Council of the New South Wales Bar Association v Levick

NCAT Occupational|2018-03-27

The applicant's evidence

The applicant's evidence comprised an affidavit of Gregory Tolhurst affirmed 18 September 2017 and exhibit GT - 1 to that affidavit. In par 11 of her reply, the respondent stated that she accepted the content of that affidavit and the documents contained in the tabs of the exhibit.

Instrument of consent

At the commencement of the hearing of the application, counsel for the applicant announced that the parties had agreed to an instrument of consent subject to costs. The Tribunal was then provided with a copy of the instrument. It included a list of agreed facts, consent orders and a statement that there were no disputed facts.
The agreed facts included some relevant background facts which occurred prior to the above letter dated 23 March 2016. It included reference to the letters dated 13 and 27 April 2016 and 9 May 2016. It also included reference to the letter dated 9 August 2017. The final paragraph of the agreed facts stated that the respondent admitted that by her letter dated 27 April 2016 she misled the applicant by making statements which were false and/or misleading.

The respondent's evidence

The respondent's evidence comprised her affidavit sworn on 4 December 2017, eight character references, a report from a Dr Collins who has been treating the respondent since 1998 and an expert's report from Dr Olav Nielssen who is a qualified psychiatrist and who has been practising as a specialist in psychiatry since 1993.

The respondent's affidavit

The respondent referred to her work with the National Rugby League and the fact that she came to work very closely with the founder of the Rugby League Players Association, Dr Tilda Khoshaba. The respondent stated that she always admired the passion of Dr Khoshaba and her devotion for her work over some 16 years.
The respondent stated that on or around 18 March 2016, in very unfortunate circumstances with only a few days' notice, a newly appointed CEO decided to terminate Dr Khoshaba's employment, restructure the organisation and employ a number of his ex-players to do her job. The respondent wrote to the Board to protest on her behalf. The following day, at the request of Dr Khoshaba she released the letter she wrote to the Board to a journalist to make this injustice more public.
The respondent referred to the letter of 13 April 2016 from Mr Selth and stated that she only first received and read the letter on the day the response was due as she had been away from chambers during the school holidays. The respondent went on to say: I was upset and shocked to receive Mr Selth's letter. At that time, I was already under much stress as a result of my own personal family situation and the added stress of having to provide a prompt response to the Bar Association about a matter that related to my practice made me very anxious. I acted foolishly and without proper thought or consideration. I answered untruthfully that I had not provided the letter to any media outlet. I have found it very difficult to understand how it is that I gave a dishonest response to the then Executive Director of the Bar Association, someone I had grown to know and very much respected. I realise that my response was a serious breach of my professional duties and responsibilities. I know that candour is an essential requirement in all barristers' communications - especially with their regulators. I accept full responsibility and am totally ashamed of and embarrassed by my actions. It is not my usual character to tell untruths and I know it will never happen again. It is an example of serious misconduct as barristers should be trusted not to mislead or tell untruths.
The affidavit also stated that the stress that is referred to above pertained to ongoing domestic violence at home. The respondent concluded her affidavit with the following three paragraphs: It is submitted that none of these family traumas can excuse my conduct for a moment, but they are set out in this affidavit simply to give some context as to the level of stress I was under at the time of my offending conduct and how it affected my state of mind. I take my role as a barrister very seriously and acknowledge that my position is one of privilege in the community, one which I am most humbled to hold. I once again express my deepest apologies for my conduct.
The family traumas are set out in detail in the respondent's affidavit and in her written submissions dated 21 March 2017 to the New South Wales Bar Association. It is unnecessary and inappropriate for the detail to be recorded in these reasons.

