Council of the New South Wales Bar Association v Mack

Material before the Tribunal

1. The Council relied on: 1. an Affidavit and 523 pages of exhibits by its Chief Executive Officer Andreas Heger of 21 January 2022; . 2. Affidavits including exhibits by Christopher Edward Moore of 5 April 2022 and of 19 April 2023; 3. Affidavits of Andrew Pasternacki of 15 February 2023 and 28 April 2023; 4. an Affidavit of David Oh of 15 February 2023; 5. an Affidavit of Ms Irina Assina of 28 April 2023; and 6. the Respondent's reply to a request for particulars provided on or about 15 July 2022.
2. The Respondent relied upon his Affidavits of 21 November 2022 and of 15 March 2023, an Affidavit by John Stewart of 22 February 2023, and an Affidavit by Arthur Trigis of 10 March 2023. The affidavits of Elias Farah of 10 March 2023 and Albert Darwiche of 13 March 2023 were not relied upon as the Respondent did not make either deponent available for cross-examination.
3. The proceedings were heard by the Tribunal on 26, 27 and 28 March 2023. The Council filed an outline of submissions on 20 February 2023, and a further outline of submissions of 15 September 2023. The Respondent filed an outline of submissions on 9 April 2024. The Council filed an outline of submissions in reply on 23 April 2024. The parties made oral submissions to the Tribunal on 26 April 2024, after which the Tribunal reserved its decision. These are the Tribunal's reasons for its decision.

The course of the hearing

1. Although an experienced Barrister, save with respect to some assistance with his written submissions of 9 April 2024, and some initial legal assistance, the Respondent has been unrepresented throughout these proceedings. The Tribunal has been vigilant to ensure that, so far as realistically possible, the Respondent has been provided with a "level playing field". The Tribunal is satisfied, particularly having regard to the fact that the Respondent received legal advice when preparing his outline of submissions of 9 April 2024 that he has been afforded procedural fairness. Without compromising its impartiality, the Tribunal has made allowances for the fact that the Respondent has "worn three hats" - party, witness and advocate. It is appropriate to record that, without failing in any way to discharge his obligations to his client, Senior Counsel for the Council maintained an appropriately constrained and unfailingly fair approach to the prosecution of the Council's case throughout the proceedings.

Issues ultimately requiring determination

1. At the hearing of submissions Senior Counsel for the Council provided the Tribunal with an aide memoire which, accurately in the Tribunal's view, summarised the competing positions of the parties in the light of the evidence and the parties' written submissions with respect to it. As background to our decision it is helpful to refer in detail to what the aide memoire suggests are matters in dispute and matters which are not. Although the aide memoire itself is not evidence, the matters to which it refers are in evidence and it fairly reflects what the Respondent has and has not admitted.
2. The Respondent admitted that at all material times he was a lawyer within the meaning of s 261 of the Uniform Law, and an Australian legal practitioner within the meaning of s 6. The Respondent did not dispute that he was admitted as a lawyer of the Supreme Court of New South Wales on or about 4 December 2009; that he was issued with a practising certificate without restrictions on 21 October 2011; and that he held such practising certificate until 30 June 2020, at which time the Council refused to renew the Respondent's practising certificate for the 2020/2021 year. It was not controversial that the Respondent currently does not hold, and has not held, a practising certificate as a Barrister since 30 June 2020.
3. The Respondent did not dispute that, on 21 August 2019 he changed his name at the Registry of Births, Deaths and Marriages to his present name, which was notified to the Council on 8 October 2019. Nothing turns on that in these proceedings.
4. On 30 September 2020, Ms Irina Assina made a complaint about the Respondent to the Office of the Legal Services Commissioner (OLSC) and the NSW Bar Association. The OLSC referred the complaint to the Council. On 5 July 2021 the Council resolved that two of the grounds of the complaint should be the subject of proceedings before the Tribunal. The Respondent admitted that procedural history.
5. The Respondent admitted that, in July 2020, Ms Assina's son Vladimir Ossipov had been charged with various criminal offences, and was in custody awaiting their determination; and that Mr Ossipov's friend, Ms Roberts, recommended that he engage the Respondent. The Respondent and Ms Roberts had known each other for some time prior to that recommendation. The Respondent admitted that between 23 July and 24 December 2020 he was in contact with Ms Assina, Ms Roberts and Mr Pasternacki from Strathfield Legal in respect of Mr Ossipov's case. The Respondent admitted that on or about 9 August 2020 he received $3,000 in cash from Ms Assina after meeting to discuss Mr Ossipov's criminal matter, which he repaid on or about 24 December 2020.
6. The Respondent denied the Council's allegation that he had stated that he could act as a Barrister for Mr Ossipov, when he did not hold a practising certificate, and had no reasonable basis to think he could act for Mr Ossipov. The Respondent said that he had informed Ms Assina that he could not practise as a Barrister on account of having no practising certificate, and had referred Ms Assina to Mr Pasternacki to advise and appear on Mr Ossipov's behalf.
7. The Respondent admitted sending the email to Mr Pasternacki from his email address at "Clarence Chambers" at 9.10 am on 23 July 2020, stating that "what I need from you Andrew and Strathfield Law is for the appointment to be made in [sic] for instructions to be taken from Vlad that your firm now acts for him and has briefed me" and "someone from your firm will have to appear with me on 27th …" but said that there were prior conversations between Ms Assina, Mr Pasternacki and himself which detailed the following agreement: "(a) the Respondent had lodged an appeal against the Bar Council's decision to refuse to renew his practising certificate and was intending to file an application for a stay of that decision (which was subsequently filed on 24 July 2020); (b) Mr Pasternacki would legally represent Mr Ossipov; (c) the Respondent would be briefed as a consultant to advise Mr Pasternacki on his views of the police conduct and adherence to police procedure noting that the Respondent had 16 years' experience as a serving police officer; (d) the Respondent would attend Court with Ms Assina on each occasion to support her on account of her anxiety, age, lack of family and support and experience; (e) Ms Assina would pay a consultancy fee agreed at $3,000 for the above consultancy and support; and (f) if the Respondent were successful in a stay application concerning his practising certificate, then Mr Pasternacki would brief the Respondent as Counsel when and if required to do so."
8. The Respondent admitted that on 23 July 2020 he sent a text message to Ms Assina stating that his "team" were making an appointment to speak with Mr Ossipov. The Respondent did not admit, and said that if it did occur, he had no knowledge of whether, and if so, how Ms Assina saved his number in her phone referring to him as "Patrick La[w]yer".
9. The Respondent admitted that on 27 July 2020 he sent a text message to Mr Pasternacki with respect to the conduct of the mention of Mr Ossipov's matter scheduled for that day, but said that the message merely conveyed his suggestions and followed a phone call in which it was discussed that Mr Pasternacki was the lawyer for Mr Ossipov and that the conduct of the mention was completely up to him.
10. With respect to the allegation that the Respondent failed to correct David Oh, a Principal of Strathfield Lawyers, when he described him as "of Counsel" in his email dated 27 July 2020 and did not explain that he was not able to appear for or advise on Mr Ossipov's matter. The Respondent said that, prior to these proceedings, he did not notice that Mr Oh had referred to him as "Counsel", but otherwise admitted the allegations.
11. The Respondent admitted the exchange of text messages with Ms Assina on 4 August 2020 in which Ms Assina said "So there's no chance of you being able to take care of Vlad case yourself? Sorry I don't understand it all" to which the Respondent replied "I'll be taking his case Irina", but said that there were further messages and conversations by phone between himself and Ms Roberts in which he explained to Ms Roberts the consultancy agreement referred to above.
12. The Respondent admitted that on 9 August 2020 he met with Ms Assina and took Mr Ossipov's full history over a period of 30 minutes. The Respondent admitted that on 10 August 2020 at 1.26 pm he sent a text message to Mr Pasternacki saying that he would "draft an advice on the second charges" which Mr Ossipov was facing, but said that the advice to which he was referring in the text message was to be given pursuant to the consultancy agreement asserted by the Respondent, and would concern only the police conduct and adherence to police procedures.
13. The Respondent admitted text messages between himself and Ms Assina on 10 August 2020 in which Ms Assina said "Do I need to tell something for Vlad? I mean you will take his case or he needs to apply for legal Aid [sic]?" to which the Respondent replied, "I'll be taking his case Irina", but said that a further telephone conversation occurred between himself and Ms Assina following that text message in which: "(a) Ms Assina expressed dissatisfaction with the legal representatives Mr Pasternacki and Mr Oh, stating that they did not return her calls or explain things to her so that she could understand; (b) Ms Assina asked if the Respondent could take over from Mr Pasternacki and Mr Oh; (c) the Respondent explained to Ms Assina that he had lodged an appeal against the decision of the Bar to not renew his practising certificate and he would know on Friday 14 August 2020 if that appeal was successful, and if it was the Respondent could then be formally briefed by Mr Pasternacki to legally advise on her son Mr Ossipov's legal matter and appear on his behalf."
14. The Respondent admitted that on 11 August 2020 at 4.17 pm he sent a text message to Ms Assina stating that "everything will be carefully prepared and taken care as agreed" and that "I will consult on the case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again". The Respondent said that further conversations occurred between himself and Ms Assina prior to the text messages in which: "(a) Ms Assina expressed dissatisfaction with Mr Pasternacki and Mr Oh, Ms Assina asked if the Respondent could take over from Mr Pasternacki and Mr Oh and the Respondent explained to Ms Assina that he had lodged an appeal against the decision refusing him a practising certificate the outcome of which he would know on 14 August 2020 and, if he was successful, the Respondent could then be formally briefed by Mr Pasternacki to legally advise on her son Mr Ossipov's legal matters and appear on his behalf."
15. The Respondent admitted that on 12 August 2020 at 1.02 pm he requested copies of Mr Ossipov's charge sheets from Mr Pasternacki and said that "Once I get through this NCAT gearing [sic] I'll be returned to practice and I'll see Vlad Monday". The Respondent further admitted that on 17 August 2020 he sent a text message to Ms Roberts saying that he was "studying the evidence of the police and preparing the advice for how best to run it".
16. The Respondent admitted that on an unknown later date he indicated to Ms Roberts that he "may have to let the case go" but says that when he referred to "the advice for best how to run it", he was referring to an argument Mr Pasternacki could make concerning irregularities with the police conduct of a search warrant upon the premises of Mr Ossipov.
17. The Respondent denied that he had engaged in professional misconduct, or in the alternative, unsatisfactory professional conduct, by taking money from Ms Assina to act as Counsel for Mr Ossipov asserting that: 1. he did not accept money to act as Counsel; 2. he did take money but that such money was referable to the consultancy agreement asserted by him; and 3. that the agreement relied upon by the Council did not constitute an agreement to act as Counsel for Mr Ossipov.
18. The Respondent admitted that on or about 9 August 2020 he received $3,000 in cash from Ms Assina after meeting to discuss Mr Ossipov's criminal matter, but said that the funds were received pursuant to the consultancy agreement asserted by him.
19. The Respondent admitted that on 10 August 2020 he and Ms Assina had the exchange of text messages in which he said "I will be taking his case Irine [sic]", but said that he would be doing so pursuant to the consultancy agreement which he asserted.
20. The Respondent admitted that on 10 August 2020 he sent a text message to Mr Pasternacki saying "Hi Andrew, I've estimate[d] ten thousand in fees. I spoke with the mother yesterday I will draft an advice on second Charges" but said: 1. further conversations occurred between himself and Mr Pasternacki prior to and after the message concerning the Respondent's expectation that he would have a successful outcome on 14 August 2020 with his application to stay the refusal to renew his practising certificate; and 2. prior to 14 August 2020 the Respondent had a reasonable basis to believe that his stay application had merit and would succeed having received that advice on merits from his then solicitors and Senior Counsel.
21. The Respondent admitted that on 11 August 2020 he sent a message to Ms Assina which said "I will consult on this case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again" but said that so doing was pursuant to the consultancy agreement.
22. The Respondent admitted the exchange of text messages with Ms Roberts on 14 August 2020, in which he agreed that if he did not have his licence back by the following Monday he would give Ms Assina back her money, which the Respondent admitted that he did on or about 24 December 2020.

Principles governing the proceedings

1. The principles governing the proceedings are not in doubt or in contest between the parties. The Council bears the onus of proving each element of each of its complaints to the comfortable satisfaction of the Tribunal (Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34; Health Care Complaints Commission v Grygiel (Termination Application) [2020] NSWCATOD 53).
2. Schedule 5 cl 20 to the Civil and Administrative Tribunal Act 2013 (NSW) (the CAT Act) provides that, despite s 38 of the CAT Act, the Tribunal is to "observe the rules of evidence in proceedings in exercise of a Division function" for the purposes of the Uniform Law "concerning a question of professional misconduct"., The Council alleges that the Respondent is guilty of professional misconduct.
3. Section 296 of the Uniform Law defines "unsatisfactory professional conduct" as including "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".
4. Section 297 of the Uniform Law defines "professional misconduct" to include: (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.
5. Rule 13(1)(a) of the Legal Profession Uniform General Rules 2015 (NSW) (the Uniform Rules) provides that the Tribunal may consider whether the Respondent is currently of good fame and character when determining whether conduct constitutes professional misconduct. The concept of good fame and character refers to a person's reputation in the relevant community, and the person's actual character (Prothonotary v Gregory [2017] NSWCA 101).
6. Section 298 of the Uniform Law, without limitation, identifies conduct which is capable of constituting unsatisfactory professional conduct or professional misconduct. Relevantly s 298(c) refers to "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".
7. Section 302 of the Uniform Law provides the suite of orders which the Tribunal may make if unsatisfactory professional conduct or professional misconduct is found proven.
8. The proceedings which the Tribunal has heard involve only the determination of whether the Respondent is guilty of professional misconduct and/or unsatisfactory professional conduct (Stage 1 hearing). If the Respondent is found guilty with respect to either complaint, a subsequent hearing to determine the orders which are appropriate pursuant to s 302 of the Uniform Law will become necessary (Stage 2 hearing).
9. Section 6 of the Uniform law relevantly defines "engage in legal practice" to include "practice 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". The term "legal practice" is not defined in the Uniform Law. Section 10(1) of the Uniform Law, which the Council alleged that the Respondent had breached, provides that "an entity must not engage in legal practice in this jurisdiction, unless it is a qualified entity". Section 10(2) provides that an entity is not entitled to "recover any amount, and must repay any amount received, in respect of anything the entity did in contravention of subsection (1)".
10. Section 6 of the Uniform Law defines "qualified entity" to include an Australian legal practitioner, which the Respondent undoubtedly is.
11. Section 11 of the Uniform Law, which the Council alleged that the Respondent is also in breach of, provides (s 11(1)) that an entity must not "represent, or do anything that states or implies, that it is entitled to engage in legal practice, unless it is a qualified entity".
12. Section 43 of the Uniform Law provides that "an Australian legal practitioner is entitled to engage in legal practice in this jurisdiction, subject to any requirements of the Uniform Law, the Uniform Rules and the conditions of the practitioner's Australian practising certificate".
13. Section 44 of the Uniform Law provides that: (1) The designated local regulatory authority may, on application, grant or renew an Australian practising certificate in respect of a financial year. (2) An Australian practising certificate granted in this jurisdiction is subject to conditions imposed by or under this law or the Uniform Rules. (3) An Australian practising certificate granted in this jurisdiction ceases to be in force if the holder ceases to be an Australian lawyer.
14. Section 45 of the Uniform Law provides the prerequisites for the grant or renewal of Australian practising certificates and provides (s 45(2)), that, subject to subs (4) the designated local authority "must not grant or renew an Australian practising certificate if it considers that the applicant is not a fit and proper person to hold the certificate". Section 45(3) provides that, in considering whether a person is or is not a fit and proper person to hold an Australian practising certificate the designated local authority may have regard to the matters specified in the Uniform Rules. Section 45(4) provides that a person may be considered a fit and proper person to hold an Australian practising certificate even though the person does not satisfy the requirements for a matter to which the designated local regulatory authority may have regard, if it is satisfied that this action is warranted in the circumstances. A person who has been refused the renewal of a practising certificate is a "disqualified person".
15. Section 6 of the Uniform Law defines a "disqualified person" to include: (b) a person who has been refused the renewal of an Australian practising certificate and who has not been granted an Australian practising certificate at a later time
16. The Respondent was a disqualified person at the time of the events which gave rise to the current proceedings.
17. Rule 8 of the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules) which the Council alleged that the Respondent had breached, provides that: A barrister must not engage in conduct which is: … (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal professional into disrepute.
18. Those rules are made pursuant to s 423 of the Uniform Law.
19. Rule 11 of the Barristers Rules defines the work of a barrister and relevantly includes (b) preparing to appear as an advocate and (e) giving legal advice.

