Council of the New South Wales Bar Association v Fitzgibbon

Evidence 11The Council relied on the following evidence: a) An Affidavit of Philip Allen Selth affirmed 15 December 2009, b) An Affidavit of Bernard Hardt sworn 2 November 2010, c) Affidavits of three Court reporters, Dorothy Collins sworn 7 February 2012, Leslie Veronica Burg sworn 7 February 2012 and Leonie Jean Dean sworn 15 February 2012. 12The Council also tendered a tender book which became Exhibit A and a second volume which became Exhibit B. 13The respondent read an Affidavit of himself dated 3 August 2010 and a second dated 16 November 2010 together with an Affidavit of Daphne Kennedy dated 10 August 2010. The respondent also relied on three medical reports of Dr Anthony Slowiaczek dated 9 August 2010, 10 August 2010 and 3 February 2012 which became Exhibit C1, C2 and C3 respectively. 14A document which had been referred to in the Affidavit of Mr Bernard Hardt but not annexed to it became Exhibit D. 15The respondent, Dr Slowiaczek and Mr Hardt were cross examined. The Court reporters who were deponents of the Affidavits referred to above were not required for cross examination as the Council conceded that transcript of proceedings can contain errors and may not always be correctly transcribed and some exchanges may not be recorded.

Relevant statutory provisions 16The Council alleged that the barrister engaged in unsatisfactory professional conduct as defined in Section 496 of the LPA and sought orders in accordance with Section 562 of that Act.

Jurisdiction 17No issue was taken with the Tribunal's jurisdiction to hear the Application for Determination. The barrister was at the relevant time an Australian legal practitioner to whom Chapter 4 of the LPA applied and an Australian lawyer within the meaning of the Act. In respect of both grounds the relevant conduct occurred within New South Wales. The barrister no longer holds a practising certificate but the relevant conduct occurred while he did hold such a certificate and thus the Tribunal has jurisdiction (Sections 499 and 500 LPA). No issue was taken with the investigation carried out by the Council nor the bringing of the application. The Tribunal finds it has jurisdiction here to hear and determine this matter.

Unsatisfactory professional conduct 18Unsatisfactory professional conduct was introduced into the law by Part 10 of the Legal Profession Act 1987 (New South Wales) and is a creature of statute. The present Section 496 replaced Section 123 of the Legal Profession Act, 1987 and is in similar terms. The concept was introduced to address conduct of lawyers falling short of serious professional misconduct, such as delay and negligence which were not until then subject of disciplinary action (see New South Wales Bar Association v Bland [2010] NSWADT 34 at [190]). 19Section 496 is in Chapter 4 of the Act. One of the purposes of that chapter is: "To promote and enforce the professional standards, competence and honesty of the legal profession". (LPA Section 494(1)(b)). 20Unsatisfactory professional conduct has three elements: a) The conduct must occur in the connection with the practice of law, b) It must fall short of a standard of competence and diligence. c) That standard is set by reference to what a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. (LPA Section 496). 21There was no dispute in the present matter that the relevant conduct occurred in connection with the barrister's practice of law. The definition of unsatisfactory professional conduct is an inclusive one. A finding of unsatisfactory professional conduct does not require an absence of both competence and diligence. The single standard of competence and diligence has two components. If either component is missing there has been a failure to achieve the requisite standard (Fitzgibbon v Council of the New South Wales Bar Association (2011) NSWCA 165 at 14-16). The Council did not rely on any lack of diligence on the part of the barrister. 22As was held by the Tribunal in Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 at [51]: 51Thus in order to satisfy the requisite standard of diligence and competence under s 496 it is not necessary for the legal practitioner to be correct in all advice given, submissions made or forensic decisions taken. It will be sufficient if the legal practitioner has exercised the diligence and competence that a member of the public is entitled to expect of a reasonably competent practitioner in giving the advice, making the submissions or taking the forensic decisions. The authorities indicate that the following, among other things, are reasonably to be expected of legal practitioners: a)Basic legal knowledge and keeping abreast of developments in the legal practitioner's field of practice - Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 751; b)Providing assistance to the judge in determining issues including by referring to relevant authorities and statutory provisions. Simply articulating a position without any considered submissions or analysis may, depending on the circumstances, be insufficient - Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325, [2008] VSCA 86 at [194], Legal Profession Complaints Committee v De Braekt [2011] WASAT 1 at [97]- [99].