Character references

The solicitors for the respondent wrote to the eight persons who provided references. The letters from the solicitors were in similar form and made the recipients aware of the complaints which had been made against the respondent. Copies of the relevant letters and submissions were provided as was a copy of the application filed in the Tribunal. A copy of the respondent's reply was also provided.
The references provided by these people were all supportive of the respondent. The Tribunal accepts that the eight people have expressed their honestly held views concerning the respondent. In the circumstances of this case there is no need to set out in these reasons the full details of these character references. We will therefore restrict our comments to a very brief reference to parts of these references.
Mr William Dawe QC believes the respondent is a competent lawyer and will not behave in a similar manner again. He is of the view that the respondent is a fit and proper person to continue practice as a barrister and a valuable member of the bar of New South Wales.
Mr Scott Field has known the respondent on a professional basis for over six years. He is in no doubt that she is a fit and proper person and has the capacity to continue to practise as a barrister.
Mr Richard Allaway has had professional interactions with the respondent over the past seven years. Mr Allaway is the director of social services of a treatment program for alcohol and other drug dependent people. The respondent has introduced a significant number of participants to that program over many years. Mr Allaway stated that he could not emphasise or describe with any greater vigour the contribution that the respondent has made to allowing participants to become the people they were supposed to be.
Ms Abigail Tisbury has known the respondent on a professional and personal basis for approximately 15 years. She stated that the conduct was completely out of character and she believed the explanation to be based in the acute stress that the respondent was subject to due to the deterioration of her family life. Ms Tisbury is of the view that the respondent is genuinely shocked and repentant for the conduct and she does not believe that similar type conduct will ever be repeated. In her view the respondent is a person of integrity and trustworthiness.
Mr Andrew Dikha is a solicitor and started briefing the respondent in 2011 or 2012. In his opinion the respondent has always been a competent lawyer who cares for her clients. Mr Dikha stated that he could see no reason why the respondent's ability to continue to practise as a barrister was compromised. In his view the mistake the respondent made does not tarnish the fact that she still remains a fit and proper person to practise.
Mr Watson-Munro is a consultant forensic psychologist to whom the respondent has been referring clients since 2010. He has worked in the criminal justice field for nearly 40 years and in his opinion the respondent is one of the most competent and highly professional legal practitioners that he has worked with. In his view the respondent's input in terms of her responsibility to her clients often far exceeds what would normally be expected of a practitioner. He believes the respondent is a fit and proper person to continue in her profession as a barrister.
Mr Mark Buckman is a cousin of the respondent and has known the respondent all of her life. He has only ever known her to be an upstanding person and member of the community, often defending the underdog and frequently engaging in pro-bono legal work for those unable to fund their own expense. He knows that she has provided extensive pro-bono legal assistance to the indigenous community in Redfern. He regards the respondent as a person of compassion, honesty and integrity and believes that the community would be seriously disadvantaged should she no longer be able to practise as a barrister.
Mr Luke Freudenstein has known the respondent since 2012. He is involved in programs designed to assist aboriginal persons. He is aware that the respondent collects prison inmates, whom she has represented at court, upon their release and reintegrated them back into society. He often speaks with the respondent in relation to vulnerable, mostly aboriginal, youth and the best way they can assist them.

Medical evidence

Dr Graham Collins is a medical practitioner and the respondent has been a patient of Dr Collins' practice since 1998.
The solicitors for the respondent wrote to Dr Collins a letter similar to the letters written to the eight persons who provided character references. The solicitors also provided to Dr Collins copies of the same documents which they provided to those eight persons.
Dr Collins stated in his report that he was aware of significant marital and family disharmony suffered by the respondent during the period in question and that the respondent suffered from very significant stress through the whole of 2016 and 2017.
Dr Collins expressed the view that the respondent's domestic and health circumstances may have had a detrimental effect on her professional judgement at the time in question.
Dr Olav Nielssen is a qualified psychiatrist and has been practising as a specialist in psychiatry since 1993.
The solicitors for the respondent wrote to Dr Nielssen a letter similar to the letter written to Dr Collins. The solicitors also provided Dr Nielssen with copies of the same documents sent to Dr Collins together with other documents, one of which was an affidavit sworn by the respondent.
Dr Nielssen's report dated 5 December 2017 included statements that based on the history elicited and the information in the various documents, he believed that at the time of the events that were the subject of the complaint, the respondent could have been diagnosed as having an acute stress disorder arising from stressors in her personal and professional life.
Dr Nielssen also stated: I believe Ms Levick's mental state arising from her circumstances at the time to be a major contributing factor to her initial denial of the allegation of having passed on the letter to a journalist, as a typical response to the acute stress created by having too much to do and not enough time to pay proper attention to new problems is avoidance behaviour, for example, by denying the problem rather than by investigating the basis (sic) the complaint and obtaining proper advice as to how to respond.
Dr Nielssen concluded his report by stating that he did not find that the respondent had a current psychiatric disorder that might affect her capacity to follow her profession as a barrister.

Instrument of consent - more details

The instrument of consent which was filed on 27 March 2018 was signed by the solicitors for each of the parties. It referred to the orders sought by the applicant; summarised the grounds for the application; recorded that the parties agreed to the "following facts" which agreement was subject to the Tribunal making the orders sought by the parties; set out 17 paragraphs of agreed facts; and set out orders and a finding which were agreed by the parties.