Ground 1

1. Ground 1 alleged that the Respondent engaged in professional misconduct or in the alternative unsatisfactory professional conduct by stating that he could act as a barrister for Mr Ossipov, when he did not hold a practising certificate, and had no reasonable basis to think that he could act for Mr Ossipov. We have earlier set out in full the particulars of this ground.
2. In support of this ground the Council relied on the evidence of Mr Pasternacki, Mr Oh and Ms Assina and, significantly, on the terms of text messages or emails which the Respondent admitted that he had sent to those persons.
3. As is not in doubt, Ms Assina was provided with the Respondent's contact details by Ms Roberts, who did not give evidence in the proceedings. In Ms Assina's Affidavit of 28 April 2023 [8], after stating that she had been provided with the Respondent's contact details, Ms Assina referred to a conversation she had with Ms Roberts in which the latter allegedly said that the Respondent "is a barrister with a policing background. He is very good. He will be able to help Vlad. Reach out to him and let him know that I gave you his contact details". It is not in doubt that the Respondent is a Barrister, with a policing background, albeit that background ended more than a decade before his involvement in Mr Ossipov's case. There is no reason to not accept that Ms Roberts made the statements alleged by Ms Assina, or that she did not contact the Respondent because of those statements.
4. Ms Assina deposed [10] to having sent a text message to the Respondent at 8.48 am on 23 July 2020. The Respondent replied to Ms Assina, "Hi Irina, my team are making the appointment now, I'll get back to you today and let you know when it is". Ms Assina denied the Respondent's allegation (par 109, Affidavit 21 November 2022) that he said to her on 22 or 23 July 2020 that he could not act "as the lawyer for your son myself at the moment", stating that "all conversation(s) between us was by text messages because I was in hospital at the time". Neither this or any other disputed conversation alleged by the Respondent has been supported by any electronic communication records, contemporaneous file or diary notes, or any other evidence capable of corroborating his allegations.
5. Ms Assina admitted [14] that the Respondent attended her home in Lane Cove on 9 August 2020 at about 3.00 pm, but denied that during that visit the Respondent said that he "cannot act for your son Vlad myself, and we've discussed this over the phone". Ms Assina stated that "specifically, at no time did Mr Mack tell me that he could not practice as a barrister and that he was only going to be consulting in relation to the conduct of the police". Ms Assina further said [17] that the Respondent "did not give me any agreement to sign or to review. My firm belief was that he was at my apartment to assist my son as a barrister. In fact, Mr Mack gave me his business card. I had no reason to expect that he was assisting in any other capacity than as a barrister". The Respondent has not alleged that, other than a statutory declaration in December 2020, he ever gave Ms Assina anything to sign. Annexure C to Ms Assina's Affidavit was a copy of the business card which refers to "Patrick Fordham Mack Barrister Clarence Chambers" with an address in Sydney and an email address patrick@clarencechambers.com.au.
6. Ms Assina denied [18] that at any time Ms Roberts had informed her that the Respondent could not act as a barrister for her son. Ms Roberts has given no evidence contradicting Ms Assina's allegation. The Respondent has not suggested that he was ever privy to such a conversation. Unless cross-examination of Ms Assina showed her evidence in this regard to be unreliable, it is open to the Tribunal to accept it.
7. Ms Assina set out a number of matters of a general nature which she said were discussed with Mr Mack at her home on 9 August 2020 [19]-[21]. Ms Assina alleged [22] that the Respondent "provided me with information regarding Vlad's case. I did not know the details of Vlad's charges at this stage, all I knew was it was drug related and he was already in custody. However, Mr Mack explained what happened to my son, the number of drugs they found on him and many other details". Ms Assina alleged [23] that on a number of occasions during the conversation the Respondent "would speak into his Dictaphone and make notes about Vlad's case". Ms Assina stated [25] that she was aware that her son needed a barrister for his criminal matter but that, "if I had known that Mr Mack could not be Vlad's barrister, I would have gotten a different barrister because I knew Vlad needed one as soon as possible".
8. Ms Assina denied that the Respondent was a consultant in the way, or for the purposes alleged by him, and reiterated [53] that he had said words to the effect of "I'll be taking your son's case. I'll have my licence back soon, but I am still working on it for now". Ms Assina reiterated that, on 22 August 2020, when she went to the Respondent's home with Ms Roberts and her boyfriend the Respondent said to her words to the effect of "Don't worry about my licence. I'm about to get it back to I can continue working on Vlad's case. Once I have my licence I will be able to take the matter and run it myself". Ms Roberts' "boyfriend" did not give evidence in these proceedings. Ms Assina alleged [40] that the "purpose" of the conference at the Respondent's house was to continue to speak about what he could do to assist her son. Although she was "not entirely sure what the issue" was with respect to the Respondent's practising certificate, Ms Assina stated that she "believed Mr Mack when he said he could continue to assist Vlad. It was always my understanding that he was doing work (or appeared to be) as a barrister". Ms Assina alleged [41] that, during the visit to his home the Respondent told Ms Assina that he "still needed" her son's documents, which she believed meant needed the documents for the purpose of assisting with her son's case.
9. The Respondent cross-examined Ms Assina. Early in his cross-examination, he suggested to Ms Assina that her son "told you that Kaycee (Ms Roberts) knows a great barrister" to which she replied "Yes". In the course of cross-examination with respect to how Ms Assina came to be in contact with the Respondent she reiterated this (26/06/23 p86) when the Respondent asked her about the first text she received from, or purportedly on behalf of, the Respondent in July 2020. Ms Assina said "when I received message, I didn't know who is this, Kaycee or you, because I was in the hospital. I didn't answer the phone. And when I called back, I said, "I confused, I don't know who is this. It's Kaycee phone numbers". You said, "No, it's - I'm lawyer".
10. Ms Assina was cross-examined at length about whether she obtained his contact details from Ms Roberts or from the Respondent himself. To the extent that Ms Assina's evidence was contradictory, nothing arising from that cross-examination provides cause for concern with respect to her credibility, or the reliability of her recollection, having regard to the contents of the contemporaneous text messages which are in evidence. The fate of the Council's complaint does not turn on whether the Respondent or Ms Roberts gave Ms Assina his card.
11. Cross-examination of Ms Assina with respect to the alleged consultancy agreement did not provide cause for uncertainty or doubt as to either her veracity or the reliability of her allegations. The alleged agreement was not in or evidenced by writing. Nor is the likelihood of there having been a consultancy agreement supported by any communication issued by the Respondent. Given his asserted awareness of his inability to lawfully provide legal advice, and concern to avoid any basis for suggesting that he had done so, or would do so, the Respondent's failure to record anything confirming the terms of the alleged consultancy agreement is significant. That is particularly so in view of the contents of the December 2020 statutory declaration which he prepared for Ms Assina to sign.
12. Ms Assina was further cross-examined by the Respondent the following day (27/06/23 p153) where she reiterated that "I never talked to you in [sic] the phone". The Respondent has not tendered any phone records to contradict, or to cast doubt on the accuracy of Ms Assina's assertion that, other than on the occasions when the Respondent came to her home or she went to his home, all communications between them were by text.
13. Ms Assina agreed (27.06.23 p161) that after 22 July 2020 she received communications from Mr Pasternacki who confirmed that he was a solicitor and "probably" said that he was going to attend to her son's case. Ms Assina agreed that she had spoken with both Mr Pasternacki and Mr Oh. The Respondent suggested that from "approximately 23 July until at least 10 August, Mr Pasternacki and Mr Oh were solicitors looking after your son's criminal cases, correct?". Ms Assina replied "and you too".
14. In cross-examination (27.06.23 p169) Ms Assina consistently and unequivocally rejected the Respondent's suggestion that he said to her at her home on 9 August 2020 that "Kaycee should have spoken to you and told you that I cannot act for your son, Vlad, myself". If Ms Roberts had known that, it is difficult to understand why she would have recommended the Respondent to Ms Assina. The Respondent's own evidence was that he was confident on 9 August 2020 that he would have a practising certificate by 14 August 2020.
15. In response (27.05.23 p170) to the suggestion that the Respondent then said that he had arranged for Mr Pasternacki to take over her son's case, Ms Assina replied "Okay". The Respondent suggested that he had then said that Mr Pasternacki was a good lawyer with whom he had worked before and that "your son will be in very good hands with Andrew". Ms Assina replied "It was your hands, not Andrew. You said - talk about yourself, not Andrew. You said Vlad would be in good hands with you". Ms Assina was adamant that the Respondent had told her that he "would have Vlad out of gaol by September". The Respondent's statements to Mr Pasternacki about the weakness of the prosecution case were consistent with his having made that claim.
16. When the Respondent again suggested (p171) to Ms Assina that he had confirmed on 9 August 2020 that he could not act as her son's lawyer "because at the moment I cannot practice as I don't have a practising certificate" Ms Assina was adamant that "You, by yourself, never ever told me you can't - you don't have a - can't practice". Ms Assina was also adamant (27.06.23 p173) that the Respondent promised her "Oh, in a few days I take my licence back" or "Next Monday, or in 2 weeks". It is not in doubt that the Respondent was of that belief at that time. Ms Assina agreed that the Respondent told her on 9 August 2020 that "you was police before you become a - the lawyer" and that he had said to Ms Assina that Ms Roberts had told him "that the police did the search warrant at the wrong house".
17. During her cross-examination (27.06.23 p175) Ms Assina was asked about a payment of legal fees for her son. She said that she had asked the Respondent "how much your fee". It was suggested that the Respondent then said "So we should probably start taking some information down about your son Vlad for Andrew" whereafter the Respondent started making some notes, to which Ms Assina replied "You didn't ever mention Andrew name … you came by yourself to me".
18. In further cross-examination (27.06.23 p177) it was suggested to Ms Assina that on 9 August 2020 the Respondent told her "My fee to consult with you and prepare a report for Andrew will be $3,000". Ms Assina replied "Your fee $3,000. Yes, I remember". What Ms Assina was being asked to pay $3,000 for was not suggested by the Respondent to have been discussed at that or any other time. In those circumstances, it is reasonable to find that the fee was for doing what barristers do. Ms Assina agreed (27.06.23 p178) that the Respondent had said to her on 9 August 2020 that "Right now Andrew will do a good job as (her son's) lawyer, and I'll assist Andrew as best I can, preparing all of this information for him".
19. In cross-examination (27.06.23 p187) it was suggested to Ms Assina that "the business card that you have with my name on it was given to you either by either of Mr Pasternacki or Ms Roberts but not by me. Agree or disagree?" Ms Assina replied "By you? Disagree, it was you". There is no rational basis for finding that Mr Pasternacki gave the card to Ms Assina. There is no evidence that Ms Roberts gave the card to Ms Assina. How Ms Assina came to have the card is not the issue - it is what the Respondent did, and did not do or say after he became aware that Ms Assina had the card if he did not give it to her.
20. Ms Assina presented as an honest witness. She was not evasive, or argumentative, and did not emerge from lengthy cross-examination as having "an axe to grind". Nothing emerging from her cross-examination suggests that Ms Assina misremembered the critical allegations made by her. Those allegations were corroborated by contemporaneous documents and were not contradicted by any other documentary or circumstantial evidence. To the extent that Ms Assina's evidence may have been internally contradictory, the Tribunal is comfortably satisfied that any such contradictions did not detract from the credibility or reliability of her evidence with respect to disputed issues of material fact.
21. Significantly, the Respondent did not suggest, to Ms Assina or any other witness, or to the Tribunal in submissions, what it was that he said that he would be doing for Ms Assina's son pursuant to the alleged consultancy agreement. It is difficult to imagine, given that the Respondent had not been a serving police officer for more than a decade, and did not suggest to Ms Assina, or allege in any evidence given by him that, notwithstanding the passing of that time, he was familiar with police practices by reason of such service. Moreover, as is patently obvious, any questions arising with respect to the legality of any action taken by police, whether in the execution of a search warrant or otherwise, involved the application of legal knowledge and experience. Almost from its commencement, the cross-examination of Ms Assina was predicated on her having been referred to the Respondent by Ms Roberts on the basis that the Respondent was a very good barrister, who would be able to help with her son's case. Absent evidence tending to show that the Respondent would do so other than as a barrister, finding that he would help with Ms Assina' son's case as a barrister would be almost irresistible.
22. In his Affidavit of 15 February 2023 Mr Pasternacki said [7] that "At no time prior to me having checked with the Bar Association (in) about August 2020, did I hear the Respondent say to me words to the effect of, "I do not have a practising certificate", or saying that "I cannot practice right now because the Bar did not renew my certificate" or "You will need to act in the matters because I can't practice right now". Mr Pasternacki added that "If the Respondent had told me about his situation, I would have asked him details about his situation and if I could assist him. This did not happen because he did not tell me that he did not have a practising certificate until about August 2020 when my colleague noticed [the Respondent's] details on a website listing disciplinary proceedings against barristers." It is not in doubt that Mr Oh informed Mr Pasternacki of his discovery on 10 August 2020.
23. Mr Pasternacki denied the Respondent's allegation in his first Affidavit [93] that on or about 15 or 16 July 2020 the Respondent informed him that the Bar Association had refused to renew his practising certificate. Mr Pasternacki who had been a practising solicitor for 38 years in February 2023, referred to meeting the Respondent at Burwood Local Court on 16 July 2020 [14] and being introduced to a Mr Sari. Mr Pasternacki also denied the Respondent's allegation [94] that he told him on or around 16 July 2020 that he did not have a practising certificate but that he was "appealing that decision but until then I'm stuck so I'm handing over all my clients" to Mr Pasternacki. Mr Pasternacki agreed [15] that, on 16 July 2020 the Respondent introduced him to a number of "clients of his (the Respondent) at a café in Burwood", the names of whom, other than a Mr Trigis, Mr Pasternacki could not remember. For reasons which he detailed [16] Mr Pasternacki did not take instructions from Mr Trigis.
24. Mr Pasternacki also denied the Respondent's claim that the conduct of Ms Assina's son's case was a matter for Mr Pasternacki. Mr Pasternacki referred, accurately, [21] to the Respondent's email of 23 July 2020 in which he said "What I need from you Andrew and Strathfield Law is for the appointment to be made in for instructions to be taken from Vlad that your firm now acts for him and has briefed me" and that "someone from your firm will have to appear with me on the 27th at the Downing Centre to conduct the mention and inform the Court of the change to legal representation". Mr Pasternacki pointed [23] to the Respondent signing off the email as "Barrister" and using his Clarence Chambers address. Mr Pasternacki reiterated his denial [24] that either on 22 or 23 July 2020 the Respondent informed him that he was not able to act because of his "situation with the Bar". The Respondent's communications provided support for Mr Pasternacki's denials.
25. Mr Pasternacki deposed [25] to the Respondent saying during their conversation that day words to the effect of: "I can easily win this case. There are significant issues surrounding custody. The police will not be able to prove the drugs found are Vlads. They won't be able to prove custody." It is difficult to see how the Respondent could have suggested that there were "significant issues" with respect to the police case and what the police would "not be able to prove" without reliance upon his legal training and experience. Mr Pasternacki referred to the emails which passed on 27 July 2020 with respect to the mention of the matter in the Local Court at the Downing Centre. In his email the Respondent said "If David Oh is going to the Downing Centre I will leave that with him to do the mention". He proceeded to say that Mr Oh "just needs to inform the Court that new lawyers came into the matter Friday and require a short adjournment to read the materials and take instructions. Three weeks shouldn't be an issue. Any problems, message me rather than call as I have other matters on the morning". Neither expressly nor impliedly did the email suggest to Mr Pasternacki that the Respondent could not represent Mr Ossipov because he did not have a practising certificate. The reference to the short adjournment to "read the materials and take instructions" reasonably conveyed to Mr Pasternacki that the Respondent would be part of Mr Ossipov's "legal team". The reference to "other matters on the morning" from one experienced lawyer to another, reasonably conveyed the impression that the Respondent had other matters in Court that morning.
26. Mr Pasternacki was cross-examined at length. The Respondent suggested to Mr Pasternacki (27.06.2023 p118) that in 2020, due to Covid restrictions, from approximately March "Practitioners who appeared in Local and District Court matters had no work". Mr Pasternacki's response that he "thought the Courts kept going, but I could be mistaken in my recollection" is not significant for present purposes. The proposition put to him by the Respondent is.
27. Mr Pasternacki was cross-examined about the Respondent's introduction of Mr Sari to him. Mr Pasternacki confirmed that, prior to 16 July 2020 he had "never in fact" met Mr Sari (27.06.2023 p119). Mr Pasternacki agreed (p120) that on the day that he was introduced to Mr Sari in the café at Burwood the Respondent was "wearing jeans and casual clothes" and was not "dressed as a practitioner to go into court". Mr Pasternacki's recollection was that the Respondent had paid him $100 to appear for Mr Sari in the Local Court that day, which he did. The Respondent rejected any suggestion that he had paid Mr Pasternacki $100. Mr Pasternacki said that "certainly I didn't take any money from that client". Mr Pasternacki had no recollection, but was not able to deny the Respondent's suggestion that the Respondent also introduced him to a Mr Trigis and a Mr Darwiche that morning. The Respondent suggested that he "explained to you and to them that I didn't have a practising certificate and therefore I was going to introduce these two gentlemen" to Mr Pasternacki. Mr Pasternack replied (p121) "Patrick, you didn't say those things. I didn't hear you say it. You just didn't".
28. Mr Pasternacki readily conceded that he did not recall a number of matters which the Respondent suggested to him occurred at the café on 16 July 2020. Mr Pasternacki conceded (p122) that it was "entirely possible" that he did not hear the Respondent say during that meeting that he "didn't have a practising certificate and therefore I was giving both of these clients away to you". Were it not for the Respondent's subsequent emails and texts, that concession may have assisted the Respondent's case.
29. Mr Pasternacki was asked about Mr Trigis' case (p122). Mr Pasternacki recalled what he said the Respondent told him about the case. The Respondent suggested that the reason why he suggested contacting another barrister was that he could not act as a barrister because he did not have a practising certificate. Mr Pasternacki replied "Well I don't know why you would have said it, but it may have been said. But not that part".
30. In subsequent cross-examination (p123) the Respondent suggested: "Given that it had never happened before in a relationship that you say has spanned 9 years, did it occur to you, putting to one side that you may or may not have heard me say I don't have a practising certificate, that there was a problem with me appearing in courts?"
31. Mr Pasternacki replied: "A Yeah. You didn't give me Mr Bassal. You asked me to do one mention. That's not giving me a client, so your proposition is incorrect, and secondly you didn't - you did criminal law. This was a civil case what was unusual about you asking to take over a civil case that you couldn't run or wouldn't run? None of it was unusual, Patrick. Q The question I'm asking you, Mr Pasternacki is did it occur to you, given that I am giving away 3 clients to you on the same day and you admit that it never happened before - did it occur to you that there might be a problem with me appearing before courts? A No, Patrick. I - it did not occur to me that you had a problem appearing before courts."
32. In the course of cross-examination with respect to Mr Pasternacki acting for Mr Ossipov, Mr Pasternacki said: "A You said you would like us - you would like us to assist Mr Ossipov. The conversation was more about - the initial one, from memory, was more about how weak the police case was and how you could win it hands down. I remember that part, Patrick. Q Do you recall me discussing with you why I believed the police case was weak? A Yes. Q What was the reason? A The reason was they couldn't prove custody of whatever they found in the bedroom - it was like a doss house. Because the doss house was used by several other people. Q I'm sorry, what? A A doss house. Q A doss house? What's a doss house? A Well, I suppose it's an - it's an old Edwardian or Elizabethan term about - not Elizabethan - about places where poor people sleep. Q Mr Pasternacki, that conversation didn't occur? A It didn't? Q No. A Okay. Q The conversation I had with you, Mr Pasternacki was that the information provided to me by Ms Roberts was that the police had executed a warrant at the incorrect address. Does that ring any bells? A No. That - that was part of it, for certain. Q That was part of it? A Part of it, yeah. Q The reason that I said to you, 'I have won cases like this before', is because of that issue, is the police execute a warrant at the incorrect address. Do you recall us having a conversation about that? A No, it was more about they couldn't prove custody. That was the gist of what I understood to be your - your summary. Q Do you recall during that conversation that I said to you, 'I'm happy to give you some expert advice about what the police did'? A No, Patrick. I - I mean if you said those words I would have interpreted them as - as a barrister anyway. I mean I wouldn't have thought about - Q You would have interpreted them as a barrister? A Yes, yes. Q Do you agree I never told you in that phone call that I was going to ask [sic] as a barrister for Mr Ossipov? A Yes, you did. Maybe - sorry. Maybe not in that conversation, but later you did. On - on emails - on emails, Patrick. You - you - you sent us an email saying, 'Tell them that I'll be briefed'. I mean, in what capacity? And - and the letter - and emails are headed - or, sorry, ended with the word 'barrister'."
33. Although the Respondent disputed it, his questions suggested that he had considered the prosecution case, and, drawing on his legal knowledge and experience, formed views with respect to its strength. The Respondent did not suggest to Mr Pasternacki in what way any advice which he might provide with respect to Mr Ossipov's case did not involve giving legal advice. Significantly, the Respondent did not at any stage suggest that Mr Pasternacki was aware of his asserted consultancy agreement with Ms Assina, or, as it emerged in his cross-examination, the Respondent's asserted consultancy agreement with Ms Assina and Ms Roberts.
34. Mr Pasternacki was asked (27.06.2023 p132) whether he agreed that at: "'some stage between the 30th of July and the 10th of August you became quite nervous that you weren't getting any responses from me at all?' A It wasn't nervous, Patrick, I was concerned. You weren't responding. Q You were very concerned. Did that concern commence on or about the 30th of July? A No. No, Patrick, it - it - obviously we thought you were briefed or going to be briefed and you weren't. Q I'll stop you there. A Go on. Q You thought I was briefed, or I was going to be briefed? A Well if we expected you to turn up for a mention then logically you had been briefed. Q By whom? A By us. Q But you hadn't briefed me, had you? A Well no, you were the one who gave us - gave us the client so there wasn't a formal paper brief, no. Q Mr Pasternacki, you made an assumption that I had been briefed as counsel, didn't you? A No, you told us to tell people that you were going to be - going to be briefed as counsel."
35. When asked to say what and when the Respondent had said which led him to that belief, Mr Pasternacki referred to the communications to which we have earlier referred.
36. Mr Pasternacki was cross-examined in relation to Ms Assina's request to him to help her "recover her money" from the Respondent (27.06.2023 p134). The criticism of Mr Pasternacki that he had not included reference to that in his Affidavit does not in our view adversely impact upon his evidence. Similarly, any criticism of Mr Pasternacki for not sending his fee agreement to the Respondent, for the reasons Mr Pasternacki suggested (27.06.2023 p138) does not adversely impact upon Mr Pasternacki's evidence.
37. Later in his cross-examination Mr Pasternacki's firm's contact with Mr Ossipov, and that his client Ms Assina was not the client but was a "bewildered mother" to whom Mr Pasternacki spoke only once, which was "about the money you took" was explored (27.06.2023 p139). In the course of answers to questions about the "snowballing" of Mr Ossipov's case, Mr Pasternacki said (p139): "We were thinking we were being overwhelmed by an avalanche of new charges that we just hadn't set out in the first place to face, and we had a barrister who had just disappeared, so I was chasing you to take the lead. Q Because you believed I was the barrister? A Yes. No reason not to believe it. Q Do you think, in retrospect, given the things I've asked you today, that you might have carried out some further enquiries or conversations with me about whether I was a barrister or not? A No. Q You are still satisfied in your mind that I was a barrister with [sic] accepted instructions as counsel in Vlad Ossipov's case. A Yes, because you were the one who referred us the matter. It was like a reverse brief."
