Council of the New South Wales Bar Association v Quinlivan

The Grounds

1. As earlier noted ground 1 (a) of the application alleged that there had been a failure to comply with condition 1 on the practising certificate between 1 July 2010 and 21June 2012 in that Mr Quinlivan had failed to meet payment obligations to the ATO as they had fallen due. The particulars referred to six BAS returns during the nominated period. Five of those returns were late lodgements for periods between a minimum of 4 weeks to a maximum of 37 weeks. The sixth BAS return particularised was lodged on time but the amount of nearly $4,000 due was not paid at the date due. For the remaining five periods the smallest amount of unpaid tax was just under $2,000 and the highest unpaid amount was nearly $10,000. On three occasions Mr Quinlivan was fined between $330 and $550 for failure to lodge activity statements on time. Between 1 July 2010 and 19 June 2012 no payments were made to the ATO In June 2012 the sum of $49,000 was paid the ATO. Mr Quinlivan admitted that the conduct alleged in ground 1 (a) amounted to professional misconduct.
2. Ground 1 (b) alleged the failure to comply with condition 2 placed on the practising certificate that between 1July 2010 and 21 June 2012 Mr Quinlivan had failed from time to time to set aside and deposit sufficient moneys for the purpose of making adequate provision for the payment of ATO debts. The condition required Mr Quinlivan to set aside and deposit in a nominated account sufficient moneys for the purpose of making adequate provisioning for ongoing tax liabilities, not limited to GST. Apart from a credit of over $10,000 allocated by the ATO, Mr Quinlivan made no payments to the ATO from 1 July 2010 to 19 June 2012. It appears that his assessable income for 2010/2011 was approximately $84,000 and for 2011/2012 was $92,000. It is to be noted that after the hearing was adjourned on 4 August, in September 2014, Mr Quinlivan filed amended tax returns for these two years showing understatement of income for the first period of nearly $24,000 and understatement of income for the second period of approximately $241,000.
3. The second ground alleged that Mr Quinlivan failed to comply with a notice issued pursuant to s 660 (1) of the Act requiring him to produce information to the Bar Association at a nominated time on 17 July 2012. The notice required that the information specified be verified by statutory declaration. The notice itself was issued as part of an investigation into a complaint alleging Mr Quinlivan's failure to comply with 3 conditions of his local practising certificate, namely: obligations to meet all reporting obligations and payments due to the Australian Taxation Office; the obligation to set aside and deposit in a nominated account sufficient moneys for the purpose of making provision for ongoing tax liabilities; and, lastly, arranging for a financial expert to provide to the Bar Council by a set date a six monthly report on Mr Quinlivan's financial affairs. The effect of the notice was to require and receive a response verified by affidavit as to whether ATO obligations had been met, whether an account for that purpose had been set up and details relating to that account, whether there were deposited into such an account sufficient amount to meet the taxation obligation and if any of these matters had not been attended to, Mr Quinlivan was required to explain why they had not been complied with.
4. Mr Quinlivan did, however, provide a response through his floor clerk but it was not verified by affidavit. He failed to produce the bank statements required but offered the excuse that he was struggling to meet his financial obligations because of poor revenue, had undertaken a refinancing exercise and believed he had now paid all tax debts as soon as he could before he became aware of the complaint against him. The evidence showed, however, that his tax obligations between July 2010 and 21 July 2012 were not met as they fell due nor had Mr Quinlivan deposited amounts into an account as required being sufficient to meet his taxation obligations. In that period no tax was paid until after 19 June when just under $49,000 was paid to the ATO. Mr Quinlivan also asserted that making provision for his tax liabilities from his personal saving account proved to be adequate when that was clearly not so. At the August 2014 hearing Mr Quinlivan admitted that his conduct as particularised in this ground amounted to professional misconduct.
5. Ground 3 (a) alleged that there was a failure to comply with two conditions on the practising certificate for the year ending 30 June 2013 in that there was a failure to arrange for Mr Quinlivan's financial expert to provide to the Bar Council by mid November 2012 a report on his financial affairs. The condition required Mr Quinlivan, on a due date each 6 months, to provide an expert report on his financial affairs showing that he had complied with his reporting and payment obligations to the ATO including the payment of arrears of Tax, that sufficient money had been set aside and deposited in a nominated account to meet Tax liabilities and providing a statement as to whether he had done all things necessary to facilitate and enable a financial expert to satisfactorily control his financial affairs. Mr Quinlivan was also required to provide a statement of his attendances on the financial expert. The first monthly report was due in mid-November 2010 with further reports being due in mid-May and mid-November of each year following. Mr Quinlivan failed to provide the mid November 2012 report and the May 2012 report was not provided until July 2012. In his Reply filed in the Tribunal in March 2014 Mr Quinlivan admitted failing to provide the reports in accordance with the conditions on his practising certificate.
