Council of the New South Wales Bar Association v GWY [2026] NSWCATOD 23;

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2

Clyne v Bar Association (1960) 104 CLR 186; [1960 HCA 40

Coe v NSW Bar Association [2000] NSWCA 13

Coe, Re (unreported Legal Services Tribunal, 19 May 1997)

Council of the Law Society of NSW v Bunton [2020] NSWCATOD 67

Council of the Law Society of NSW v Powell [2019] NSWCATOD 24

Council of the New South Wales Bar Association v EFA (2021) 106 NSWLR 383; [2021] NSWCA 339

Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39

Council of the New South Wales Bar Association v Waterstreet [2024] NSWCATOD 47

de Robillard v Council of the New South Wales, Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299

Federal Commissioner of Taxation v Consolidated Media Holdings (2012) 250 CLR 503; [2012] HCA 55

Graham v Legal Services Commissioner (No 1) [2014] QCA 305

Haggerty v Parry [2013] FCCA 615

HP Mercantile Pty Ltd v Commissioner of Taxation (2005) 143 FCR 553; [2005] FCAFC 126

Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563

Kostas v HIA Insurance Services Pty Ltd (2010) 241 CLR 390; [2010] HCA 32

Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27

Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129

Legal Practitioners Conduct Board v Ardalich [2005] SASC 478

NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284

NSW Bar Association v Mack [2024] NSWCATOD 120

NSW Bar Association v Maddocks [1988] NSWCA 102

Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529; [2006] HCA 11

Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28

Prothonotary v Comeskey [2018] NSWCA 18

Prothonotary v Montenegro [2015] NSWCA 409

R v Khazaal (2012) 246 CLR 601; [2012] HCA 26

SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55

Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513; [1987] HCA 48

SZGIZ v Minister for Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71

SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362; [2017] HCA 34

Thom, In re; Ex parte The Prothonotary (1962) 80 WN (NSW) 968

Travelex Ltd v Commissioner of Taxation (2009) 178 FCR 434; [2009] FCAFC 133

Travelex Ltd v Commissioner of Taxation (2010) 241 CLR 510; [2010] HCA 33

Weir, Re in the marriage of [1992] FamCA 69; (1992) 16 Fam LR 154

Herzfeld, P and T Prince, Interpretation (3rd ed, 2024, LawBook Co)

NSW Law Reform Commission, Report 70: Scrutiny of the Legal Profession: Complaints Against Lawyers (1993)

Pearce, DC, Statutory Interpretation in Australia (10th ed, 2024, LexisNexis)

Council of the New South Wales Bar Association (Applicant)

K Richardson SC (on 3 November 2025 only) / B Anniwell (Respondent)

Orders made on 21 February 2025 by consent under s 64 of the Civil and Administrative Tribunal Act 2013 (NSW) anonymising the respondent's name and prohibiting:

(a) the disclosure of any of the information listed in the schedule to the Application for Disciplinary Findings and Orders filed in these proceedings;

(b) the publication or broadcast of these proceedings;

(c) the disclosure of the documents and evidence filed in these proceedings is restricted to the parties, the parties' legal advisors, the Respondent's insurer, insurance broker and medical advisors, and if required, the witnesses; and remain in force.

An order made on 25 September 2025 under s 128 of the Evidence Act in respect of the evidence given by the respondent about a misleading statement in a loan application to the National Australia Bank in 2019, remains in force.

1. The Council of the New South Wales Bar Association ("Bar Association") has made an application for disciplinary findings and orders against GWY, who is a barrister ("the respondent") filed 19 February 2025. That application was superseded by an amended application filed on 4 September 2025 and a further amended application filed on 23 October 2025 ("Further Amended Application").
2. The Further Amended Application alleges that the respondent engaged in professional misconduct within the meaning of s 297(1)(b) and/or s 298(b) of the Legal Profession Uniform Law (NSW) ('the Uniform Law"). The conduct is alleged to have occurred in relation to proceedings in the Federal Circuit Court of Australia between the respondent and his former partner following their separation in December 2016 ("Family Proceedings"). The respondent's former partner was the Complainant ("the Complainant").
3. Disciplinary orders are sought by the Bar Association under s 299(1)(b) and s 302(1) of the Uniform Law. However, this decision deals only with the issue of whether the allegations in the Application have been proven. The question of disciplinary orders will be the subject of a further hearing.
4. The Bar Association bears the onus of proving the allegations in the Further Amended Application to the required standard; that is, proof on the balance of probabilities. Only clear and persuasive evidence will meet the standard of proof required: see Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. Where a finding is made as to whether or not a fact has been proven, it should be assumed that the finding has been made on the balance of probabilities on clear evidence. In the present case, the respondent has admitted all of the conduct as pleaded. We are, in any event, satisfied to the requisite standard, on the evidence that the facts and conduct of the respondent is proven.
5. The contest in this case between the parties is the characterisation of that conduct.

1. The Bar Association relied on the following two affidavits:

(1) Affidavit of Stephanie Mancell and Exhibit SM-I affirmed 20 February 2025; and

(2) Affidavit of Chloe Mae Ellis and Exhibit CME-I sworn 5 March 2025.

This material included the contents of the court file in the Family Proceedings including pleadings, affidavits, written submissions and orders made. There was also a transcript from the hearing on 9 May 2018.

1. The respondent relied on his affidavit affirmed 17 June 2025 ("2025 affidavit") and was cross-examined at the hearing.

1. The respondent was admitted as a legal practitioner on 5 July 1985 and has held a practising certificate as a barrister without restrictions since 11 June 1988.
2. The respondent and Complainant commenced a de-facto relationship in 2002. They have two adult children from the relationship.
3. Sometime after June 2005, they purchased a property in Wollongong ("the Wollongong Property") which they subsequently sold in March 2014.
4. From January 2014 until the time of their separation, the respondent and Complainant were living together with their two children in a home in Sydney owned by the respondent's father ("the Property"). Following the death of the respondent's father in November 2016, the respondent inherited the Property. The Property was the primary asset of the relationship.
5. The respondent and Complainant separated in December 2016.
6. At the Complainant's request, the respondent agreed to an undertaking as communicated by his solicitor to the Complainant's solicitor in a letter dated 21 March 2017 as follows ("the Undertaking"):

"We are instructed by our client to provide his undertaking that he will not sell, dispose of or otherwise encumber the [Property] until such time as this matter is finalised either by agreement or by court orders."

1. In October 2017, the Complainant commenced Family Proceedings against the respondent.
2. Except for a short period between 23 February 2021 and late April 2021, the respondent was legally represented in the Family Proceedings and in related enforcement proceedings.
3. The respondent filed several affidavits in the Family Proceedings. In his first affidavit dated 8 November 2017 ("2017 affidavit") filed with his initial Response to the application, the respondent stated on oath:

"I received a further sum of $70,000 in 2012 being a payment as beneficiary of the estate of my late mother ...That money was applied to exterior renovations carried out on [the Wollongong Property]..."

1. On 4 May 2018, the Court made an interim order for partial property settlement in the sum of $50,000. The Court also noted that the respondent was released from the Undertaking to the extent necessary to comply with that order.
2. On 20 August 2019, the Court made another order for a partial distribution of funds to the Complainant of $150,000 in two tranches: $5,000 within 4 days of the date of the orders; and $145,000 to be paid within 28 days. On that occasion, the respondent sought another interim order that he be "released from the undertaking not to deal with the Property in order to comply with the orders made by the Court". The Court did not make that order.
3. The respondent made a payment to the Complainant of $5,000 on 20 August 2019.
4. The respondent filed a financial statement under r 24.02 of the Federal Circuit Court Rules 2001 (Cth) ("FCCR") on 28 August 2019.
5. The respondent made the second payment to the Complainant of $145,480 on 4 October 2019.
6. In November 2019, the respondent obtained a mortgage from the National Australia Bank ("NAB") over the Property ("NAB mortgage"). On 5 December 2019, the NAB opened a bank account linked to the mortgage and on 6 December 2019, the respondent drew down $334,103.40.
7. This receipt of this drawdown was a substantial change to the respondent's financial position but he did not amend his financial statement or affidavit of financial circumstances at this time.
8. In June 2020, the respondent disclosed the existence of the NAB mortgage on a call-over information sheet prepared for Court.
9. On 16 July 2020 the Complainant's solicitors sent a letter to the respondent's solicitor enclosing a document relating to the administration of the estate of the respondent's mother. The Complainant's solicitor noted the information in the document was inconsistent with the 2017 affidavit and sought clarification about the amount of the inheritance received from the respondent's late mother's estate, including details of how that amount was spent and requesting details of the bank account the inheritance was deposited into.
10. On 23 September 2020, the respondent made an affidavit ("September 2020 affidavit") in which he stated on oath:

"I had previously recalled that inheritance from my [sic] estate of my late mother was $70,000. I have subsequently been provided a copy of the solicitors file who acted in my mother's probate which indicates I received $58,772.72 in May 2010 and a further $173,255.53 in October 2010. Annexed and marked "B" is a copy of the relevant solicitors trust account statement. All these monies were applied to home renovation, retiring existing debt including credit card and tax liabilities and general to financial support for the family." [sic]

1. Orders were made by the Court on 24 September 2020 for the respondent to make full and frank disclosure by 5 November 2020; an order which required the respondent to disclose, by 5 November 2020, documents evidencing his spending of the inheritance from his mother's estate as referenced in his 23 September affidavit (noting the same had been requested by the Complainant in July 2020); a copy of the NAB mortgage over the Property; and his tax returns and Notices of assessment for the 2018-2019 years ("24 September orders").
2. The respondent did not disclose the documents required pursuant to the 24 September orders.
3. The Family Proceedings were ultimately determined at an undefended hearing on 23 February 2021 (at which the respondent was not legally represented but appeared and made submissions for himself). An ex tempore judgment was delivered. The respondent was ordered to pay the Complainant the sum of $980,931 by 24 April 2021. The Court also ordered that the parties were to provide any submissions to the Court on the question of whether the papers should be referred to the New South Wales Legal Services Commissioner and/or the New South Wales Bar Association to consider whether the respondent's failure to comply with his legal duties of full and frank disclosure constituted unsatisfactory professional conduct, or professional misconduct, or should otherwise be dealt with by those bodies.
4. On 16 April 2021, the Complainant lodged her complaint against the respondent to the Commissioner who subsequently referred it to the Bar Association.
5. On 2 June 2021, following receipt of submissions by the parties, the Court delivered a second decision and ordered that a copy of the decisions in the matter be referred to the Bar Association and that access be granted to the Bar Association to any and all documents filed by any party in the proceedings including transcripts.

1. In summary, the conduct of the respondent was pleaded in the Further Amended Application as follows:

Ground 1: The respondent failed to comply with his obligations to provide a full and frank financial disclosure in the Family Proceedings. In particular:

(a) the respondent failed to accurately disclose monies that he inherited from his mother's estate;

(b) the respondent failed to disclose other financial matters, being

(i) a copy of the NAB Mortgage,

(ii) income tax returns and assessments, and

(iii) bank statements.

Ground 2: The respondent breached the Undertaking in that, in about November 2019, the respondent without notice to or consent of the Complainant or the Court encumbered the Property with a mortgage and on 6 December 2019, drew down the sum of $334,103.40 in circumstances where the respondent had already paid the amounts owing to the Complainant pursuant to the orders made on 20 August 2019, and the sum drawn down was in excess of the amount required to comply with the orders made on 20 August 2019.