38. Later in cross-examination of Mr Pasternacki (27.06.2023 p145-146) the following exchange occurred: "Q I want to suggest to you that you were very concerned when this matter snowballed; that a complaint was going to be made against you by Ms Irina Assina. A I didn't even think of that possibility. Q Your first response when Ms Assina said to you that 'he took $3,000 from me' was he should not have. A That's right. Q You never asked of, 'why did he take $3,000 from you'; you never asked that, did you? A Well, by that stage, I knew that you were suspended as a barrister, you don't have a trust account. On what basis do you take $3,000 from the client's mother? Q As discussed, to give you expert consultancy advice in relation to the police conduct of executing the search warrant at the wrong address. You never ever asked Ms Assina on what basis did he take the money from you. Did you? A Look, as far as I know, her English isn't that good, Patrick. Q I'm asking you, did you ask her or not? A No, I - I wasn't interested. Q No. You told her in fact to make a complaint to the Bar Association. A Yes. Q And you blamed the lack of being able to free Vlad from his custodial position on me. You blamed me to Ms Assina; did you not? A I'm sorry, I never did that. I didn't bad mouth you at all."
39. Mr Pasternacki impressed as an honest witness. He did not embellish his evidence. He evidenced no animus towards the Respondent. He readily conceded, and even volunteered memory lapses, but was adamant that at no material time the Respondent told him that he could not accept the instructions to which he referred in his communications with Mr Pasternacki's firm. No objective basis for finding or suspecting that Mr Pasternacki misspoke the truth, or was mistaken about matters of substance emerged from his cross-examination, nor did any motive for his doing so.
40. In his Affidavit of 15 February 2023 Mr Oh referred to an email from Mr Pasternacki to the Respondent, and to an email from the day before from the Respondent to Mr Pasternacki, the terms of which we have earlier recorded. By reference to the emails of 22, 23 and 27 July 2020, Mr Oh said [8] that he was "not aware why the Respondent did not attend [at the Downing Centre on 27 July 2020]. As I was aware that he was briefed in this matter, I sent a report to both Mr Pasternacki and the Respondent following the mention". Mr Oh attached his reporting email to his Affidavit. As with emails sent by Mr Pasternacki, the emails to the Respondent's Chambers address were not returned. Mr Oh's reporting letter is consistent with the instructions which the Respondent had given earlier that day.
41. Mr Oh said [9] that he had always been "under the impression" that the Respondent would appear at mentions of Mr Ossipov's case and would be involved in its defence as a barrister. Mr Oh deposed [10] that the Respondent had not informed him "at any time that he could not practice as a barrister because he did not have a practising certificate", and that he had discovered that by chance on 10 August 2020.
42. In cross-examination (26.06.2023 p55) Mr Oh confirmed that he and the Respondent had never met prior to that day. Mr Oh said (p56) that he was not familiar with the names Arthur Trigis, or Albert Darwiche. Mr Oh was cross-examined about his attendance at the Downing Centre Local Court on 27 July 2020 on behalf of Mr Ossipov, and about documents provided at Court by the prosecution and to his handing them to Mr Pasternacki. Mr Oh was asked about the "purpose" of emailing the Respondent after Mr Ossipov's matter was before the Local Court (26.06.2023 p58). Mr Oh said that he thought that "all the legal representatives who were involved should … have full copies of the documents wherever - wherever it's available". Mr Oh agreed that it would be "very important for counsel in the matter to receive this information". Mr Oh was asked about emails to the Respondent to which he received no reply. At that time the Respondent had a number of email addresses as Mr Oh confirmed (p62).
43. Mr Oh was asked (26.06.2023 p65) about conversations with Ms Assina about the payment of "retainer monies" and clarified that his reference to "for our counsel" "would have been" for the Respondent "until we found out about the - the practising certificate issues". In cross-examination Mr Oh said that he could not "exactly recall every word for it" but that he informed Ms Assina that he had appeared in the Local Court on 27 July 2020 to obtain an adjournment for as long as possible "for the counsel to have a look at the materials and formulate the best strategy possible to defend it" and that he would have told her that, to pay barristers the solicitors would "require certain monies to be held in trust". When asked (p66) whether he told Ms Assina that the Respondent would be the barrister and mention him by name Mr Oh replied "I believe I would have. Yes". The Respondent did not suggest the name of any other barrister who might have been retained to defend Mr Ossipov.
44. Mr Oh was cross-examined about conversations with Mr Pasternacki upon discovering on 10 August 2020 that the Respondent's practising certificate was suspended. Mr Oh was asked (26.06.2023 p67) "Is it true, Mr Oh, that the only reason that you believe that I was the barrister in the case is because of what Mr Pasternacki had told you?" To which Mr Oh replied: "No. The - the only - the only other - the other. There was - there was an - in annexure A, I think, page 6 there - it was - refers to - you - you were referred to as a barrister of the Clarence Chambers so I - so I presumed as such. And before - before the engagement. Although I've not met you personally, I have heard - heard - I heard about you from Andrew on - on a few occasions where - where you - where you represented our client for - for - for - four different matters so - yes."
45. Mr Oh was unable to recall the name of more than one client who he believed the Respondent had appeared for on instruction from Mr Pasternacki's firm, which he thought was in 2011 (p68).
46. Mr Oh was cross-examined (26.06.2023 p69) on his reporting email of 30 July 2020 where he said "I have not yet had a reply from Mr Mack of Counsel" and that he had not been able to contact "Mr Mack of Counsel". There is no reason to doubt that, on 30 July 2020, Mr Oh's understanding or belief was that the Respondent was the "Counsel" who was going to be briefed to represent Ms Assina's son in the criminal proceedings against him.
47. Mr Oh (26.06.2023 p70) was referred to Mr Pasternacki's statement that he had given the Respondent the firm's trust account details to pass on to Ms Assina. It was not suggested to Mr Oh, or to Mr Pasternacki, that that was not the case. Given that Ms Assina was put in contact with Mr Pasternacki's firm by the Respondent, that was unsurprising. There is no reason to disbelieve Mr Oh's evidence (p71) with respect to why the Respondent was "left out of the loop" in communications on 31 July 2020, or the logic of his explanation in that regard. Similarly, his evidence about the appointment of Mr Park of Counsel to represent Mr Ossipov upon discovering that the Respondent did not have a practising certificate was credible and logical.
48. Mr Oh was asked (26.06.2023 p73) what was Ms Assina's reaction "to you telling her that the person whom you believed was the barrister in her son's case could no longer act as a barrister to defend her son? What was her reaction? Was she upset?". Mr Oh replied, "Yes. I believe she was. I think her reaction was that - to the best I can to - to have - to - to put - put together the best defence case we can given - given - given the circumstances". In brief, re-examination Mr Oh stated (p74) that he had never seen a fee agreement between the Respondent and Mr Pasternacki's firm or a fee agreement between the Respondent and Ms Assina involving Mr Ossipov, or a written consultancy agreement between the Respondent and Ms Assina.
49. Mr Oh impressed as an honest witness. He conceded that his memory was imperfect in some respects. He did not embellish his evidence, which revealed no animus towards the Respondent. There is no reason to believe that Mr Oh misspoke or misrepresented the truth in his evidence. As with Mr Pasternacki, given his experience and the circumstances in which he dealt with the Respondent, Mr Oh's belief that the Respondent was willing to act as a barrister is entitled to some weight, but it is not conclusive of the issue, which requires consideration of all the circumstances. As will be seen, and consistent with authority, particularly in circumstances where the Respondent has considerable motivation to present a particular version of events, the Tribunal gains greatest assistance from what was stated in communications between the relevant entities at the time of the events which gave rise to these proceedings.
50. In his statement of 21 November 2022 the Respondent stated [21] that, as a result of the restrictions imposed on NSW Courts during the Covid-19 pandemic "all matters that I had been briefed in were consequently adjourned. As a legal practitioner who predominantly practised as an advocate, this caused me to suffer under financial stress". Although financial stress may have led to, or influenced the Respondent's actions, he did not suggest that they had.
51. The Respondent conceded [62] that, from 30 June 2020 he had not held a practising certificate but had [63] lodged an appeal with the NSW Civil and Administrative Tribunal seeking to overturn the decision of the NSW Bar. The Respondent asserted [64] that he "stopped giving legal advice and stopped acting as a legal representative when the Bar Council refused to renew my practising certificate", and said that: "65 In late June 2020 I contacted a former colleague of mine in Law Enforcement, Elias Farah and I informed Elias of all the above events. I told Elias that I could no longer practise as a lawyer and that I was going to have some financial difficulties. 66 Elias offered me work as a consultant essentially looking over "police briefs" for solicitors and making observations about the conduct of police and the thoroughness of their investigations and preparing a report for solicitors so that solicitors can properly advise their clients. 67 I understood that this work would not include giving legal advice at all and be limited only to the giving of advice based on my experience as a police officer to a lawyer. I had been a police officer for 16 years prior to my career as a barrister and it seemed to me that this was work that I could do. I considered the conversation I had with Elias and I considered the nature and scope of the work that I was being offered. I did not consider that the work required a practising certificate because I would not be giving legal advice."
52. The Respondent said [90] that he signed a subcontractor's agreement with a consultancy firm owned by Mr Farah, Executive Consultants on 12 July 2020. The Respondent annexed to his statement a 21-page document purportedly executed by himself on his own behalf and Mr Farah on behalf of "Executive Consultants" on 12 July 2020. Mr Farah did not give evidence in the proceedings. We did not understand the Council to dispute that the parties to the agreement had executed it, or had done so on 12 July 2020. The Council placed some reliance on the Respondent not utilising it for the purpose of providing assistance to Mr Ossipov in view of his stated concern to avoid practising as a barrister, or providing legal advice when he knew that he could not permissibly do so.
53. Schedule 2 to the Consultancy Agreement, the "Service Order Schedule", described the "services" which the Respondent was to provide, being "to provide assistance to solicitors, barristers and firms in the investigation, discover and assessment of facts concerned with criminal and civil proceedings throughout Australia and to assist with the investigation of suspicious insurance claims and to conduct interviews with claimant on behalf of the insurer". The Respondent maintained that the services which he agreed to provide did not constitute legal services. There is no evidence that the Respondent ever provided any services to the company, pursuant to the subcontractor's agreement or otherwise. In those circumstances, it is unnecessary for us to consider whether any services which the Respondent might have provided pursuant to the agreement offended the National Law.
54. The Respondent alleged [93] that, by 16 July 2020, he had informed Mr Pasternacki that he had been refused a practising certificate and had told him why that had occurred. The Respondent alleged [99] that, on 16 July 2020 at Burwood Local Court prior to the meeting in the café, when he introduced Mr Pasternacki to Mr Bassem "In the presence of Mr Pasternacki, I explained to Mr Bassem that I could no longer act as a result of matters between myself and the NSW Bar Association. I informed Mr Bassem that I did not have a practising certificate which was like a licence to practice law and that this would take some time to work out before I could get it back. I informed Mr Bassem that fortunately Mr Pasternacki had agreed to attend and conduct his matter on his behalf and Mr Pasternacki was very good".
55. The Respondent set out in considerable detail ([102] and following) the conversations which he said occurred in the café near the Burwood Local Court. In the course of those conversations the Respondent alleged that he told Mr Pasternacki that "at the moment" he could not act for two other clients who he was "referring" to Mr Pasternacki. The Respondent alleged that Mr Pasternacki replied "Thank you Patrick. Good morning Arthur and good morning Albert". The Respondent said that he then said "I won't keep you long, because you have another client of mine at court this morning and you should attend to them first, but as soon as you've finished Andrew, we will be here waiting for you" to which Mr Pasternacki was said to have replied "Yes, I should probably get back in the line for court and I'll come over here to the café as soon as that matter is finished".
56. Having regard to the alleged disclosure, it is surprising that Mr Pasternacki is not suggested to have said more in response than the Respondent claims he did. The Respondent set out in detail what he said occurred when Mr Pasternacki returned to the café, during the course of which the Respondent alleged that Mr Pasternacki expressed no surprise and reacted as if what the Respondent claimed he had told him was the most natural thing in the world. Mr Pasternacki's actions after 16 July 2020, and his reaction to being advised by Mr Oh on 10 August 2020 that the Respondent did not have a practising certificate are consistent with his not having heard the Respondent make any disclosure of the kind alleged by him on 16 July 2020.
57. The Respondent alleged that during the meeting in the café he again said, in the presence of Mr Pasternacki that "As you know I can no longer act until this dispute with the Bar is over, so I've recommended you as someone who has the skill set to take on his case and if and when he needs counsel in the future, you could brief it back to me if I've sorted everything out with the Bar". The Respondent alleged that Mr Pasternacki replied "Yes. Understood. So tell me about Arthur's case". The Respondent alleged that, in the presence of Mr Trigis and Mr Pasternacki he again stated that he could "no longer act for him so it's the same situation Andrew and if the need arises in the future and I'm back at the Bar again, you could brief it back to me if counsel is required".
58. As is not in doubt, until the refusal of a stay of the suspension of his practising certificate, which the Respondent was confident would be granted to him, he believed that he would be "back at the Bar again" very shortly.
59. The Respondent referred to a telephone conversation with Ms Kaycee Roberts on 22 July 2020 during which Ms Roberts asked the Respondent to represent her friend Mr Ossipov. The Respondent alleged that on a number of occasions during the conversation he told Ms Roberts that he could not represent her friend because he did not have a practising certificate although "it could be soon" when he again did. Ms Roberts, a long-term acquaintance of the Respondent, was not called as a witness. The Respondent gave no explanation for the failure to call Ms Roberts, or of his having attempted to persuade her to do so. It can be inferred that Ms Roberts' evidence would not have assisted his case. The Council made reasonable efforts to have Ms Roberts give evidence. The Tribunal attaches no weight to the Respondent's self-serving account of the alleged conversation with Ms Roberts.
60. The Respondent alleged that he had a telephone conversation with Mr Pasternacki on or around 22 July 2020 with respect to "another client", Mr Ossipov, during which the Respondent reiterated that he could not "act for the client myself at the moment, but when the Bar matter is resolved you could brief it out to me then, that it's if you end up needing counsel. I'm happy to give you my thoughts on it until then. There is plenty of case law on this search warrant scenario Andrew and I can send you some of the cases if you don't know them". The Respondent alleged that the conversation concluded on the basis that he would "make some calls now and get back" to Mr Pasternacki.
61. The Respondent alleged that he had initiated a conversation with Ms Assina on 22 or 23 July 2020, during which he alleged that he said to Ms Assina "I hope that Kaycee passed onto you that I can't act as the lawyer for your son myself at the moment but I have been able to find a lawyer who can act for him, his name is Andrew Pasternacki and he is very good and someone who you can trust. I have worked with Andrew before. I've asked Andrew to appear at court for your son and to meet with him at the gaol". As we have earlier recorded, Ms Assina denied, and continued to deny that conversation.
62. The Respondent conceded [111] that, at the time of the events which gave rise to these proceedings, he was using email accounts which "had been set up as a single email application with multiple email addresses within it that can receive emails from the multiple accounts stored within it and it can send emails outwards from the multiple accounts stored within it". As is not in doubt, the communications to which we have earlier referred contained the representation that the Respondent was a barrister.
63. The Respondent referred [115]-[120] to SMS texts between himself and Mr Sari on or about 27 July 2020. The Respondent replied "The appeal was lodged on Friday. Waiting for a date". The Respondent alleged [121] that he had a further conversation with Ms Roberts on or about 4 August 2020. For the reasons indicated earlier, the Tribunal attaches no weight to the self-serving statement, save for what the Respondent alleged that he said to Ms Roberts during the conversation.
64. The Respondent alleged [122] that when he first met Ms Assina in person, at her home on 9 August 2020, he said "Kaycee should have spoken to you and told you that I cannot act for your son Vlad myself, and we have discussed this over the phone. Do you remember talking with Kaycee?" To which Ms Assina allegedly replied "Yes, Kaycee is Vlad's friend".
65. The Respondent alleged that Ms Assina said during the conversation that "Kaycee says that you can help me still because I don't know what to do?" the Respondent alleged that he said that he could assist because "I used to be a police officer before I was a lawyer" and could assist "by having a look at the conduct of the police in this matter".
66. In the course of the conversation the Respondent alleged that he said to Ms Assina that he would "need to be paid to take on Vlad's case as a consultant". The Respondent did not suggest that he informed Ms Assina of the services which he would provide in that he would "consult' with Ms Assina and "prepare a report" for Mr Pasternacki, or give her any indication of how the $3,000 fee which he required was calculated. The Respondent alleged that the conversation concluded with his saying "Hopefully if things work out for me I will be able to help Vlad as his lawyer in the future. But right now Andrew will do a good job as his lawyer and I will assist Andrew as best I can preparing all of this information for him".
67. The Respondent never submitted any document evidencing the alleged agreement to Ms Assina, a lay person whose first language was not English.
68. The Respondent alleged [124] that he had a further conversation with Ms Assina on or around 10 August 2020, where he alleged he said to Ms Assina that he should know by Friday (14 August 2020) whether he could represent her son, but that he would: "consult with Andrew in the meantime and sort out what is happening with the charge sheets for Vlad because I still haven't been given anything to read yet, but once I have it I will have a better idea about what the police have done and I will write a report for Andrew once I've read that material.."
69. In his second Affidavit of 15 March 2023 the Respondent responded to the Affidavits of Mr Pasternacki and Mr Oh. A significant part of the Affidavit was directed to what the Respondent submitted were the emails from Mr Pasternacki's firm to the "incorrect email address", although all of the email addresses were provided by the Respondent. As will be seen, the emails and texts which the Respondent sent to various people are more significant than those sent to him which he denies having received or noticed.
70. The Respondent was cross-examined by Senior Counsel for the Council. Though necessarily probing, the cross-examination of the Respondent was courteous at all times. Although it does not deflect the Tribunal from determining the proceedings according to law, in evaluating the evidence of the Respondent, the Tribunal has been mindful of the fact that he has been a party, a witness, and Counsel in the proceedings. His tendency to advocate his cause during the course of cross-examination was understandable, and the Tribunal does not draw adverse inferences in which it might in other circumstances. Ultimately, as will be seen, the fate of the Council's complaints turns more on what emerges uncontroversially from documents evidencing communications which came into existence at a time when disciplinary proceedings were not in contemplation than on conversations alleged much later which are inconsistent with the former, and not supported by any contemporaneous, or near contemporaneous records or notes. Consistent with authority, those contemporaneous documents are a more reliable indicator of the probabilities than what the Respondent suggested once these proceedings had commenced, and the potential seriousness of them became apparent to the Respondent.
71. Early in his cross-examination (28.06.2023 p227) the Respondent confirmed that he had known Ms Roberts for six or seven years, during which time she referred matters to him, and, it appears, the Respondent acted for Ms Roberts herself. The Respondent asserted that he gave Ms Roberts $3,000 "somewhere towards the end of August or September 2020" (28.06.2023 p228). For present purposes, little turns on that although it is surprising, given that Ms Assina had paid the $3,000 to him, that, having decided that he would repay it, the Respondent did not initially repay Ms Assina. It is not insignificant that, having decided by the end of August or September 2020 that it was appropriate to refund the $3,000, it was another three months before the Respondent sought to repay Ms Assina, notwithstanding that, as his statements confirm, he was aware from at least mid-August 2020 that Ms Assina was wanting her money back. The Respondent confirmed that he did not bank the cash which Ms Assina paid him but put it in the "top drawer of my home chambers' desk".
72. In cross-examination (28.06.2023 p230) arising from statements made by the Respondent, the following exchange occurred: "Q Just moving forward for a moment. You're telling this tribunal that that $3,000 was part of a consultancy agreement between you and Ms Assina. A Well, it's really between myself, Ms Assina and Ms Roberts, because Ms Roberts is the one who insisted I have some involvement in the case. Q No, that's not something you've said previously, is it? You've - A I - no, Mr Griffin, this is something I have said previously in the 3 years that there's been to and fro between those who instruct you at the Bar this is not something new, Mr Griffin. I reject that question."
73. After further exchanges which are not material for present purposes, the Respondent reiterated (28.06.2023 p231) that he "strenuously" denied the suggestion that, in his oral evidence, he raised for the first time the suggestion that Ms Roberts was a party to the consultancy agreement. The following exchange occurred: "Q So for clarity, who do you say were the parties to the consultancy agreement, you assert existed? A Ms Roberts, Ms Assina, myself. Q Where in the evidence have you said words to that effect, that the consultancy agreement was a tri-parte agreement between Roberts, Assina and yourself. A I don't recall specifically, but I know that I have instructed the lawyers, who did represent me to respond to the Bar and tell them exactly that. And this has been going on for a very long time. It's not new. Q So would that be Moray & Agnew? A It would be Ian Denham at Moray & Agnew, yes. Q Can you take me to a document from Moray & Agnew where they specify that there were three parties to the consultancy agreement? A No, I can't. Q You say you gave instructions to Moray & Agnew to that effect? A I do. And I also believe that I read correspondence drafted by Mr Denham pointing out to you that you will need to speak to Kaycee Roberts, because Kaycee Roberts is a part of this and this agreement. Q At this stage, Mr Mack, I'm simply asking a question, if you can point to a document, and you need time to locate it, please do so. A No, I - I can't point to a document. I haven't looked at all of your materials. It's been going on so long. It's too much. It's overwhelming. But I know this has come up."
74. There is no evidence before the Tribunal that the Respondent suggested that Ms Roberts was a party to the consultancy agreement prior to his cross-examination on 28 June 2023. The Respondent's claims are inconsistent with his emails and texts in 2020, and his two affidavits in these proceedings.
75. The Respondent was referred (28.06.203 p232) to a Statutory Declaration made by him on 19 December 2020 in response to questions directed to him by the Council, and particularly to his response to the question "What services did the payment [of $3,000 from Ms Assina] relate to?" to which the Respondent replied "For consultancy services to Ms Assina". Nowhere in that document, or any other document to which the Respondent has referred, did he suggest that the asserted consultancy agreement had been other than between himself and Ms Assina. When taken to his Statutory Declaration (at p185 of the Exhibit to the Affidavit of Mr Heger) the Respondent was asked (p232): "Q Are you now saying that that answer is inaccurate or that statement is inaccurate? A No, it's still accurate. Kaycee Roberts is the one who insisted I enter this agreement. Q No, but - A So she's part of it. She insisted that I intrude. Q So if that were the case, wouldn't that statement say, 'for consultancy services to Ms Assina and to Kaycee Roberts'. A No, I see what you're trying to do, but that's - that's not it. It's consultancy services to Ms Assina Kaycee Roberts is the person who asked me for that to happen. Q But Kaycee Roberts was not a part of the consultancy agreement, was she? On your evidence? A My response to that, Mr Griffin, is pleaded and begged for me to be involved in her boyfriend's case by entering this consultancy agreement with Ms Assina. Q Yes, and it was an agreement with Ms Assina alone, wasn't it? A No, Kaycee was contacting me to ask for any information I can give her as we went along. She was as desperate as Irina to know more. Q Well, what I want to suggest to you, Mr Mack, is the evidence you've given to the effect that Kaycee Roberts was a party to the consultancy agreement is not true. A No, it's true. And in fact, if I could correct this Statutory Declaration I would, and I would add Kaycee to that response at page 185. Q But you made the Statutory Declaration. You understood the importance of a Statutory Declaration, didn't you? A Of course, I do. Q And what is the importance, from a legal point of view of a Statutory Declaration? A Well, you - you're declaring that the document is true and correct, and this content is still true and correct. You're just saying there's a piece of information that isn't there."
76. The following ensued: "Q Just let me finish. It's not true and correct, because you assert the consultancy services included Ms Roberts as well as Ms Assina don't you? A I do. I would answer any questions Ms Roberts asked me. I responded by entering into the agreement at the request of Ms Roberts, so she's a part of it, but I don't see that this statement is not true and correct. I would just add something further to it. And it's not like Ms Roberts has not been raised with those who instruct you, Mr Griffin. From a very, very early stage. I believe this might be the very first response that I gave in this matter with what little information the Bar initially provided me."