6. Ground 3 (b) alleged Mr Quinlivan failed to comply with conditions 10 and 11 of his local practising certificate for the year ending 30 June 2013 in failing to provide to the Bar Council by mid November 2012 an Annual Report relating to Dr Fisher's treatment of him. Under this condition Mr Quinlivan was to arrange for Dr Fisher, to provide by a specified date, an annual report to the Bar Councul. The November 2012 medical report was not provided. In late March 2013 Dr Fisher stated that he had not seen Mr Quinlivan for the best part of the last 12 months. In his Reply filed in the Tribunal in March 2014 Mr Quinlivan admitted the failure to provide this report in accordance with the conditions on his practising certificate. It appears that contact with Dr Fisher did not resume until mid to late 2013.
7. The matter proceeded to hearing in the Tribunal on the basis that Mr Quinlivan accepted that he was guilty of professional misconduct in relation to the matters particularised in the application filed by the Bar Council. At the resumed hearing of the matter in late November 2014 Mr Quinlivan relied upon an affidavit he had sworn in mid-November but did not read the earlier affidavit filed in the Tribunal in May 2014. In the latest affidavit he accepted the matters of fact set out in affidavits relied upon by the Bar Council and confirmed that his Reply filed in the Tribunal in mid March 2014 admitted each of the five grounds and each particular in support of those grounds alleged against him.

Respondent's Evidence

1. Mr Quinlivan graduated from the University of Sydney and came straight to the Bar being admitted to practise in NSW in mid-July 1976. He described his practice at the Bar as mostly being in Common Law (Motor Vehicle Accident, Public Liability, Medical negligence and personal injury claims) and representing plaintiffs and defendants in the medical profession in relation to Medico-legal issues. There were times when his practice was interrupted by failures to renew his practising certificate in a timely manner or because the certificate was suspended and on one occasion cancelled. During those periods he did not work and in particular did not practise or otherwise work in the period from 1 December 2001 to 12 May 2005. Apart from those periods he had practised continuously since his admission to practise-he did not have any other work or employment.
2. From approximately 2004 his right arm and hand manifested symptoms that were subsequently diagnosed as Multiple Sclerosis. By 2009 the condition had worsened and commenced to affect his leg. While there has some deterioration in his MS he said that it had been relatively stable since 2009 and had not yet interfered with his capacity to work as a barrister. His practising certificate was not renewed as from 1July 2013 and prior to that he had been carrying on practice from Chambers in Macquarie Street.
3. Considerable information was provided in relation to Mr Quinlivan's gambling habit which he described as existing for a very long time 'where his life had been dominated by the need to play poker machines'. He believed he started this gambling around 1990 and about that time he also experienced several 'unhappy events in his marriage'. He described himself as rather quickly playing poker machines several times a week, often for long periods for large amounts of money. He said that the intensity and scale of his playing varied but only slightly for the entire period 1990 to beginning of July 2014. He continued playing poker machines intensely and losing significant amounts of money.
4. He stated that because of the scale of his gambling he was unable to pay income tax leading him to be made bankrupt on the application of the Commissioner for Taxation in May 1994. The debt to the ATO at that stage was approximately $850,000. He did not tell his wife about the bankruptcy and apparently she was unaware of it. His wife also appeared to be unaware of the frequency and extent of his gambling.
5. From approximately late 2000 or early 2001 the relationship between Mr Quinvilan and his former wife was such that his general practitioner suggested a referral to a psychiatrist- he then began to see Dr Fisher. He continued to see Dr Fisher until approximately late July 2014 but with varying degrees of regularity, including significant periods where Dr Fisher was not consulted at all. In all those meetings Mr Quinlivan admitted to hiding or minimising the extent of his gambling.
6. In July 2001 he was again made bankrupt with the essential cause being the fact that he had spent his money on poker machines and had been unable to make contributions in his first bankruptcy in accordance with his disclosed income. The amount for which he was made bankrupt on this occasion was approximately $1.5 million. It was then that he spoke to his wife about his gambling debt but she asked him to leave the house. They formally separated in early 2002 and divorced a year later. His practising certificate was cancelled on 30 November 2001 because of his conduct towards the Commissioner and the Trustee in Bankruptcy.
