Council of the New South Wales Bar Association v de Robillard

The evidence relied upon by the Council

1. As can be seen by a comparison between the Application and the Reply to same, many of the facts and Particulars set out in the Application are admitted. The respondent objected to the detail in paragraph 3 of the Application as being inappropriate to raise in Stage One. We agree that the history there set out is not relevant to our determination in this Stage One hearing.
2. In relation to paragraph 5, the respondent confirmed he was briefed in about January 2016. Otherwise the paragraph is admitted.
3. In relation to paragraph 7, the content was admitted with added information in relation to the commencement of the Interlocutory Process to address the freezing of the bank accounts of the respondent's client companies.
4. The respondent admits paragraph 10 of the Application, however, he comments on the delay between the July 2017 complaint of Mr Wells and the resolution of the Council to commence proceedings in this Tribunal.
5. In relation to paragraph 11, the respondent said the detail was not relevant to the Stage One hearing.
6. In relation to paragraph 12, the respondent denied he allowed the second proceedings to be commenced and maintained. He said his clients did that.
7. The respondent's denial of paragraph 12 (a), (b), (c), (d) and (e) sets the task for the Council to establish its case. The respondent does admit the Particulars to Ground One, which are numbered with Roman numerals (i) to (xiv). (We note paragraph (xii) was not relied upon by the Council in the hearing before us. However, the respondent did rely upon the affidavit of Mr Ristovski which affidavit was the subject of paragraph (xii)).
8. Ground Two, paragraph 13 was denied by the respondent "in that the costs have been paid." Further the respondent says that he was a bankrupt from 17 August 2017. We were informed in the hearing that the respondent remains an undischarged bankrupt. The Council accepts that the costs order, the subject of Ground Two, has been paid, however the Council maintains its complaint on that ground.
9. The Council relied upon the affidavit of Gregory John Tolhurst sworn 9 November 2020. Mr Tolhurst is the Executive Director of the New South Wales Bar Association. He was authorised to make his affidavit on behalf of the Council. The function of that affidavit was primarily to introduce relevant documents into evidence before us. We will refer to the annexures to that affidavit as we consider the submissions of the Council. In those submissions the Council took us to the documents, which provided the bulk of the evidence which is relied upon by the Council to establish its case in the areas where the respondent has not made an admission to the grounds of the Application or Particulars thereof.
10. Before moving to consider that evidence we pause to address some matters which affect the conduct of the hearing.
11. By way of departure from section 38 of the Civil and Administrative Tribunal Act 2013 (NSW), we note the provisions relating to the application of the rules of evidence, to this hearing, through the following provisions of that Act.

The Conduct of Proceedings brought by the Council

1. The first thing for us to note, in relation to this proceeding, is that it is in a category of matter which is referred to in Part 4, Division 4, clause 20 of Schedule 5 to the Civil and Administrative Tribunal Act. 20 Rules of evidence Despite section 38 of this Act, the Tribunal is to observe the rules of evidence in proceedings in exercise of a Division function for the purposes of the Legal Profession Uniform Law (NSW) or Public Notaries Act 1997 concerning a question of professional misconduct.
2. Section 38 of the Civil and Administrative Tribunal Act, provides that: 38 Procedure of Tribunal generally (1) The Tribunal may determine its own procedure in relation to any matter for which this Act or the procedural rules do not otherwise make provision. (2) The Tribunal is not bound by the rules of evidence and may inquire into and inform itself on any matter in such manner as it thinks fit, subject to the rules of natural justice. (3) Despite subsection (2)-- (a) the Tribunal must observe the rules of evidence in-- (i) proceedings in exercise of its enforcement jurisdiction, and (ii) proceedings for the imposition by the Tribunal of a civil penalty in exercise of its general jurisdiction, and (b) section 128 (Privilege in respect of self-incrimination in other proceedings) of the Evidence Act 1995 is taken to apply to evidence given in proceedings in the Tribunal even when the Tribunal is not required to apply the rules of evidence in those proceedings. Note: Section 67 also prevents the compulsory disclosure of certain documents in proceedings in the Tribunal that would, in proceedings before a court, be protected from disclosure by reason of a claim of privilege. (4) The Tribunal is to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms. (5) The Tribunal is to take such measures as are reasonably practicable-- (a) to ensure that the parties to the proceedings before it understand the nature of the proceedings, and (b) if requested to do so--to explain to the parties any aspect of the procedure of the Tribunal, or any decision or ruling made by the Tribunal, that relates to the proceedings, and (c) to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings. (6) The Tribunal-- (a) is to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceedings, and (b) may require evidence or argument to be presented orally or in writing, and (c) in the case of a hearing--may require the presentation of the respective cases of the parties before it to be limited to the periods of time that it determines are reasonably necessary for the fair and adequate presentation of the cases.
3. The next matter to note is that, although the respondent is no longer a barrister, with a cancelled practicing certificate, section 262(4)(a) of the Uniform Law extends the application of Chapter 5 to former Australian legal practitioners. 262 Application of this Chapter to conduct of lawyer or law practice (1) Subject to subsection (5), this Chapter applies to conduct of a lawyer occurring-- (a) wholly within Australia; or (b) wholly outside Australia; or (c) partly within Australia and partly outside Australia. (2) This Chapter applies to conduct of a law practice occurring-- (a) wholly within Australia; or (b) partly within Australia and partly outside Australia. (3) This Chapter applies to conduct of a lawyer or law practice whether consisting of acts or omissions or a combination of both. (4) This Chapter extends to-- (a) a former Australian legal practitioner or former Australian-registered foreign lawyer in respect of conduct while an Australian legal practitioner or Australian-registered foreign lawyer in the same way as it applies to an Australian legal practitioner or Australian-registered foreign lawyer, with any necessary modifications; and (b) a former Australian lawyer in respect of conduct occurring while an Australian lawyer who is not an Australian legal practitioner, in the same way as it applies to an Australian lawyer who is not an Australian legal practitioner, with any necessary modifications; and (c) conduct of a lawyer as a public notary. (5) This Chapter does not apply to conduct of a lawyer or law practice to the extent the application of this Chapter is excluded by Part 4 of Schedule 3.
4. The Council in its first submission (provided for the hearing on 13 September 2021) outlined the case which was being pursued against the respondent. The Council said: "The respondent's conduct the subject of the proceedings has two limbs: (a) first, the respondent made allegations of fact, including allegations amounting to serious misconduct against Mr Wells which were not reasonably justified or properly available on the material; and (b) second, the respondent has failed to pay a personal costs order that was made against him as a result of this conduct."
5. The Council set out the Legislative framework which enabled the action brought by the Council. It said: "7. The Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Barristers Rules) provide, relevantly: Rule 60(a): A barrister must take care to ensure that the barrister's advice to invoke the coercive powers of a court is reasonably justified by the material then available to the barrister. Rule 61(a): A barrister must take care to ensure that decisions by the barrister to make allegations or suggestions under privilege against any person are reasonably justified by the material then available to the barrister. Rule 64(a): A barrister must not allege any matter of fact in any court document settled by the barrister. Rule 65(a): A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that available material by which the allegation could be supported provides a proper basis for it. Rule 8(c): A barrister must not engage in conduct which is likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. 8. Section 298(b) of the Legal Profession Uniform Law (LPUL) provides that conduct contravening the Uniform Rules is conduct that is capable of constituting professional misconduct or unsatisfactory professional conduct for the purposes of ss 296 or 297 of the LPUL. The Uniform Rules are defined in s 6 of the LPUL to mean the Legal Profession Uniform Rules made under Part 9.2 of the LPUL. The Barristers Rules are made pursuant to s 423 of the LPUL, within Part 9.2. 9. Section 297(2) of the LPUL provides that the Tribunal may have regard, when determining whether conduct constitutes professional misconduct, to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate. Those matters are set out in rule 13 of the Legal Profession Uniform General Rules 2015 (the Rules). Rule 13(q)(i) provides that the Tribunal may consider whether the applicant has contravened an order of a court or tribunal made in any proceedings."
6. The Council set out the history of the litigation which led to the point in time when the Council says the respondent signed a pleading and a "points of claim" document which contained the assertions made against Mr Warren Wells, the solicitor acting for the other party to the proceeding. That history was of protracted negotiation and litigation between members of the one family which had extensive real estate and commercial interests. Those interests were held through corporations and personal ownership. This history was recited to us by the respondent during his oral evidence in particular.

Background Facts

1. There is no relevant disagreement about the background facts leading to the respondent signing and pursuing an order against Mr Wells. The relevant facts leading to the complaint made against the respondent by Mr Wells, the principal of Balmain Lawyers, are as follows. These facts were succinctly summarised by the Council in its submission provided for the hearing: 1. The respondent had been briefed in a proceeding in the Supreme Court of NSW No 375735 of 2015 with the parties named as Ristovski v Ristovski (hereafter called the first proceedings). 2. On 28 October 2016 an Interlocutory Process was filed for the defendants in the first proceedings. The Interlocutory Process sought the following further order at paragraph 9 (exhibit GJT1 to the affidavit of Gregory Tolhurst affirmed 9 November 2020, page 12): "That until further order the Fourth Respondent, Warren Ernest Wells, shall not in any way (either directly or through any agent) aid, abet, counsel or procure the First Respondent, Alecsander Ristovski, to contravene or attempt to contravene the requirements of section 181 of the Corporations Act, 2001." 1. The Interlocutory Process was signed by the respondent's instructing solicitor. The respondent did not move on the Interlocutory Process at any time. 2. On 18 November 2016 the defendants in the first proceedings filed an Originating Process (exhibit GJT1 page 34) and Points of Claim (exhibit GJT1 page 21) in proceedings No. 00345756 of 2016 in the Supreme Court of New South Wales (the second proceedings). The respondent continued to appear for the parties that now became the plaintiffs in the second proceedings. Mr Wells became the Fourth Defendant in the second proceedings. 3. The Points of Claim made the following allegation at paragraph 49: "In the premises the Plaintiffs contend that the commencement of the original proceedings by the First and Fourth Defendants may constitute evidence of a lack of good faith on the First Defendants [sic] part. The First Defendant was aided and abetted by the second and Fourth Defendant in the use of the original proceedings for an improper purpose; which included damage to the First to Tenth Plaintiffs." 1. The Points of Claim were signed by the respondent (exhibit GJT1 page 29). 2. The Originating Process at paragraph 7 sought the following order: "The First and Fourth Defendants are enjoined from providing any advice to Jovka Ristovska or from causing Jovka Ristovska to transfer any asset currently registered in Jovka Ristovka's [sic] name to the First and/or Second Defendants…" 1. On 21 November 2016, in the course of a directions hearing before Black J, counsel for Mr Wells stated that he intended to argue that the Points of Claim and Originating Process as against Mr Wells were fundamentally flawed and outlined his argument (exhibit GJT1 page 73 at lines 30 - 35, page 74). The following exchange occurred between his Honour and the respondent (exhibit GJT1 page 75): "HIS HONOUR: Mr de Robillard returning to you and there are really two options that are available and to some extent I am going to be guided by practical convenience and what would assist the just, quick and cheap resolution of the matters in dispute. It may be by way of synopsis you have heard all or nearly all of what Mr Cheshire is going to say. There are two ways I can deal with this. The first is to require the fourth defendant to put on an interlocutory motion which presumably would be, I suspect, to strike out the points of claim and the originating process so far as it concerns the fourth defendant which is essentially a pleading point. I don't say that as a negative matter. Pleading is important. The alternative, and I can take that course if you consider that procedural fairness to your client requires that the matter proceed by interlocutory process; there are of course some additional costs involved in that which will be recoverable if ultimately any interlocutory process is successful; the alternative course is, if the parties are content for me to deal with it by way of an oral application, as Mr Cheshire seeks to do, then I will deal with it on that basis. Which course do you prefer? DE ROBILLARD: the former, your Honour." 1. An interlocutory process was filed on behalf of Mr Wells on 22 November 2016 (exhibit GJT1 page 63). 2. At the hearing on 28 November 2016 the respondent's written submissions stated (exhibit GJT1 page 86): "The case against the Fourth Defendant currently include [sic]: 17. Aiding and abetting the First Defendant in relation to breaches of section 181 of the Corporations Act (the Act)… 22. The Fourth Defendant aided and abetted the First Defendant in the oppressive conduct, the subject of complaints made in the opening paragraph of the Originating Process. 23. Subject to final instructions, It [sic] will be submitted that the Fourth Defendant overstepped his function as a lawyer and/or officer of the Court." 1. During the hearing on 28 November 2016, the respondent made the following statements: 1. The Points of Claim were not satisfactory and ought to be amended (exhibit GJT1 page 96 at line 5); 2. The Originating Process and the Points of Claim could not stand in their present form (exhibit GJT1 page 96 at lines 15 - 17); 3. He had not advised the other parties earlier that he would not be defending the pleading in its present form because he was not able to obtain sufficient instructions to have an affidavit sworn (exhibit GJT1 page 96 at lines 27 - 39); 4. The person who could give evidence in relation to some of the allegations was not available and therefore the respondent had not been able to talk to the person and get instructions for an affidavit to be provided, and in those circumstances the points of claim were not satisfactory at the time (exhibit GJT1 page 99 at lines 6 - 15); 1. On 28 November 2016 those parts of the Originating Process and Points of Claim referring to Mr Wells were struck out. A personal costs order was made against the respondent, to which the respondent did not object. 2. On 19 July 2017 Mr Wells made a complaint to the Office of the Legal Services Commissioner. The complaint was referred to the Council. On 14 May 2020 the Council resolved that both grounds of Mr Wells' complaint be the subject of proceedings before the New South Wales Civil and Administrative Tribunal (the Tribunal) pursuant to section 300 of the Uniform Law. 3. On 8 March 2017 Mr de Robillard's client, Tony Ristovski, filed a Statement of Claim. The Statement of Claim provided (exhibit GJT1 page 190): "Depending upon Alex's defence to the Contempt of Court proceedings, potential claim against Wells for any putative role played in relation to the Contempt of Court and consequential damages. [26(h)] … Wells aided and abetted Alex to breach the said agreements. [31]"
2. In its August 2021 submission the Council said: "The order sought in the Interlocutory Process filed 28 October 2016 (above at [12]), was premised on the allegation that Mr Wells had or would "aid, abet, counsel or procure" a contravention of the law by his client. The respondent did not sign the Interlocutory process or move on it, but he clearly adopted the contents of the document and repeated the allegation in his written submissions set out at [20] above. The respondent's name and signature appears on those written submissions. The allegation was also made in the Points of Claim filed on 18 November 2016, which the respondent signed."
3. During his oral evidence the respondent told us that he had drafted the documents constituting the Interlocutory proceeding. He said: "I was the person who had all the input with the documents for the 2015 proceeding".
4. The Council submits that: "The allegation that another legal practitioner had assisted his client to breach the law is an allegation of serious misconduct. The respondent at no time presented the Court with any material in support of this allegation". The Council referred us to the transcript of the hearing before Black J on 28 November 2018 and the words of the respondent there appearing as set out earlier in these reasons. The Council's submission is that those words amount to a concession, on the part of the respondent, which establishes he had breached rule 60(a) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (the Barristers Rules). We have set out that rule earlier in these reasons as part of the Council's case.
5. The Council submits that the evidence establishes the respondent "invoked the coercive powers of the Court without reasonable justification."
6. Further the Council submits the respondent breached rule 8(c) of the Barristers Rules.
7. That rule provides: "A barrister must not engage in conduct which is: (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute."
8. The Council submits that rule was breached because: "The respondent declined the Court's offer to hear Mr Wells' application to strike out the Points of Claim and Originating Process on 21 November 2016, though counsel for Mr Wells was prepared to be heard on that date. Instead, the respondent put the Court, Mr Wells and his own client to the cost of a separate interlocutory application and hearing of the matter."
9. The Council further submits that admissions made by the respondent before Black J on 28 November 2018 both independently and collectively amount to breaches of rules 61(a), 64(a) and 65(a) of the Barristers Rules. Those rules we have set out earlier in these reasons as part of the Council's case.
10. The above rules were breached, submits the Council, as a consequence of the actions of the respondent which: "demonstrate that the respondent was acting, knowingly, without adequate instructions in relation to materials that made serious allegations of serious misconduct against another legal practitioner. The Points of Claim and Originating process made those allegations without the support of underlying evidence (rule 61(a)) and the Points of Claim and written submissions, at least, were settled by the respondent (rule 64(a)). Whether or not the respondent believed that there was material by which those allegations could be supported, any such belief could not have been reasonable in circumstances where the respondent did not have instructions to speak to the person he believed could give that evidence (rule 65(a)). To the contrary, the respondent told the Court that 'I was careful to say that it's only subject to instructions, it's simply a matter of being able to talk to the person and get instructions for an affidavit to be provided' (GJT1 p 99 ln 7 - 10). The making of those allegations without instructions and without supporting evidence was also conduct that was likely to diminish public confidence in the legal profession, contrary to rule 8(c) of the Barristers Rules."
11. The Council's case goes further and relies upon an asserted inference which arises from the "continued involvement" of the respondent in the filing of the Statement of Claim on 8 March 2017. The Council submits: "That document repeated the claims made against Mr Wells in circumstances where those claims had already been struck out by the Court, and it did so in the absence of any supporting evidence."