Agreed facts

The agreed facts were recorded in paragraphs 6 - 17 of the instrument of consent and were as follows: 6. The Respondent is, and has been since 29 August 2003, and Australian lawyer and an Australian legal practitioner within the meaning of s 6 of the Uniform Law, having been admitted to the Roll of Legal Practitioners (as it then was) in the Supreme Court of New South Wales on 29 August 2003. 7. The Respondent was at all material times an Australian legal practitioner within the meaning of s 6 of the Uniform Law having been first issued with a barrister's practising certificate that was subject to conditions and restrictions imposed on pupils by the then rules of the New South Wales Bar Association on 12 October 2010 before holding an unrestricted practising certificate from16 November 2011 at all times thereafter. 8. On 20 March 2016, the Respondent sent a letter to the Rugby League Players Association ('RLPA') regarding the proposed redundancy of her client, Tilda Koshaba's role ('the RLPA Letter'). 9. On 21 March 2026, an article was published by the Sydney Morning Herald titled 'NRL stars expected to rally around quiet achiever Tilda Khoshaba in RLPA battle' ('the Article'). The following parts of the RLPA letter are quoted in the Article: (a) 'any battle will be fought "in a very public arena that will squarely question the integrity and commitment of the RLPA'; and (b) '[g]entlemen, with the utmost respect I strongly suggest you seek competent legal advice from Counsel with expertise in employment law. As it currently sits the proposed course of action has no legitimate legal basis and exposes the RLPA and its directors to significant liability'. 10. On 23 March 2016, Philip Selth (the then-Executive Director of the New South Wales Bar Association ('the Bar Association')) had a telephone conversation with the Respondent, during which issues relating to the Article and the RLPA Letter were discussed. Later that day, the Respondent emailed Mr Selth regarding the issues raised during the telephone conversation. 11. On 13 April 2016, the Bar Association wrote to the Respondent and requested that she provide it with additional information and documents in relation to seven issues, and among other things, asked the Respondent: (a)(5) What knowledge do you have of how your letter dated 20 March 2016 to the Ruby League Players Association came to be in the public domain? (b)(6) In particular, did you give a copy, or send, a copy of your letter to any media outlet or any person representing a media outlet or did you suggest to, or request, any other person that they do so? (c)(7) To whom did you give, or send, a copy of your letter dated 20 March 2016 to the Rugby League Players Association and/or any other correspondence and Deed and when and in what circumstances did that occur? 12. On 27 April 2016, by way of letter dated 27 April 2016 and sent by email to the Bar Association, the Respondent provided responses to the seven issues raised by the Bar Association. The Respondent's letter contained the following representations in response to the Bar Association's letter dated 13 April 2016: (a)5. It is uncertain to me how the letter dated 20 March 2016 came to be in the public domain. (b)6. No, I did not. (c)7. At the instruction of Dr Khoshaba I sent the letter dated 20 March 2016 and a copy of the draft Deed of Release to each 7 members of the RLPA Board by email. This correspondence was sent to each of the 7 Board members on 20 March 2016 in the sole circumstance of attempting to encourage the RLPA to obtain independent legal advice with a view to averting future litigation in relation to any potential unfair dismissal claim or sex discrimination claim that may arise. 13. On 9 May 2016, by way of letter to the Bar Association, the Respondent provided the Bar Association with a signed hard copy of her response dated 27 April 2016 to the Bar Association's 13 April 2016 letter. 14. On 18 July 2016, by way of letter, the Bar Association notified the Respondent that the Council of the New South Wales Bar Association had resolved to make a complaint against her to the Office of the Legal Services Commissioner alleging that she had engaged in professional misconduct or unsatisfactory professional conduct ('the Complaint'). 15. On 9 August 2016, by way of letter dated 9 August 2016 attached to an email to the Executive Director of the Bar Association, the Respondent informed the Bar Association that she wished to correct the responses to questions 5 and 6 in her 27 April 2016 letter and confirmed that she did provide the RLPA Letter to a journalist. 16. Also on 9 August 2017 (sic), by way of email to the Deputy Director, Professional conduct of the Bar Association, the Respondent provided written submissions in relation to the Complaint. The Respondent's submissions confirmed that she did provide the RLPA Letter to the journalist. 17. The Respondent admits that by her letter dated 27 April 2016 she misled the Applicant by making statements which were false and/or misleading.
The instrument recorded that there were no disputed facts.
The instrument also recorded the following consent to orders: 18. The Applicant and the Respondent have agreed upon the terms of this Instrument of Consent and agree to the Tribunal making the following findings and orders: (a) the Tribunal finds that the Respondent engaged in professional misconduct by her conduct set out in paragraphs 11 - 13 of the Instrument of Consent; (b) pursuant to sections 302 (1) and 302 (5) of the Uniform Law, the Tribunal orders that the Respondent be publicly reprimanded; and (c) the Respondent to pay the Applicant's costs of the proceedings, including costs of the hearing before the Tribunal, agreed in the sum of $22,000 inclusive of all costs, disbursements and counsel's fees.