7. He was discharged from this first bankruptcy in December 1998 and discharged from the second bankruptcy in October 2004.
8. Mr Quinvilan stated that until very recently it was very difficult for him to understand why he had persisted in his gambling, including before and after his bankruptcy. He knew he could see the harm it was doing, quite apart from the bankruptcies and their consequences. He consciously sought to keep his gambling secret from nearly everyone, not only his wife. He appeared to be successful in doing so. It was very important to him that the knowledge of his gambling was not to be widespread and he took steps to gamble in places where he was unlikely to be seen by people he knew. He spoke of playing poker machines as providing a great comfort and relief to him; it was 'pleasurable, exciting and adrenalising'. At the places where he gambled he felt accepted and as belonging and it consumed long periods of time where he stopped thinking about other issues that he should have been facing. He could put other issues behind him and avoid facing them. His recent change of behaviour and present insight led him to now view his obsession and addiction with poker machine playing as 'incomprehensible'. He believed in some ways his capacity to make a good living and to function as a barrister made it easier to live with his poker machine playing.
9. In 2005 family court proceedings between himself and his former wife resolved and he returned to practice in May 2005. He was able to acquire a home in Balmain for about $800,000 mortgage free. At this time he had the objective of controlling and limiting his gambling but the fact was that he was far from ready to speak candidly with anybody about his gambling, particularly Dr Fisher. He was unsuccessful in limiting, managing or even stopping his poker machine playing. Although there might have been periods of less frequency and less intensity of gambling there was never even a short time when he was able to stop.
10. For the purpose of proceedings in the Tribunal Mr Quinlivan had reviewed his bank statements between July 2009 and May 2014 and identified approximately $650,000 that had been withdrawn for the purposes of playing poker machines. His practice was to withdraw cash from a ATM where there was a $2,000 per day limit on cash withdrawals. When that limit was exceeded, usually in the early hours of morning, he would top up for the next round of gambling by withdrawing relatively large cash amounts at a branch of the bank during business hours. The document he prepared nevertheless probably understated the amount he put through poker machines in that period.
11. In relation to ground 1 (a) Mr Quinlivan gave details of his earnings to June 2009. By April of that year the great bulk of his work was defence in personal injury cases for one insurer on instructions from one firm of solicitors. There was a falling out with the principal of the firm and no new work was briefed to him after April or May 2009.
12. Between July 2009 and June 2010 he drew down on a previously established line of credit facility that was secured by mortgage over his Balmain home. That facility commenced in November 2007 with a line of credit of $250,000 that was subsequently increased to $350,000. By June of 2012 his debt to the bank was in order of $380,000. In the financial year 2009/2010 he sustained an overall loss of more than $23,000 and in the same period withdrew over $45,000 for the purposes of gambling.
13. In July 2010 conditions were imposed upon his practising certificate by the Bar Council. In substance there were a continuation of conditions that had been placed on the certificate issued to him in May 2005.
14. By July 2010 Mr Quinlivan was about to exhaust the line of credit available to him. As the year progressed he was unable to meet his financial obligations and fell further behind being unable to pay floor fees, to pay interest on the line of credit as it was incurred and unable to meet his Tax payment obligations. He was also unable to meet outstanding fees due to Dr Fisher, a matter that he said caused him considerable personal embarrassment and so stopped his appointments. By July or August 2010 he owed $42,000 in floor fees and subsequently forfeited his shares, selling them for about $18,000. Nevertheless he was invited to stay in Chambers as a licensee and stated that he gave priority to keeping his licensee fees up to date and repaying arrears on floor fees. The line of credit however continued to grow and despite all of the above he was unable to stop playing poker machines.
15. In the first half of 2011 his practice began to recover with Mr Quinlivan receiving briefs from new solicitors. That did not immediately improve his financial circumstances as he was taking these briefs on a contingency basis whereby no one was paid until the matter settled or there was verdict for plaintiff. By the end of June 2011 he had been unable to service the line of credit facility for many months and the balance was then $350,000. For the year ending June 2011, his gross earnings were approximately $108,000 and his assessable income nearly $48,000. During this period he withdrew $56,000 for gambling.
16. In the July 2011 to June 2012 period, although his practice had recovered, his financial position had not improved from that of the previous year. At one point the Bank locked him out his Balmain property and took possession of it because of arrears In his line of credit facility. He was taken in by a solicitor who had become a friend and lived with that person and his family for several months.