The evidence of the respondent

1. The respondent relied upon a Statement which was marked as exhibit R3. Much of the document was not relied upon, however, under the heading "Involvement In the 2015 (First) Proceedings" the respondent set out the following. "Involvement In the 2015 (First) Proceedings 24- My mother and Nadine's father had known each other in their childhood. I had known both of Nadine's parents when still a child in Mauritius. I was 17 years old and in first year at university when Nadine was born, and I was honoured to accept being her godfather. 25- Nadine was studying law and worked at Abbott Tout Creer & Wilkinson, as a Personal Assistant to a partner when she met Tony Ristovski (Tony) and they married soon after. 26 - Nadine started working for Tony's father (Dragoljub) who was a strong willed and domineering head of the family, with family solidarity (and respect for him) being the core of his beliefs. He grew to like and respect Nadine even though she was not from his community. After some years the father allowed Nadine to become a signatory to the business' bank accounts and similar financial facilities. The business imported large amounts of seafood, especially prawns. Nadine played an important role in managing the bank accounts and foreign exchange issues. 27- I came to understand the above matters, facts and circumstances 'on the run' after I became involved in the 2015 proceedings just around Australia Day 2016. 28- Tony worked long hours and did not seem the outgoing type. He was respectful and deferential towards me because in his version of the Macedonian culture, the godfather is one's alternative parent when one's parent dies or becomes incapacitated. 29- I had little to do with Tony until around Australia Day 2016 when Nadine telephoned in words to the effect: " Parrain, (meaning godfather in French) could you come straightaway we've got a big problem. Tony wants to speak to you because our solicitor is stuck in London, and we have no one to help". 30 - When I arrived at the Skinner Avenue, Riverwood premises Nadine seemed very upset when she is usually smiling, warm and bubbly. 31- Tony looked worried but spoke calmly explaining in words to the effect: "Alex is causing us a lot of problems. He keeps going to the Bankstown shop around closing time. He tries to order the staff to hand him the takings because he is the owner of the shop. We have a good Chinese lady who has handled Alex by humouring him and giving him some product from the shop. But today he has caused a scene and seriously threatened the Chinese lady who says she cannot take it anymore". 32 - At no time did I have cause to consider that Tony and Nadine were (sic) honest and straightforward in heir [sic] dealings with me. Tony explained: "Alex suffered a serious accident when he was leaning out a train carriage and hit his head. He was in a coma for a long time and my father prayed over him constantly. So even though Alex loves the high life and his Porsches, my father always insists on treating him as equal to me - which is fine by me as long as he does not mess up the business." 33 - I could not find a copy of Tony's affidavit but recall that it was Tony's idea to start a fish business at Flemington Markets soon after he left school and his father was retrenched from his position as a Security Guard. With his pension entitlements, they borrowed and invested in stall at Flemington Markets. They now have the biggest fish space there. Tony has been very successful, in part because he is calm and considered. 34 - It was told about the proceedings which had been commenced on 22 December 2015. 32- After further discussions Tony said words to the effect: "Our solicitor, Tony Souris, who is also a good friend of mine, is stuck in London. He was present when someone passed away in the house and he has been told he cannot leave until the enquiries have been completed." 33 - I said words to the effect: "I am very busy, but I can organise for a solicitor friend of mine to help. Nadine already knows the ropes of commercial litigation so she can work with the solicitor and me". 34 - I then asked Mr Mukul Dey for his assistance. I had worked on a 'pro bono' basis for Mukul's friends/clients in a complicated dispute among members of a Bangladeshi Puja Society. 35 - Mukul said words to the effect: "As you know I cannot do litigation, nor do I have the time being a one-man band. But since Nadine has commercial litigation experience as a secretary and part-time law student, I can assist provided that Nadine does the documents with your assistance." 36 - To best of my recollection the first directions hearing were to be held before Justice Black within a short time. 37- Tony said words to the effect: "one of Alex's friends knows this Mr Wells who apparently is a "wheeler, dealer". [I had heard of Mr Wells as someone who did business in Vanuatu from time to time.] He has been very aggressive. Mum is really upset because he has kept writing to my father at home through the post office when he must have known that my father was dying with stage 4 bowel cancer which had been diagnosed in about August 2014. My father was very worried receiving these long solicitors' letters and this caused mum to also panic because, as you know her English is very poor, and she has always been highly dependent on my father." 38 - I understood that I was expected to assist 'pro bono' as Nadine's godfather. There was no discussion of money, nor a fees agreement signed. 39 - I had met the Plaintiff, Tony's younger brother, Alex, only twice (to the best of my recollection): at the wedding (in excess of 500 people) and at the christening (at least 300 people) of Nadine's son Dane. We exchanged greetings but little else. Alex was also respectful when I saw him in and around the court. I can distinctly remember that Alex's wife Marina held a baby when she came to court with Alex. 40 Once I had read the Originating Process and the affidavit, I said to Tony words to the effect: "Alex wants some money. Have you discussed any with him?" Tony replied: "No, Nadine and I have been run off our feet with my father dying and all that and me having to do everything. Mum is a severe diabetic and needs needles and treatment everyday - which Nadine is attending to. Tony Soubris (solicitor friend) was going to start on the Probate but still has not done anything. We are still trying to find the Will. So, Alex will want not only his one-third share of the business but part of the estate as well and I do not know where to start".
2. The respondent provided a second statement dated 13 September 2021. That statement became exhibit R5. We set out that statement here as we consider it necessary to be able to consider the submissions which each party has made. "2 Further to the Tribunal's directions made on 13 September 2021, I make this statement concerning Exhibit R1 and R2 in these proceedings. 3 As to the letter from the complainant to my client (Tony Ristovski) dated 28 November 2014, I first saw that letter shortly after Australia Day 2016 when Tony Ristovski first requested my assistance. It was included in the documents comprising the first Supreme Court proceedings (the 2015 proceedings). 4 The pleadings in that matter related to obtaining company documents. 5 However, the letter dated 28 November 2014 was far more wide ranging. 6 The letter dealt with many things, including the alleged unfairness on the plaintiff (Alex Ristovski) as against Tony. It created a belief in me that the author of the letter (Warren Wells) had an ulterior purpose in commencing the Supreme Court litigation. 7 Also, the letter contains various threats of Tony and his related companies not acting in good faith under the Corporations Act. 8 It purported to constitute a formal "notice" in several places. 9 It also purported to have the solicitor threatening to personally undertake a "forensic examination" of the accounts of the businesses (at p 133.2). 10 Also (at the bottom page 136-137) Alex claimed money from Tony for a property at [xx] Myall Street, Oakely in circumstances where I was instructed he was not entitled to. In expectation of the final hearing of the Supreme Court case (the 2015 proceedings) on 9 June 2016, on 30 March 2016, Alex and his solicitor commenced District Court proceedings concerning this property (seeking to claim it). It was used as leverage for some time in 2015 and 2016. 11 In the letter, he also sought other property in the Oately area. 12 When I read all this, in the context of the 2015 proceedings, and knowing that the father of Tony and Alex had been diagnosed with Stage 4 bowel cancer, it seemed to me this was an ambit claim to seek to re-arrange the family's assets before the father's death. He passed away in September 2015. 13 Also, the fact that letters of this kind were being sent to the father, while he was terminally ill lead me to believe that there was a particularly insensitive person or persons behind it. 14 I had a very strong feeling that much of what was contained in the letter was solicitor-driven. I was instructed by Tony that his brother, Alex was not intellectually capable of making all of these demands and in the way it was carried out. 15 I now refer to an sms dated 4 July 2014 from Alex Ristovski to Nadine Ristovski (Tony's wife). At the time, she was running the family business in the office and she was a principal signatory for the affairs of the business. Alex was trying to get the family business bank details from her. It shows that he obtained a lawyer as at that date. 16 I now refer to the letter dated 11 November 2015 from Mr Warren Wells to chartered accountants of the family's businesses. They had been responsible for the family's businesses for more than 10 years. 17 He talks about his "persistent requests" for documents and says that he needs more. 18 Incredibly, he makes an offer (from Alex to Tony) for Tony (and his father's estate) to transfer the sum of $4,000,000 amongst other things to settle their differences. 19 What struck me at the time is the deeply insensitive manner of the communication and the use of the family accountant to attempt to broker a deal. Again, I suspected that this letter was solicitor driven. 20 I now refer to the letter dated 27 January 2026 [sic - 2016] from Mr Warren Wells to Tony. Alex was again after the family companies documents. He also said that Alex would not be refraining from his behaviour regarding the family's Fish Feast shop at Hurstville. He foreshadowed a Supreme Court action returnable on 9 February 2016. 21 I now refer to the letter from dated 11 February 2016 Mr Warren Wells to Tony's solicitor. In it, the solicitor askes for the Hurstville shop to be transferred to Alex (or his company). 22 The solicitor correctly says that he "indicated persistently" that Alex needed more information regarding the family business. He was also pressed again about the father's estate. 23 These last two letters indicated to me that Mr Well was mounting a new and sustained attack on Tony and on the family businesses. Based on my instructions, I did not believe that Alex was capable of achieving all of this on his own and that much of it was still being solicitor driven. 24 As to the letter dated 29 April 2016 from Mr Warren Wells to Tony's solicitors, this letter arose after several appearances in the Supreme Court in the 2015 proceedings. There was talk of a possible settlement, but a persistent call for more documents. Mr Wells said that (at [13]) "Alex needs to be educated." He referred to his client's "education" again (at [20]). 25 Mr Wells appeared to communicate personally when he made the threat at [19] of the letter. He referred to himself ("it is the instruction of the writer"). 26 This letter confirms what I had suspected up until that point, namely, the solicitor here was acting separately from his client and it made me very concerned as to what actions and what proceedings or action he might undertake outside of the Supreme Court. 27 As to the letter dated 6 September 2016 from Mr Warren Wells to the solicitors for Tony, this letter again refers to the production of documents and makes an offer for the market stalls at Sydney Markets. 28 There is a vague offer to settle by 9 September 2016 or else a winding up application to the Supreme Court would be made for the family companies and "I am also to take control of the market stalls which are in my client's name and to approach the banks in which the companies operating the business have accounts and demand that my client be required to sign any and all cheques before funds are removed from those accounts." 29 This is what I was most concerned about when I settled Tony's Points of Claim dated 16 November 2016 (Tolhurst affidavit at page 21) after this letter. 30 It was a combination of this letter and the previous letters that concerned me the most about this solicitor. The family's accounts were in fact frozen by the action Alex and others (statement of claim Tolhurst affidavit page 190 at page 208 (at [102(n)]). 31 As to exhibit R2, this is an email dated 6 May 2016 from Nadine Ristovski to me and others related to Tony. The woman named in the centre of the page, Jovka, was the mother of Alex and Tony. The email established that Alex was putting pressure on the mother by taking her to see Alex's solicitors. This is also reflected in the statement of claim Tolhurst affidavit page 190 at page 208 (at [102(p)]). 32. This also caused me considerable concern when drafting the points of claim."
3. The respondent relied upon a Letter dated 28 November 2014 from Balmain Lawyers to Mr Tribunal Ristovski. It was marked as exhibit R1.
4. The respondent relied upon a number of documents which were included either as part of exhibit R1 or exhibit R2. The other documents included in exhibits R1 and R2 are as follows:

• A screen shot of a text message from Nadine Ristovski.
• A letter dated 11 November 2015 Balmain Lawyers to The Manager Kamper Chartered Accountants.
• A letter dated 27 January 2016 from Balmain Lawyers to Mr Tribunal Ristovski.
• A letter dated 11 February 2016 from Balmain Lawyers to Associated Legal.
• A letter dated 29 April 2016 from Balmain Lawyers to Associated Legal.
• A letter dated 6 September 2016 from Balmain Lawyers to Associated legal.

1. We have read each of those documents and have paid particular attention to the documents which the respondent has identified in his evidence as being of great concern to him at the time he read the documents and at the time he drew the Points of Claim document and the submissions he provided for the 28 November 2016 hearing before Black J in the Supreme Court. We refer specifically to the above documents where the respondent addressed those documents in his evidence and submissions made by him and on his behalf. That is set out later in these reasons.

Oral Evidence of the respondent

1. The respondent gave oral evidence. He answered questions from his own counsel in his evidence-in-chief and was then cross-examined by counsel for the Council. We then gave the respondent an opportunity to speak for himself. We deemed that necessary as the respondent in his cross-examination made a number of attempts to excurse into being his own advocate. He clearly felt that the message he wished to give us was not being conveyed by the restrictions of cross-examination.
2. In his evidence-in-chief we noted the following evidence which we considered important to our determination.
3. The respondent commenced by confirming that the content of the document marked MFI4 on 13 September 2021 was true and correct subject to one correction. That correction was in paragraph 20 where he said the date set out therein should be 2016.
4. The document formerly marked as MFI4 was marked as exhibit R5.
5. The respondent was cross-examined by counsel for the Council.
6. The respondent was asked of his knowledge in relation to Nadine Ristovski (Nadine) and her qualification in or understanding of the law. He said he had known Nadine was a legal assistant to a partner in the law firm, Abbott Tout. He also said it was his understanding that she had studied law with a view to being qualified as a lawyer, however, she did not complete the course.
7. The respondent confirmed his statement (in exhibit R3) that Mr Mukul Dey agreed to act as the solicitor in the 2015 proceedings on the basis that Nadine would prepare the documents and the respondent would settle them. The respondent was asked whether the lack of legal experience which Nadine had in 2016 meant the respondent had to provide significant input to any documents prepared for the proceeding. The respondent answered: "I was the person who had input in all the content, the legal and wording of documents." He said that Mr Dey had no litigation experience and would not have known how to prepare an affidavit, whereas Nadine did have experience. He said what he was referring to was secretarial skills only, nothing else. The respondent said he was entirely responsible for the legal input to the court documents in that proceeding. The respondent said he was not entirely responsible for drafting the correspondence that went between the parties. He said: "very often they were done by Nadine and her husband and by Mukul Dey as well."
8. The respondent was asked about the documents in exhibit R1. He was asked whether that exhibit provided a selection of documents relating to the 2015 proceeding. He said: "That's just a sample of documents which have to do with the - when you say 2015 proceedings I mean they have to do with all three proceedings. Obviously, it was the game had started back in November 2014 officially from the letters, but it's obvious from the other document that I've sent you that it was Mr Wells who was behind the scenes much earlier since at least July 2014".
9. When pressed to answer the question which had been asked, the respondent provided a lengthy dissertation on the background to the litigation and his understanding of the involvement of Mr Wells. He said: "It's not to do with the 2015 proceedings, it's got to do with the whole strategy that had been adopted by Mr Wells since at least July 2014…..Mr Drago Ristovski was the controlling figure in the family. He was the one who decided what happened in the companies, who got what money….. he was suffering from stage four bowel cancer…. Mr Wells made sure that he received all these fairly threatening letters by sending it by post addressed personally to him".
10. When the respondent finally answered the question, which counsel had asked, he said the documents in exhibit R1 are a sample only of the correspondence. The respondent denied that the sample of correspondence justified his decision at the end of 2016 to commence proceedings against Mr Wells. The respondent continued in describing what he said were "the circumstances in which he found himself." He said: "and what had happened is on Mr Wells' advice….." Mr Wells' client, Alex, had "suffered from brain damage and he hit his head against a pole while he was in the train and stuck his head out to spray the train. So that's the man we're talking about. Now he went to the banks and said to the banks 'I am a director of this company, I don't want you to do anything more and then all of the accounts were frozen.'"
11. The respondent was asked to look at a document in exhibit R1 dated 29 April 2016. The document commences by referring to an email dated 27 April 2016. The respondent was asked if he was involved in the drafting of the email dated 27 April 2016. He said he would have to see the email to answer the question. In relation to the document dated 29 April 2016, the respondent could not recall having seen the document earlier than the weekend before the hearing. He conceded that he clearly may have done so, however, he could not recall it.
12. The respondent was asked to look at exhibit R5, his second statement. In paragraph 14 he used the words "solicitor driven". He repeated those words in paragraphs 19 and 23. It was put that the respondent did not believe that Alex was capable of achieving all this on his own and that much of it was still being solicitor driven. Further at paragraph 26 it was put that the respondent had referred to a suspicion he had that Mr Wells was acting separately from his client. The respondent said he was of the view that Alex Ristovski was not capable of even imagining he had some rights that he was trying to assert as he set out in that correspondence. The respondent said that he did not accept that Alex Ristovski knew how you embarked on a strategy in relation to the relevant companies. He was of the view that action was being undertaken in Alex Ristovski's name.
13. The respondent was asked: "In paragraph 26 when you say: 'The solicitor here acting separately from his client' is that another way of putting the same conclusion, that it was solicitor driven?" The respondent said: "yes if I go back to 23 for instance, I mean I was saying it was based on my instructions. This is what we were being told by Tony [Ristovski]".
14. The respondent was asked to look at a document dated 6 September 2016 in exhibit R1. He was asked if he recalls when he was provided with that correspondence. The respondent could not recall.
15. The respondent was asked questions in re-examination.
16. The respondent was asked to look at his second statement (exhibit R5) and go to paragraph 29. He was asked if it is true and correct. He responded "yes". That paragraph is as follows: "This is what I was most concerned about when I settled Tony's Points of Claim dated 16 November 2016 (Tolhurst affidavit at page 21) after this letter."
17. The respondent was asked to go to exhibit R2. That is an email from Nadine dated 6 May 2016. The respondent was asked what he wanted to say about that email. The respondent started to answer that question and then moved away from the question and delivered his own submission which was intermingled with what could be accepted as his evidence. Doing the best we can, we have extracted the following evidence from his extensive statement: "The first thing to note from the email was that it was sent to myself and to Tony Seaboss. That was the email address for Tony Ristovski. … I had asked Nadine to keep a diary… As part of her diary on that day she sent the email. Joska is her mother-in-law. Marina was Alex's wife… Joska needed intensive daily treatment. She suffered from severe diabetes….Nadine had to go to the house and inject her every day on at least two occasions. When Tony went to see his mother he was told that she had been driven by Alex to see Alex's solicitor….Joska was also not 100% mentally fit. If Tony would tell me something I'd check it with someone else. If Nadine told me something she had been told, I told her to check it yourself…. I was dealing with people who were extremely emotional. The father had died and they were still trying to recover from that…. The Tribunal cannot say, "this is just another case" this wasn't just another case….. The difficulties I was involved with in actually establishing what had actually happened each time I was told something. I was being told things every day. That is the context in which you have to look at it and when I went to court to do this pleading at the time, it was in that context where, yes, okay well I can't be 100% sure of everything but I had to go by my gut feeling of what was going on and I knew as a fact, for several days, all of the bank accounts were frozen. And I knew, my gut feeling told me, that it wasn't Alex who did it because I can recall there were other documents we are just a few days before the accounts were frozen. Mr Wells had actually sent an up-to-date ASIC search to Alex in a letter and somehow I got a copy of that letter. And saying to him, 'go to the bank you can now prove you're an actual director at this time.' And it's only shortly after that, like a couple of days later, that all was frozen."
18. Although Alex gave an undertaking in writing at Court on 31 October, he did not sign it until 8 November. Mr Wells ceased acting because he was now a party to the action. Although it was urgent that the undertaking be signed, that did not occur until 8 November.
19. The respondent continued to address the Tribunal, really in a manner which was outside the question he was asked, however we permitted him to do so. He described the pressure he felt he was under acting for Tony Ristovski. He understood he was the person doing all the legal work and he did not have the backup resources he felt were necessary to assist him with such a case. (Our understanding of what he said rather than the specific words of the respondent).
20. Importantly the respondent said further: "The other problem I had, for instance, is that that document is also relevant because when I went to court on that day, sorry, before I went to court I tried to get an affidavit from Nadine … and much to my surprise when I said, 'I need you to put something in writing so I can rely on it in court'… I found out that Nadine had gone overseas to Club Med, Malaysia".
21. It appears from the following words that the respondent had not been paid for the work he had done on the case and there was nothing that suggested he would be paid: "and all the time I was being told they could not afford to - not that I asked for very much money, but even then I said 'Look I should get paid something there' and they told me they're just totally stretched financially and they can't afford anything and that's why they did not want to tell me that she had gone to Club Med on a holiday, because they were stressed."
22. The respondent further stated that on the day he appeared before Black J (21 November 2016), he had another case before the Supreme Court. That was in another list and the respondent had miscalculated how long he would be in the other court. He had made arrangements with his solicitor to let him know when Black J had reached his matter. However, that solicitor had not informed him that Black J was waiting for him. It was not until the Associate to Black J entered the other court, where the respondent was waiting his turn to be heard, that the respondent realised Black J had been waiting for some time for the respondent to appear. The respondent expressed his understanding that Black J was "extremely annoyed" with him. Thus the respondent was understandably impacted by the circumstances of his appearance before Black J on that day.
23. The evidence of the respondent having concluded, the respondent's counsel informed us that, in light of the respondent's "Response to the Amended Application for Disciplinary Findings and Orders", the original reply document, marked as exhibit R4, will largely go to the Stage 2 proceedings except for the submission at paragraph 35(a), which is: "That the Bar Council has no independent legal personality". The respondent said the short argument is that the respondent contends the Council is not a legal or juristic entity or an individual and it doesn't have the capacity to be competent in making these proceedings possible.
24. We will refer further to this challenge made by the respondent to the capacity of the Council to commence and conduct this litigation later in these reasons.