Ground 3: The respondent failed until 19 October 2022 to pay the Complainant interest after she consented to an extension of time to pay the sum of $980,931 by no later than 7 May 2021.

Ground 4: By reason of the conduct the subject of Grounds 1,2 and/or 3 taken together, the respondent has engaged in professional misconduct.

1. The Bar Association also pleaded that the conduct in each of Grounds (1)(a), (1)(b), 2, 3 and 4 constituted a breach of rules 8(a), 8(b) and/or 8(c) of the Legal Profession Uniform Conduct (Barristers) Rules 2015 ("Barristers Rules").
2. Up until the filing of the Further Amended Application, the Bar Association also contended that each of Grounds 1, 2 and/or 4 constituted professional misconduct within the meaning of ss 297(1)(a) or 297(1)(b) and/or s 298(b) of the Uniform Law or, in the alternative, unsatisfactory professional conduct within the meaning of ss 296 and/or 298(b) of the Uniform Law. It was further contended that Ground 3 constituted unsatisfactory professional conduct within the meaning of s 296 and/or 298(b) of the Uniform Law. Inherent in the Bar Association's case was a contention that the conduct of the respondent occurred "in connection with the practice of law".
3. Various concessions and admissions were made by the respondent very early in the proceedings and further admissions were made leading up to and including the hearing. The respondent ultimately:

(1) admitted all of the pleaded conduct in Grounds 1, 2, 3 and 4;

(2) admitted that the pleaded conduct in Grounds 1(a) and (b), 2 and 3 was in breach of r 8(c) of the Barristers Rules but denied it breached r 8(a) or 8(b) of the Barristers Rules; and

(3) admitted that he was guilty of unsatisfactory professional conduct in respect of each of Grounds 1, 2, 3 and 4, but denied that his conduct constituted professional misconduct.

1. The respondent also contended that his conduct was conduct "in connection with the practice of law" for the purposes of ss 296 and 297(1)(a).
2. On the first day of the hearing on 25 September 2025, the Tribunal raised a number of queries with the parties including about the scope and construction of s 296 and s 298 of the Uniform Law. The parties were directed to prepare written submissions and the matter was listed for a further hearing for oral closing submissions.
3. As a result of the matters raised, at the resumed hearing the Bar Association sought leave to further amend its application pursuant to s 140 of the Legal Profession Uniform Law Application Act 2014 (NSW) which provides that the Tribunal may vary the disciplinary application so as to omit allegations or include additional allegations if satisfied that it is reasonable to do so having regard to all the circumstances. Without limiting the matters the Tribunal may take into account, the Tribunal is to have regard to whether varying the application will affect the fairness of the proceedings.
4. By its Further Amended Application, the Bar Association resiled from the pleaded position up to that point by: withdrawing its alternative contention in Grounds 1, 2, and/or 4 and its primary contention in Ground 3, that the respondent's conduct constituted unsatisfactory professional conduct under s 296 or for the purposes s 298(1)(b) of the Uniform Law; and no longer relying on s 297(1)(a) of the Uniform Law as a basis for a finding of professional misconduct. Instead the Further Amended Application relied solely on the allegation that the respondent was guilty of professional misconduct within the meaning of s 297(1)(b) of the Uniform Law in relation to Grounds 1, 2 and 4. The effect of the Bar Association's new position was that it contended the only option available to the Tribunal was to characterise the respondent's conduct as professional misconduct, or, if the Tribunal was not so satisfied, to conclude the Bar Association's application failed altogether. This was a significant shift in the Bar Association's case.
5. Necessarily inherent in the amendments (although not expressly pleaded nor referred to in submissions until closing), was a contention that the respondent's conduct did not occur in connection with the practice of law.
6. Ordinarily the Tribunal would not have allowed such a late amendment to the pleaded case: the evidence had closed and extensive submissions had already been filed and there was only closing submissions to be heard. However, in the circumstances where there was no objection to the amendments by the respondent; the amendments were directed solely to the issue of the Tribunal's characterisation of the respondent's conduct within the statutory regime; and the respondent had the opportunity to substantively address these matters, leave was granted to the Bar Association to amend.
7. The Bar Association articulated the remaining issues as:

(1) Whether the respondent's conduct the subject of grounds 1, 2, 3 and 4 constitute a breach of r 8 of the Barristers Rules;

(2) Whether the respondent's admitted conduct the subject of grounds 1(a), 1(b) and 2 of the Further Amended Application constitute professional misconduct; and

(3) Whether ground 4 is established, and if so, whether the conduct amounts to professional misconduct.

1. The respondent maintained his contention that despite the amendment to the Bar Association's case, under s 302(3) of the Uniform Law, it remained open to the Tribunal to make findings of unsatisfactory professional conduct.

1. The Uniform Law commenced on 1 July 2015. The objectives of the Uniform Law are as follows:

3 Objectives

The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by -

(a) providing and promoting interjurisdictional consistency in the law applying to the Australian legal profession; and

(b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and

(c) enhancing the protection of clients of law practices and the protection of the public generally; and

(d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and

(e) promoting regulation of the legal profession that is efficient, effective, targeted and proportionate; and

(f) providing a co-regulatory framework within which an appropriate level of independence of the legal profession from the executive arm of government is maintained.

1. The provisions relevant to this case are set out in Ch 5 (ss 260-322) which is headed "Dispute resolution and professional discipline". The objects of Ch 5 are set out in s 260 as follows:

(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.

1. Section 6 of the Uniform Law headed "Definitions" states:

professional misconduct- see section 297

unsatisfactory professional conduct - see section 296

1. As noted by the Court of Appeal in Council of the New South Wales Bar Association v EFA (2021) 106 NSWLR 383; [2021] NSWCA 339 (Bathurst CJ, Leeming JA and Simpson AJA) ("EFA") at [18], the Uniform Law draws a distinction between "unsatisfactory professional conduct" and "professional misconduct".
2. Sections 296 and 297 of the Uniform law provide:

296 Unsatisfactory professional conduct

For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer 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 lawyer.

297 Professional misconduct

(1) For the purposes of this Law, professional misconduct includes -

(a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice.

(2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters.

1. Numerous decisions have considered the type of conduct that might justify such a finding. In EFA, the Court of Appeal stated at [169]:

"... The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character."

298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct

Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct -

(a) conduct consisting of a contravention of this Law, whether or not -

(i) the contravention is an offence or punishable by way of a pecuniary penalty order; or

(ii) the person has been convicted of an offence in relation to the contravention; or

(iii) a pecuniary penalty order has been made against the person under Part 9.7 in relation to the contravention;

(b) conduct consisting of a contravention of the Uniform Rules;

(c) conduct involving contravention of the Legal Profession Uniform Law Act of this jurisdiction (other than this Law), whether or not the person has been convicted of an offence in relation to the contravention;

(d) charging more than a fair and reasonable amount for legal costs in connection with the practice of law;

(e) conduct in respect of which there is a conviction for -

(i) a serious offence; or

(ii) a tax offence; or

(iii) an offence involving dishonesty;

(f) conduct as or in becoming an insolvent under administration;

(g) conduct in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act;

(h) conduct consisting of a failure to comply with the requirements of a notice under this Law or the Uniform Rules;

(i) conduct in failing to comply with an order of the designated tribunal made under this Law or an order of a corresponding authority made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Law or a corresponding law);

(j) conduct in failing to comply with a compensation order made under this Chapter.

1. The reference to the Uniform Rules in s 298(b) of the Uniform Law in the context of this matter is a reference to the Barristers Rules.
2. Relevantly, r 3 and r 4 of the Barristers Rules provide the objects and principles as follows:

3 Objects

The object of these Rules is to ensure that barristers:

(a) act in accordance with the general principles of professional conduct,

(b) act independently,

(c) recognise and discharge their obligations in relation to the administration of justice, and

(d) provide services of the highest standard unaffected by personal interest.

4 Principles

These Rules are made in the belief that:

(a) barristers owe their paramount duty to the administration of justice,

(b) barristers must maintain high standards of professional conduct,

(c) barristers as specialist advocates in the administration of justice, must act honestly, fairly, skilfully, bravely and with competence and diligence,

(d) barristers owe duties to the courts, to their clients and to their barrister and solicitor colleagues,

(e) barristers should exercise their forensic judgments and give their advice independently and for the proper administration of justice, notwithstanding any contrary desires of their clients, and

(f) the provision of advocates for those who need legal representation is better secured if there is a Bar whose members:

(i) must accept briefs to appear regardless of their personal beliefs,

(ii) must not refuse briefs to appear except on proper professional grounds, and

(iii) compete as specialist advocates with each other and with other legal practitioners as widely and as often as practicable.

1. The only rule in the Barristers Rules that the Bar Association alleged was breached by the respondent was r 8 which provides:

8 General

A barrister must not engage in conduct which is:

(a) dishonest or otherwise discreditable to a barrister,

(b) prejudicial to the administration of justice, or

(c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute.

1. There are no precise limits to, or fixed categories of, conduct that may warrant the imposition of disciplinary sanctions on a legal practitioner: Clyne v Bar Association [1960] HCA 40; (1960) 104 CLR 186 at 199-200; [1960] HCA 40; Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44].
2. In Kennedy v The Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563, Rich J said that:

"...a charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure to either understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of the profession in whom confidence could be placed..."

1. Given the way the case was argued, there are two primary issues of statutory interpretation in this case.
2. The first is in respect of s 296 of the Uniform Law. Given the Bar Association's shift in its case, there was a contest about the requisite connection in s 296 between the practitioner's conduct and "the practice of law": in particular, whether the conduct had to occur in the practice of law of the practitioner. This was relevant because it was an agreed position that at the time of the conduct alleged, the respondent was a private litigant and had legal representation (absent two months in 2021 outside the period of the conduct in question).
3. The second is the scope and application of s 298 of the Uniform Law. The question presented to the Tribunal is novel. The matter has not, it appears, been addressed or considered previously.

1. There is no dispute that the starting point for ascertainment of the meaning of a statutory provision is the text of the provision considered in light of its context and purpose: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; [1997] HCA 2 (Brennan CJ, Dawson, Toohey and Gummow JJ); Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]; [1998] HCA 28 (McHugh, Gummow, Kirby and Hayne JJ); Federal Commissioner of Taxation v Consolidated Media Holdings [2012] HCA 55; (2012) 250 CLR 503 at 519 [39]; [2012] HCA 55; SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at [14]; [2017] HCA 34 ("SZTAL") (Kiefel CJ, Nettle and Gordon JJ); SAS Trustee Corporation v Miles (2018) 265 CLR 137; [2018] HCA 55.
2. Any purpose identified from contextual matters must be specific enough to be deployed as a guide to the resolution of any uncertainty in the meaning of the statutory language: Nominal Defendant v GLG Australia Pty Limited (2006) 228 CLR 529; [2006] HCA 11.