17. In April 2012 he obtained approval for refinancing the debt on the Balmain property but that did not occur until mid-June 2012 and then he moved back into the Balmain home. At that time he paid nearly $49,000 to the ATO, thereby paying all debt then due on account of tax.
18. While living with his friend, the solicitor and his family, he continued gambling but hid the fact from his friends. A number of personal family matters involving Mr Quinlivan's mother and having to take action against his brother led to him experiencing a very strong sense of personal failure over the first half of 2012 and thereafter.
19. In 2011/2012 financial year his gross earnings were $396,000 with an assessable income of over $328,000. In that same period his gambling expenditure was around nearly $154,000 and may have been more.
20. In relation to ground 1 (b) Mr Quinlivan stated that it was his gambling addiction that led him not to establish a separate account for money due to the ATO. He was using his money to gamble to the extent that he believed that there was 'no realistic prospect' of him being sufficiently disciplined to put money aside and indeed he described the effort as being beyond him. He stated that he never possessed an aptitude for administrative matters and had always relied on others to perform that task for him. He now believed this ineptitude was likely another manifestation of a deeper deficiency. In late September 2013 he did open two separate bank accounts' one of which was intended to be the source for the payment of his tax obligations and the second being for funds from the business current account after the payment of tax. The opening of these accounts however rarely affected how he conducted his affairs and the accounts were barely used.
21. In relation to ground 2 concerning his failure to comply with a s 660 Notice, Mr Quinlivan revealed that in March 2012 he caused and allowed an income tax return for 2010/2011 to be lodged that disclosed gross fees of over $84,000 and an assessable income of just over $23,000. That return understated gross receipts by an amount in excess of $24,000 and thereby understated his assessable income by the same amount. Again he had gambled away money that ought to have been kept for the ATO.
22. In late June 2012 he was served with a s 660 Notice among other things seeking information and copies of relevant bank account statements for a specified period with all information to be verified. In mid-July 2012 he responded to the information request 'carefully' but did not verify the response nor did he provide bank statements. His reply essentially relied upon the fact that as of 20 June 2012 there were no arrears reported with the ATO. Mr Quinlivan acknowledged that this response reflected the dilemma in which he had placed himself. He had maintained only one account into which he deposited all of his income and he simply withdrew money as needed. The production of the records required would have made it quite clear that he had continued to gamble. He was terrified of revealing his addiction and he found himself in a state of almost 'total paralysis'. He stopped opening letters from the Bar Association and the contents only became known to him because his friend found them and opened them and informed him of the contents. He did not have the fortitude to deal with a disclosure of his conduct at that time. His 'careful' response was designed to minimise his conduct and avoided a false declaration. His addiction to gambling had been a source of shame and embarrassment to him.
23. Mr Quinlivan said that he had no capacity to pay income tax due for 2011/2012 and by lodging a false return he had crossed a line that he never thought would be crossed. He stated that his 1994 and 2001 disclosures to the ATO had been truthful but the 2010/2011 return was not. He was then and remained very ashamed of his actions.
24. He noted that he had often been offered assistance from professional friends and colleagues by way of secretarial assistance to manage his affairs. While he wished to take up those offers he found himself unable to do so because of the fear of his gambling addiction being revealed.
25. In relation to ground 3 (a) and (b), concerning his failure to procure financial and psychiatric reports, Mr Quinlivan noted that in mid-2012 his licence arrangement within Chambers had been terminated and his offer to purchase another room was rejected. By August he had made an agreement to purchase a room in other Chambers for $30,000. Throughout the financial year 2012-2013 his gambling continued and he was 'very affected' by his dishonourable conduct. He did not think deeply about it but he knew that there would be trouble and it distressed him that he could not find the strength to do anything about it. He continued to pay poker machines frequently and for long periods of time.
26. In relation to financial reports, there were long periods of time when Mr Quinlivan was unable to pay his financial adviser to prepare those reports and he was embarrassed by that fact. He was also well aware that the reports would show his failure to comply with the conditions on his practising certificate. Mr Quinlivan regarded himself afflicted by the same kind of paralysis that had consumed him in responding to the s660 Notice.
27. In relation to psychiatric reports, Mr Quinlivan did not resume contact with Dr Fisher until mid to late 2013. He referred to family upheaval and losing his brother as contributing to the delay in resuming contact but was also embarrassed by the fact of not being able to pay Dr Fisher's accounts. In addition he stated he had not been frank with Dr Fisher about his resort to gambling.