Oral Evidence of the Council

1. The Council then provided a submission, which sought to match the Chronology which had been provided as an aid memoire for the Tribunal, with the evidence contained in the affidavit of Gregory John Tolhurst sworn 9 November 2020 and relied upon by the Council. The reference in the submission to the evidence in that affidavit is a reference to exhibit GJT1 to the affidavit. The affidavit was marked as exhibit A3 in this hearing. 1. "The Tribunal will have gathered from the evidence that has been led by the respondent that there was a very complicated family dynamic occurring in the Ristovski family in 2014 and onwards. Part of that process included proceedings that were commenced in 2015 and at the end of 2016, there were orders made in relation to those proceedings and relevant orders appear at p 44 of the exhibit A3". (We note that the order was made on 21 October 2016.) 2. "What occurred on 28 October 2016 is that Mr Wells was sent at Balmain Lawyers…a letter from Associated Legal attaching what purported to be an interlocutory process in those 2015 proceedings. The Tribunal will find that at pp 10 and 11 [of exhibit GJT1 to the affidavit]. Starting at p 10 of the bundle is the letter. This is the first place the Tribunal will find allegations are made against Mr Wells and specifically the Tribunal will find that at p 15 of the bundle of exhibit A3." (We note there is an injunction sought against Mr Wells to restrain him personally or in his capacity as an agent or as a legal representative for Alecsandar Ristovski, Marina Ristovski or Jovka Ristovska participating in any activity whatsoever involving the transfer, encumbering, mortgaging or otherwise affecting the value of a list of corporations, real property, bank accounts and Sydney Market Stalls. Further an injunction was sought against Mr Wells restraining him from "aiding, abetting, counselling or procuring Alecsander Ristovski, to contravene or attempt to contravene the requirements of section 181 of the Corporations Act, 2001".) 1. "Orders were made on this interlocutory process on the same day, 28 October 2016…his Honour Black Js comments on a later transcript [and date show] there was some confusion between the status of the 2015 proceedings and this interlocutory process." Then on 31 October 2016 his Honour Black J ordered that new proceedings be commenced. "The Tribunal will see that at order 3 that Mr Tony Ristovski [provided an undertaking to] file an originating process and points of claim seeking final relief." 2. On 16 November 2016 (at page 21 of exhibit GJT1) there is a "Points of Claim" document which has been signed by the respondent. "I have just taken the Tribunal to in relation to the injunctions that were sought against Mr Wells." 3. "In the points of claim crucial reference to Mr Wells starts at p 24 of exhibit A3, para 39 where the allegation is made that the dispute started with 'the fourth Defendant [Mr Wells], as solicitor for the First Defendant, forwarding [By post] requests for copy of company documents. It was generally claimed that the First Defendant required the documents to fulfil his duties as director'. The Tribunal will have seen that's exactly what the correspondence in R1 shows, the very first document in R1 was 28 November 2014 letter to Mr Tony, in which Mr Wells quite properly and normally sets out the basis upon which his client Alex Ristovski says he is entitled as a director to certain company documents." 4. "What you will then see Tribunal from para 40 are various complaints which we've heard reiterated again today, about the way the Fourth Defendant Mr Wells communicated with members of the Ristovksi family, including Tony and Alex's father who was at that point very ill." Then finally at paragraph 49 the following is set out: "In the premises the Plaintiff's contend that the comment of the original proceedings by the First and Fourth Defendants may constitute evidence of lack of good faith on the part of the First Defendants part. The 1st Defendant was aided and abetted by the Second and Fourth Defendant in the use of the original proceedings for an improper purpose; which included damage to the 1st to 10th Plaintiffs." 1. "On 18 November [2016] what occurred was that the formal documents were filed and the Tribunal will find that starting at p 32 of exhibit A3 which is the originating process in the Corporation's List." At page 36 paragraph 7 the particular relief that is sought is as follows: "The First and Fourth Defendants are enjoined from providing any advice to Jovka Ristovska or from causing Jovka Ristovska to transfer any asset currently registered in Jovka Ristovska's name to the First and/or Second Defendants or to any of the First and Second Defendant's children and/or to any entity in which the First and Second Defendants have any interest whatsoever." 1. The Originating Process filed on 18 November 2016 was signed by the plaintiff's solicitor Mr Mukul Dey. 2. Jovka Ristovska is the mother of Alex and Tony Ristovski. 3. On 21 November 2016 all of these matters came before his Honour Black J. At page 65 of exhibit A3 the Tribunal will find the beginning of the transcript for 21 November. The appearances are set out on page 65. The respondent for the plaintiff and Mr Davidson SC for the first and second defendants. Once Mr Wells was joined as a defendant or was a defendant to the 2016 proceedings, he couldn't act any longer for the first and second defendants and part of the steps that occurred was that Mr Davidson SC was brought in with new solicitors to act for Alex Ristovski and his wife. 4. At page 67 of exhibit A3 the transcript of 21 November 2016 "His Honour Black J says there, he notes the 2015 proceedings should now be closed." 5. "[F]rom p 74 of Exhibit A3 the Tribunal will see Mr Cheshire sets out orally the basis upon which he proposes to argue that the fourth defendant [sic], the claim as against the fourth defendant should be struck out." This is important because of what occurred on 28 November 2016 when the respondent conceded the point made by Mr Cheshire that the Originating Process and Points of Claim could not stand in present form. 6. "At the bottom of p 75 specifically… from line 30 the respondent is offered the opportunity of dealing with Mr Cheshire's application as articulated, without an interlocutory application…on the very last line, line 50 on p 75 the Tribunal will see that what the respondent proposes is to require Mr Wells to file an interlocutory process in the 2016 proceedings and an affidavit in order to proceed to strike out the points of claim and the originating process so far as it concerned Mr Wells on the pleading point that Mr Cheshire had identified." 7. On 22 November 2016 the Fourth Defendant in the 2016 proceeding filed his Interlocutory Application to have the claim against him struck out. 8. When the matter was stood over for the Interlocutory Process and evidence to be filed, Black J also provided for the plaintiffs in the 2016 proceeding to also file evidence. No evidence was filed by the plaintiffs. At no point was evidence put on to support the allegations made against Mr Wells. 9. The order sought in the motion which is at page 63 of exhibit A3, "only sought an order striking out the originating process and the interlocutory process as against the fourth defendant." 10. An affidavit from Mr Wells (page 42 exhibit A3) was filed. Mr Cheshire did read an affidavit at the hearing on 28 November 2016. 11. "In Mr Cheshire's submissions [p 80 exhibit A3] he makes the point that the originating process is not supported by an affidavit.. at p 80 para 8(a), he says [the process is] defective because it's not supported by the required affidavit which might otherwise shed some light on the case brought against the fourth defendant." 12. On 25 November 2016 the respondent signed submissions (page 84 exhibit A3) for the Interlocutory Process in relation to Mr Wells. The submission addressed the case against the fourth defendant, Mr Wells, at page 86 of exhibit A3. We note the content of the submission included the following in relation to Mr Wells: "The case against the 4th Defendant currently includes: 17. Aiding and abetting the First Defendant in relation to breaches of section 181 of the Corporations Act (The Act). … 20. It is respectfully submitted that the evidence of Mr Tony Ristovski filed on 28 October 2016 would support a claim that the Fourth Defendant aided and abetted the First Defendant in breaches of sections 181-184, of the Act. 21. The Fourth Defendant was a shadow director of the Second to Tenth Plaintiffs through the Fourth Defendant's actions and directions provided to the First Defendant. 22. The Fourth Defendant aided and abetted the First Defendant in the oppressive conduct, the subject of complaints made in the opening paragraph of the Originating Process. 23. Subject to final instructions, it will be submitted that the Fourth Defendant overstepped his function as a lawyer and/or officer of the Court." We note section 184 of the Corporations Act 2001 (Cth) provides as follows: 184 Good faith, use of position and use of information - criminal offences 1 Good faith - directors and other officer (1) A director or other officer of a corporation commits an offence if they: (a) are reckless; or (b) are dishonest; and fail to exercise their powers and discharge their duties: (c) in good faith in the best interests of the corporation; or (d) for a proper purpose. Note: Section 187 deals with the situation of directors of wholly‑owned subsidiaries. Use of position - directors, other officers and employees (2) A director, other officer or employee of a corporation commits an offence if they use their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. (2A) To avoid doubt, it is not a defence in a proceeding for an offence against subsection (2) that the director, other officer or employee of the corporation uses their position dishonestly: (a) with the intention of directly or indirectly gaining an advantage for the corporation; or (b) with the result that the corporation directly or indirectly gained an advantage. Use of information - directors, other officers and employees (3) A person who obtains information because they are, or have been, a director or other officer or employee of a corporation commits an offence if they use the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for themselves, or someone else, or causing detriment to the corporation; or (b) recklessly as to whether the use may result in themselves or someone else directly or indirectly gaining an advantage, or in causing detriment to the corporation. (4) To avoid doubt, it is not a defence in a proceeding for an offence against subsection (3) that the person uses the information dishonestly: (a) with the intention of directly or indirectly gaining an advantage for the corporation; or (b) with the result that the corporation directly or indirectly gained an advantage.) At paragraph 26 of the submission a heading is set out as follows: "Reply to arguments raised on behalf of the Fourth Defendant". Under that heading the following is included: "…the Plaintiffs will respectfully seek leave to file further affidavits in support of the claims against the Fourth Defendant; … on instructions, evidence will be provided to the effect that numerous attempts were made to entice the Third Defendant to attend the offices of the Fourth Defendant and to provide instructions to the Fourth Defendant. … As to paragraph 9: it is respectfully submitted that the Plaintiffs ought be allowed to amend the Points Of Claim so that all outstanding issues among the parties may be resolved in a just, quick and efficient manner." 1. On 28 November 2016 Black J had before him the Interlocutory Process filed by the Fourth Defendant in the 2016 proceeding. The transcript is at page 88 of exhibit A3. 2. At that hearing the respondent, on behalf of his clients, relied upon the affidavit of Mr Tony Ristovski sworn 28 October 2016. 3. The submission of Mr Wells' counsel was: "Put very simply, your Honour, I say there is no case that is disclosed against Mr Wells in the document that is called 'Originating Process' and the interlocutory process." The submission went further to say that the case brought against Mr Wells is made without any facts being identified to justify it. 4. Mr de Robillard commences his submissions at line 37 of page 95 of exhibit A3. The respondent accepted that there were issues in relation to the pleading against Mr Wells. He said: "In relation to the fourth defendant, we would concede that the points of claim are not satisfactory and ought to be amended, but that does not mean we say, your Honour, that there should be summary dismissal. We agree with respect to Mr Cheshire's submissions but we say one needs to look at what happened in the 2015 proceedings and the circumstances in which the 2016 proceedings were commenced." The respondent made clear, in answer to a question from Black J, the originating process and points of claim, as against the fourth defendant, as now formulated, cannot stand in their present form. 5. Specifically at page 96 line 20, Black J says: "Does it follow also from that that the only issue in dispute is whether if the originating and interlocutory process and points of claim are struck out as against the fourth defendant, as would ordinarily follow from a concession that they cannot stand, then your client should be granted leave to replead?" And the respondent said: "Yes, your Honour." 6. At line 28 on page 96 of exhibit A3, the respondent is asked by Black J, "Why couldn't Mr Cheshire and Mr Davidson be advised of that last week so they have not been put to two occasions of attending Court to be told that you did not defend the pleading in its present form?". The respondent replied: "Because of the circumstances which happened before we were able to file documents, your Honour, for instance, Mr Cheshire mentioned that obviously it's quite a serious matter to be taking proceedings against a solicitor and an officer of the Court. I was not able to obtain sufficient instructions to have an affidavit sworn simply because one of the parties who could provide relevant evidence is overseas until Wednesday". 7. In the document identified as "Reply to Fourth Defendant's Outline of Submissions" and in particular at page 86 of exhibit A3, Mr Wells is identified. Allegations are put in the written submissions, at paragraph 17, of "aiding and abetting the First Defendant in relation to breaches of section 181 of the Corporations Act (The Act)". There is also an allegation at paragraph 20 relying on an affidavit of Mr Ristovski. The written submission states the facts set out in that affidavit supports a claim that the Fourth Defendant aided and abetted the First Defendant in serious breaches of the Corporations Act. 8. There is a new allegation, at paragraph 21 of the Submission document (page 86 exhibit A3), that Mr Wells was in fact a shadow director of the various corporate entities identified as the second to tenth plaintiffs, through his actions and directions provided to Mr Alex Ristovski. 9. At paragraph 22 (page 86 exhibit A3), there is an allegation that Mr Wells aided and abetted the First Defendant in the oppressive conduct the subject of complaints made in the opening paragraph of the Originating Process. 10. At paragraph 23 (page 86 exhibit A3), there is a statement that "[s]ubject to final instructions, it will be submitted that [Mr Wells] overstepped his function as a lawyer and/or officer of the Court". 11. The submission is signed by the respondent (page 87 Exhibit A3). 12. In the hearing on 28 November 2016 the respondent relied upon the affidavit of Mr Tony Ristovski (see page 90 exhibit A3). 13. At page 91 of exhibit A3, Mr Cheshire submitted that: "there is no case… against Mr Wells in the document that is called 'Originating Process' and the interlocutory process." 14. At line 29 of page 94 of exhibit A3, Mr Cheshire's specific complaint is stated: "this is a solicitor of considerable standing against whom proceedings have been brought and for whom it is therefore a very serious matter, and quite what is meant by, 'Overstepped his function as a lawyer and/or officer of the Court', it appears what is being said is: 'You are a lawyer acting for the plaintiffs but somehow you were overly aggressive or you helped the first defendant in some scheme, and by doing that, you became a shadow director, you aided and abetted breaches'". Further, Mr Cheshire submitted: "But these would all be matters occurring after the proceedings and really would require very considerable factual explanation and factual support to justify such allegations." 1. Mr Cheshire submitted (page 95 of exhibit A3) there was nothing in the Originating Process or in the Points of Claim which would support the allegations set out in the written submission. 2. An order was made by Black J for the respondent to personally pay a costs order on 28 November 2016. 3. In the judgment provided by Black J on 28 November 2016 (see page 111 of exhibit A3) the following is said: "The first difficulty with that allegation is that the facts, matters and circumstances, which are said to establish the proposition that the original proceedings were used for an improper purpose, are not identified. To the extent that they turn on the previous sentence, that sentence goes no further than that certain matters 'may constitute' evidence of that matter. The further difficulty with that allegation is that an allegation of aiding and abetting, by a solicitor who is acting in proceedings, is a most serious allegation indeed. That is not to say that, in a proper case, it cannot be made. However, if it is to be made, it needs to be pleaded in a way that is proportionate to the serious character of the allegation that is made, so that the party against whom it is made has a proper basis to understand it." 4. In the hearing before Black J his Honour noted that the respondent, in his written submissions, initially sought to defend the pleading, however in the hearing the respondent recognised the pleading could not stand in its present form.
2. We made note of the following submissions made by the Council as the Chronology was linked to the evidence in exhibit A3, which we have set out immediately above. 1. The Council has not approached the matter saying the lack of an affidavit has an effect on the allegations made by the Council. Mr de Robillard in the hearing before Black J said he had been unable to obtain instructions and part of the allegation that the Council makes is that, as at 21 November and prior thereto, in breach of the Barristers Rules, there was no reasonable basis, whether or not it was in an affidavit or not. 2. From Mr de Robillard's oral evidence, in this hearing, the Council says it is open for the Tribunal to find that Mr de Robillard did not have instructions in relation to the serious allegations that were made against Mr Wells. Further, the Tribunal could be well satisfied of that as the respondent has still not articulated what those instructions were. 3. The respondent informed the Tribunal he formed a view from his gut about Mr Wells' actions, and in particular Mr Wells' action as a solicitor when Mr Alex Ristovski personally was incapable of thinking about this strategy to potentially protect his legal rights as against other members of his family. 4. The Barristers Rules relied on require a belief by the barrister on reasonable grounds. In rule 65(a), as an example, a barrister must not allege any matter of fact amounting to serious misconduct against any person unless the barrister believes on reasonable grounds that available material, by which the allegation could be supported, provides a proper basis for it. If there had been an affidavit, we would not be here now. There will be circumstances in which a barrister will have instructions to put a submission or sign a document that hasn't been sworn in an affidavit form, that will give them reasonable grounds for making the allegation. 5. The Council does not rely, in this matter, on the failure to obtain an affidavit in answer to Mr Wells' interlocutory process. That is not a particular or a basis upon which it is trying to establish Ground One. We say much more fundamentally that the respondent did not have a basis for his belief, on reasonable grounds, that there was available material by which the allegation of serious misconduct by Mr Wells could be supported. 6. The evidence given by the respondent in the hearing before the Tribunal goes to the state of mind of Mr de Robillard in October and November 2016 and is thereby connected to the Particulars provided in the Complaint document (the Application before the Tribunal).
3. The Council then addressed Ground Two and the chronology and evidence which relates to that ground. The Tribunal notes the following from that oral submission: 1. At page 118 of exhibit A3, Balmain Lawyers on 8 December 2016 provide the respondent with an opportunity to pay immediately those costs. 2. At page 129 of exhibit A3, Balmain Lawyers again on 25 January 2017 sought to obtain payments of the costs from the respondent. By that time Mr Wells had paid counsel's fees and so was seeking reimbursement of those fees. 3. At page 131 of exhibit A3, Balmain Lawyers on 14 February 2017 then filed a costs assessment application in the Supreme Court. 4. At page 152 of exhibit A3, commencing on 11 April 2017, there are copies of email communication between the Costs Assessor, Balmain Lawyers and the respondent. 5. At page 156 of exhibit A3, there is an email, in response, by the respondent asking for an extension of time in relation to making submissions. That extension is granted. 6. The Registration of the Certificate of Costs is filed 7 June 2017. The amount was $16,906.36. (see page 178 Exhibit A3). 7. At page 182 of exhibit A3 is a demand for payment from Balmain Lawyers. 8. At page 184 of exhibit A3, on 14 June 2017, the respondent disputes the capacity to enforce the judgment. The respondent said he will be lodging an application for review. In an email dated 14 June 2017 the respondent said "I do not accept your client is entitled to enforce the judgment entered on 7 June 2017." The respondent did not at any timer thereafter lodge a Review Application. 9. At page 186 of exhibit A3, on 15 June 2017 Balmain Lawyers invited the respondent to pay the amount into their Trust account to be held pending the Review to be lodged by the respondent. The respondent did not do that. 10. At page 283 of exhibit A3, the Bar Association is notified that Mr de Robillard was served with a creditors petition. (We note he was made a bankrupt in August 2017). 11. On approximately 13 August 2021, the costs, the subject of the Supreme Court order, were paid by Mukul Dey, the respondent's instructing solicitor in the first and second proceedings.
4. We note the submission of the Council that in relation to the second ground, which is identified as the respondent engaging in professional misconduct or in the alternative, unsatisfactory professional conduct, by failing to comply with the order that the respondent pay $16,906.36 to Mr Wells, personally, the Council is still pressing its case.
5. In the process of connecting the Chronology to the evidence relied upon by the Council, it will be seen that the Council specifically identified that evidence. We have had regard to all that evidence.

