Council of the New South Wales Bar Association v Kintominas

Application for Disciplinary Findings

1. This decision deals with the application for disciplinary findings. The Tribunal will resume at a later date to hear submissions in relation to the appropriate disciplinary orders.
2. The applicant's evidence (Ex A1) consists primarily of the affidavit of Philip Alan Selth, Executive Director of the applicant, and contains behind Tab 4 a report of the applicant's investigation and resolutions in this matter. The Tab includes numerous items of correspondence and other communications such as emails that passed between the applicant and the respondent in the period under notice in these proceedings (23 October 2014 to 11 August 2016). Tabs 5 and 6 contain (1) an assessment of the respondent's health from the respondent's treating doctor, Dr Marissa A Antony, Respiratory and Sleep Medicine Physician, Kogarah, dated 12 July 2017, and given to the applicant by the respondent; and (2) an assessment of the respondent's health by the respondent's treating psychologist, Mina Cadalepas, dated 21 August 2017, also given to the applicant by the respondent.
3. In his Reply dated 4 May 2017 and at a directions hearing held on 29 August 2017 in preparation for the hearing, the respondent indicated that he disputed some aspects of the factual particulars relied upon by the applicant. However, at hearing those objections were not pursued. The respondent does not now contest any of the facts as to the conduct recited by the applicant in Ground A and Ground B.
4. Through his counsel, Mr Molomby SC, he conceded that the conduct set out in Ground A justified a finding of professional misconduct. He disputed the applicant's contention that the conduct recited in Ground B amounted to professional misconduct, and submitted that we should find that it amounted, at most, to unsatisfactory professional conduct.

Ground A

1. Ground A asserts that The Respondent is guilty of professional misconduct in that he misled the Council of the New South Wales Bar Association in emails sent to the Deputy Director, Professional Conduct on 12 March 2015 and 30 June 2015.
2. The Particulars in support then set out the text of the conditions as imposed on 23 October 2014, and the history of the respondent's relevant correspondence with the applicant in the period 23 October 2014 to 20 January 2016.
3. In the email of 12 March 2015 the respondent reported on steps he had taken to comply with the conditions. He sent a second email on 19 May 2015 giving further information. That was followed by an email dated 30 June 2015 which included his application to renew his practising certificate for the year 2015-2016, and made further statements as to his present state of compliance with the conditions.
4. The particulars then refer to a statement provided by the respondent to the Council on 20 July 2015 in which he sets out a table of payments made to the ATO in discharge of his outstanding tax liabilities, and to a further letter, 29 July 2015, enclosing further documents in that regard.
5. The applicant had not as yet agreed to grant the respondent's application for a practising certificate for the 2015-2016 practice year. The respondent sought in the statements made 20 July 2015 and 29 July 2015 to show that he had now substantially met his debt to the ATO, provided account was taken of a likely tax credit in respect of his income for the tax year 2014-2015 once his return for that year was assessed.
6. In the letter of 29 July 2015 he said (p3): I acknowledge that the statement in my email of 12 March 2015 this year that my September 2014 quarter Activity statement had been lodged and paid was not true at the time and that the assertions made in my email of 30 June 2015 that all outstanding BAS returns had been lodged and paid, and that the 2013-2014 Tax Return had been lodged and that an amount had been paid to the Tax Office to cover the likely assessment, were not true at the time. I am ashamed to make this admission and I am appalled and angry with myself for putting in jeopardy my reputation and integrity which I have worked hard to establish over more than a quarter of a century. I wish to explain the circumstances in which I regrettably misled the Bar Association, not because I believe the explanation justifies my conduct but because I owe it to the Bar.
7. The letter foreshadowed a letter to be delivered by 10 August 2015 providing this explanation. In relation to Ground B, but not Ground A, Mr Molomby relied upon the letter that was provided by the respondent dated 10 August 2015. We refer to this below when dealing with Ground B.
8. The respondent again acknowledged that he had misled the applicant in what he had told it in the emails of 12 March 2015 and 30 June 2015 in later letters received 11 August 2015 (Tab 18), 18 August 2015 (Tab 29), 27 October 2015 (Tab 35) and 20 January 2016 (Tab 39).
9. At hearing he accepted that he had misled the applicant in the following ways: 12 March Email 1. His statement that he had lodged his September quarter BAS was false. He did not lodge it until 13 July 2015. 2. His statement that his December quarter BAS was due by 'Friday' (i.e. 13 March 2015) was false. It was due by 3 March 2015. 3. His statement that the December quarter BAS would be lodged and paid on time was false. It was already overdue and the respondent did not lodge or pay it until 13 July 2015. 4. His statement that he did not owe any money to the ATO was false in that his September quarter BAS and December quarter BAS were outstanding as at the date of the March email. 5. He falsely represented that he had complied with the conditions, thereby misleading the applicant. 6. The statements were intended to mislead the applicant to a view that he had complied. 7. He sent the email for the purposes of representing he had complied with the conditions. June Email 1. He falsely represented that he had now lodged his BAS returns. 2. He falsely represented that he was now up to date in meeting his tax obligations. 3. He made those statements with the intention of misleading the applicant so that it would renew his practising certificate for the year 2015-2016. 4. He falsely represented that he had complied with the conditions of his practising certificate.