77. The Respondent's disingenuous and evasive answers, and his refusal to concede the propositions put to him on behalf of the Council are more concerning than his raising, for the first time, any suggestion that Ms Roberts was a party to any asserted consultancy agreement or that she allegedly insisted there be such an agreement. It is unnecessary to find that the Respondent's evidence with respect to Ms Roberts and the asserted consultancy agreement was a recent invention. The Respondent's evidence, at its most benign, was a reconstruction. If his evidence were accepted, which the Tribunal is unable to, given the Respondent's evidence about his previous contact with Ms Roberts, and the stated and implied reasons why she sought his assistance for her "boyfriend" Mr Ossipov, would militate against accepting that the Respondent's involvement with Ms Assina was other than for the purpose of providing legal services.
78. The Respondent was asked (28.06.2023 p234): "Q When you became concerned that your practise [sic] would not be renewed, you were distressed by the financial consequences of that, were you not? A The question, 'When I became concerned that my practising certificate would not be renewed', I didn't have any concerns that my practising certificate would not be renewed. It came as quite a shock to me on the morning, I think, of 1 July, when I was told I no long (sic) have a practising certificate. It happened quite suddenly and unexpectedly. I didn't have any concerns I would be renewed for another year, and whether that be with certain restrictions, because that's what was being discussed between Mr Denham and the Bar, just prior to the Bar flipping their decision and saying, nope, you're not having a practising certificate."
79. It was suggested to the Respondent that "Once you became aware that your certificate was in fact not being renewed you were in a position of financial distress, were you not?" the Respondent replied that he was but "was already in a very significant period of financial stress since the commencement of the Covid closures of the Courts. It's probably fairer to say, Mr Griffin, that it amplified pre-existing stress through the roof". The Respondent's admissions about his financial position in July 2020 provide support for finding that, having adduced no evidence of other income generating avenues available to him, the Respondent was likely to have provided legal services to Ms Assina's son. That is so, particularly given the timeframe, and the fact that until after he received $3,000 from Ms Assina, the Respondent was confident that he would be able to appear in Court for Mr Ossipov. Only minimal reliance need be placed on this circumstance in evaluating whether the Council comfortably satisfies the Tribunal of the guilt of the Respondent. The contemporaneous communications and demonstrated unreliability of the Respondent's evidence give rise to that reality.
80. The Respondent was cross-examined about his relationship with Mr Elias Farah. As recorded earlier, there is no evidence from Mr Farah. The Respondent's evidence in cross-examination about the "nature of the consultancy work" which the Respondent said Mr Farah raised the prospect of his undertaking was revealing. The following exchange occurred (28.06.2023 p235): "Q What was the nature of the consultancy work [Mr Farah] was referring to in that discussion [in June 2020]? A So a - it's - it's similar to devilling in many respects. Different law firms, different insurance companies, will put together a brief and they'll give it to Elias or one of his subcontractors. And you really have to go through it and build a chronology - like a timeline - chronology of what events occurred. Forensic [sic] are looking for any inconsistencies or any possibility of additional sources of material that might fill gaps. And report - back - and - until you receive a further task in to look at something else. And - and that - that work would generally go to a solicitor, and there were a few solicitors that Elias named that I knew. And I was quite surprised that that's that that's where they were sourcing their forensic chronologies from. But I was - it seemed like something that I could do without falling foul of those who instruct you."
81. In response to an invitation to do so, the Respondent said with respect to devilling: "When I was first admitted as a young barrister, and particularly having come directly from police and having no, sort of, solicitors who might send me work, you can often find yourself sitting in your room in chambers twiddling your thumbs because there's no work coming in. But occasionally more senior members of the Bar might, either through sympathy or through wanting to have a collegial floor, come to you and say, 'Could you look at this brief of evidence and perhaps, you know, give me a draft of what advice I might give to the solicitor'. So you'll look through a - a brief, you'll prepare a draft advice in relation to whatever issues have been asked of the barrister who shared it with you. You then give your work to that barrister who checks it. And if he's satisfied after checking that work that it's all sound, he'll actually, maybe, perhaps, make a few edits. Maybe sometimes none if you're very lucky. But he'll put his name as the author of that work and return it to the solicitor. And that process of a more senior barrister using a lesser known junior barrister - those whose name never appears on anything - that process is referred to as devilling."
82. As is not in doubt, the Respondent first referred to "devilling". Having likened what he would be doing for Mr Farah to "devilling", although nothing ultimately turns on it, the Respondent's explanation of his understanding of "devilling" is instructive.
83. The Respondent said (28.06.2023 p237) that he was "pretty sure" that he signed the subcontractor agreement and referred it to Mr Farah but did not subsequently do any consultancy work for him. Why the Respondent did not was not explained. The Respondent suggested that he had had a conversation with Mr Farah and said that he "might have a case" which he did not think he identified as Ms Assina to which Mr Farah suggested that the Respondent having "sourced it yourself … take it yourself". We afford the Respondent's self-serving statements no weight in view of the demonstrated unreliability of his evidence, and absence of evidence from Mr Farah supporting his claim.
84. Understandably, the Respondent was cross-examined at some length with respect to the "scope of work which he was going to do as a consultant for Ms Assina". The Respondent said (p238): "There was a search warrant that had been executed on a property that her son was living within. And police had found some contraband in there. The information I had from Kaycee was that that was the - the warrant had a different address on it. There was a problem with the apartment block and police had gone to the wrong address. I agreed, reluctantly, that I would have a look at this issue. I would have a look at this issue of the search warrant. If they - if I was provided with all of the police documents, I would - I would construct what's called an evidence matrix. Which is like a spreadsheet where you build a chronology of dates in the left hand column. You build a chronology of actions. And as you move along the spreadsheet you'll have outcomes, evidence. You look at the charge that has been levelled against somebody - say Vlad Ossipov in this case - and there will be proof elements in relation to that charge. And you consider whether or not the police have, well, conducted themselves within the bounds of the warrant. Conducted themselves within the bounds of the applicable law. You move over to the right hand side of the spreadsheet and start establishing whether or not they have sufficient proof for identity, location, those things. Then you would provide that to a solicitor for his consideration and to assist him in the case."
85. The Respondent's own evidence thus provides considerable support for finding that any consultancy agreement between himself and Ms Assina, and Ms Roberts for that matter, was for the provision of legal advice.
86. Cross-examination with respect to the nature of a search warrant ensued (28.06.2023 p239). The Respondent was invited to discuss a "criminal or police" search warrant, and said: "So in a police search warrant, first of all there'll be restrictions on the time. So once it's issued, it must be executed within a certain period. There - there might also be some conditions on the time of day or night, and these things relate to risk. Because certainly someone in the police would have to conduct what's called a - I forget the precise name of the document - but it's - it's like a risk review and it's contingency planning. Then once you have a look at it, it'll have to nominate an address - a location. And that location will have to accord with an actual physical location. Like, just because of numbers printed on a door, it might not mean much at all."
87. The Respondent explained a number of aspects of a "police search warrant" (28.06.2023 p239-240) and suggested (p240) that one looked to see "whether or not the police have gone outside the scope of the warrant that they've been issued with. There's quite a bit to it." After the Respondent gave further detail of what he considered to be two aspects of criminal search warrants the following exchange ensued (p241): "Q What I want to suggest to you is that any legal practitioner would be familiar with what the essential characteristics of a search warrant are, as you've outlined. A Any legal practitioner? Q Yes. A You're putting that to me? Q I am. A I wholly reject it. I deny it. I don't think that your average practitioner has the first clue about a search warrant, other than, 'oh the police had a search warrant, so they were allowed to do what they wanted'. Q Why do you hold that view? A Because I've been in criminal law for 10 years. And I've had solicitors come to me asking me for advice, who had thought contrary to the advice I'd given them. And - and to have a closer look - to have a look with some - with a fine tooth comb and go over it. And you'd be surprised what you find. But you - you certainly find that your average solicitor on the street doesn't have the first clue how police go about obtaining a warrant. They don't have the first clue about studying the information that's been used to obtain the warrant. Where the warrant was sourced from, because you've got - New South Wales police might source their warrants from a Local Court magistrate. You've got the National Crime Authority that might have to go before the AAT. The Federal Police - there's all different methods of obtaining a police warrant."
88. The Respondent was asked (p241) whether he was asserting that he had "special knowledge about search warrants" to which the Respondent replied "I am definitely asserting that". It was asked whether he was suggesting "that lawyers who didn't have a police background wouldn't have" such knowledge. The Respondent replied "Yeah, it wouldn't be the only area either. I've had very senior barristers come to me in relation to possession of firearms cases". The Respondent reiterated that "In terms of search warrants, Mr Griffin, I absolutely have specialist knowledge, more so than your average solicitor on the street. More so than your average barrister". The Respondent suggested that the knowledge he had which would not be available to a practising legal practitioner was "16 years of policing experience". In further exchanges it was suggested to the Respondent that "any practising lawyer can access, even if they don't already, what the elements of a search warrant are, and who it can be issued by, and in what form, correct?". The Respondent replied "I assume that the answer is yes, they could". The Respondent was asked whether "consequently, any practising lawyer could make a determination whether they believed an actual search warrant complied with the legal requirements?" The Respondent replied "They could. But again, it would depend on how much experience they've had." It was suggested to the Respondent that there was "no need to specifically engage a consultant to undertake that exercise because it's an exercise that could be undertaken by a competent legal practitioner". The Respondent replied "The question depends on what the client wants. And in this particular case, the client's girlfriend was quite clear that she wanted me to consult on it".
89. The Respondent agreed that he was "asserting either to Kaycee Roberts or to Ms Assina that you had special knowledge or skills", and that Ms Roberts was "already aware of my 16-year policing background. And I shared that I had that experience with Ms Assina". The Respondent has not previously suggested that he informed Ms Assina of that matter. Ms Assina was not cross-examined to suggest that the Respondent had, or that she paid him $3,000 to consult on that basis. The Respondent was asked: "Q Apart from the question of what I will call 'the validity of a search warrant', and I think it's that - a summary of what you're saying, that you would be assessing whether a particular warrant was valid? A It's not just an assessment of whether the warrant is valid. It's an assessment of whether the things seized under the warrant were validly seized within the confines of the first, second and third condition of the warrant. Q But that would be apparent on the face of the warrant, how would you test that, wouldn't it? A I don't think that I don't think that's true. Q Because the warrant has to specify the scope of things that could be searched for and/or taken, pursuant to the warrant. A Yes. Q And so once one has access to what actually happened, you can compare what was done with the terms of the warrant and form a view about whether what was done was within the terms of the warrant. Correct? A Correct. But, Mr Griffin, couldn't those who instruct you also have instructed a first year barrister fresh out of the bar course. But they chose you for a specific reason I believe I was chosen for the same reason."
90. The Respondent confirmed (28.06.2023 p243) that the search warrant was "the only item I was going to consult on". The Respondent said (28.06.2023 p244) that he took $3,000 "simply to make an assessment about the search warrant" and that the figure was "global" without informing Ms Assina of how much time making the assessment would take or what rate he would be charging. Notwithstanding his professed expertise, and the matters to which he referred in the course of his evidence about the nature and characteristics of a criminal search warrant, the Respondent rejected the suggestion (p245) that he could "do that in half an hour". The following exchange ensued: "Q You just told this Tribunal that you understand things about search warrants that you suggest lawyers don't understand. Practising lawyers. A It would be remiss of me to process something in half an hour and hand it back. I would want to take some time to have a very, very close look at it all. Combined with the police facts. Q Consistent with work you had done when you were a practising barrister, you would have outlined to Ms Assina the terms and conditions of the consultancy, the amount of money, and how you reached that figure of $3,000, so she could make an informed decision about where she was going to give you the money. Correct? A No. Incorrect. Q What was incorrect about the proposition I just put to you? A Because I - I - I wouldn't have done that. I had a discussion with Kaycee about what I could do. The most that I could offer, not having a practising certificate. She insisted that she wanted that, and that the money that was going to be paid by Assina was Vlad's money and that he would want that too."
91. That was the first time that the Respondent suggested that, prior to receiving the $3,000 from Ms Assina, he believed that the money which he was receiving was Mr Ossipov's money. It was also the first time that the Respondent suggested that he had "outlined" any details of his proposed consultancy agreement with Ms Assina. Although he claimed to have thought differently after receiving it, the Respondent did not suggest that the $3,000 Ms Assina paid him was not her money.
92. The Respondent was asked (p247) whether: "Q When you became aware that Legal Aid were taking over [Mr Ossipov's case] you would have contacted Legal Aid and said, 'I can provide consultancy advice in relation to a crucial issue in respect of these charges'. Correct? A No. That's a ridiculous thing. Why would I do that? Q Because you're saying to this Tribunal that you had special expertise - A Yes. Q In relation to an issue that was central to the charges against Mr Ossipov. A Yes. Q So when you heard that Legal Aid were the new lawyers, you would have immediately contacted them to tell them that. A Absolutely not. After 10 August with this whole nonsense with 'the Bar has told us "you cannot do this you cannot do that"', I didn't want anything to do with any other lawyers or law firm. I still had a great deal of empathy towards Ms Assina. I had a great deal of empathy towards Kaycee and their son. But I didn't want to deal with - and I certainly would not have picked up a phone and called Legal Aid and said, 'hey guys, I can do some consultancy for you'. That's a ridiculous proposition to put to me and I - I would never have done that."
93. The Respondent may well have been reluctant to approach Legal Aid, but, particularly in view of his frequently asserted concern for Ms Assina and her son, and his asserted desire to follow Ms Roberts' wishes, it would have been a simple matter for him to have said that he could, and would, provide the kind of services to Legal Aid which he claimed he would be providing pursuant to the asserted consultancy agreement with Ms Assina and/or Ms Roberts.
94. The Respondent rejected (p249) the suggestion that the consultancy services which he had agreed to provide constituted the provision of legal advice, on the basis that the advice was his "forensic digestion of that material [search warrant]. I'm not the lawyer. I never said that I was a lawyer. Not giving any legal advice and no-one is bound to follow it. I'm not instructed as counsel. I'm giving this information as some assistance; expert's review of the police conduct in all of the issues surrounding that search warrant. If Mr Pasternacki chooses to use it, then good luck to him and I hope it helps and advances because that's what I was trying to achieve for Ms Roberts and for Ms Assina. If he chooses to ignore it, it's a matter for him. He is the solicitor with carriage of Mr Ossipov's case'." Nothing said by the Respondent militates against finding that the Respondent was asked to, and agreed to provide legal services to Ms Assina, Mr Ossipov and/or Ms Roberts. On the contrary, the Respondent's description accords closely with what barristers do, and the right of solicitors and/or clients to accept or reject their advice. In what way any services which the Respondent said that he was to provide did not constitute legal advice has never been explained.
95. The Respondent's evidence (p252) with respect to by whom he was retained to work pursuant to the consultancy agreement was inconsistent, unconvincing, and very much of a reconstruction "on the run". Moreover, the Respondent's improbable suggestion that he would be briefed by Ms Roberts and Ms Assina and that Mr Pasternacki "was in agreement with it" was not something that was suggested to Mr Pasternacki. The Respondent was asked (p253): "Q Am I correct in summarising that Ms Roberts could brief you because she had been involved as a person of interest in criminal matters previously. Or as a perpetrator, even. I don't know. Are you saying that because she had experience of that milieux that she was the appropriate person to brief you as a consultant? A No. She's the appropriate person because, to my knowledge, the money that was being used to pay me was Vlad's money and her - probably her money. She would have a right to. As boyfriend and girlfriend. If anyone's going to brief me - and Kaycee Roberts is the one who - and I've told, I cannot act in the capacity as a barrister. The most that I can do is have a look at this. Kaycee is the one that insisted I do. And therefore I believe Kaycee's the one who instructed me."
96. Objectively, the more the issue of the asserted consultancy agreement was probed with the Respondent, the more damaging his answers became for his case. The Tribunal is comfortably satisfied that the Respondent has reconstructed events over time in an unconvincing attempt to persuade the Council, and in turn the Tribunal, that he had not agreed to provide legal advice to Ms Assina, Mr Ossipov and, on his version of events, Ms Roberts.
97. In cross-examination, the Respondent maintained his claims that Mr Pasternacki and Mr Oh at all material times knew that he could not, and would not, appear as a barrister or provide legal advice with respect to Mr Ossipov's case. Even if they did, which we do not find, in view of the Respondent's own conduct after 30 July 2020, that would not preclude the success of this ground.
98. The Respondent was asked (28.06.2023 p261) about his meeting with Ms Assina on 9 August 2020 during which, over a period of 30 minutes, the Respondent said that he "took her full history" and made notes, which he was unable to locate. It was suggested to the Respondent (p262) that "The logical thing would be to start as soon as you entered into an oral agreement and the first document in the file would have been notes taken of the discussion with Ms Assina". The Respondent replied "I'm sure I had those notes at that time, but I can't locate them now". The Respondent's evidence with respect to the notes was unconvincing, particularly as he was aware, from prior to the end of 2020, that there was an issue about his dealings with Ms Assina. The Respondent was unable to produce text messages between himself and Ms Roberts as his phones has been "destroyed" (p263) and his computer had been hacked.
99. During the course of cross-examination the Respondent asserted that there were other text messages or conversations with Ms Assina, and agreed (28.06.2023 p266) that his "recollection of that telephone conversation's not supported by any documentary record". The Respondent was asked: "Q Why did you not make file notes of telephone conversations about these issues? A I think at the time there was so much going on. I think the practices that I used to have, when I was in practice as a barrister, weren't being carried out by me as thoroughly in those circumstances. I was under a great deal of stress and I - the parts of my affidavit that we've agreed aren't relevant, and we've taken out, describe all of the things that were going on. And I think it's those things that probably lead me down a path where I would make a quick phone call just to try and smooth things out. Keep everybody happy. Figure out what's going on. And the minute I got off the phone I would turn my mind to my own private things instead of making those file notes. So yeah. I - I agree I probably should have. I - in fact I should have. But I didn't at the time."
100. The Respondent agreed (28.06.2023 p266) that, during his time as a barrister he had accepted direct access briefs and was familiar with the obligations of a barrister in those circumstances. The Respondent agreed that, although it was "not legislated" that he adopt similar procedures with the consultancy agreement, he "should have".
101. The Respondent was cross-examined (28.06.2023 p269ff) on statements made by solicitors acting for him in an email explaining the reference to the expression "and has briefed me". It was put to the Respondent (p270) that: "Q You initially - by your solicitors - provided an explanation as to the meaning of that phrase. That explanation being that you may be briefed in the future if you got your certificate back. But in these proceedings, you now say to the Tribunal, 'I was referring to being briefed as a consultant'. What do you say about that? A I say that Ian Denham and the Bar have been aware since the beginning of this. That when I said the words 'brief me' in that email, it was in relation to being briefed as an expert. And it was for the purpose of the context of that email. Which is an appointment for an interview with an inmate at a remand centre. You have to be briefed in some capacity to sit in on that. And I would expect, if I read through all of the various correspondence between the Bar over the last three years, it would have surfaced before this. Because this is something I discussed with Ian Denham at length. It was - if I appeared as counsel in an NRRC paperwork to speak to an inmate, that would absolutely be me having to show a valid current practitioner's card, which I didn't have."
102. The Respondent was referred to his solicitor's explanation that "the words [and has briefed me] were intended by Mr Fordham Mack to mean that he may be briefed in the matter in the future once his practising certificate once returned. This was accurate and not misleading". That explanation, on instructions from the Respondent at the time, and with the benefit of competent legal advice, is inconsistent with the explanation asserted by the Respondent during his evidence before the Tribunal. It is inconceivable that, had the Respondent suggested that he was being "briefed" as a consultant to provide advice which did not constitute legal advice, Mr Denham would not have said that in the letter written on the Respondent's behalf. The Respondent's evidence (p272-273) with respect to his failure to take what he regarded as "important" documents to Mr Pasternacki after it became apparent that he could not appear as Mr Ossipov's barrister, or provide legal services, was unconvincing, and difficult to reconcile with his repeatedly asserted "empathy" for Ms Assina's position.
103. The Respondent relied upon the evidence of Mr Trigis in support of his defence of this ground. Mr Trigis deposed to having met the Respondent in February 2020. Mr Trigis referred to the events of 16 July 2020 at Burwood Local Court. Mr Trigis said that he had been made aware on or before 16 July 2020 by the Respondent that he "couldn't act as a barrister anymore because he didn't have a practising certificate and that he was introducing me to Mr Pasternacki because he was someone who was supposed to be reasonable with his legal fees and could take my case". Mr Trigis clearly stated in his Affidavit that on 16 July 2020 Mr Pasternacki was aware, and was made aware by him, that the Respondent could not take his case.
104. Mr Trigis was cross-examined. He agreed (28.06.2023 p197) that he made a Statutory Declaration on 16 June 2021 (Annexure A to his Affidavit) and confirmed that he had not made any notes in 2020 to which he referred when making his Statutory Declaration but "just went off the text messages and the emails and things like that". When asked (p198) did you "sit down and draft the Statutory Declaration of 16 June 2021?" Mr Trigis volunteered, "No. I did it with Patrick" - a reference to the Respondent. Mr Trigis confirmed that the Respondent "came to me" and that they were "trying to put something - putting it together" and that the Respondent "assisted me in the typing and stuff", as he did with his Affidavit in these proceedings.
105. Nothing emerging from the cross-examination of Mr Trigis provides a basis for finding that he consciously misspoke or misremembered the truth. Mr Trigis' evidence with respect to his Statutory Declaration composed 11 months after the events of 16 July 2020, combined with his absence of contemporaneous notes or material other than the texts attached to his Affidavit cause us reservations about the accuracy of his recollection of events. The text messages attached to Mr Trigis' Affidavit are not inconsistent with his evidence, but do not necessarily assist it.
106. Mr Trigis' matter was a civil matter involving BMW Finance. The evidence does not suggest that, had he been able to do so, the Respondent would have accepted instructions to act in it. The text messages on 14 August 2020 do not impact upon the likelihood or otherwise of Mr Trigis' recollection of events being accurate. The email from Mr Pasternacki to Mr Trigis of 14 August 2020 does not shed any significant light on the issue, save to the extent that the Respondent was informing Mr Pasternacki's firm of his wish for them to assume the conduct of his commercial dispute and to brief Mr Friedgut to appear.
107. Acceptance of Mr Trigis' evidence is not ultimately materially inconsistent with Mr Pasternacki's version of the conversation in the café at Burwood on 17 July. Even if it is accepted that Mr Pasternacki was then aware, or may have been aware, that the Respondent could not act as Mr Ossipov's barrister or provide legal advice, that would not change anything in relation to the Tribunal's decision with respect to the asserted consultancy agreement.

