Council of the New South Wales Bar Association v DEJ

NCAT Occupational|2017-08-21|Before: Blake AM

ses from the filing of a cost assessor's certificate or review panel's certificate and any judgment on appeal from a determination of a review panel); (10) Access to and disclosure of Exhibit 1 be restricted to the Applicant, the Applicant's legal representatives and the Respondent's legal representatives. Schedule A (a) the Supreme Court of New South Wales; (b) the Supreme Court of the Australian Capital Territory; (c) the Legal Profession Admission Board; (d) the Legal Services Council, and any member, committee, or delegate of the Legal Services Council; (e) the Commissioner for Uniform Legal Services Regulation, and any delegate of the Commissioner; (f) a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW), and any member, committee, or delegate of any such authority; (g) a person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (a) to (c) above; (h) any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW); (i) any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW); (j) any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW) for the purpose of s 95 of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory; (k) any person who, for the purpose of s 95(1) of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory, is identified as being in a position to provide documents or information to a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW); (l) any person, body or entity to the extent that disclosure is permitted by s 462(2) and (3) of the Legal Profession Uniform Law (NSW); and (m) the Respondent's trustee in bankruptcy. Schedule B (a) any costs consultant, solicitor, counsel or process server engaged by or on behalf of the Applicant, the New South Wales Bar Association or the Respondent; (b) the Manager, Costs Assessment within the meaning of the Legal Profession Act 2004 (NSW) and/or the Legal Profession Uniform Law Application Act 2014 (NSW); (c) any costs assessor (whether acting alone, or as a member of a review panel); (d) any court in which any appeal from a determination of a review panel is instituted (including, for the avoidance of doubt, judges, officers and employees of such courts); (e) any court in which a certificate issued by a costs assessor or review panel is filed (including, for the avoidance of doubt, judges, officers and employees of such courts); (f) the Office of the Sheriff of New South Wales, and any officer or employee of that Office, and the equivalent Office in each State or Territory of Australia; (g) the Official Receiver and any court with jurisdiction under the Bankruptcy Act 1966 (Cth) (including, for the avoidance of doubt, judges, officers and employees of such courts); and (h) any other person, body or entity to whom it is necessary to disclose the information, decisions, documents, or evidence referred to in order 9(a) to 9(d) above for the purpose of the legislation, regulation and rules that apply from time to time to the assessment of costs and enforcement of judgments. Catchwords: CONDUCT - barrister failing to comply with conditions attached to practising certificate - barrister swore and filed untruthful affidavit in Tribunal - barrister giving false evidence before Tribunal - conduct constituting professional misconduct - appropriate penalty - removal from local roll - confidentiality - anonymisation Legislation Cited: Bankruptcy Act 1966 (Cth) Civil and Administrative Tribunal Act 2013 (NSW) Legal Profession Act 2004 (NSW) Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Cases Cited: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 Clyne v New South Wales Bar Association (1960) 104 CLR 186 Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 Council of the New South Wales Bar Association v Barnett [2016] NSWCATOD 153 Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 Johns v Law Society of New South Wales [1982] 2 NSWLR 1 Legal Services Commissioner v Thurairajah [2011] NSWADT 287 New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) DEJ (Respondent) Representation: Counsel: K Richardson SC (Applicant) D Lloyd (Respondent)

Solicitors: Hicksons Lawyers (Applicant) Sparke Helmore (Respondent) File Number(s): 2015/00383932 Publication restriction: Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the publication of the name of the respondent and the respondent's wife, together with any information or material which could identify those persons, whether by itself or with other information and material, is prohibited.

Introduction

These proceedings, in which the Applicant, the Council of the New South Wales Bar Association, is seeking findings of unsatisfactory professional conduct and/or professional misconduct against the Respondent, a barrister who is referred to as DEJ, and the making of consequential protective orders, arise out of the dealings between the New South Wales Bar Association (the Bar Association) and the Respondent in the context of the failure of the Respondent to meet his income tax obligations. The allegations of unsatisfactory professional conduct and/or professional misconduct by the Respondent are based upon provisions of the now repealed Legal Profession Act 2004 (the 2004 LP Act), by virtue of the time during which the alleged conduct occurred.
"Unsatisfactory professional conduct" is defined in s 496 of the 2004 LP Act: 496 Unsatisfactory professional conduct For the purposes of this Act: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
"Professional misconduct" is defined in s 497(1) of the 2004 LP Act: 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

Reconstitution of the Tribunal during the proceedings

On 17, 18 and 21 August 2017, the hearing was held before M Craig QC ADCJ, Principal Member, L Robberds AM QC, Senior Member, and E Hayes, General Member. At the conclusion of the hearing the decision was reserved.
On 9 August 2019, the Hon Justice Armstrong, the President of the Tribunal, reconstituted the Tribunal pursuant to s 52(1) of the Civil and Administrative Tribunal Act 2013 (NSW) (CAT Act) by replacing L Robberds AM QC, Senior Member, with G Blake AM SC, Senior Member. As required by s 52(3) we as the reconstituted Tribunal have had regard to the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted.

Anonymisation and non-publication of the name of the Respondent and his wife

The application for anonymisation and non-publication orders and interim orders

On 7 June 2017, the Tribunal made a non-publication order in respect of the name of the Respondent.
On 17 August 2017, at the commencement of the hearing, the Respondent sought, and the Applicant did not oppose, the making of orders which would have the effect of anonymising the name of the Respondent as DEJ and his wife as DEK and prohibiting the disclosure of the name of the Respondent and his wife. This application was based upon medical evidence concerning the Respondent to the effect that he suffers from a serious psychiatric condition accompanied by suicidal ideation and has attempted suicide on a number of occasions. It was the opinion of the Respondent's treating psychiatrist, Dr Michael Williamson in his report dated 15 August 2017 which was marked as Exhibit 1, that if the Respondent's name was to be published in connection with these proceedings, that his "capacity to avoid suicide would have reached rock bottom. I would advise in the strongest possible terms if it is legally possible to avoid the publication of his name in association with any adverse disciplinary findings and reasons." The Tribunal made orders in the form of the document entitled "Proposed Orders" dated 17 August 2017 until further order. At the conclusion of the hearing the parties handed up proposed orders relating to the anonymisation and prohibition of the disclosure of the name of the Respondent and his wife.
On 16 August 2019, the parties filed proposed consent orders providing for the re-opening of the proceedings for the limited purpose of tendering the redacted report of Dr Robert Llewellyn-Jones dated 25 April 2019 and supplementary submissions of the Applicant and the Respondent. It is the opinion of Dr Robert Llewellyn-Jones, who has been treating the Respondent since October 2018, that if the decision of the Tribunal identifies the Respondent then he is highly likely to attempt suicide because of the shame it would induce. The Respondent submitted that the prohibition of the disclosure of the names of himself and his wife should extend to publication of these reasons. The Applicant does not oppose the making of the proposed orders.
We have agreed to receive the redacted report of Dr Robert Llewellyn-Jones dated 25 April 2019 which was marked as Exhibit 11 and to make orders for the re-opening of the proceeding in terms of the proposed consent orders.

Consideration

It is well-established that the overarching principle of open justice mitigates against the anonymisation and non-publication of the names of parties to proceedings, and in particular disciplinary proceedings. The relevant principles are encapsulated in the judgment of McHugh JA (as his Honour then was) in the Court of Appeal in John Fairfax and Sons Ltd v Police Tribunal of New South Wales (1986) 5 NSWLR 465 at 477: Accordingly, an order of a court prohibiting the publication of evidence is only valid if it is really necessary to secure the proper administration of justice in proceedings before it. Moreover, an order prohibiting publication of evidence must be clear in its terms and do no more than is necessary to achieve the due administration of justice. The making of the order must also be reasonably necessary; and there must be some material before the court upon which it can reasonably reach the conclusion that it is necessary to make an order prohibiting publication.
The relevant power of the Tribunal to restrict the publication of certain matters in proceedings before it is found in s 64 of the CAT Act: 64 Tribunal may restrict disclosures concerning proceedings (1) If the Tribunal is satisfied that it is desirable to do so by reason of the confidential nature of any evidence or matter or for any other reason, it may (of its own motion or on the application of a party) make any one or more of the following orders: (a) an order prohibiting or restricting the disclosure of the name of any person (whether or not a party to proceedings in the Tribunal or a witness summoned by, or appearing before, the Tribunal), (b) an order prohibiting or restricting the publication or broadcast of any report of proceedings in the Tribunal, (c) an order prohibiting or restricting the publication of evidence given before the Tribunal, whether in public or in private, or of matters contained in documents lodged with the Tribunal or received in evidence by the Tribunal, (d) an order prohibiting or restricting the disclosure to some or all of the parties to the proceedings of evidence given before the Tribunal, or of the contents of a document lodged with the Tribunal or received in evidence by the Tribunal, in relation to the proceedings. (2) The Tribunal cannot make an order under this section that is inconsistent with section 65. (3) The Tribunal may from time to time vary or revoke an order made under subsection (1). (4) For the purposes of this section, a reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person.
Each application brought under s 64 must be considered on its own merits. There are proceedings where anonymisation and non-publication orders have been made pursuant to s 64 based on evidence concerning the possible adverse impact of publication on an individual, whether a party to the proceedings or even a family member of a party.
We are conscious that the name of the Respondent has already been published in connection with these proceedings. However, having regard to the evidence of Dr Williamson, and Dr Llewellyn-Jones, which we accept, and what is known concerning the Respondent, as will be revealed later in these reasons for decision, we conclude, on balance, that it is appropriate to make anonymisation and non-publication orders in terms submitted jointly by the parties. Although the name of the Respondent will not be published, the factual circumstances surrounding his practice as a barrister will be published. The publication of those circumstances will promote two of the relevant matters in the making of protective orders, namely to provide a deterrent against similar misconduct by other legal practitioners and to enhance the confidence of the public in the legal profession.
Accordingly, we will make the consent orders proposed by the parties.

Background

At all relevant times prior to 17 January 2017, the Respondent and his wife were the registered proprietors of the property at Wahroonga (the Wahroonga Property).
The Respondent had failed to comply with his taxation obligations dating back to 2001. There was a history of a failure to lodge BAS returns from that time on, which worsened from 2008.
From 26 May 2008 to 25 November 2011, during a period of 15 quarters the Respondent was overdue in the lodgement of BAS returns by the following weekly periods: 59, 46, 35, 21, 46, 69, 97, 82, 104, 91, 78, 65, 52, 39 and 26.
On 2 June 2011, the Deputy Commissioner of Taxation commenced proceedings against the Respondent in the District Court of New South Wales to recover unpaid tax.
On 12 October 2011, the Deputy Commissioner of Taxation obtained judgment against the Respondent in the sum of $293,915.10 inclusive of costs.
On 6 December 2011, the Deputy Commissioner of Taxation issued a bankruptcy notice against the Respondent.
On 30 May 2012, the Respondent was fined $16,000 for failing to file 5 BAS returns for the periods ending 30 September, 31 December 2010, 31 March, June and September, 2011. This was a "show cause event" for the purpose of s 67 of the 2004 LP Act.
By letter dated 9 June 2012, the Respondent wrote to the Bar Association to disclose that he had received a fine for late lodgement of his BAS returns. He said that he had been sued by the Australian Taxation Office (the ATO) for unpaid taxes and served with a bankruptcy notice and was going to borrow monies to pay the debt.
On 30 June 2012, the Respondent was served by the Deputy Commissioner of Taxation with a creditor's petition. This was a "show cause event" for the purpose of s 67 of the 2004 LP Act.
By letter dated 3 July 2012, the Bar Association served the Respondent with a notice under s 68(2) of the 2004 LP Act, requiring him to provide a written statement about the show cause event with respect to the tax offences and explaining why, despite the show cause event, the Respondent considers himself to be a fit and proper person to hold a local practising certificate, together with a notice under s 660(1) of the 2004 LP Act (the 3 July 2012 s 660(1) notice).
Under cover of an undated letter received by the Bar Association on 11 July 2012 (the 11 July 2012 DEJ Letter), the Respondent enclosed various documents.
By letter dated 19 July 2012 to the Bar Association, the Respondent enclosed a Statutory Declaration made on 20 July 2012 in which the Respondent responded to the s 660(1) notice (the 20 July 2012 DEJ Statutory Declaration).
By letter dated 4 September 2012 to the Respondent, the Bar Association requested information and documents.
By letter dated 10 September 2012 to the Bar Association (the 10 September DEJ 2012 Letter), the Respondent enclosed various documents including a statement under s 67 of the 2004 LP Act, setting out why he was a fit and proper person to hold a local practising certificate.
On 21 September 2012, the Respondent paid the Deputy Commissioner of Taxation the sum of $451,806.62.
By letter dated 26 September 2012 to the Respondent, the Bar Association provided a draft report about its investigation of the show cause events.
By letter dated 3 October 2012 to the Bar Association, the Respondent accepted the draft report and its recommendations (the 3 October 2012 DEJ Letter).
By letter dated 16 October 2012 to the Respondent, the Bar Association notified him that the Applicant on 11 October 2012 resolved: 1. pursuant to s 68(3)(c) of the 2004 LP Act that he is a fit and proper person to hold a local practising certificate but it is appropriate to impose conditions on his practising certificate and on any local practising certificate which may be issued to him with respect to any period up to and including 30 June 2015; 2. to impose 11 conditions on the local practising certificate currently held by him and on any local practising certificate which may be issued to him with respect to any period up to and including 30 June 2015; 3. to take no further action in respect of his failure to notify the Applicant within the time required by s 67(2)(a) of the 2004 LP Act of the 5 tax offences of which he was convicted on 30 May 2012 and the service on him of a creditor's petition on 30 June 2012.
By letter dated 29 July 2014 to the Respondent (the 29 July 2014 Association Letter), the Bar Association notified him that the Applicant had resolved on 10 July 2014 to make a complaint against him under s 503 of the 2004 LP Act that he engaged in professional misconduct in that he had failed to comply with the conditions attaching to his practising certificate since 16 October 2012 (the Complaint).
Between 29 July 2014 and 12 June 2015, there was extensive correspondence between the Bar Association and the Respondent including the following documents of the Respondent: 1. the letter dated 4 September 2014 (the 4 September 2014 DEJ Letter); 2. a Statutory Declaration made on 13 April 2015 (the 13 April 2015 DEJ Statutory Declaration); 3. a Statutory Declaration made on 30 April 2015 (the 30 April 2015 DEJ Statutory Declaration).
By letter dated 12 June 2015 to the Respondent, the Bar Association notified him that the Applicant had resolved on 11 June 2015 to refer the Complaint made on 10 July 2014 to the Tribunal.
By letter dated 17 June 2015 to the Respondent, the Bar Association notified him that the Applicant had resolved on 11 June 2015 that in the event he submitted an application to renew his current practising certificate, he be invited to show cause in writing that he was a fit and proper person to hold a practising certificate.
On 25 June 2015, the Applicant resolved to refuse the Respondent's application for a practising certificate for the practising year commencing on 1 July 2015, but that it would be minded to grant a practising certificate if the Respondent demonstrated certain matters in relation to his financial affairs.
On 16 July 2015, the Applicant resolved to issue the Respondent with a practising certificate with conditions.
Between 16 July 2015 and 23 June 2016, there was extensive correspondence between the Bar Association, and the Respondent, the Respondent's accountants and the Respondent's medical practitioners.
By letter dated 27 June 2016 to the Respondent, the Bar Association notified him that the Applicant had resolved on 23 June 2016 to refuse to renew his practising certificate on the basis it was satisfied he was not a fit and proper person to hold a practising certificate for the practising certificate year commencing on 1 July 2016 by reason of his contravention of Condition 6 imposed on his practising certificate on 11 October 2012.
For the 2008 to 2015 financial years the Respondent earned gross income and declared a taxable income in the following amounts: Year Gross Income Taxable Income 2008 $462,462 $318,222 2009 $490,174 $359,757 2010 $436,0456 $277,560 2011 $303,654 $166,102 2012 $372,296 $214,121 2013 $328,525 $191,548 2014 $381,021 $235,328 2015 $318,056 $157,315

On 23 June 2017, the Respondent became bankrupt pursuant to a debtor's petition. In his Statement of Affairs dated 7 June 2017, the particulars of which he declared to be correct in a statutory declaration made on the same date, he disclosed debts of $1,600,000, including a debt of approximately $600,000 to the ATO.

The proceedings

The present proceedings were commenced by an Application for Disciplinary Findings filed on 8 December 2015.