Ground B

1. Ground B asserts that: The Respondent is guilty of professional misconduct (or in the alternative unsatisfactory professional conduct) in that he failed to comply with the conditions imposed on his practising certificate by the Council of the New South Wales Bar Association on 24 October 2014.
2. The Particulars Itemise the alleged non-compliances.
3. Financial and related reporting conditions: Condition 1 required the respondent to deal with his tax payment and reporting obligations to the ATO as they fell due. He has admitted: (a) that he did not lodge and pay his September quarter BAS by 28 October 2014 (but did so on 13 July 2015) (b) that he did not lodge and pay his December quarter BAS by 3 March 2015 (but did so on 13 July 2015) (c) that he did not lodge and pay his March quarter BAS by 28 April 2015 (but did so on 13 July 2015)
4. Conditions 2 and 3 concerned the detail of his financial reporting obligations to the applicant. He has admitted that he failed to comply with the reporting condition requiring the first financial compliance report and the first medical compliance report by 16 February 2015. He admitted that he did not provide the financial and medical reports required by 16 May 2015 and purported to comply by means of the later May and June emails.
5. Health and related reporting conditions: Condition 4 required him to attend upon Mr Goldman regularly and for such period as recommended by Mr Goldman. He sent an email to the respondent on 18 March 2015 in which he stated that he had attended on Mr Goldman on 16 March 2015, and Mr Goldman advised him to see him every week or two for the next two months, at which time he would indicate how long treatment should last; and that his next appointment was 25 March 2015. The respondent subsequently informed the applicant (on 19 May 2015 and 19 August 2015) that he had not seen Mr Goldman since the attendance of 16 March 2015, thereby breaching his obligation to continue treatment on a regular basis as specified by conditions 5 and 6.

