Law Society of New South Wales v Walsh [1997] NSWCA 185
Prothonotary of the Supreme Court of New South Wales v Chapman [1992] NSWCA 292
Category: Principal judgment
Parties: Council of the New South Wales Bar Association (Applicant)
EFA (Respondent)
Representation: Counsel:
C A Webster SC and P A Maddigan (Applicant)
P Boulton SC and A Horvath (Respondent)
The Council of the New South Wales Bar Association ('the Council') brought an application for disciplinary findings and orders against EFA, a barrister, in the Tribunal, based upon a complaint made by H, an assistant barristers' clerk, concerning EFA's alleged conduct late in the evening at a dinner in 2017.
In a decision published on 4 March 2021 (Council of the New South Wales Bar Association v EFA [2021] NSWCATOD 21 ('the Stage 1 decision')), the Tribunal found that specified aspects of EFA's conduct during the period of time in question amounted to unsatisfactory professional conduct. Some of the allegations about EFA's conduct during that period of time were not substantiated. The Tribunal had the benefit of viewing video footage of EFA, H and others during the period of time in question. The video footage was taken by two security cameras positioned in opposite corners of the dining room. The allegations related to a period of time of less than two minutes in duration, beginning at 10:53:01pm, and ending at 10:54:57pm, according to the clock on the security camera footage.
On 12 May 2021, a further hearing took place in relation to the application by the Bar Association for disciplinary orders to be made against EFA. At that hearing, a series of medical and health reports concerning EFA were tendered to the Tribunal, together with two affidavits of EFA and five character references in relation to EFA.
[4]
The Tribunal's power to impose disciplinary orders
The Legal Profession Uniform Law (NSW), in s 299 and 302, provides for the kinds of disciplinary orders which may be imposed upon a lawyer who has been found guilty of unprofessional conduct or professional misconduct.
Disciplinary orders are often referred to as protective orders. In Law Society of New South Wales v Walsh [1997] NSWCA 185, (Walsh) at 40, Beazley JA said:
It is undisputed that disciplinary proceedings are concerned with the protection of the public: Wentworth v New South Wales Bar Association (1992) 176 CLR 239 per Deane, Dawson, Toohey, and Gaudron JJ at 251; Clyne v New South Wales Bar Association (1960) 104 CLR 186 at 201-202; New South Wales Bar Association v Evatt (1986) 117 CLR 177 at 183-184; Weaver v Law Society of New South Wales (1979) 142 CLR 201 at 207; and Walter v Council of Queensland Law Society Inc (1988) 62 ALJR 153 at 157. The court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of the disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors. In this sense, any penalty imposed should contain an element of general deterrence, "publicly marking the seriousness of what the instant solicitor has done": Foreman per Mahoney JA at 441
In Walsh, the Court of Appeal was dealing with a solicitor, but the same considerations apply to barristers.
It is clear that disciplinary orders are not the same as a penalty or sentence imposed in proceedings under the criminal law. One of the purposes of a penalty or sentence in the criminal law is the punishment of the offender (see Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A(a)). Disciplinary orders are not concerned with punishment, and nor are they concerned with retribution.
[5]
Protecting the public against further misconduct by EFA
The behaviour of EFA during the incident at the dinner, between 10:53pm and 10:55pm, which we have found constituted unsatisfactory professional conduct, consisted of the making of gestures towards another male barrister, the very brief simulation of oral sex with that other male barrister and the light touching by EFA of the back of H's head so that it moved slightly forward and down, in a direction away from EFA, whilst EFA said, once, "suck my dick". H did not say that she was offended by EFA's interaction with the other male barrister, which she witnessed. She was, however, angered, embarrassed and humiliated by the touching of her head and the words that went with it.
We have found that EFA's actions were a very poorly judged attempt to include H in the ritualised greeting he had engaged in with the other barrister. We have found that EFA's actions were not a sexual advance (see the Stage 1 decision at [56]).
EFA wrote a letter to H just over a week after the incident. In the letter, EFA said that he was 'deeply embarrassed and remorseful' about the incident. EFA said that his behaviour had been 'inappropriate and disrespectful'. EFA stated, in the letter:
…I am sorry that you became the subject of my behaviour with my friend and given my limited recollection I am unable to offer a further explanation.
I understand that the matters to which you refer would result in embarrassment and cause you to feel uncomfortable. I apologise for that.
I unreservedly apologise. I would like the opportunity to apologise to you in person but understand if you do not want that to occur and I respectfully acknowledge that.