1. Both parties submitted that the legislative history and extrinsic materials assisted in ascertaining the meaning of the statutory text of both s 296 and s 298 in this case, so we set the history out at the outset.
2. An amendment to the Legal Practitioners Act 1898 (NSW) (the "1898 Act") in 1935 introduced the statutory concept of professional misconduct, however, even after the amendments, there was no definition of unsatisfactory professional conduct. This did not occur until 1987.
3. The 1898 Act was repealed and replaced by the Legal Profession Act 1987 (NSW) ("LPA") which did not include a definition of unsatisfactory professional conduct, rather professional misconduct was defined in s 123 of the LPA as:

(a) conduct (whether consisting of an act or omission and whether occurring in connection with the practice of law or otherwise) that falls short of the standard of conduct that a member of the public is entitled to expect of a legal practitioner; and

(b) conduct that is declared to be professional misconduct by any provision of this Act

1. Prior to commencement of the LPA, s 123 was amended to include a statutory definition of unsatisfactory professional conduct. This was inserted by the Legal Profession (Amendment) Act 1987 (NSW) (the "Amended 1987 Act") so that, for the first time, there was a definition for both professional misconduct and unsatisfactory professional conduct. The definitions were set out in Part 10 of the Amended 1987 Act, in s 123 as follows:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards or competence and diligence;

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of barristers or the roll of solicitors; or

(c) conduct that is declared to be professional misconduct by any provision of this Act

...

"unsatisfactory professional conduct" includes conduct (whether consisting of an act or omission) 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 legal practitioner.

1. The Second Reading Speech for the Amended 1987 Act stated as follows:

"... The Law Society has suggested the definition of professional misconduct might be clarified by restricting the concept of professional misconduct to serious cases of incompetence and cases justifying removal from the roll of barristers or solicitors, and by introducing a new definition of unsatisfactory professional conduct for cases where conduct falls short of a reasonable standard.

This suggestion recognises the distinction made in the Act between cases of minor professional misconduct provided for in division 5 of the part 10 and serious professional misconduct provided for in division 7. In the case of minor professional misconduct, or unsatisfactory professional conduct, as it will now be known, proceedings will continue to be taken before the Professional Standards Board..."

1. In 1993, Part 10 of the 1987 Act was repealed and replaced by the Legal Profession Reform Act 1993 (NSW) (the "1993 Reform Act"). In the Second Reading Speech, reference was made to the NSW Law Reform Commission's report (Report 70: Scrutiny of the Legal Profession: Complaints Against Lawyers (1993) at [1.2]) which had recorded the recommendations subsequently adopted in the Amended 1987 Act including recommendations for "the expansion of the concerns of the disciplinary system to embrace poor professional work (unsatisfactory professional conduct)".
2. The 1987 Act was repealed and replaced by the Legal Profession Act 2004 (NSW) (the "2004 Act"), which commenced in October 2005.
3. Section 496 of the 2004 Act defined "unsatisfactory professional conduct" as follows:

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.

1. Section 497 of the 2004 Act defined "professional misconduct" as follows:

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.

(c) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

1. In the 2004 Act, s 498 was introduced for the first time.
2. Section 498 provided:

Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

(b) charging of excessive legal costs in connection with the practice of law,

(c) conduct in respect of which there is a conviction for:

(i) a serious offence, or

(ii) a tax offence, or

(iii) an offence involving dishonesty,

(d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration,

(e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth.

1. Section 498 of the 2004 Act was amended twice before being replaced by the Uniform Law:

(1) first, by the Legal Profession Amendment Act 2005 (NSW), adding:

(a) s 498(1)(f), which identified an additional type of conduct capable of being unsatisfactory professional conduct or professional misconduct: failing to comply with the requirements of a notice under the 2004 Act or its regulations; and

(b) a new provision, s 498(2), which provided that contraventions of the Act, regulations or legal profession rules were capable of being unsatisfactory professional conduct or professional misconduct whether or not the person was convicted of an offence in relation to the contravention; and

(2) second, by the Legal Profession Further Amendment Act 2006 (NSW) adding s 498(1)(g) and (h), which provided that conduct in failing to comply with an order of the Disciplinary Tribunal or a compensation order made under the 2004 Act was capable of being unsatisfactory professional conduct or professional misconduct.

1. At the same time that the Uniform Law was introduced in 2015, the Barristers Rules were amended.
2. The common law concept of professional conduct is incorporated in s 297(1)(b) of the Uniform Law: EFA at [118]. There is no common law equivalent for unsatisfactory professional conduct.

1. The Bar Association submitted that the respondent's admission that his conduct constituted unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law carried with it an admission that his conduct occurred in connection with the practice of law or legal practice, but the admission does not bind the Tribunal. It was noted that there is no definition of "practice of law" in the Uniform Law but that "engage in legal practice" and "legal services" were defined in s 6(1).
2. As we understood the Bar Association's final submission, it was to the effect that in order for s 296 to be engaged, the conduct must occur in connection with the practice of law of the practitioner but that was not the case here because the respondent, as a litigant, had been legally represented at the time of the conduct.
3. The respondent, consistent with his position from the outset of these proceedings, admitted his conduct had the requisite connection with the practice of law in a broad sense, even though not in his own practice of law. In this respect, it was said that the preparation of affidavits, giving an Undertaking and conduct concerning disclosures, are all connected to litigation and the practice of law. It was contended that in those matters, the members of the public expect a barrister, as a litigant, will be diligent and competent in ensuring compliance with standards expected of a barrister when in his own practice or generally.
4. The respondent contended that Parliament had expressly rejected the inclusion of unsatisfactory professional conduct in the LPA so the Tribunal should not rely on the reference in the Second Reading Speech to poor professional work, to construe the meaning of s 296. However, this submission does not address that the LPA was amended prior to commencement and unsatisfactory professional misconduct was ultimately included.
5. The respondent relied on the Queensland Court of Appeal's decision in Graham v Legal Services Commissioner (No 1) [2014] QCA 305 ("Graham"). This was an appeal from the Queensland Civil and Administrative Tribunal concerning a legal practitioner who had been retained by a law firm to prepare a costs statement for one of its clients to recover costs from a client's opponent in litigation. It was an agreed position that the legal practitioner was not engaging in legal practice under the retainer. It was determined that the conduct of the practitioner satisfied the definition of s 418 of the Legal Profession Act 2007 (Qld) (a definition which was in almost identical terms as s 296 of the Uniform Law but that the word "happening" instead of "occurring" was used) (Fraser JA at [22], Gotterson JJA and Philippides J agreeing at [28] and [29]). The Court of Appeal agreed that the practitioner's conduct happened in connection with the practice of law. Even though the practitioner did not directly act for the client or engage in legal practice, it was found there was a very close connection between the practitioner's conduct the subject of the charges and the practice of law of the law firm that retained him.
6. The Court of Appeal determined (at [22]) "the definition of 'unsatisfactory professional conduct' in s 418 should not be construed as requiring that the relevant conduct of the Australian legal practitioner happened in the connection with the practice of law by that practitioner."
7. It was not contended by the respondent that we were bound by Graham but it was argued that Graham is persuasive.
8. The respondent also relied on Prothonotary v Comeskey [2018] NSWCA 18 ("Comeskey") and EFA in support of his construction of s 296, again noting the Tribunal was not bound by those comments in respect of s 296.
9. Comeskey was a matter in the inherent jurisdiction of the Supreme Court in which the concept of unsatisfactory professional conduct was never in issue but in which Basten JA observed at [15], in obiter, that false statements of a practitioner to an admitting authority, although not involving the practice of law by that practitioner, were so closely related to the practice of law as to not be readily distinguishable from it.
10. In EFA, the Court of Appeal's reference (at [104]-[107]) to the findings of the Tribunal that the conduct of a barrister at a clerk's dinner "had a connection with the Bar" but "could not be said to have had 'some real and substantial connection with professional practice'", was nothing more than a recantation of findings of the Tribunal. Those findings were made in contradiction to an agreed fact that the conduct occurred in connection with the practice of law. It was the contradiction which the Court of Appeal found to be an error of the Tribunal for the reason that the Tribunal had not signaled that it was contemplating departing from an agreed position (at [106]). The Court of Appeal did not, nor did it need to, determine, whether the respondent's conduct took place in connection with the practice of law.

1. Turning first to the text of s 296.
2. Unsatisfactory professional conduct is a term defined by reference to the word "includes". Ordinarily, a word or phrase defined by inclusion is read as an expansion of the ordinary meaning of that word or phrase or is non-exhaustive. This is in contradistinction to the word "means" which is used in a definition where it is intended to be exhaustive: DC Pearce, Statutory Interpretation in Australia (10th ed, 2024, LexisNexis) at [6.10]. However, there are occasions where "includes" can be construed as being equivalent to "means and includes" in which case the definition provides an exhaustive explanation of the meaning to be attached to the defined term.
3. In EFA, the Court explained at [115]:

"A definition framed inclusively generally - but not always - expands the meaning of the word or phrase defined beyond its ordinary meaning: Dilworth v Commissioner of Stamps [1899] AC 99, cited in YZ Finance Company Pty Ltd v Cummings (1964) 109 CLR 395; [1964] HCA 12. The nature of an inclusive definition is, commonly, a word or phrase that is well understood, to the ordinary meaning of which are added concepts that would not, ordinarily, be understood as coming within that word or phrase. Whether it does so, or, notwithstanding the verb 'includes', is to be taken as exhaustive or exclusive depends on the context of the Act in which it appears: see, generally, YZ; Gibb v Commissioner of Taxation of the Commonwealth of Australia (1966) 118 CLR 628; [1966] HCA 74; Cranbrook School v Woollahra Municipal Council (2006) 66 NSWLR 379; [2006] NSWCA 155 at [38]-[43]."

1. The Court in EFA ultimately referred to the inclusive nature of the definition of professional misconduct in s 297 and then stated at [119]:

"...'Unsatisfactory professional conduct' was also defined inclusively, but with no indication of what, if anything, in addition to the conduct defined, was intended to be incorporated."

1. As submitted by the Bar Association, where a phrase or concept is "entirely the creation of a legislative scheme" it is more likely that a definition, even one using "includes," is exhaustive, because otherwise considerable uncertainty would result: SZGIZ v Minister For Immigration and Citizenship (2013) 212 FCR 235; [2013] FCAFC 71 at [63]- [73]; see also P Herzfeld and T Prince, Interpretation (3rd ed, 2024, Lawbook Co) at [21.40]. The definition of unsatisfactory professional conduct in s 296 falls within this category as it had no pre-existing common usage or ordinary meaning such that it must be the Uniform Law (and the relevant predecessors in the Amended 1987 Act and 2004 Act) that supply the meaning.
2. The phrase "in connection with the practice of law" does not appear in s 296 of the Uniform Law in isolation. Rather, the conduct must also be of the nature that "falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer". This context informs the question of construction in this case, as it indicates a relationship between the practice of law and standards expected of the public.
3. The Macquarie Dictionary 9th ed (2023) defines practice, competent and diligent as follows:

"practice

noun 1. habitual or customary performance: normal business practice.

2. a habit or custom.

3. repeated performance or systematic exercise for the purpose of acquiring skill or proficiency: practice makes perfect.

4. skill gained by experience or exercise.

5. the action or process of performing or doing something (opposed to theory or speculation).

6. the exercise of a profession or occupation, especially law or medicine.

7. the business of a professional person: a doctor with a large practice_._

8. Law the established method of conducting legal proceedings.

9. (usually plural) Obsolete a plot or intrigue."

competent

adjective 1. properly qualified; capable.

2. fitting, suitable, or sufficient for the purpose; adequate.

3. Law (of a witness, a party to a contract, etc.) having legal capacity or qualification.

[Latin competens, present participle, being fit]

diligent

adjective 1. constant and persistent in an effort to accomplish something.