Possible Explanations for Conduct

1. The respondent did not place before us any affidavit evidence that might explain or mitigate the conduct under notice. We have referred earlier to the presence in the material placed before the Tribunal of two health assessments provided to the applicant by the respondent (from Dr Antony and Ms Candelapas). We have not taken them into account at this point, for reasons explained later.
2. Mr Molomby did rely upon explanations supplied by the respondent in his letter to the Bar Association dated 10 August 2015 (Tab 18) and the quarterly report dated 12 August 2015 (Tab 22). In doing so, he pointed out that these had been tendered by the applicant without limitation and amounted to admissions by the respondent. Mr Maddigan took issue with the weight that should be attributed to such material. In circumstances where the explanatory statements are self-serving and have not been the subject of affidavit evidence from the respondent in these proceedings, we are not prepared to accept the truth of such material.
3. Mr Molomby made submissions based on the evidence as it stood in relation to the issue of whether the conduct the subject of Ground B ought to be treated as professional misconduct or unsatisfactory professional conduct.
4. He submitted that Ground B involved a pattern of failure that did not extend over a period of much more than 6 months. The first quarterly BAS payment had been due on 28 October 2014, and it was paid on 13 July 2015, as were the late payments due on 3 March 2015 and 28 April 2015. He also submitted that the degree of his non-compliance had been overstated in the particulars accompanying Ground B. He relied on an ATO notice (Ex R1) headed 'Terms and conditions - two weeks deferral offer' which allowed taxpayers who used the online payment facility a further two weeks beyond the due date to lodge their BAS statements. The availability of that facility was not disputed by the applicant. We accept that this factor mitigates to a small degree the degree of lateness of his lodgements.
5. He submitted that the respondent's failures were not as serious as those seen in three recent cases involving similar breaches to which Mr Maddigan, for the applicant, had drawn attention in his submissions. Those were Council of the NSW Bar Association v Quinlivan [2015] NSWCATOD 54; NSW Bar Association v Harkin [2015] NSWCATOD 111; and Council of the New South Wales Bar Association v Barnett [2016] NSWCATOD 153.
6. In Quinlivan, among other matters, the barrister had failed to comply with his tax obligations over a considerable period of time, at one stage had a debt to the ATO of $850,000, and had been bankrupt on at least two occasions.
7. In Quinlivan the Tribunal accepted that the barrister's behaviour was largely attributable to an addiction to gambling compounded by difficulties in his personal life and in his health due to an escalating condition of multiple sclerosis. The barrister admitted numerous failures in complying with practice conditions of a similar kind to those under notice in this case, but more extensive. He acknowledged that he had misled the Bar Council in serious respects in relation to the nature and extent of his income, and the like. Nonetheless the Tribunal expressed itself satisfied that by the time the matter reached it for determination, on the basis of medical reports and the opportunity it had to see Mr Quinlivan in the witness box, that he ought be allowed to remain on the Roll and be permitted to work as an employed solicitor, subject to various conditions.
8. The Tribunal did make findings of professional misconduct in relation to all matters alleged, including Mr Quinlivan's non-compliance with BAS requirements.
9. We accept that the present case is one of much lesser dimensions. For example the quarterly amounts due to the ATO for the period July 2014 to June 2015 totalled $11,511 and the respondent reported professional income of the order of $27,000 for the 2014-2015 tax year (tab 16). We accept that the conduct under notice in the present case is not nearly as egregious as that seen in Quinlivan.
10. In the case of Harkin, the Tribunal made adverse findings in relation to the way the barrister discharged his professional duties to his clients as well as failures in adhering to his regulatory and compliance obligations (notably, practising without a current practising certificate, with the result that he had no professional indemnity cover). We acknowledge that in this case there are no practice competence issues. We note there were also practice competence issues in Quinlivan. The present application relates entirely to compliance with external obligations, those owed by the respondent to the community in relation to taxation, and those owed by the respondent to the Bar Council in relation to reporting and compliance with practice conditions.
11. In Barnett, the barrister acknowledged his failure to comply with BAS return conditions and financial reporting conditions imposed on his practising certificate, imposed after he pleaded guilty to 15 taxation offences in 2009. He had a prior history of failures in meeting his tax obligations going back more than 20 years, that had led to imposition of practice conditions on an earlier occasion. We acknowledge that too was a case where the number and extent of his BAS reporting and related failures exceeded significantly the number under notice in this case. The Tribunal made a global finding of professional misconduct.
12. Mr Molomby submitted that so far as Ground B was concerned the respondent's failures to remedy his non-compliance with his BAS quarterly reporting requirements were remedied in a short period of time, the amounts involved were small, and the failure to comply was not connected to not having money or not wanting to pay.
13. As to his client's behaviour, Mr Molomby noted that while he had given a false report on 12 July 2015 to the Bar Council as to his state of compliance, he lodged, the very next day 13 July 2015, the three BAS returns and the required payments. He submitted that this behaviour manifested a 'desperate hopelessness' over getting on with filling in the forms and making the payments.
14. The submission as to the psychological reasons for his behaviour was a speculative one.
15. Mr Molomby argued that his client's conduct as revealed by Ground B did not amount to unsatisfactory professional conduct of such a degree that satisfied the meaning given to professional conduct by s 297 of the LPUL, i.e. 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) ….
16. He argued that the behaviour dealt with by Ground B could not properly be characterised as involving a 'substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence'. He argued that a finding of unsatisfactory professional conduct was more appropriate. Section 296 provides: 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.
17. Mr Maddigan in reply noted that there was no evidence before the Tribunal that might enable us to assess the truth or otherwise of the submissions made on the respondent's behalf as to his attitude and state of physical and mental health that may have affected his compliance with the conditions the subject of Ground B.
18. He noted also that the submissions on the respondent's behalf had concentrated on the BAS reporting failures, and made no reference to his non-compliance with the health conditions involving attendance on Mr Goldman and subsequent reporting. He disputed the suggestion that the period of non-compliance was less in time than in Barnett. In our view Barnett did involve a longer time period of non-compliance, in particular with the BAS obligations.
19. In response to the suggestion that there was no evidence before the Tribunal in relation to the respondent's physical and mental health, Mr Molomby drew attention to the material behind Tabs 5 and 6 of Ex A1, the assessments made by the respondent's treating doctor and psychologist of his physical and medical health.
20. While it may the case, as he submitted, that they were therefore in evidence before us, we are disinclined to give them any weight at this stage of the proceedings, as we have not heard anything directly from the respondent, and the opinions expressed in those reports may be sought to be tested at the next stage of the proceedings. It is apparent in two of the recent cases canvassed by the parties, Quinlivan and Barnett that the respondent actively participated in the proceedings, gave evidence to the Tribunal and medical and similar reports were closely considered. That has not occurred at this juncture in this case.