In EFA's first submission to the Council after receiving the complaint, EFA admitted that his behaviour at the dinner, during the incident, had been unacceptable, in that he had made inappropriate, sexualised gestures towards another barrister in H's presence and that he had touched the back of H's head and made an offensive remark. In his submission, EFA said that he sincerely regretted his actions. He unreservedly apologised to H and made it clear that he understood that his actions were unacceptable.
From the writing of the letter to H to the hearing of the stage of the proceedings which is the subject of this decision, EFA has consistently expressed remorse for his conduct. He has maintained his remorse and contrition throughout, even after the viewing of the video footage from the security cameras made it clear that some of the allegations made against him could not be substantiated, and that aspects of the recollection of the incident by the complainant were not accurate.
In his affidavit of 26 March 2021, EFA concedes that he ought to have anticipated, prior to interacting with H in the manner that he did, that she was likely to be offended, angry, embarrassed and humiliated. In his affidavit, EFA expresses a great deal of shame, remorse and contrition in relation to his behaviour during the incident.
During the processes conducted by the Council which led to the bringing of these proceedings, in addition to experiencing anguish about the impact of his actions on his family and himself, EFA says in his affidavit that he also felt very distressed about the very stressful situation he had caused H to be placed in.
The reconciliation, in his own mind, of his behaviour during the incident, and its impact on H, with his idea of himself as a person and a legal practitioner, has had a profound effect on EFA. For almost four years, since shortly after the incident in July 2017, EFA has reflected constantly on his behaviour during the incident, whilst participating in the various processes which preceded the hearing of these proceedings. His physical health has suffered significantly. His mental health has also suffered significantly. His marriage has been severely, adversely affected. He has sought and obtained medical help, including specialist help, and the assistance of a psychologist. Uncontradicted specialist medical reports tendered by consent at the hearing, including an independent expert psychiatrist's report, indicate that EFA's health remains precarious.
In his affidavit of 26 March 2021, EFA says:
I can confidently and sincerely say to the Tribunal that I will not find myself in a situation in the future in which I engage in conduct which is discreditable or which is liable to bring the profession into disrepute.
I am so deeply ashamed of and disappointed in myself. I am personally determined never to repeat this conduct or behaviour like it.
…
I have, since the incident, controlled my alcohol consumption.
We accept EFA's evidence.
We do not consider that there is any appreciable risk that EFA will engage, in the future, in behaviour similar to the behaviour he engaged in during the incident. EFA has a clear and detailed understanding of why his behaviour constitutes unsatisfactory professional conduct and he is truly repentant and contrite.
[6]
General deterrence - protecting the public from similar defaults by other practitioners
In considering the protection of the public from similar defaults by other practitioners, we must consider what disciplinary orders are needed to signal to other legal practitioners that behaviour which is reasonably likely to offend, anger, embarrass or humiliate a person in a social context, including sexualised behaviour, is not appropriate behaviour for a legal practitioner. It has been acknowledged throughout these proceedings that the consumption of a considerable quantity of alcoholic drinks by EFA on the night of the incident contributed to his lapse of judgment and consequent ill-judged behaviour.
[7]
The submissions in relation to the disciplinary orders.
The Council sought orders reprimanding EFA and requiring him to undertake counselling regarding counselling with respect to sexual harassment. The Council also sought the imposition of a fine.
The Council submitted, and we accept, that the Tribunal should bear in mind the objectives of Chapter 5 of the Legal Profession Uniform Law (NSW) ('the Act'), which is entitled Dispute Resolution and Professional Discipline and which says, in s 260:
260 Objectives
The objectives of this Chapter are -
(a) to provide a framework for the timely and effective resolution of disputes or issues between clients and lawyers or law practices; and
(b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and
(c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession.
The Council submitted that a reprimand would be appropriate because a reprimand marks the Tribunal's disapproval of EFA's conduct and identifies the professional standard, the establishment and maintenance of which protects the public (Prothonotary of the Supreme Court of New South Wales v Chapman [1992] NSWCA 292 at 10 per Cripps JA, Council of the New South Wales Bar Association v Levick (No 2) [2018] NSWCATOD 108 at [54]-[56]).
The Council pointed out that, unlike a caution, a reprimand is a 'disciplinary action' under s 148(e) of the Legal Profession Uniform Law Application Act 2014 (NSW) ('the Application Act'). One of the consequences of that is that a reprimand is required to be recorded on the Register of Disciplinary Action maintained by the Legal Services Commissioner under s 152 of the Application Act.