The Further Amended Application for Disciplinary Findings

The Applicant seeks the orders and makes the allegations now found in the Further Amended Application for Disciplinary Findings (the FAADF) filed on 18 August 2017: ORDERS SOUGHT The applicant seeks the following order/s: 1. An order that the Respondent by his conduct referred to in the Grounds below engaged in unsatisfactory conduct and/or professional misconduct. 2. (a) Such orders under s 562 of the Legal Profession Act 2004 (NSW) as the Tribunal thinks fit. (b) Such orders under s.302 of the Legal Profession Uniform Law (NSW) 2014 as the Tribunal thinks fit. 3. An order that the Respondent pay the Applicant's costs of these proceedings, as agreed or assessed. GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Introduction 1. The Respondent is an Australian lawyer and an Australian legal practitioner within the meaning of s 6 of the Legal Profession Uniform Law (NSW) No 16a, and was at all material times an Australian lawyer and an Australian legal practitioner within the meaning of ss 5 and 6 of the Legal Profession Act 2004 (NSW) (the Act). Particulars (i) The Respondent was admitted to the Supreme Court Roll of Barristers (as it then was) in New South Wales on 3 August 1984, and commenced practice as a barrister on 10 September 1984. (ii) The Respondent was issued with a barrister's practising certificate upon their introduction in New South Wales on 1 July 1988. (iii) The Respondent held an unrestricted practising certificate continuously from 1 July 1988 until 15 October 2012. (iv) By resolution made on 11 October 2012, the applicant attached financial management and reporting conditions to the Respondent's practicing certificate from 16 October 2012 to 30 June 2013. Pursuant to that same resolution, financial management and reporting conditions were also attached to the Respondent's practicing certificate from 1 July 2013 to 30 June 2015. (v) The Respondent did not hold a practicing certificate in the period 1 July 2015 to 19 July 2015. (vi) By resolution made on 16 July 2015, the applicant issued the Respondent a practicing certificate for the period 20 July 2015 to 30 June 2016 with discretionary conditions pursuant to s 44 and s 53 of the Legal Profession Uniform Law (NSW) No 16a and R16 of the Legal Profession Uniform General Rules 2013. 2. On 11 October 2012 the applicant resolved to attach eleven conditions (pleaded in paragraphs 4 to 14 below) to the Respondent's then current practicing certificate and any subsequent practicing certificate that may be issued to him with respect to any period up to and including 30 June 2015. 3. The eleven conditions pleaded in paragraphs 4 to 14 below were attached to: (a) the practicing certificate held by the Respondent with respect to the period 1 July 2012 to 30 June 2013, from 16 October 2012 to 30 June 2013; (b) the practicing certificate held by the Respondent with respect to the period 1 July 2013 to 30 June 2014, for the whole of that period; and (c) the practicing certificate held by the Respondent with respect to the period 1 July 2014 to 30 June 2015, for the whole of that period. 4. The first condition (Condition One) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall: (a) lodge or cause to be lodged with the Australian Taxation Office by no later than 8 November 2012 his outstanding income tax returns for the financial years ended 30 June 2010 and 30 June 2011 and his outstanding BAS returns for the financial quarters ended 30 December 2011, 31 March 2012 and 30 June 2012; and (b) arrange for his accountant to provide the applicant with confirmation of the lodgement of the above outstanding returns within 7 days of those returns having been lodged. 5. The second condition (Condition Two) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall otherwise meet all reporting and payment obligations to the Australian Taxation Office as they fall due and shall use his best endeavours to lodge promptly any outstanding income tax or BAS returns and pay any tax assessed. 6. The third condition (Condition Three) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall nominate a dedicated account (the dedicated account) to be used for the sole purpose of depositing sufficient monies to adequately provide for his ongoing tax liabilities and he shall provide details of that account to the applicant within 14 days of 16 October 2012. 7. The fourth condition (Condition Four) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall set aside and deposit in the dedicated account sufficient moneys for the purpose of making adequate provisioning for ongoing tax liabilities including, but not limited to, GST liability. 8. The fifth condition (Condition Five) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall keep his financial affairs in the hands of and under the control of a financial expert to be nominated by him and acceptable to the applicant or, in default, a financial expert nominated by the applicant. 9. The sixth condition (Condition Six) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall do all things necessary to facilitate and enable his financial expert to control satisfactorily his financial affairs to facilitate his compliance with the other conditions. 10. The seventh condition (Condition Seven) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall confer with his financial expert at least once every three months to facilitate his compliance with the other conditions. 11. The eighth condition (Condition Eight) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall arrange for his financial expert to provide to the applicant by the due date a quarterly report on his financial affairs, including: (a) evidence that he has complied with his reporting and payment obligations to the Australian Taxation Office; (b) evidence that sufficient monies have been set aside and deposited in the dedicated account for the purpose of adequate provisioning for ongoing tax liabilities, including but not limited to GST liability; (c) a statement as to whether he has done all things necessary to facilitate and enable the financial expert to satisfactorily control his financial affairs; and (d) a statement as to his conferences with the financial expert. 12. The ninth condition (Condition Nine) attached to each of the practicing certificates pleaded in paragraph 3 above was that the due date for the quarterly reports required by Condition Eight was 16 February 2013 for the first such report, and then each 16 May, 16 August, 16 November and 16 February thereafter. 13. The tenth condition (Condition Ten) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall, within 7 days of approval of his financial expert or, in default, nomination of a financial expert by the applicant, inform his financial expert in writing of the terms and duration of the conditions attached to his practicing certificate and provide a copy of such letter to the applicant within 7 days of writing to his financial expert. 14. The eleventh condition (Condition Eleven) attached to each of the practicing certificates pleaded in paragraph 3 above was that the Respondent shall meet the costs of his financial expert on a continuing basis. 15. For the purposes of Conditions Five, Six, and Eight, by resolution of 6 December 2001, the applicant determined that keeping a barrister's financial affairs under the control of a financial expert required the financial expert to take all necessary steps to ensure the barrister maintains adequate accounting records systems to ensure: (a) all income received by the barrister is properly recorded; (b) adequate provision is made out of such income for the timely payment of all taxation liabilities; and (c) that income tax returns and Business Activity Statements be lodged in a timely fashion. Ground A - Failure to Comply with Condition One 16. The Respondent lodged, or caused to be lodged, with the Australian Taxation Office: (a) his income tax return for the financial year ended 30 June 2010 on 4 December 2012; (b) his income tax return for the financial year ended 30 June 2011 on 4 December 2012; (c) his BAS return for the financial quarter ended 30 December 2011 on 30 November 2012; (d) his BAS return for the financial quarter ended 31 March 2012 on 30 November 2012; and (e) his BAS return for the financial quarter ended 30 June 2012 on 30 November 2012. 17. By failing to lodge, or cause to be lodged, each of the returns pleaded in paragraph 16 above by no later than 8 November 2012, the Respondent did not comply with Condition One. 18. By his conduct pleaded in paragraph 17 above, the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Ground B - Failure to Comply with Condition Two Income Tax Return FYE 30 June 2012 19. The Respondent's income tax return for the financial year ended 30 June 2012 was required to be filed with the Australian Taxation Office on or before 12 June 2013. 20. The Respondent filed his income tax return for the financial year ended 30 June 2012 with the Australia Taxation Office on 23 October 2013. 21. In the premises of paragraphs 19-20 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his income tax return for the financial year ended 30 June 2012 as they fell due. Income Tax Return FYE 30 June 2013 22. The Respondent's income tax return for the financial year ended 30 June 2013 was required to be filed with the Australian Taxation Office on or before 31 March 2014. 23. The Respondent filed his income tax return for the financial year ended 30 June 2012 with the Australia Taxation Office on 4 February 2015. 24. In the premises of paragraphs 22-23 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his income tax return for the financial year ended 30 June 2013 as they fell due. Income Tax Return FYE 30 June 2014 25. The Respondent's income tax return for the financial year ended 30 June 2014 was required to be filed with the Australian Taxation Office on or before 31 October 2014. 26. The Respondent filed his income tax return for the financial year ended 30 June 2014 with the Australia Taxation Office on 14 April 2015. 27. In the premises of paragraphs 25-26 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his income tax return for the financial year ended 30 June 2014 as they fell due. BAS Return FQE 30 September 2012 28. The Respondent's BAS return for the financial quarter ended 30 September 2012 was required to be filed with the Australian Taxation Office on or before 26 November 2012. 29. The Respondent filed his BAS return for the financial quarter ended 30 September 2012 with the Australia Taxation Office on 25 March 2013. 30. In the premises of paragraphs 28-29 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 30 September 2012 as they fell due. BAS Return FQE 31 December 2012 31. The Respondent's BAS return for the financial quarter ended 31 December 2012 was required to be filed with the Australian Taxation Office on or before 28 February 2013. 32. The Respondent filed his BAS return for the financial quarter ended 30 September 2012 with the Australia Taxation Office on 25 March 2013. 33. In the premises of paragraphs 31-32 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 31 December 2012 as they fell due. BAS Return FQE 30 June 2013 34. The Respondent's BAS return for the financial quarter ended 30 June 2013 was required to be filed with the Australian Taxation Office on or before 26 August 2013. 35. The Respondent filed his BAS return for the financial quarter ended 30 June 2013 with the Australia Taxation Office on 15 October 2013. 36. In the premises of paragraphs 34-35 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 30 June 2013 as they fell due. BAS Return FQE 30 September 2013 37. The Respondent's BAS return for the financial quarter ended 30 September 2013 was required to be filed with the Australian Taxation Office on or before 25 November 2013. 38. The Respondent filed his BAS return for the financial quarter ended 30 September 2013 with the Australia Taxation Office on 20 March 2014. 39. In the premises of paragraphs 37-38 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 30 September 2013 as they fell due. BAS Return FQE 31 December 2013 40. The Respondent's BAS return for the financial quarter ended 31 December 2013 was required to be filed with the Australian Taxation Office on or before 28 February 2014. 41. The Respondent filed his BAS return for the financial quarter ended 31 December 2013 with the Australia Taxation Office on 10 March 2015. 42. In the premises of paragraphs 40-41 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 31 December 2013 as they fell due. BAS Return FQE 31 March 2014 43. The Respondent's BAS return for the financial quarter ended 31 March 2014 was required to be filed with the Australian Taxation Office on or before 28 April 2014. 44. The Respondent filed his BAS return for the financial quarter ended 31 March 2014 with the Australia Taxation Office on 10 March 2015. 45. In the premises of paragraphs 43-44 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 31 March 2014 as they fell due. BAS Return FQE 30 June 2014 46. The Respondent's BAS return for the financial quarter ended 30 June 2014 was required to be filed with the Australian Taxation Office on or before 28 July 2014. 47. The Respondent filed his BAS return for the financial quarter ended 30 June 2014 with the Australia Taxation Office on 10 March 2015. 48. In the premises of paragraphs 46-47 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 30 June 2014 as they fell due. BAS Return FQE 30 September 2014 49. The Respondent's BAS return for the financial quarter ended 30 September 2014 was required to be filed with the Australian Taxation Office on or before 28 October 2014. 50. The Respondent filed his BAS return for the financial quarter ended 30 September 2014 with the Australia Taxation Office on 28 April 2015. 51. In the premises of paragraphs 49-50 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 30 September 2014 as they fell due. BAS Return FQE 31 December 2014 52. The Respondent's BAS return for the financial quarter ended 31 December 2014 was required to be filed with the Australian Taxation Office on or before 28 February 2015. 53. The Respondent filed his BAS return for the financial quarter ended 31 December 2014 with the Australia Taxation Office on 14 April 2015. 54. In the premises of paragraphs 52-53 above, the Respondent did not meet his reporting obligations to the Australian Taxation Office in respect of his BAS return for the financial quarter ended 31 December 2014 as they fell due. Payment Obligations 55. As at 4 December 2012, the Respondent had an obligation to pay immediately to the Australian Taxation Office the sum of $137,554.25. 56. On 10 May 2013, the Australian Taxation Office agreed to a payment schedule that required the Respondent to make: (a) three payments of $2,500 each on 24 May 2013, 24 June 2013, and 24 July 2013; and (b) one payment of $190,439 on 26 August 2013. 57. On 24 May 2013, the Respondent paid the Australian Taxation Office the sum of $2,500. 58. On 14 June 2013, the Australian Taxation Office agreed to a revised payment schedule that required the Respondent to make: (a) two payments of $2,500 each on 15 July 2013 and 15 August 2013; and (b) one payment of $130,054 on 16 September 2013. 59. On 16 July 2013, the Respondent paid the Australian Taxation Office the sum of $2,500. 60. On 19 August 2013, the Respondent paid the Australian Taxation Office the sum of $2,500. 61. On 23 October 2013, the following amounts were added to the Respondent's taxation obligations: (a) the sum of $76,622.80 in respect of his income tax liability for the financial year ended 30 June 2012; and (b) the sum of $850.00 as a penalty for late lodgement of his income tax return for the financial year ended 30 June 2012. 62. On 28 October 2013, the Respondent had an obligation to pay immediately to the Australian Taxation Office $206,677.05 in respect of his income taxation liabilities. 63. On 20 October 2014, the respondent had an obligation to pay immediately to the Australian Taxation Office: (a) the sum of $207,527.05 in respect of his income taxation liabilities; and (b) the sum of $32,100.50 in respect of his BAS liabilities. 64. As at 29 April 2015, the Respondent had an obligation to pay immediately to the Australian Taxation Office the sum of $465,988. 65. As at 13 July 2015, the Respondent owed the Australian Tax Office $313,133.40 in respect of his liabilities pursuant to filed income taxation returns. 66. As at 4 July 2015, the Respondent owed the Australian Tax Office $163,826.31 in respect of his liabilities pursuant to filed BAS returns. 67. At all times between 16 October 2012 and 30 June 2015 the Respondent has been in default of his obligation to pay amounts due to the Australian Taxation Office as and when they fell due. 68. By failing to meet his reporting obligations to the Australian Tax Office as they fell due, as pleaded in paragraphs 21, 24, 27, 30, 33, 36, 39, 42, 45, 48, 51 and 53 above, the Respondent failed to comply with Condition Two. 69. By failing to meet his payment obligations to the Australian Tax Office as they fell due, as pleaded in paragraphs 55, 59, 60, 62, 63, 64, 65, 66 and 67 above, the Respondent failed to comply with Condition Two. 70. By his conduct pleaded in paragraphs 68 and 69 above, the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Ground C - Failure to Comply with Conditions Three and Four 71. The Respondent did not provide details of any dedicated account he nominated pursuant to Condition Three to the applicant within 14 days of 16 October 2012 or at any time prior to 13 April 2015. 72. On 13 April 2015 the Respondent informed the applicant that he had nominated Westpac Account No. 89-3784 (First Westpac Account) as his dedicated account for the period up to 17 October 2014. 73. On 13 April 2015 the Respondent informed the applicant that he had nominated Westpac Account No. 59-3201 (Second Westpac Account) as his dedicated account for the period from 17 October 2014 onwards. 74. On 18 October 2012, the First Westpac Account had an opening balance of $605.43. 75. On 18 October 2012, the Respondent withdrew the sum of $600.00 from the First Westpac Account, leaving a balance of $5.43. 76. Between 19 October 2012 and 16 October 2014, there were no funds deposited by any person into the First Westpac Account. 77. On 17 October 2014, the Respondent deposited the sum of $19.39 into the First Westpac Account for the purpose of eliminating a debit balance of $19.39, and then closed the First Westpac Account. 78. On 17 October 2014 the Second Westpac Account had an opening balance of $nil. 79. Since 17 October 2014, no funds have been deposited into the Second Westpac Account by any person. 80. In the period 18 October 2012 to 30 June 2015 the Respondent earned income as a barrister in relation to which he had an obligation to pay income tax to the Australian Taxation Office. 81. In the period 18 October 2012 to 30 June 2015 the Respondent was paid money in relation to taxable supplies made by him in respect of which he had an obligation to remit GST to the Australian Taxation Office. 82. In the premises of paragraphs 74 to 81 above, the Respondent failed to set aside and deposit in the dedicated account sufficient moneys for the purpose of making adequate provisioning for ongoing tax liabilities including, but not limited to, GST liability. 83. By failing to provide details of the dedicated account to the applicant within 14 days of 16 October 2012, or any subsequent date upon which a new dedicated account was established, as pleaded in paragraphs 71 to 73 above, the Respondent failed to comply with Condition Three. 84. By failing to set aside and deposit in the dedicated account sufficient moneys for the purpose of making adequate provisioning for ongoing tax liabilities including, but not limited to, GST liability, as pleaded in paragraphs 74 to 81 above, the Respondent failed to comply with Condition Four. 85. By his conduct pleaded in paragraphs 83 and 84 above, the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Ground D - Failure to Comply with Conditions Five to Eleven 86. In compliance with Condition Five, the Respondent nominated, and the applicant approved, the appointment of Ms Rena Ren as the financial expert into whose hands and under whose control the Respondent's financial affairs were to be placed. 87. Ms Rena Ren remained the Respondent's financial expert for the purposes of Condition Five until 3 September 2014. 88. The Respondent had no financial expert, approved or otherwise, in the period 3 September 2014 to 3 November 2014. 89. The Respondent did not inform the applicant of the fact pleaded in paragraph 88 above until 3 November 2014. 90. On 3 November 2014, the Respondent nominated, and the applicant approved, the appointment of Justin Pengilly of Weston Woodley Robertson as the financial expert into whose hands and under whose control the Respondent's financial affairs were to be placed. 91. The Respondent did not inform his approved financial experts in writing of the terms and duration of the conditions attached to his practicing certificate or provide a copy of any such letter to the applicant within seven days of writing such letter. 92. The Respondent failed to do all things necessary to facilitate and enable Ms Rena Ren to control satisfactorily his financial affairs to facilitate the Respondent's compliance with the conditions, in that: (a) the Respondent failed to provide Ms Rena Ren with records or information necessary to enable her to prepare and lodge income tax returns and BAS returns as and when they were due; Particulars In relation to the Respondent's income tax return for the financial year ended 30 June 2012, Ms Rena Ren informed the Respondent on 2 April 2013 that the Australian Taxation Office required that the return be filed by the end of that month (extensions were subsequently obtained). Ms Rena Ren sent reminders and requests for information on 26 April 2013, 3 May 2013, 7 May 2013, 9 May 2013, 10 May 2013, 15 May 2013, 22 May 2013, 24 May 2013, 28 May 2013, 4 June 2013, 31 July 2013, 19 August 2013, 11 October 2013, 17 October 2013, and 22 October 2013. Furthermore, the failure of the Respondent to file each of the returns pleaded in 19 to 54 above was caused by the failure of the Respondent to provide Ms Rena Ren with information sufficient to enable the returns to be prepared and filed on time. (b) the Respondent failed to provide Ms Rena Ren with records or information necessary to enable her to ensure that the Respondent was making adequate provision out of his income for the timely payment of all of his taxation liabilities; Particulars The Respondent failed to provide Ms Rena Ren with any records or information necessary for that purpose. (c) the Respondent failed to ensure that Ms Rena Ren's professional fees were paid in a timely fashion, such that Ms Rena Ren ceased to perform any work for the Respondent; Particulars On 19 March 2014, Ms Rena Ren informed the Respondent that she had not been paid for her work since 1 January 2013. On 28 April 2014 Ms Rena Ren ceased performing any work for the Respondent. On 3 September 2014 the Respondent informed Ms Rena Ren that he would be taking over the preparation of his accounts. 93. By failing to do all things necessary to facilitate and enable his financial expert to control satisfactorily his financial affairs, the Respondent did not keep his financial affairs in the hands of and under the control of Ms Rena Ren. 94. The Respondent failed to meet with Ms Rena Ren at least once every three months to facilitate his compliance with the conditions. 95. The Respondent failed to arrange for Ms Rena Ren to provide a quarterly report in accordance with Condition Eight to be provided to the applicant either at all, or in accordance with the due dates specified in in Condition Nine. Particulars Ms Rena Ren provided her first report to the applicant on 25 February 2013 (when the due date was 16 February 2013). That report did not (a) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (b) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (c) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided a supplementary first report to the applicant on 25 March 2013 (when the due date was 16 February 2013). That report did not disclose the position with respect to the Respondent's compliance with his taxation obligations in respect of his 2010 and 2011 income tax liabilities. Ms Rena Ren provided her second report to the applicant on 24 June 2013 (when the due date was 25 March 2013). That report did not (a) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (b) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (c) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided her third report to the applicant on 15 October 2013 (when the due date was 16 August 2013). That report did not (a) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (b) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (c) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided her fourth report to the applicant on 2 December 2013 (when the due date was 16 November 2013). That report did not (a) state whether the June 2013 BAS return had been lodged or paid, (b) state the date by which the September 2013 BAS return was due for lodgement, (c) state the date by which the Respondent's 2012 income tax return was lodged or paid, (d) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (e) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (f) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided a supplementary fourth report to the applicant on 3 December 2013 (when the due date was 16 November 2013). That report did not (a) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, or (b) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent. Ms Rena Ren provided her fifth report to the applicant on 20 March 2014 (when the due date was 16 February 2014). That report did not (a) provide any evidence that the Respondent had complied with his payment obligations in respect of his September 2013 BAS return, (b) state the date by which the Respondent's December 2013 BAS return was due or paid, (c) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (d) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (e) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided a supplementary fifth report to the applicant on 25 March 2014 (when the due date was 16 February 2014). That report did not (a) state the date by which the Respondent's December 2013 BAS return was due or paid, (b) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four, (c) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent, or (d) include a statement as to the Respondent's conferences with Ms Rena Ren. Ms Rena Ren provided a second supplementary fifth report to the applicant on 25 March 2014 (when the due date was 16 February 2014). That report did not (a) provide any evidence that sufficient moneys had been set aside and deposited in the dedicated account in accordance with Condition Four (indeed state that they had not), or (b) include a statement that the Respondent had done all things necessary to facilitate and enable Ms Rena Ren to control the financial affairs of the Respondent. No report was provided in respect of the periods ending 16 May 2014, 16 August 2014, 16 November 2014. Mr Justin Pengilly provided his first report to the applicant on 6 March 2015 (when the due date was 16 February 2015). That report complied with Condition Eight. No report was provided in respect of the period ending 16 May 2015. 96. By failing to keep his financial affairs in the hands of and under the control of an approved financial expert, the Respondent failed to comply with Condition Five. 97. By failing to do all things necessary to facilitate and enable the approved financial expert to control satisfactorily his financial affairs, the Respondent failed to comply with Condition Six. 98. By failing to confer with the approved financial expert at least once every three months, the Respondent failed to comply with Condition Seven. 99. By failing to arrange for the approved financial expert to provide quarterly reports in accordance with Condition Eight, by the times specified in Condition Nine, the Respondent failed to comply with Conditions Eight and Nine. 100. By failing to inform his approved financial experts in writing of the terms and duration of the conditions attached to his practicing certificate or provide a copy of any such letter to the applicant within seven days of writing such letter, the Respondent failed to comply with Condition Ten. 101. By failing to meet the costs of Ms Rena Ren as and when they fell due, the Respondent failed to comply with Condition Eleven. 102. By his conduct pleaded in paragraphs 96 to 101 above, the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Grounds A to D considered as a whole 103. Further or alternatively, by his conduct referred to in paragraphs 17, 68, 69, 83, 84, 96 -101 above, considered as a whole, the Respondent engaged in professional misconduct and/or unsatisfactory professional conduct. Ground E 2012 show cause event leading to imposition of conditions 104. By letter dated 3 July 2012, the applicant issued a show cause notice under s 68(2) of the Act to the Respondent requiring him to give a statement explaining why he considers himself to be a fit and proper person to hold a practising certificate despite a show cause event having occurred (being his conviction of tax offences). 105. During the investigation of the show cause event, in response to a s 660 notice the Respondent provided the applicant with a statutory declaration dated 20 July 2012, in which the Respondent described applying for a loan "against my home which is unencumbered and valued at $1.5m". Particulars 1. Statutory declaration dated 20 July 2012 at Q B12. 106. During the investigation of the show cause event, the Respondent represented to the applicant that: a. a loan had been approved and "my wife and I have executed the mortgage documents" and were awaiting notification of the settlement date; b. he and his wife were the joint proprietors of their principal place of residence, being a property at XXXX, Wahroonga (the Wahroonga home) and that he had arranged refinancing on the Wahroonga home, to which his wife had consented, in order to pay his tax debts. c. that he owned his own home and that, as at 5 August 2011, it was valued at $1,200,000 with a debt of $19,000 owing on it from the mortgage and was almost paid off. Particulars 1. Respondent's letter to the applicant dated 10 September 2012. 1A. Attachment provided by the Respondent under cover of letter received by the Bar Association on 11 July 2012, being a letter from the Respondent to the Deputy Commissioner of Taxation dated 5 August 2011. 2. Attachments provided by the Respondent under cover of his letter to the applicant dated 10 September 2012. 3. LPI Property searches dated 9 February 2012 and 7 August 2012 showing [the Respondent] and [the Respondent's wife] as joint tenants with mortgages to Westpac (attached under cover of Respondent's letter to the applicant dated 10 September 2012). 107. The Respondent was provided with a copy of a draft report to Bar Council dated 24 September 2012 which, inter alia, set out the response of the Respondent in his statutory declaration referred to at paragraph [105] above and the representation made by the Respondent set out at paragraph [106(a)] above. 108. On 3 October 2012, the Respondent wrote to the applicant and acknowledged receipt of the draft report dated 24 September 2012 and stated "I accept the report and the recommendations and it is my belief I will benefit from conditions and get myself back on track". 109. After considering the material provided by the Respondent during the investigation of the show cause event, the applicant by resolution on 11 October 2012 attached 11 conditions (pleaded in paragraphs 4 to 14 above) to the Respondent's practising certificate. 2014 investigation of complaint into breach of conditions 110. On 10 July 2014, the applicant resolved to make a complaint about the Respondent's conduct pursuant to s 503 of the Act, being the complaint in respect of which these proceedings were commenced (the "Complaint"). 111. During the applicant's investigation of the Complaint, the Respondent represented to the applicant that the Wahroonga home was one of his "assets" or was his "property". Particulars 1. Statutory declaration dated 13 April 2015, Q A3 (located at PAS-1 p 373) 2. Statutory declaration dated 30 April 2015, Q A2 (located at PAS-1 p 407) 112. During the applicant's investigation of the Complaint, the Respondent represented to the applicant that he had sufficient equity in the Wahroonga home to support an application for finance, which finance would allow him to clear his tax liability. Particulars 1. Letter from the Respondent dated 4 September 2014 (located at PAS-1 p 106) 2. Statutory declaration dated 13 April 2015, Q A6 (located at PAS-1 p 373) 3. Statutory declaration dated 30 April 2015, Q A6 (located at PAS-1 p 407) 113. During the applicant's investigation of the Complaint, the Respondent represented to the applicant that if he was unable to borrow money to clear his tax liability, then he would arrange to sell the Wahroonga home in order to pay his outstanding tax debts. Particulars 1. Letter from the Respondent dated 4 September 2014 (located at PAS-1 p 106-108). 114. During the applicant's investigation of the Complaint: a. the applicant communicated to the Respondent its understanding that the Respondent and his wife were the joint proprietors of the Wahroonga home, that the Respondent was in the process of arranging refinancing in order to pay his tax debts using the Wahroonga home as security and that the Respondent would sell the Wahroonga home if the loan was not granted; and b. the Respondent received those communications from the applicant and did not inform the applicant that its understanding was not correct. Particulars 1. Letter from the applicant to the Respondent dated 29 July 2014 (paragraphs [17(c)], [20]) (located at PAS-1 p 99]), receipt of which was acknowledged by the Respondent by letter dated 4 September 2014 (located at PAS-1 p 106). 2. Draft Report of Bar Council dated 4 May 2015 (located at PAS-1 p 453-469, 475), receipt of which was acknowledged by the Respondent by his letter dated 19 May 2015 (located at PAS-1 p 475). 3. Letter from the applicant to the Respondent dated 12 June 2015 enclosing a Statement of Reasons (located at PAS-1 p 498-499). Sale of the Wahroonga home 115. The settlement of the sale of the Wahroonga home took place on 19 December 2016 (with the transfer recording the sale being registered on 14 January 2017). 116. At all times between 1990 and the sale of the Wahroonga home, the LPI register recorded [the Respondent] and [the Respondent's wife] as owners of the Wahroonga home as joint tenants. 117. The Transfer by which the Wahroonga home was sold on 19 December 2016 listed [the Respondent] and [the Respondent's wife] as "Transferors" and was signed by each of [the Respondent] and [the Respondent's wife]. 118. The Respondent swore an affidavit on 6 June 2017 (the 6 June 2017 Affidavit), in which he stated at paragraph [18]: "My wife and I agreed to put the family home in Wahroonga up for sale to assist with our financial difficulties. By that time, the house was owned solely by my wife. I transferred my one half interest in the house to my wife in 1996. A copy of the Transfer is attached marked "B". 119. In the 6 June 2017 Affidavit, the Respondent referred at paragraph [19(g)] to his wife as "the proprietor of the [Wahroonga] property". 120. The 6 June 2017 Affidavit was: a. served upon solicitors for the applicant on 6 June 2017; and b. relied upon by counsel for the Respondent at a hearing before the Tribunal on 7 June 2017. 121. The Respondent swore the 6 June 2017 affidavit knowing that it was false in the following material particulars: a. paragraph [18] - second, third and fourth sentences; and b. paragraph [19(g)] - reference to "as proprietor of the property". 122. By his conduct pleaded in paragraph [121], the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Ground F 123. In the alternative to paragraphs [121]-[122] above, if the Respondent did transfer any equitable interest he had in the the Wahroonga home to his wife in 1996 then the applicant pleads paragraphs [124]-[129] below. 124. The Respondent made statements and representations to the applicant, knowing them to be false: a. during the investigation into the show cause event in 2012; Particulars The Applicant repeats paragraphs [105]-[106] above. b. during the investigation of the Complaint; Particulars The Applicant repeats paragraph [111]-[112] above. 125. By reason of the matters pleaded in paragraph [124], the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. 126. In the alternative to paragraphs [124]-[125], the Respondent, having received communications from the applicant setting out its understanding that the Respondent and his wife were the joint proprietors of the Wahroonga home, failed to inform the applicant that its understanding was not correct. Particulars The Applicant repeats the particulars to paragraph [114] above. 127. By reason of the matters pleaded in paragraph [126], the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. 128. In the alternative to paragraphs [124]-[125], the Respondent's conduct was misleading and lacked candour: a. during the investigation into the show cause event in 2012; and Particulars The Applicant repeats paragraphs [105], [106], [108] above. b. during the investigation of the Complaint; Particulars The Applicant repeats paragraph [111], [112], [113], [114] above. 129. By reason of the matters pleaded in paragraph [128], the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct. Ground G 130. In September 2016, the Respondent agreed with his wife to put the Wahroonga home up for sale. Particulars Affidavit of [the Respondent] sworn 6 June 2017 at paragraph [18]. 131. The applicant repeats paragraph [115] above. 132. The Respondent has not used proceeds from the sale of the Wahroonga home to clear his outstanding tax liability to the ATO. 133. The Respondent's indebtedness to the ATO is currently at least $400,000. Particulars Affidavit of [the Respondent] sworn 6 June 2017 at paragraph [22]. 134. The applicant repeats paragraphs [112] and [113] above. 135. After 10 September 2014, the Respondent did not: a. borrow money using the Wahroonga home as security and use that money to clear his outstanding tax liability; or b. arrange to sell the Wahroonga home and use proceeds from that sale to pay his outstanding tax liability. 136. In the premises of paragraphs [134]-[135] above, the Respondent has acted contrary to his representation to the applicant that, if he was unable to borrow money using the Wahroonga home to clear his outstanding tax liability, then he would arrange to sell the Wahroonga home in order to pay his outstanding tax debts. 137. By the matters pleaded in paragraph [136] above, the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct.