(1) Ground A

1. In our view, there can be no doubt that, as submitted and not disputed by the respondent, the conduct to which Ground A relates constituted professional misconduct in the way that concept is interpreted and explained in the common law precedents: as to which see generally, Harkin at [21]-[29]. His conduct is conduct that would properly be regarded as dishonourable and disgraceful by a barrister's peers of good repute and competency: see, generally, New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [36]-[56] (Cummins).
2. It is now accepted that a finding of professional misconduct against a legal practitioner may extend to conduct that 'may be sufficiently closely connected with actual practice, albeit not occurring in the course of such practice' and 'conduct outside the course of practice [which] may manifest the presence or absence of qualities which are incompatible with, or essential for, the conduct of practice': Cummins, per Spigelman CJ (Mason P, Handley JA, agreeing) at [56]. See also, A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 at [20] per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ.
3. The respondent's conduct in repeatedly misleading the applicant involved a grave departure from the standards expected of a practitioner in dealing with his or her professional association. He made a series of false and misleading statements to the senior officers of the association in relation to compliance with the conditions imposed on his practising certificate.
4. A regulated professional has a duty to co-operate and deal candidly with the regulatory bodies that govern him or her. Interactions of the kind that occurred in this case waste the time of the regulatory body, increase the cost of its operation, cost that is borne by other members of the profession through their licensing fees or by the government and taxpayers generally. Persistent unco-operative conduct has the potential to diminish public confidence and respect for the regulatory body. The behaviour of the respondent points to a lack of integrity and weaknesses of character of a serious kind. While his misconduct was not nearly as egregious as that seen in some of the cases involving non-compliance by barristers with taxation obligations and conditions imposed by the Bar Council (most notably, Cummins), his failures remain very serious ones.