Background facts 23The background facts were substantially uncontroversial. The barrister prepared submissions for and appeared in the Court of Criminal Appeal on behalf of a Mr Hardt who had been convicted in the Land & Environment Court of offences against Section 144(1) of the Protection of the Environment Operations Act, 1997 ("PEOA") of permitting his land to be used as an unlawful waste facility. The barrister had not appeared for Mr Hardt in the proceedings in the Land & Environment Court which were heard between 13 and 15 March 2006. Mr Hardt had pro bono representation by a solicitor and a barrister. On 19 July 2006 the Chief Judge of the Land & Environment Court published reasons finding Mr Hardt guilty. Proceedings as to sentence were heard on 30 April 2007. Again Mr Hardt was not represented by the barrister but was represented pursuant to a grant of legal aid. On 1 May 2007 Mr Hardt was fined and ordered to pay costs in the agreed sum of $105,000 and to conduct some agreed remediation of the property. 24On or about 9 May 2007 the barrister was briefed by Ms Daphne Kennedy a solicitor. The barrister conferred with Ms Kennedy and Mr Hardt on 14 May 2007 and provided an advice in relation to the matter on 15 May 2007 (Exhibit A, P40-42). 25A grounds of appeal signed by Ms Kennedy but apparently drafted by the barrister was filed on or about 6 June 2009 (Exhibit A, P46-49). 26The barrister prepared submissions in support of those grounds of appeal but they were mistakenly dated 6 May 2007 and not 6 June 2007 (Exhibit A, P50-56). It is these submissions that are the basis of ground 1 (a) in the application for original determination. 27On 23 July 2007 the barrister signed a notice under Section 78B of the Judiciary Act 1903 (Exhibit A, P58-64). The barrister indicated in correspondence with the Council that the submissions should not be read without reference to that document. 28On 10 September 2007 counsel for the EPA signed and filed submissions in reply (Exhibit A, P67-136). Those submissions highlighted what counsel for the EPA believed to be extensive deficiencies in the grounds of appeal and the submissions in support thereof prepared by the barrister. For example with respects to grounds 1, 2, 7 and 8 of the appeal it was noted that a claim of illegal entry was irrelevant unless it is also claimed that the evidence admitted in the hearing had been improperly obtained and should not have been admitted. It was pointed out that the submissions of the barrister did "not identify the evidence to which objection would now be taken" (Exhibit A, P85). 29The submissions of the EPA also claimed that grounds 3, 4, 5 and 6 were without foundation. It was stated that ground 9 was not understood (Exhibit A, P92) and that there was uncertainty as to the content of ground 11 (Exhibit A, 94). It was further stated that ground 11 misstated the primary judge's construction of Section 144 of PEOA (Exhibit A, P107), that ground 12 was a reiteration of grounds 10 and 11 (Exhibit A, P116) that ground 18 was unable to be understood with any certainty (Exhibit A, P132) while that grounds 19 and 20 were not available as Mr Hardt himself had raised the conditions of the development consent by way of defence in the proceedings below and the trial judge could not have erred by taking that material into account (Exhibit A, P134). 30The barrister sometime before 17 October 2007 prepared and signed further submissions in reply to submissions from the respondent (Exhibit A, P141-145) it is these submissions which form the basis of ground 1(b). 31Sometime in late November 2007 the barrister requested Ms Kennedy seek an adjournment of the Court fixture because he was feeling unwell. This was not consented to and no formal application was actually made to the Court. 32The appeal was heard on 29 November 2007 by Giles JA, Grove J and Harrison J. It was the oral submissions made the barrister at this hearing which formed the basis of ground 2 of the application for original decision. 33During the making of those oral submissions the barrister withdrew ground 4 of the appeal at the commencement of the appeal and during the course of the hearing abandoned grounds 1, 2, 3, 5, 6, 7, 8 and 9. 34Judgment was handed down on 12 December 2007. The primary judgment was written by Giles JA. Those grounds which had not been either abandoned or withdrawn were rejected and the appeal was dismissed with costs. In the course of his judgment Giles JA was critical of the Notice of Grounds of Appeal, the written submissions, the written submissions in reply and the oral submissions. The Judge directed that the Registrar of the Court send a copy of the reasons to the President of the New South Wales Bar Association "for such action as the President might consider appropriate". Grove J agreed with the judgment and the direction as did Harrison J (Exhibit A, P221-222). 35Thereafter the Legal Services Commissioner initiated a complaint by record of decision dated 17 January 2008. No point has been taken that the investigation of that complaint nor the bringing of the application for original decision did not comply with the provisions of the LPA. 36There was a factual dispute as to whether Mr Hardt had instructed the barrister to bring an appeal which in effect challenged the right of the agents of the Environment Protection Agency to enter into his property. These have been referred to as constitutional grounds and civil rights grounds. Ms Kennedy and the barrister claimed that Mr Hardt having consulted a friend, Mr Anning, had instructed them to make such a claim. Mr Hardt in his Affidavit, sworn 2 November 2010, conceded that the barrister told him he could not guarantee the outcome of the appeal but denied he had ever insisted on any constitutional defence being raised. Indeed Mr Hardt said he was not aware of what the phrase meant. In cross examination Mr Hardt did not concede he wanted the barrister to raise a defence based on civil rights or constitutional points but he did agree he was very upset with the decision of the Land & Environment Court and with the limited defence run on his behalf in those proceedings. Mr Hardt agreed he told the barrister he wanted a full appeal aimed at correcting the wrongs which he perceived had been done to him in the Court below. 37With respect to this factual dispute the Tribunal accepts that although Mr Hardt may not have used the terminology of civil rights or constitutional defence he did instruct the barrister to pursue these points on the appeal despite being advised that they may not be ultimately successful. 38There was a further minor factual issue with respect to the lodging of the special leave to appeal in the High Court. The barrister maintained that it was Mr Hardt's decision to lodge this application while Mr Hardt said he was unaware it had even been unsuccessful until he found out by some indirect means. We do not think it necessary to resolve this factual dispute as it has no direct bearing on the issues before us.