The Reply

The Respondent in his Reply to the FAADF filed on 9 August 2017 (the Reply) says: 1. with respect to Grounds A, B, C and D, and A to D considered as a whole, admits the allegations, says that he has been diagnosed as suffering from a psychiatric condition, the symptoms of his psychiatric condition caused or materially contributed to him committing the conduct, and this conduct is capable of sustaining a finding that he engaged in unsatisfactory professional conduct, and denies that he engaged in professional misconduct; 2. with respect to Ground E, apart from accepting that his affidavit sworn on 6 June 2017 could have been more clearly set out his reason for referring to his wife as "sole proprietor", denies the allegations; 3. with respect to Ground F, denies making false statements and representations to the Applicant, and does not admit that he failed to inform the Applicant that its understanding that he and his wife were the joint proprietors of the Wahroonga Property was incorrect; 4. with respect to Ground G, while admitting that he did not call on the proceeds of the sale of the Wahroonga Property to pay his outstanding tax debts, and saying he did not consider himself entitled to do, denies the allegations.

The evidence

The parties filed a Statement of Agreed Facts (the SAF) which became evidence. The allegations contained in the FAADF have been agreed other than the matters in dispute as set out in the Reply.
The Applicant relied on 4 bundles of documents which included the following evidence: 1. the Affidavit of Phillip Selth made on 8 December 2015 (the Selth Affidavit); 2. the Affidavit of Gregory Tolhurst made on 21 July 2017 (the Tolhurst Affidavit); 3. the report dated 11 July 2017 of Dr Lisa Brown, Consultant Psychiatrist (the Brown Report).
The Respondent relied on 4 bundles of documents which included the following evidence: 1. the Affidavits of the Respondent sworn on 25 May 2016 (the 25 May 2016 DEJ Affidavit), 6 June 2017 (the 6 June 2017 DEJ Affidavit) and 9 August 2017 (the 9 August 2017 DEJ Affidavit); 2. the Affidavit of the Respondent's wife sworn on 9 August 2017 (the DEK Affidavit); 3. the reports of Dr Jonathan Phillips, Consultant Psychiatrist, dated 30 March 2016 (the 30 March 2016 Phillips Report) and 22 April 2016 (the 22 April 2016 Phillips Report); 4. the report dated 14 October 2016 of Dr Nicole Melidonis, Staff Specialist Psychiatrist (the Melidonis Report); 5. the reports of Dr Michael Williamson, Consultant Psychiatrist, dated 23 November 2016 (the 23 November 2016 Williamson Report), 27 November 2016 (the 27 November 2016 Williamson Report) and 23 May 2017 (the 23 May 2017 Williamson Report).
The Respondent and his wife gave oral evidence. Oral evidence was also given by Drs Phillips, Williamson and Brown.

The submissions

The Applicant relied on the following submissions: 1. Outline of Opening Submissions dated 11 August 2017; 2. Submissions on penalty dated 21 August 2017.
The Respondent relied on the Outline of Submissions dated 15 August 2017.
The Applicant and the Respondent made oral submissions.

The issues for determination

The following issues arise for determination: 1. whether the Respondent's admitted conduct in Grounds A to D constitutes unsatisfactory professional conduct or professional misconduct (issue 1); 2. whether the Applicant's allegations in Grounds E, F and G are proved (issue 2); 3. what protective orders should be made (issue 3); 4. what costs order should be made (issue 4).

Issue 1: whether the Respondent's admitted conduct in Grounds A to D constitutes unsatisfactory professional conduct or professional misconduct

The applicable provisions of the 2004 LP Act

Section 58 of the 2004 LP Act relevantly provides: 58 Compliance with conditions (1) The holder of a current local practising certificate must not contravene (in this jurisdiction or elsewhere) a condition to which the certificate is subject. Maximum penalty: 100 penalty units.
Section 73 of the 2004 LP Act provides: 73 Failure to comply with conditions imposed under this Division (1) If the holder of a local practising certificate contravenes without reasonable excuse a condition of the practising certificate imposed under this Division: (a) the contravention is professional misconduct, and (b) the appropriate Council may, by written notice given to the holder, cancel or suspend the local practising certificate. (2) The notice under this section must: (a) include an information notice about the cancellation or suspension, and (b) state that the holder may apply for a review of the decision of the Council under section 75. (3) The Council may revoke a suspension under this section at any time.

The contentions of the Applicant

The contentions of the Applicant are that the Respondent contravened s 58(1) of the 2004 LP Act and that s 73(1) of the 2004 LP Act was engaged in relation to the Respondent's contraventions of the 11 conditions that were attached to his practising certificates from 16 October 2012 to 30 June 2015. The Applicant accepts that it bears the onus of proof of establishing that the Respondent was without reasonable excuse for these contraventions, and that if the Respondent was suffering from a psychiatric condition and the symptoms of his psychiatric condition caused or materially contributed to his conduct, then he would have a reasonable excuse for his contraventions of these conditions. The Applicant relies on the Brown Report.

The contentions of the Respondent

The contentions of the Respondent are that s 73(1) of the 2004 LP Act was not engaged in relation to his contravention of the 11 conditions that were attached to his practising certificates from 16 October 2012 to 30 June 2015. The Respondent relies on the following evidence: 1. his lay evidence; 2. the expert evidence of Drs Jonathan Phillips, Michael Williamson, Nicole Melidonis, Nicole Morrison, Irwin Light, Mary Jurek, and Keith Roberts, each of whom other than Drs Nicole Morrison and Irwin Light provided a report.

The approach of the Tribunal

In the context of s 674 of the 2004 LP Act, which deals with the obstruction of investigations and has the purpose of the protection of the public and the reputation of the profession, the Tribunal has held the expression "reasonable excuse" ought be given its dictionary definition, which is essentially "a sound reason put forth to justify the offence" and that the respondent solicitor had the onus of establishing a reasonable excuse: Legal Services Commissioner v Thurairajah [2011] NSWADT 287 at [152], [153], [156], [167].
In the context of s 73(1) of the 2004 LP Act, the Tribunal has appeared to approach the application of the subsection on the basis that the respondent barrister had the onus of establishing a reasonable excuse: Council of the New South Wales Bar Association v Barnett [2016] NSWCATOD 153 at [61]-[63].
We have approached this issue on the basis that there will be a reasonable excuse within s 73(1) of the 2004 LP Act where the symptoms of a psychiatric condition causes or materially contributes to the contraventions of a condition of the practising certificate, and that the Applicant bears the onus of proof of establishing that the Respondent was without reasonable excuse for these contraventions.