Amendment of instrument of consent

During the hearing on 27 March 2018 it was agreed that the instrument of consent should be amended by adding the following par 17A to the instrument of consent: 17A As the Respondent admits in paragraph 4 of the Reply filed on 11 October 2017, the Respondent says: (a) the Respondent again admits her responses to questions 5, 6 and 7 of Mr Seth's letter dated 13 April 2016 were misleading and dishonest, and she acted in haste; (b) at the relevant time, the Respondent was in a highly stressed and emotional state due to her family circumstances involving domestic violence and this affected her state of mind; and (c) the Respondent is incredibly ashamed of her actions and remorseful.
The amended instrument of consent was signed by the solicitors for the parties and was subsequently filed in the Tribunal.

Consent orders

Section 144 of the Legal Profession Uniform Law Application Act 2014 makes provision for the Tribunal to make consent orders. For present purposes it is sufficient to set out here subsections 144 (1) and (10): (1) The Tribunal may, with the consent of the respondent lawyer contained in a written instrument, make orders without conducting or completing a hearing in relation to the complaint. (10) In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
Section 564 of the repealed Legal Profession Act 2004 also made provision for the Tribunal to make consent orders. The two sections are similar and for present purposes it is only necessary to set out here subsections 564 (1) and (10): (1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.
For the purposes of this case, in our view, there is no practical difference between subsections 564 (1) and (10) of the Act and subsections 144 (1) and (10) of the Legal Profession Uniform Law Application Act 2014.
The approach that the Tribunal should adopt when dealing with proposals for consent orders under s 564 of the Act has been given consideration by the Tribunal in a number of cases, including Council of the New South Wales Bar Association v Breeze [2015] NSWCATOD 152. In that case the Tribunal was of the view that the approach of the predecessor to this Tribunal in Council of the New South Bar Association v Butland [2009] NSWADT 177 remains applicable (see Breeze at [20]).
In Butland the Tribunal made the following statements: 29. Section 564 (1) and (10) of the Legal Profession Act makes plain that the Tribunal has a discretion whether or not to make orders consented to in an instrument of consent under that section. The Tribunal does not act, nor should it be seen, as merely a "rubber stamp" ….. Nonetheless, the consents of the parties and the Legal Services Commissioner are matters that deserve significant weight. 30. These circumstances are similar to, and some guidance can be derived from, cases where courts exercising regulatory or disciplinary powers are presented with joint submissions by the parties (often including the relevant regulator) as to the appropriate civil penalties and consent orders which they request the Court to make.… 33. If the necessary adjustments to these principles are made to take into account the express statutory regime under s 564 of the Legal Profession Act and the particular nature of the disciplinary powers being exercised by the Tribunal, we believe they provide useful guidance as to the exercise of the Tribunal's discretion in cases such as the present.
In Breeze the Tribunal not only considered the question whether the proposed consent orders were within the permissible range, but also, despite their conclusion that they were within the permissible range, whether there were any public interest factors that would cause the Tribunal to conduct and complete a hearing - see [24] of Breeze. In our view there are no public interest factors in this case that would cause the Tribunal to conduct a complete hearing.

Professional misconduct

Professional misconduct is defined at common law as behaviour by a lawyer that would reasonably be regarded as disgraceful or dishonourable by her or his professional brethren of good repute and competency. (The Allinson test - Lawyers' Professional Responsibility - Dal Pont, 5th edition at [23.85]. See also Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203D - F per Glass and Samuels JJ).
We are of the view that the respondent's conduct referred to in pars 11 - 13 of the instrument of consent, is professional misconduct at common law.

Should the respondent be reprimanded?