Background of the barrister 39The barrister was admitted as a barrister and solicitor of the Supreme Court of New Zealand on 3 February 1975. Whilst in New Zealand he practiced as a litigation lawyer in Christchurch. On 5 May 1985 he was admitted as a solicitor in Victoria and on 22 May 1985 was admitted as a solicitor in New South Wales. On 18 December 1987 he was admitted as a barrister. For the major part of his career the barrister operated from chambers in Newcastle and appeared primarily in criminal matters. 40In February 1997 the barrister was diagnosed with cancer of the lower bowel. He was operated on by Dr T Kelly and as a result is required permanently to use a colostomy bag. The barrister had 6 months of chemotherapy in late 1997 and subsequent to that treatment noted he had some memory difficulties. 41The barrister sought help from a psychiatrist Dr Martin who practiced at Hornsby and when he retired he was referred to Dr Slowiaczek who remains the barrister's treating psychiatrist. In May 2007 the barrister noticed some bleeding from the bowel and his general practitioner referred him back to Dr Kelly who reviewed him on 27 July 2007. Dr Kelly arranged for a colonoscopy and two polyps were removed in early 2008. 42The barrister has a 30 year old daughter, Amanda who as a result of oxygen deprivation at birth is intellectually disabled. She also suffers from schizophrenia. Dr Slowiaczek gave evidence that when the barrister consulted him it was normally in the company of his daughter as she was also his patient. The doctor's evidence was that the majority of each consultation was devoted to the care and treatment of Amanda. 43From May to November of 2007 various members of the respondent's family suffered from recurrent bouts of flu. The barrister also suffered recurring urinary infections from August to December of 2007. 44In September 2007 the barrister's wife Elva was referred for an ECG which revealed she had a heart condition which ultimately required surgery in 2008. 45Unfortunately the medications given to Amanda for her flu infections in May to December 2007 interfered with her other medication and made her care much more difficult. Most of this care fell onto the barrister's shoulders because of his wife's illness. 46With respect to what occurred at the oral hearing on 29 November 2007 and the barrister's background there was an issue which revolved around the medication which was prescribed for him by Dr Slowiaczek. In his reports (Exhibit C 1, 2 and 3) particularly that of 3 February 2012 the doctor opined that the barrister had suffered a temporary impairment of brain functioning during the course of the oral hearing as a result of what he referred to as the rebound effect of his medication, Ritalin. The doctor was cross examined particularly by reference to the fact that the effect had not been referred to in either of his two earlier reports nor in his treating notes. It was also suggested that as the barrister had been on this medication for a number years he would have been well aware of the rebound effect. 47The Council did not present the Tribunal with any medical evidence to contradict the doctor's evidence. Dr Slowiaczek is the barrister's treating psychiatrist and has been for many years. The Tribunal has no difficulty accepting the doctor's evidence. We note, however, that it is mainly directed towards the oral submissions which are the basis of ground 2