The evidence of the Applicant

The Applicant relies on the contraventions of Conditions One to Eleven during the period from 16 October 2012 to 30 June 2015 in the SAF which we have set out in the following table: Condition Action Due date Action date One ITR FYE 30 June 2010 8 November 2012 4 December 2012 ITR FYE 30 June 2011 8 November 2012 4 December 2012 BAS FQE 31 December 2011 8 November 2012 30 November 2012 BAS FQE 31 March 2012 8 November 2012 30 November 2012 BAS FQE 30 June 2012 8 November 2012 30 November 2012 Two ITR FYE 30 June 2012 12 June 2013 23 October 2013 ITR FYE 30 June 2013 31 March 2014 4 February 2015 ITR FYE 30 June 2014 31 October 2014 14 April 2015 BAS FQE 30 September 2012 26 November 2012 25 March 2013 BAS FQE 30 June 2013 26 August 2013 15 October 2013 BAS FQE 30 September 2013 25 November 2013 20 March 2014 BAS FQE 31 December 2013 28 February 2014 20 March 2014 BAS FQE 31 March 2014 28 April 2014 10 March 2015 BAS FQE 30 June 2014 28 July 2014 10 March 2015 BAS FQE 30 September 2014 28 October 2014 28 April 2015 BAS FQE 31 December 2014 28 February 2015 14 April 2015 Amount due to ATO - $137,554.25 4 December 2012 None Amount due to ATO - $206,677.05 28 October 2013 None Amount due to ATO - $239,627.55 20 October 2014 None Amount due to ATO - $465,988 29 April 2015 None Three Dedicated account 30 October 2012 13 April 2015 Four Sufficient moneys in dedicated account From 16 October 2012 None Five Appointment of financial expert From 16 October 2012 From 16 October 2012 until 3 September 2014; from 3 November 2014 until 30 June 2015 Six Financial affairs under control of financial expert - ITR FYE 30 June 2012 2 April 2013 None Seven Confer with financial expert every three months From 16 October 2012 until 3 September 2014 None Eight and Nine Quarterly report by financial expert 16 February 2013 25 February 2013 and 25 March 2013 16 May 2013 24 June 2013 16 August 2013 15 October 2013 16 November 2013 2 December 2013 and 3 December 2013 16 February 2014 20 March 2014 and 25 March 2014 16 May 2014 None 16 August 2014 None 16 November 2014 None 16 February 2015 6 March 2015 16 May 2015 None Ten Inform financial expert in writing of the Conditions 23 October 2012 None Eleven Pay financial expert From 16 October 2012 until 3 September 2014 None from 1 January 2013

The communications to the Bar Association by or on behalf of the Respondent included: 1. advice on 25 March 2014 by the Respondent's accountant that the Respondent was consulting with a finance broker in relation to refinancing his home in order to meet his tax liabilities (the 25 March 2014 accountant advice); 2. the letter dated 19 June 2014 from Ms Lorna McFee of counsel, in which she stated that the Respondent has made arrangements to consult with his bank in regard to raising finance against his assets to resolve his financial issues (the 19 June 2014 McFee Letter); 3. the 4 September 2014 DEJ Letter, in which the Respondent stated: After consultation, and with the assistance of my new accountant, I anticipate seeking a further loan from Perpetual Trustee. I propose to take advice about precisely how much finance I need to raise to clear my tax liability. I estimate the facility I will require to be $200,000 and note that I have sufficient equity in the family residence located at Wahroonga to support the application.

The evidence of the Respondent

The 25 May 2016 DEJ Affidavit is directed to Grounds A to D. The Respondent also gave oral evidence in relation to Grounds A to D.

The 25 May 2016 DEJ Affidavit

In the 25 May 2016 DEJ Affidavit, the Respondent explained by way of background that he had ascertained in 2010 that he had been adopted as a child and had found this a highly emotional, upsetting experience. He also said that 20 years ago he had first experienced symptoms of what he now understood was a function of his "diagnosed depression". He described those symptoms as worsening about 10 years previously including a flat mood, pessimism and an inability to perform tasks that he used to handle with ease, including tasks associated with his practice as a barrister. He described himself as suffering from those symptoms "continuously since they first arose 20 years ago, albeit to a worsening degree as time has progressed" (25 May 2016 DEJ Affidavit at [5]-[6]).
The Respondent explained the downturn in his practice as a barrister and the steps he had taken to overcome his financial difficulties. He said that 6 to 7 years previously, which refers to a period in 2010 and 2011, he experienced "a sudden and severe downturn in my practice". He attributed this to a propensity for cases to settle in circumstances where he could not charge a fee and he was unable to fill the dates vacated in his diary. He said that this resulted in a substantial decrease in his earnings, he became "more and more despondent" about how to cope with his work, finances and life generally. This substantial downturn was said to be reflected in his taxation notices of assessment for the years ending 30 June 2009 to 30 June 2013. In an effort to juggle his finances the Respondent prioritised personal matters such as mortgage repayments over payment of his taxation liabilities. From 2009, the Respondent said that he was finding it harder to obtain new work and his financial situation deteriorated. He said; "My inability to deal with simple tasks and growing inertia worsened and I had difficulty overcoming it" (25 May 2016 DEJ Affidavit at [7]-[10]).
The Respondent gave the following explanation as to his failure to comply with the conditions attached to his practising certificates in 2012 and 2013 (25 May 2016 DEJ Affidavit at [11]): 11 In accordance with the conditions imposed on practising certificate in 2012, I appointed an accountant, Rena Ren, to manage my affairs in October 2012. Throughout 2012 and 2013, Ms Ren provided reports to the Bar Association on my behalf detailing my compliance with my tax obligations and the conditions imposed on my practising certificate. Despite the appointment of Ms Ren, I continued to have difficulty meeting my tax obligations. That was partly due to solicitors delaying payment of my invoices and partly due to the downturn in my practice. My inertia also meant I sometimes delayed in getting necessary documents to Ms Ren.
The Respondent said that his financial difficulties continued in 2014. He listed a number of matters that had settled or were adjourned in circumstances where he was unable to charge a fee, all of which occurred during the period February 2014 to July 2014. In the second quarter of 2014, his daughter was retrenched and became dependent on him. He then particularised a number of measures which he and his family undertook in 2014 with a view to minimising indebtedness. The Respondent said that he was increasingly distressed by his personal circumstances, that he felt completely ashamed and that his emotional well-being deteriorated significantly. He said he noticed his health was suffering, but did not seek help due to the shame he felt at his ongoing failings. He hoped that things would improve, but they did not (25 May 2016 DEJ Affidavit at [12]-[16]).
The Respondent gave the following explanation as to his failure to comply with the conditions attached to his practising certificates in 2014 and 2015 (25 May 2016 DEJ Affidavit at [17]-[19]): 17 During this time, my accountants stopped working for me due to unpaid fees. I sought a temporary overdraft facility to deal with the Issue, but was refused due to the reduction in my Income and outstanding ATO obligations. Not only did this cause me to fall behind in my compliance with the reporting conditions on my practising certificate, but it also caused me to lag in lodging my BAS and tax returns. 18 Throughout this period, I knew that I was required to obtain financial reports for the Bar Association and that I needed to lodge tax returns on time. Despite that, I found myself overwhelmed by an inability to get this done, which in tum caused more upset that I was not keeping up with what was expected of me. At times I became completely distraught and I had to ring crisis lines to talk about how I was feeling. I made those calls anonymously and did not seek any treatment from doctors. 19 In 2015 1 negotiated a payment plan with the ATO in respect of my outstanding tax obligations. I have not yet met those obligations. In an effort to repay the ATO, my wife and I have placed a property my wife purchased with her Inheritance at Hawks Nest on the market. …
The Respondent gave the following explanation for not paying his tax obligations (25 May 2016 DEJ Affidavit at [21]-[22]): 21 I have done everything I can think of to win back work, Including In February 2015 calling every solicitor who has briefed me to advise I would appear in any type of matter. … 22 I have faced criticism for continuing to meet my mortgage obligations while not repaying the ATO. By continuing to meet my mortgage repayments, I was seeking to avoid letting my family down, but also believed that I was salvaging a means of meeting my ATO obligations, for if I fell behind in my mortgage payments, the bank would not lend me more funds to repay outstanding debts. However misguided my belief, I thought meeting this obligations would assist me to find an eventual solution, rather than evidence wrongdoing on my part.
The Respondent described the medical treatment he had received. He said that he broke down in chambers in late 2014, and was hospitalised with a suspected heart attack which was diagnosed as a panic attack. He then sought treatment for the first time for what he described as his "depressive illness". He said he was diagnosed on 31 August 2014 by Dr Irwin Light, General Practitioner, with reactive depression and was then referred to a consultant psychiatrist, Dr Mary Jurek and another psychiatrist, Dr Keith Roberts in anticipation of the retirement of Dr Jurek. He also had another panic attack, was again hospitalised on 9 October 2014 and was discharged the following day (25 May 2016 DEJ Affidavit at [23]-[26]).
The Respondent said that he had complied with conditions that were placed on his practising certificate on 16 July 2015, but had not been able to meet all payment obligations to the ATO as they fell due because of the inability to sell his wife's property at Hawks Nest (25 May 2016 DEJ Affidavit at [27]-[28]).
The Respondent gave the following further explanation for not paying his tax obligations (25 May 2016 DEJ Affidavit at [29]-[30]): 29 I am completely and utterly ashamed that I have not met community expectations. I recognise my failure to do so fell below the standard expected of me as a member of the Bar. I did not mean for this to occur, but was not coping with my obligations due to the effects of the depression I am now confronting. I believe I am doing all that I can to ensure I meet my personal, professional and community responsibilities and overcome the depression. 30 At no stage have I deliberately avoided my tax obligations for personal gain or to otherwise fund an extravagant lifestyle. I have instead done all that I can to reduce my outgoings and merely maintain the status quo. My inability to meet my civic obligations resulted from a combination of a decrease in work, poor financial management on my part and an inability to deal with these problems in a timely manner, itself the result of the depressive condition with which I have been diagnosed. I have at all times been quite open about the difficulties that have confronted me and, since I have overcome the embarrassment associated with my plight and dealt with it openly, have at all times accepted full responsibility for my failings. I did not at any time intend to engage in any form of misconduct or conduct which fell below the high standards I accept are expected of members of the Bar. I was simply unable to appropriately deal with the circumstances with which I was faced. My conduct was also not a reflection of an ignorance of my responsibilities, much less a deliberate disregard for those responsibilities. It was simply a product of poor practice and financial management on my part and for that I am sorry. I simply could not find a solution to the difficulties facing me, which meant I was unable to avoid breaches occurring.

Oral evidence

In the course of giving oral evidence the Respondent described the background in which he came to be in arrears in the payment of his taxation obligations. He agreed that in 2008 he borrowed monies from a bank to pay outstanding taxation indebtedness. He explained that he was owed considerable monies for work which he had performed, and that he had difficulty in managing his financial affairs including payment of private school fees for his three children and mortgage instalments. This was despite gross earnings for the 2008 tax year of $462,462 (Transcript 64-66, 72).
The Respondent borrowed a further amount in 2012, again to pay outstanding taxation liabilities. Since 2012, he had paid $7,500 income tax by 3 instalments of $2,500 in May, July and August 2013 (Transcript 76-79).
The Respondent gave the following evidence about his failure to comply with Conditions One to Eleven (Transcript 106-108): Q. In circumstances where your tax debt had been reduced to zero in August 2012, in effect, you'd cleared the decks, it should have been easy for you to comply with that condition, do you agree with that? A. It should have been but in the circumstances, it faced being - the income falling and the expenses constant, it wasn't. And I also made that mistake of I - the way the accountants prepared the reports, the BAS returns, I thought I was paying as I was going in the right amounts but it was an inadequate amount per quarter and I didn't realise that. Q .You agree that the first condition on your PC was that you had to in effect lodge the outstanding BAS statements and income tax returns that had been outstanding for a number of years it had to be done by 8 November 2012? A. Yeah. Q. You understood that? A. I think they were done. Q. [The Respondent], you've admitted that that condition was breached because they were not done within the timeframe you were required to do them in? A. Sobeit, I accept you - I agree with the agreed statement of facts. Q. You agree with me, in circumstances where you'd had an entire show cause process, where your tax affairs had been closely looked at and you'd effectively been given a reprieve by being allowed to practice with conditions and the first condition was to in effect get your outstanding tax and BAS returns in, you breached that within a couple of weeks of the conditions being imposed? A. I didn't get them in the time then, that is correct. Q. Do you agree with me that that is a practice condition that you could have complied with but you didn't because you were not paying sufficient attention to your tax obligations? A. No. I - there were two sets of accountants, Ms Ren and then later, Justin Pengilly. I had to go and meet with Ms Ren and explain how I rendered the accounts and she had questions from me - in other words, we had to set up a new relationship of client and accountant and so there was - she had certain questions of me and the other issue was that I was - I had this almost unresolvable inertia, I just found myself avoiding or unable to get things done in a timely fashion and I was trying to get on top of the inertia and it was my intention to do everything, to do it, but I was mentally having trouble getting things done.
The Respondent gave the following further evidence about his failure to comply with Conditions One to Eleven (Transcript 110): Q. [The Respondent], is your evidence to the Tribunal that for the entirety of the period 2012 to 2015, you were suffering from depression to the extent that you could not meet a single one of the conditions imposed on your practising certificate? A. I've been suffering depression for quite some time and, as you've read in the medical reports, late in life I found out that I was adopted and so on and unfortunately that hit me for a bit of a six and I started to fall behind and started to not respond as well as I could. It worsened when I was fined for not filing things when I full well knew I should have filed these things. I knew what I had to do and I just couldn't seem to bring myself to do it and it was not because I didn't want to do it and it's hard for me to articulate how it is that you sit down to do the thing that you say, look, I want to do it and you just can't get started on it and that condition has grown worse and worse and worse over at least the last five years. And in the last three years or so it was - five years, it was particularly bad and I - how - I can't explain it. I wanted to do a task, I'd go and say, right, I will do this now and then I couldn't do it and I was talking to Dr Jurek and Dr Roberts trying to get some help so that I could do it and nothing was working.
We would add for completeness that the Respondent was closely questioned concerning his asserted "modest lifestyle expenses" and he was asked about certain entries in Bendigo Bank statements with a view to demonstrating that his spending around the time of Christmas 2011 could not be characterised as modest.

The evidence of the Respondent's wife

The Respondent's wife in the DEK Affidavit said that the first occasion when she became aware of his financial and professional difficulties was in late June 2016 when he was hospitalised after a suicide attempt (DEK Affidavit at [2]).

Dr Mary Jurek

In her report dated 22 June 2015, Dr Mary Jurek, Consultant Psychiatrist, stated that the Respondent had consulted with her on a number of occasions commencing on 4 September 2014. In her opinion his "mood disorder has contributed to avoidance, procrastination and lack of motivation in managing his affairs."

Dr Keith Roberts

In a report dated 11 February 2016, Dr Roberts diagnosed the Respondent, whom he saw on 10 February 2016, as suffering from "a Major Depressive Disorder" and noted that his antidepressant medication had not been effective and was being changed. In a letter dated 20 April 2016 addressed to the ATO, Dr Roberts in referring to the Respondent's then current difficulties in discharging his indebtedness to the ATO said that the Respondent's depression "significantly affect his mood, his ability to concentrate, remember, and think. He finds it emotionally difficult to face up to his problems at present, but he is doing his utmost to do so."

Dr Jonathan Phillips

In the 30 March 2016 Phillips Report, Dr Phillips stated that he assessed the Respondent on 17 February 2016. In preparing this report he relevantly stated: 3. Additionally, this report is based on the following assumptions: • The history provided by [the Respondent] was true and correct. • My mental state examination of the plaintiff is a true and correct reflection of his mental status at the time of interview.
In recording the history provided by the Respondent, Dr Phillips relevantly stated: History provided by [the Respondent]. 5. [The Respondent] said he considered his problems to have begun in approximately 2013. The issue involved the Australian Tax Office (ATO). Specifically: • He noted that over a period of years he found difficulties in submitting his BAS on time. … The issue of non-compliance with ATO. 13. [The Respondent] said that he reported his non-compliance/late lodgement of tax returns to the Chief Executive of the Bar Association (Selth). 14. The respondent said that he was placed on conditions by the Bar Association. He was ordered to be compliant with BAS regulations, and to meet obligations. The conditions were applied, despite that he informed the Bar Association that he was failing to cope. 15. In 2014, [the Respondent] said that he lost a great deal of work (cases settled or adjourned). He was effectively unemployed over a period of months, and was not able to save during that time. He failed to meet ATO obligations, but attempted to schedule part payment as a way of proceeding. 16. Additionally, at/about that time, [the Respondent] failed to submit a routine report to the Bar Association, this being at a time when he had failed also to submit his BAS. 17. In response to the above, the Bar Association laid a complaint against him. He appreciates that there will be a hearing before NCAT. He noted that no date has so far been set for the hearing.
In the section entitled "History provided by [the Respondent]", Dr Phillips recorded that the Respondent had had difficulties in coping generally both at home and in the workplace, in feeling depressed, in feeling anxious, in having negative thoughts including "recurrent nihilistic and occasional suicidal thoughts", experiencing feelings of helplessness, hopelessness, uselessness, guilt and shame, sleep disturbance and a much reduced libido. There was also a history of episode of palpitations. The Respondent thought that his "various psychological symptoms" had first occurred 10 to 12 years previously, he had not returned to normal mental health in the intervening period and pushed himself to work hard. The Respondent had tended to fall behind with his professional tasks. The Respondent had suffered from recurrent central severe chest pain in December 2010 and in 2014.
In recording his opinion, Dr Phillips relevantly stated: Opinion. … 48. I believe it can be accepted that [the Respondent] had suffered advancing mental problems beginning approximately eight-ten years ago but worsening steadily from approximately 2013. The symptom pattern and evolution is typical of an emerging persistent depressive disorder, with verification of that diagnosis from approximately 2013.. … Typically the onset of the disorder is slow, but symptoms become chronic and pervasive over a period of time. This appears to have been the case with the respondent. … 51. The central question is, given the diagnosis of persistent depressive disorder, is when did the disorder begin began to interfere with the smooth conduct of [the Respondent's] everyday life? Unfortunately, I do not have sufficient information to answer the question with precision. However, it is likely that the respondent had "prodromal but chronic symptoms well before 2013, and he was struggling in various domains of his life notwithstanding the nature of the symptoms. I hold, with a high degree of certainty, the persistent depressive disorder could be diagnosed with precision beginning approximately 2013. I believe it can be accepted, at least by that time, that all aspects of the respondent's life were changing adversely. I accept that he was failing to cope adequately within his professional workplace, that he was falling behind in various ways, and that he was failing to meet ATO obligations. … 53. Absent the persistent depressive disorder, it is highly probable that the respondent would have continued to meet ATO obligations.
In answering the questions he had been asked, Dr Phillips relevantly stated: 58. Your questions. … e) Whether any diagnosed condition(s) and its associated symptoms caused or contributed to the behaviour of [the Respondent] the subject of the complaint against him and, if so, to what extent; I have provided an opinion with regard to the matter above. Simply, the most likely cause for [the Respondent's] failure to meet ATO obligations resulted from clinically debilitating symptoms of persistent depressive disorder. f) Whether any diagnosed condition(s) and its associated symptoms caused or contributed to [the Respondent's] alleged breaches of the conditions placed on his practising certificate; In keeping with my response to (e), it is my strong opinion that [the Respondent's] problem of persistent depressive disorder, and the symptoms of that disorder, have made a major contribution to the alleged breaches of conditions which had been placed on his practising certificate. g) Whether any diagnosed condition(s) and its associated symptoms impacted on [the Respondent's] ability!)I to appreciate wrongdoing and/or that the conduct alleged against him represented a departure from the standard to be expected of a reasonably, competent barrister; This is a more difficult question to answer. I believe it is more likely than not that [the Respondent] had at all times an appreciation of his ATO obligations, and had knowledge that not to meet these obligations would represent a wrongdoing. However, as stated, the respondent's persistent depressive disorder, and the symptoms of that disorder, caused him to become immobilised with regard to his ATO obligations. Absent the psychiatric disorder, the respondent would have met his ATO obligations.
In the 22 April 2016 Phillips Report, Dr Phillips stated that his opinion, as expressed in the 30 March 2016 Phillips Report, remained unchanged.