The Submission of the Applicant

1. The Council provided written submissions. In the document provided and headed "Submission of the Applicant" we note the following.
2. The Council set out details of the admission to practice as a barrister for the respondent and that the Council cancelled his practising certificate for the year ending 30 June 2017 and had not since granted a further practising certificate. The Council notes that section 262(4)(a) of the Uniform Law extends the application of Chapter 5 to former Australian legal practitioners. There is no challenge to that.
3. The Council submits that on 14 May 2020 the Bar Council resolved, pursuant to section 300 of the Uniform Law, to commence the present proceedings in the Tribunal on the basis of the matters raised in Mr Wells' complaint. The respondent's conduct the subject of the proceedings has two limbs: 1. first, the respondent made allegations of fact, including allegations amounting to serious misconduct against Mr Wells which were not reasonably justified or properly available on the material; and 2. second, the respondent has failed to pay a personal costs order that was made against him as a result of this conduct.
4. The Council submits the Tribunal will find that the conduct in both limbs is deliberate, sustained, and inconsistent with the maintenance of public confidence in the legal profession.
5. The Council then set out the Legislative framework it submitted is relevant to the action brought by it before the Tribunal. We refer to this earlier in these reasons.
6. The Council submits the Tribunal will find that from October 2016, or earlier, the respondent was briefed to appear in proceedings Ristovski v Ristovski, No. 375735 of 2015 in the Supreme Court of New South Wales (the first proceedings). The respondent appeared for the defendants in the first proceedings. The plaintiff in the first proceedings instructed Balmain Lawyers to act for him. Mr Warren Wells is the principal of Balmain Lawyers.
7. The Council submitted that on 28 October 2016 an Interlocutory Process was filed for the defendants in the first proceedings. The Interlocutory Process sought the following further order at paragraph 9 (Exhibit GJT1 to the affidavit of Gregory Tolhurst affirmed 9 November 2020 page 12): "That until further order the Fourth Respondent, Warren Ernest Wells, shall not in any way (either directly or through any agent) aid, abet, counsel or procure the First Respondent, Alecsander Ristovski, to contravene or attempt to contravene the requirements of section 181 of the Corporations Act, 2001."
8. The Interlocutory Process was signed by the respondent's instructing solicitor. The respondent did not move on the Interlocutory Process at any time.
9. On 18 November 2016 the defendants in the first proceedings filed an Originating Process (exhibit GJT1 page 34) and Points of Claim (exhibit GJT1 page 22) in proceedings No. 00345756 of 2016 in the Supreme Court of New South Wales (the second proceedings). The respondent continued to appear for the parties that now became the plaintiffs in the second proceedings. Mr Wells became the Fourth Defendant in the second proceedings.
10. The Points of Claim made the following allegation at paragraph 49: "In the premises the Plaintiffs contend that the commencement of the original proceedings by the First and Fourth Defendants may constitute evidence of a lack of good faith on the First Defendants [sic] part. The First Defendant was aided and abetted by the second and Fourth Defendant in the use of the original proceedings for an improper purpose; which included damage to the First to Tenth Plaintiffs."
11. The Points of Claim were signed by the respondent (exhibit GJT1, page 29).
12. The Originating Process at paragraph 7 sought the following order: "The First and Fourth Defendants are enjoined from providing any advice to Jovka Ristovska or from causing Jovka Ristovska to transfer any asset currently registered in Jovka Ristovska's name to the First and/or Second Defendants…"
13. On 21 November 2016, in the course of a directions hearing before Black J, counsel for Mr Wells stated that he intended to argue that the Points of Claim and Originating process as against Mr Wells were fundamentally flawed and outlined his argument (exhibit GJT1 page 73 in lines 30 - 35, page 74).
14. The Council then outlined that on 22 November 2016 an Interlocutory Process was filed by Mr Wells. At the hearing of that Interlocutory Process on 28 November 2016 the respondent signed and delivered written submissions which set out the case against the Fourth Respondent (Mr Wells). The detail of that submission we have set out earlier in these reasons.
15. At the hearing on 28 November 2016 the Council says the respondent conceded the Originating Process and Points of Claim could not stand. We have set out the evidence arising from the transcript of that hearing earlier in these reasons.
16. The Council relied upon the words of the respondent in his address to Black J on 26 November 2016 which we have set out in these reasons. That address was to the effect that he was unable to obtain instructions for an affidavit to file in support of the Originating Process and Points of Claim. Such an affidavit he anticipated would be a defence to the interlocutory application before Justice Black on 28 November 2016. We note we have subsequently heard evidence from the respondent that the person who may have been able to provide the evidence to be relied upon was out of Australia on a holiday, a fact the respondent had not been advised of prior to 28 November 2016 (or within sufficient time before the 28 November 2016 for him to take other action in relation to the Interlocutory process).
17. The Council then noted that on 28 November 2016 the Court made a personal costs order against the respondent without objection from the respondent.
18. The Council then submitted in relation to Ground One of the Complaint. "27. ……The respondent repeatedly made the allegation that Mr Wells had commenced and used the proceedings for an improper purpose. The order sought in the Interlocutory Process filed 28 October 2016 (above at [12]), was premised on the allegation that Mr Wells had or would "aid, abet, counsel or procure" a contravention of the law by his client. The respondent did not sign the Interlocutory process or move on it, but he clearly adopted the contents of the document and repeated the allegation in his written submissions set out at [20] above. The respondent's name and signature appears on those written submissions. The allegation was also made in the Points of Claim filed on 18 November 2016, which the respondent signed. 28. The allegation that another legal practitioner had assisted his client to breach the law is an allegation of serious misconduct. The respondent at no time presented the Court with any material in support of this allegation. Rather, at the hearing on 28 November 2018, the respondent made the concessions namely, that the points of claim were not satisfactory as drafted; that the originating process and points of claim could not stand; and that he did not have available evidence in relation to the allegations; and that the reason he did not have that evidence was that he had been unable to get instructions. 29. The admissions made by the Respondent on 28 November 2016 before Black J, independently and together reflect a breach of rule 60(a) of the Barristers Rules. Namely in agitating the Points of Claim and Originating Process in a form which, as conceded by the respondent, could not be supported, the respondent invoked the coercive powers of the Court without reasonable justification. Moreover, and aggravating this conduct, the respondent declined the Court's offer to hear Mr Wells' application to strike out the Points of Claim and Originating Process on 21 November 2016, though counsel for Mr Wells was prepared to be heard on that date. Instead, the respondent put the Court, Mr Wells and his own client to the cost of a separate interlocutory application and hearing of the matter. Those circumstances give rise to a breach of rule 8(c) of the Barristers Rules. 30. The admissions at that he had not advised those representing Mr Wells that he would not be defending the Interlocutory Application and that he had not been able to obtain instructions for the provision of evidence to support the originating process and Points of Claim, independently and together reflect breaches of rules 61(a), 64(a) and 65(a) of the Barristers rules. Namely, they demonstrate that the respondent was acting, knowingly, without adequate instructions in relation to materials that made serious allegations of serious misconduct against another legal practitioner. The Points of Claim and Originating process made those allegations without the support of underlying evidence (rule 61(a)) and the Points of Claim and written submissions, at least, were settled by the respondent (rule 64(a)). Whether or not the respondent believed that there was material by which those allegations could be supported, any such belief could not have been reasonable in circumstances where the respondent did not have instructions to speak to the person he believed could give that evidence (rule 65(a)). To the contrary, the respondent told the Court that "I was careful to say that it's only subject to instructions, it's simply a matter of being able to talk to the person and get instructions for an affidavit to be provided" (GJT1 p 99 ln 7 - 10). The making of those allegations without instructions and without supporting evidence was also conduct that was likely to diminish public confidence in the legal profession, contrary to rule 8(c) of the Barristers Rules. 31. The submission at [23] of the respondent's written submissions (see [20] above) also acknowledges that that the allegation in that paragraph was made without instructions. The absence of instructions in relation to an allegation of that nature in combination with the absence of any material in support being presented to the Court demonstrate that there was no reasonable justification for the allegation on the materials available to the respondent, contrary to rule 61(a), or any proper basis for the allegation, contrary to rule 64(a). When seen in its context in the submissions, it is evident that the allegation that Mr Wells "overstepped his function as a lawyer and/or officer of the Court" is one of serious misconduct. Read with [22] and [17] of the submissions it becomes apparent that this "overstep" refers to the aiding and abetting in breaches of the Corporations Act and in oppressive conduct. Consequently, the making of the allegation without instructions and without supporting evidence was also a breach of rule 65(a) of the Barristers Rules, and conduct that was likely to diminish public confidence in the legal profession, contrary to rule 8(c) of the Barristers Rules. 32. The respondent's continued involvement in the matter leads to the inference that he was aware of the filing of the Statement of Claim on 8 March 2017. That document repeated the claims made against Mr Wells in circumstances where those claims had already been struck out by the Court, and it did so in the absence of any supporting evidence."
19. In relation to Ground Two the Council's submission is as follows: "45. The failure to pay a debt accrued as a consequence of practice as a barrister is connected with the practice of law, and accordingly should constitute either unsatisfactory professional conduct or professional misconduct by the principles set out in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [52] - [66]. In the decision of Legal Profession Board of Tasmania v Kitto [2019] TASSC 39, Blow CJ found "a clear case of professional misconduct" (at [22]) where a legal practitioner failed to pay a personal costs order of $1,250 against him for arranging for his client to appear in the wrong court location and thereby missing his listing. In the present case, the underlying conduct was more serious. Unlike Mr Kitto's 'negligent' conduct (Kitto at [16]), the respondent's conduct was deliberate and sustained. Moreover, the amount of the sum ordered and unpaid was substantially larger in the present case than in Kitto. 46. The respondent has contravened the order of the Court dated 7 June 2017 by failing pay the costs order which became payable on 7 June 2017, contrary to rule 13(q)(i) of the Rules. 47. The circumstances of the respondent's failure to comply with the Court's order are significant. The failure is not accidental, but rather, as noted above, deliberate and sustained. The respondent has been repeatedly invited to pay the costs ordered against him and has been apprised of the terms of the order - that it is payable forthwith - on at least two occasions, being the time that it was made by the Court before which the respondent appeared, and in correspondence from Balmain Lawyers on 15 June 2017. The nature of the order is that it was made to remedy the respondent's own conduct, that the Court identified above at [23], which had the effect of exposing Mr Wells to unnecessary costs. The conduct from which the costs order arose is also, in the submission of the Bar Council, conduct that was contrary to the respondent's professional obligations and amounted to professional misconduct. In those circumstances the respondent's failure to comply with the court order is particularly serious, and amounts to professional misconduct."

The respondent's Case

1. We have set out earlier in these reasons the evidence and the oral submission provided personally by the respondent, at our invitation. We allowed the respondent to make that submission himself as he was obviously feeling constrained by the narrow range of evidence being led against him. We understand from the respondent that in order to treat him fairly in this hearing, he needs us to understand the circumstances in which he found himself from the time he commenced to act for Mr Tony Ristovski in response to action which had been taken by Mr Alex Ristovski whilst being represented by his solicitor Mr Wells. That time was about Australia Day, January 2016.
2. In addition to that evidence and the submission above referred to, the respondent provided his own Chronology which set out background facts which were itemised commencing on 3 March 1995. The items which clearly connected to the litigation in which the respondent was briefed, commencing at 4 July 2014.
3. In the Chronology the respondent provided, he sets out that he received a Creditors Petition on 30 November 2017. In his evidence he told us he had been made bankrupt on 17 August 2017. The dates appear inverse, however, there is no challenge to the fact.
4. The respondent filed three written submission documents. Those documents were dated 10 September 2021 (prior to the hearing which commenced on 13 September 2021), 15 September 2021 and 16 September 2021. The last of those documents was provided following the hearing. In the last of the documents the respondent sought to have tendered in his case a copy of the affidavit of Mr Tony Ristovski dated 28 October 2016. The respondent was critical of the Council for not providing the document earlier than the last day of the hearing.
5. We have accepted the affidavit of Mr Tony Ristovski into evidence and have marked the document as exhibit R7 as requested by the respondent. The respondent pointed out that the affidavit was filed in the 2015 proceeding and was read in the 2016 proceeding before Black J.
6. The respondent submitted: "8. The Tribunal will recall that the respondent made firm submissions that the Tribunal could not really appreciate what was going on at the relevant time unless the Tribunal had a grasp of the documents in the 2015 proceedings (including the pleadings, the transcripts of the oral hearings and Tony's two other affidavits made in the 2015 proceedings on 11 April and 28 October 2015). 9. The applicant should have put on all the relevant evidence and done so well before the hearing commenced. 10. Tony's affidavit is replete with facts and matters that explain the circumstances the respondent found himself in on 28 November 2016 in the pleadings strike out application he was in before Justice Black in the Supreme Court. 11. Those facts and matters include: 11.1. At [10], [11], [12] and [13] provide necessary context to the events as they transpired, including the letter from Mr Wells at annexure A, page 15. It evidences a barrage of letters sent to Tony and his father by Mr Wells. 11.2. At [35] to [39] Tony discussed the 2015 litigation and puts it in context. 11.3. At [43] Tony deposes as to the freezing of the family business bank accounts. 11.4. At [44] it is clear that Alex's solicitor, Mr Wells was instrumental in having these bank accounts frozen. 11.5. At [47] and [48] of the affidavit, Tony deposes his belief that Marina Ristovski (Alex's wife) and Warren Wells were personally responsible for the freezing of the family's bank accounts. He described them as a significant driving force. 11.6. At [49] to [54] Tony deposes as to the significant damage the freeze was doing to the family businesses. 11.7. At [64] to [71] Tony describes further damage being done by the freeze. 11.8. At [72] and [72] Tony asked through his lawyers Alex to rectify the damage being done by the freeze. Mr Wells replied in a letter dated 6 September 2016 (which is the same as the last letter in exhibit R1 and listed in Tony's affidavit, and reproduced at pages 24-25). 11.9. At [73], Tony said: "Of particular concern is Mr Wells' statement at paragraph (2) on page 2: "I am also to take control of the market stalls which are in my client's name and to approach the banks in which the companies operating the business have accounts and demand that my client be required to sign all cheques before funds are removed from those accounts. Bluntly, Alex has lost patience." (emphasis added)" (emphasis in original) 11.10. At [77] to [104] Tony discusses his mother Jovka and her position in the family business, her frailty and health problems and the attempts by Alex and his solicitor to influence her. 11.11. At [118] and [119] Tony discusses the District Court proceedings that ran in parallel with the Supreme Court proceedings. 11.12. At [120] to [126] Tony summarises the position as to the dispute with his brother Alex and with Mr Warren Wells. 11.13. At [127] Tony asks the Court to grant the interlocutory application in the 2015 proceedings (which appears at exhibit A3 at page 54). 12. All this evidence, including the annexures to Tony's affidavit support the evidence as was given in the Tribunal proceedings by the respondent. 13. As at the time the points of claim were struck out by Justice Black, effectively by consent, on 28 November 2016, there was urgency and multiple court cases and action taken by Alex and Mr Wells designed to and which almost did cripple the family's businesses. 14. The respondent plainly had some basis to consider at the relevant time that Mr Wells had some input into these events other than as an ordinary solicitor acting (even robustly) for a client. 15. The applicant's application should be dismissed with costs."
7. The evidence which is detailed above as coming from the affidavit of Mr Tony Ristovski is in our opinion important to the determination. The respondent placed considerable importance on the affidavit as establishing a sufficient basis to enable the respondent to frame the documents he did, addressing behaviour on the part of Mr Wells which was then relied upon by the respondent to make the claims of misconduct against Mr Wells which we have detailed earlier in these reasons. We will set out our findings in relation to that affidavit hereafter.
8. The Council filed a Submission in Reply to the submission of 16 September 2021, above set out. The Council submitted as follows: "Ristovski affidavit, originating process and freeze of accounts 20. Contrary to the respondent's 16 September 2021 submissions, none of the Ristovski affidavit, the 2015 originating process or the circumstances of frozen corporate accounts provides a proper basis or reasonable justification for the allegations made by the respondent. 21. The Federal Court held in Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 57 FCR 360 at 22 that "A reasonable basis of fact would comprehend, in addition to written material, instructions and matters of inference, as well as oral statements". The Court specified that proper inferences were acceptable (at 28), while "mere speculation" was not (at 29). 22. With regard to a "proper basis" in rules 64 and 65, Fowler & Ors v Toro Constructions Pty Limited [2008] NSWCA 178 at [24]-[25] considered the question of "what provides a proper basis for alleging a fact" as follows: The test to be applied ... will vary according to the circumstances. For example, allegations of criminality or fraud will be treated differently from allegations not carrying a degree of opprobrium; allegations which may depend on the veracity of the client may be treated differently from allegations of facts derived from other sources. Where some investigation may be reasonably necessary before making an allegation, the degree of investigation may depend upon the resources of the client, the amount in issue and other factors. More exiguous material may be sufficient in relation to the commencement of proceedings, especially if a limitation period is about to expire, than would be sufficient at the commencement of the trial. 23. In circumstances where the allegations were of serious misconduct against a legal practitioner, the Tribunal should find that some investigation was reasonably necessary before making the allegations. 24. The Ristovski affidavit fails to provide any proper basis for the allegations that Mr Wells aided and abetted his client to contravene s 181 of the Corporations Act, to engage in oppressive conduct, or to use the proceedings for an improper purpose. The affidavit, taken at its highest, indicates in relation to Mr Wells that: a. Mr Wells wrote letters to the Ristovski family on behalf of his client that may have been aggressively worded or insensitively timed but were in no way professionally improper; b. The family business bank accounts were frozen by NAB after receiving correspondence from Mr Wells on behalf of his client in his capacity as director of the businesses, and that freeze, as would be entirely expected, did the companies financial damage while it was in force; c. Tony Ristovski believed that Mr Wells was a "significant driving force" of the proceedings because "Alex would not have thought of going to the banks or tried to transfer our mother's Flemington Market Stalls into his name... without having been so advised or urged by" Mr Wells (at [47] - [48]). 25. It should be noted that, contrary to [11.10] of the 16 September 2021 submissions, the Ristovski affidavit does not at any point suggest that Mr Wells attempted to influence his client's mother. The allegations referred to at [11.10] relate exclusively to alleged actions of Alex Ristovski alone."
9. The first submission made by the respondent was dated 10 September 2021. In that submission we particularly noted the following:
10. The respondent points out that he will be addressing "Stage One" matters only in his evidence and submissions. He seeks the Tribunal determine firstly if the Council has established its case against the respondent to the satisfaction of the Tribunal.
11. The submissions provided by the respondent on 15 September 2021 provide the main thrust of his submissions.
12. The first matter addressed is a jurisdictional one. The respondent submits that: "The Bar Council has no independent personality that would make it a competent party to these proceedings". In support of that submission the respondent said: "3. It is not a legal entity or a juristic entity or a body politic or a natural person. 4. It is a group of persons who are elected each year by barristers. 5. There is a different group of persons each year. 6. The Bar Council that investigated the complainant's complaint is not the same Bar Council that sought to commence these proceedings. 7. The applicant's counsel relied on Wentworth v NSW Bar Association (1992) 176 CLR 239 at page 248. 8. That authority is on no assistance. There, the Council went from Supreme Court proceedings (where there was inherent jurisdiction to deal with legal practitioners). Also, the NSW Attorney General had intervened. 9. In the present case, the Tribunal is a statutory entity with no inherent jurisdiction. It is not a court or a superior court of record. 10. It is not a "person" or a "party" to proceedings within the meaning of section 44 and 45 of the Civil and Administrative Tribunal Act 2013 (NSW). 11. It is not a "person" by reference to sections 8 or 21(1) of the Interpretation Act 1987 (NSW). The definition in section 21(1) is "person includes an individual, a corporation and a body corporate or politic." 12. The Bar Council is none of these. 13. The application should be dismissed."
13. The respondent further submitted the proceeding should/could be struck out.
14. The Council addressed the issue of competence to bring the proceeding in the Tribunal. In its Submission in Reply, the Council submitted as follows: "Standing of the Bar Council 2. The respondent's argument that the Bar Council does not have standing to bring these proceedings has two bases: (i) that it is not a legal or juristic entity or a body politic or a natural person; and (ii) ci 21(1)(c) of Schedule 5 to the Civil and Administrative Tribunal Act 2013 (NSW) is not applicable or valid. 3. The Bar Council has standing to bring these proceedings. 4. First, as the High Court has stated in Wentworth v New South Wales Bar Association (1992) 176 CLR 239 at 248: The Bar Association is a company limited by guarantee. Its articles of association provide for "a Council of the Association" and for its business to "be managed by the elected members of [that] Council". It is that Council, constituted by the elected members, which functions as the governing body of the Bar Association and which has been referred to as "the Bar Council". The Bar Council has no separate legal identity but, as will later appear, it has specific statutory powers and functions in relation to barristers and candidates for admission to the Bar. 5. Contrary to the respondent's 15 September 2021 submissions (at [8]), the existence of the inherent jurisdiction was of no relevance to the holding in Wentworth. At 253 the High Court expressly considered that the language of the statute was sufficient to grant the Bar Council a right to appear without need for recourse to the inherent jurisdiction. 6. The Bar Council is now provided for by the Constitution of the New South Wales Bar Association, which states: 14.1 Manage general business of the Bar Association 14.1.1 The business and affairs of the Bar Association shall be managed and administered by the Bar Council. 14.1.2 The Bar Council may exercise all the powers of the Bar Association and: (a) do all the acts that may be done on behalf of the Bar Association; and (b) exercise all the powers that may be exercised by the Bar Association which are not required to be exercised by the Bar Association in General Meeting, by the Corporations Act or by this Constitution. 14.2 Other Powers The Bar Council may exercise such other powers as may be conferred upon it by or under any legislative instrument. 7. Second, the regulatory scheme provides for the Bar Council to commence and maintain these proceedings: a. Section 300(1) of the Legal Profession Uniform Law (NSW) (LPUL), which appears in Ch 5 of the LPUL, provides: (1) The designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that- (a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal; or (b) the alleged conduct may amount to professional misconduct. b. Section 6 of the LPUL provides that a "designated local regulatory authority": means a person or body specified or described in a law of this jurisdiction for the purposes of a provision, or part of a provision, of this Law in which the term is used c. Section 11 of the Legal Profession Uniform Law Application Act 2014 (the Application Act) provides that the designated local regulatory authority for Chapter 5 of the LPUL is the NSW Commissioner, and notes that the NSW Commissioner may delegate Chapter 5 functions to a professional association. d. Section 28(2) of the Application Act provides that the NSW Commissioner may delegate any of his functions under Chapter 5 of the LPTJL to the Bar Council or the Council of the New South Wales Law Society. e. Section 29(c) of the Application Act provides that the Bar Council may exercise functions conferred or imposed on it or the Bar Association as a delegate of the NSW Commissioner. 8. The relevant delegation from the Commissioner (dated 9 October 2019) is attached to these submissions."
15. We have read the document titled "Instrument of Delegation and Diregtion" (sic) which was attached to the submission. We have admitted that document as an exhibit in the Council's case and marked it as exhibit A4.