Ground 1 - written submissions and written submissions in reply 48As noted above the Further Amended Reply to an Application contained an admission "that the outline of submissions which he drafted in the appeal of Hardt v Environmental Protective Authority proceedings 3255/2007 in the Court of Criminal Appeal failed to reach a standard of competence that a member of the public was entitled to expect of a reasonably competent Australian barrister". 49When the barrister was cross examined he did not seek to withdraw the partial admission contained in the Further Amended Reply to an application but stated it was a question of degree.

Submissions of the applicant 50In oral submissions counsel for the applicant stated that the primary allegation with respect to the written submissions was that they failed to reach the requisite standard in that they failed to assist the Court to understand the grounds of appeal. Counsel for the applicant also relied on the partial admission already referred to. 51The Tribunal was directed to the comments made by all three judges of the Court of Appeal and to the criticisms in the reply filed by the respondent to that appeal which are outlined above. 52It was submitted that the submissions did little more than restate the grounds of appeal with reference to cases but no real explanation of the basis of the appeal points.

Submissions on behalf of the barrister 53Counsel for the barrister did not seek to withdraw the partial admission contained in the Further Amended Reply. He frankly admitted that the submissions were not good. It was argued, however, that there was no negligence nor lack of diligence on behalf of the barrister. It was noted there was no suggestion of any lack of competence in any general sense in the conduct of the barrister over the course of his career both before and after the events which gave rise to Ground 1. It was submitted that the failure of the written submissions to reach the appropriate standard was caused not by a lack of competency on behalf of the barrister but by his ill health and the ill health of his family which interfered with his ability to concentrate on and draft appropriate submissions. In these circumstances it was suggested that, on the proper construction of the definition of "unsatisfactory professional conduct" in s 496 of the LPA, there had been no failure to reach the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner because the failure to reach the standard was explained by circumstances other than incompetence.

Consideration of Ground 1 54The barrister does not claim that he was so ill over the period where the written submissions were prepared that he was unable to recognise that his work was below standard. The barrister has for a long time been treated for ADHD but with respect to the written submissions neither he nor his treating psychiatrist suggest the failure to meet the appropriate standard was a result of any complications with his medication. 55We find that the submissions in support of the grounds of appeal were below the appropriate standard in that they did not do much more than simply repeat the grounds of appeal. We do not think that the submissions are made any clearer by what is contained in the Section 78B notice and we agree with the comments made by Giles JA that the written submissions in reply did not assist and indeed "they compounded the difficulties with the grounds of appeal" (Exhibit A, P211). 56We note that the deficiencies in the Grounds of Appeal themselves do not form part of the application. It is clear from the comments from all three judges of the Court of Criminal Appeal that the submissions did not comply with the rules, did not enable the respondent to the appeal to understand and meet the grounds of appeal nor did they assist the Court to understand the appellant's complaint and thus enable it to determine the appeal. 57We acknowledge that from May to November 2007 the barrister faced a great number of stresses including physical and mental ill health both of himself and members of his family. Such matters can be relevant to whether a finding of unsatisfactory professional conduct should be made (New South Wales Bar Association v Butland (2008) NSWADT 120 at [37]) but usually only if they are such as to render the practitioner incapable of controlling his or her conduct (see Butland at [39]). As noted in that case at [41], however, the primary function of disciplinary proceedings is the protection of the public and the administration of justice by ensuring that practitioners live up to high standards expected of them whatever their personal circumstances and difficulties. 58We do not accept that the failure to meet the appropriate standard is excused by the barrister's distressing personal circumstances at the relevant time. We find that given the period of time the barrister had to reflect on and revise his written submissions they do fall short of the standard of competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. So much was conceded in the barrister's Further Amended Reply. This finding does not mean we do not accept that the barrister's personal circumstances hindered his ability to prepare written submissions which were of an appropriate standard. 59We accept that the barrister has not been shown to suffer from any general lack of competence. Nonetheless, it is our conclusion that in preparing the written submissions in support of the grounds of appeal and the written submissions in reply, the barrister engaged in conduct which amounted to unsatisfactory professional conduct.