Dr Nicole Melidonis

In the Melidonis Report, Dr Melidonis referred to the Respondent's inpatient hospital admission on 28 June 2016 with suicidal ideation. She noted a history of depression "for 10 - 15 years, especially bad over the 18 months prior to admission." She referred to prior psychiatric treatment over a prior period of 10 months with limited improvement from medication. The one stressor noted was the Respondent's large tax debt.
Dr Melidonis obtained the following history from the Respondent: While able to perform in a professional capacity as a banister the depression affected his ability to perform day to day tasks for many years. Due to this depression [the Respondent] had difficulty chasing money owed to him for work he did in his profession as a barrister. Also work scheduled for him did not eventuate due to cases being settled prior to the court date. He had not been able to face the task of completing his tax returns.
Dr Melidonis also noted that the Respondent had been able to hide his illness from his family, and that he felt a significant degree of shame and failure.
Dr Melidonis recorded that the Respondent did not improve when administered antidepressant medication, but did respond well to a course of ECT. The Respondent was to be discharged from hospital on 14 October 2016 to receive follow-up care from Clinical Psychologist John Franklin and a Psychiatrist.

Dr Michael Williamson

In the 23 November 2016 Williamson Report, Dr Williamson, which he acknowledged was a brief response to the request for information, relevantly stated: (c) The likely date of the onset of any conditions diagnosed. It appears that his condition worsened 18 months ago and became intolerable about 6 months ago. This is in the context of a life long history of hidden depression which had greatly worsened four years ago. … (e) Whether any diagnosed conditions and its symptoms likely caused or contributed to [DEJ] committing the conduct the subject of the tribunal proceedings. I believe that it is very likely that his melancholic depression has entirely contributed to the alleged misconduct.
In the 27 November 2016 Williamson Report, Dr Williamson stated that he first saw the Respondent on 24 October 2016. Dr Williamson noted the Respondent's report of a 15 year history of depression which had worsened in the last 18 months in particular in the context of financial stressors and the loss of his practising certificate. In particular, Dr Williamson obtained a psychiatric history of the Respondent's depression worsening from about 5 years previously with a further impairment from severe depression from about 2 years ago associated with his failure to comply with conditions placed on his practising certificate.
Dr Williamson diagnosed the Respondent as suffering from a severe major depressive disorder. Prior to his persistent major depressive disorder of the last few years, Dr Williamson diagnosed the Respondent as suffering from persistent major depressive episode (dysthymia) being "a history of chronic anxious distress with melancholic features varying according to current stressors" the onset of which he dated to about the age of 15 years on the basis of the Respondent's history given to him. Dr Williamson assessed the likely onset of the most current condition to be about 4 years previously with an increase of severity about 18 months previously.
Dr Williamson expressed the following opinion: e) Whether any diagnosed condition and its symptoms likely caused or contributed to [DEJ] committing the conduct subject of the Tribunal proceeding (as to which we enclose a copy of the Application for Disciplinary Findings) and, if so, the basis for that opinion. As stated in the previous letter, it is extremely probable that his chronic depressive condition contributed largely to his conduct which he has not been able to modify even under the pressure of the conditions applied by the NCAT. The basis of this opinion is provided above in the detail of his developmental history, his psychiatric history, and the detail of his diagnosis. These outline [DEJ's] chronic condition of mood disorder associated with poor motivation, reduced energy, poor concentration and inability to actually behave in a way which he cognitively believes to be correct.
Dr Williamson also expressed the opinion that the Respondent had suffered cerebral damage.
In the 23 May 2017 Williamson Report, Dr Williamson repeated the history given by the Respondent that progressive loss of income had caused him significant "financial disturbance and increased the level of his stress." Dr Williamson described the conduct of the Respondent as "more a failure to meet impeccable standards that is if of any active dismissal of professional financial obligations. With severe depression, the loss of energy, motivation and capacity to concentrate in themselves greatly reduces a person's ability to perform to stringent requirements."

Dr Lisa Brown

The Applicant qualified Dr Brown to provide an expert opinion on its behalf concerning the Respondent whom she assessed on 21 June 2017. In the Brown Report, Dr Brown records a history of a significant reduction in workload and income around 10 years previously. The Respondent said he fell behind in taxation payments in around 2012 whilst trying to balance the needs to pay for his children's schooling, mortgage and chambers expenses. His circumstances were exacerbated in 2016 when his practising certificate was not renewed. The Respondent also attributed his problems in part to family circumstances when he found out that he had been adopted. The Respondent told Dr Brown that he had never informed anyone about his depression, including his wife, because he wanted to maintain a façade that he was coping and because he felt shame and embarrassment about his circumstances. Nevertheless, he was able to maintain his practice.
For the purpose of providing a report Dr Brown had access to the records of the Respondent's treating medical practitioners and the reports of Dr Phillips. Dr Brown diagnosed the Respondent as suffering at that stage from a chronic, of moderate severity condition of Major Depression. She thought that his symptoms at that stage were consistent with a persistence of moderate mood complaints and he was not at that stage suffering any significant impairment of memory function. Dr Brown also rejected any suggestion as made by Dr Williamson that the Respondent exhibited any signs of organic brain damage.
Dr Brown was asked to provide an opinion concerning the Respondent's mental illness during the period 4 December 2012 to 30 June 2015. She noted the history given by the Respondent of having suffered from significant depression over many years which he attributed to matters arising in the course of his upbringing by his adoptive parents. This history was inconsistent with the preponderance of information obtained by the treating medical practitioners which noted problems over a number of years but seemingly exacerbated during a period dating back to around 2012. Based on all of the information made available to her, Dr Brown said that it was not possible to confirm that the Respondent suffered from more than mild depressive symptoms in the period 2012 to 2015. She rejected his explanation that he was able to perform his work adequately and meet the demands of work as a barrister and yet was unable to meet financial and tax obligations to the extent of being unable to sign his name to a BAS form. Dr Brown expressed the following opinion: Similar to individuals who do not suffer from depression, those afflicted by mood problems find it easier to undertake pleasurable activities and those of the type often procrastinated, including paying bills and completing tax returns. However, had [the Respondent] been suffering from more than a mild form of depression between December 2012 to June 2015 it is, in my opinion, unlikely that he would have been able to earn amounts ranging between $318,056 to $381,021 between 2013 to 2015 inclusive….. Individuals with mild depression can and do work full-time and are often able to do so quite effectively. Assuming this had been the case for (the respondent) he would have been expected to still be able to meet his financial and tax obligations, or to have requested assistance with tasks of this type if he was finding it difficult to do so.
In addition, Dr Brown noted that the Respondent was first recognised to be clinically depressed in August 2014 and he had not formally received any similar diagnosis over the preceding years. Even though it was possible that the Respondent had been able to maintain a professional and personal façade that defied detection by those around him, she nevertheless felt that his depressive symptoms were mild.
Dr Brown thought that the Respondent became progressively more distressed because of his failure to meet financial commitments and that his mood disorder had worsened in severity between 2015 and 2016 partly on the basis of the financial and professional implications of having failed to meet his practising conditions. Dr Brown dated a significant worsening in the Respondent's depression in mid-2016, around the time of his admission to hospital. Furthermore, Dr Brown thought that it was possible that the Respondent's "temperament and long established behavioural patterns" contributed to both his non-compliance with medical treatment and meeting the conditions attaching to his practising certificate and tax obligations.

The concurrent oral evidence of Drs Phillips, Williamson and Brown

Drs Phillips, Williamson and Brown gave concurrent oral evidence. The following matters emerged from their evidence: 1. Dr Phillips noted a deterioration of the Respondent's depression and "spectrum symptoms" which began somewhere around 2012/2013 with worsening thereafter which was probably "on top of a long prodromal phase where he was depressed but at a less intensity." (Transcript 148); 2. Dr Williamson noted a history of the Respondent telephoning Lifeline two years prior to seeing Dr Jurek in 2014 (Transcript 149); 3. given that the Respondent received medical treatment following chest pain in the context of recent stress, Dr Brown said that this was indicative of a cluster of presentations in mid to late 2014 consistent with the onset of more significant anxiety and depressive symptoms at that time rather than earlier on. In giving this evidence Dr Brown conceded that she did not have a history of the Respondent making telephone calls to a crisis service in 2012 (Transcript 150, 153-154); 4. Dr Williamson dated the onset of the Respondent's severe major depressive disorder as occurring in late 2014 (Transcript 156); 5. Dr Williamson accepted the importance of history obtained from a patient (Transcript 158): [Q] Would you agree that where a patient such as [the Respondent] has obviously become significantly unwell, at the very least, from May 2016 onwards, has had a significant admission to hospital for psychiatric treatment; that it's a retrospective history, his experience of depression overtime is given in retrospect rather than being corroborated on the documents, is that something you would take into account? [A] Well, certainly. One of the important things about the history that people give, particularly if they're severely ill, is that it can be quite inaccurate or vague and it can change from time to time so I think it's important not to, as a - report our own ordinary capacities to diarise or remember things more specifically, onto someone who's suffering from a chronic severe depression. A person with a significant psychiatric disorder does not function cognitively the way, say, the normal person does. That's why I have a degree of scepticism about specific dates with [the Respondent]. [Q] Does that suggest that documentary review, in terms of presentations to doctors and what was happening, becomes important in terms of corroborating history? [A] It is important. It's always important because hopefully that's the best we've got from a clinical, a well trained professional but at the same time, I'm sure each of my colleagues here have this experience of finding that real ill people give shifting versions of time and place and are symptoms but I think, for practical purposes, yes, I'd accept that 13/14 is a nodal time. 1. Drs Phillips and Williamson denied the significance of the Respondent being able to attend to the payment of private school fees and other administrative obligations rather than attend to his taxation obligations during the period 2012 to 2014. Dr Williamson agreed with Dr Phillips who said, "if a person moves a reasonable response to these matters and suddenly starts not to meet the responsibility, then I think a psychiatrist must ask the question what else might be happening at this point in time to change their response." However, that comment was made "in a theoretical level" (Transcript 161); 2. Dr Phillips thought that a history of taxation problems dating back to 2008 was corroborative of the Respondent suffering from at least a prodromal depression for 8 to 10 years which then became a diagnosable depressive illness. Dr Williamson agreed and then proceeded to consider the Respondent's developmental problems dating back to his adoption and his relationship with his adoptive parents, said by the Respondent to be associated with emotional deprivation (Transcript 162); 3. Dr Brown disagreed with these observations. She said that if the Respondent had been more than mildly depressed up until 2014, he would not have been able to perform his work as a barrister. Furthermore, his earning capacity could not have been maintained at that level if he had been severely depressed. The Respondent's memory function as observed by her was also incompatible with a significant depressive condition (Transcript 163-164); 4. Drs Phillips and Williams said that a history of the Respondent hiding mail from his wife and failing to disclose his depressive conditions to her was indicative of a person who was significantly depressed. Dr Brown said that it was possible that a level of secrecy was a reflection of underlying depression, but alternatively it also represented an aspect of his personality style either by way of procrastination or avoiding being found out and embarrassed about his difficulties (Transcript 169-170); 5. Dr Phillips was informed that the Respondent had taken out a loan in 2008 and another loan in 2012 to raise money to pay his outstanding taxation liabilities. He was asked whether that suggested to him that in 2012 the Respondent had sufficient functional capacity to undertake those tasks in relation to his taxation. Dr Phillips responded that this demonstrated that the Respondent knew "at a cognitive level" that he was in money trouble. Dr Phillips added that "people can have patchy performances when they are depressed that they may continue with their professional activities to a seemingly - in a seemingly coping way. They may be able to sort out immediate severe problems but it does not - that's not to say that the rest of their lifestyle gets into a mess with a lot of procrastination and a lot of failure to disclose." Dr Phillips agreed that in view of the fact that he had not examined the Respondent in the period 2012 to 2015 he was limited in his ability to assess the level of depression that the Respondent may have had in that period. (Transcript 172, 174); 6. Dr Phillips was referred to the continuing ability of the Respondent to pay private school fees, make mortgage payments and deal with other financial obligations, and yet he was unable to attend to tasks associated with his taxation obligations. He explained this by saying that the Respondent was "functional over a broad spectrum of activities" and that paying school fees and mortgage payments was a matter of immense importance to all members of the family and was particularly important to him notwithstanding his depressive experience at the time. He referred to a process of prioritisation in terms of a failure to pay taxation obligations, which he doubted was at a conscious level. Dr Phillips was unable to exclude the possibility that the failure to attend to payment of the Respondent's taxation obligations was merely a matter of prioritisation, although he felt that on the balance of probabilities the "central hypothesis lies with this man's depth of depression which…..was severe at least at that latter time." (Transcript 183-184); 7. Dr Williamson was extensively cross-examined concerning the Respondent's circumstances in continuing to meet household expenses including private school fees and mortgage payments and yet not attending to compliance with the practice conditions imposed on his registration. He thought it was possible for the Respondent to undertake the former, and yet not the latter because of his depressive condition. Dr Brown interpolated that at the time the Respondent was on notice that he was required to respond to the practice conditions and that he was required in turn to talk to accountants and financial advisers. If he had the capacity to work as a barrister he would "definitely have had the capacity to hand over the relevant documents to someone else if he didn't feel like facing them for whatever reason…… he….would not have been sufficiently depressed to make that untenable for him." Dr Williamson responded by referring to the Respondent's shame and not wanting to expose himself to professionals. When informed that the Respondent had in fact engaged external accountants and that they were aware of his financial and taxation situations, Dr Williamson said that this would modify his view but then added that "we simply lacked the history of his attitudes and feelings, in detail, at that time and I think that the clinical situation is more complex than we know; it's very much about behaviour and motivation and feeling rather than just thinking." When asked to elaborate further concerning these matters and the extent of the Respondent's depression in terms of whether it was severe, moderate or mild, Dr Williamson said that he did not really know to what extent the depression could be described in those terms. The only available evidence was that the Respondent's depression varied between mild to moderate at the end of his hospitalisation. Dr Phillips then volunteered that when he saw the Respondent on 17 February 2016 "he actually had higher-level symptoms of depression, and for that matter, anxiety." (Transcript 185-188).

The submissions of the Applicant

The Applicant submitted that the Respondent's psychiatric evidence does not explain why on the one hand he was able to practise as a barrister but on the other could not meet his tax liabilities and was prevented from complying with the conditions attached to his practising certificate. Accordingly, this psychiatric evidence does not provide a reasonable excuse for his failure to comply with the conditions.

The submissions of the Respondent

The Respondent submitted that Dr Brown's contention that the Respondent's apparent ability to work between 2013 and 2015 was inconsistent with his claimed inability to meet his financial obligations fails to recognise: 1. his prior difficulties with financial paperwork which had typically been delegated to his accountants; 2. his preference for work as a barrister, which he considered a form of escape; 3. her own concession that people who suffer from mood problems (such as the Respondent's depression) often find it easier to undertake pleasurable activities (as the Respondent characterised his work) than paying bills and completing tax returns.
The Respondent further submitted that the Tribunal should comfortably prefer the opinions of Drs Williamson and Phillips to the opinion of Dr Brown. Their evidence overwhelmingly supports a finding that the Respondent's failure to comply with the conditions was wholly or predominantly caused by his diagnosed medical condition. That means that there is a reasonable excuse and the presumption under s 73 of the 2004 LP Act is rebutted.

Whether the Respondent has suffered from a psychiatric condition

We accept the evidence of Drs Phillips, Williamson and Brown that the Respondent suffered from a psychiatric condition during the period from 16 October 2012 to 30 June 2015. Dr Phillips' diagnosis is the Respondent suffered from "a persistent depressive disorder (with co-existing anxiety symptoms)" from approximately 2013. Dr Williamson's diagnosis is the Respondent suffered from "severe major depressive disorder" in about the end of 2012 with an increase of severity in about early 2015. Dr Brown's diagnosis is the Respondent suffered from "mild depressive symptoms" during this period. The critical question is whether the symptoms of this psychiatric condition caused or materially contributed to him committing the conduct comprising Grounds A to D.

The contraventions of Conditions One to Eleven

The Respondent during the period from 16 October 2012 to 30 June 2015, while late in compliance, did regularly comply with Conditions One, Two, Eight and Nine from 11 October 2012 until 25 March 2014, and in March and April 2015. We regard this pattern of regular compliance with these Conditions as an important factor to be taken into account in considering whether Respondent's psychiatric condition caused or materially contributed to him contravening the other Conditions and particularly Condition Four.

The Respondent's history of timely payment of his income tax debts

While the Respondent referred to payment of private school fees for his children and mortgage payments, he failed to adduce any evidence of his personal expenditure during the period from 16 October 2012 to 30 June 2015. His taxable income during this period was substantial: $214,121 FYE 30 June 2012; $191,548 FYE 30 June 2013; $235,328 FYE 30 June 2014; $157,315 FYE 30 June 2015. We infer that the Respondent did not have sufficient disposable income both to meet his personal expenditure and his income tax debts throughout this period. As stated by the Respondent in the 25 May 2016 DEJ Affidavit at [22] he made a choice to meet his mortgage payments in priority to his income tax debts, and hoped that he would generate sufficient income from his practice to be able to meet his income tax debts.
The failure of the Respondent to pay his income tax debts during the period from 16 October 2012 to 30 June 2015 was consistent with his history of the failure to make timely payment of his income tax debts. He borrowed money in 2008 to pay income tax. He borrowed $330,000 in September 2012 to meet his income tax obligations following the Deputy Commissioner of Taxation obtaining a judgment, and commencing bankruptcy proceedings.

The medical evidence

The varying approaches of Drs Phillips, Williamson and Brown to the time when the Respondent's ability to function to the extent necessary to comply with the practice conditions was compromised by his undoubted psychiatric condition reflected their personal assessments of the history that they had obtained from him.
The history provided by the Respondent to Drs Phillips, Williamson and Brown was inaccurate in that he failed to inform them that, while late in compliance, he did regularly comply with Conditions One, Two, Eight and Nine from 16 October 2012 until 25 March 2014, and in March and April 2015. This inaccurate history gave a misleading picture of the extent to which he was affected by the psychiatric condition from which he was suffering. We consider that this misleading picture undermined the opinions of Drs Phillips and Williamson. As acknowledged by Dr Phillips, the 30 March 2016 Phillips Report was based on the assumption that the history provided by the Respondent was true and correct. Further, as acknowledged by Dr Williamson when giving oral evidence, "the history that people give, particularly if they're severely ill, is that it can be quite inaccurate or vague and it can change from time to time" and documentary review, in terms of presentations to doctors and what was happening, "is important" (Transcript 158).
The fact that the Respondent, while late, was able to comply with Conditions One, Two, Eight and Nine, but did not comply at all with the other Conditions during the period from 16 October 2012 to 30 June 2015 is a cogent indication that his psychiatric condition did not cause or materially contribute to his conduct. The Respondent's medical evidence did not explain why the Respondent, while late, complied with some Conditions, but did not comply at all with the other Conditions during this period.
We have considered whether the break in compliance with Conditions One, Two, Eight and Nine between March 2014 and March 2015 indicates that the Respondent's psychiatric condition caused or materially contributed to his non-compliance with Conditions One to Eleven from approximately March 2014. However, the fact that the Respondent, as indicated in the 25 March 2014 accountant advice, the 19 June 2014 McFee Letter and the 4 September 2014 DEJ Letter, took steps towards arranging a loan to discharge his tax liability, and resumed compliance with Conditions One, Two, Eight and Nine in March and April 2015 is a cogent indication that his psychiatric condition did not cause or materially contribute to his conduct between March 2014 and March 2015.
In these circumstances, we prefer the evidence of Dr Brown to that of Drs Phillips and Williamson.