Further submission of the respondent

1. We note the continuing submission of the respondent which is contained in the document provided to the Tribunal on 15 September 2021. The respondent addressed "Ground One". We note the following in particular in that document.
2. The respondent submitted that the Council was relying upon inferences to establish its case.
3. The respondent submitted: "19. There is no comprehensive evidence that is put before the tribunal by the applicant as to the acts, facts, matters and circumstances that existed immediately before the "Second Proceedings" were commenced and the points of claim document was filed. 20. The respondent gave evidence before the tribunal, exhibits R3 and R5. 21. That evidence is largely uncontested. It was not meaningfully challenged in cross examination by counsel for the applicant. 22. Indeed, counsel for the applicant put so few questions to the respondent in cross examination so as to raise an objection to her submissions based on the rule in Browne v Dunn (1893) 6 R 67 (HL)(a submission cannot be made unless the factual basis for it was first challenged in evidence). 23. In the present case, the rules of evidence apply."
4. The respondent submitted that the affidavit of Tony Ristovski dated 28 October 2016 is "centrally relevant" and goes to the heart of the matters that concern the complaint brought by the Council. We note, at the time of the submission being provided, the respondent did not have available to him a copy of that affidavit. A copy was then made available to the respondent and he tendered it in his case.
5. The respondent submitted that the Council bears the evidential onus and it has wholly failed.
6. The respondent submitted: "36. …the Interlocutory Process (exhibit A3 at page 63) was filed in the 2015 proceedings and the respondent's "reasonable belief" must be assessed by reference to the 2015 proceedings. 37. However, the applicant did not put into evidence any document from the 2015 proceedings, not even the originating application."
7. Further the respondent submitted that: "42. …in his written submissions to the Supreme Court on 25 November 2016, the respondent spoke of his inability to obtain "final instructions" (Ex A3 at page 86 at [23]). 43. The applicant's counsel also submitted that the respondent was "responsible for" the new statement of claim (exhibit page 190). 44. There is simply no evidence for this contention. 45. The document is not signed by the respondent and there is no evidence he adopted it as his own. 46. The submission was never put to the respondent in cross examination and it should not be permitted to be made as a submission now. 47. Ground One should be dismissed."
8. The respondent also submitted that the Council had not established that the respondent was responsible for the "Points of Claim" document which was relied upon by the Council in this case. However, at a point in the hearing, probably after the submission was completed by counsel for the respondent, the respondent in oral submission conceded he was solely responsible for the legal content of the document.
9. In relation to Ground Two the respondent submits this ground should also be dismissed. The respondent said there was a Creditors Petition served on him dated 30 November 2017, however the "public record would show that the respondent was the subject to a Sequestration Order against the respondent on 17 August 2017". The respondent is a Bankrupt at the date of this hearing.
10. The respondent's Senior counsel submitted: "52. The tribunal should not find for professional misconduct when a barrister, obviously struggling financially, fails to meet a debt in a timely fashion. 53. The respondent exposed himself to cross examination by the applicant. No questions were asked about his bankruptcy or his capacity to pay the judgment debt from 17 June 2017 (when the costs were registered) and before 17 August 2017 (his bankruptcy). 54. The Bar Council's counsel submitted that "pay forthwith" meant just that, but the costs were to be assessed and the ordinary costs assessment process ensued. This is a usual process and there was nothing contumelious about not paying until costs are assessed. It would have been different if a lump sum costs order had been made and entered. But there was no lump sum ordered. 55. Further, the respondent may have been able to rely on the High Court principle in Bell Lawyers Pty Ltd v Pentelow (2019) 93 ALJR 1007 to effect that solicitors who conduct litigation themselves personally should not be able to claim their own asserted legal costs. So, technically speaking, the most that was required to be paid was about $10,000 (Counsel's fees), not the full amount as he paid. 56. This ground should be dismissed."

Oral Submissions made by Senior Counsel for the respondent

1. We will try not to repeat matters which have been addressed by the respondent in writing and to which we have already referred.
2. There was an urgent matter which brought the proceeding before Black J and that was that the bank accounts for the companies in which Mr Tony Ristovski held interests (with Mr Alex Ristovski) had been frozen at the instigation of Mr Alex Ristovski.
3. The respondent referred to parts of the evidence contained in exhibit A3 which touched on the freezing of the Ristovski family company bank accounts. At page 208 of the exhibit, there is part of the Statement of Claim document filed 8 March 2017. Paragraph 102(n), which is headed "Actions taken by Alex and Wells included", set out: "as a result of the conversations between Alex and Biljana Kostadinoski, the family company's credit trading facilities were frozen to the extent that no funds could be withdrawn from the family company's accounts without Alex's prior written consent." Further paragraph 102(o) stated "this withdrawal of banking services occurred without any prior notice to Tony, Nadine or any other employee of the family company." The respondent then drew our attention to paragraph 106 of that document (page 208 exhibit A3) where the damage alleged to have been sustained by the Plaintiffs was set out.
4. The respondent submitted that without the totality of the 2015 proceeding documents before it, the Tribunal is prevented from making final determinations.
5. The respondent drew our attention to the order made in the 2015 proceeding on 31 October 2016. Included in that order was a notation of the undertaking given by Mr Tony Ristovski that he will file an Originating Process and Points of Claim seeking final relief by 4 pm on 14 November 2016. That Originating Process was to be listed for directions in the Corporations List on 21 November 2016. The Points of Claim document which was filed pursuant to that notation was signed by the respondent.
6. The respondent also drew our attention to Notation 4 made on 31 October 2016 which stated: "Note the undertaking of the First Respondent to the Interlocutory Process dated 28 October 2016, by his legal representative Mr Wells, that, by 4 pm on 1 November 2016 he will: (a) Sign a document in terms and addressed to the Manager, National Australia Bank Ltd, Marrickville Branch and to the Manager, Commonwealth Bank of Australia Ltd respectively as per the handwritten documents initialled by Black J today and placed in the file; and (b) Cause a signed version of the two documents to be forwarded by email to: (i) (officer of the NAB) with respect to the National Australia Bank Ltd; and (ii) (officer of the CBA) with respect to the Commonwealth Bank of Australia Ltd."
7. The respondent submitted that the order referred to above, together with the documents contained in exhibit R1, are critical to the understanding of the circumstances in which the respondent found himself in October and November 2016.
8. It was submitted that the respondent found himself representing Mr Tony Ristovski, and the companies which were operated by the Ristovski family, in urgent action to free up the banking accounts of those entities which had been frozen by the action of Mr Alex Ristovski. That freezing of the bank accounts had meant the businesses operated by the respondent's clients could not operate. Substantial damage was alleged to arise as a result of that action.
9. The urgency of the situation required the respondent to put on a pleading in circumstances where one of the people instructing him was overseas.
10. The respondent then addressed the jurisdictional issue, which we have set out elsewhere in these reasons.
11. The respondent referred to page 289 of exhibit A3 where, in an email dated 9 February 2018, the respondent sought an extension of time from the Council, to reply to the Notice issued pursuant to section 371 of the Uniform Law. In that email the respondent set out: "I have for some time been suffering from slight depression which is being treated with an anti-depressant." The respondent submits this is relevant information for the Tribunal to consider.
12. In relation to the bankruptcy of the respondent it was pointed out that on 17 June 2017 a cost order was registered after being assessed by the costs assessor. It was only two months before the respondent was made bankrupt on 17 August 2017. Further, the respondent points out that once the bankruptcy had been established it is the trustee in bankruptcy who was responsible for payment of debts, owing at the time of the sequestration order being made.
13. The respondent pointed out how crucial the affidavit of Mr Tony Ristovski, which was read in the proceeding on 28 November 2016, was to the respondent's case. We note at that time a complaint by the respondent that the Council had failed to provide that document to the Tribunal.
14. In relation to the determination of Black J following the hearing on 28 November 2016 the respondent points out that the decision to strike out the pleading was a decision based on the pleading. The respondent further points to the fact that there was no representation by the respondent, post the appearance on 28 November 2016.
15. It was submitted that the Tribunal could not be satisfied that the respondent had no basis on which to make the allegations against Mr Wells. To make a finding that there was no basis, the Tribunal would have to have regard to all the relevant evidence which the respondent was exposed to, in relation to the role of Mr Wells in acting for Alex Ristovski, up to the time the respondent settled the Points of Claim document and the written submissions he provided for the 28 November 2016 hearing.
16. The respondent addressed a letter dated 6 September 2016 from Mr Wells to Tony Ristovski, which document is part of exhibit R1. He submitted, that the tone of the letter removes it from being described as "an ordinary solicitors letter made in ordinary commercial litigation". It is framed in strong language and the respondent submitted it was concerning that Mr Wells intended to take action independently and of himself. Whilst appreciating that the action was connected to his client Alex Ristovski, having regard to the content of that letter, through the eyes of the respondent, must be seen to have reasonably raised concern for the respondent as to whether the solicitor himself was personally involved in the litigation. The respondent submitted that the letter dated 6 September 2016 raises the greatest concern for the respondent as to the involvement of Mr Wells in the litigation.

Oral Submissions of the respondent in Person

1. As stated earlier we extended to the respondent an opportunity to put his own submission orally. We did this because the respondent appeared to be frustrated by the requirement that he restrict his answers in cross-examination to that which was necessary to answer the question asked or the proposition put. We did, however, provide him with latitude during his cross-examination, which might otherwise not be expected in civil litigation.
2. We will here set out those matters in the respondent's lengthy oral submission which have not been recorded elsewhere in these reasons.
3. The respondent addressed his attendance on 21 November 2016 before Black J. This was the first return date of the 2016 proceeding. That had commenced as an interlocutory process in the 2015 proceeding. On that occasion, unexpectedly to the respondent, the legal representative for Mr Wells made submissions in relation to striking out the Originating Process and the Points of Claim. The respondent said that he could not properly hear the submission and he was taken by surprise that the application was being made in a busy duty list before Black J. Black J had then asked the respondent whether he was prepared to deal with that application on that day or whether he required a formal application to be filed by Mr Wells. The respondent said he wanted to read the submission of Mr Wells' counsel. He did not have time to spend on this matter then, as he had another Corporations List matter.
4. The respondent said that the lead up to the appearance by him on 21 November 2016 had commenced with bank accounts having been frozen on about 21 October 2016. Further action had been taken which prevented the respondent's clients using market stalls.
5. The respondent pointed out that the proceeding which had been before the court on 21 November 2016 had commenced on 22 December 2015 seeking documents from related corporations in the Ristovski Group. He said that the court documents really disguised what had been happening between the parties in the lead up to 21 November 2016. That was disclosed in the documents which were exhibits on behalf of the respondent in this Tribunal hearing. The respondent particularly focused on the letter dated 28 November 2014 which was received by his client Mr Tony Ristovski. As part of the circumstances in which the respondent's client found himself, the respondent stated that there was a District Court proceeding also running alongside the Supreme Court proceeding. That then caused complications in relation to administering the estate of Tony and Alex Ristovski's father.
6. In relation to his attendance before Black J on 28 November 2016 the respondent said he was relying, on that day, on the affidavit of Tony Ristovski, which had been sworn on 28 October 2016.
7. In relation to the attendance before Black J on 28 November 2016 the respondent noted that he had "upset" Black J by being late to attend before his court.
8. In early August 2016, the respondent said there had been an appearance in the 2015 matter by another counsel representing the respondent's clients. The respondent had not been available on that day nor had he been in attendance at a mediation which took place on about 8 August 2016. Following that mediation he was instructed that Mr Wells had made a statement or said words, within the hearing of his clients, which supported some of the matters being put against Mr Wells in the Points of Claim document and the supporting submission. The respondent said he had instructions in relation to what was said however, although he had an affidavit from his client Mr Tony Ristovski, he did not have a corroborating affidavit from Nadine Ristovski, as she was overseas at the time he needed her to provide her evidence.
9. The respondent said that between 31 October 2016 and 8 November 2016 he did not know whether it was Mr Wells who was still acting for Alex Ristovski or whether there had been appointed a new solicitor to act for him. It was only on 8 November that the undertaking given by Mr Wells, on behalf of his client on 31 October 2016, was complied with. Further, there were interlocutory orders sought in the 2015 proceeding which were transferred into the 2016 proceeding. The respondent submitted that action created a direct transfer of the 2015 proceedings into the 2016 proceeding. The 2016 proceeding then became focused on the conflict within the Ristovski corporations arising from the fact that both Alex and Tony Ristovski held beneficial interests in the corporations and could not agree on how the businesses, owned by the corporations, would operate on a day-to-day basis.
10. The respondent submitted that the 2015 proceeding was not, in reality, a "normal Corporations list matter" with one share holder seeking access to documents. He said "It was a strategy to engage in some sort of pressure in a family which was still recovering" from the death of the head of the family. The respondent said the family was in disarray.
11. The respondent addressed matters relating to his bankruptcy. The respondent said he had been served with a Creditors Petition sometime in May 2017. He made disclosure of that to the Bar Association when he made his application for a renewal of his practising certificate in June 2017. He acknowledged that he was late in making that disclosure. The respondent said a sequestration order had been made by the Registrar of the Federal Circuit Court in his absence. The respondent sought to review that decision, however, he was unable to meet an order that he pay a security cost of $30,000. Because of his bankruptcy he has been unable to practice since 1 July 2018.

Submission of the Council in Reply

1. Earlier in these reasons we addressed the submissions made by each of the parties on the jurisdictional argument, however, the submission in reply by the Council also address other matters in the submission of the respondent made orally and also in writing. In particular we noted the following in the Council's submission.
2. The Council responded to three aspects of the respondent's submissions. Those matters were described as follows: "9. The respondent's submissions on Ground One were to the following effect: a. The applicant had not put before the Tribunal all relevant material including the Affidavit of Tony Ristovski affirmed 28 October 2016 (Ristovski affidavit), and the Originating Process for the 2015 Proceedings (2015 originating process), and the applicant cannot rely solely in these proceedings on the reasons of Black I dated 28 November 2016 for the personal costs order against the respondent; b. The allegations made by the respondent against Mr Wells were supported by the Ristovski affidavit and the 2015 originating process, and the urgency created by the freezing of the company accounts. c. The applicant was required to "put" in a Browne v Dunn sense the content of the allegations in the Amended Application."
3. The Council then responded in detail to each of those submissions. We do not repeat those submissions as set out in the submission however we note the following.
4. The Council rejects the proposition that it was required to tender, in this proceeding, evidence contained in the 2015 originating process or the affidavit of Mr Tony Ristovski. The Council relied upon the decisions in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [63] citing Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39 at [78], [84].
5. The Council submits those decisions support its assertion that the evidential onus shifted to the respondent because the Council has established sufficient evidence "from which a negative proposition may be inferred". In this case that inference is submitted to be that the respondent had no reasonable ground upon which to frame the orders sought against Mr Wells nor the propositions pressed in the Points of Claim document or the submission signed by the respondent for the hearing on 28 November 2016.
6. The Council has also relied upon the evidence provided by the respondent, in the hearing before us, to submit that the respondent's evidence confirmed "there was no 'reasonable justification', 'a proper basis' or 'a belief on reasonable grounds' that supported the allegations made against Mr Wells".
7. Further, in relation to the submission made by the respondent that the Council had an obligation to put the evidence from the 2015 proceeding before the Tribunal, the Council submitted: "Contrary to the submissions of the respondent dated 16 September 2021 (at [5]), the Bar Council is not a prosecutor: BRJ v Council of the NSW Bar Association (No 2) [2016] NSWSC 228 at [6]." The Council points out that "neither of these documents were 'called for' at any point during or before the hearing. Neither document was raised as a potential source of support for the allegations until the last day of the hearing in the respondent's closing submissions. At that point, the applicant made it available to the respondent and consented to his making submissions about it in writing, which he did. The case cited by the respondent at [5] of his 16 September 2021 submissions, Mahenthirarasa v State Rail Authority of NSW (No 2) (2008) 72 NSWLR 2, does not support the proposition that the applicant was under a duty to provide these documents at any point. That case concerned the question of whether a state authority that did not consent to orders that were ultimately successful was entitled to costs."
8. The Council submitted, on the evidentiary point raised by the respondent, that "for the purposes of the findings for Stage 1, the material relied upon by the applicant includes the evidence in Exhibit A3, adduced to discharge its evidentiary onus, as well as the documentary material in Exhibits R1, and R3, the respondent's written statements (Exhibits R3 and R5), as well as the respondent's oral evidence."
9. In relation to what might form a reasonable basis for the respondent putting the conduct of Mr Wells as stated in the Points of Claim document and the submissions he signed, the Council submitted: "21. The Federal Court held in Allstate Life Insurance Co v ANZ Banking Group Ltd (1995) 57 FCR 360 at 22 that "A reasonable basis of fact would comprehend, in addition to written material, instructions and matters of inference, as well as oral statements". The Court specified that proper inferences were acceptable (at 28), while "mere speculation" was not (at 29). 22. With regard to a "proper basis" in rules 64 and 65, Fowler & Ors v Toro Constructions Pty Limited [2008] NSWCA 178 at [24]-[25] considered the question of "what provides a proper basis for alleging a fact" as follows: the test to be applied ... will vary according to the circumstances. For example, allegations of criminality or fraud will be treated differently from allegations not carrying a degree of opprobrium; allegations which may depend on the veracity of the client may be treated differently from allegations of facts derived from other sources. Where some investigation may be reasonably necessary before making an allegation, the degree of investigation may depend upon the resources of the client, the amount in issue and other factors. More exiguous material may be sufficient in relation to the commencement of proceedings, especially if a limitation period is about to expire, than would be sufficient at the commencement of the trial. 23. In circumstances where the allegations were of serious misconduct against a legal practitioner, the Tribunal should find that some investigation was reasonably necessary before making the allegations."
10. In relation to the Ristovski affidavit relied upon by the respondent, the Council says the affidavit does not establish a proper basis for any of the conduct alleged against Mr Wells. Further the Council says: "It should be noted that, contrary to [11.10] of the 16 September 2021 submissions, the Ristovski affidavit does not at any point suggest that Mr Wells attempted to influence his client's mother. The allegations referred to at [11.10] relate exclusively to alleged actions of Alex Ristovski alone."
11. In relation to the relevance of the 2015 proceeding, the Council says the respondent "has never been put more specifically than that it is necessary for the Tribunal to 'really appreciate what was going on at the relevant time' (16 September 20121 submissions at [8])."
12. In relation to the submission made by the respondent as to the application of the rule in Browne v Dunn (1893) 6 R 67, the Council submits the rule is one of fairness. It does not require an allegation specifically set out in the Application (the complaint) to be put to the respondent in cross-examination. The Council says that notwithstanding the Council had laid out its complaints against the respondent on many occasions in the lead up to the Application being filed in the Tribunal "The respondent did not comply with the Tribunal's orders for the provision of evidence in which the respondent could have addressed the allegations, and specifically could have identified, on oath, any 'reasonable justification', 'proper basis' or 'belief on reasonable grounds' that supported the allegations made against Mr Wells."
13. Further the Council said that notwithstanding leave was granted to the respondent to place evidence before the Tribunal both in writing and orally, the respondent still failed to adduce any evidence to establish his "'reasonable justification', his 'proper basis' or his 'belief on reasonable grounds' that supported the allegations made against Mr Wells."
14. In relation to Ground Two, the Council in its Submissions in Reply, submitted that any (late) challenge to the costs incurred by Mr Wells (the respondent's submission at paragraph 55), is not relevant to whether there has been professional misconduct or unsatisfactory professional conduct "in light of the consideration in rule 13(q)(i) of the Legal Profession Uniform General Rules. Pursuant to s 297(2), a consideration of professional misconduct or unprofessional conduct can include whether the respondent has contravened an order of a court." The Council says the respondent has provided no evidence as to his incapacity to pay between the time of the order and the date of his bankruptcy.
15. Further in submission on this ground the Council, in reply, submitted: "The High Court decision relied on by the respondent, of Bell Lawyers Pty Limited v Pentelow (2019) 93 ALJR 1007, related to a barrister invoicing for the work she did directly. The Court's decision was that in those circumstances she was not entitled to her costs. This was not the situation in this case, where Balmain Lawyers acted for Mr Wells. Balmain Lawyers' professional costs are evident at Ex A3 p 122 - 128 and all correspondence on behalf of Mr Wells by Balmain Lawyers was signed by another solicitor and not Mr Wells himself."
16. Finally, in relation to Ground Two the Council submitted in reply: "As the Court noted in [Legal Profession Board of Tasmania v Kitto [2019] TASSC 39 (Kitto)], when undertaking an assessment of a practitioner's failure to pay a costs order 'it is important to bear in mind that, when a court orders a legal practitioner to pay an opposing party's costs personally, there can be a punitive aspect to the order' (at [15]). The Court cited (at [18]) Currie & Co v Law Society [1977] 1 QB 990 at 997- 998 to the effect that a personal costs order against a practitioner is both compensatory and punitive, and 'those costs have to be paid by the solicitor personally, and not by the party to the litigation who would otherwise have to pay them, the order is in that sense and to that extent punitive'."