28. At this point Mr Quinlivan revealed that in August 2013 he caused and allowed an Income Tax Return for the 2011/2012 year to be lodged that disclosed gross fees of over $163,000 and assessable income of nearly $96,000. He admitted that return understated his gross fees by an amount over $232,000 and thus also understated his assessable income by over $236,000.
29. He admitted that this was a 'cover-up'. He was just keeping things going from day to day and had no long term plan or strategy for what he was doing. He thought he would be able to sort something out if he could keep going.
30. In the 2012/2013 financial year his gross fees were over $318,000 and his assessable income as over $271,000. His gambling withdrawals totalled not less than approximately $197,000.
31. A number of matters that arose between July 2013 and the end of June 2014 were then dealt with by Mr Quinlivan in his November 2014 affidavit.
32. In approximately July 2013 he sold his Balmain property for the gross amount of $1m and discharged the mortgage of about $450,000. In late October 2013 he purchased a home in St Peters for $810,000 with a mortgage of $450,000.
33. The present proceedings were commenced against Mr Quinlivan at the end of November 2013. He said he remained incapable of facing up to what he had done and what he was doing. He continued to gamble as it provided relief from the tension about what had happened and the trouble he knew was brewing.
34. In consultations with Dr Fisher, prior to resuming seeing him mid 2013, Mr Quinlivan stated that he had not been honest with his doctor regarding his gambling. He had led Dr Fisher to believe that he had occasional episodes of returning to gambling but for the most part remained free of the compulsion and that was not true. From late 2013 the appointments with Dr Fisher resumed and for the first time Mr Quinlivan informed him 'somewhat more honestly' about the gambling and was more revealing about it but nevertheless was 'not very revealing'. He was aware that Dr Fisher was reporting to the Bar Association but he was not at all frank and honest about the scale of his gambling. He did not discuss with Dr Fisher his conduct in understating income to the ATO.
35. Mr Quinlivan was then referred to a psychologist, Mr Stephen Zammit, of the Sydney University Gambling Addiction Clinic. Mr Zammit's help was found to be of a great assistance. Mr Quinlivan saw him on a weekly basis. Towards the end of 2013 Mr Zammit transferred his practice to Parramatta. Mr Quinlivan continued to see him for a time but said that his professional commitments made it impossible to get to Parramatta and back to the City, so he ceased seeing Mr Zammit around the end of 2013. He noted that in the 2013 /2014 financial year he earned gross fees of nearly $435,000 and had an assessable income of over $385,000. He withdrew at least $179,000 in cash from his account to play poker machines.
36. The present proceedings were fixed for hearing on 4 August 2014 and on 27 June Mr Quinlivan made a late application for renewal of his practising certificate for 2014-2015 year. On 2 July he received a letter from the Bar Association advising that his renewal application had been refused. He found that decision 'quite shattering'. He noted that apart from his St Peters home he had no other assets. He had exercised early access to his superannuation. Apart from what he earned from his practice he had no income or other means by which he could support himself. He accepted that situation was a consequence of his own gambling. He now believed that his suspension was in some ways a good thing and probably the unavoidable consequence of how he had behaved over many years. That conclusion came to him in the period between 2 July and 4 August 2014. The refusal made him reflect on his relationship with Dr Fisher. He realised that notwithstanding its length, it had not achieved very much and Dr Fisher was not to be blamed. Mr Quinlivan said he was not able to reveal himself in a meaningful way to Dr Fisher and it seemed to him that in the absence of such a revelation it was inevitable that there would not be much change in his conduct. In retrospect he now wondered how much of the time spent with Dr Fisher suited Mr Quinlivan because it was not affecting much change in his conduct.
37. Since receiving the notice of refusal Mr Quinlivan stated that he had not played a poker machine. He said he also came to understand that an inevitable consequence of the refusal would be the exposure of the extent of his gambling and his conduct in understating income for the 2010 to 2012 years. He said that prospect came as something of a relief and he decided to let things take their inevitable course. That led to him instructing his lawyers to advise the Tribunal on 4 August that it was necessary for him to file amended taxation returns. This realisation and the process caused Mr Quinlivan to believe that this was the first time he confronted his behaviour. The resumption of contact with Mr Zammit and the switch from Dr Fisher to Dr Naidoo were both the consequence of that process.
38. Amended tax returns were duly lodged and in early October 2014 amended assessments for the 2011 and 2012 years were refused by the ATO as being out of time. As of the 6 November 2014 Mr Quinlivan described his financial situation with the ATO as being that he owed $84,000 in relation to GST and $355,000 in respect of Income Tax, a total of $438,000. He said that he had no ability to pay that amount other than from the proceeds of the sale of his home. His desire was to regularise his affairs as soon as possible and he had listed his home for auction on 13 December 2014. The ATO had been informed.