Whether the Respondent's psychiatric condition caused or materially contributed to him committing the conduct comprising Grounds A to D

We do not accept the Respondent's explanation that it was inertia that prevented him from meeting his tax obligations during the period from 16 October 2012 to the end of 2013 (25 May 2016 DEJ Affidavit at [11]). As the Respondent explained, it was his failure to pay his accountants that led him to fall behind in 2014 in his compliance with the reporting conditions on his practising certificate and in lodging his BAS and tax returns (25 May 2016 DEJ Affidavit at [17]). As the Respondent accepted, his conduct was simply a product of his poor practice and financial management and inability to find a solution to the difficulties he faced, which meant he was unable to avoid the contraventions of the conditions occurring (25 May 2016 DEJ Affidavit at [30]). It was not the product of his depressive condition. Throughout the period from 16 October 2012 to 30 June 2015 the Respondent made a choice to meet his mortgage payments in priority to his tax debts (25 May 2016 DEJ Affidavit at [22]), and hoped that he would generate sufficient income from his practice to be able to meet his debts. If there had been inertia and depressive condition as he described, the Respondent would not have regularly complied with Conditions One, Two, Eight and Nine from 11 October 2012 until 25 March 2014, and in March and April 2015.
The Respondent's pattern of regular albeit late compliance with Conditions One, Two, Eight and Nine from 16 October 2012 until 25 March 2014, and in March and April 2015, is inconsistent with his psychiatric condition causing or materially contributing to the conduct comprising Grounds A to D.

Conclusion

We find that the Respondent's conduct comprising Grounds A to D, and Grounds A to D considered as a whole, was without reasonable excuse within s 73(1) of the 2004 LP Act, and accordingly that the Respondent's conduct in contravening the conditions attaching to his practising certificates during the period from 16 October 2012 to 30 June 2015 constitutes professional misconduct.

Issue 2: whether the Applicant's allegations in Grounds E, F and G are proved

The contentions of the Applicant

The contentions of the Applicant are that the Respondent engaged in professional misconduct or, in the alternative, unsatisfactory professional conduct by reason of his conduct in Ground E or in the alternative Ground F, and Ground G: 1. as to Ground E, the Respondent swore the 6 June 2017 DEJ Affidavit knowing that it was false in relation to the following statements: 1. he transferred his one half interest in the Wahroonga Property to his wife in 1996 (6 June 2017 DEJ Affidavit at [18]); 2. his wife as "the proprietor of the [Wahroonga] property" (6 June 2017 DEJ Affidavit at [19(g)]); and that this conduct, if found, would demonstrate that the Respondent lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner; 1. as to Ground F, if the Respondent did transfer any equitable interest he had in the Wahroonga Property to his wife in 1996, the Respondent made the following statements and representations to the Applicant, knowing them to be false: 1. during the investigation into the show cause event in 2012: 1. he was applying for a loan "against my home which is unencumbered and valued at $1.5m", in the 20 July 2012 DEJ Statutory Declaration at [B12]; 2. a loan had been approved and "my wife and I have executed the mortgage documents" and were awaiting notification of the settlement date; 3. he and his wife were the joint proprietors of their principal place of residence, being a property at Wahroonga and that he had arranged refinancing on the Wahroonga Property, to which his wife had consented, in order to pay his tax debts; 4. that he owned his own home and that, as at 5 August 2011, it was valued at $1,200,000 with a debt of $19,000 owing on it from the mortgage and was almost paid off; in the 11 July 2012 DEJ Letter and in the 10 September 2012 DEJ Letter; 1. during the investigation of the Complaint: 1. that the Wahroonga Property was one of his "assets" or was his "property", in the 13 April 2015 DEJ Statutory Declaration at [A3] and the 30 April 2015 DEJ Statutory Declaration at [A2]; 2. he had sufficient equity in the Wahroonga Property to support an application for finance, which finance would allow him to clear his tax liability, in the 4 September 2014 DEJ Letter, the 13 April 2015 DEJ Statutory Declaration at [A6] and the 30 April 2015 DEJ Statutory Declaration at [A6]; 1. as to Ground F in the alternative to paragraph 118(2) above, the Respondent, having received the following communications from the Bar Association setting out its understanding that the Respondent and his wife were the joint proprietors of the Wahroonga Property, failed to inform the Applicant that its understanding was not correct: 1. the 29 July 2014 Association Letter at [17(c)], [20]; 2. the draft Report dated 4 May 2015 of the Professional Conduct Committee to the Applicant (the 4 May 2015 PCC Draft Report); 3. the letter dated 12 June 2015 (the 12 June 2015 Association Letter) enclosing a Statement of Reasons; 1. as to Ground F in further alternative to paragraph 118(2) above, the Respondent's conduct was misleading and lacked candour: 1. during the investigation into the show cause event in 2012 by reason of the statements and representations in paragraph 118(2)(a) above and the 3 October 2012 DEJ Letter, 2. during the investigation of the Complaint by reason of: 1. the statements and representations in paragraph 118(2)(b) above; 2. the representation that if he was unable to borrow money to clear his tax liability, then he would arrange to sell the Wahroonga Property in order to pay his outstanding tax debts, in the 4 September 2014 DEJ Letter; 3. the conduct in paragraph 118(3) above; 1. as to Ground G, the Respondent has acted contrary to his representation to the Applicant that, if he was unable to borrow money using the Wahroonga Property to clear his outstanding tax liability, then he would arrange to sell the Wahroonga Property in order to pay his outstanding tax debts.

The contentions of the Respondent

The contentions of the Respondent are that: 1. none of the representations were misleading, false or otherwise lacking in candour at the time they were made; 2. by the time the Wahroonga Property was sold, the Respondent's situation had changed substantially from the time he represented he would use the proceeds of sale to satisfy any liability he had to the ATO, and there is considerable doubt as to whether he was entitled to call on those proceeds at all.

The approach of the Tribunal

It is an established principle that a legal practitioner who is the subject of a disciplinary inquiry has an obligation to inform and assist imposed upon him: Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6; Council of the Law Society of New South Wales v A Solicitor [2002] NSWCA 62 at [98].
We have approached Ground E, and if it is necessary to do so Ground F, on the basis that if the Respondent made representations that were misleading, false or otherwise lacking in candour at the time they were made, he would have breached his obligation to inform and assist the Applicant.

The evidence of the Applicant

The various documents relied upon by the Applicant as constituting Grounds E, F and G are contained in the exhibit to the Selth Affidavit or the exhibit to the Tolhurst Affidavit. The words in documents of the Respondent which are alleged to be false or misleading and lacking in candour, and the words in documents of the Applicant in which it communicated its understanding of the Respondent's position, are underlined.

The 11 July 2012 DEJ Letter

The Respondent in the 11 July 2012 DEJ Letter enclosed his letter dated 5 August 2011 to the Deputy Commissioner of Taxation (the 5 August 2011 DEJ Letter) which relevantly states: I own my own home and it is valued at $1,200,000 with a debt of $19,000 owing on it from the mortgage, it is almost paid off. I have been seeking advice on the best way to refinance and whilst I want to act as fast as possible, I have to get all my books up to date so the lender can prepare the paperwork.

The 20 July 2012 DEJ Statutory Declaration

The 3 July 2012 s 660(1) notice included the following questions: B 11. Did the ATO give any notice to you before it: (a) sued you for unpaid taxes; and/or (b) served you with a bankruptcy notice. B12. If yes to B11, what if any action did you take after receiving notice from the ATO and if no action was taken, why not?"
The Respondent in the 20 July 2012 DEJ Statutory Declaration in response to the 3 July 2012 s 660(1) notice said (in answer to question B12): I applied for a loan the (sic) payout the debt shortly after receiving the advice referred to above. ... I am now in the process of finalising the loan as the final amount to arrange is now known. The payout figure is just over $400,000. The loan is for $330,000 against my home which is unencumbered and valued at $1.5m. The balance will be paid from monies that are outstanding from my practice.

The 10 September 2012 DEJ Letter

The Respondent in the 10 September 2012 DEJ Letter said: The loan has been approved and my wife and I have executed the mortgage documents and we are awaiting notification of the settlement date, I have been told verbally it is in the next 7 to 10 days.
The Respondent, in the 10 September 2012 DEJ Letter, relevantly enclosed the following documents: 1. a Notice Stating Grounds of Opposition to the Petition in which he stated: the Respondent is able to pay his debts from refinancing of his real property which is being undertaken. 1. an Affidavit he swore on 17 July 2012 in the Federal Magistrates Court in response to the Creditor's Petition (the 17 July 2012 DEJ Affidavit) in which he said: 5 My wife, [DEK] and myself are the joint proprietors of a property at XXXX, Wahroonga. … 11 ... my wife and I have arranged to refinance the mortgages on our jointly owned property. 1. annexure A to the 17 July 2012 DEJ Affidavit, which was a LPI Property search dated 9 February 2012 showing the Respondent and his wife as joint tenants with mortgages to Westpac Banking Corporation (the 9 February 2012 LPI Property Search); 2. an unsworn affidavit, in which he is named as the deponent (the unsworn DEJ Affidavit), and said in paragraphs 6 and 7: [6] Annexed hereto and marked "B" (page 10) is a true copy of an updated real property search. It remains registered to myself and my wife who has provided consent to the refinance. There is sufficient equity in the property to pay the petitioning creditor's debt. [7] In the circumstances I ask the Court to exercise its discretion to further adjourn the Creditors Petition to enable the finance to be advanced. 1. an annexure to the unsworn DEJ Affidavit, which was a letter dated 9 July 2012 from the ATO to his then solicitors, and in which he relevantly stated: We note that your client's total liability as at the 6 February 2012 is $443,130.36. We also note that at the first hearing of this matter on 18 July 2012, you advised that you will be seeking an adjournment to allow your client to obtain refinancing on his principal place of residence. 1. annexure B to the unsworn DEJ Affidavit, which was LPI Property search dated 7 August 2012 showing the Respondent and his wife as joint tenants with mortgages to Westpac Banking Corporation (the 7 August 2012 LPI Property Search); 2. an unsworn affidavit dated 15 August 2012, in which he is named as the deponent (the 15 August 2012 DEJ Affidavit), and said in paragraphs 7 and 9: 7. At settlement mortgage (sic) to the incoming mortgagee will be given and the borrowings will be used to pay the petition creditor's debt in full, the Westpac mortgage and consolidate my credit card. Otherwise my liability as a barrister are being paid as in when that fall due (sic) and the debt consolidation on the borrowings will easily be met from my income as a practising as a barrister. 9. If I am declared bankrupt it will impact ability to practice as a barrister and will also affect my wife and children. A trust in bankruptcy (sic) will not be able to finance the borrowing and in all probability will apply to sell the property. The appointment of a true (sic) will incur unnecessary costs and expenses to be paid out of my share of the real property." 1. an attachment to the 15 August 2012 DEJ Affidavit, which was an email from Loan Saver Consultancy to him with the subject line "Valuation Response" and stated: Hi [DEJ], Your property valuation has come in at $1 .2 million.

The 29 July 2014 Association Letter

the Bar Association in the 29 July 2014 Association Letter relevantly stated the following matters in paragraphs 17(c) and 20 as being "the facts and circumstances on which the Bar Council relies" in relation to the Complaint: [17(c)] On 25 March 2014 your accountant advised me that: ... you were consulting with a finance broker in relation to refinancing your home in order to meet your tax liabilities [20] By a dated 19 June 2014 addressed to the Executive Director, Ms Lorna McFee of counsel stated you were unable to pay your accountants outstanding fees of $9000 for preparation of a financial report 'and reassessment of his tax liability' due to outstanding invoiced fees estimated at $50,000. Ms McFee stated you and your wife have considerable equity in the family home and an investment property owned by your wife and that you had made arrangements to consult with your bank in regard to raising finance against your assets to resolve your financial issues.

The 4 September 2014 DEJ Letter

The Respondent in the 4 September 2014 DEJ Letter relevantly stated: As previously advised I wish to comply with my financial reporting conditions and ATO payment obligations. However to do so I need to put in place certain financial arrangements to remedy the reduction in fee income I have experienced and consequential diminished cash flow. … After consultation, and with the assistance of my new accountant, I anticipate seeking a further loan from Perpetual Trustee. I propose to take advice about precisely how much finance I need to raise to clear my tax liability. I estimate the facility I will require to be $200,000 and note that I have sufficient equity in the family residence located at Wahroonga to support the application. … In the unlikely event that the loan facility is not granted, I will arrange for the sale of the family residence, which is conservatively valued at $1,500,000 … That timeframe [ie. an extension of 3 months to provide a detailed response to the proposed complaint] would also allow me to demonstrate to the Bar Council that the steps I am taking to address my financial reporting conditions and ATO payment obligations will have a positive outcome.

The 13 April 2015 DEJ Statutory Declaration

By letter dated 20 March 2015, the Bar Association served the Respondent with a notice under s 660(1) of the 2004 LP Act (the 20 March 2015 s 660(1) notice) which included the following requests: A3. Provide a statement of your assets and liabilities worth $10,000 or more, including assets in which you have an indirect and/or joint interest. A6. Explain how you expect to be able to borrow funds to pay the ATO "50% of the total income tax owing" (see page 3 of Mr Justin Pengilly's letter to the Bar Association dated 6 March 2015) having regard to the circumstances disclosed in your letter to the Bar Association dated 3 November 2014, especially the circumstances referred to in the second paragraph on page 2 of that letter.
The Respondent in the 13 April 2015 DEJ Statutory Declaration in response to the 20 March 2015 s 660(1) notice said (in answer to requests A3 and A6): A3. The assets I have over a $10,000 are the house my family live in and my car. A6. I believe there is sufficient equity in the family home to borrow against to pay the loan I seek if granted ....

The 30 April 2015 DEJ Statutory Declaration

By letter dated 27 April 2015, the Bar Association served the Respondent with a notice under s 660(1) of the 2004 LP Act (the 27 April 2015 s 660(1) notice) which included the following requests: A2. A current statement of any loan account secured by a mortgage over your property at XXXX Wahroonga. A6. An explanation of whether and to what extent you assert that the Wahroonga Property and the Hawks Property are unable to be realised by you in order to meet your tax liabilities.
The Respondent in the 30 April 2015 DEJ Statutory Declaration in response to the 27 April 2015 s 660(1) notice said (in answer to requests A2 and A6): A2. The loan account over Wahroonga is through RedZed and is approximately $500,000, statement up to December (sic) 14 is attached. A6. I believe I will be able to borrow against the Wahroonga property, there is sufficient equity to do so .... Depending on what is an acceptable arrangement to the ATO, I will make application to the lender to increase the loan .... I also believe the measures I am taking to change my practice will assist with greater income which will assist with the financial analysis the lender will make. I therefore believe I will be able to borrow to pay the outstanding liability .... This will take some time to organise and I humbly ask the Bar Council for time to complete the necessary applications and paperwork to obtain the facility needed.

The 4 May 2015 PCC Draft Report

On 5 May 2015, the Bar Association provided the Respondent with the 4 May 2015 PCC Draft Report which relevantly states in paragraphs 46 and 47: [The Respondent] and his wife jointly own their home at Wahroonga. In [the Respondent's] letter received on 4 September 2014, he stated that the home was conservatively valued at $1.5 million. As at 24 December 2014, the secured debt on that property was $526,726". In [the Respondent's] letter received on 4 September 2014, he said that he would borrow more money against the equity in his home and that he would sell it if the loan was not granted .... In [the Respondent's] response to the s 660 notice dated 30 April 2015, he again said that he intends to try to borrow more money against the equity in the Wahroonga property.

The 12 June 2015 Association Letter

The Bar Association, in the 12 June 2015 Association Letter, informed the Respondent that the Applicant had resolved to refer a complaint to the Tribunal and enclosed a copy of the report of the Professional Conduct Committee to the Bar Council dated 25 May 2015, which was attached to a Statement of Reasons and relevantly stated: 51. [The Respondent] and his wife jointly own their home at Wahroonga. In [the Respondent's] letter received on 4 September 2014, he stated that the home was conservatively valued at $1.5 million. As at 24 December 2014, the secured debt on that property was $526,726. 52. In [the Respondent's] letter received on 4 September 2014, he said that he would borrow more money against the equity in his home and that he would sell it if the loan was not granted ... In [the Respondent's] response to the s 660 notice dated 30 April 2015, he again said that he intends to try to borrow more money against the equity in the Wahroonga property.

The 6 June 2017 DEJ Affidavit

The Respondent in the 6 June 2017 DEJ Affidavit made the following statements: 18 … I transferred my one half interest in the house to my wife in 1996. A copy of the transfer is attached and marked "B". The transfer was made on recommendations from accountants at the time who advised it was appropriate to transfer the house to my wife's name only because she had contributed so much money towards its purchase, the cost of extensions and renovations, and its general upkeep and repair. 19 Our family home was sold for $2,410,000. The sale was completed on 19 December 2016. The proceeds of the sale were disbursed as follows: … (g) the balance to my wife, as proprietor of the property.

Bendigo Bank Statements

Statements of Bendigo Bank recorded that the Respondent and his wife had the following accounts: 1. Account no 134415009 in the name of the Respondent with an approved overdraft limit of $150,000.00; 2. Account no 134416569 in the joint names of the Respondent and his wife (the Joint Bendigo Account). Statement No 2 for the period from 31 October 2008 to 30 January 2009 records that it had an opening balance of $-31.47 and a closing balance of $340.19.

The evidence of the Respondent

The 6 June 2017 DEJ Affidavit and the 9 August 2017 DEJ Affidavit are directed to Grounds E to G. The Respondent also gave oral evidence in relation to Grounds E to G.