2. pursued with persevering attention; painstaking.

[Middle English, from Latin dīligens, properly present participle, choosing, liking]"

1. The use of the indefinite article "the" before the word "practice" makes clear that the word adopted by Parliament is a noun. The entry at 6 of the definition for "practice" encapsulates the meaning to be given to practice in s 296 - the exercise of the profession of law - which connotes activities in the course of that occupation.
2. Section 6 of the Uniform Law sets out the test for whether a person is engaged in the provision of legal services as a legal practitioner, which relevantly defines "engage in legal practice" to include "practise law or provide legal services, but does not include engage in policy work". Legal services are defined to mean "work done, or business transacted, in the ordinary course of legal practice": see Council of the New South Wales Bar Association v Mack [2024] NSWCATOD 120 at [41] and Council of the New South Wales Bar Association v Loukas [2025] NSWCATOD 39 at [63].
3. The words diligence and competence in s 296 of the Uniform Law speak to the skills and abilities of the legal practitioner in exercise of the profession and the provision of legal services. Whether or not a legal practitioner's conduct falls short of a standard of competence is judged by reference to what a member of the public is entitled to expect.

1. Compound prepositions such as "in connection with", like "relates to", or "in respect of", are often deployed to describe a relationship between concepts in the widest possible terms. The extent of the relationship will depend upon the context in which they are used: Smith v Commissioner of Taxation (Cth) (1987) 164 CLR 513 at 533; [1987] HCA 48 (Toohey J); HP Mercantile Pty Ltd v Commissioner of Taxation [2005] FCAFC 126; (2005) 143 FCR 553 at 563 [35]; [2005] FCAFC 126 (Hill J); Travelex Ltd v Commissioner of Taxation [2009] FCAFC 133; (2009) 178 FCR 434 at [25]; [2009] FCAFC 133 (Mansfield J), at [44] (Stone J) at [57] (Edmonds J); Travelex Ltd v Commissioner of Taxation [2010] HCA 33; (2010) 241 CLR 510 at [25]; [2010] HCA 33 (French CJ and Hayne J).
2. As explained by French CJ in R v Khazaal (2012) 246 CLR 601; [2012] HCA 26 at [31]:

"Relational terms ... may refer to a relationship between two subjects which may be the same or different and may encompass activities, events, persons or things. They may denote relationships which are causal or temporal or relationships of similarity or difference. The task of construing such terms does not involve the resolution of ambiguity. They are ambulatory words and may be designed to cover a variety of subjects and a variety of relationships between those subjects. The nature and breadth of the relationships they cover will depend upon their statutory context and purpose. Generally speaking it is not desirable, in construing relational terms, to go further than is necessary to determine their application in a particular case or class of cases." (emphasis added; footnote omitted)

1. The closeness and nature of the relationship required between the conduct and the practice of law in s 296 of the Uniform Law must be identified by reference to the context. The nature of that connection in the context of the Uniform Law (including the consequences for practitioners in breach of s 296) can be evaluated by reference to the specific obligations imposed on the practitioner with respect to his or her conduct as a legal practitioner in the provision of legal services. The Uniform Law, s 6 defines those professional obligations:

(a) duties to the Supreme Courts; and

(b) obligations in connection with conflicts of interest; and

(c) duties to clients, including disclosure; and

(d) ethical standards required to be observed -

that do not otherwise arise under this Law or the Uniform Rules;

1. Having regard to these matters, the use of the words "in connection with" in the context of s 296 of the Uniform Law, requires a close connection between the practitioner's conduct and the practitioner's practice of law including the provision of legal services which a member of the public expects to be provided with diligence and competence. It does not require that the conduct occur in the practice of law but it must be closely connected to the practitioner's practice to bring it within the reach of s 296.
2. Given the objectives in s 3 and s 260 of the Uniform Law, in particular the purpose in s 3(b) "to ensure lawyers are competent and uphold high ethical and professional standards in the provision of legal services", and the protective purpose (for clients of law practices and the public in general), this construction of s 296 best promotes those purposes: Interpretation Act 1987 (NSW), s 33; Interpretation Act 1984 (Vic), s 35.
3. Support for a close connection is also found in the Court of Appeal's analysis of the law on professional misconduct in NSW Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 ("Cummins") a case concerning a barrister who had not lodged tax returns for decades.
4. In Cummins, Spigelman CJ (Mason P and Handley JA agreeing) had regard to numerous cases (see [35]-[64] including Ziems where Fullagar J had distinguished "personal misconduct" and "professional misconduct"). Chief Justice Spigelman stated (at [56]):

"[56] There is authority in favour of extending the terminology 'professional misconduct' to acts not occurring directly in the course of professional practice. That is not to say that any form of personal conduct may be regarded as professional misconduct. The authorities appear to me to suggest two kinds of relationships that justify applying the terminology in this broader way. First, acts may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice. Secondly, conduct outside the course of practice may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice. In this second case, the terminology of 'professional misconduct' overlaps with and, usually it is not necessary to distinguish it from, the terminology of 'good fame and character' or 'fit and proper person'." (emphasis added)

1. It is accepted that there was a differentiation for the purposes of characterising professional misconduct in Cummins but given the structure of Div 260, it supports a construction of s 296 (together with s 297(1)(a)) directed at conduct which occurs in connection with the course of or exercise of the practice of law by the practitioner as compared with s 297(1)(b) which does not differentiate between "personal" and "professional" but is measured by the fitness and propriety of the practitioner to engage in legal practice.
2. Further, when one has regard to the history of the provisions and the extrinsic materials, as we are permitted to do under the Interpretation Act 1987 (NSW), s 34 (also see Interpretation Act 1984 (Vic), s 35), it is apparent that the concept of "unsatisfactory conduct" was designed to capture deficiencies in the conduct of the practitioner connected to the practitioner's provision of legal services where the standards of diligence and competence were not being met.
3. Consequently, s 296 requires that there be a sufficiently close connection between the practitioner's conduct and the practitioner's practice of law such as to impact upon the standards of competency or diligence of that legal practitioner.
4. In the present case, we find that there is not a sufficiently close connection between the respondent's conduct and the practice of law for the purposes of s 296. While it is true that as a barrister, he had professional obligations of candour to the Court and that the making of affidavits, giving undertakings and complying with court orders and rules are all part of a barrister's professional work generally, the respondent was a litigant and not acting in his capacity as a barrister. He was the recipient of legal services from the lawyers representing him throughout his case. While the respondent appeared in court unrepresented twice (February and April 2021) and swore an affidavit (April 2021) at a time when he was not represented, this was not during the period in which the conduct occurred. For reasons we will come to, the respondent's professional obligations as a officer of the Court impact upon the characterisation of his conduct, but not in the context of s 296 where he was not providing any legal services to a member of the public.

1. Turning to the text of s 298 of the Uniform Law, we are unable to read the words "without limitation" in isolation from the rest of s 298 or the Uniform law as a whole. The expression is to be read as referring to the defined terms "unsatisfactory professional conduct" and "professional misconduct" as used in s 298. In other words, the section is to be read as not placing any limitation on the scope of the defined terms as opposed to the inverse argument made by the respondent that the words "without limitation" expand the scope of the defined terms, and that the specific categories of conduct identified are capable of constituting unsatisfactory professional conduct without any limitation arising from any other provision such as s 296 of the Uniform Law.
2. The use of the words "is capable of constituting" in the chapeau before the defined terms, indicates that the listed categories of conduct are merely capable of constituting unsatisfactory professional conduct or professional misconduct as opposed to definitively constituting same. If Parliament had intended the list in s 298 to operate as a declaration of conduct that positively constitutes unsatisfactory professional conduct or professional misconduct, it would not have used the words in the chapeau "the following is capable of constituting": instead, Parliament would have used the words "the following constitutes ..."
3. We read s 298 of the Uniform Law as listing examples of the types of conduct that might fall within the definitions in s 296 and s 297 when an assessment of the character of the conduct is undertaken.
4. As a matter of context in support of the position we have adopted, we note:

(1) in the definition section, s 6, cross-references ss 296 and 297 only - no similar cross-reference is made to s 298;

(2) the words "without limitation" are used in other parts of the Uniform Law followed by a list of examples of the types of things that may be provided for: see for example s 168(2), s 208(2), s 255(2) and s 367(2) of the Uniform Law include a list of things that may be provided for under the Uniform Rules; similarly s 390 and s 420 of the Uniform Law have a list of what may be provided for in Admission Rules and s 423(2) about what may be provided for in the Legal Professional Conduct Rules.

1. This is similar to the way in which s 298 is structured. In this way, the reference to "without limitation", is to the scope of conduct that may fall within the definitions in s 296 and s 297. Section 298 is merely a provision containing examples of conduct capable of satisfying those definitions.
2. For historical context, we also note that the predecessor to s 298 was s 498 of the 2004 Act but that the words used in s 498 were slightly different: "Without limiting s 496 and s 497." There is no explanation in the extrinsic materials for the change in drafting style to the current version, but it has the same meaning in both s 498 of the 2004 Act and s 298 of the Uniform Law.
3. The Bar Association submitted, and we agree, that the policy reason for a list of the types of conduct that may fall within one or other of the definitions, is to give clear direction to the public (who may wish to lodge a complaint) and the profession (whose conduct may come into question). This also furthers the object of the provisions to protect the public; as well as educate and ensure the profession upholds the highest standards of conduct in the provision of legal services.
4. If it were accepted that s 298 is a standalone category of conduct constituting unsatisfactory professional conduct or professional misconduct, unhinged from the defined terms, there would be no standard against which the assessment of characterisation could be made (noting the consequences between a finding of unsatisfactory professional misconduct and professional misconduct can be significantly different). This tells against the construction contended for by the respondent.
5. The respondent sought to support the contention that s 298 expanded the scope of professional misconduct and unsatisfactory professional conduct by reference to the decision of Court of Appeal in EFA. The Court of Appeal stated at [19]:

"The definitions of both unsatisfactory professional conduct and professional misconduct are expanded in s 298 to include further specified categories of conduct..."

"By particular 23 the Council asserted that the conduct occurred in connection with the practice of law. As discussed below, this allegation was important to the Council's contention that the respondent's conduct constituted professional misconduct at common law; it also recognized the s 296 definition of unsatisfactory professional conduct, and the s 297(1)(a) definition of professional misconduct, each of which requires that the conduct that quality. Connection with the practice of law is not, however, necessary for proof of professional misconduct either as defined in s 297(1)(b) or as defined in s 298, the latter of which, as mentioned above, identifies specific categories of conduct which, 'without limitation', is capable of constituted unsatisfactory professional conduct or professional misconduct and which (in par (b)) includes constituting a contravention of the Uniform Rules."

1. This statement was repeated in de Robillard v Council of the New South Wales, Bar Association; Council of the New South Wales Bar Association v de Robillard (No 2) [2024] NSWCA 299 at [37].
2. Both parties agreed the statement first originating in EFA was obiter and had not been the subject of submissions or argument by the parties. It was agreed that the Tribunal in this case is not bound by those statements. Further, neither party nor the Tribunal were able to identify any other case that considers the scope of s 298 of the Uniform Law directly or that binds the Tribunal.
3. For the reasons set out above, as a matter of text, context and purpose, s 298 is not a freestanding provision under which a finding of unsatisfactory professional conduct or professional misconduct can be made. Rather, it is simply a list of examples of conduct that may be considered to breach s 296 and s 297 without limiting the scope of conduct that may otherwise fall within those definitions.