39. In relation to his treatment, Mr Quinlivan stated that he had attended several meetings of Gamblers Anonymous in Surry Hills from 14 July 2014. The meetings ran for an hour and half in the evenings. When first attending these meetings he found the fellowship and acceptance of the group very heartening and motivating towards ceasing gambling but after three or four sessions he found that the heavy reliance upon religious teaching and intervention as not useful for him. While attending these meetings he was also seeing Dr Fisher for a short time and Dr Naidoo and Mr Zammit. He found the discussions with Mr Zammit about the psychology of gambling, and Dr Naidoo's treatment and education of him about his own psychology, much more helpful and enlightening than Gamblers Anonymous meetings. By the end of August 2014 he ceased attending those meetings.
40. Mr Quinlivan resumed seeing Mr Zammit on 21 August 2014 and commenced with Dr Naidoo on 11 August 2014 at the North Side Clinics and at his rooms in Roseville. There was a weekly session for each consultant. Mr Quinlivan had cancelled two appointments with Mr Zammit and one with Dr Naidoo when Mr Quinlivan was away but sometimes he had seen Dr Naidoo twice weekly. At the suggestions of Dr Naidoo he had commenced Saturday morning group therapy sessions: he found these interventions very effective and felt strongly committed and motivated by them. They were also physically demanding as Mr Quinlivan had to use public transport to attend. A trip to Mr Zammit involved around 4 hours in the early and late evening while the sessions with Dr Naidoo involved 3 hours of travel. Both involved him in a long walk from the railway station to the venue and by the time he returned home he always felt exhausted.
41. The therapy and association with Dr Naidoo has found 'life changing' for Mr Quinlivan. Previously he had never thought his gambling as systematic behaviour at all but since discussing the issues with Dr Naidoo, Mr Quinlivan began to understand it was a response to anxieties such as an avoidance of facing up to and dealing with stressors in his life both long and short term. Dr Naidoo had helped him to begin to understand how he could achieve meaningfulness and peacefulness by changing, by not avoiding, by dealing with stressors. He now understood that he must face and analyse the stressors that in the past had been avoided. By this Mr Quinlivan said that he was referring to financial affairs and matters going to his professional conduct but also his place in the world generally, where he fits in, especially in relation to people in his life. He did not in the past have the insight that he had now with respect to the psychological process of avoidance and anxiety which he now understood were unaddressed while he was gambling and were the consequences of his avoidance being unaddressed. He saw now that in the past he was in a state of unrecognised and unadmitted and unaddressed panic about his problem gambling and gambling was a mismanagement of his other problems. He said he would continue to consult with Mr Zammit and especially with Dr Naidoo as he strove for balance and peace in his life. He stated he was confident he had conquered or had begun to conquer his gambling addiction and had begun to see the other more personal issues which he must now address.
42. Mr Quinlivan again mentioned that he had not played a poker machine since 2 July 2014 and it was prior to 1990 that he had gone so long without playing. He found it surprising that since August he had not felt like playing a poker machine whereas previously he experienced an impulse to gamble almost every day of his life. He was surprised that now, for the first time since about 1990, he felt free from that impulse. Further, because of the sense of balance and peace he had achieved by non avoidance and appropriate action and with a reduction of anxiety that had brought, he had no impulses towards gambling or towards any obsessional behaviours. He found himself accepting, accommodating and even welcoming the hardships of his present position all due to his previous avoidance and gambling approach. This was the result of the efforts and solutions he had undertaken towards self understanding and non avoidance and the practical repair of present issues such as his tax debts. These developments had brought some peace for the first time in ages and had resulted in improving his self esteem as well as providing him with equipment and useful modes for thinking about himself; he had a determination to be ' in the present' and in the future.
43. Mr Quinlivan was extensively cross examined, particularly in relation to the May 2014 affidavit he had filed in the Tribunal but had not read at the hearing.
44. In the May affidavit Mr Quinlivan made several misleading or untrue statements regarding his financial affairs. At various places in that affidavit he stated that during 2012 outstanding tax was paid when that was not so. He stated that his present position was that overall his financial position had been resolved when that was clearly not correct. He had stated that he had now instituted appropriate banking arrangement where the evidence disclosed that he had not met the conditions imposed in this regard and that his banking arrangements were totally inadequate and were never designed to meet his taxation obligations. He again stated that his present position was that his financial affairs were in order but it was only when the affidavit of November 2014 was filed and read in the proceedings that it became evident that Mr Quinlivan had substantially understated his income for financial years 2010/11 and 2011/12.