The 6 June 2017 DEJ Affidavit

In the 6 June 2017 DEJ Affidavit, the Respondent dealt with the recent sale of the following assets: 1. the property at Hawks Nest NSW owned by the Respondent's wife (the Hawks Nest Property); 2. the Wahroonga Property.
As to the Hawks Nest Property, the Respondent's wife agreed to sell it for $305,000 in July 2018 with the sale completed on 6 September 2016, and from the proceeds of the sale $117,120.67 was paid to Bendigo Bank in discharge of a loan to the Respondent and his wife, and $151,500.16 was paid to Bendigo Bank in discharge of a loan to the Respondent (6 June 2017 DEJ Affidavit at [16]-[17], annex A).
As to the Wahroonga Property, the Respondent and his wife agreed to sell it in September 2016 with the sale completed on 19 December 2016, and from the proceeds of the sale $1,709,363.08 was paid to the Respondent's wife (6 June 2017 DEJ Affidavit at [18]-[20], annex C).
The Respondent annexed the Transfer dated 18 September 1996 whereby the Respondent and his wife as transferors transferred the Wahroonga Property to the Respondent's wife for $115,000.00 (the 18 September 1996 Transfer). The signatures of the Respondent and his wife are witnessed by G Tesoriero JP. The 18 September 1996 Transfer has not been stamped and was never registered (6 June 2017 DEJ Affidavit at [18], annex B).

The 9 August 2017 DEJ Affidavit

In the 9 August 2017 DEJ Affidavit, the Respondent named the accountant (who has since died) and who he said had given him advice in 1996 to sell his one half-interest in the Wahroonga Property to his wife. He and his wife retained Mr Ken Rook, Solicitor, who was then a partner of the firm Dickson Fisher Macansh, to effect the transfer of his one-half interest in the Wahroonga Property to his wife. He said that "it was my understanding" that he gave Mr Rook all necessary documents and that he and his wife gave him a cheque for the stamp duty although he could no longer recall how much that was for (9 August 2017 DEJ Affidavit at [3]-[8]).
The Respondent said that it was his "belief at the time that Mr Rook would do everything necessary to ensure his half interest in the property was transferred to his wife, including by registering the transfer with the NSW Government's Department of Land & Property Information (LPI), or its then equivalent." (9 August 2017 DEJ Affidavit at [9]).
Annexed to the 9 August 2017 DEJ Affidavit are the following documents (9 August 2017 DEJ Affidavit at [11]-[12], annex A-B): 1. the letter dated 13 September 1996 from Mr Rook on the letterhead of Dickson Fisher Macansh addressed to the Respondent and his wife (the 13 September 1996 DFM Letter) which relevantly states: I refer to my telephone discussion with [DEJ] on 12 September 1996. I understand that it is proposed that [DEJ] will transfer to [DEK] his one-half interest in the Wahroonga property. A number of issues arise from the proposed transfer and I deal with them in turn: Transfer I enclose a form of Transfer of the one-half interest. The Transfer should be signed by [DEK] at the places marked "[DEK]X" and by [DEJ] at the place marked "[DEJ]X". Your signatures should be witnessed by any adult witness who should print his/her name, address and occupation on the form beneath the signature where indicated. Please use a black ink or biro only in completing the Transfer as use of other colour pens may be rejected by the Land Titles Office. Valuation and Stamp Duty As I understand it the Transfer is for nominal (I have included the figure of $1.00) consideration. As you know, stamp duty on the Transfer will be payable on the basis of the consideration ($1.00) or value whichever is the higher. Clearly/hopefully, valuation will be higher. As discussed with [DEJ], I have requested McGees National Propeny Consultants to prepare a valuation for the purpose of calculation of stamp duty. The interest being valued will be a one-half interest in the property. As a guide, if one-half interest in the property is $300,000.00 then stamp duty on the Transfer will be $8,990.00. l have asked the valuer to provide me with his verbal valuation by next Thursday, 19 September 1996, so that you can provide me with funds for the payment of stamp duty prior to your departure for your vacation. Statutory Declaration As there is to be no Contract for Sale and you are related, the Stamp Duties Office requires completion, by [DEK] of the enclosed Statutory Declaration. Would you please complete the Statutory Declaration and return it to me together with the signed Transfer. Westpac Banking Corporation I have spoken to Mr Hirosco of Westpac Banking Corporation who has indicated, verbally, that the Bank has no objection to the proposal (presumably particularly where the (presumably first) home loan mortgage is to be discharged). I enclose for your information a copy of a Title Search of the property which I have obtained ·which shows that there are two Mortgages to Westpac secured over the property. As I understand from my discussions with [DEJ], the first mortgage secures your home loan and the second mortgage secures the overdraft facility for [DEJ's] practice as a barrister. Mr Hirosco has informed me that the only consent likely to be required by the Bank is an acknowledgment by [DEK] that the Mortgage securing the overdraft account is to remain. I have asked him to provide me with that consent for [DEK] to sign prior to your vacation. Please telephone me if you have any enquiry in regard to the enclosed documents or their execution. I will contact you further as soon as I receive my valuer's report on the valuation of the property. 1. the statutory declaration entitled "Declaration 'U'" which appears to have been signed by the Respondent's wife and witnessed by G Tesoriero JP showing a consideration of $115,000 for the transfer.
After giving Mr Rook the transfer and other material, the Respondent said that he "did not give the transfer further thought." He said he continued to live in the Wahroonga Property with his wife and always regarded her and himself as its owners (9 August 2017 DEJ Affidavit at [13]).
The Respondent said that when he made statements to the Bar Association between 2012 and 2015 he did not have the fact of the 18 September 1996 Transfer "in my mind." Therefore, all statements that he had made to the Bar Association were to his knowledge and belief true and correct. This was because at the time he believed he held "a legal and equitable interest" in the Wahroonga Property as attested by his conduct in 2012 of borrowing with his wife money from RedZed Lending Solutions to pay out his outstanding tax debts on the security of the Wahroonga Property (9 August 2017 DEJ Affidavit at [16], [19]).
The Respondent said it was not until "shortly before" he swore the 6 June 2017 DEJ Affidavit that he found the 18 September 1996 Transfer. It was only then that he "was reminded of the events of 1996." He then formed the belief that his legal interest in the Wahroonga Property had been transferred to his wife. That is why he referred to his wife "as sole proprietor" in the 6 June 2017 DEJ Affidavit at [19(g)] because by that time he had seen the 18 September 1996 Transfer and believed it was effective (9 August 2017 DEJ Affidavit at [17]-[18]).
The Respondent gave the following explanation as to why his taxation debts were not paid out of the proceeds of sale of the Wahroonga Property (9 August 2017 DEJ Affidavit at [20], [23]): 20 At the time the sale of the Property was completed in December 2016, having regard to the loan that had been taken out to pay my tax debts and having regard to [DEK] having paid from her own funds for three renovations to the Property, I did not believe I had an entitlement to call on the proceeds of the sale to pay the ATO. 23 I therefore did not seek to assert an entitlement (if I had any) or access to any of the proceeds from the sale of the Property to pay the ATO debt because at the time the sale was completed, my wife and family faced the prospect of a husband and father who may never be able to work again. I do not know whether I have any legal entitlement to the proceeds of sale, but I do not believe that I do.

Oral evidence

In cross-examination, the Respondent gave the following evidence: 1. the 18 September 1996 Transfer was found in a box after the family had moved out of the Wahroonga Property into alternative accommodation. This was notwithstanding that his wife had thrown out many boxes of material before the Wahroonga Property was put on the market for sale. He found the original of the 18 September 1996 Transfer (Transcript 50-52, 99); 2. he denied that his evidence that he forgot that he transferred his interest in the Wahroonga Property to his wife is not believable (Transcript 41-42). He denied that the 18 September 1996 Transfer was signed, but there was no intention to ever register it, and so in effect it was kept in a bottom drawer, it was never registered, never stamped, but was kept in a bottom drawer for when it might be needed in future (Transcript 60). He denied that his evidence that he transferred his interest in the Wahroonga Property to his wife and that he intended that the transfer be registered and take effect as a legal transfer of his interest, and forgot thereafter, when he was communicating with the Applicant, was false evidence (Transcript 90). He denied that his evidence that he had forgotten the transfer when he was communicating with the Applicant was false evidence, and this evidence was untrue in circumstances where he was asked to consciously turn his mind to the ownership of the Wahroonga Property on a regular basis when dealing with banks, the ATO and the Applicant (Transcript 114); 3. he recollected that monies had been paid to him by his wife as consideration for the 18 September 1996 Transfer from monies which she had received from her grandfather (Transcript 43-44); 4. he borrowed $300,000 against the Hawks Nest Property in 2008 to pay tax (Transcript 39, 53, 64, 72, 115); 5. the reason for not asserting a one-half of the net proceeds of sale of the Wahroonga Property was that his wife was entitled to the entire proceeds because she had used her funds to improve the Wahroonga property, and he owed her funds arising from the loans to pay tax debts in 2008 which were secured on the Hawks Nest Property (Transcript 56-57); 6. his intention was to ask his wife to sell the Wahroonga Property or make further loan facility, but before he asked his mind changed and he thought it would be preferable that he would be dead (Transcript 101); 7. he could not explain why he had the original of the 18 September 1996 Transfer if he had taken steps to forward it to his solicitors for it to be registered and to effect a transfer of ownership of the Wahroonga Property (Transcript 113); 8. he had forgotten he had transferred his one-half interest in the Wahroonga Property to his wife when he and his wife signed mortgage documents for Bendigo Bank in 2008 (Transcript 115).

The DEK Affidavit

In the DEK Affidavit, the Respondent's wife also gave evidence about the circumstances of the 18 September 1996 Transfer. She said that whilst her husband was in hospital in late June 2016, she started clearing the house in case it was necessary to sell it. She threw out a lot of boxes being stored in the garage (DEK Affidavit at [2]-[4]).
The Respondent's wife said that she and the Respondent agreed in 1996 that it was appropriate for his share in the family home to be transferred into her name. She had used money she inherited from her family to contribute significantly to the purchase of the Wahroonga Property and to pay for the cost of some extensions and renovations. She paid the Respondent $115,000 from the proceeds of a family share investment company which had been wound up. She understood that once the transfer was signed, Mr Rook would file the documents and register the transfer, as necessary. She paid the necessary fee to Mr Rook to register the transfer (DEK Affidavit at [12]-[14]).
The Respondent's wife said that she "did not recall the transfer had occurred" until the middle of 2017 when she discovered the 18 September 1996 Transfer among an archive box of papers (DEK Affidavit at [15]).
The Respondent's wife gave the following explanation as to why the balance of the proceeds of the sale of the Wahroonga Property were paid to her (DEK Affidavit at [17]): 17 … At the time, I had a husband who could not work or find employment and three children to support. The proceeds from the sale of the family home were all we had. I refused to use those proceeds to pay [DEJ's] debt to the ATO, as I was concerned about the family's future.

Oral evidence

In cross-examination, the Respondent's wife gave the following evidence: 1. she signed the 18 September 1996 Transfer in 1996 and forgot about it (Transcript 125); 2. she paid $115,000 to the Respondent, but did not have any evidence that this amount was paid (Transcript 125-126); 3. she paid $26,000 in legal fees to Mr Rook to register the transfer which included stamp duty (Transcript 126); 4. a direction was given to the conveyancing lawyers in December 2016 that 100% of the net proceeds of the sale of the Wahroonga Property would go to her because she was seeking to protect her family position and make sure that the moneys were in her possession and not in the Respondent's possession (Transcript 128-130); 5. the Respondent never talked to her about refinancing the Wahroonga Property in order to address his tax debts (Transcript 136).

Ground E

As to Ground E, the Applicant submitted: 1. there is no evidence of any steps being taken to provide the 18 September 1996 Transfer to Mr Rook (Transcript 11); 2. the 6 June 2017 DEJ Affidavit at [18] and [19(g)] was either false or misleading evidence because at the point at which the proceeds of the sale of the Wahroonga Property were distributed, both of the Respondent and his wife were operating on the basis that it was a jointly owned property and that they were in fact joint proprietors as the LPI record reflected, and that under that belief the balance would have to go to them equally as proprietors (Transcript 13).

Ground F

As to Ground F, the Applicant submitted: 1. the Respondent's evidence that he sold his one-half interest in the Wahroonga Property to his wife is unbelievable having regard to the following matters (Transcript 14-15): 1. he was actively deploying his joint ownership with his wife of the Wahroonga Property, not in an informal context but in affidavits and statutory declarations, in affidavits to the Federal Circuit Court proceedings, in statements to the Tax Commissioner, as the key fact to stave off bankruptcy by the ATO and to convince the Applicant to allow him to continue to practise as a barrister; 2. his very good memory of purchases he has made when referred to items on Bendigo Bank statements.

Ground G

As to Ground G, the Applicant submitted: 1. during the period between the sale of the Wahroonga Property in December 2016 and the 18 September 1996 Transfer being found shortly before 6 June 2017 when the Respondent held the belief of joint ownership with his wife of the Wahroonga Property, his tax debt was not paid using the proceeds of the sale, but instead these proceeds were diverted to his wife (Transcript 17, 20); 2. the Respondent never intended to borrow money using the Wahroonga Property as security and use that money to clear his outstanding tax liability because he never discussed with his wife whether or not she would give consent to refinancing after 2014 (Transcript 18-20).

Ground E

As to Ground E, the Respondent submitted that there is no basis to find that any of the 6 June 2017 DEJ Affidavit at [18] and [19(g)] was deliberately false having regard to the following evidence of the Respondent's wife (Transcript 21): 1. her evidence in the DEK Affidavit that in 1996 that there was an agreement that it was appropriate for his share in the family home to be transferred into her name and that she paid $115,000 to him to transfer his half share in the family home to her from funds received from the winding up of the family share investment company; 2. her oral evidence about paying stamp duty.

Ground F

As to Ground F, the Respondent submitted that the evidence of the Respondent should be believed because he and his wife approached their affairs on the basis that they were joint owners of the Wahroonga Property irrespective of the legal position (Transcript 22).

Ground G

As to Ground G, the Respondent submitted that even if it were proved that he acted in September 2016 contrary to earlier representations about future matters it is not misconduct for him to have acted differently than the way in which he said at an earlier time he would act. Subsequent to the Respondent making the representations, he was admitted to hospital for several months in the second part of 2016, and his practising certificate had not been renewed on 23 June 2016 with the result that his strategy to try and trade his way out of the trouble and then, if necessary, to borrow and, if necessary, to sell was no longer viable because he was not allowed to practise (Transcript 23-25).

Consideration - Ground E

The 18 September 1996 Transfer was an important document for the Respondent and his family. If registered at the Land Titles Office it had the potential of safeguarding for his family a 50% interest in the Wahroonga Property against claims which might be made against him.
While the Respondent gave evidence that it was his belief at the time that Mr Rook would do everything necessary to ensure his half interest in the Wahroonga Property was transferred to his wife, including by registering the 18 September 1996 Transfer, he did not give evidence that he made, or attempted to make, contact with Mr Rook enquiring what was the position with its registration. We conclude, from the failure of the Respondent to give this evidence, that he did not make or attempt to make any such enquiry.
While the Respondent's wife gave evidence that she paid Mr Rook $26,000 for stamp duty and legal costs and that she understood Mr Rook would do what was necessary for the 18 September 1996 Transfer to be registered at the Land Titles Office, she did not give evidence that she made, or attempted to make, contact with Mr Rook enquiring what was the position with its registration. Further, she did not give evidence that she asked the Respondent whether he knew how far Mr Rook had progressed with the registration of the 18 September 1996 Transfer at the Land Titles Office. We conclude, from the failure of the Respondent's wife to give this evidence, that he did not make or attempt to make any such enquiries.
If the proposal for the Respondent to transfer his one-half interest in the Wahroonga Property to his wife was proceeding, he knew from the 13 September 1996 DFM Letter that Mr Rook would have been waiting on the Respondent to return the 18 September 1996 Transfer and the Declaration 'U' signed by his wife before Mr Rook could take steps to arrange for the payment of stamp duty and arrange for the registration of the transfer. We conclude from the possession of the 18 September 1996 Transfer and the signed Declaration 'U' by the Respondent and his wife in 2017 and the absence of any explanation as to how they had the original of the 18 September 1996 Transfer and the signed Declaration 'U', that these documents remained in their possession after they received them from Mr Rook on or shortly after 13 September 1996.
We conclude from: 1. the failure of the Respondent and his wife to make or attempt to make any enquiries of Mr Rook, and the Respondent's wife to make or attempt to make any enquiries of the Respondent, about the position with the registration of the 18 September 1996 Transfer; 2. the failure of the Respondent and his wife to return the 18 September 1996 Transfer and the signed Declaration 'U' to Mr Rook; 3. the non-payment of stamp duty on the 18 September 1996 Transfer; 4. the retention of the 18 September 1996 Transfer and the signed Declaration 'U' by the Respondent and his wife from on or shortly after 13 September 1996 until shortly before 7 June 2017; 5. the knowledge by the Respondent and his wife from the 13 September 1996 DFM Letter that in order for the Respondent to transfer his one-half interest in the Wahroonga Property to his wife it was necessary for the 18 September 1996 Transfer to be stamped and then registered at the Land Titles Office; 6. the request of Mr Rook to the Respondent and his wife in the 13 September 1996 DFM Letter to return to him the completed statutory declaration with the signed transfer; 7. the failure of the 18 September 1996 Transfer to be registered at the Land Titles Office; 8. the importance for the protection of the Respondent and his family for the 18 September 1996 Transfer to be registered at the Land Titles Office; that the Respondent and his wife changed their minds and decided not to proceed with the proposal for the Respondent to transfer his one-half interest in the Wahroonga Property to his wife.
We do not accept the evidence the Respondent that he forgot that he had transferred his one-half interest in the Wahroonga Property to his wife. In circumstances where he referred to having a one-half interest in the Wahroonga Property or made statements that were only consistent with him having an interest in the Wahroonga Property in the following documents: 1. the 5 August 2011 DEJ Letter; 2. the 20 July 2012 DEJ Statutory Declaration; 3. the 10 September 2012 DEJ Letter; 4. the documents enclosed the 10 September 2012 DEJ Letter including: 1. the 17 July 2012 DEJ Affidavit and annexure 'A' thereto, being the 9 February 2012 LPI Property Search; 2. the unsworn DEJ Affidavit and annexure 'B' thereto, being the 7 August 2012 LPI Property Search; 1. the 4 September 2014 DEJ Letter; 2. the 13 April 2015 DEJ Statutory Declaration; 3. the 30 April 2015 DEJ Statutory Declaration; it is inconceivable that the Respondent would not have remembered that he had previously transferred his one-half interest in the Wahroonga Property to his wife. This is particularly the case where the Respondent's wife gave evidence that she paid him $115,000.00 for his interest and the Respondent recollected that monies had been paid to him by his wife as consideration for the 18 September 1996 Transfer from monies which she had received from her grandfather, and the purpose of the transaction was to protect him and his family from claims made against him.
Similarly, in circumstances where the Respondent had borrowed money in September 2012 on the security of the Wahroonga Property to discharge his taxation liability, it is inconceivable that the Respondent would not have remembered that he had previously transferred his one-half interest in the Wahroonga Property to his wife.
If the Respondent had genuinely forgotten that he had previously transferred his one-half interest in the Wahroonga Property to his wife, then on the basis that he held a one-half interest he would have been entitled to $854,681.54, being one-half of the net proceeds of the sale of the Wahroonga Property paid to his wife. His varying explanations for not seeking to assert this entitlement, namely that he owed money to his wife arising out of the loans from Bendigo Bank to pay tax, and the use of her funds to improve the value of the Wahroonga Property were clearly self-serving in seeking to provide justification for not paying his tax liability and unconvincing for the following reasons: 1. from the proceeds of the sale of the Hawks Nest Property $117,120.67 was paid to Bendigo Bank in discharge of a loan to the Respondent and his wife, and $151,500.16 was paid to Bendigo Bank in discharge of a loan to the Respondent. While it may be inferred that the loan to the Respondent was for tax, the loan to the Respondent and his wife was not for tax as Statement No 2 for the Joint Bendigo Account records it had a credit balance as at 30 January 2009. The Respondent's evidence that he borrowed $300,000 against the Hawks Nest Property in 2008 to pay tax is contradicted by the Bendigo Bank Statements. 2. the Respondent's wife gave no evidence that she was entitled to the net proceeds of the sale of the Wahroonga Property because she had used her funds to improve its value.
We are satisfied that the Respondent swore the 6 June 2017 DEJ Affidavit knowing that it was false in relation to the following statements: 1. he transferred his one half interest in the Wahroonga Property to his wife in 1996 (6 June 2017 DEJ Affidavit at [18]); 2. his wife as "the proprietor of the [Wahroonga] property" (6 June 2017 DEJ Affidavit at [19(g)]). and that this conduct demonstrates that he lacks the qualities of character and trustworthiness which are necessary attributes of a person entrusted with the responsibilities of a legal practitioner. As this conduct justifies a finding that he is not a fit and proper person to engage in legal practice, we find that the Respondent engaged in professional misconduct within s 497(b) of the 2004 LP Act.