Ground 2 - oral submissions 60The primary evidence relevant to this ground is the transcript of the hearing in the Court of Criminal Appeal and we note the concession properly made on behalf of the Council noted above.

Submissions of the applicant 61On behalf of the Council it was submitted that in oral argument the barrister had failed to present structured or reasoned submissions to assist the Court and that he appeared to be unable to appreciate the relevance of addressing the individual grounds of appeal on their merits. Further it was said he had failed to answer questions from the bench in a way which assisted the Court to understand the grounds of appeal and the written submissions.

Submissions on behalf of the barrister 62On behalf of the barrister it was submitted that he had been subjected to a torrid interrogation particularly by the presiding Judge. 63The barrister also referred the Tribunal to his general ill health at the time which he sought to deal with by requesting his solicitor to attempt to obtain an adjournment of the matter. Reliance was also placed on the evidence of his treating psychiatrist which related to the rebound effects of his medication. Reference was made to the affidavit of Mr Hardt of 19 December 2007 wherein he stated that he thought the Judge of the Court of Criminal Appeal had subjected his barrister to a verbal battering which made him feel physically ill (Exhibit A, P224). Mr Hardt confirmed this evidence when he was cross examined.

Consideration of Ground 1 64Even reading the transcript as it appears in Exhibit A it is clear that there were a great number of interruptions from the bench and that the barrister was not always given an opportunity to develop his train of thought or complete his answer to a judicial question. 65We accept the evidence of Dr Slowiaczek with respect to the detrimental impact of the rebound effect of the timing of the barrister's medication would have had on his oral performance on the day in question. The Tribunal also accepts Dr Slowiaczek's oral evidence that the reception the barrister received was enough to rattle a person who was at the time quite mentally strong. 66We also accept the evidence of Mr Hardt who was present in the Court that what he saw and heard made him feel physically unwell. We note that the lay member of our Tribunal after reading the transcript commented to the parties during the hearing that the interruptions appeared to him to be very rude. 67A major difficulty with the presentation of the oral argument was related to the deficiencies in the written submissions. In the circumstances we find that although it may be possible in some circumstances to rectify deficient written submissions by brilliant oral submissions, the written submissions that form the basis of ground 1 were really incapable of being saved. As noted by Harrison J "This appeal was not one in which any other outcome was likely and the patent deficiencies in its presentation are unrelated to the final result" (Exhibit A, P222). 68In those circumstances and given the finding of unsatisfactory professional conduct in respect of the written submissions, we are not satisfied that the oral submissions based as they were upon the unsatisfactory written submissions should be independently characterised as also falling short of the requisite standard. Accordingly, we do not find ground 2 is made out.

Conclusion 69In reaching our conclusion in this matter the Tribunal has borne in mind the decision of Briginshaw v Briginshaw (1938) 60 CLR 336. In particular we have arrived at our conclusions having regard to the seriousness of the allegations made against the barrister and the gravity of the consequences following from our findings. 70In summary the Tribunal: Makes a finding of: a) Unsatisfactory professional conduct in relation to Ground 1. b) Otherwise dismisses the application. 71To permit the parties to adduce further evidence and make submissions with respect to the appropriate protective orders, the Tribunal makes the following directions: a) The applicant to file and serve any further affidavits on which it intends to rely in relation to the appropriate orders on or before 17 April 2012. b) The respondent to file and serve any further affidavits on which he intends to rely in relation to appropriate orders on or before 8 May 2012. c) The applicant to file and serve any affidavits in reply on or before 15 May 2012. d) The matter is listed for directions on 16 May 2012 at 9.30am with a view to it being set down for hearing of the appropriate orders to be made by the Tribunal.

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: 27 March 2012