Council's submissions

1. The Council relied on 13 particulars in support of Ground 1. They were articulated in the following terms: "(i) On 23 July 2020 the Respondent sent an email at 9.10 a.m. from his email address at Clarence Chambers, to Andrew Pasternacki at Strathfield Legal. The email stated the following: • 'What I need from you Andrew and Strathfield Law is for the appointment to be made in [sic] for instructions to be taken from Vlad that your firm now acts for him and has briefed me' • 'Someone from your firm will have to appear with me on 27th' The Respondent admits he sent this email. He asserts that prior to sending this email he had a conversation with Assina and Pasternacki which resulted in an agreement with the following elements: (a) Pasternacki would legally represent Ossipov; (b) Pasternacki would brief him as a consultant to advise on the conduct of the police and adherence to their procedures in relation to the arrest and charging of Ossipov; (c) the Respondent would attend Court on each occasion with Assina to support her due to her anxiety, age, lack of family and support and her lack of experience; and (d) Assina would pay the Respondent the sum of $3,000 for his consultancy and support. The Respondent had appealed against the decision of the Applicant to not renew his practising certificate. He says that if his appeal was successful the parties agreed that he would be briefed as counsel to act for Ossipov. Both Pasternacki and Assina denied there was an agreement with the Respondent in the terms he alleges. (ii) On 23 July 2020 the Respondent sent a text message to Ms Assina that his 'team' were making an appointment to speak with Mr Ossipov. The Respondent admits this particular. (iii) Ms Assina saved the Respondent's number in her phone as 'Patrick La(w)yer'. The Respondent does not admit this particular. He says that if it did occur, he does not know how Assina saved his number in her telephone. (iv) On 27 July 2020 the Respondent sent a text message to Mr Pasternacki as to the conduct of the mention scheduled on 27 July 2020. The Respondent admits he sent this text message to Pasternacki. However, he says that it was merely his suggestions for the conduct of the first mention and it followed a telephone call with Pasternacki where he made it clear that Pasternacki was responsible for how this mention was conducted. (v) The Respondent failed to correct David Oh, a principal of Strathfield Lawyers description of him as 'of Counsel' in his email dated 27 July 2020 and nor did the Respondent explain in any response that he was not able to appear for or advise on Mr Ossipov's matter. The Respondent says that prior to the commencement of these Tribunal proceedings he did not notice that Oh had referred to him as 'Counsel'. He admits the balance of this particular. (vi) On 4 August 2020 the Respondent had a text message exchange with Ms Roberts to the following effect: Ms Roberts: 'So there's no chance of you being able to take care of Vlad case yourself? Sorry I don't understand it all' The Respondent: 'I will be taking his case Irina' The Respondent admits that this text message exchange occurred. He asserts that there were further messages and telephone conversations with Roberts in which he explained to her the alleged agreement referred to in his response to (i) above. (vii) The Respondent met with Ms Assina on 9 August 2020 and took Mr Ossipov's full history over a period of 30 minutes. The Respondent admits this particular. (viii) On 10 August 2020 at 1.26 p.m. the Respondent sent a text message to Mr Pasternacki saying that he would 'draft an advice on the second charges'. The Respondent admits this particular. He says the advice referred to would only concern the conduct of the police and their adherence to police procedures. (ix) On or about 10 August 2020 the Respondent and Ms Assina had the following text message exchange: Ms Assina: 'Okay … I will text you after work. Do I need tell something for Vlad? I mean you will take his case or he needs to apply for legal aid [sic]?' The Respondent: 'I will be taking his case Irena' The Respondent admits he sent and received those text messages. However, he says that following these messages he had a telephone conversations with Assina in which; (a) she expressed dissatisfaction with Pasternacki and Oh because they did not return her calls and did not explain what was happening in a way she could understand; and (b) asked if the Respondent could take over the case from Pasternacki and Oh. The Respondent says that he explained to Assina that he would know by 14 August 2020 whether his appeal against the decision of Applicant not to renew his practising certificate had been successful. If it was, he could be formally briefed by Pasternacki to advise, and appear for, Ossipov. (x) On 11 August 2020 at 4.17 p.m. the Respondent sent a text message to Ms Assina that said: • 'Everything will be carefully prepared and taken care as agreed' • 'I will consult on the case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again'. The Respondent admits he sent this text message to Assina. He relies upon further matters outlined in his response to particular (ix). (xi) On 12 August 2020 at 1.02 p.m. the Respondent requested that copies of Mr Ossipov's charge sheets be provided to him from Mr Pasternacki and said that 'Once I get through this NCAT gearing [sic] I will be returned to practice and I will see Vlad Monday'. The Respondent admits this particular. (xii) On 17 August 2020 the Respondent sent a text message to Ms Roberts saying that he was 'studying the evidence of the police and preparing the advice for how best to run it'. The Respondent admits this particular. He says that the reference to 'the advice about how best to run it' was referring to an argument Pasternacki could make concerning irregularities with how the police executed a search warrant on the premises of Ossipov. (xiii) On an unknown date, the Respondent indicated to Ms Roberts that he 'may have to let the case go'. The Respondent admits this particular."
2. In support of its submission that the Respondent agreed to provide legal services the Council relied on the definition of "barristers' work" in r 11 of the Barristers Rules made pursuant to the Uniform Law. Those definitions relevantly included "preparing to appear as an advocate" and "giving legal advice".

Respondent's submissions

1. The Respondent submitted that, to establish ground 1 the Council needed to comfortably satisfy the Tribunal that: "(a) first, the Respondent stated he could act as a barrister for Mr Ossipov ('statement element') and (b) second, at the time of making the statement: (c) the Respondent did not have a practising certificate (practising certificate element) and (d) had no reasonable basis for thinking that he could act for Mr Ossipov."
2. The Respondent submitted that the Council could not comfortably satisfy the Tribunal of all three elements as was required of it. The Respondent did not dispute that as and from 1 July 2020 and at all material times he did not have a practising certificate.
3. With respect to the "reasonable basis element", the Respondent asserted, accurately, that the Council did not suggest that he erroneously thought that he could act for Mr Ossipov. The Respondent submitted that the Council alleged that there was no reasonable basis for the Respondent thinking that. The Respondent submitted that to be: "a recognition that at least in some of the alleged representations the Respondent was referring to matters in the future. That is, it appears to be conceded that the Respondent had indicated he was not presently able to act for Mr Ossipov in any other capacity than as a consultant, but could possibly act as a barrister in the future."
4. The Tribunal understands the Council's case with respect to this Complaint to be that, in circumstances where the Respondent properly conceded that he did not have a practising certificate, he improperly offered to provide legal services or do barristers' work of either or both of the kinds identified in the relevant Barristers Rules. The Council asserted that the Respondent's beliefs were irrelevant - he did not have a practising certificate at the relevant time, and thus could not permissibly provide legal services.
5. The Respondent submitted that the Council had "declined to lead any positive evidence to satisfy the Tribunal that there was no reasonable basis for the Respondent thinking that he could act for Mr Ossipov during the course of Mr Ossipov's court case" such failure assertedly being "fatal to the application with respect to ground 1".
6. We do not accept that, in the circumstances of this case, the Respondent's belief about his future ability to provide legal services is relevant to our determination. Put simply, without a practising certificate, the Respondent could not do barristers' work. That was the position regardless of whether he had excellent, or no prospects of securing a practising certificate through the appeal process which he was pursuing. The Respondent's contention, if accepted, would render nugatory the process whereby, until restored or renewed, a barrister cannot provide legal services when he or she does not have a practising certificate.
7. Although nothing turns on it, even if the reasonableness of the Respondent's beliefs about the outcome of his appeal or stay application was relevant, other than his say so, there is no evidence that the Respondent reasonably believed that he would be able to practise after 14 August 2020. It is not in doubt that the Respondent's optimism proved unfounded on 14 August 2020.
8. With respect to "the statement element". the Respondent submitted that, in none of the particulars relied was it contended that he "stated he was immediately in a position to act as a lawyer". Accepting that proposition does not advance the Respondent's case. In the Tribunal's view, knowing that he could not at the time properly practise as a barrister, the Respondent was careful not to state that he was "immediately in a position to act as a lawyer". The focus of the Tribunal's interest is not whether he stated, or failed to state, that he was not immediately in a position to act as a lawyer, but whether, in all the circumstances, the Council comfortably satisfies the Tribunal that the services which the Respondent agreed to provide constituted legal services.
9. The Respondent's suggestion that the Council's case is "impermissibly vague in identifying the conduct of the Respondent alleged to constitute professional misconduct or unsatisfactory conduct" cannot be accepted. The Council laid out clearly in its evidence in chief, and through cross-examination of the Respondent, exactly what its case was, and did not deviate from that course.
10. The Respondent's submissions to the effect that a number of the particularised statements relied upon by the Council are not particulars does not advance his case.
11. The Tribunal accepts that Ms Assina recording his contact details as "Patrick Law[y]er", they having been shared with her by Ms Roberts, provides some support for finding that the Respondent's conduct reasonably conveyed to Ms Assina, and Ms Roberts for that matter, that he was willing to provide legal services. Had he been anxious to avoid Ms Assina and/or Ms Roberts thinking that he was being engaged as a "lawyer", the Respondent would have taken steps to prevent their forming that belief. Why, other than for the provision of legal advice as a "lawyer", Ms Roberts would have referred Ms Assina to the Respondent, or Ms Assina would have made contact after that referral has never been suggested by the Respondent. On the contrary, in the passages of his cross-examination which we have set out earlier, the Respondent's own evidence provided support for finding that, whether, by words or conduct, the Respondent led Ms Roberts and Ms Assina to reasonably believe that he would provide legal advice to Ms Assina with respect to the police search warrant pursuant to which evidence apparently crucial to at least some of the charges being faced by Mr Ossipov was obtained.
12. The Tribunal has regard to the whole of the circumstances surrounding the Respondent's conduct. If the sole basis of this ground was that the Respondent represented that he could represent Ms Assina's son in court prior to 14 August 2020 proof of the ground may have been problematic. That, however, as the evidence and submissions on behalf of the Council make clear, is not what this ground alleged. The ground alleged that the Respondent stated that he could act as a barrister for Mr Ossipov at a time when he could not lawfully do so. As the legislative provisions to which we have referred make clear, acting as a barrister is not limited to representing a client in court, and includes providing legal advice.
13. The Tribunal struggles to accept the Respondent's evidence that it was not until the commencement of these proceedings that he saw the reference in Mr Oh's email of 30 July 2020 that he knew that Mr Oh had referred to him as "counsel". Acceptance of the Respondent's evidence with respect to that matter does not assist his defence of this ground in view of the representations made by him after that date upon which the Council relies. Contrary to the Respondent's submissions, the failure to read Mr Oh's email was not relied upon the Council as establishing that the Respondent stated that he was able to act for Mr Ossipov.
14. With respect to the Respondent's submissions that, on or before 17 July 2020 he had informed Mr Pasternacki that he could not act as a barrister for Mr Ossipov does not change anything. As observed earlier, Mr Pasternacki made concessions, including concessions that the Respondent may have said things to him in the café at Burwood on 17 July 2020 which he did not hear. As we have earlier observed, that has no bearing on what was to be provided by the Respondent pursuant to the asserted consultancy agreement with Ms Assina. Significantly, neither the Respondent's original claims with respect to the consultancy agreement, or the claims made by him during cross-examination (the tripartite agreement) was put to Mr Pasternacki in cross-examination. Although the Respondent may not accept it, Mr Pasternacki's concessions with respect to what the Respondent may have said on 17 July 2020 assist him in relation to his denial that he held himself out as able to appear for Mr Ossipov in court as a barrister. They provide no assistance to the Respondent's case with respect to the provision of legal advice regarding the search warrant.
15. The Respondent's submissions with respect to the crux of this ground, the alleged willingness to provide legal advice, was not addressed by his detailed written, or brief oral submissions. The Respondent conflated "acting as a barrister" appearing in court with the provision of legal advice out of court. The Respondent was a barrister. He was at the times material to this case, not permissibly able to provide legal advice or other legal services. The critical issue is whether the Council has comfortably satisfied the Tribunal that the Respondent purported to provide legal advice to Ms Assina and/or her son with respect to the police search warrant, or whether the evidence tends to show that the services which the Respondent agreed to provide Ms Assina and/or her son did not involve the provision of legal advice.
16. As we have recorded earlier, and the cross-examination of the Respondent by Senior Counsel for the Council graphically illustrated, accepting the Respondent's definition of the services he was to provide, just what providing those services entailed which did not involve the provision of a legal opinion or legal advice has never been identified by the Respondent. Nor has the Respondent identified how his prior police service was intended to be deployed to assist with Mr Ossipov's case. The Respondent's own evidence in cross-examination was consistent with his having agreed to provide legal advice with respect to a search warrant.
17. As the cross-examination of the Respondent to which we have earlier referred confirms, the Respondent did not rely upon the consultancy agreement defence to the Council's complaints until the commencement of these proceedings. The Respondent proffered a quite different explanation, as cross-examination of him revealed, at a time much closer to the events in question when represented by a highly reputable firm of solicitors and, it appears, eminent Senior Counsel. Not insignificantly, given that the Respondent claims to have been well aware that he could not provide legal services, it is curious that the Respondent did not direct Ms Assina to Mr Farah, and provide consultancy services to her pursuant to his agreement with Mr Farah, or, at the very least, seek to have her sign a consultancy agreement.
18. In its written submissions in reply, which Senior Counsel for the Council supplemented with oral submissions, the Council disputed that it had failed to prove its case to the requisite standard. The Council succinctly submitted that in reply that: "There was in fact no consultancy agreement. The Respondent has invented this oral agreement as a convenient means of explaining why he engaged in what is properly characterised as legal work. The search warrant he refers to is not in evidence. There is no independent evidence to support the assertion that it was invalid. If the legality of it was genuinely in issue any barrister with experience doing criminal work could have advised on any issues arising from its validity, or execution. There was no justification for engaging a consultant. If, contrary to this position, a consultant was required, any competent solicitor would brief them with a letter of instruction setting out the scope of the work to be undertaken and specifying how fees were to be calculated none of this occurred."