The main purpose served by disciplinary proceedings is protective. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers (Lawyers Professional Responsibility - Dal Pont, 5th edition [23.20]). The protection of the public is not confined to the protection of the public against similar defaults by the lawyer in question. It extends also to the protection of the public against similar defaults by other lawyers and has, in this sense, the purpose of publicly marking the seriousness of what the instant lawyer has done (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441 per Mahoney JA).
A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct (Solicitors Manual - The College of Law - Vol 1 [33,060, F/N3 and 4]).
In our view a reprimand should bring home to the respondent and other members of the profession the seriousness and the necessity of being truthful in their professional dealings with the applicant and in their other professional dealings. We are therefore of the view that a reprimand is appropriate in this case.

Orders

As mentioned in par 5 above, the Tribunal made its finding and orders on 6 April 2018.

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: 09 July 2018

Legal Profession Act 2004(NSW)

The hearing

The application was heard on 27 March 2018 and the Tribunal reserved its decision. On 6 April 2018 the Tribunal made a finding and orders which disposed of the application and stated that its reasons would be published at a later date (Council of the New South Wales Bar Association v Levick [2018] NSWCATOD 48). These are those reasons.
The finding and orders made by the Tribunal were as follows: 1. The Tribunal finds that the respondent engaged in professional misconduct by her conduct set out in pars 11 - 13 of the instrument of consent filed on 3 April 2018. 2. Pursuant to ss 302 (1) and 302 (5) of the Legal Profession Uniform Law (NSW), the Tribunal orders that the respondent be publicly reprimanded. 3. The respondent pay the applicant's costs of the proceedings, including costs of the hearing before the Tribunal, agreed in the sum of $22,000 inclusive of all costs, disbursements and counsel's fees.
The conduct of the respondent relied upon to prove Ground A included the following which was comprised in pars 7 and 8 of the application: 7. On 13 April 2016, Mr Selth wrote to the Respondent and requested additional information and documents in relation to seven issues and among other things, asked the Respondent: (5) What knowledge do you have of how your letter dated 20 March 2016 to the Rugby League Players Association came to be in the public domain? (6)In particular, did you give a copy of your letter to any media outlet or any person representing a media outlet or did you suggest to, or request, any other person that they do so? (7)To whom did you give, or send, a copy of your letter dated 20 March 2016 to the Rugby League Players Association and/or any of the other correspondence and Deed and when and in what circumstances did this occur? 8. On 27 April 2016, the Respondent replied to Mr Selth by way of letter attached to an email. In the letter the Respondent made the following representations in response to Mr Selth's request for additional information and documents in his letter dated 13 April 2016: 5. It is uncertain to me how the letter dated 20 March 2016 came to be in the public domain. 6. No, I did not. 7. At the instruction of Dr Khoshaba I sent the letter dated 20 March 2016 and a copy of the draft Deed of Release to each 7 members of the RLPA Board via email. This correspondence was sent to each of the 7 Board members on 20 March 2016 in the sole circumstance of attempting to encourage the RLPA to obtain independent legal advice with a view to averting future litigation in relation to any potential unfair dismissal claim or sex discrimination claim that may arise.
Paragraph 10 of the application stated that the respondent had admitted to misleading the applicant. Particulars were given of four letters written by the respondent, one of which was a letter dated 9 August 2016 to Mr Selth.
On 9 August 2016 the respondent emailed Mr Selth and referred to his letter of 13 April 2016 and her letter in response dated 27 April. The email stated that the purpose of the attached letter was to correct her responses to questions 5 and 6 (in Mr Selth's letter of 13 April 2016). The respondent stated that she unreservedly apologised for this error.
In the attached letter the respondent stated that the purpose of the letter was to correct her responses to the questions asked in questions 5 and 6. The letter then continued as follows: In the Response I stated that I was uncertain as to how the letter dated 20 March 2016 came to be in the public domain and that I did not provide a copy of that letter to the media. Following receipt of the recent letter from the Council of the New South Wales Bar Association and my own investigations, I can now confirm that at the request of my client, Dr Khoshaba, I provided a copy of the 20 March 2016 letter authored by me to a journalist. I have made this known to the Bar Council by way of written submissions. To explain, when I provided the Response, I acted in haste when I stated that I did not provide the letter to the journalist. As such, I confirm that my responses to questions 5 and 6 above in my letter dated 27 April 2016 are incorrect. I unreservedly apologise for the error and am most embarrassed for not answering this question correctly in the first instance. I hope this letter provides adequate clarification and I apologise for any inconvenience caused as a result.

At a glance

Court

Decision date

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Judgment (14 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (3)

Cited By (2)