Issues of Fact on the Application as Notified by the Reply/Response filed by the respondent.

1. As set out earlier in these reasons we identified the items in the Amended Application, filed by the Council in this proceeding, which were contested by the respondent. We now address those items and make findings in relation to same.
2. Although there was some minor dispute by the respondent to the facts set out in the Introduction to the grounds in the Amended Application for disciplinary findings and orders filed by the Council, we are satisfied that On 14 May 2020 the Council resolved that both grounds of Mr Wells' complaint be the subject of proceedings before the Tribunal pursuant to section 300 of the Uniform Law, as asserted in paragraph 10 of the Introduction.
3. The whole of Ground One is denied by the respondent, however, Particulars numbered (i) to (xiv) are admitted. Particular (xii) was struck out on the application of the Council. In relation to Particular (xiii), what is disputed then is that the Particulars to Ground One support a finding that the respondent engaged in professional misconduct or alternatively unsatisfactory professional conduct.
4. The Council's case is that the sub-paragraphs a to e to Ground One, alone or collectively, if established, will give rise to a conclusion that the respondent has engaged in professional misconduct or unsatisfactory professional conduct. We accept that alleged conduct, if established, to lead to either of those outcomes. We now turn to consider those sub-paragraphs.
5. We have set out rules 60(a), 61(a), 64(a) 65(a) and 8(c) of the Barristers Rules, earlier in these reasons and we do not repeat those here.
6. The respondent does not challenge Particular (iii) to the Ground. That asserts: "Paragraph [9] of that Interlocutory Process stated that the relief sought included: That until further order the Fourth Respondent, Warren Ernest Wells, shall not in any way (either directly or through any agent) aid, abet, counsel or procure the First Respondent, Alecsander Ristovski, to contravene or attempt to contravene the requirements of section 181 of the Corporations Act, 2001."
7. The respondent has agreed he settled and signed the Points of Claim document filed at the direction of Black J made 31 October 2016.
8. Sub-paragraphs (b) to (d) of Ground One all require a finding in relation to the same issue. That is, in relation to the allegations made against Mr Wells in the Points of Claim document and the submission provided by the respondent for the 28 November 2016 hearing, did the respondent have reasonable justification; was there available factual material to provide a proper basis; and did the respondent believe on reasonable grounds that the allegations could be made?
9. The respondent concedes that the allegations which are made against Mr Wells in both documents signed by him are serious allegations to make against a legal practitioner. We are satisfied he was aware of the seriousness of the claims at the time he signed the subject documents.
10. We have read all the documents and considered all the oral evidence relied upon by the respondent in support of his claim that he did have a proper basis for making the claims which were made against Mr Wells.
11. The respondent has been given ample opportunity to put evidence before the Tribunal which might support his case. The Tribunal, on 1 September 2021, made an order that the respondent have an extension of time until 4.00pm on Friday 3 September 2021 for the filing and service of all evidentiary material upon which he intended to rely at the hearing of this matter with respect to whether or not he is culpable in relation to the allegations in the application for disciplinary findings and orders against him. A further order was made that, subsequent to 4.00pm on 3 September 2021, the respondent was not to file any further evidence without first obtaining the leave of the Tribunal.
12. No evidentiary material was filed and served by the respondent by 4.00pm on 3 September 2021.
13. On the morning of the first day of the hearing of the Application in the Tribunal on 13 September 2021, the respondent caused to be sent to the Tribunal and to counsel for the Council an unsigned and incomplete statement dated 13 September 2021. It was incomplete in that it made reference to certain documentary material which was not clearly identified or provided at the time. Later, a bundle of documents and a separate one-page document was provided as material upon which the respondent wished to rely and refer to when giving his oral evidence. Leave was sought to rely on that material.
14. Leave was granted to the respondent by the Tribunal to allow him to adopt as his evidence paragraphs 1 and paragraphs 24 to 40 in the statement of 13 September 2021, which was then adopted by him on oath (and which became exhibit R3 after all portions of the document following the quotation at paragraph 40 were objected to and not read by the respondent's counsel).
15. Paragraphs 20 to 40 of exhibit R3 were admitted subject to the Council's objection as to the relevance which the Tribunal would later rule upon. (This statement is referred to as the respondent's First Statement). We have decided to admit these paragraphs as they have some relevance to the case presented by the respondent in answer to the complaints against him.
16. On 13 September 2021, after the respondent sought to adduce oral evidence in respect of the documents which were later identified as exhibits R1 and R2, an order was made that he be granted leave to provide a sworn statement or affidavit by 5.00pm on 13 September 2021 of the evidence he wished to give in relation to the impact of the documents on him at the time of authoring the pleadings in 2016 in relation to the subject of the complaints under consideration.
17. A statement dated 13 September 2021 signed by the respondent was provided to the Tribunal and counsel for the Council by 5.00pm on that day.
18. On 14 September 2021, the respondent adopted, on oath, the statement signed on 13 September 2021 as evidence upon which he wished to rely (the respondent's Second Statement). The respondent contended that the evidence and documents in exhibit R1 bore on his mind when he drew the pleadings the subject of complaint, being the Originating Process and Interlocutory Process filed on 18 November 2016 and the Points of Claim referred to above.
19. Following objection from counsel for the Council to paragraphs 7, 8, 9, 11, 17, 18, 20, 21, 22, 24, 25, 27, 28 and 31, the contents of the respondent's Second Statement were allowed, not as evidence of fact but as to the respondent's thinking at the time, in October and November 2016 as a result of reading the materials in exhibit R1 and in conjunction with his other knowledge of proceedings at the particular time.
20. The third sentence of paragraph 10 of exhibit R5 was admitted as a conclusion drawn by the respondent from what was stated in the balance of that paragraph. Subject to those rulings the respondent adopted the statement on oath.
21. In addition to the evidence contained in his Statements, above referred to and adopted by him in oral evidence, the respondent relied upon documents which were marked as exhibits R1 and R2. Those documents consisted of correspondence and an email which contained a block of text dated 3.5.16.
22. In his evidence and submission the respondent has relied heavily on three pieces of his evidence, namely; a letter from Mr Wells to Mr Tony Ristovski dated 28 November 2014; the affidavit of Tony Ristovski sworn 28 October 2016 and read in the hearing before Black J on 28 November 2016 (exhibit R7); and, the email dated 5 May 2016 (exhibit R2). The respondent's case is that all that material led him to have a "gut feeling" that Mr Wells had "overstepped the mark" and moved from acting as a solicitor for Alex Ristovski to becoming partisan in the dispute between his client and Tony Ristovski.
23. We have considered the evidence, both documentary and oral, provided by the respondent in this matter and can see no particular piece of evidence which would satisfy us the respondent could reasonably have made the serious allegation set out in the Originating Process which sought orders against Mr Wells; in the Points of Claim document he signed; and the supporting written submission. Further we have considered all the evidence collectively and concluded that when all is considered in the one exercise, there was still not a reasonable and proper basis for the claims/allegations to be made against Mr Wells.
24. We are satisfied the Barristers Rules, which are applicable to the consideration of the Application before us, make clear the care required by a barrister in seeking to invoke the coercive powers of a court. The same is true where a barrister is to make allegations or suggestions under privilege against any person and where he/she is required to believe, on reasonable grounds, that the factual material already available provides a proper basis for making a serious allegation. We are satisfied the respondent knew of the seriousness of the allegations he was making, in the documents he settled and signed in the proceeding which sought an order against Mr Wells.
25. The letter of 28 November 2014 from Balmain Lawyers to Mr Tony Ristovski commences by indicating that Mr Wells was acting for Alex, that he was instructed that Alex had an interest in a number of businesses that were owned by a number of companies, and in respect of those companies he was a director and/or shareholder and in respect of a company he is neither, notwithstanding his interest in it. The letter indicated to Mr Tony Ristovski that the capacity Mr Wells was writing to him was in Mr Ristovski's capacity as a co-director with Alex in those companies and in respect of all of those companies Mr Wells noted that Mr Tony Ristovski was the secretary and public officer, and he was writing to him also in that capacity.
26. The letter formed part of exhibit R1 and was relied upon as being of particular relevance to the allegations made against Mr Wells. That letter has been marked up by the respondent to highlight passages which were of particular concern to him. An example is found at the bottom of page 6 of the letter and continues onto page 7.
27. The letter proceeded, for and on behalf of Alex, and on his instructions, to make a number of requests for particulars, and for the provision of documents in respect of a range of companies and interests set out in some detail.
28. In order to properly understand the references to section 181 of the Corporations Act referred to in this correspondence it is necessary to quote the following from the letter: "The retail seafood business at Shellharbour I am instructed that you and your family own and operate a retail seafood business at Shellharbour and do so from the business premises 8-12 Skinner Avenue, Riverwood, the same place as the businesses are operated in which Alex has an interest, and which I am instructed are operated by companies of which you are the director, and mostly a shareholder."
29. The letter then refers to the contents of section 181 of the Corporations Act and proceeds: "Having regard to your interest in a business which is the exact same business as that owned and operated by the companies where you are a director and shareholder, in concert with Alex, and operating that business from the same premises as the businesses in which Alex has an interest, it would seem that you are in clear breach of your obligations to the companies in which Alex has an interest under section 181 of the Corporations Act 2001. Please provide me with advice and an explanation as to why you believe you are not in breach of those obligations. This is an opportunity for you to explain to Alex why in operating a business in direct opposition to those of the businesses operated in which Alex has an interest is not in breach of section 181 of the Act."
30. Later in the letter, in support of the request for documentation, there is further reference to the obligations on directors and officers of companies in sections 180 and 182 of the Corporations Act.
31. In respect of the reference to undertaking a forensic examination of the accounts the following are relevant extracts of the letter: "Please note that my investigations on behalf of Alex will include an in-depth enquiry, in concert with a chartered accountant, as to the checks and balances in place to make certain that stock imported into the operation of the business in which Alex has an interest is clearly differentiated from stock provided to the business in Shellharbour and that there is an appropriate physical, financial and accounting process in place to clearly measure that differentiation. In due course, and after we have been provided with the primary documents and information requested of you here, the accountant and I will undertake a forensic examination of the accounts of all of the businesses to make certain that such a differentiation has been put in place in the protection of the businesses in which Alex has an interest. In light of the above, and in the light of section 182 of the Corporations Act, I have been instructed by Alex to make a forensic investigation in concert with a chartered accountant, as to the benefits that you, your wife and family have received from the businesses owned and operated by companies in which Alex has an interest."
32. The letter also, in respect of the request for documentation, proceeds as follows: "I am instructed that on each and every occasion Alex, or for that matter is wife Marina acting on his behalf, have asked for documents and/or information in respect of the businesses owned and operated by companies of which he is a director (and on most occasions a shareholder), he has been refused for the provision of that information or documentation by yourself, your wife Nadine (whom I understand looks after the accounts of those businesses), and most importantly, the accountant for those businesses and companies, namely William Kamper. I am instructed further that Alex understands that Mr Kamper so refuses to provide that information and or documentation at the instruction of yourself and/or your wife Nadine."
33. In the letter it is further asserted that the failure to provide access to information about the trading of the subject corporation or corporations, as alleged, is contrary to the Corporations Act.
34. The respondent's Second Witness Statement then proceeds at paragraph 10 to make reference to a portion of the letter and says Alex claimed money from Tony for the property at Myall Street, Oatley in circumstances where the respondent was instructed he was not entitled to. This is a reference to what appears at the bottom of page 10 and the top of page 11 of the letter of 28 November 2014 which stated as follows: "The property at [xx] Myall Street, Oatley I am instructed by Alex that Alex was the owner of this property. At the time he was the owner he was approached by you to borrow moneys using the title of that property as security to do so, which money was to be lent to the family business. I am instructed that the sum of $260,000 was borrowed. Please confirm that at the time the borrowing took place the accounts of the business to which those funds were applied reflected a loan account in favour of Alex, and provide me with evidence that that occurred. I am instructed that Alex wished to sell the property and to purchase another, and at the time requested that the principal of the loan, namely $260,000 be paid by the family business to the bank that had lent the funds in the first place. I am instructed that you refused to do so, and as a consequence on the sale of that property, from the proceeds of that sale, the family business loan borrowed from the bank was repaid. As a consequence there remains a debt payable to Alex by the family business in the sum of $260,000, plus interest accrued from the date that the funds generated from the sale of the property were used to repay the family business debt. Please advise as to whether there is currently a loan account in place that acknowledges the debt that the family business owes to Alex, and if so, please provide me with evidence of that loan account. Further, please advise as to security that the family business intends to offer to secure this debt and when the debt is intended to be repaid with interest to the date of repayment? There will need to be an agreement put on place acknowledging the security, the debt and the interest rate, and most importantly the intended date for repayment of the principal. All of this must be addressed within the timeframe referred to in this correspondence."
35. In paragraph 11 of the Second Statement the respondent draws attention to the fact that the 28 November 2014 letter also sought other property in the Oatley area. That also has to be put in context. The letter provided as follows: "Ownership of the real estate at Oatley I am instructed that yourself, Drago and Alex are the joint owners of certain property at Oatley, which was purchased for the purpose of development. Particulars of those properties are' A property at [xx] Gungah Bay Road, Oatley as tenants in common with Dragoljub Ristovski and Tony Ristovski in equal shares. A property at [xx] Myall Street, Oatley in the name of Dragoljub Ristovski and Tony Ristovski as joint tenants. Having regard to the fact that these properties were purchased for business purposes, that is for the purpose of development, it appears that an error has been made in the manner in which the property at Myall Street is held by yourself, Drago and Alex, that is, as "joint tenants". Please accept this as notice from Alex that Alex requires the manner in which yourself, Drago and he hold that property, such that the joint tenancy must be altered to tenancy in common, immediately. I have written to him a copy of this email to you. Alex expects that you and Drago will instruct a solicitor immediately to attend to the conversion of the manner in which you hold your interest in this property to be converted to tenancy in common. That you will instruct that solicitor to inform me in writing that he has received those instructions from you and Drago and that he is proceedings with having the title rectified. Please have the solicitor provide me with the documents required to be signed by Alex to give effect to this rectification."
36. The respondent further says in his Second Statement that when he read the passages he referred to in the context of the 2015 proceedings and with his knowledge of the diagnosis of Tony and Alex's father, it seemed to the respondent that this letter was an ambit claim to seek to rearrange the family's assets before the father's death. He thought that the letters were particularly insensitive being sent by a particularly insensitive person or persons behind it. He says that he had a very strong feeling that much of what was contained in the letter was "solicitor-driven" as he had been instructed by Tony that his brother Alex was not intellectually capable of making all of these demands and in the way it was carried out.
37. The respondent went on to indicate by reference to an SMS dated 4 July 2014 (Exhibit R2) that it showed that Tony had obtained a lawyer as at that date.
38. The Second Statement continues by reference to a letter dated 11 November 2015 from Mr Wells to the chartered accountants of the family's business which made reference to "persistent requests" for documentation and containing an offer for the transfer of monies amongst other things to settle the family differences. What struck the respondent at the time was the deeply insensitive manner of the communication and the use of the family accountant to attempt to broker a deal leading him, again, to suspect that this letter was "solicitor-driven".
39. This letter of 11 November 2015 to the manager of Kamper Chartered Accountants refers to telephone discussions between Mr Kamper and Mr Wells, to the fact that Mr Kamper or his office had provided Mr Wells with certain documents but more was required, that the documents fell short from the previously requested documents and that all the information previously requested was required to appreciate an actual value of the seafood business. The letter states that this material was necessary to consider attending a conference to discuss Alex's extrication from the seafood business in exchange for payment. The letter from Mr Wells indicated that Senior Counsel had been briefed and that he was currently preparing an application to the Supreme Court to obtain orders for access to the records of the seafood business and, notwithstanding that, Mr Wells was instructed to reinstate offers made to Tony to settle the dispute between the parties. The letter makes clear that Mr Wells was acting on instructions.
40. The respondent then made reference to the letter of 27 January 2016 from Mr Wells to Tony Ristovski and that Alex was again "after the family companies [sic] documents" and that the letter also said that Alex would not be refraining from his behaviour regarding the family's Fish Feast shop at Hurstville. The letter foreshadowed a Supreme Court action returnable on 9 February 2016.
41. Under the heading "Alex Ristovski and Attendance at Hurstville Shop" the letter states that Alex denies that his behaviour was aggressive or demanding. It states that with respect Alex has no obligation to provide Mr Tony Ristovski nor the Fish Feast shop at Hurstville with an undertaking that he will refrain from attending the premises. As a director as well as a shareholder of Fish Feast Hurstville he had a directorial right to attend its premises, make enquiries of employees and expect documents.
42. In his letter of 27 January 2016 Mr Wells proceeds to suggest that Mr Ristovski obtain legal advice with respect to the Supreme Court application which will be returned for its first directions hearing on 9 February 2016 at 9.00am. It states that it would be in Mr Tony Ristovski's best interests to be legally represented at that directions hearing and that Mr Wells had instructions to press the Court to make orders sought in the summons unless and until the documents are required to be provided to Alex Ristovski. Mr Tony Ristovski is told that if he intended to be legally represented he should please provide details of his legal representatives so that all future correspondence could be forwarded to them.
43. It appears that as a result of this invitation in the letter dated 27 January 2016 Tony calls upon the respondent to assist as it was around Australia Day 2016 that the respondent had a discussion with Tony to assist in the dispute.
44. The respondent then makes reference to a letter of 11 February 2016 from Mr Wells to Tony's solicitors, Associated Legal (Mr Dey), and then proceeds to say that this letter, together with the letter of 27 January 2016, indicated to him that Mr Wells was mounting a new and sustained attack on Tony and the family businesses and that based on his instructions he did not believe that Alex was capable of achieving all of this on his own and that much of it was still being solicitor-driven.
45. We set out below an extract from this letter of 11 February 2016 so as to properly reflect what was sought to be achieved by the correspondence. "I act for Alecsandar Ristovski ("Alex"), the plaintiff in the above proceedings and understand you act for the defendants Tony and Nadia Ristovski. ……. The defendants in these proceedings are what might be described as "family companies". Alex has been employed within those companies and has worked at market stalls at the fish markets which are owned by him since he first commenced work as a young lad. Alex and Alex's family now made up of his wife and three children have relied upon the income generated from that work. Tony and Nadia have terminated Alex's employment with the family companies and at the market stalls. The consequence of this is that Alex's income has been reduced to an amount of $680 per week, thus placing substantial financial strain on him and his family. Consequently resolution of the present conflict as between Alex on the one hand, the defendants and Tony and Nadia on the other is urgent and requires immediate attention. In order to alleviate this particular situation Alex instructed me to write to Tony recently about the Hurstville store, and a copy of that email is attached. I am obtaining a valuation of the business at Hurstville and as soon as that is in hand I will provide a copy of it to you with a contract as between the present owner of the Hurstville business and a company controlled by Alex and his wife for the transfer of that business from the present owner to that company for the consideration of the value set out in the valuation. This value will be attributed as part of the benefit to Alex in respect of the payment to him of his interest in the businesses, the stalls and the real estate. Our expectation is that your client will make available to the valuer accounts relevant to this business, so that the valuer can appropriately value it. We will direct the valuer to you for that purpose. It would be appropriate for you to have the accounts and any other relevant documents to the operation of the Hurstville shop provided to you now. For example you will need to have a copy of the lease, bank statements, MYOB accounts or the like, profit and loss statement and balance sheets for the last three years. Please obtain instructions about this email, urgently and revert to me about the content of it. Having regard to the above if the defendants do not file and serve any evidence on or before 4 April 2016, my instructions are that immediately thereafter we are to file a motion for the Court to consider the making of the orders required in the summons on the first available date thereafter. As I have indicated persistently rather than our clients spending money in relation to legal fees, that they should direct those funds to the cost of an independent professional mediator such as Steven Lancken, Richard Rolfe or Trevor Morling in order to resolve the conflict. Again, as I have indicated persistently, it is impossible for Alex to appreciate what the value of his interest is in the family companies, the market stalls and the real estate jointly owned by himself, Tony and his father's estate, unless and until we are provided with the documents requested of the defendants in the proceedings. Perhaps the best way to start this process is to have a meeting involving yourself, Tony and Nadia, the writer and Alex and his wife Marina, with a view to attempting to find a way that can resolve all of these issues quickly and efficiently. I note that the father's estate has an interest in all of the defendant companies and in the real estate owned jointly as amongst Tony, Alex and the father's estate. It would be of great interest to Alex to appreciate whether any steps have been taken to administer the father's estate, and if so what steps have been taken and by whom. There needs to be attention given to the father's estate sooner rather than later, and this needs to be discussed by the representatives acting for Tony and Alex. Yours faithfully, Warren Wells"
46. Next, the respondent refers to the letter of 29 April 2016 from Mr Wells to Mr Tony Ristovski's solicitors and draws particular attention to the phrase in paragraph 13 "Alex needs to be educated" and to what was said at paragraph number 20 of that letter. This also has to be viewed in context.
47. At paragraph 13 of this letter it is stated that all of the documents set out in the summons are required by Alex in order for him to understand what is needed for him to know so that a proper and appropriate separation of the business relationship between him and Tony can be undertaken. Alex needs to be educated before he can consider such a separation. This is followed, in paragraph 14, with the request to please provide us with copies of the documents set out in the summons and advise where the original documents are kept, and make those original documents available for inspection by us.
48. The respondent then proceeds to make a complaint about what was set out in paragraph 19 of the letter of 29 April 2016. That paragraph reads as follows: "The companies that own and operate the businesses are the defendants in proceedings in the Supreme Court of NSW. Again your pejorative description of these proceedings does little to assist the resolution of same, and it is the instruction of the writer that this correspondence should be brought to the notice of the Court as it reflects not only your clients, but your own attitude to most serious and costly Supreme Court litigation. This is a serious issue as you are an officer of that Court."
49. In paragraph 20 of the letter Mr Wells stated: "In the present circumstances how would anyone advising Alex Ristovski whether the offer by Tony Ristovski was fair without having any knowledge whatsoever, or without having the opportunity of looking at any financial documents about the business? This goes to the root of the whole problem here. Once Alex Ristovski understands the financial aspects of the family business he will then be able to obtain advice as to the value of his interest in the business. Then he will be able to consider with education whether or not the offer made to him out of the business is fair in the circumstances. Surely this is a simple commercial reality. However, if your client wishes to make an offer, please make it now and I will put it immediately to Alex Ristovski."
50. The respondent then says at paragraph 26 of his Second Statement that "this letter confirms what I had suspected up until that point, namely, the solicitor here was acting separately from his client and it made me very concerned as to what actions and what proceedings or action he might undertake outside of the Supreme Court".
51. Next, the respondent makes reference to a letter dated 6 September 2016 from Mr Wells to Mr Tony Ristovski's solicitors which, he says, again refers to the production of documents and makes an offer for the market stalls at Sydney Markets.
52. The letter of 6 September 2016 appears to us to complain yet again about the absence of documentation that would allow Mr Wells' client to properly assess the value of the assets which are the subject of the interaction between Mr Dey's client and Mr Wells' client. It states that Mr Wells' client is in a situation where, unlike Mr Dey's client, he has no idea at all as to the value of the assets and with respect the documents provided to them to date by Mr Ristovski raised more questions about the value of the business rather than answering any.
53. The letter proceeds to indicate that notwithstanding that situation agreement had been reached as to certain matters. We set out below the balance of the letter: "Notwithstanding my client for commercial reasons has agreed to accept an offer made by your client to "bow out" of his entire interest in the business and in the real estate of which he either owns one third or one half. He has also agreed to transfer his interest in the market stalls at Sydney Markets to your client, or a nominee of your client. Further he has instructed me to prepare an agreement embracing all of the above, in order to move the whole process along quickly and efficiently. The only response that he receives from your client is a demand that he repair something that neither nor I damaged in the first place, the repair of which is entirely out of his and my control. My instructions are simple and they are as follows….. Your client and yourself have until 4pm on 9 September 2016 to settle with my client and to sign and exchange a deed of settlement, picking up the core issues raised in the draft deed sent to you recently. If you client fails to settle, sign and exchange the deed by 4pm on 9 September, then I am to make an application to the Supreme Court to wind up all of the companies that operate the business of the Group. I am also to take control of the market stalls which are in my client's name and to approach the banks in which the companies operating the business have accounts and demand that my client be required to sign any and all cheques before funds are removed from those accounts. Bluntly, Alex has lost patience. Now almost two years ago, on behalf of Alex, I opened negotiations hoping that your client would cooperate in coming to a mutually satisfactory arrangement that would allow your client to take over the businesses, and my client to go on his separate way. Notwithstanding accepting your client's offer, attending mediation, preparing the deed and the expiration of over two years in attempting to do so, Alex is in exactly the same position as he was at day one. Your client has one of two choices to make. Again I suggest that you and your client might dedicate some time to considering the deed, advising any additions or changes he wishes to make to it with a view to signing and exchanging same on or before 4pm on Friday next. Yours faithfully, Warren Wells"
54. The respondent then says, at paragraph 29 of his Second Statement that: "This is what I was most concerned about when I settled Tony's Points of Claim dated 16 November 2016" after this letter. The respondent says it was a combination of this letter and the previous letter that concerned him the most about this solicitor. He further says that the family's accounts were in fact frozen by the action of Alex and others.
55. Finally, after referring to exhibit R2, the respondent makes reference to an email dated 6 May 2016 from Nadine Ristovski to the respondent and others relating to Tony. This also caused him considerable concern when drafting the Points of Claim. The wording in that document which was said to be of great concern is as follows: "Jovka advised Tony that Alex and Marina took her to their solicitor and she was interviewed by a man and a woman and Marina was translating for her. One of the questions that she understood was that who was going to run the business and she said that it would be her (as a joke) and then Tony and then Alex and she made that clear. She also understood that she was told that you cannot run two businesses at once. She really didn't understand or what the purpose of the "meeting" was, however she has told Alex that she has signed papers and made her will and also signed for her husband's estate. She conveyed to Tony that she felt good about it - that she was able to be honest with Alex and not hide information from him."
56. The respondent, in his oral evidence, said that he had asked Nadine to check on the correctness of the information which was set out in her email.
57. The respondent also relied heavily on the affidavit of Tony Ristovski sworn 28 October 2016 and read in the hearing on 28 November 2016. We have read that affidavit and noted the following:
58. The paragraphs of the Ristovski 2016 affidavit in summary refer to: 1. letters written by Mr Wells directly to the family father who was severely ill at the time, but clearly had a direct financial interest in what Alex was claiming; 2. mediation proposed in earlier Supreme Court proceedings; 3. the bank freezing companies' accounts; 4. a belief that Alex's wife as Second Respondent in the proceedings against Alex and Mr Wells was a significant driving force in the main proceedings; 5. a belief that Alex would not have thought to act as he did (not unlawfully) without having been so advised by his wife and Mr Wells; 6. that there was urgency for interim business stability and several payments to be made by the family companies requiring reinstatement of the accounts so as to avoid the adverse impact on the business and their reputation; 7. a reference to the letter from Mr Wells dated 6 September 2016 (which we have addressed separately); 8. possible undue influence on the mother Jovka Ristovska; and 9. that Mr Wells had insisted on running District Court proceedings in parallel with the Supreme Court Proceeding and in the District Court proceedings Alex was making a range of claims.
59. As pointed out by the Council, this material does not indicate any unacceptable conduct on the part of Mr Wells writing to the National Australia Bank on behalf of his client; the material does not at any point suggest that Mr Wells attempted to influence his clients' mother; and a belief as to the inability of Mr Wells' client, Alex, to devise a strategy without the assistance of his solicitor does not take the matter further.