Consideration

1. As the particulars in support of this ground make clear, the Council relies significantly on electronic communications which the Respondent sent to Ms Assina and Mr Pasternacki's practice. The Respondent does not, and could not, deny his authorship of those communications. Consistent with authority, (The Nominal Defendant v Cordin [2017] NSWCA 6) the Tribunal attaches considerable weight to the Respondent's communications, given the timing of them, their terms, and the probability that what the Respondent communicated at that time reflected his intentions. To infer otherwise, in the absence of any evidence that the Respondent intended to mislead or deceive, and there is no such evidence, would be disingenuous. The Respondent's evidence makes clear that, at the time of the communications, and until shortly after 14 August 2020, he was confident that, although unable to permissibly do so at the time, he would be able to appear in court as counsel for Ms Assina's son when his case was listed for hearing. The evidence reveals that was likely to be well after 14 August 2020.
2. The Respondent's statements in the emails or texts between himself and Mr Pasternacki's firm, which have identified earlier, are more likely to reflect the events to which they refer than the Practitioner's later, uncorroborated contrary view of those events.
3. On 4 August 2020 the Respondent had a text exchange with Ms Roberts in which Ms Roberts said "So there's no chance of you being able to take care of Vlad case yourself? Sorry I don't understand it all", to which the Respondent replied "No I can do it, I have my new firm starting next week". On 10 August 2020 the Respondent sent a text message to Mr Pasternacki saying that he would "draft an advice on the second charges" facing Ossipov. On the same day the Respondent and Ms Assina had a text message exchange in which Ms Assina asked "Do I need tell something for Vlad? I mean you will take his case or he needs to pay for legal Aid?" to which the Respondent replied "I'll be taking his case Irina".
4. On 11 August 2020 the Respondent sent a text message to Ms Assina stating that "Everything will be carefully prepared and then taken care as agreed" and "I will consult on the case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again".
5. On 12 August 2020 the Respondent requested Mr Pasternacki provide him copies of Mr Ossipov's charge sheets and said "Once I get through this NCAT gearing [sic] I'll be returned to practice and I will see Vlad Monday".
6. On 17 August 2020 the Respondent sent a text message to Ms Roberts saying that he was "studying the evidence of the police and preparing the advice for how best to run it".
7. If this Complaint turned solely on the text and email exchanges to which we have referred, there would be little difficulty in the Tribunal being comfortably satisfied that the ground has been made out. The Respondent's defence turned on alleged conversations with Ms Assina and Mr Pasternacki which he submitted precluded the Tribunal from being comfortably satisfied that this ground was made out. Unlike the Council's case, which turns on admitted contemporaneous communications, the most damaging of which contained the Respondent's own representations, other than his claims, the exculpatory conversations alleged by the Respondent are entirely unsupported.
8. We have earlier referred in some detail to the evidence of Ms Assina, who did not present as a witness with "an axe to grind". Ms Assina admitted that her recollection of some events was imperfect but was unshaken with respect to the critical allegations made by her. Text messages sent by Ms Assina are entirely consistent with and supportive of her oral evidence. Why Ms Assina would have contacted the Respondent, and continued to be in communication with him, and to pay him money, other than on the basis that he was going to "take" her son's case has not been suggested by the Respondent. We are comfortably satisfied that Ms Assina communicated with the Respondent, and paid him $3,000, because she understood, correctly, that he was a barrister and believed, in reliance upon his own representations, that the Respondent could take her son's case at a time when he clearly permissibly could not do so. The Respondent "taking" Mr Ossipov's case was not limited to appearing for him in court.
9. Ms Assina's version of disputed facts was not shown to have been erroneous. Her assertion that all conversations between herself and the Respondent were by text message on 22 or 23 July 2020 because she was "in hospital at the time" has not been shown to be inaccurate. Ms Assina's insistence that, when the Respondent attended her home on 9 August 2020 she believed that he did not state that he could not practise as a barrister or suggest any limitations on his ability to do so with respect to her son's case was justified by the Respondent's own conduct, including giving her his business card which clearly stated that he was a barrister. How else Ms Assina could have come into possession of the Respondent's business card at that time was not suggested by him. There is no reason to disbelieve Ms Assina's insistence during cross-examination that if she had known that the Respondent could not be her son's barrister she would have "gotten a different barrister", such belief being justified by the Respondent's communications with her and not counter indicated by any other facts or circumstances to which the Respondent has referred.
10. To the extent that the Respondent asserted that Mr Pasternacki or Ms Roberts may have given Ms Assina his business card, there is no rational basis for accepting that assertion having regard to Mr Pasternacki's evidence and the circumstances surrounding the Respondent's meeting with Ms Assina on 9 August 2020. To the extent that Ms Roberts may have given Ms Assina the Respondent's card, there is no evidence that Ms Roberts did so. Mr Pasternacki presented as an honest witness, who conceded a number of matters which were not unfavourable to the Respondent with respect to the events of 16 or 17 July 2020 at the Burwood café. The Respondent made much of his asserted referral of clients to Mr Pasternacki as supportive of his claim that Mr Pasternacki was aware that the Respondent could not act as a barrister in July and August 2020. That evidence was, at most, equivocal.
11. Mr Pasternacki conceded that he may not have heard statements made by the Respondent in the café at Burwood on 16 July 2020. Mr Pasternacki relied significantly on what the Respondent himself said. Why Mr Pasternacki would have allowed his firm to continue to act for Mr Ossipov on the Respondent's referral if Mr Pasternacki or Mr Oh was aware that the Respondent could not properly represent their client was not suggested during cross-examination of Mr Pasternacki or Mr Oh, and no reason why they would have emerges from the evidence. Email communications upon which Mr Pasternacki relied provided tangible support for his belief, until 10 August 2020, that the Respondent was able to and would act for Mr Ossipov.
12. The Respondent placed considerable reliance upon the fact that he did not conduct the mention of Mr Ossipov's matter at Burwood Local Court on 16 July 2020 and that he was "wearing jeans and casual clothes" at the time, as Mr Pasternacki readily agreed he was. Against the background of the Respondent's emails, subsequent to that day, there was no reason for Mr Pasternacki to assume that the Respondent could not take Mr Ossipov's case. Cross-examination of Mr Pasternacki to which we have earlier referred with respect to the asserted referral of "3 clients to you on the same day", which had never previously occurred was, in the circumstances Mr Pasternacki explained, unexceptional and did not and should not have caused Mr Pasternacki to doubt whether the Respondent could properly appear at that time. Mr Pasternacki's cross-examination with respect to his firm's involvement in Mr Ossipov's case, and the matters which the Respondent says he raised with him about the merits of the case were entirely consistent with the Respondent being involved in the case as Mr Ossipov's barrister. Mr Pasternacki's evidence in cross-examination with respect to becoming "nervous" between 30 July and 10 August 2020 as to the Respondent's involvement in Mr Ossipov's case was reasonable and credible.
13. The concessions made by Mr Pasternacki with respect to the statements made by the Respondent in the café at Burwood do not create difficulty with acceptance of the critical parts of his evidence, or adversely impact the Council's allegations with respect to the provision of legal advice. As Mr Pasternacki said in cross-examination, in reliance upon the Respondent's communications and conduct, until 10 August 2020, he had no reason to doubt that the Respondent was able and intending to take Mr Ossipov's case when it was to be heard. It was unexceptional that Mr Oh attended to the mention of the case on 27 July 2020.
14. Cross-examination of Mr Oh provided no rational basis for finding that he knew, or should have known, until 10 August 2020 that the Respondent could not or should not act for Mr Ossipov. Mr Oh's reaction on 10 August 2020 to discovering that the Respondent did not have a practising certificate was significant.
15. The Respondent's assertion that he told Ms Assina that he would "be taking your son's case" and would "have my licence back soon, but I am still working on it for now" created no obstacle to the reasonableness of Ms Assina's belief that the Respondent could and would take her son's case. That belief was reinforced by the Respondent's statement "Don't worry about my licence. I'm about to get it back so I can continue working on Vlad's case. Once I have my licence I'll be able to take the matter and run it myself" was not counter indicative of Ms Assina's belief that the Respondent could and would act for her son. The evidence more than comfortably satisfies the Tribunal that the Respondent intended to be "working on" preparation of Mr Ossipov's case, and advising on the legality of the police search warrant while he awaited the anticipated restoration of his practising certificate on, or shortly after 14 August 2020.
16. In cross-examination Ms Assina agreed that her son told her that Ms Roberts "knows a great barrister". Other than the Respondent, the evidence does not reveal any other person to whom Ms Roberts could have thus referred. Although the Respondent relied upon asserted telephone conversations with Ms Assina which shed different light on his dealings with her, he did not tender any phone records, or provide other circumstantial evidence suggesting that Ms Assina was mistaken in her continued assertion that contact between herself and the Respondent was always by text. Ms Assina rejected the Respondent's assertion that, on 9 August 2020 he made clear to her that "I cannot act for your son, Vlad, myself". Ms Roberts never gave evidence. The circumstances suggest that the Respondent was more able to call her as a witness than was the Council, who had made reasonable efforts to do so. In any event, the Tribunal infers that Ms Roberts' evidence would not have assisted the Respondent's case, and has "greater confidence" in drawing inferences adverse to the Respondent in reliance upon the evidence which is before it (Manly Council v Byrne [2004] NSWCA 123 at [51]).
17. The Respondent's contention that he was referring Ms Assina's son's case to Mr Pasternacki's firm, and that he would play no part in the legal conduct of the case is contradicted by the circumstances in which Ms Assina came to contact the "great barrister" which the Respondent had been represented to her as being. The evidence is clear that that Mr Pasternacki's firm was to assume the role of instructing solicitors, attending to mentions, and preparing Mr Ossipov's case in accordance with advice and directions given to them by the Respondent. The Respondent clearly gave advice and instructions with respect to the conduct of the mention of Mr Ossipov's case on 27 July 2020. Ms Assina's insistence that, on 9 August 2020, the Respondent promised her that "in a few days" he would have his licence back or "next Monday, or in 2 weeks", is supported by the fact that, until his application was refused, the Respondent believed that he would be able to appear in court for Mr Ossipov on or after 14 August 2020. The circumstances in which Ms Assina paid the Respondent $3,000, and her assertion that the Respondent said that it was his fee, which the Respondent clearly did indicate, are also consistent with Ms Assina having retained the Respondent in the belief that he could take her son's case.
18. It is significant that the Respondent did not suggest to Ms Assina in cross-examination that he had indicated to her the nature of the consultancy work which he claims he had agreed to undertake, or any basis upon which his fee for doing such work would be $3,000. It is also significant that, although the Respondent claimed to have been acutely aware that he could not practise as a barrister, and had entered into the sub consultancy agreement with Mr Farah some weeks prior to 9 August 2020, the Respondent did not suggest either that Ms Assina's consultancy agreement with him should be through that agency, or be documented in any way. If the Respondent accepted at the time that he could not act as a barrister for Ms Assina's son, but was going to provide consultancy services not involving the provision of legal advice, it is improbable that he would not have documented the arrangement in some way in view of the reasons he advanced for having previously entered into the agreement with Mr Farah's company.
19. The Tribunal has difficulties with a number of aspects of the Respondent's evidence. On the one hand, the Respondent maintains that he was conscious of the fact that, not having a practising certificate, he could not do barrister's work. It is surprising in those circumstances that he communicated in the terms in which he did with Ms Assina, Ms Roberts and with Mr Pasternacki's firm. The absence of any suggestion in his contemporaneous communications that he could not represent Mr Ossipov was significant.
20. We have earlier recorded material inconsistencies in the Respondent's version of his arrangements with Ms Assina. We have also had difficulty with the very detailed and precise terms of conversations alleged by the Respondent in his November 2022 statement, which have been denied by Ms Assina, Mr Pasternacki and Mr Oh, and which are not proved to have been taken from contemporaneous notes. Although it is possible that the Respondent has a remarkable memory, and was able without apparent reference to notes to set out in considerable and close detail what he alleges was said, the Tribunal suspects, but does not need to find, that the Respondent reconstructed the events of July and August 2020 in the years which followed in the light of the commencement of disciplinary proceedings against him. Where the evidence of the Respondent conflicts with the evidence of Ms Assina, Mr Pasternacki or Mr Oh, the Tribunal comfortably prefers their evidence.
21. The evidence of the Respondent to which we have earlier referred regarding the agreement with Mr Farah, his asserted awareness of the limitations imposed by the absence of a practising certificate, and the absence of any documentation whatsoever of his alleged arrangement with Ms Assina, assume particular significance. The Tribunal need not speculate about the nature of the work which the Respondent agreed to do pursuant to the subcontractor agreement with Mr Farah's company. The Tribunal infers from Mr Farah's unexplained failure to give evidence that his evidence would not have assisted the Respondent. That assumes particular relevance with respect to the Respondent's claim that Mr Farah encouraged him to contract directly with Ms Assina, rather than through the subcontractor agreement. There is no evidence that, had the Respondent pressed him to do so, Mr Farah would not, if only to potentially protect the Respondent from a claim of the kind which gives rise to these proceedings, have allowed Ms Assina to secure the Respondent's services via the subcontractor agreement.
22. It is curious that the Respondent perceived the need to say repeatedly to the same people that he did not have a practising certificate and thus could not represent Mr Ossipov. To the extent that the Respondent revealed that he did not have a practising certificate, his own evidence establishes that, rather than suggest that other arrangements be made for Mr Ossipov's representation, the Respondent encouraged Ms Assina to continue to retain him to do so. It is also not insignificant that the recording of conversations which the Respondent alleged he had with Mr Pasternacki, which Mr Pasternacki denied or could not remember, was not the subject of any cross-examination by the Respondent. Having regard to Mr Pasternacki's experience, it could reasonably be anticipated that, particularly conversations of the kind which the Respondent alleged occurred, would have been recorded by Mr Pasternacki. It is also improbable that Mr Pasternacki would have continued to have anything to do with Mr Ossipov's case whilst ever a barrister who was not entitled to practise was involved with it. Nothing emerging from Mr Pasternacki's evidence in cross-examination or otherwise militates against so finding. We have earlier recorded that, at best, the absence of evidence from Ms Roberts means that his self-serving account of conversations with her has not been corroborated, quite apart from the absence of any evidence establishing that Ms Roberts made Ms Assina aware of any of the matters which the Respondent alleges Ms Roberts could or would have recounted to Ms Assina.
23. It is also relevant in determining the probabilities that the Respondent readily acknowledged that, in July and August 2020, he was in difficult financial circumstances. The evidence leaves no room for doubt that $3,000 at that time would have had some significance in that regard. As we have also recorded, the Respondent's own version of his proposed consultancy agreement with Ms Assina reasonably suggests that what he agreed to do was to give legal advice. Cross-examination of the Respondent afforded the Respondent every opportunity to indicate in what way the work which he proposed doing pursuant to the consultancy agreement with Ms Assina was not barrister's work or involving legal advice. The Respondent has never identified in what way the services which he proposed providing for Ms Assina did not constitute providing legal services. As is not in doubt, and the cross-examination of the Respondent abundantly demonstrated, the validity of a criminal search warrant, or anything done pursuant to it, is determined by reference to statutes, regulations or other legislative instruments the interpretation and application of which involve the application of legal knowledge.
24. To the extent that the Respondent relied upon his previous policing experience, despite repeated invitations to do so, at no time has the Respondent explained in what way that experience enabled him to advise Mr Ossipov with respect to the criminal charges he was facing that did not involve consideration of legal principles and their application to the facts as advised to the Respondent by his client.
25. The Respondent's explanation of his consideration of the criminal search warrant in Mr Ossipov's case was revealing. At no time in giving those explanations did the Respondent suggest that any views or tentative views he formed about the criminal search warrant were based on his former experience as a police officer, the clear inference being that he was retained because of and drew upon his considerable experience as a criminal law barrister.
26. The Council must establish each element of the ground to the comfortable satisfaction of the Tribunal. The Respondent does not have to prove that he did not provide legal services when he was not entitled to do so, and needs only to demonstrate that the evidence tends to show that he did not (Rockcote Pty Ltd v FS Architects Pty Ltd [2008] NSWCA 39; Health Care Complaints Commission v Wardman [2020] NSWCATOD 126). The Tribunal finds that, at times when he could not permissibly do so, the Respondent agreed to provide legal advice to Ms Assina's son with respect to the preparation of his defence of criminal charges which he was facing, and particularly with respect to a police search warrant, in the belief that, by the time the case was listed for hearing in court, the Respondent would again have a practising certificate and be able to appear. So doing constituted agreeing to provide legal services. The evidence does not show that any consultancy agreement made by the Respondent with Ms Assina and/or Ms Roberts was not for the provision of legal advice.
27. For the foregoing reasons, the Tribunal is comfortably satisfied that this ground has been proved.