Consideration - Ground F

Ground F is an alternative to Ground E on the basis that we find that the Respondent transferred his equitable interest in the Wahroonga Property to his wife in 1996. As we have found that the Respondent did not transfer his equitable interest in the Wahroonga Property to his wife in 1996, it is unnecessary to consider Ground F.

Consideration - Ground G

The substance of Ground G is that the Respondent acted contrary to his representation to the Applicant that, if he was unable to borrow money using the Wahroonga Property to clear his outstanding tax liability, then he would arrange to sell the Wahroonga Property in order to pay his outstanding tax debts. The representation which was made in the 4 September 2014 DEJ Letter related to a future matter. There is no allegation in Ground G that the representation which was made in the 4 September 2014 DEJ Letter was false.
We are satisfied that during the period from 4 September 2014 to 27 June 2016 the Respondent intended to borrow money using the Wahroonga Property to clear his outstanding tax liability, and if he was able to obtain such a loan he would arrange to sell the Wahroonga Property in order to pay his outstanding tax debts. The Respondent changed his mind on or shortly after 27 June 2016 on being informed on 27 June 2016 that the Applicant had refused to renew his practising certificate for the practising certificate year commencing on 1 July 2016.
We are further satisfied that the reason that the Respondent changed his mind was to avoid paying his tax liability and to secure his financial future in circumstances where he was no longer able to practise as a barrister with no real prospect of being able to do so in the future. As this conduct justifies a finding that he is not a fit and proper person to engage in legal practice, we find that the Respondent engaged in professional misconduct within s 497(b) of the 2004 LP Act.

Conclusion

Accordingly, we find that Grounds E and G are established.

The powers of the Tribunal

Section 562 of the 2004 LP Act relevantly provides: 562 Determinations of Tribunal (1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section. (2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e) an order reprimanding the practitioner, (f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997.
Section 576 of the 2004 LP Act relevantly provides: 576 Definitions In this Division disciplinary action against an Australian legal practitioner means any of the following actions taken under a law of this or another jurisdiction, whether or not taken under this Chapter or under provisions of a corresponding law that correspond to this Chapter: … (d) the making of an order by a court or tribunal, or by another person or body, for or following a finding of unsatisfactory professional conduct or professional misconduct by the practitioner, other than an order cautioning the practitioner,

The 6 June 2017 DEJ Affidavit

In the 6 June 2017 DEJ Affidavit the Respondent described his voluntary work and positions. They included at various times membership of the Applicant and various committees of the Bar Association, involvement in educational activities, and membership of and activities in sporting clubs.

Reference dated 8 August 2017 of a Senior Counsel

A Senior Counsel, who has known and respected the Respondent for many years, provided a reference dated 8 August 2017. He referred to the Respondent having had "an enormous practice", and being "entirely trustworthy and honourable." The Respondent had been very involved with the Applicant, and his recent financial problems were described as "a tragedy".

The submissions of the Applicant

The Applicant made submissions on three alternative scenarios.
Under the scenario that we find in relation to Grounds A to D that the Respondent is without a "reasonable excuse" for breaching the conditions attaching to his practising certificates, and as such his breaches are deemed to be professional misconduct by virtue of s 73(1) of the 2004 LP Act, and that any one of Grounds E to G is made out, then the appropriate penalty is that his name be removed from the local roll under s 562(2)(a) of the 2004 LP Act.
In relation to Grounds A to D, the Applicant submitted that the evidence demonstrates the Respondent to be "permanently unfit to practise" for the following reasons: 1. the number of contraventions of the 11 conditions imposed on 11 October 2012 is substantial; 2. the conditions were imposed because of a background of already extensive non-compliance with his tax obligations; 3. he was prioritising his personal and work commitments over attendance to the obligations of managing his practice including the lodgement of tax returns and complying with his conditions; 4. there is no proper evidentiary basis upon which it could be concluded that he would not be at risk of the same failures in respect of his tax obligations in the future as it is plain that his non-compliance with his tax obligations is ongoing; 5. he has not undertaken any steps toward seeking to clear his debt with the ATO and, given the sale of Wahroonga Property and his recent bankruptcy, it is highly likely that he will never clear those tax obligations.
In relation to Ground E, the Applicant submitted that swearing a false affidavit is a deliberate deceit, and the extent of the dishonesty demonstrates that he is probably "permanently unfit to practise".
In relation to Ground G, the Applicant submitted that the extent of the Respondent's misleading conduct and lack of candour demonstrates that he is probably "permanently unfit to practise".

The submissions of the Respondent

The Respondent made the following submissions: 1. in circumstances where he does not currently hold a practising certificate, and will need to satisfy the Applicant he is a fit and proper person to hold a practising certificate if he applies for the issue of a practising certificate in the future, there is no present risk to the public of him returning to practice before he is fit and proper to do so; 2. the circumstances giving rise to his current position and admitted failures detailed in Grounds A to D of the FAADF, namely his longstanding and debilitating psychiatric condition, mean there is no need for any orders to specifically punish him or deter him from again committing conduct of a kind the subject of the FAADF; 3. in combination with his need to convince the Applicant he is a fit and proper person should he wish to return to practice, no further punitive order should be made; 4. a caution, which is contemplated by s 576(d) of the of the 2004 LP Act, is the appropriate order for his admitted failures detailed in Grounds A to D which constitutes unsatisfactory professional conduct.
The Respondent made no submissions as to what protective orders should be made if we find he has engaged in professional misconduct.

The applicable legal principles

The Tribunal has referred to the observation of Spigelman CJ in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [22] that the "regulation of the profession as such by the imposition of conditions on a practising certificate, is an important element in establishing a relationship of trust between a legal practitioner on the one hand and his or her client, colleagues and the judiciary on the other hand and ensuring confidence in the profession": New South Wales Bar Association v Quinlivan [2015] NSWCATOD 54 at [95]; Council of the New South Wales Bar Association v Barnett at [57].
The Court of Appeal has repeatedly observed that the failure to comply with the legal and civic obligation to lodge and pay tax necessarily brings the entire profession into disrepute, and thus is capable of constituting professional misconduct: Davison v Council of the New South Wales Bar Association [2007] NSWCA 227 at [105]-[116].
A legal practitioner has a duty of candour to the Tribunal: Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 199-200; Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 at [49]-[52].
Untruthfulness in giving evidence in disciplinary proceedings may be taken into account in considering what order should be made: Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32 at [105]; Davison v Council of the New South Wales Bar Association at [118].
The relevant time for determining the fitness of a practitioner to practise is the time of the determination by the disciplinary body seized with the question. The misconduct charged will have taken place before the decision is made; there will inevitably be a gap between the date of the misconduct and the date of the determination. It will not be unusual for the practitioner concerned to submit that circumstances have changed since the misconduct charged; arguments as to remorse, reform, character change and subsequent good deeds are not uncommon. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether these mitigating circumstances are to be accepted: Barwick v Council of the Law Society of New South Wales at [108].
Removal from the roll requires the relevant professional body to establish that the legal practitioner is "permanently unfit to practise". The expression has the shade of meaning of being likely to be unfit to practise for the indefinite future. If the Tribunal is of the view that a person is presently unfit to practise, but after a particular period of time will be once again fit to practise, then suspension for that period of time is the appropriate order. Removal from the roll is appropriate only when a legal practitioner is unfit to practise, and suspension for a particular period is not appropriate: Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53]-[54].

Whether the Respondent is permanently unfit to practise

We regard a contravention of a condition attached to a practising certificate issued by the Applicant as a serious matter. Practice conditions are imposed by the Applicant pursuant to its responsibilities in regulating the practice and conduct of barristers in the interests of the public.
The Respondent contravened Conditions One to Eleven during the period from 16 October 2012 to 30 June 2015. These contraventions involved not lodging or causing to be lodged outstanding income tax returns and BAS returns, not arranging for an accountant to provide the applicant with information, not reporting and paying taxation obligations as they fell due, not nominating a dedicated account for the deposit of monies to provide for ongoing taxation liabilities, not advising the accountant thereof, not setting aside and depositing in the dedicated account sufficient monies, not keeping his financial affairs in the hands of or under the control of a financial expert, not enabling the financial expert to satisfactorily control his financial affairs, not conferring with the financial expert on a regular basis, not arranging for regular reports by the financial expert to the Applicant on specified matters, and not paying the costs of the financial expert on a continuing basis.
The effect of the contravention of Conditions Two and Four is that the Respondent has completely disregarded his legal and civic obligations with respect to the payment of income tax for several years. He prioritised his personal and work commitments over attendance to the obligations of managing his practice including the lodgement of income tax returns and BAS returns and payment of income tax. He then failed to procure the payment of his outstanding income tax from his one-half share of the net sale proceeds of the Wahroonga Property.
We find that that the Respondent's complete disregard of his legal and civic obligations with respect to the payment of income tax are such that he must be regarded, at the present time, as permanently unfit to practise.
We have found that the Respondent was not a truthful witness in swearing the 6 June 2017 DEJ Affidavit knowing that it was false in relation to statements in [18] and [19(g)], and in adhering to that evidence in giving oral evidence. The Respondent was also dishonest in giving evidence that he had forgotten he had transferred his one-half interest in the Wahroonga Property to his wife. We find that this conduct is in itself such that he must be regarded, at the present time, as permanently unfit to practise.
We do not accept the Respondent's submissions that a caution is the appropriate order in view of the circumstances that he does not currently hold a practising certificate, and will need to satisfy the Applicant he is a fit and proper person to hold a practising certificate if he applies for the issue of a practising certificate in the future. We observe that these submissions do not take into account either the gravity of the Respondent's conduct or the totality of the purpose of making protective orders. His conduct is such that he must be regarded, at the present time, as permanently unfit to practise. Protective orders extend in their effect beyond the principal need to protect the public from the practice of law by the Respondent and to deter the Respondent from further conduct of this nature. Protective orders are also acknowledged as having a deterrent effect on other practitioners lest they engage in misconduct of the same kind as the Respondent as well as enhancing the confidence of the public in the reputation and integrity of the legal profession in general and the practice of barristers in particular. These latter matters require us to formulate protective orders having regard to matters which are not solely confined to whether or not the Respondent will again engage in the profession of a barrister.
We have taken into account the Respondent's valuable contribution to the community in a number of areas, his psychiatric condition and the reference of a Senior Counsel in his support. We are not persuaded that these matters detract from the egregiousness of his conduct over the long period in which he has failed to meet his tax obligations and his dishonesty in giving evidence.

Conclusion

In all the circumstances and taking into account the nature and extent of the professional misconduct which we have found to have occurred it is appropriate that a protective order be made under s 562(2)(a) of the 2004 LP Act removing the name of the Respondent from the local roll.

The applicable provisions of the CAT Act

Clause 23(1) of Schedule 5 of the CAT Act relevantly provides: 23 Costs consequent of adverse conduct findings (1) Despite section 60 of this Act, the Tribunal must make orders requiring a respondent lawyer whom it has found to have engaged in unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the Commissioner, a Council and the complainant), unless the Tribunal is satisfied that exceptional circumstances exist.

The submissions of the Applicant

The Applicant submitted that the Respondent should be ordered to pay the Applicant's costs of the proceedings.

The submissions of the Respondent

The Respondent made no submissions on costs.

Consideration

We are satisfied that no exceptional circumstances exist which would justify a displacement of the cost rule in cl 23(1) of Sch 5 of the CAT Act.

Conclusion

Accordingly, the Applicant is entitled to order that the Respondent pay its costs of the proceedings.

Orders

We make the following orders: 1. The proceedings are re-opened for the limited purpose of: 1. the Respondent tendering the redacted report of Dr Llewellyn-Jones dated 25 April 2019; 2. the Respondent filing Supplementary Submissions; 3. the Applicant filing Supplementary Submissions. 1. Subject to the receipt of the written material under order 1, this matter otherwise is to proceed on the basis of the evidence, submissions and decisions in relation to the matter that were given or made before the Tribunal was reconstituted without a further oral hearing; 2. The name of the Respondent is removed from the local roll of lawyers maintained by the Supreme Court of New South Wales; 3. The Respondent is to pay the costs of the Applicant of the proceedings; 4. For the purposes of these proceedings, the name of the Respondent is anonymised as DEJ and the name of the Respondent's wife is anonymised as DEK; 5. Subject to orders 8 and 9, the disclosure of the Respondent's name and the name of the Respondent's wife is prohibited; 6. Subject to orders 8, 9 and 10, access to and disclosure of documents and evidence filed with the Tribunal in this Application be restricted to the Legal Services Commissioner, the parties and their legal representatives and experts retained in the proceedings and the Respondent's trustee in bankruptcy; 7. Orders 6 and 7 do not preclude the Applicant or any member of the Applicant or the New South Wales Bar Association, or any of its officers or employees from disclosing: 1. the Respondent's name; 2. the decisions, reasons for decision and orders of the Tribunal in these proceedings; 3. documents and evidence filed with the Tribunal in these proceedings; and 4. information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the persons, bodies or entities in the Schedule marked A in connection with the Applicant's exercise of its functions under the Legal Profession Act 2004 (NSW), the Legal Profession Uniform Law (NSW) and the Legal Profession Uniform Law Application Act 2014 (NSW) (as amended or substituted from time to time) and all regulations and rules made under or in connection with those Acts (as amended or substituted); 1. Orders 6 and 7 do not preclude the Applicant or any member of the Applicant or the New South Wales Bar Association, or any of its officers or employees or the Respondent from disclosing: 1. the Respondent's name; 2. the decisions, reasons for decision and orders of the Tribunal in these proceedings; 3. documents and evidence filed with the Tribunal in these proceedings; and 4. information about the proceedings, decisions, documents and evidence referred to in (b) and (c) above to any of the persons, bodies or entities in the Schedule marked B for the purpose of enforcing any costs order made by the Tribunal in these proceedings, assessing those costs and enforcing any judgment of a court that arises from the filing of a cost assessor's certificate or review panel's certificate and any judgment on appeal from a determination of a review panel); 1. Access to and disclosure of Exhibit 1 be restricted to the Applicant, the Applicant's legal representatives and the Respondent's legal representatives. Schedule A (a) the Supreme Court of New South Wales; (b) the Supreme Court of the Australian Capital Territory; (c) the Legal Profession Admission Board; (d) the Legal Services Council, and any member, committee, or delegate of the Legal Services Council; (e) the Commissioner for Uniform Legal Services Regulation, and any delegate of the Commissioner; (f) a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW), and any member, committee, or delegate of any such authority; (g) a person who is a member of the staff of, or acting at the direction of, any of the entities or persons referred to in (a) to (c) above; (h) any Australian or foreign authorities or courts as referred to in ss 436 and 437 of the Legal Profession Uniform Law (NSW); (i) any Australian government authorities, professional associations or educational bodies as referred to in s 441 of the Legal Profession Uniform Law (NSW); (j) any medical practitioner and/or health professional nominated by the Bar Council, a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW) for the purpose of s 95 of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory; (k) any person who, for the purpose of s 95(1) of the Legal Profession Uniform Law (NSW) or any equivalent legislative provision, regulation or rule in any other State or Territory, is identified as being in a position to provide documents or information to a local regulatory authority or corresponding authority within the meaning of the Legal Profession Uniform Law (NSW); (l) any person, body or entity to the extent that disclosure is permitted by s 462(2) and (3) of the Legal Profession Uniform Law (NSW); and (m) the Respondent's trustee in bankruptcy. Schedule B (a) any costs consultant, solicitor, counsel or process server engaged by or on behalf of the Applicant, the New South Wales Bar Association or the Respondent; (b) the Manager, Costs Assessment within the meaning of the Legal Profession Act 2004 (NSW) and/or the Legal Profession Uniform Law Application Act 2014 (NSW); (c) any costs assessor (whether acting alone, or as a member of a review panel); (d) any court in which any appeal from a determination of a review panel is instituted (including, for the avoidance of doubt, judges, officers and employees of such courts); (e) any court in which a certificate issued by a costs assessor or review panel is filed (including, for the avoidance of doubt, judges, officers and employees of such courts); (f) the Office of the Sheriff of New South Wales, and any officer or employee of that Office, and the equivalent Office in each State or Territory of Australia; (g) the Official Receiver and any court with jurisdiction under the Bankruptcy Act 1966 (Cth) (including, for the avoidance of doubt, judges, officers and employees of such courts); and (h) any other person, body or entity to whom it is necessary to disclose the information, decisions, documents, or evidence referred to in order 9(a) to 9(d) above for the purpose of the legislation, regulation and rules that apply from time to time to the assessment of costs and enforcement of judgments.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 11 December 2019

Legal Profession Act 2004(NSW)

At a glance

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Judgment (88 paragraphs)

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Legislation Cited (4)

Cases Cited (10)