisfied, on the evidence produced to it,that the respondent's application for renewal of her practising certificate was constructively refused by the Bar Council. Par 9 (f) above 1. This submission appears to be based upon s 540 of the Act which enables the Bar Council to determine that a specified condition be imposed on a practitioner's practising certificate. However before the Bar Council can do that, the section requires that the Bar Council be satisfied that the practitioner is generally competent and diligent. Professional Conduct Committees of the Bar Association investigated the complaints against the respondent and recorded in the investigation reports, which were subsequently adopted by the Bar Council, reasons why the Bar Council could not be positively satisfied that the respondent was generally competent and diligent. Thus s 540 did not enable that a condition be imposed on the respondent's practising certificate. Par 9 (g) above 1. One of the circumstances in which the Bar Council may dismiss a complaint pursuant to s 539 of the Act is if it is satisfied that it is in the public interest to do so. In par 39 of the Tribunal's first reasons, we stated that a finding that the respondent's conduct constituted unsatisfactory professional conduct contributes to protecting the public in the future against that type of conduct or similar conduct by other practitioners and informs the public and practitioners alike as to what conduct will be considered unsatisfactory professional conduct. The Tribunal is thus not persuaded that it was in the public interest for the complaints to be dismissed by the Bar Council. 2. Section 511 (1) (g) of the Act gives a discretion to the Bar Council to dismiss a complaint if the Council is satisfied that it is otherwise in the public interest to do so. For the reasons just given, the Tribunal is not persuaded that it was in the public interest for the complaints to be dismissed by the Bar Council. Par 9 (h) above 1. Section 540 of the Act had no application because the Bar Council could not be positively satisfied that the respondent was generally competent and diligent (see par 32 (v) above). Par 9 (i) above 1. For the reasons set out above, the Tribunal is not persuaded that it was not in the public interest for the Bar Council to commence and continue these proceedings. Par 9 (j) above 1. The Tribunal is of the view that having regard to the issues which were argued and determined against the respondent, it is not accurate to be speaking in terms of "limited success". Furthermore the time taken to argue whether there should be a reprimand and whether there should be a declaration of unsatisfactory professional conduct, was minimal having regard to the time taken to prepare for and appear at the hearing and to provide written submissions. Par 9 (k) above 1. This submission appears to be answered by what the Tribunal stated in par 79 of its first reasons. Par 9 (l) above 1. As we have said, it is not accurate to be speaking in terms of "limited success". The time spent on submissions concerning a reprimand and a declaration of unsatisfactory professional conduct was minimal to say the least. Par 9 (m) above 1. It is true that the statement of agreed facts reduced the hearing time of the proceedings. However the Tribunal is not persuaded that that fact either alone or taken with any other facts referred to in par 9 above, justifies displacement of the normal rule that a costs order should be made. If a costs order is to be made against the respondent then by agreeing to the statement of agreed facts, the respondent will have reduced the amount of the costs which she will have to pay.

The critical question

1. In our view the critical question is this: bearing in mind that it was appropriate for the Bar Council to take proceedings against the respondent and seek the findings of unsatisfactory professional conduct, which were made, are the conclusions set out in pars 83 and 84 of the Tribunal's first reasons, such that they justify the displacement of the normal rule that a costs order should be made. In answering that question it is relevant to take into account in favour of a negative answer, the respondent's conduct of the proceedings which resulted in costs being thrown away and the raising of many issues and submissions which were rejected.
2. In our view that conduct of the respondent strongly points to there being no exceptional circumstances which justify displacement of the normal rule.
3. Having considered all of the relevant evidence and the submissions, we are of the view that there are no exceptional circumstances within the meaning of s 566 (1) of the Act.

Respondent's further submissions

1. The respondent filed further submissions on 4 September 2015. However all of those submissions except for those in pars 12 and 13 deal with legal arguments which it appears the respondent will argue in the Supreme Court of New South Wales. She indicated in par 2 of those submissions that she is appealing to the Supreme Court the findings of unsatisfactory professional conduct.
2. The submission in par 12 was in effect made in par 21 of the submissions dated 19 August 2015. The submission in par 16 was in effect made in par 13 of the submissions dated 19 August 2015.

Orders The Tribunal makes the following orders: 1. Pursuant to s 50 (2) of the Civil and Administrative Tribunal Act 2013, the Tribunal dispenses with a hearing. 2. The respondent pay the applicant's costs of the proceedings as agreed or assessed. 3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013: 1. the disclosure of the respondent's name is prohibited; 2. subject to any further order of the Tribunal, access to and disclosure of documents and evidence filed with the Tribunal in this application be restricted to the Legal Services Commissioner, the parties and their respective legal representative 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: 11 December 2015