Ground 2

1. Ground 2 alleged that the Respondent engaged in professional misconduct, or in the alternative unsatisfactory professional conduct by taking money from Ms Assina to act as Counsel for Mr Ossipov. We have earlier set out the particulars of the ground. The Respondent admitted that he received $3,000 from Ms Assina on or about 9 August 2020. The Respondent denied that he accepted the money to act as Counsel for Ms Assina's son and that the payment to him by Ms Assina was referable to the consultancy agreement asserted by him, which he maintained did not involve the provision of legal services. Whatever its character, the consultancy agreement related to the criminal case which Ms Assina's son, Mr Ossipov, was facing.
2. The Respondent admitted that on 10 August 2020 he and Ms Assina exchanged text messages in which he said "I will be taking his case", but maintained that doing so did not involve providing legal services. The Respondent admitted that on 10 August 2020 he sent a text message to Mr Pasternacki in which he said "I will draft an advice on second charges", but maintained that doing so did not involve providing legal services.
3. The Respondent alleged that there had been other conversations with Ms Assina and/or Mr Pasternacki in which he made clear that he was not being engaged to act as Counsel, or to provide legal advice. The Respondent asserted that, prior to 14 August 2020, he had a reasonable basis to believe that his application to stay the Council's decision to grant him a practising certificate had merit and would succeed, having received that advice on merits from his then solicitors and Senior Counsel. Being of that belief is unhelpful to the Respondent's defence of this ground, for the reasons we have recorded earlier.
4. The Respondent admitted that on 11 August 2020 he sent a message to Ms Assina in which he said "I will consult on this case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can appear for Vlad personally again", but maintained that so doing did not involve providing legal services.
5. The evidence to which the Tribunal has referred in relation to ground 1, and the Tribunal's findings with respect to that evidence, render the Respondent's successful defence of this ground difficult. In addition to the evidence to which we have referred, there is further evidence from Ms Assina, the Respondent, and a private inquiry agent retained by him to facilitate the return to Ms Assina of her $3,000 in December 2020. We have earlier referred to, and accepted Ms Assina's evidence with respect to the circumstances in which she retained the Respondent as her son's barrister.
6. In her Affidavit of 28 April 2023 Ms Assina deposed to a telephone conversation with Mr Pasternacki on 10 August 2020 where Mr Pasternacki was informed by Mr Oh that the Respondent did not have a practising certificate. Mr Pasternacki, whose evidence we have earlier recorded and accepted, acting on that information, contacted Ms Assina and said that he "wanted to speak with you about Mr Mack, the barrister". Ms Assina referred to her having paid the Respondent $3,000 the day before. Mr Pasternacki enquired "Did he really ask for $3,000?" and advised Ms Assina that "We have found out today that Mr Mack does not have a licence to be a barrister. He should not have taken any money from you because he is not allowed to act for Vlad". Mr Pasternacki reiterated that the Respondent would not be able to act for her son and that he would "try to speak with him to get the ID documents and your money".
7. Ms Assina deposed to a conversation which she had with the Respondent after speaking with Mr Pasternacki, during which she alleged that she said "Andrew told me that you don't have a licence, which means you can't be Vlad's barrister. What is going on? Do I need to get a new barrister for Vlad?", to which the Respondent replied "I'm just having some issues with the Bar Association. But don't worry I have lodged an appeal and I will be getting my licence back in a couple of days". Ms Assina then asked "Okay, so does that mean that you will still be Vlad's barrister? I am very worried about him", to which the Respondent replied "Yes, I'll be taking care of it. I will continue helping Vlad". In a text message to Ms Assina at 18:11 the same day, the Respondent stated "I'll be taking his case Irena".
8. On 11 August 2020 at 16:17, the Respondent again sent a text message to Ms Assina in which he said "I will consult on this case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again. On 12 August 2020 the Respondent sent a text message to Ms Assina in which he said "I'm just waiting reissue of my certificate and ID. It will all work out like I said. Vlad will be in good hands".
9. Ms Assina deposed to a conversation with the Respondent at his "place" on 22 August 2020 at which she said Ms Roberts and her boyfriend were also present. We have earlier recorded her version of the conversation (at [59] and [194]). Ms Assina alleged that the purpose of the conference at Mr Mack's house was "to continue to speak about what he could do to assist Vlad", her understanding always having been that the Respondent would be acting as her son's barrister. Ms Assina said that during the visit Ms Roberts asked the Respondent to prepare an invoice for the $3,000 which she had paid him and that, although the Respondent agreed that he would do so, and "give it to me later", she had never received an invoice or a receipt from the Respondent: nor is there any evidence that the Respondent ever provided one.
10. On 24 December 2020, as arranged by the Respondent, Mr Stewart, a private inquiry agent, and Ms Daphne Hatzopoulos, a Justice of the Peace arranged by Mr Stewart, attended at Ms Assina's home. Ms Assina deposed to having been called on her mobile phone by a person who identified himself as Mr Stewart approximately an hour before he subsequently arrived. Ms Assina said that, having told her his name, Mr Stewart said "I've been asked by Mr Mack to return some money to you. Is it okay if I come to your house to give you the money?" Ms Assina replied that she was at home and that doing so would be "fine". Ms Assina said that, at no time during the telephone conversation with him did Mr Stewart mention returning her son's Passport or ID to her, or that he had a Statutory Declaration for her to sign.
11. Ms Assina denied Mr Stewart's claim that she had discussed with him a consultancy agreement between herself and the Respondent. Ms Assina stated that she had no recollection of Mr Stewart reading the Statutory Declaration to her, and that his visit lasted for between 10 and 15 minutes. Ms Assina said "At the time that I signed the Statutory Declaration, I was extremely stressed about the position I had been put in and what had happened with my son and Mr Mack. I do not dispute that I read the Statutory Declaration or that I signed it, but at that time, I was desperate for this part of my life to be over and to not have any further dealings with Mr Mack. I did not pay enough attention to the document I was signing, or the assertions that I was agreeing to".
12. Ms Assina deposed to having been "desperate for the money to be returned" and her focus having been "on getting the money and my son's identification documents to be returned". Ms Assina was adamant that "At no time during the meeting did Mr Stewart indicate that I could make any amendments to the Statutory Declaration. Further, he did not tell me that I did not have to sign it. I was under the impression that I was required to sign the document to have my money returned". Ms Assina said that she recalled asking Mr Stewart for a copy of her Statutory Declaration after she had signed it but that she was not given a copy of it.
13. In his evidence, Mr Stewart said that he thought Ms Assina took a photo of the Statutory Declaration. The Respondent did not suggest to Ms Assina in cross-examination that she had done so.
14. In cross-examination (27.06.2023 p183), the Respondent put to Ms Assina, and she accepted, that the "next time that you spoke to the Bar" after the return to her of $3,000 on 24 December 2020 was in about April 2023. Although the cross-examination appeared initially to be directed to the reliability of Ms Assina's recollection of the events of 24 December 2020, it was subsequently suggested (27.06.2023 p185) to Ms Assina that "The only reason that you made a complaint to the Bar Association that I was a barrister is because that was a means to getting your money back". Ms Assina denied that that was her only reason for lodging a complaint, but agreed that it had been part of her motivation. As noted earlier, notwithstanding that the Respondent knew on 14 August 2020 that he could not provide legal services and was aware that Ms Assina was seeking the return of her money, it was not until more than four months later that the Respondent did so.
15. The Respondent's cross-examination with respect to Ms Assina's desire to secure the return of her money is curious in circumstances where, on his own evidence, whatever the nature of his arrangement with her, the Respondent provided no services of any kind in return for the $3,000 which he had required of Ms Assina to pay him on 9 August 2020, and knew shortly after receiving it that he would not be doing so. The cross-examination did not in our view demonstrate either an absence of credibility or unreliability of recollection on Ms Assina's part.
16. The Tribunal has earlier recorded that Ms Assina impressed as an honest witness whose evidence was corroborated by contemporaneous text messages sent to her by the Respondent. It has been established to the Tribunal's comfortable satisfaction that the Respondent represented to Ms Assina that he would "take" her son's case, and that Ms Assina paid the Respondent the $3,000 which he required from her in reliance upon his representations. No other basis for Ms Assina having paid the Respondent $3,000 emerges from the evidence.
17. The Respondent did not, and could not deny the representations made by him in the text messages or emails on which the Council relied. The Respondent relied on conversations which he alleged had occurred which revealed a different narrative to that conveyed by his electronic communications. There is a complete absence of text or email messages, diary or other notes confirming the alleged exculpatory telephone conversations with Mr Pasternacki and Ms Assina. That absence is consistent with finding that the Respondent's consultancy agreement defence to the Council's complaints is an inaccurate reconstruction of the events which occurred.
18. The Respondent's Affidavits of 21 November 2022 and of 15 March 2023 were silent in relation to the circumstances surrounding the return of Ms Assina's moneys. . What emerged in cross-examination of Mr Stewart renders that silence unsurprising. Mr Stewart swore an Affidavit on 22 February 2023 which revealed the circumstances in which Ms Assina was repaid her $3,000.
19. Mr Stewart deposed to having first met the Respondent on 22 December 2020. He said that "Patrick informed me that a woman named Irina Assina had paid $3,000 to him under a consultancy agreement so that he could assist her son who had been the subject of search by police". Mr Stewart deposed to the Respondent retaining him to return $3,000 to Ms Assina who he said "it appeared" had been "ripped off by the girlfriend of Ms Assina's son to whom he alleged that he had previously repaid Ms Assina's $3,000".
20. Mr Stewart deposed to the Respondent giving him $3,000 in cash and telling him "to make arrangements to deliver it to Ms Irinia Assina" at her home. Mr Stewart said that the Respondent had told him that "he would like the woman to be provided with a copy of a Statutory Declaration that he had prepared and he would like for me to read through with the woman". Mr Stewart deposed to the Respondent having told him "that if she was satisfied that the contents of that Statutory Declaration were true and correct that I should ask the woman if she was prepared to sign that document". He further stated that the Respondent told him "that if there was any part of the Statutory Declaration that she did not agree with or wanted to change that I should strike out that part or write in the additions that Ms Assina would like to change, or do both". Mr Stewart said that the Respondent told him that if Ms Assina "did not wish to sign the Statutory Declaration that I should not push the subject at all and leave". Mr Stewart did not say that the Respondent instructed him to pay Ms Assina her money if she did not sign the declaration.
21. Mr Stewart deposed to his attendance at Ms Assina's home on 24 December 2020 at 12.30 with a Justice of the Peace. According to Mr Stewart he initiated the conversation with Ms Assina by saying "Mr Fordham Mack has told me that he entered into a consultancy agreement with you concerning your son a few months ago" and that "Mr Fordham Mack has informed me that he ended that agreement with you a few months ago and the money that was paid to him was returned to a girlfriend of your son". After further conversation of no particular significance, Mr Stewart deposed to having said to Ms Assina "I'm going to take the money out now, which is in cash. Would you prefer to do this inside your home or are you okay for me to take this money out here?" to which Ms Assina replied "No. Please come inside". Mr Stewart deposed to having produced and counted out in Ms Assina's presence $3,000 which he then placed "back inside the envelope and handed it to Ms Assina". Mr Stewart deposed to having then produced the Statutory Declaration which the Respondent had given to him the previous day of which he said he had made three copies. Mr Stewart said that Ms Assina read the Statutory Declaration and that he offered to, and Ms Assina accepted, that Mr Stewart could read the Statutory Declaration "out aloud to her one sentence at a time" which he did. Mr Stewart deposed to after finishing reading each sentence stopping and asking Ms Assina whether she agreed that "this sentence is true and correct", to Ms Assina having said on each occasion "Yes. I understand" and to Ms Assina having said no when Mr Stewart asked her with respect to each sentence "Is there anything you want to change to that sentence or anything you would like to add to that sentence". Mr Stewart said that he then asked whether Ms Assina would like to sign the agreement to which she said "Yes, I will sign it", which she did in the presence of the Justice of the Peace. Mr Stewart and the Justice of the Peace left shortly thereafter. The Justice of the Peace did not give evidence in these proceedings.
22. Although the Respondent gave no evidence in chief with respect to the circumstances surrounding the return of Ms Assina's money, not surprisingly, he was cross-examined, with respect to the matter. In cross-examination (28.06.2023 p275), after confirming his instructions to Mr Stewart, the following exchange occurred: "Q Why did you not return the money to Ms Assina via a bank transfer? A I didn't know her bank account details. Q Did you ask her for it? A No, I didn't feel right approaching her personally after receiving this volume of material from the Bar about a complaint. I didn't feel - yeah, I felt that if I went near her myself it would somehow lead to some further complaint and more trouble with the Bar, which I really didn't want. Q But you do accept had you obtained her bank details for that purpose, that would have been a secure way to return the money which had an audit trail correct. Correct? A If I could've then yeah, I agree with that, yeah. Q You also drafted a statutory declaration. A Yes. Q Do you accept that the terms of that statutory declaration were favourable to you? A No, I accept that they were the truth. Q Do you accept that they were favourable to you? A I accept that they were favourable to the truth of what occurred, Mr Griffin. Q Do you accept that the statutory declaration was not in accord with what Ms Assina had said in her complaint about you? A I do, yeah. I - I was confused as to why she was saying that in her complaint, because it's not what occurred. Q And so you sought to do in that statutory declaration was to have her on oath change her version of events. A I - I wanted to have a statutory declaration from her saying what had occurred, that I had been paid as a consultant. Yes, that's what I wanted; I wanted the truth. Q And so in those circumstances, you have understood it was really important that she have the possibility of getting independent legal advice before she considered signing such a document. A No, because it was the truth. Q It would involve her saying something different under oath than she had previously said. A I didn't know why she was saying what she said in the complaint. I - but I knew what the truth was and when I gave that statutory declaration to Mr Stewart, I said to him if she doesn't wish to sign it, don't press it and leave. Q But you did not say to Mr Stewart, did you, 'You should invite Ms Assina to take a copy of the draft, consider it, and if necessary, obtain legal advice about it'? A No I didn't say that. Q Your intent, I suggest to you, was to in effect trade off the return of the $3,000 for the statutory declaration. A No. I want her to have her money back. If she signed the statutory declaration as to the truth, I - I would be very happy if she did and I was very happy that she did that. Q And the reason you were very happy was because you hoped that that statutory declaration would lead to cessation of her complaint. Did you not? A I - I - I hope it would because this complaint from the outset was wrong. I never told Ms Assina that I could act as the barrister or legal representative for her son. Q So consequently, you had a conflict of interest. Did you not? Because on the one hand, you say, that you had a consultancy agreement with her, and on the other, she's being invited to sign a document which would provide a benefit to you, cessation of the complaint. A Which is why I sent John Stewart with a JP. I wanted to distance myself from it. Q Why did you not seek an independent lawyer to be involved in that procedure? Someone who could provide legal advice to her if she requested it. A It didn't occur to me at the time to use a lawyer for that. It's - it was Christmas Eve and John had been recommended because I - I remember asking Arthur, 'Does he know, like, a - a licensed, like agent that serves people and stuff like that, mate? Because I - I think I should use one of them and a JP to go and return this money to this woman'. It's the first I heard that she hadn't gotten the money. It didn't occur to me to use a lawyer, no. Q In your practice as a barrister, have you come across a situation where a witness indicates that they may change their evidence? A I've come across cases where a witness' evidence has changed in the witness box, yeah."
23. The Respondent agreed (28.06.2023 p278) that, at the time he caused Mr Stewart to repay Ms Assina, he had a conversation with his then solicitor, Mr Denham. The following exchange occurred: "Q You could have wrung Mr Denham or one of his colleagues and said, 'I believe Ms Assina is mistaken in what she's saying. Can you give me advice about how we might approach that issue?' A I had that discussion with Ian Denham. About Ms Assina being incorrect. From the moment the complaint was received. Q And did you then have a conversation with Mr Denham to the effect of, '"I propose to do the following. What do you think?'"
24. The Respondent agreed that he had not done so, suggesting that "I couldn't get a hold of him at that point". Mr Denham gave no evidence in the proceedings. The evidence of the Respondent ' recorded above lacked candour. His inability to acknowledge what, as an experienced barrister he knew to be irrefutable propositions reflect adversely on the Respondent's credibility.
25. It is inconceivable that, had the Respondent spoken to him Mr Denham, who the Respondent rightly agreed was "highly regarded as a practitioner" would not have told the Respondent to leave a copy of the Statutory Declaration with Ms Assina and suggest to her that she get legal advice about it.
26. The Respondent unconvincingly rejected (28.06.2023 p280) suggestions that he could have asked Mr Pasternacki either for Ms Assina's bank account details so he could refund the money directly to her, or have asked Mr Pasternacki to facilitate the return of the funds. It was suggested to the Respondent (28.06.2023 p280) that his explanation for his conduct with respect to the return of Ms Assina's money was disingenuous. Irrespective of whether it was disingenuous, the evidence of the return of the funds to Ms Assina establishes two things. The first was that the Respondent was anxious to have Ms Assina confirm on oath or affirmation the consultancy agreement which he asserted, knowing that doing so would be contrary to the complaint which she had made to the Bar Association, and likely to be to his advantage. The second matter is that, whatever the Respondent's or Mr Stewart's intentions might have been, the circumstances in which Ms Assina was presented with the Statutory Declaration and the absence of any suggestion that she obtain legal advice before she signed it reasonably led Ms Assina to believe that, unless she signed the Statutory Declaration she would not be getting her money.
27. Mr Stewart was cross-examined. Mr Stewart readily conceded in cross-examination (28.06.2023 p207) that the Respondent drafted the Affidavit which he swore in these proceedings and that, in making his Affidavit, he did not have access to any "records or notes you made about the events of 22 to 24 December 2020". Mr Stewart confirmed that the Respondent sent him a draft Affidavit after a telephone discussion and that the draft was "fine with me", and thus he signed the Affidavit. Mr Stewart confirmed (28.06.2023 p208) that, in his more than 40 years as a private inquiry agent, he had never previously "been asked to do something similar to what Mr Mack asked" him to do.
28. Mr Stewart said (28.06.2023 p209) that the Respondent told him that "he had received [Ms Assina's] money as part of a consultancy agreement" but did not ask the nature of that consultancy agreement as it was "not my business". Mr Stewart also said that he "just accepted [the Respondent] was doing some work for someone. What he - what he - what he said was [his] occupation I don't recall". The Respondent did not allege that he had ever told Mr Stewart that he was a barrister. Given Mr Stewart's experience, had he done so it is likely that Mr Stewart would have, at least, had some reservations about accepting instructions from the Respondent to do what he required of him. Mr Stewart was asked (28.06.2023 p212) "Did he give you instructions to say to Ms Assina, 'Here's a Statutory Declaration for your consideration. Keep it overnight if you like and let us know what you want to do?'" In a non-responsive, but significant answer, Mr Stewart said "Well we were about to give her $3,000; we needed her to sign to say she got the 3,000." That, truthful, answer was inconsistent with the statement which the Respondent had prepared for Mr Stewart to verify on oath or affirmation.
29. Mr Stewart's recollection of a number of the events was understandably vague, given that it was more than two years after the event that he was asked to recall the details of his visit to Ms Assina's home. In cross-examination Mr Stewart was asked: "Q When you left Ms Assina's premises, did you make a record of what had transpired? Let me go back a step. Whilst you were speaking to her, did you make notes of what was being said? A No. Q Did the JP. A I generally - I generally go back to my car when I do a job like that. Just make short notes to remind me what the hell happened. Q Firstly, you didn't make any notes when you were in the house? A No. Q Did the JP make any notes to your observation? A No idea. Don't think so. Q So you then said goodbye to her. A Yep. Q When, if ever, did you make any handwritten notes about what had happened? A I scribbled on a bit of paper in the car to remind me of what had transpired, so when I went home I had something - something to talk about. Something to dictate in relation to the affidavit. Q So, where are the scribbled notes you made? A After they have been scribbled they go in the bin. Q So do you immediately go back to your office? A Yep. Q And what did you do upon returning to your office? A Well, I sat down and had a look at them to just - in the (not transcribable) in large what I'd written to remind myself as to what had occurred. So you go - just point form on the car. Made a couple extra notes to that. And then later on I think I got a call from Patrick, and we went through what the affidavit should - what I was going to put in the affidavit. And he prepared the affidavit."
30. Mr Stewart did not produce any scribbled or other notes made on or about 24 December 2020, and gave no evidence of having remembered what had occurred until shortly before the preparation of his Affidavit by the Respondent in February 2023. Nor did the Respondent. As we have earlier noted, although he did not say so in his Affidavit, in cross-examination (28.06.2023 p218), Mr Stewart suggested that he "thought" that Ms Assina wanted a photograph of the Statutory Declaration. Although Mr Stewart rejected the suggestion that "returning of the money was linked to the signing of the Statutory Declaration", and it does not adversely reflect on Mr Stewart, the Tribunal is comfortably satisfied that the circumstances surrounding his visit to Ms Assina's home to which we have referred reasonably conveyed to Ms Assina that, unless she signed the agreement, she would not be receiving her money. Mr Stewart's own evidence in cross-examination was consistent with so finding.
31. Mr Stewart clarified that the "scribble on a bit of paper" to which he earlier referred in his evidence had been "put through the shredder" although he maintained that he "still had the notes at the time I was doing the affidavit", but put the notes through the shredder after signing his Affidavit. It is surprising, given Mr Stewart's experience that, having signed an Affidavit which he knew was being used in legal proceedings, he would shred the contemporaneous notes he claims to have provided the Respondent for his Affidavit.
32. Although we have reservations about the extent to which Mr Stewart's evidence with respect to his attendance at Ms Assina's home reflects his own recollection, it is unnecessary to speculate about that. What emerges on any view of his evidence is that Ms Assina was not given any opportunity to retain the Statutory Declaration in order to obtain her own legal advice and, in all the circumstances, was reasonably entitled to believe that, if she did not sign the Statutory Declaration, she would not be receiving her money.

Council's submissions

1. The Council relied upon six particulars to support this ground of its Complaint, they being: 1. the Respondent receiving $3,000 in cash from Ms Assina on or about 9 August 2020 after meeting to discuss Mr Ossipov's criminal matter; 2. on or about 10 August 2020 the Respondent and Ms Assina had a text message exchange in which Ms Assina asked the Respondent whether he "will take (her son's) case or he needs to apply for Legal Aid?" to which the Respondent replied "I will be taking his case"; 3. on 10 August 2020 the Respondent sent a text message to Mr Pasternacki in which he stated "I've estimate(d) ten thousand in fees. I spoke with the mother yesterday. I will draft an advice on the second Charges"; 4. on 11 August 2020 the Respondent sent a text message to Ms Assina in which he said "I will consult on this case and prepare a strategy for the release of Vlad and the management of his charges which I will supply to Andrew and after Friday this week I can then appear for Vlad personally again"; 5. on 14 August 2020 Ms Roberts and the Respondent exchanged texts in which Ms Roberts asked "If you don't have licence back Mobday [sic]. Are you able to give money back" to which the Respondent replied "Yes, of course"; 6. the Respondent refunded Ms Assina $3,000 on or about 24 December 2020.
2. The Council submitted that, by reason of the alleged conduct, which was not disputed, the Respondent breached s 10(1) of the Uniform Law in that he engaged in conduct which constituted unqualified legal practice. The Council further submitted that, further or in the alternative, by reason of the conduct of the Respondent upon which it relied, the Respondent breached s 11 of the Uniform Law, in that conduct stated or implied that he was entitled to engage in unqualified legal practice.
3. Further or in the alternative, the Council submitted that the conduct of the Respondent upon which it relied was in breach of r 8(c) of the Barristers Rules in that he engaged in conduct that was likely to diminish public confidence in the legal profession, or otherwise bring the legal profession into disrepute. The Council further submitted that the conduct of the Respondent upon which it relied breached s 10(2) of the Uniform Law in that it was conduct which constituted receiving money in respect of unqualified legal practice.
4. Either individually or cumulatively, the Council submitted that the conduct of the Respondent upon which it relied constituted professional misconduct within the meaning of s 297 of the Uniform Law or unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law.
5. The Council relied on the evidence in support of ground 1 and the further evidence to which we have referred with respect to the return of Ms Assina's money to her in December 2020. The Council reiterated its earlier submissions that the Respondent's claim that he was acting as a consultant in consideration of Ms Assina paying him $3,000 was "not credible" and that there was "no persuasive evidence before the Tribunal that the Ossipov proceedings required the engagement of a consultant. There is no written consultancy agreement. Assina, Pasternacki and Oh all deny the existence of a consultancy". As recorded earlier, the Council relied on the statements of the Respondent in the texts and emails and submitted that, to the extent that the Respondent asserted conversations with Ms Assina and/or Mr Pasternacki which contradicted or qualified the statements made by the Respondent in electronic communications, the Tribunal would not accept his evidence.
6. It is necessary only to reiterate that, where there is conflict between the evidence of Ms Assina, Mr Pasternacki or Mr Oh and that of the Respondent, the Tribunal is comfortably satisfied that their evidence should be preferred to that of the Respondent. The Respondent's evidence with respect to the consultancy agreement involved an unconvincing reconstruction of events. Perhaps the most telling difficulty with the Respondent's consultancy agreement claims is that the Respondent has at no time identified any work which he claims he was going to perform for or on behalf of Mr Ossipov which did not involve the provision of legal services. Although perhaps convenient to his case, the Respondent's attempts to confine the scope of legal services to actually appearing in Court as a barrister was misconceived.
7. With respect to the return of Ms Assina's money the Council submitted: "The way in which the Respondent decided to return the $3,000 to Assina is particularly disturbing. He elected not to place these funds in an account of her nomination, or to electronically transfer it to her, or to return the money to her in person. Instead, he engaged John Stewart and a Justice of the Peace to attend her home whilst he loitered nearby. He had drafted a Statutory Declaration which had the effect of Assina recanting her previous evidence and agreeing that she had engaged him as a consultant. There is ample evidence from Assina to the effect that she did not properly understand the effect of signing this Statutory Declaration."