The maximum possible fine under the Act in relation to unsatisfactory professional conduct is $25,000. The Council sought a fine to further mark disapproval of EFA's conduct and to deter other members of the legal profession from behaving in a like manner. The Council, in its submissions, submitted that, whilst a fine is not damages, the Tribunal should, in fixing a fine, take into account prevailing community standards with respect to the impact of conduct such as EFA's upon the complainant.
It was submitted on behalf of the Respondent that, whilst the exchange between EFA and the male barrister during the incident had the potential to offend an onlooker, there was no evidence that anyone was, in fact, offended, including H.
The Respondent's submission highlighted the fact that EFA has consistently been genuinely remorseful for his conduct, and has always been aware and regretful of the fact that it embarrassed and offended H. EFA was not making a sexual advance to H, but was, as we found in the Stage 1 decision, including her in the horseplay he had engaged in with A, the male barrister.
The Respondent submitted that the incident was an isolated incident. The five character references submitted are unanimous in saying that the incident was well out of character for EFA. The experience of all of the referees is that EFA is respectful of others, including women, and has good relationships with female staff, clients and friends.
The Respondent's submissions emphasised that EFA has 'fundamentally altered his relationship with alcohol', and that the Tribunal can be confident that the conduct will never be repeated.
EFA has experienced negative impacts upon his relationships, his practice and his health as a result of the proceedings.
It was submitted that the appropriate order is that EFA be cautioned. This was said to be the proportionate response to the incident. It was submitted that no fine is necessary or appropriate.
It was argued that the published finding of unsatisfactory professional conduct in the Stage 1 decision, together with the extensive press coverage of the proceedings and the Stage 1 decision would be a sufficient deterrent for the profession.
It was argued that no personal deterrence is necessary in relation to EFA.
It is clear that, in some areas of EFA's life, the allegations have been taken out of context and EFA has experienced some of the consequences of that. It was argued that the imposition of a reprimand may lead to unpredictable and unintended consequences because, in effect, this incident can only be fairly judged in its precise context.
Given the insight shown by EFA into his conduct and the evidence of the character witnesses that it was out of character, it was submitted that orders requiring EFA to undertake counselling in relation to sexual harassment would be unnecessary.
[8]
Decision with respect to disciplinary orders
Had the incident involved an unwanted sexual advance, an attempt to obtain sexual (or other) co-operation by intimidation, threats or other pressure, or even a deliberate decision to humiliate anyone, then the disciplinary orders we would be considering would be more onerous than the orders we are considering in this decision. However, no such factors are present here. The incident was an ill-judged attempt by EFA, late in the evening, after consuming a considerable quantity of alcohol, to include H in a jokey greeting ritual engaged in by EFA with a friend. H was angered, offended, embarrassed and humiliated. EFA had not intended to anger, offend, embarrass or humiliate her, and he was appalled when he discovered that he had done so. It was apparent from the evidence adduced, including the video footage, that no-one except for EFA, A and H saw or heard that part of the incident which offended H.
EFA has clearly demonstrated, for the reasons set out above, that there is no need for any further personal deterrence in relation to him. We are very confident that he will never behave in a like manner again.
The marking of the degree of seriousness of the incident warrants the imposition of a reprimand rather than a caution.
We do not consider that general deterrence would be enhanced by the imposition of a fine. To the extent that it is possible to deter people from making ill-judged jokes in very poor taste, the awareness of this matter, and its outcome and consequences, is likely to be sufficient deterrence.
As we do not consider that EFA is at any risk of conducting himself in a similar way in the future, we do not consider that a counselling session is necessary.
[9]
Costs
Pursuant to Schedule 5, clause 23(1) of the Civil and Administrative Tribunal Act 2013, the Council is entitled to an order for costs.
[10]
Non-publication orders
The Civil and Administrative Tribunal Act 2013 (NSW) provides, in s 64:
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.
In Kostov v Ecclesia Housing Limited (No 3) [2018] NSWCATAP 221, an Appeal Panel of the Tribunal said:
9 However, section 64 must be read in context of the overall requirement that the proceedings of this Tribunal be conducted in public. Section 49 of the Act provides:
49 Hearings to be open to public
(1) A hearing by the Tribunal is to be open to the public unless the Tribunal orders otherwise.
(2) The Tribunal may (of its own motion or on the application of a party) order that a hearing be conducted wholly or partly in private if it 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.
10. In New South Wales there is a system of open justice. From time to time reports of decisions of courts and tribunals reveal circumstances pertaining to parties in proceedings of a personal nature, and some of which deal with a whole range of difficult circumstances. Whilst it is unfortunate that details of this kind are revealed in this way, this is a necessary concomitant of open justice.