45. The May 2014 affidavit was also misleading as to the extent of his gambling and in suggesting that at times it was almost modest when in fact the evidence demonstrated that it was continuous but on a smaller number of occasions appeared to have reduced in the amounts gambled simply because his income at the time had reduced. The May affidavit also demonstrated Mr Quinlivan's incapacity to be truthful about his gambling addiction to the extent that he, on several occasions, misled Dr Fisher about that matter to the extent that at one stage he asserted that he had stopped gambling when this was patently untrue. Dr Fisher's reports were being provided to the Bar Council as evidence of compliance with conditions imposed upon his practising certificate.
46. In relation to the November affidavit Mr Quinlivan acknowledged that he had deliberately understated his income to the ATO and had signed a false declaration for each of the 2 years involved. He admitted that at the time he made those false declarations, he knew that he was breaching the law. Mr Quinlivan also misled his financial advisor as to the state of his income in order to hide the extent of his gambling. The financial adviser's report ultimately led the Bar Council to be misled regarding Mr Quinlivan's compliance with conditions imposed upon his practising certificate. It is also evident that his failure to comply with the s660 Notice was designed to keep from his financial advisor and the Bar Council the true state of his financial affairs and the level of his gambling; it may also have led to the Bar Council uncovering the understatement of income to the ATO over 2 financial years, although the evidence before the Tribunal was that misstatement of the level of income was not an issue that had ever been raised with him by the Bar Council.
47. In relation to his November 2014 affidavit, Mr Quinlivan was much more honest about his gambling, about his avoidance of tax and statements as to his level of income when filing taxation returns. He acknowledged that he had previously misled both his financial adviser and Dr Fisher. There were, however, aspects of his evidence that did not fully disclose the full position. In relation to these matters Mr Quinlivan readily accepted that many of the criticisms were accurate, but he asserted that at all times he held no intention to mislead the Tribunal in his affidavit or in his oral evidence before the Tribunal. In relation to these matters Mr Quinlivan accepted that he had failed to be clear in his evidence but vigorously asserted that it was never part of his intention to mislead the Tribunal. Some of the issues raised in this context were explained by Mr Quinlivan as representing the physical and mental strain he was operating under. He declared that it was always his desire, in giving evidence to the Tribunal, to be honest about all aspects of his conduct that had been raised in the Bar Council application or that arose from the evidence before the Tribunal.

Treatment and Therapy

1. From August 2014 Mr Quinlivan attended a consultant psychiatrist Dr Prem Naidoo the principal psychiatrist at the Northside Clinic Greenwich. Dr Naidoo provided an affidavit and was also cross examined in relation to his assessment of Mr Quinlivan. Mr Quinlivan had attended his rooms between mid August and late October 2014 on 11 occasions.
2. Dr Naidoo reported a history of an increasingly unsatisfactory marriage during which Mr Quinlivan felt isolated and solitary. He began to gamble on poker machines and his increasing depression led to further compulsive gambling and he became quite addicted. He also suffered from a number of health problems including being diagnosed with multiple sclerosis in 2004. Further attacks occurred in 2008 leading to foot problems and thigh weakness. This increased his general despondency and his self-esteem was reduced further by seeing himself as a one armed person. He had been diagnosed as having diabetes and had to start injecting himself- this worsened his overall mood. In response to his stress he continued to gamble at a high level and his guilt, anxiety and depression in relation to his gambling behaviour continued to spiral upwards and he had an immense difficulty in meeting his commitments. While his legal practice continued to be successful despite these gambling difficulties, ultimately in July 2014 the Bar Council refused to renew his practising certificate. Not being able to work as a result led to a 'massive crisis' for Mr Quinlivan. With difficulty he had finally admitted his problems to his children in what appeared to be a highly traumatic and cathartic exercise; Mr Quinlivan had resolved to set things straight with his children and had decided to face his problem head on. He realised the extent of the destructiveness that gambling had wreaked on his life and had ceased gambling in July 2014. In addition Mr Quinlivan first saw a psychiatrist around 2000 in relation to the breakup of his marriage and was diagnosed as having depression. He was treated with antidepressant. Mr Quinlivan had remained on antidepressants ever since. It was also recorded that he had regular psychotherapy sessions with his psychiatrist for many years and in 2013 he had seen a psychologist , Mr Zammit , from the Sydney University Gambling Clinic weekly for a period of 6 months.