Rule 60(a), Rule 61(a), Rule 64(a) and Rule 65(a)

1. In the present case there can be no doubt that the allegations made in the Supreme Court proceedings in the Originating Process and Points of Claim filed with the authority and approval of the Second Respondent were that Mr Wells was engaging in serious misconduct. We respectfully agree with Black J (at page 111 of exhibit A3) that the allegation that a solicitor who is acting in a proceeding is engaged in conduct of the kind described by the Second Respondent was a most serious allegation. An allegation of aiding and abetting the First Respondent in proceedings in relation to breaches of section 181 of the Corporations Act was, His Honour said, equally serious. We are respectfully of the same view.
2. Further, an allegation that Mr Wells overstepped his function as a lawyer and/or officer of the court was an allegation of the most serious form of misconduct on the part of the solicitor and in respect of which there was no evidence.
3. In the course of the judgment handed down by Black J on 28 November 2016 His Honour said the following: "It seems to me that in the present case, a legal practitioner who acted adequately, and with reasonable regard to his or her responsibilities, would have recognised that the Originating Process and Points of Claim, as formulated, did not identify the facts, matters and circumstances on which a claim was made against the Fourth Defendant, and also did not identify the basis of claims, which are now articulated as claims sought to be pursued against the Fourth Defendant. It seems to me that the legal practitioner would have recognised that matter, before the Originating Process and Points of Claim were filed. A legal practitioner in those circumstances would not have filed that document or, if, as Mr de Robillard at one point indicated, there were difficulties in obtaining further instructions, would have applied for an extension of time, which allowed a further opportunity to address that issue, rather than proceeding regardless with an inadequate pleading making serious allegations."
4. In our view, the seriousness of the conduct engaged in by the respondent is underscored by the inevitable consequence of the allegations and joining of Mr Wells as a defendant, namely, that he would need to cease acting for his client in the matter, who was also a defendant. A barrister who acted with even a basic level of care would understand the outcome of his or her actions and the prejudice to the solicitor and his or her clients, if the allegations were made and not well founded.
5. The respondent did not at the hearing address the elements of the Barristers Rules, said by the Council to have been breached by his conduct in October and November 2016, to argue that the invocation of the coercive powers of the Supreme Court was reasonably justified by the material available to him or that the decisions he made, to make the allegations or suggestions, against Mr Wells were reasonably justified by the material then available to him.
6. However, by his evidence and his submissions in the proceedings concerning that evidence, he was at least raising an apparent justification for his actions at the time, and his views and suspicions concerning the conduct of Mr Wells.
7. Rules 60(a) and 61(a) of the Barristers Rules each concern, in the first instance, the obligation on a barrister to exercise care. Care which is to ensure that the invocation of the coercive powers of a court, or decisions to make allegations or suggestions under privilege against any person, are reasonably justified by the material then available to the barrister.
8. The obligation is to "ensure" that the conduct did occur. It thus requires a high standard of care and is only qualified if the conduct is reasonably justified by reference to available material, a test not satisfied by what the barrister may believe or suspect, but on objective grounds.
9. In our view, the materials relied upon in these proceedings by the respondent fall short of demonstrating the care required by those two Barristers Rules. In our view, the materials identified in our reasons above, said by the respondent to have borne, on his mind, when he drafted the Originating Process and Points of Claim, do not reasonably justify the initiation of the proceedings against Mr Wells. There was, in our view, no reasonable justification in the materials to initiate proceedings on the material identified.
10. In our view, the same conclusion applies in respect of rule 61(a) but particularly in respect of allegations in the documents filed in the Supreme Court and the allegations and suggestions called in aid of the allegations as set out in the submissions dated 22 November 2016 and relied upon in the hearing on 28 November 2016.
11. The duty imposed on a barrister by rules 64(a) and 65(a) is a strict obligation that a barrister must not allege any matter of fact, or facts of a particular nature, unless the barrister has a belief based on reasonable grounds that the factual material provides a proper basis to do so.
12. In a statutory context, a belief based on reasonable grounds requires the existence of facts which are sufficient to induce that state of mind in a reasonable person (see, for example, George v Rockett (1990) 170 CLR 104 at 112; [1990] HCA 26 per Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ; and Broome v Great Lakes Council [2014] NSWCATAD 154 at [67]). We adopt the same approach in respect of the Barristers Rules. In addition, for rules 64(a) and 65(a), the belief is to be assessed by reference to available material by which allegations of criminality or serious misconduct could be supported, thus providing a proper basis for it.
13. With regard to a "proper basis" in rules 64 and 65, the Court of Appeal in Fowler & Ors v Toro Constructions Pty Limited [2008] NSWCA 178 at [24]-[25] considered the question of "what provides a proper basis for alleging a fact" in the context of a costs order against a solicitor personally as follows: "….the test to be applied'….will vary according to the circumstances. For example, allegations of criminality or fraud will be treated differently from allegations not carrying a degree of opprobrium; allegations which may depend on the veracity of the client may be treated differently from allegations of facts derived from other sources. Where some investigation may be reasonably necessary before making an allegation, the degree of investigation may depend upon the resources of the client, the amount in issue and other factors. More exiguous material may be sufficient in relation to the commencement of proceedings, especially if a limitation period is about to expire, than would be sufficient at the commencement of the trial."
14. We find the available materials relied upon by the respondent, by way of explanation of his actions, do not satisfy the test of reasonable grounds as formulated by the High Court in George v Rockett. In addition, in our view, and we find, the materials relied upon by the respondent at the time, reasonably viewed and making allowance for the apparent urgency, did not provide a proper basis for making the very serious allegations of misconduct against Mr Wells. There is no reason to conclude that the interests of the respondent's clients could not be adequately protected, at the time, without making Mr Wells a defendant to the proceedings.
15. The allegations in the pleadings and in the written submissions that Mr Wells aided Alex in respect of his apparent lack of good faith, that Mr Wells aided and abetted Mr Wells in the use of the original proceedings (the 2015 proceedings) for an improper purpose, that he aided and abetted his client in relation to breaches of section 181 of the Corporations Act, and separately in respect of oppressive conduct under sections 232 to 234 of that Act, and that Mr Wells overstepped his function as a lawyer and officer of the Court could not on the factual material available provide a proper basis for those allegations.
16. We are satisfied that, and so find, the respondent by his conduct contravened rules 60(a), 61(a), 64(a) and 65(a) of the Barristers Rules.