11. There are many cases in this Tribunal where non-publication orders have been made under section 64 of the Act, but they are principally directed to ensuring confidentiality with respect to disciplinary proceedings taken against health practitioners or legal practitioners and concern the names and details of persons who are their patients or clients as well as the families of those patients and clients. It is rare indeed that the name of a practitioner against whom disciplinary proceedings are taken will be suppressed. See for example, Health Care Complaint Commission v Vo [2014] NSWCATOD 127. Of course, the circumstances of such proceedings are significantly different from those which apply to these proceedings.
There has been no suggestion that the existing non-publication order with respect to H or the other attendees at the dinner in July 2017 should be amended. The only question is whether the non-publication order with respect to EFA should be lifted.
The starting point for the consideration of this question is that disclosure of the name of a person who is the subject of disciplinary proceedings is expected to be made, consistent with the concept of open justice, unless there is a compelling reason for a non-publication order to be made in relation to that person's name.
The risk of a negative emotional reaction to disclosure, such as embarrassment or humiliation, on the Respondent's part, would not be an adequate reason for a non-publication order.
The risk of reasonably foreseeable negative impacts upon the Respondent's family from disclosure, such as embarrassment, and negative social impacts, would not, by themselves, be sufficient reason to make a non-disclosure order. They are factors to be weighed in consideration of the issue, but they do not weigh heavily.
EFA sought to maintain the non-disclosure order with respect to his name, although he acknowledged that some changes would have to be made to that order to accommodate the disciplinary orders and costs orders he anticipated that the Tribunal would make.
The Council initially took the position that the non-disclosure order should be lifted with respect to EFA's name. However, a detailed specialist medical report regarding EFA by an independent psychiatrist, Dr Olav Nielssen, was then provided. In the report, a diagnosis of Major Depressive Illness is given and the risk of suicide in the event of the lifting of the non-disclosure order is outlined. The report is consistent with other medical reports which have been provided to the Tribunal from medical and health practitioners who have been involved in the management of EFA's health in the period between the incident and the hearing of these proceedings. In light of the report, the Council did not pursue its request for the non-disclosure order to be lifted, and agreed that it was appropriate to retain it, but amend it to accommodate the disciplinary orders.
This is not a matter where the unsatisfactory professional conduct related to action taken in the course of the conduct of legal proceedings. There is no need to disclose EFA's name to warn future prospective clients or solicitors. We have found that EFA does not pose a risk to anyone, including his future clients, on account of the kind of conduct the subject of this matter.
In all of the circumstances, we will not lift the non-disclosure order with respect to EFA's name, but we will amend it to accommodate the disciplinary orders and the costs orders.
[11]
Orders
We make the following orders:
1. EFA is reprimanded.
2. EFA is to pay the Applicant's costs as agreed or assessed.
3. Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), and subject to order 4:
1. the disclosure of any of the names listed in the schedule to the Application filed on 3 December 2019 in this matter is prohibited.
2. the disclosure of the documents and evidence filed in these proceedings is restricted to the parties, the parties' legal advisors and the Respondent's insurer, insurance broker and medical advisors.
3. the Respondent is to continue to be referred to, in relation to these proceedings, as EFA.
4. the publication of the identity of the Respondent as a party to these proceedings and of any information tending to reveal his identity is prohibited except to the extent that such disclosure is required for purposes in connection with the Respondent's professional indemnity insurance arrangements or for medical reasons.
1. Orders (3)(a), (c) and (d) do not apply to the Applicant, or any member of the Applicant, or the New South Wales Bar Association, or any of their officers or employees for the purpose only of disclosing:
1. the Respondent's name;
2. the decisions, reasons for decisions 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 4(b) and 4(c) above
to any persons, bodies or entities listed in Schedule A (230686, pdf), in connection with the Bar Council's exercise of its functions under the Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014 (NSW) (as amended or substituted from time to time) (together, the Legal Profession legislation) and all regulations and rules made under or in connection with those Acts (as amended or substituted) including 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 and any judgment on appeal from a determination of a review panel.
1. For abundant clarity, any persons, bodies or entities listed in Schedule A (230686, pdf) receiving any information provided by the Bar Council or the Association in accordance with 4 above, receive that information subject to the orders in 3 above.
[12]
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
[13]
Amendments
05 July 2021 - The words 'or for medical reasons' added to Order 3(d).
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: 05 July 2021
Parties
Applicant/Plaintiff:
Council of the New South Wales Bar Association
Respondent/Defendant:
EFA
Legislation Cited (4)
Legal Profession Uniform Law (NSW), the Legal Profession Uniform Law Application Act 2014(NSW)