Ground 1: failure to comply with obligations to provide full and frank financial disclosure in Family Proceedings

1. During the course of the Family Proceedings, the respondent was required to make full and frank disclosure under rr 24.02, 24.03, 24.04 and 24.06 of the FCCR. Those rules provided as follows:

24.02 Financial statement

(1) An applicant, or a respondent who files a response, must file and serve with the application or response:

(a) a financial statement in accordance with the approved form; or

(b) an affidavit of financial circumstances.

(2) If an applicant, or a respondent who files a response, is seeking an order for property settlement and has a superannuation interest, he or she must attach to the financial statement or affidavit a completed superannuation information form in relation to the interest.

(3) However, an applicant or respondent need not comply with subrule (2) if, when the statement or affidavit is filed:

(a) the person has, in accordance with section 90MZB of the Family Law Act, made an application to the trustee of the eligible superannuation plan in which the superannuation interest is held for information about the interest; and

(b) the trustee has not provided the information.

(4) An applicant or respondent to whom subrule (3) applies must file and serve a completed superannuation information form within 7 days after receiving the information from the trustee.

24.03 Full and frank disclosure

(1) A party required under this Part to file a financial statement or affidavit of financial circumstances must make in the statement or affidavit a full and frank disclosure of his or her financial circumstances, including details of:

(a) any vested or contingent interest in property (including real or personal property, superannuation and legal and equitable interests); and

(b) income from all sources, including any benefit received in relation to, or in connection with, the party's employment or business interests; and

(c) the party's other financial resources; and

(d) any trust:... and

(e) any gift or other disposition of property made by the party since the separation of the parties; and

(f) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

24.04 Production of documents (proceeding other than for maintenance only)

(1) Unless the Court or a Registrar otherwise orders, a party required under this Part to file a financial statement or affidavit of financial circumstances (other than a respondent in a proceeding for maintenance only) must serve on each other party who has an address for service in the proceeding the following documents:

(a) copies of the party's 3 most recent taxation returns;

(b) copies of the party's 3 most recent taxation assessments;

(c) if the party is a member of a superannuation plan:

(i) if not already filed or exchanged - the completed superannuation information form for any superannuation interest of the party; and

(ii) for a self‑managed superannuation fund - the trust deed and copies of the 3 most recent financial statements for the fund;

(d) if the party has an Australian Business Number, copies of the last 4 business activity statements lodged;

(e) if there is a partnership, trust or company (except a public company) in which the party has an interest, copies of the 3 most recent financial statements and the last 4 business activity statements lodged by the partnership, trust or company.

(2) The documents must be served within 14 days after the first court date.

...

24.06 Amendment of financial statement

If there is a significant change in the circumstances of a party who has filed a financial statement or affidavit of financial circumstances under this Part, the party must amend the statement or affidavit as soon as practicable by:

(a) if the amendment may be clearly set out in 3 pages or less - filing and serving an affidavit setting out the amendment; or

(b) otherwise - filing and serving an amended financial statement or affidavit.

1. In addition, the Court made the following orders which required the respondent to make full and frank disclosures:

(1) an order on 29 August 2018 that the respondent provide disclosure of statements for a Commonwealth Bank Account for the months of April to August 2005, all documents related to an ANZ Breakfree mortgage of the Property, all documents related to his AXA Retirement Security Plan, information regard the quantity of sapphires, zirconia and gold received by the respondent in his property settlement with a former partner ("Ms K");

(2) an order on 20 August 2019 requiring the respondent to file and serve a financial statement within seven days and that each party, within 28 days, comply with their obligations under Part 24 of the FCCR for full and frank disclosure;

(3) an order on 23 June 2020 requiring the respondent to file an updated financial statement and noting that if a party is non-compliant, an undefended hearing may proceed on a date nominated by the Judge;

(4) the 24 September orders including that the respondent comply with the disclosure of requested material circulated by the Complainant (that is documents evidencing his spending of his mother's inheritance as asserted in his September affidavit).

1. As submitted by the Bar Association, the duty of parties to make full and frank disclosure is fundamental to the whole operation of the Family Law Act 1975 (Cth) in financial cases: Haggerty v Parry [2013] FCCA 615 at [125] (per Brown J).
2. In Alden & Alden (No 3) [2023] FedCFamC1F 791, Campton J stated:

"[55] A party to property proceedings is required to make full and frank disclosure of their financial position. ... The duty of disclosure is absolute. It is a continuing onus throughout the litigation process which is critical to the function of the jurisdiction and fundamental to achieving justice and equity. The fact that the obligation of disclosure exists as a duty to the court, as well as the other party, is significant. It is also significant that the obligation is in respect to the disclosure of 'information relevant to the dispute' and is not simply one that attaches to the production of documents. Importantly in this case, it extends to all relevant and material facts."

1. The requirement to make a full and frank disclosure is to ensure the provision of information reasonably necessary for the determination of jurisdictional facts. Importantly, in financial matters, the full and frank disclosure of information about the assets and financial capacity of the parties is highly relevant to the Court's determination of orders to be made in the property settlement.
2. In Re in the marriage of Weir [1992] FamCA 69; (1992) 16 Fam LR 154, the Full Court stated at 158 that:

"It seems to us that once it has been established that there has been a deliberate non­disclosure, which follows from his Honour's findings in this case, then the Court should not be unduly cautious about making findings in favour of the innocent party. To do otherwise might be thought to provide a charter for fraud in proceedings of this nature."

Ground (1)(a) - failure to accurately disclose monies that the respondent inherited

1. The respondent admits and we are satisfied on the evidence before us that the statement made by the respondent in the 2017 affidavit, that he received $70,000 from his mother's estate in 2012, was false.
2. As admitted by the respondent, he was a beneficiary of his late mother's estate and in 2010 he received the sum of $229,028.25 from her estate. That amount was made up of the following:

(1) A payment received by the respondent on 31 May 2010 in the sum of $58,772.72 which was paid into a bank account he held with the National Australia Bank ("NAB"). This amount caused the trust account ledger to be overdrawn by $3,000 which was subsequently repaid by the respondent in June 2010;

(2) A further amount of $173,255.53 was received by the respondent into his NAB account on 29 October 2010.

1. The respondent had in fact received a total sum of $229,028.25 in 2010 from his late mother's estate ($3000 of which he repaid).
2. It was only after the Complainant's solicitor queried the amounts (on 16 July 2020) and requested supporting documentation, that the respondent subsequently made the 23 September affidavit which corrected the evidence.
3. When the Court then made the 24 September Orders requiring the respondent to disclose documents evidencing the spending of his mother's inheritance, he failed to do so.
4. In his affidavit evidence, the respondent acknowledged that he held a separate bank account from the Complainant and so she would not have been aware of what the money was used for in 2010.
5. In cross-examination the respondent could not recall why he had put the false information in his 2017 affidavit. He said he could not recall the circumstances around making the 2017 affidavit and he did not refer to any material when making the 2017 affidavit or check any documents.
6. We found his evidence in cross-examination to be entirely lacking on this subject and he appeared to be deliberately evasive in his answers. He often responded to questions with answers such as "if you say so" rather than agreeing or disagreeing and frequently used the expression "I don't recall". We found him to be an unimpressive witness and did not find him to be candid in his responses.
7. We note that the respondent in his affidavit evidence in this proceeding acknowledged that his "inaction and failure to comply with some orders of the Court may have come across as deliberate" but that was not his intention. He said that he was struggling to keep his head above water and submitted that he "was under pressure from several significant, concurrent and interrelated professional and personal stressors at the time of his conduct which impacted on his ability to function properly". Some of the stressors he said he was suffering included that the Family Proceedings had been ongoing for over two years; he was struggling to cope financially with legal fees and other expenses such as payment of floors fees for chambers; the COVID-19 Pandemic responses put in place by the NSW Government in March 2020 crippled his criminal law practice because jury trials ceased and that had been his main source of income; as his income decreased significantly he could not keep up with his house and living expenses, payments to the youth refuge his daughter was staying in following her mental health issues, or his ongoing legal fees ("Stressors"). While the Stressors may have been in part a reason for his inability to gather the documents to disclose in compliance with other disclosure obligations (a matter we will refer to below), they do not explain his failure to be accurate in the 2017 affidavit which we note was three years prior to the Stressors which the respondent's evidence places in 2020.
8. The Tribunal is satisfied to the requisite Briginshaw standard that the respondent acted without due care as to the accuracy of the statement he made under oath to the Court in 2017 affidavit. He was grossly careless at a time when he should have had ready and easy access to documents which would have informed him of the full extent of his inheritance. We note the amount the respondent disclosed in the 2017 affidavit was vastly less than the actual amount he received.
9. This was not a momentary failure to disclose significant information to the Court or the Complainant but a failure that was ongoing for a considerable period of time, only corrected three years later when brought to the attention of the respondent by the Complainant's solicitor. During that period the respondent made a further financial statement in 2018 in which he did not correct the position. In this regard, we find the respondent failed to provide full and frank disclosure both in accordance with his obligations under the FCCR, r 24.03 and r 24.06 when he failed to correct the position as soon as was practicable.
10. It has not been pleaded, and we do not need to make a finding about whether or not the statement he made in the 2017 affidavit was a deliberately false statement. We also note that contention was never put to the respondent in cross-examination. However, we find the nature of his failure to make full, frank and accurate disclosures, serious.

Whether the respondent's conduct breaches the Barristers Rules

1. The respondent admits his conduct breached r 8(c) of the Barristers Rules in that it would be likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. We agree. However, we also consider his conduct was in breach of:

(1) rule 8(a) of the Barristers Rules in that his conduct was discreditable to a barrister, particularly one of over 32 years in practice, who should have known the importance of full and frank disclosures; and

(2) rule 8(b) of the Barristers Rules for the reason that his conduct deprived the Court of accurate information for 3 years, information which was necessary for its determination of the proceedings. Even though the respondent ultimately disclosed the true state of affairs in his 2020 affidavit, his conduct was of the kind that was prejudicial to the administration of justice.

1. We find that the respondent had a somewhat cavalier attitude to his obligations to the Court and to the seriousness of making accurate representations to the Court. Were it otherwise, he would have ensured he took the time and obtained the necessary records to make an accurate statement in the 2017 affidavit and to make disclosures required.
2. When the respondent made a false statement in the 2017 affidavit, one he says he made without checking any documents, he did so in disregard of the seriousness of the act of making a statement under oath. It is not a trivial matter and his inability to explain it is entirely lacking.
3. As the information was false, the administration of justice was compromised. This is because the Court relies on the information disclosed under the FCCR in its assessment of the financial assets and capacities of the parties.

Whether the conduct constitutes professional misconduct under s 297(1)(b)

1. Whether or not the respondent's conduct constitutes professional misconduct under s 297(1)(b) of the Uniform Law requires an assessment of whether his conduct would justify a finding that he is no longer a fit and proper person to engage in legal practice.
2. In respect of the determination the measure of "a fit and proper person" for the purposes of s 297(1)(b) of the Uniform Law, the Court of Appeal in EFA stated at [169]:

"...as the majority judgments in Ziems, (particularly that of Kitto J show), a finding of unfitness involves more than an objective analysis of the impugned conduct, absent often relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character."