Rule 8(c)

1. As set out above, the Council relies on the first limb of rule 8(c), namely, that by the same conduct which contravened the other rules, the respondent was likely to diminish public confidence in the legal profession. We were not taken to any authority and no submissions were made to us as to precisely why the conduct was likely to diminish confidence in the legal profession.
2. Although not precisely in point, the decision of the Civil Administrative Tribunal in Queensland in Legal Services Commissioner v Merkin [2019] QCAT 272 provides us with some assistance as there are some similarities in respect of the barrister's conduct. One of the complaints against the practitioner in that case concerned a breach of rule 12(c) of the Barristers' Conduct Rules 2011 (QLD) which is in the same terms as rule 8(c) of the Barristers Rules with which we are concerned.
3. The Tribunal in Merkin at [37] referred to the dictum in the Full Family Court from which the proceedings arose, emphasizing counsel's paramount duty to the administration of justice in the context of allegations, in that case about the integrity of a judge, without the slightest foundation. Such conduct amounted to an abdication of counsel's paramount duty to the administration of justice and was deserving of condemnation.
4. In respect of Rule 12(c), the Tribunal held that the rule acknowledges the role played by each barrister in maintaining public confidence in the profession and the administration of justice and pointed out a strong element of public interest in the performance of the role (relying on Giannarelli v Wraith (1988) 165 CLR 543 at 555 and 556; [1988] HCA 52 per Mason CJ). The advancing of unsubstantiated claims in that matter was held to contribute to the finding of professional misconduct on the part of the barrister.
5. We have also considered the very special protection which a barrister enjoys from civil suit arising from the conduct of a case in court. That protection is known as barrister immunity. Giannarelli v Wraith at 560 described the immunity to incorporate "work done out of court which leads to a decision affecting the conduct of the case in court". In Ryan D'Orta-Ekenaike v Victoria Legal Aid & Anor (2005) 223 CLR 1; [2005] HCA 12 at [86], the High Court extended those words to include "work intimately connected with" work in a court.
6. In Chamberlain v Ormsby (t/as Ormsby Flower) [2005] NSWCA 454 at [118]-[119] the Court of Appeal said: "118 In any event, in my opinion the barrister was in the circumstances immune from being sued for negligence by the solicitor. In D'Orta-Ekenaike the High Court refused to reconsider its decision in Giannarelli v Wraith (1988) 165 CLR 543 notwithstanding the decision of the House of Lords in Arthur J S Hall & Co v Simons [2002] 1 AC 615. In particular, in their joint judgment Gleeson CJ, Gummow, Hayne and Heydon JJ held (at 770 [86]) that '… there is no reason to depart from the test described in Giannarelli as work done in court or 'work done out of court which leads to a decision affecting the conduct of the case in court' or, as a latter class of case was described in an Explanatory Memorandum for the Bill that became the Practice Act, 'work intimately connected with' work in a court. (We do not consider the two statements of the test differ in any significant way).' 119 McHugh J, whilst agreeing with the joint judgment, referred to the meaning of "intimately connected" and said (at 783 [157]): 'The issue is whether the relevant connection with the conduct of the litigation exists, not the form of the negligence. An integral part of the advocate's role is the giving of advice on the basis of which the client will give instructions that direct the course of proceedings. The advice is critical to and often determinative of the client's decision.'"
7. A more recent decision of Hammerschlag J in the Supreme Court of NSW, Edward Moses Obeid Snr v David Andrew Ipp [2016] NSWSC 1376 involved an action brought against Mr Watson SC in his role as "Council Assisting" ICAC. Relevantly to our determination, His Honour said at [293]-[297] the following: "293. Finally, Watson has the benefit of the immunity provided for in s 109(3). 294. That section provides that an Australian legal practitioner assisting the Commission or representing a person before the Commission has the same protection and immunity as a barrister (within the meaning of the Legal Profession Uniform Law (NSW)) has in appearing for a party in proceedings in the Supreme Court. 295. Recently, the High Court (by majority) in Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 331 ALR 1, made it clear that the advocate's immunity does not extend to acts or advice of the advocate which do not move litigation towards determination by a court. 296. Relying on this, it was put on behalf of the plaintiffs that Watson is not protected by the immunity because it is only available in relation to work that contributes to a judicial determination of litigation, and there is no such determination in an ICAC inquiry. It was put that Watson would not have immunity even if the inquiry were before this Court. 297. In my opinion, Watson has the benefit of the immunity, notwithstanding that there is no judicial determination of litigation in an ICAC inquiry. The effect of s 109(3) is to confer upon a legal practitioner in relation to assisting ICAC, or representing a person before it, the full extent of the traditional immunity which a barrister would have in the Supreme Court, on the footing that the barrister had it there. The logical consequence of the plaintiffs' submission is that the legislature intended a barrister before ICAC only to have immunity where there is judicial determination. Given that there is never judicial determination before ICAC, s 109(3) would then have no work to do. This cannot have been the intention of the legislature."
8. We consider that the immunity attached to a barrister's work, as defined in the above referred to decisions, casts a large responsibility upon a barrister to ensure that the protection he/she has is exercised with great care, as the damage to reputation and standing of the subject of an allegation, made in litigation in the Court, can be catastrophic to that individual.
9. To exercise that immunity in a manner which is in breach of the Barristers Rules identified and relied upon by the Council in this hearing, we consider, has the very real probability of diminishing public confidence in the legal profession, or the administration of justice and also, bringing the profession into public disrepute.
10. The letter of 28 November 2014 on a proper reading, and by reference to the particular sections we have extracted above, did not, and could not, support on a reasonable basis a belief that Mr Wells, acting for and on instructions of his client Alex, had an ulterior purpose in commencing the 2015 proceedings. Further, the references in the respondent's Second Statement, at paragraphs 7 to 10, do not reflect accurately the contents of the letter or its purpose. The opinion expressed in the last sentence of paragraph 10 of the respondent's Second Statement, finds no legitimate support in this letter or any other material pointed to.
11. The letter of 28 November 2014 taken on its own, or together with the other correspondence referred to, does not identify material or facts which could, on any proper consideration, support the bases advanced and called in aid, by the respondent, to justify the invocation of the Court's jurisdiction or the pleadings set out in the Originating Process and Points of Claim against Mr Wells.
12. The letter of 28 November 2014 is in our view, an entirely acceptable letter seeking to advance the interests of the client of Balmain Lawyers. On a proper reading of that correspondence no ulterior purpose, on the part of Mr Wells, can reasonably be inferred. The term "threats" cannot be interpreted in the way in which the respondent seeks to categorise them, when the letter was quite properly seeking to put the recipient (Tony) on proper notice of what steps might need to be taken.
13. The reference to undertaking a "forensic examination", when read in the proper context of the letter, does not suggest that Mr Wells was seeking, independently of his client or his client's interests, to undertake a task which might become necessary to ascertain, for example, the proper valuations of the assets referred to.
14. The explanation in the letter, as to the property at Myall Street and what was sought, was reasoned and cannot support what the respondent seeks to attribute to that correspondence.
15. A view as to the insensitivity alluded to by the respondent, because of the timing of the letter in circumstances involving the ailing health of the father, cannot, in our view, be a basis for the allegations made against Mr Wells.
16. The respondent further relied on this letter of 28 November 2014 as providing him with the "strong feeling" that what was contained in the letter was "solicitor-driven". He also suspected that other correspondence, the letter of 15 November 2015, the letter of 27 January 2016 and the letter of 11 February 2016, supported a suspicion that they were "solicitor-driven".
17. In our view the correspondence clearly indicates that Mr Wells was acting over a period of time, seeking to protect and pursue his client's interests, was corresponding to achieve that objective and was persisting in trying to achieve an outcome acceptable to his client. The term "solicitor-driven" may be acceptable as a description of those legitimate efforts and steps taken by Mr Wells, on instructions, and on behalf of his client.
18. In our view, the term, as used by the respondent, could not justify or provide an answer to the breaches of the Barristers Rules relied upon by the Council.
19. In respect of the view of the respondent that the deeply insensitive manner of the communication and use of the family accountant, in an attempt to broker a deal (the letter of 11 November 2015), in our view, the terms of that letter show no more than a communication of the attempts by Mr Wells, on behalf of his client, to obtain the documents which had previously been called for since as early as 28 November 2014. That there was a willingness on behalf of his client to attend a conference to try and resolve the family differences, if further documents were provided, and; that notwithstanding the absence of such documents, options were put forward for resolution of the family dispute. In our view, this correspondence does not support allegations raised against Mr Wells and reasonably could not do so.
20. There is, in our view, no basis in the correspondence of 27 January 2016, or the letter of 11 February 2016, or the combination of those letters, to support a view that Mr Wells was "mounting a new and sustained attack on Tony and on the family business" and therefore everything was solicitor-driven. It did not warrant as against Mr Wells, any of the allegations and orders sought against him in the proceedings.
21. The apparent concern of the respondent about the references in the correspondence that "Alex needs to be educated", fails to put the terms in context. It was in our view clear, as the passages we have extracted above show, that Alex required the documents so that he could make an informed decision as to what his interests and the value of his interests, in the various businesses and assets were. It is a distortion of what was occurring to suggest that the respondent appeared to be doing so, in this correspondence, in a way justifying the respondent's conduct.
22. In our view, the concerns expressed by the respondent concerning the letter of 29 April 2016 could not on a proper reading provide any foundation for those concerns.
23. The respondent said that what he was most concerned about, when he settled the Points of Claim dated 16 November 2016, was the letter of 6 September 2016, referred to above. The concern appears to have related to the instructions set out by Mr Wells in the letter. In our view, properly viewed, it could not be reasonably concluded that Mr Wells would, or would be entitled to, take the steps there set out in his own name or in his own interests. The correspondence in our view does not provide a basis for a belief, on reasonable grounds, that there was material available to the respondent that supported these serious and unrelated allegations made against Mr Wells.
24. The evidence in and annexed to the Tony Ristovski 2016 affidavit, relied upon by the respondent, may have suggested to the respondent that there was some urgency. Multiple court cases and actions taken by Alex, which were seen to have an impact on the businesses, (the freezing of bank accounts), being seen to require further action. However, in our view, and we find, such urgency did not justify joining Mr Wells as a defendant in the proceedings. There was also no basis for the respondent's submission that it was action by Mr Wells, other than in his capacity as solicitor for Alex, and no basis to allege that the action was designed to almost cripple the businesses.
25. In our view, the submission that there was in this material plainly some basis to consider, at the relevant time, that Mr Wells had some input into the events, other than as an ordinary solicitor acting for a client, should be rejected. The material did not reasonably justify, either on its own or with the other matters relied upon by the respondent at the time, the invocation of the coercive powers of the Court. The allegations and suggestions against Mr Wells were not reasonably justified on the materials. For the same reason, we are also of the view that this material could not have founded a belief on reasonable grounds that there was a proper basis for the serious allegations, against Mr Wells, of conduct which was designed to impact adversely on the business of Tony Ristovski. Even if it was the case that Mr Wells was acting somewhat robustly, that could not by implication mean he was acting inappropriately.
26. The respondent contends, relying on the rule in Browne v Dunn, that the Council was obliged at the hearing to put to the respondent, in cross-examination, the contents of the Ristovski 2016 affidavit and had failed to do so. This is in the context where the ground of alleged professional misconduct against the respondent put him on notice that the materials available at the time did not justify his conduct. The Council in its amended application filed on 10 September 2021 included as a Particular (in support of the absence of material) the Ristovski 2016 affidavit. That Particular was struck out at the application of the Council in the hearing before us. In the respondent's response emailed to the Tribunal on 14 September 2021, the second day of the hearing, the respondent said he did not admit the Particular. It appears that as a result the Council did not then, as part of its case, tender the affidavit, although at the conclusion of the hearing it provided a copy to the respondent who subsequently tendered the document and made submissions about its contents in reliance of his case.
27. The central purpose of the rule in Browne v Dunn is to secure fairness in the conduct of adversary proceedings (e.g. R v Birks (1990) 19 NSWLR 677 at 688 per Gleeson CJ).
28. In the present matter, the respondent was at all material times squarely on notice of the case against him. He now relies on the contents of the Ristovski 2016 affidavit. The Council points to the contents to support its case that the affidavit falls short of providing a basis for the respondent's conduct. In our view the rule in Browne v Dunn has not been offended.

Ground Two

1. The Council's case is, in part under this Ground, that the respondent is guilty of professional misconduct, or alternatively unsatisfactory professional conduct, because he failed to comply with an order of the Supreme Court made 7 June 2017 and thereby acted contrary to the Legal Profession Uniform General Rules 2015 (NSW) r 13(1)(q)(i). That Rule provides: 13 Consideration of application for grant or renewal of Australian practising certificate (1) For the purposes of section 45 of the Uniform Law, in considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to any of the following matters - … (q) whether the applicant has contravened - (i) an order of a court or tribunal made in any proceedings, or (ii) (without limitation) an order of a designated local regulatory authority or other person or body under legislation of any jurisdiction so far as the legislation relates to the control or discipline of any Australian lawyers or to the practice of law,
2. That rule is relevant to this determination because of the provisions of the Uniform Law, under which the Council brings this action against the respondent, in particular section 298.
3. The orders by the Supreme Court that the respondent pay the costs of Mr Wells personally were made on 28 November 2016.
4. On 1 March 2017 Balmain Lawyers gave notice in writing to the respondent pursuant to clause 35(1) of the Legal Profession Uniform Law Application Regulation 2015 (NSW) and noted that any objection to the application was to be provided to the firm in writing within 21 days of receipt of the correspondence.
5. Following receipt of the correspondence from the Costs Assessor assigned to assess the costs claimed, the respondent sought various extensions of time to respond to the claims and issues raised for answer or submission. Later, the respondent raised a range of objections to the costs claimed.
6. On 7 June 2017 a registration of certificate of costs in the sum of $16,906.36 in favour of Mr Wells was issued in the Supreme Court.
7. By letter dated 9 June 2017 Balmain Lawyers, acting for Mr Wells, sought payment for the sum of $16,906.36 and gave the respondent notice that if the amount was not paid by 12 June 2017 the firm had instructions to commence bankruptcy proceedings against the respondent without further notice.
8. In response to the letter of 9 June 2017 the respondent informed Balmain Lawyers that he did not accept that their client, Mr Wells, was entitled to enforce the judgment entered on 7 June 2017, that the judgment did not make the costs payable "forthwith", and that he would be lodging an application for review of the assessment. The respondent did not lodge that application for review.
9. Balmain Lawyers then invited the respondent to make payment of the assessed and registered costs amount into their trust account forthwith, pending any review. This did not occur.
10. Mr Wells then, on 18 July 2017, filed a complaint against the respondent in the Office of the Legal Services Commissioner.
11. In separate proceedings against the respondent, unrelated to the proceedings giving rise to the costs order against him, he was declared bankrupt by order of the Federal Circuit Court and his estate was sequestrated on 17 August 2017. An order for security of costs was not satisfied and, as a result, his appeal in those proceedings was either dismissed or alternatively the respondent did not proceed to file further.
12. Balmain Lawyers further pressed for recovery of the costs and on 30 November 2017 caused to be served on the respondent a creditor's petition and supporting documents for bankruptcy orders in the Federal Circuit Court. Balmain Lawyers were at the time unaware of the separate proceedings and sequestration orders made against the respondent. As a result, Mr Wells was put to further cost in respect of the enforcement procedures necessary because of the respondent's continued resistance to payment. There is no evidence of any attempt to inform Mr Wells of any circumstances which rendered him unable to pay the costs. It was simply a case of a steadfast challenge at every stage.
13. In this matter the respondent argues that, in the circumstances, there were only two months delay between the judgment requiring him to pay and the sequestration. However, it was never accepted by the respondent that he had a duty to pay the sums ordered. He did not accept that by the Court's order, which he did not oppose at the time, the assessment was made by a third party and then made enforceable by a further Court order, whereby he became legally obliged to pay the costs. At all times until the matter was taken out of his hands by reason of the Federal Circuit Court order for his bankruptcy, on 17 August 2017, he sought to challenge his obligations.
14. The respondent further, and for the first time at the hearing, sought to defend the complaint in Ground Two on the basis that the costs incurred by Mr Wells, the subject of the personal costs order and as assessed, may not properly have been claimed, relying on Bell Lawyers Pty Limited v Pentelow (2019) 269 CLR 333; [2019] HCA 29.
15. The respondent could not point to evidence to support his contention in circumstances where it appeared that Balmain Lawyers incurred the costs whilst acting for Mr Wells. In the circumstances, the decision in Bell Lawyers does not assist him. If anything, this approach by the respondent is further evidence of his seeking to avoid responsibility for paying the costs the subject of the Supreme Court orders.
16. Immediately prior to the hearing of this matter evidence was provided that the outstanding debt was paid by Mr Dey to Mr Wells in full.
17. In our view, that does not exculpate the respondent as he contravened the orders of the Court by never attempting to pay and not paying the debt due. He has placed no acceptable evidence before the Tribunal which clearly demonstrates that he had no capacity to pay. We accept however, that had he paid, the Trustee in Bankruptcy may have then moved to recover that payment from Mr Wells given the proximity to the date of sequestration.
18. The personal costs order, which included counsel's fees, was clearly compensatory but had a further more general purpose, an element of deterrence (see Legal Profession Board of Tasmania v Kitto (2019) 31 Tas R 91; [2019] TASSC 39 at [18] and [19] per Blow CJ).
19. In our view, and we find, by his conduct set out in these reasons, the respondent contravened rule 13(1)(q)(i) of the Legal Profession Uniform General Rules.

Conclusion

1. In considering whether the respondent engaged in professional misconduct or unsatisfactory professional conduct, we bear in mind and take into account, the gravity of the matters alleged against the respondent and the potential consequence to him of so finding, as required by section 140 of the Evidence Act 1995 (NSW) and as set out in Briginshaw v Briginshaw (1938) 60 CLR 336 at 361 - 362 per Dixon J (and see Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 at 170 - 171).
2. In our view, and we find, the conduct of the respondent in joining Mr Wells as a defendant to proceedings in the Supreme Court and in the assertions and allegations made against him as set out above, was professional misconduct by reason of his contravening rules 60(a), 61(a), 64(a), and 65(a) of the Barristers Rules. It was conduct of the most serious kind. There was no reasonably available factual foundation for joining Mr Wells to the proceedings or for the serious allegations of misconduct levelled against him. The inevitable consequence of joining Mr Wells to proceedings, where he was acting for one of the defendants, Alex, was that he would be required to cease acting for his client and would also be required to defend himself against those very serious allegations. That finding underscores the seriousness of the professional misconduct on the part of the respondent.
3. In respect of Ground Two, we recognise that the personal costs order made by the Supreme Court arose as a consequence of a personal failure to properly advise Mr Wells' lawyer, and the new legal representative for Alex Ristovski, that the respondent needed to amend the Originating Process and the Points of Claim and, further, obtain instructions for an affidavit of evidence from a witness who could put a proper factual basis to the allegations being made against Mr Wells, if that was achievable.
4. We also recognise that we should infer from the sequestration orders made by the Federal Court on 17 August 2017 that the respondent is likely to have had, at that time, some financial difficulties. However, there is no probative evidence before us as to the precise situation which prevailed. In addition, the respondent did not at the time accept responsibility for paying the costs ordered but persistently, and without any apparent merit, challenged the quantum of the order and ultimately, in the hearing before us, challenged whether any fees should have been paid to Mr Wells on account of legal work.
5. Had the respondent accepted responsibility at the time, and had he set out to explain to Mr Wells that he did not have the ability to pay all or part of his liability, or make arrangements to pay overtime, we could have viewed his conduct in a somewhat different light.
6. In the circumstances, in our view, and we find, the respondent by his conduct in contravening rule 13(1)(q)(i) of the Legal Profession Uniform General Rules engaged in unsatisfactory professional conduct.
7. We have determined the respondent has engaged in professional misconduct rather than unsatisfactory professional conduct in relation to Ground One because in our view it was conduct of the most serious kind.
8. We find, the conduct of the respondent in joining Mr Wells as a defendant to the proceedings in the Supreme Court and in the assertions and allegations made against him as set out above, was professional misconduct by reason of his contravening rules 60(a), 61(a), 64(a) and 65(a) and by reason of the seriousness with which we hold that conduct.
9. As we detail above, individually and collectively, the contravention of those rules involved in summary: 1. invoking the coercive powers of the Supreme Court against an officer of the Court resulting in the solicitor having to cease acting for his client and being required to defend himself when there was no reasonable justification in the materials then available to him; 2. the making of unfounded serious allegations of misconduct against a solicitor; 3. an awareness by the respondent of the seriousness of the allegations being made; and 4. conduct which was clearly considered and not on the spur of the moment given that the respondent had been alerted to the shortcomings of the allegations and pleadings that he had authored by the earlier submissions made before Black J on 21 November 2016 but persisted with the claims seeking to justify them in written submissions.
10. In our view, the conduct amounted to fundamental breaches of the relevant Rules and not simply "pleading points" as claimed by the respondent.
11. These matters, taken as a whole, in our view lead to the conduct being professional misconduct as opposed to unsatisfactory professional conduct.
12. In respect of rule 8(c) of the Barristers Rules, we are also of the view, for the same reasons as set above, that the respondent's conduct amounted to serious misconduct.
13. Before leaving these reasons we would like to extend to counsel for the Council, Ms Morgan SC, and counsel for the respondent, Mr Robinson SC, our gratitude for the manner in which they conducted the hearing and the assistance they each provided to us in the determination of this difficult case. We would, in particular, like to thank Mr Robinson SC, for having made himself available to appear for the respondent on a pro bono brief. His willingness to provide his skill and expertise on behalf of the respondent, is to be commended.
14. The Orders of the Tribunal will be: 1. The Tribunal finds the respondent guilty of unsatisfactory professional conduct and professional misconduct. 2. The matter is stood over for further hearing to a date to be fixed by the Registrar by arrangement with the parties. 3. The Applicant Council is to file and serve any further documents it seeks to rely upon for the further hearing of this matter, by the close of business on 28 January 2022. The respondent is to file and serve any further documents he seeks to rely upon, for the further hearing, by the close of business on 28 February 2022. Each of the parties is to file five copies of each document. 4. Further directions in relation to the filing of evidence and submissions are to be made in consultation with the parties, at the time the matter is set down for further hearing.

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

Amendments 04 February 2022 - Pursuant to s 63 of the Civil and Administrative Tribunal Act 2013 the name of junior Counsel for the Applicant has been included, and 'Judgment' has been amended to 'Reasons for Decision'. 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: 04 February 2022