The Respondent's submissions

1. The Respondent submitted that the Council needed to establish two matters to the Tribunal's comfortable satisfaction to make out this ground, they being: 1. that the Respondent took money from Ms Assina, which he has at all times admitted that he did, and 2. that the money was taken to act as counsel for Mr Ossipov, which he has at all times denied that he did.
2. In reliance upon his submissions with respect to ground 1, the Respondent submitted that the Tribunal would not be satisfied that he made statements to the effect that he "was presently able to act as a barrister. The admitted statements made reference to future or contingent states of affairs and these are repeated in particulars (ii), (iii) and (iv) of ground 2" all of which related to future matters. The Respondent submitted that: "The monies were received on 9 August 2020 after which there were various representations made by the Respondent as to undertaking work. As submitted above those representations were as to future matters. By 14 August 2020 Ms Roberts understood that the Respondent did not have his 'license' and Ms Roberts was unhappy with the work of Mr Pasternacki and Mr Oh and wanted the Respondent to act for Ossipov. Therefore the work of the Respondent as a consultant might not be as useful as it would be if the work could be used as the foundation for legal work which the Respondent might do in future."
3. The Respondent accordingly submitted that the Tribunal could not be satisfied that the Council had made out this ground. Apart from the absence of reliable evidence of the matters referred to in his submission, other than actually appearing for Mr Ossipov in court, the Respondent's representations were not limited in the manner he asserted. On the contrary, the representations evidenced an intention to immediately provide legal services in preparation of Mr Ossipov's case at times when the Respondent believed that, by the time the case was due to be heard, he would be able to appear for him in court.
4. Although the Respondent may not have appreciated it, the last sentence in the submission we have quoted is supportive of the Council's case, particularly given, as we have noted, that the Respondent did not at any time identify any work which he proposed to undertake under the asserted consultancy agreement which was not in the nature of "legal work".

The Council's submissions in reply

1. In its submissions in reply, the Council reiterated its primary submissions and further submitted that the Respondent "engaged in an elaborate scheme" with respect to the repayment to Ms Assina of the $3,000 which she paid him four months earlier. The Council submitted that the Respondent: "Paid for the services of a process server/private investigator and a Justice of the Peace and instructed them to attend the home of Ms Assina and hand the money to her. The twist was that he drafted a Statutory Declaration for Ms Assina to sign, which effectively withdrew her complaint about his conduct. It was drafted to exonerate him from the allegation that he had worked as a barrister without a practising certificate. This was designed to suggest to Ms Assina that if she signed the Statutory Declaration her money would be returned. Whilst this was happening the Respondent was waiting down the street. Presumably, so he could manipulate the situation if she was reluctant to sign. If he believed that he had acted properly there would have been no need to engage in the elaborate plan outlined."
2. With respect to the Respondent's submission regarding "future matters", the Council relevantly submitted that, from 1 July 2020 until 14 August 2020, the Respondent should have advised Ms Roberts and Ms Assina that he did not hold a practising certificate and thus could not lawfully provide legal services of any kind. The Council submitted, correctly, that the Respondent could have said that he had filed an appeal against the decision to deny him a practising certificate, and that he could only assist Ms Assina and her son if his appeal was successful in restoring his practising certificate. At least impliedly, the Council, again correctly, did not suggest that, provided that he made the disclosures to which it referred, there was nothing improper in the Respondent expressing optimism in relation to his appeal against the refusal of a practising certificate.
3. It was submitted, correctly, that the Respondent was not entitled to act "as if his appeal would be successful". His opinion, or that of his legal advisers with respect to his prospects of success on appeal, was irrelevant. No amount of confidence, regardless of its reasonableness, entitled the Respondent to provide legal services whilst ever he did not actually hold a practising certificate. As the Council reiterated, "A barrister who has been refused a practising certificate is not entitled to undertake the work of a barrister on the basis that they anticipate that they will receive a certificate at some time in the future".
4. The Council submitted that the Respondent's assertions that Ms Roberts was unhappy with the work of Mr Pasternacki and Mr Oh and that Ms Roberts was a party to the alleged consultancy agreement were not supported by cogent or persuasive evidence. Nothing to which the Respondent has referred the Tribunal suggests that Mr Pasternacki or Mr Oh were not handling Mr Ossipov's case in a competent manner. The Council submitted that the Respondent's submission to which we have referred earlier "makes little sense". We do not need to express any opinion about that, for the reasons we have earlier recorded with respect to the Respondent's submission - it lacks merit.
5. As with ground 1, the Council submitted that the evidence of the Respondent was unreliable and lacking in credibility with respect to crucial issues in the proceedings. The Council submitted that the weight attributed to evidence in the statements of the Respondent's witnesses should be: "assessed in the light of the fact that they were drafted by the Respondent. They purport to have a comprehensive recollection of various conversations which were not particularly notable or significant at the time they occurred. In effect this evidence is not based upon a real recollection of each of these witnesses. Further, the witnesses have been invited by the Respondent to adopt his recollection of events as outlined in the statements he drafted. They have done so. Little weight can be assigned to these statements. None of the witnesses made any contemporaneous notes that were produced to the Tribunal to support any independent recollection of the events."
6. Those submissions apply with even greater force to the Respondent. In the absence of any contemporaneous notes, it is, at its most benign, surprising that the Respondent was able to set out the matters he did in his Affidavit in the detail in which he did. The narrative recorded in the Respondent's Affidavit with respect to alleged conversations was a reconstruction, which did not withstand scrutiny in cross-examination.
7. As we have earlier recorded, with respect to disputed issues of fact, the Respondent's case turns entirely on uncorroborated disputed conversations, and are inconsistent with what the evidence uncontroversially establishes that the Respondent said about relevant matters at the time. It is relevant in this context that, when he made those statements, until 14 August 2020, the Respondent was confident that, as and from that date he would be able to appear in Court for Mr Ossipov. It is unsurprising in those circumstances, and particularly having regard to the Respondent's evidence with respect to his financial circumstances, that the Respondent was anxious to retain Mr Ossipov's case, and to do preparatory work on it. The evidence that such work constituted legal work, or the provision of legal services, is compelling.

Consideration

1. Having regard to the Tribunal's findings with respect to ground 1, which inform our evaluation of this ground, it is necessary only to give brief additional reasons for finding that the Tribunal is comfortably satisfied that the factual allegations upon which the Council relies in support of this ground have been established.
2. Importantly, as the ground itself made clear, and contrary to the Respondent's view, at the times which are relevant in these proceedings, the Respondent was not merely precluded from appearing in Court for Mr Ossipov. The expression "Counsel" to which the ground relates encompasses significantly more than appearing in Court.
3. At all relevant times, the Respondent was not lawfully entitled to "engage in legal practice". Section 6 of the Uniform Law defines engaging in legal practice to include "practice law or provide legal services". The term "legal services" is defined to mean "work done, or business transacted, in the ordinary course of legal practice". Nothing to which the Respondent has referred causes us to doubt that advising with respect to police search procedures or the validity or execution of police search warrants involves other than work done in the ordinary course of legal practice. Section 10(1) of the Uniform Law provides that an entity must not engage in legal practice "unless it is a qualified entity". A qualified entity is an Australian legal practitioner who holds an Australian practising certificate. At all times relevant to these proceedings, the Respondent was a "disqualified person" pursuant to s 6 of the Uniform Law, having been refused the renewal of an Australian practising certificate.
4. Rule 8 of the Barristers Rules, upon which the Council relied, provides that a barrister must not engage in conduct which is "likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute". There is no suggestion that the Rules are ultra vires the Uniform Law. Rule 11(b) of the Barristers Rules defines the work of a barrister and relevantly includes "preparing to appear as an advocate" and r 11(e) "giving legal advice". The Tribunal is comfortably satisfied that the Respondent did both these things.
5. The Tribunal prefers the evidence of Ms Assina, Mr Pasternacki and Mr Oh to that of the Respondent with respect to disputed issues of fact. Our findings do not turn wholly in reliance on that preference. Both when the Respondent was initially represented, and when his closing submissions in these proceedings were prepared with legal assistance, the Respondent had every opportunity to indicate just what services he suggested that he would provide pursuant to the consultancy agreement. Objectively, as the Council submitted, the reason that was so is quite simply that nothing the Respondent could have been doing with respect to Mr Ossipov's case did not involve the provision of legal services.
6. The Tribunal is comfortably satisfied that the Respondent required Ms Assina to pay $3,000 in cash in order for him to provide legal services for her son. It is unnecessary to make the findings urged by the Council with respect to the circumstances in which the Respondent facilitated the return of Ms Assina's money, save with respect to that part of ground 2 which asserts that the Respondent's conduct offended r 8(c) of the Barristers Rules.
7. The Tribunal is comfortably satisfied that: 1. the Respondent engaged in unqualified legal practice in breach of s 10(1) of the Uniform Law; 2. the Respondent is guilty of engaging in conduct which implied that he was entitled to engage in unqualified legal practice contrary to s 11 of the Uniform Law; 3. the Respondent engaged in conduct which constituted receiving money in respect of unqualified legal practice contrary to s 10(2) of the Uniform Law.
8. It remains to consider whether the ground alleging conduct contrary to r 8(c) of the Barristers Rules has been made out. To establish that particular the Council must comfortably satisfy the Tribunal that the conduct of the Respondent was likely to diminish public confidence in the legal profession, or otherwise bring the legal profession into disrepute. Although the public could be expected to disapprove, and disapprove strongly, of the Respondent's proven conduct in "taking" Mr Ossipov's case when he knew, or should have known, that he could not permissibly do so, we are not comfortably satisfied that such conduct would be likely to diminish the confidence of fair minded members of the public in the legal profession, or otherwise bring the legal profession into disrepute.
9. The Respondent's conduct with respect to the return of Ms Assina's money falls into a different category. The Tribunal is comfortably satisfied that, after Ms Assina made her complaint to the Council, the Respondent decided that he would return Ms Assina's money to her, but that, he would secure Ms Assina's signature on a Statutory Declaration drafted by him, knowing that its contents were contrary to the complaint which Ms Assina had made to the Council. It is inconceivable that the Respondent, experienced barrister, would not have known that the Statutory Declaration which Mr Stewart secured the execution of by Ms Assina would not help him resist Ms Assina's complaint. The Respondent knew, or should have known, that he had a real and substantial conflict of interest in orchestrating the return of Ms Assina's money in the way that he did. He should have known that he was unconscientiously taking advantage of Ms Assina. As Senior Counsel for the Council submitted, there were any number of ways in which the Respondent could have facilitated the return of Ms Assina's money to her. To the extent that the Respondent asserted that he did not want to have any further dealings with Ms Assina, as the Council submitted, there were numerous ways in which he could have facilitated the return of Ms Assina's money without having contact with her.
10. The Tribunal accepts the submission of the Council that the Respondent engaged in "an elaborate scheme" for his own benefit in circumstances where the Respondent knew that he had no lawful basis for retaining Ms Assina's money. The Respondent's own evidence with respect to the circumstances in which he met Ms Assina made clear that she had little or no prior experience of the workings of the law, and, with no disrespect to her, was relatively unsophisticated.
11. Although it cannot be said that the securing of Ms Assina's execution of the Statutory Declaration came "out of the blue", she had little, and completely inadequate notice of what was about to happen. As is not in doubt it was never suggested to Ms Assina that she take a copy of the document to get legal advice, or just to reflect on it overnight. The clear impression Ms Assina had, and reasonably so, was that unless she signed the Statutory Declaration, she would not be getting her $3,000. The Respondent unconscientiously took advantage of Ms Assina in securing the execution of the Statutory Declaration. If, as the Respondent claimed, there had been a consultancy agreement, there was no need for Ms Assina to sign anything. Having not provided any services pursuant to it, the Respondent needed no documentation of his agreement with Ms Assina. The irony in the Respondent first seeking to document his asserted agreement with Ms Assina when he decided to repay her $3,000 is readily apparent.
12. No matter how it is viewed, the evidence with respect to the return of Ms Assina's money reflects poorly on the Respondent. The Tribunal is comfortably satisfied that the Respondent's conduct with respect to the return of Ms Assina's money was likely to bring the legal profession into disrepute and was in breach of r 8(c) of the Barristers Rules.

Conclusion

1. The Tribunal is comfortably satisfied that the Respondent is guilty of the unsatisfactory professional conduct alleged by the Council in each of its complaints. It is necessary to consider whether, individually or cumulatively, the Respondent's proven offending conduct is sufficiently serious to support a finding of professional misconduct. The Tribunal is comfortably satisfied that it is, on either basis.
2. In Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470 the practitioner was found to have practised as a barrister over a period of approximately 18 months without holding a practising certificate, contrary to the relevant provisions of the Legal Profession Act 1987 (NSW). The practitioner was also found to have held himself out as being a barrister contrary to the provisions of s 25(1) and (2)of the Legal Profession Act. The Court of Appeal held that the practitioner was guilty of professional misconduct in that he was not a fit and proper person to remain on the roll of legal practitioners of the Supreme Court of New South Wales. Relevantly for present purposes, the barrister was found guilty of professional misconduct, inter alia on the basis that the practitioner practised as a barrister in contravention of s 25(1) of the Legal Profession Act whilst not holding a current practising certificate as a barrister, which provided that: "A legal practitioner whose sole or principal place of legal practice is this State must not practice as a barrister or solicitor and barrister without being the holder of a current practising certificate."
3. Section 25(2) provided that a legal practitioner whose "sole or principal place of legal practice is this State must not hold himself or herself out to be a barrister without being the holder of a current practising certificate as a barrister".
4. The barrister was found to have both practised as a barrister and held himself out to be a barrister during the period in which he did not hold a practising certificate. The Respondent in the present proceedings did not actually practise as a barrister whilst not holding a practising certificate but "held himself out to be a barrister" during that period.
5. The Court of Appeal observed that contravention of s 25(1) or 25(2) of the Legal Profession Act required the Prothonotary to establish that the barrister acted "wilfully and without reasonable excuse". The Court at [29] accepted that "wilful" in a statute creating an offence connotes intention and knowledge (Iannella v French (1968) 119 CLR 84; [1968] HCA 14). The Tribunal is comfortably satisfied that the Respondent acted wilfully, in the knowledge he could not lawfully do so, and, contrary to his contentions, without reasonable excuse. The Court of Appeal held in McCaffery that, for the purpose of s 25 of the Legal Profession Act, it was sufficient to conclude that "wilful" "encompasses an intentional act".
6. With respect to the question of "reasonable excuse", the Court of Appeal at [34] referred to the decision of the High Court in Taikato v The Queen (1996) 186 CLR 454; [1996] HCA 28 in which Brennan CJ, Toohey, McHugh and Gummow JJ said that what was a "reasonable excuse" depended both upon the circumstances of the individual case and also on "the purpose of the provision to which the defence of "reasonable excuse" is an exception". The Court of Appeal at [35] held that, in the context of the absence of reasonable excuse in s 25(4) of the Legal Profession Act "It is plain that in that context the expression requires an explanation to be propounded which would justify the (practitioner's) otherwise contravening conduct".
7. The Respondent denied that he was guilty of any conduct which contravened the Uniform Law or the Barristers Rules, and did not suggest that he reasonably believed that he was entitled to practise when he did not hold a practising certificate. Relevantly for present purposes, the Court of Appeal said at [36]: "In this context it is relevant to note that the requirement that legal practitioners hold practising certificates performs important functions in the regulation of the legal profession."
8. The Court referred to the provisions of s 32 of the Legal Profession Act enabling the relevant Council to issue a practising certificate "subject to conditions such as requiring the holder to undertake and complete one or more courses of continuing legal education, undertake additional academic training courses, limiting the practising rights of the holder and as determined by the relevant Council or other conditions agreed to by the holder".
9. After referring to other purposes served by the statutory regime with respect to practising certificates, the Court observed at [38] that: "The regulation of the profession through practising certificates seeks, as the claimant submits, to uphold and maintain professional standards and to provide a safeguard for the public. By failing to renew his practising certificates for the years 2002-2003 and 2003-2004 the (practitioner) circumvented the scheme of regulation and protection for which the Legal Profession Act provides."
10. As we have earlier recorded, the Respondent in this case sought, albeit only for a relatively short time as it transpired, to circumvent the scheme of regulation and protection for which the Uniform Law provides.
11. The Court of Appeal referred at [42] to the submission of the Prothonotary that "the legislature has demonstrated the seriousness with which such conduct is to be regarded by providing that a breach of those subsections, without more, constitutes "professional misconduct". Section 298(b) of the Uniform Law provides that conduct contravening the Uniform Rules is conduct that is capable of constituting professional misconduct or unsatisfactory professional misconduct for the purposes of ss 296 or 297. The Uniform Rules are defined by s 6 of the Uniform Law to mean the legal professional uniform rules made under Pt 9.2 of the Uniform Law. The Barristers Rules are made pursuant to s 423 of the Uniform Law, within Pt 9.2.
12. At [44] the Court of Appeal considered the submission on behalf of the Prothonotary that, by holding himself out as a barrister in contravention of s 25, the practitioner set out to deceive the courts, his clients, the general public and his professional colleagues as to his qualification as a barrister and his entitlement so to practice". In this case, the evidence comfortably establishes that the Respondent set out to, and did deceive Ms Assina. Although the evidence of Mr Pasternacki to which we have earlier referred precludes finding that the Respondent set out to deceive him or, arguably Mr Oh, the general public, or the Respondent's professional colleagues as to his entitlement to practice. The Court of Appeal recorded the Prothonotary's submission that "such deliberate deceit is the antithesis of the requirements of candour and honesty expected of members of the legal profession" and demonstrated that the practitioner lacked the qualities of character and trustworthiness which are the "necessary attributes of a person entrusted with the responsibilities of a legal practitioner". For the reasons their Honours indicated, the Court of Appeal at [46] referred to the common law which was said to connote "conduct which would reasonably be regarded as disgraceful or dishonourable" by one's peers: see Allinson v General Council of Medical Education and Registration [1894] 1 QB 750; New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284.
13. The Tribunal is comfortably satisfied that the proven conduct of the Respondent would, at the very least, be regarded as "dishonourable" by his peers.
14. In Council of the New South Wales Bar Association v Perry [2007] NSWCA 111 the Court of Appeal considered the case of a barrister who represented his entitlement to practise, notwithstanding that he had not sought or obtained a current practising certificate at the time. The Court of Appeal found the practitioner guilty of professional misconduct pursuant to the provisions of the Legal Profession Act. The Court of Appeal reiterated at [20] that the "requirement to hold a practising certificate serves important functions. The regime exists for the protection of the public", referring to the decision in McCaffery and the earlier decision in Mei Ling v Law Society of New South Wales [1974] 1 NSWLR 490. Although significantly more serious than the offending conduct of the present Respondent, the Court of Appeal criticised the practitioner in Perry at [25] for providing documents "identifying himself as a barrister or barrister-at-law". As the Tribunal has accepted, the Respondent provided, or facilitated the provision of his business card containing that statement.
15. In Council of the New South Wales Bar Association v Costigan [2013] NSWCA 407, amongst other offending conduct, the practitioner purported to represent a party involved in proceedings in a Local Court when he did not hold a practising certificate. The Court of Appeal held at [97] that the practitioner's appearance in the Local Court on two occasions, although there was no evidence that he was appearing for a fee, misled the Court, and the other party to the proceedings and "it may also be inferred his purported client for whom he appeared, that he was a barrister entitled to practice and appear in the Local Court for a party to the proceedings". The Court accepted at [100] the submission on behalf of the Council [99] that the practitioner's "misleading conduct was deliberate and is the antithesis of the requirements of candour and honesty expected of members of the legal profession. It argued that the respondent's conduct demonstrated that he lacked the qualities of character and trust which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner". The Court referred at [102] to the common law to which the Court of Appeal had earlier referred in Mei Ling, McCaffery and Perry. The Court accepted at [104] the submission of the Council [103] that the conduct of the practitioner was "dishonourable and disgraceful and constituted professional misconduct both at common law and under the [Legal Profession Act]."
16. In the cases to which we have referred, the Court of Appeal was dealing with the issue of the fitness of the practitioner to continue to be a legal practitioner. Although the issues with which the Court engaged in those proceedings differ from those with which the Tribunal is concerned, their Honours' observations are instructive with respect to, and support finding that the Respondent's proven conduct constitutes professional misconduct.

Orders 1. The Respondent is guilty of unsatisfactory professional conduct and professional misconduct. 2. The proceedings are listed for Stage 2 hearing on 28 October 2024. 3. The parties are to file and serve any further evidence upon which the parties rely by 14 October 2024. 4. The parties have liberty to apply for further directions by telephone on 7 days' notice.

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 August 2024