1. Further, as stated in Prothonotary v Montenegro [2015] NSWCA 409 at [66], "[q]ualities of honesty and integrity and a preparedness to comply with the law are essential requirements for being a fit and proper person". The Court quoted the following observations of Spigelman CJ in Cummins at [19]-[20] in this context:

"[19] Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.

[20] There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people."

1. The respondent contended that his conduct was not of the kind that would warrant a finding of professional misconduct particularly as he was legally represented throughout and his conduct was admitted to constitute unsatisfactory professional conduct.
2. There are numerous examples of legal practitioners being found guilty of professional misconduct outside the course of providing legal services to the public but in the context of being a litigant.
3. In re Thom**;** Ex parte The Prothonotary (1962) 80 WN (NSW) 968, a similar issue arose as in the present case. The legal practitioner was litigant in divorce proceedings and failed to make a disclosure (in that case his adultery). The practitioner was found guilty of professional misconduct. Herron CJ held at 969:

"It cannot be said that Mr Thom 's default was merely that of a litigant or of a citizen or a layman and not of a solicitor. He was no mere layman acting under legal advice but was a solicitor experienced in the matrimonial causes jurisdiction."

1. In Coe v NSW Bar Association [2000] NSWCA 13, the Court of Appeal upheld a finding that Mr Coe was guilty of professional misconduct. Mr Coe admitted he had filed an affidavit in family law proceedings concerning, inter alia, a property settlement and that it was misleading in that he understated his income. In that case the Bar Association had alleged that at the time of swearing affidavits filed in the Family Court of Australia, Mr Coe knew the income and expenses deposed to were untrue or else paid no regard to whether or not the statement was true. Mr Coe admitted as much. In making the finding the Legal Services Tribunal held (Re Paul Thomas Coe (unreported Legal Services Tribunal, 19 May 1997):

"In our opinion there can be no doubt that a legal practitioner owes special duties to a court of which he is an officer, even when involved in that court's processes not as a legal practitioner but as a private litigant. Those duties include a duty of honesty and candour to the Court."

1. In NSW Bar Association v Maddocks [1988] NSWCA 102, a case where, among other things, a barrister was alleged to have given false testimony under oath in failing to disclose in his affidavit that he was an undischarged bankrupt when seeking to be appointed a company director. McHugh JA stated at 11:

"..., as a barrister, the opponent was under an additional duty of frank dealing with the Court beyond that demanded of the ordinary bankrupt. Even though he was appearing in his own interest, he could not, in his dealings with the Court, cast off the obligations which attached to him as a barrister."

His Honour made comment apposite to the present case stating at 23-24:

"As has often been said, the Bar is no ordinary profession. The barrister plays an essential role in the administration of justice in systems which adhere to the common law tradition. He owes duties to the Court as well as to his lay clients. Mr Justice Kitto has pointed out that the barrister, is 'by virtue of a long tradition, in a relationship of intimate collaboration with the judges, as well as with his fellow-members of the Bar, in the high task of endeavouring to make successful the service of the law to the community': Ziems v The Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 298. For a barrister to seek to Profit from another person's breach of the criminal law by not reporting it is contrary to the Standard of conduct expected of members of a profession so closely involved with the due administration of justice according to law. It constitutes professional misconduct.

...

However, the question arises as to whether his conduct counted to professional misconduct should his conduct be considered as only that of a private litigant and not as that of a barrister? That is to say, did his failure to disclose to the Court his bankruptcy touch or concern him as a barrister? An analogous problem arose in In re Thom: ex Parte Prothonotary (1962) 80 WN 968. Where the Full Court of this State held that a solicitor was guilty of professional misconduct in failing, as required by the then Matrimonial Causes Rules, to disclose his adultery in a suit for the dissolution of his marriage. Likewise the intent of the Opponent to be appointed by the Court as a director, although a bankrupt, should be regarded as professional misconduct since it involves his relationship with the Court."

1. In Legal Practitioners Complaints Committee v Dixon [2006] WASCA 27, the Full Bench of the Supreme Court of Western Australia ordered that the respondent's name be struck off the roll of practitioners following recommendations of the Legal Practitioners Disciplinary Tribunal. Mr Dixon's conduct arose out of family law property settlement proceedings in which he made representations that he had given discovery of all documents relevant to his financial position, such representations subsequently found to be untrue. He also made false statements by swearing in affidavits that he did not have any assets or income other than what he had disclosed in the affidavit. The Court held at [10]:

"[10] This was therefore a case of a practitioner who must have known that he had a duty to disclose his ownership of funds which would have a material impact upon the orders to be made by the Family Court in respect of the property settlement and maintenance. The evidence amply supported the conclusion of very serious unprofessional conduct in failing to make the necessary disclosure by deliberately concealing the true position from his wife, who was the applicant before the Family Court, and, more importantly, from the Court itself. Further, the practitioner was guilty of illegal conduct in the form of perjury committed by the deliberately false statements made in his affidavits. That was a form of perjury which related directly to the practitioner's duty as an officer of the Court and to the integrity of the proceedings before the Court."

1. In Legal Practitioners Complaints Committee v Palumbo [2005] WASCA 129 at [23], the West Australian Supreme Court quoted from a Queensland Supreme Court decision (Barristers Board v Darveniza [2000] QCA 253; 112 A Crim R 438), as follows:

"[23] Generally speaking the quality most likely to result in striking off is conduct which undermines the trustworthiness of the practitioner, or which suggests a lack of integrity or that the practitioner cannot be trusted to deal fairly within the system [in] which he or she practises."

1. In light of the respondent's breaches; the importance of his evidence in the Family Proceedings at that time; his failure to avail himself of the information required to make an accurate statement coupled with the length of time during which the misleading disclosure remained uncorrected; and the fact that he has admitted in his affidavit evidence in this proceeding that he was aware of the Barrister Rules at the time of his conduct, we find that the respondent's conduct lacked integrity and undermined his trustworthiness which are qualities essential for the practice of law. Even though the respondent's conduct occurred outside the provision of services to a client, his obligations as an officer of the Court required him to give accurate evidence and to give full and frank disclosures in his personal litigation which he failed to do. The respondent's explanations for those failures were deficient in numerous respects and we do not accept them.
2. We find that the respondent's conduct in Ground 1(a) is capable of justifying an order that he is not a fit and proper person to engage in legal practice. The Tribunal finds the respondent is guilty of professional misconduct pursuant to s 297(1)(b) of the Uniform Law. Ground 1(a) is therefore established.
3. Given our finding of professional misconduct under s 297(1)(b), we do not need to determine whether s 296 might otherwise apply, that is whether there was a sufficiently close connection between the respondent's conduct and the respondent's practice of law even though he was a litigant and not providing legal services. For the reasons we have expressed above we also do not consider a separate finding of professional misconduct is required or even available under s 298. Rather, in the circumstances of this case, the findings we have made as to the nature of his breaches (being breaches of the Barristers Rules) are in the category of examples of conduct in s 298 which are capable of constituting professional misconduct and which we have so found pursuant to s 297(1)(b) of the Uniform Law.

Ground (1)(b) - failure to disclose other financial matters

1. Under the 24 September Orders there were three other categories of documents that the respondent was required to disclose: a copy of the NAB mortgage; copy of his tax returns for the 2018-2019 financial year and bank statements for an NAB account and an NAB visa card that he had disclosed in his 23 September affidavit.
2. The respondent admits, and we are satisfied on the evidence, that the respondent did not disclose these documents.
3. We find that these were documents either available to him or documents he could have obtained in order to comply with the 24 September orders but he did not do so. In this regard:

(1) The NAB mortgage had been entered into in November 2019 (less than one year prior) and funds drawn down on 6 December 2019. We also note that the receipt of $334,103.40 was a substantial change in the respondent's financial circumstances but the respondent did not amend his statement or affidavit of financial circumstances as soon as practicable as required under rule 24.06 of the FCCR. He did not do that until the 23 September affidavit, some 10 months after the draw down of funds. The NAB mortgage document was ultimately produced by the Complainant who obtained it under a subpoena to the NAB.

(2) The respondent's income tax returns for the 2018-2019 income tax year had been completed on 31 March 2020 and Notice of Assessment issued well in advance of compliance with order 5 of the 24 September orders (the date for compliance being 5 November 2020).

(3) The existence of the NAB bank account and credit cards were matters he disclosed in his 23 September affidavit and there is nothing to suggest he could not have obtained statements had he wished to do so.

1. As noted above, the respondent sought to explain the non-disclosure of financial records including the existence of the NAB mortgage by reference to Stressors including depression and mental issues he suffered in 2020. In this regard he referred to and relied on an earlier affidavit he prepared in the Family Proceedings dated 23 April 2021 ("the 2021 affidavit"). He did not adduce any medical evidence and the Bar Association did not challenge his affidavit evidence about the extent and nature of these mental health issues. Instead the Bar Association contended that there was an absence of reliable evidence (the evidence was effectively his own self-reporting of the mental health issues) and in any event, the Tribunal would not be persuaded this was a mitigating factor for engaging in the conduct.
2. In the 2021 affidavit he stated on oath:

"(1) I have never intentionally sought to avoid disclosure of any of my financial records, documents or affairs from the knowledge of the Family Court. The Court should be cognisant of the fact that the Applicant has been advised of my financial records through the Child Support Agency. Therefore she would have been and is well aware of my financial circumstances at all times.

(2) All of my financial statements and records have been revealed to the applicant through Child Support Agency documents. The applicant has always been aware of my financial position through those documents, to which various tax returns and bank statements have been attached.

(3) I do not wish to cavil with the judgment of Judge ..., but I have been transparent in all my dealings with the Family Court and the Child Support Agency to the best of my ability throughout this litigation, having produced all documents and records to my lawyers while represented. My only failure was when I did not comply with an order of the Court due to depression, which resulted in an undefended hearing.

...

In response to the Applicant's affidavit dated 23 March 2021 I say as follows

Paragraph 3. I have acted reasonably in the conduct of my case but due to mental health issues, I did not comply with all financial disclosure requirements. This was the first time I have breached a Court order and would not have done so had I not been suffering depression. Initially the psychologist I was seeing indicated that he would provide a report outlining my health issues. I requested that he provide a short report to inform the Court of the dates on which I saw him but, for reasons known only to him, he declined to provide any report.

...

Paragraph 19. I was of the belief that there was no need to disclose the existence of the mortgage, as I encumbered the property for the purpose of complying with Court orders. Any undertaking given to the Court I believed was permitted for that purpose. The Applicant's lawyers say that my lawyers sought an order which provided: "The respondent is released from any undertaking not to deal with the property in order to comply with the orders made by the Court".

My lawyers to my recollection did seek that order, and to the best of my knowledge and belief, I was permitted to encumber the property in order to provide funds to the Applicant in satisfaction of the Court orders. When the Applicant received the funds, no complaint was made by her lawyers that a Court order had been breached."

1. In his affidavit in the current proceedings, the respondent said:

"43. At the time of my failure to disclose the NAB Mortgage, for the reasons I have sought to explain in this affidavit, I was under considerable financial stress and my mention health had deteriorated. While that is no excuse for my failure to comply with my obligations, I was overwhelmed at the time and these circumstances made it difficult for me to keep on top of what the court required me to do. I tried to explain my disclosure failure in my [2020 affidavit] and I was attempted to obtain evidence of my mental health at the time, but was unsuccessful in obtaining a report from my psychologist."