(2) Ground B

1. Ground B raised separately the question of whether the conduct to which it related might warrant a finding of professional misconduct.
2. The Application stated that the respondent had admitted in letters to the applicant dated 18 August 2015 and 20 January 2016 that he failed to comply with the conditions imposed on his practising certificate for the year ending 30 June 2015. In his Reply to the Application dated 4 May 2017 the respondent did not fully admit all of the matters particularised in Ground B. However he did concede at that point that he should be found guilty of unsatisfactory professional conduct in relation to the matters that he had admitted. At hearing he unreservedly admitted all matters.
3. As previously noted, the respondent failed to meet on time his quarterly tax reporting and payment obligations for the September, March and June quarters of the 2014-2015 tax year on time. He eventually brought his house into order with the payment made covering all three quarters on 13 July 2015. He did not comply with the obligation to provide follow up reports in relation to each quarter to the applicant. He failed to provide the applicant with follow up reports in relation to his contact with Mr Goldman. Moreover he informed the applicant on 12 August 2015 that he had not seen Mr Goldman since the beginning of April 2015, thereby not undertaking the treatment program contemplated by the conditions.
4. It will be seen that there was a period over many months when the applicant practised in breach of his permission to do so.
5. As noted earlier in these reasons, Mr Molomby opposed the applicant's submission that it was open to the Tribunal to find that the non-compliances itemised in Ground B amounted to professional misconduct.
6. Mr Molomby submitted that, at most, the Tribunal should find his client guilty of unsatisfactory professional misconduct. He emphasised the relatively small sums that had been owed to the Tax Office, and that he did rectify the failures in the period September 2014 to June 2015 by the payment made in July 2015.
7. We accept that the respondent's conduct as itemised by the particulars to Ground B is less serious than that itemised in Ground A.
8. Ground A concerns the active making of communications to the regulator that were false or, at the least, deceptive and misleading. They occurred in a professional environment of trust. Ground B focuses on the applicant's inaction in responding to the reporting and related requirements imposed on him by the practising certificate conditions.
9. In our view, the respondent's failure to comply with conditions of his practising certificate is, for present purposes, a more serious matter than the failure to meet the quarterly tax payment obligations involved in this case.
10. Characterisation of Conduct: The first question is whether the breaches of the conditions itemised in Ground B might properly be said to amount to 'unsatisfactory professional conduct'.
11. The concept of 'unsatisfactory professional conduct' is not strictly defined by the s 296 of the LPUL. As noted earlier, it is defined to include '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'. Section 298 lists a series of instances of conduct that might be 'capable of constituting either unsatisfactory professional conduct' or 'professional misconduct'. The list is not exhaustive. It is an offence not to comply with the conditions of a practising certificate, subject to a civil penalty, maximum, 100 penalty units: see s 54. Such a contravention is 'capable of constituting unsatisfactory professional conduct': s 298(a).
12. A member of the public would, we consider, expect strict adherence by a practitioner to any conditions imposed on his practising certificate. Ordinarily, a practitioner is permitted to practise unencumbered by special conditions. The imposition of special conditions points to doubts in the mind of the regulator as to the practitioner being allowed to practice unencumbered. It points to concern on the part of the regulator that the public needs additional degrees of protection from possible harm, beyond those conferred by the requirements for admission to practice and the disclosures and commitments that form part of the annual practising certificate cycle.
13. The conditions under notice are those imposed for the 2014-2015 year. The respondent had little regard to them. This is not an instance of a one-off or isolated contravention, which might not justify an adverse disciplinary finding. There was a series of contraventions, and, as we have said, which occurred over a number of months. In our view the respondent clearly engaged in unsatisfactory professional conduct of the kind to which s 296 refers.
14. The meaning given to the concept of 'professional misconduct' in s 297(1) is also non-exhaustive. The provision refers specifically to two of the situations that might be regarded as justifying a finding of professional misconduct. The first of these - s 297(1)(a) - is of most relevance to this case. To reiterate, it treats as professional misconduct - (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.
15. The question for us is whether there was in this case (emphasis added) 'a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence'.
16. In expiation, Mr Molomby submitted that we should take into account: the following matters - that his failures were remedied in a short period of time, that the amounts of money he failed to pay on time to the tax office were small (of the order of $3,000-$4,000) and they were brought into order by the payment made 13 July 2015. Mr Molomby's submissions focused on his client's non-compliance with the tax conditions. They did not address in an itemised way his client's failures to comply with the health treatment and health reporting conditions.
17. Mr Molomby made a general submission that his client's various failures were not venal but health and personality disorder related. The applicant's bundle of documents for the proceedings did include treatment reports from health professionals who have been treating the respondent (see para [10] above). Those reports had only recently been provided to the applicant. We did not have any independent assessments of that material. The respondent's material includes personal testimonials from senior practitioners, and they refer to health and personality factors that might, in their view, explain his conduct.
18. Our task at this stage of the proceedings is, we consider, to assess the objective seriousness of the conduct under notice. We do not regard it as relevant to our task at this stage of the proceedings to give any significant weight to the reports from his health practitioners and from senior legal practitioners.
19. In our view, the respondent's failures to comply with the conditions were repeated and amounted to an almost total disregard of them for a substantial part of the year to which they applied. In our view the conduct amounts to professional misconduct within the meaning of s 297(1)(a) of the LPUL.
20. We should add that we do not see the conduct particularised in Ground B as sufficient to justify a finding based on s 297(1)(b) of the Act which refers to conduct that demonstrates that the 'lawyer is not a fit and proper person to engage in legal practice'. The contraventions belonged, we acknowledge, to a confined period of time, and so far as his tax obligations were concerned they involved amounts which were not large and he did, by the payment of 13 July 2015, bring himself into a state of compliance. For similar reasons, we do not see this as case that would meet the common law standard.

Orders 1. The Tribunal finds the respondent guilty of professional misconduct in relation to both Grounds of the Application. 2. The matter is to be relisted before the presiding member for the making of directions and the fixing of a date for the Stage 2 hearing in relation to the appropriate disciplinary order.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 November 2017