1. In cross-examination, the respondent said he did not obtain a report from his psychologist because the cost was too high.
2. The causal connection between a practitioner's mental health and conduct was considered in BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146. In that case there was extensive evidence of the impact of the practitioner's mental health on conduct which had occurred. Justice Adamson (at [77]) considered the relevant authorities including, Legal Practitioners Conduct Board v Ardalich [2005] SASC 478 ("Ardalich") (per Perry ACJ, Duggan and Anderson JJ agreeing) and (at [83]) relied on Ardalich at [45] where the Court relevantly stated:

"[45] Mental illness of a practitioner which may cause or contribute towards his commission of acts constituting unprofessional conduct cannot excuse the conduct, but may be a mitigating circumstance in considering what disciplinary orders should be made."

To a similar effect, see Council of the New South Wales Bar Association v Waterstreet [2024] NSWCATOD 47 (Cole DCJ presiding).

1. In the present case, there is a complete absence of medical evidence. On the evidence we do have, which is the respondent's unchallenged self-reporting of his health, we do not see a causal link between his conduct and the personal and professional Stressors he was experiencing at the time. While we readily accept that the COVID-19 restrictions would have placed financial pressure on the respondent who practised mainly in criminal law, we anticipate that would have only been from March 2020 and does not explain his inability to comply with Court orders.
2. Even if there was a causal link between the Stressors and the respondent's conduct, we do not consider that excuses his conduct or lessens the gravity of his conduct. Rather, it may be a mitigating circumstance to be considered at the stage when disciplinary orders are made.
3. When viewed in the context of the ongoing failure to disclose, suggesting that the Complainant already had all the financial documents and was aware of his financial circumstances (as the respondent does in the 2021 affidavit) appears to be an attempt to minimise his breaches and shows a fundamental lack of understanding about the necessity of providing this information to the Court to enable it to make an assessment of the financial circumstances of the parties. The fact is, the Court ordered disclosure and the respondent failed to comply with 24 September Orders.
4. The Tribunal considers that the respondent's actions cannot be explained by mere carelessness. Given the matters he stated on oath in his 2020 Affidavit, he would have readily had available the documentary information available for him to disclose in accordance with the 24 September Orders. He did not do so.
5. We find that the respondent did not comply with the 24 September Orders. The respondent admits same.
6. We find the respondent deliberately disregarded his obligation to comply with the 24 September orders.
7. His conduct is inexplicable as a barrister with over 32 years' experience who said he was aware at that time of his obligations under the Barristers Rules. He also knew or should have known, the importance of complying with the rules of the Court which is a fundamental element in the running of litigation and administration of justice. A breach of an order of the Court can constitute contempt of court. It is a very serious matter.
8. The respondent chose not to comply without any explanation to the Court at the time of breach. Even if the respondent was impacted by the Stressors in 2020 in the manner in which he has articulated, it remained open to him to communicate with the Court through his solicitors about issues with compliance rather than just disregard compliance with the 24 September Orders entirely. Instead, the respondent disregarded his obligation to comply with the Court order as a litigant, conduct which is even more troubling because he was a barrister who knew of the importance of compliance with Court rules and had a positive obligation as an officer of the Court to assist, and not hinder, Court processes.
9. In deliberately failing to disclose the NAB Mortgage, the income tax returns, notices of assessments and bank statements, we find the respondent engaged in conduct that showed a complete disregard for orders of the Court and his obligation as an officer of the Court. The respondent's inaction demonstrates a lack of respect for the authority of the Court in relation to the disclosure of information and at best, he treated compliance with the 24 September Orders as optional.
10. We are satisfied that the respondent was in breach of his obligation to provide full and frank financial disclosure. The respondent admits this.

Whether there was a breach of the Barristers Rules

1. In our view the public would expect barristers, whether or not as litigants, to treat orders of the Court as sacrosanct and respect the authority of the Court. The respondent did not do so. His conduct is likely to diminish public confidence in the legal profession and bring it into disrepute. We find (and the respondent admits) that his conduct breaches r 8(c) of the Barristers Rules.
2. We also find that his conduct was in breach of:

(1) rule 8(a) of the Barristers Rules in that his conduct was discreditable to a barrister, particularly one of over 32 years in practice who should have known that compliance with Court rules is a serious matter; and

(2) rule 8(b) of the Barristers Rules for the reason that his conduct deprived the Court of information it specifically requested, information which was necessary for its determination of the proceedings. Failing to provide the Court with these documents impacted on the task the Court was required to do. We find the respondent's conduct was prejudicial to the administration of justice.

Whether the respondent's conduct is professional misconduct under s 297(1)(b)

1. As a barrister, and not just a layman, who is also a litigant in a proceeding, the respondent should have been keenly aware of his obligation to comply with orders of the Court and the potential consequences of failure to comply (including a potential finding of contempt of Court). He says he was aware of his obligations under the Barristers Rules at the time of is conduct and should have complied.
2. Instead, while an officer of the Court, he undermined the trustworthiness reposed in him in that role: he blatantly disregarded orders of the Court, the FCCR and his obligations under the Barristers Rules. Consistent with his general demeanour in cross-examination, we find the respondent had a cavalier attitude to his obligations and treated those obligations with disrespect and as though they were optional when they were not. Given the seriousness of these breaches, we find that the respondent's conduct justifies a finding that he is not a fit and proper person to engage in legal practice. The Tribunal finds the respondent is guilty of professional misconduct pursuant to s 297(1)(b) of the Uniform Law. Ground 1(b) is therefore established.
3. For the same reasons we have expressed in relation to Ground 1(a), we do not consider we need to consider s 296 or s 298 separately.

1. The respondent admitted that he breached the inter partes Undertaking. This was inconsistent with evidence he gave in the 2021 affidavit and further correspondence his solicitor sent to the Bar Association during the course of the investigation to the effect that the respondent did not breach the Undertaking because he had been released in May 2018.
2. We had before us documentary evidence that made it abundantly clear that the respondent had breached the Undertaking and we find that he did so deliberately.
3. The transcript of the hearing on 4 May 2018 when the first release was granted by the Court, establishes that the release was only in relation to the order made that day for payment to the complaint of $50,000. The transcript records Judge Henderson stating to the respondent's legal representative in a discussion about the Undertaking:

"The husband is released from any undertaking not to deal with the property in order to comply with the orders made by the court today. That's it."

1. On 19 August 2019, the respondent filed a Response to a Further Amended Application seeking an order that he be released from the Undertaking. The logical conclusion is, (and we infer), that the respondent was aware he remained bound by the Undertaking or he would not have instructed his lawyers to seek that order.
2. The actions of the parties during the second court hearing before Judge Smith on 20 August 2019 also clearly indicated that the parties were of the view that the Undertaking was still valid and binding. The submissions by the parties clearly signified that any waiver of the Undertaking, if it occurred, was again purely to the extent necessary to permit payment of the amount ordered by the Court on 4 May 2018. The fact that Judge Smith made no order waiving the undertaking is consistent with the Court being of the view that the undertaking was inter partes and therefore did not require a court order or with the expectation that the aware of money was to come from a source other than the Property.
3. The amount the respondent was ordered to pay the Complainant on 20 August 2019 was ultimately paid in full by October 2019.
4. The respondent's evidence about the funds he obtained to make the payment to the Complaint was inconsistent. At first he said he had obtained a loan of $145,000 from a friend and then obtained the NAB mortgage to repay that friend. Initially in cross-examination his evidence was consistent with this representation. We note there had been some confusion about the respondent receiving funds from an overseas bank account. A careful review of the deposit slip and bank account information in the evidence shows that the payment was in fact from the respondent's Australian bank account but that presumably the bank teller had used a deposit slip designed for international transfers even though it was not.
5. During the course of cross-examination, the respondent was asked about the loan application for the NAB mortgage in which he had not disclosed the purported loan from his friend. The Tribunal ultimately gave the respondent a certificate under s 128 of the Evidence Act in respect of the evidence he gave in relation to a misleading statement in the loan application on 7 November 2019.
6. The respondent then said in cross-examination that he and Ms K had recommenced their relationship during the course of his Family Proceedings and that she had in fact gifted him the $145,000 in order for him to pay the Complainant. This contradicted his earlier evidence that he obtained the NAB mortgage in order to repay the loan to Ms K. When pressed further in cross-examination about this contradiction, the respondent said that the agreement between him and Ms K was that it was a gift that only had to be repaid from his estate on his death and that he said he had not wanted to disclose this previously because of the Family Proceedings.
7. Not only was the sum drawn down in December 2019 more than double the amount the respondent was required to pay under the 20 August orders, but he had already paid it to the Complainant on 4 October 2019 - well in advance of obtaining the NAB mortgage. Further, as the evidence bore out, the NAB mortgage of the Property was not for the purpose of paying any amount of money that the respondent had been ordered by the Court to pay the Complainant: it was purely for the personal benefit of the respondent. The respondent said he needed to pay debts including substantial debts to chambers and for legal fees.
8. Given the respondent's contradictory versions about the purpose of the loan from the NAB (that gave rise to the issue of a certificate under s 128 of the Evidence Act), he has effectively admitted that he was deceptive to the NAB when he applied for the loan with the NAB but also to the Tribunal in his initial explanations about the loan. The respondent was not merely forgetful of the circumstances for obtaining the NAB loan: he was unwilling, until cross-examination, to be forthcoming with facts that were at all times known to him. The respondent's lacks of candour is inconsistent with the ethical standards expected of a barrister.
9. There was no dispute between the parties, and we agree, that the respondent encumbered the Property with the NAB Mortgage in circumstances where:

(1) the Family Proceedings were not finalised either by agreement or court orders;

(2) the Complainant had not consented to releasing the respondent from the Undertaking in order to encumber the Property to comply with the 20 August 2019 orders or to otherwise access the primary asset of the relationship; and

(3) there had been no release from the Undertaking for the purpose of complying with the 20 August 2019 orders.

1. We find the respondent breached the Undertaking and he did so deliberately without seeking any release or consent to encumber the Property which was a step available to him if he needed money.

Whether this was in breach of the Barristers Rules

1. In our view the public would expect barristers, whether or not as litigants, to adhere to their promises and to treat an Undertaking as such a promise. The respondent's failure to comply with his Undertaking was in complete disregard of the seriousness of giving such an Undertaking. His conduct is likely to diminish public confidence in the legal profession and bring it into disrepute. We find (and the respondent admits) that his conduct breaches r 8(c) of the Barristers Rules.
2. We also find that his conduct was in breach of:

(1) rule 8(a) of the Barristers Rules in that his conduct was discreditable to a barrister, particularly one of over 32 years in practice who should have known and did know that acting contrary to an Undertaking given is a serious matter; and

(2) rule 8(b) of the Barristers Rules for the reason that his conduct deprived was prejudicial to the administration of justice, in that he had given the Undertaking in respect of the primary asset of the relationship the subject of the Family Proceedings. Acting contrary to that Undertaking was prejudicial to the orders the Court might make in respect of the property.

Whether this constituted professional misconduct under s 297(1)(b)

1. As stated by this Tribunal in Council of the Law Society of NSW v Powell [2019] NSWCATOD 24 at [20]- [21]:

"[20] In determining whether to make the orders sought by the parties we must consider, for ourselves, whether it is appropriate to characterise the admitted misconduct of the respondent as professional misconduct. We observe firstly, as is well known, that the legal profession is an honourable one and legal practitioners are expected by the community, by fellow practitioners, and by the relevant regulatory authorities to behave honourably always. It is an everyday occurrence in all areas where lawyers practice that legal practitioners provide undertakings to fellow practitioners and to a wide range of commercial and statutory entities both on their own behalf and on behalf of clients. Other legal practitioners and commercial and statutory entities rely upon compliance with those undertakings in their everyday activities. Such reliance is integral to the efficient and effective functioning of a whole range of activities within our community. It is essential that undertakings given by legal practitioners be genuinely provided and that they be honoured. It is for these reasons that prima facie, a breach by a legal practitioner of an undertaking, whether given during legal practice or not, will arguably constitute a most serious matter, and may, in relevant circumstances, adversely impact upon the integrity of the profession in the eyes of the public.

[21] In addition, a practising certificate constitutes an authority to carry on practice as a legal practitioner. The authority so granted creates a privilege in the hands of the practitioner. Any breach of any condition imposed on the right to practice must also, per se, be a matter to be taken seriously."

1. Absent countervailing considerations, a breach of an undertaking will typically amount to professional misconduct. In Council of the Law Society of NSW v Bunton [2020] NSWCATOD 67 at [18] the Tribunal (President, Armstrong J presiding) noted that:

"It may generally be accepted that, in the absence of countervailing considerations, if the undertaking has not been honoured, the practitioner will be guilty of professional misconduct."

1. The respondent agreed that absent countervailing considerations, this position is correct but that there was the presence of extenuating circumstances in his case which had a causal link to the conduct such that it counteracted a finding of professional misconduct. The respondent says that his conduct was a "desperate act, caused by dire financial circumstances, whereby [he] seized on an opportunity to relieve the financial burden that he carried". While he recognised that he should have made enquiries with the Court and Complainant prior to taking out the NAB mortgage and that his conduct was reckless, he submitted that having regard to the Stressors experienced at the time of his conduct, the conduct does not meet the level of a substantial failure which would be the basis of professional misconduct.
2. While the respondent may have been in a dire financial predicament, we do not consider it to be a countervailing consideration that would ameliorate against a finding of professional misconduct. It is difficult to determine where the metes and bounds of such a contention would lie: one can conceive of numerous desperate acts (even those contrary to law) taken in order to relieve oneself of a financial burden. In any event, his evidence is internally inconsistent. On the one hand he says he breached the Undertaking in desperation because of the dire financial circumstances he was in; but on the other hand he says if he was in any doubt about whether he had been released from the Undertaking he should have made enquiries. Both cannot be true at the same time and we find again that the respondent was being less than forthcoming in his evidence.
3. In addition, on the evidence, we also do not accept that the Stressors were being experienced at the time of the respondent's conduct. The evidence he gave was that by 2020 the Family Proceedings had been going on for over two years; by early 2020 he was struggling to cope financially with legal fees, the house and living expenses, the floor fees for chambers; and that there was emotional pressure on him with his daughter suffering significant mental health issues. He said that he suffered a downturn in his income because of the COVID-19 restrictions that were first put in place by the New South Wales Government in March 2020 and the mental health issues arose in 2020 and by September 2020 his mental health deteriorated significantly for which he sought psychological treatment (although precisely when this treatment was received was never explained). In November 2020, the respondent drew down $10,000 of his superannuation under the COVID-19 early release program and requested and received $15,000 of financial assistance from the Bar Association Benevolent Fund. In other words, the respondent's evidence demonstrates that he took out the NAB Mortgage in advance of these Stressors. We are unable to be satisfied on the evidence that these Stressors in any way constituted a countervailing consideration in so far as the breach of the Undertaking is concerned.
4. The Tribunal notes the oral evidence of the respondent in the Tribunal that he received an amount of money from his then domestic partner, Ms K, in order to satisfy the interim payment of $145,000 to the Complainant. Despite his contradictory evidence about whether the sum was a loan or gift (which we have referred to above), there has been no independent evidence to support the view advanced by the respondent that it was a gift or a loan. The significance of this evidence is that this loan or gift was given to the respondent to assist him to pay the interim amount that had been awarded by the Court in favour of the Complainant. This was at a time when the respondent would have been entitled to mortgage the Property in order to satisfy the interim payment had he sought consent to do so. However, the respondent chose instead to use the money that had been provided by Ms K to satisfy the interim payment, and then chose to mortgage the Property, not to pay back Ms K, but instead to relieve himself of some substantial debts, including barrister floor fees, and also for ongoing living expenses. The Tribunal is of the view that his overall approach to financial arrangements at that time demonstrated a loose and cavalier attitude by the respondent towards his legal obligations during the court proceedings.
5. The encumbrance of the Property was to enable the respondent to pay outstanding personal debts and to provide for his living expenses. He clearly was aware of the Undertaking at the time, and we infer from the evidence that he must have made a deliberate decision to breach it for his own personal benefit.
6. A breach of an Undertaking, even an inter partes undertaking, prima facie amounts to professional misconduct. In this case, we do not consider there are the countervailing considerations that diminish that conclusion.
7. We find the respondent's conduct to be a very serious matter and represented a significant departure from the standards of conduct expected of legal practitioners. The Tribunal is of the view that the respondent's conduct is capable of justifying a finding that he is not a fit and proper person to engage in legal practice.
8. Consequently we find that the respondent is guilty of professional misconduct under s 297(1)(b) in relation to Ground 2.

Ground 3 - failure to pay interest in accordance with the agreement

1. On 23 February 2021, the Court ordered the respondent to pay the Complainant $980,9321 by 24 April 2021.
2. On 19 April 2021, the respondent's solicitors requested an extension of time from the Complainant in which to make the payment.
3. On 26 April 2021, the Complainant consented to an extension of time to 7 May 2021 expressly conditional on interest being paid on the outstanding sum on the outstanding sum at the rate set by the Family Law Rules. That rate was 6.1% per annum.
4. The principal sum was paid on 30 April 2021. However, the respondent failed to pay the interest in the agreed sum of $983.62 until 19 October 2022. That was after the investigation by the Bar Association had commenced.
5. The Bar Association no longer presses this complaint as amounting to unsatisfactory professional conduct but maintains that the conduct contravened each of rules 8(a), 8(b) and 8(c) of the Barrister Rules.
6. The respondent admits he breached r 8(c) and apologises to the Complainant and the Court for his conduct. He stated that the reason for his failure to pay interest in accordance with this agreement was that he was under financial pressure - he had hit "breaking point" after paying the principal sum and only had $817.65 left in his Commonwealth Bank account with numerous other debts to pay. He gives evidence about other debts he owed in late 2021 and in 2022 to the Australian Taxation Office, his former solicitors and his chambers for floor fees.
7. However, the respondent did not disclose in his evidence the balance of his other account with NAB as at May 2021 or how the draw down amount from the NAB Mortgage (taken out some 18 months earlier) had been spent.
8. Given the quantum of the interest payment (as compared with the principal sum that was paid only a week earlier than the agreed date for the payment of interest) we are unable to be satisfied on the evidence that his financial circumstances prevented him from paying the interest by 7 May 2021.
9. We find that the respondent breached r 8(a) of the Barristers Rules. After reaching an agreement with the Complainant in relation to the payment of his debt, he was obliged to honour his end of the bargain and pay the interest in accordance with the terms of the agreement. He did not honour his agreement and his behaviour is discreditable to a barrister.
10. The respondent admits and we are satisfied that his conduct was also in breach of r 8(c) of the Barristers Rules. As submitted by the Bar Association, we find that the respondent's failure to honour his agreement to pay interest was contrary to the trust and confidence reposed in him as a barrister such that his conduct is likely to diminish public confidence in the legal profession or bring the legal profession into disrepute.
11. We do not consider his conduct is tantamount to a breach of an undertaking (as submitted by the Bar Association) which we consider to be a more serious breach. We do not find that he was in breach of r 8(b) of the Barristers Rules.

Ground 4 - Does the conduct in grounds 1,2 and 3 constitute professional misconduct

1. We have already found that in respect of each of Grounds 1(a), 1(b) and 2, the respondent is guilty of professional misconduct and that he has breached one or more of the Barristers Rules. Ground 4 asks the Tribunal whether by reason of Grounds 1, 2 and 3, the respondent is guilty of professional misconduct.
2. The Tribunal accepts the submissions by both parties that the facts underlying Grounds 1, 2 and 3 are available as a factual basis for Ground 4. In light of the conclusions by the Tribunal about the definition of unsatisfactory professional conduct, the only outstanding allegation in relation to this ground is professional misconduct under s 297(1)(b).
3. The most serious conduct by the respondent in relation to Ground 4 is the breach of the inter partes Undertaking not to deal with or encumber the Property which we have already found amounted to professional misconduct.
4. In considering Ground 4, the respondent's failure to adhere to the Undertaking must be considered together with his failure to disclose the true amount of his inheritance from his mother, his failure to produce financial documentation ordered by the court, his failure to notify the court or the Complainant about the money advanced by the NAB, and his failure to pay interest on the outstanding judgement, despite having agreed to do so, and in circumstances in which he was given the benefit of extra time to pay the principal amount. It should be borne in mind that all of his conduct was in the course of the same family law proceedings in the Federal Circuit Court at a time when the respondent was a practising barrister, and had been for many years.
5. The cumulative effect of breaches over a 5 year period amount to a most serious deficiency in the conduct of the respondent. These were not isolated or one off incidents. We are comfortably satisfied that his conduct in Grounds 1, 2 and 3 together are a serious breach of rules 8(a), 8(b) and 8(c) of the Barristers Rules. The respondent has demonstrated a pattern of conduct which shows blatant disregard and disrespect for the authority of the Court and undermines the relationship of trust between the judiciary and the profession.
6. The totality of this conduct is clearly capable of justifying the conclusion that he is not a fit and proper person to be a barrister, and therefore amounts to professional misconduct. The Tribunal so finds.
7. The Tribunal has considered the evidence from the respondent that at various times he was suffering from extreme financial hardship and that he also suffered from mental health issues at various times. In light of the fact that there has been no expert evidence to support the respondent's assertions in this regard, the Tribunal is not satisfied that these circumstances provide any reasonable basis for altering the above conclusions. The Tribunal is particularly mindful of the fact that the respondent claims that for a period of some months he was seeing a mental health practitioner. There has been no supportive evidence from any such practitioner.

1. We note the respondent contended that despite the case that has been pleaded by the Bar Association, the Tribunal is empowered to make alternative findings under s 296 of unsatisfactory conduct. Given our findings of professional misconduct, even if our interpretation of s 296 is incorrect, we reject the respondent's contention that his conduct could be characterised as a less serious finding of unsatisfactory professional conduct (under s 296 of the Uniform Law). Even if we had determined that his conduct constituted unsatisfactory conduct under s 296, it would have been of the kind that was sufficiently serious to make a finding of professional misconduct under s 297(1)(a) in respect of each of Grounds 1(a), 1(b), 2 and 4.

(1) The respondent has been found guilty of professional misconduct under s 297(1)(b) of the Legal Profession Uniform Law (NSW).

(2) This matter is listed for directions at 9:30AM on 24 February 2026 for the timetabling of the Stage 2 hearing.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.