3. At interview Mr Quinlivan had presented with a somewhat tired and care-worn demeanour but was cooperative, polite and socially appropriate. He had been considerably depressed by his current circumstances and his anxiety levels were very high in relation to his difficulties. He retained full insight into his situation.
4. As to Mr Quinlivan's progress, apart from consulting Dr Naidoo on 11 occasions, between August and October 2014, additionally he had been attending a group program for anxiety and depression run by the doctor. He had also seen a psychologist specialising in gambling, Mr Zammit, on a weekly basis and had been regularly attending Gamblers Anonymous Meetings.
5. In this period Mr Quinlivan had responded to the therapy; he had changed from a mood of hopelessness and dissatisfaction with life together with a sense of impotence and uselessness regarding his inability to work in a job that he loved to a position where probably for the first time in his life, he was beginning to gain real insight and understanding of the antecedents of his anxiety-related behaviours and depressions. He had faced and was continuing to face head on his pathological behaviour in the form of his gambling. In acknowledging the chaos created in his personal and professional life caused by gambling had let him to genuinely desist from gambling for the first time for a very long period. Dr Naidoo ventured the view that the psychological approach and therapy that he was previously receiving may have been unsuited to him or it may have been his perception of the enormity of the present crises had allowed his character make up to be sufficiently receptive to an alternative therapy. He appeared to have responded to a self-psychological approach in a highly significant way and had wholly embarked on a new directional course and appeared not to be engaging in any of the avoidance and over compensation strategies that he had employed in the past. A lot of his isolation, bitterness and ultimately his refuge in compulsive gambling had been the result of his continued feelings of abandonment by his ex wife. Those issues had plagued him constantly and had only, it seemed, marginally been approached in past therapy. This was said to be a significant area of progress for him. His problems had been compounded by his serious physical difficulties. Although Mr Quinlivan had not been in these new forms of therapy for a long period there was ample evidence of his whole hearted engagement in new psychological processes. This was evidenced by his new found transparency, openness, engagement and abstinence from gambling. He appeared to have gained insight into a personal ability to change direction and create a meaningful and positive existence for himself.
6. In expressing his opinion concerning Mr Quinlivan, Dr Naidoo stated that he presented with unequivocal features of chronic anxiety and depression that had resulted in obsessive and compulsive behaviour in the form of a gambling addiction. There was clearly a genetic disposition from the fact that several members of his family had exhibited addictive behaviour in the abuse of alcohol. In relation to his unhappy personal life, that contrasted significantly with his successful professional life as a barrister. Mr Quinlivan felt shut out and sidelined and was driven by his increasing sense of isolation to more compulsive and addictive gambling. It was significant that in view of his wife's wealth, he increasingly saw his own finances and financial contribution as being meaningless. Dr Naidoo observed that it was very common in human life to see emotional isolation lead to financial recklessness. The loss of his marriage was a major contributor to his own unhappiness and something he was only currently working through satisfactorily in therapy. This certainly amplified his emotional difficulty and was a definite propagating factor in his continuing gambling. Compounding those psychological difficulties were very difficult medical conditions that had befallen him. All these stressors had led to a psychological spiral of increasing anxiety, guilt and depression itself leading to more ritualistic, compulsive gambling behaviour. The financial consequences led to it being almost impossible for him to satisfy adequately conditions placed upon him by the Bar Council and so he fell further behind.
7. In Dr Naidoo's opinion the lack of a practising certificate from July last year appeared to have had a profound effect upon his psychological state. It was well know that most people would not change their psychological direction in the absence of a major crisis and it did seem that this particular crisis had been experienced by Mr Quinlivan as being of such profound significance that it had wakened a real desire for change. Coupled with a new psychotherapeutic approach seemed to have awakened in him a new hopefulness and a new determination to use his undoubtedly considerable strength in a positive manner. It had resulted not only in the cessation of gambling but also a significantly different approach to his life. Changes in attitude to Mr Quinlivan's therapy and to his family reflected this new transparency and a lack of defensiveness; it appeared now that he was willing to work on issues he had dealt with previously by denial and avoidance and over compensation. This openness and willingness to change had been evidenced both in individual therapy and the group therapy that he had been attending.
8. In relation to the prospect of Mr Quinlivan overcoming his addiction Dr Naidoo stated that they were very good indeed, given his changing psychological perspective. He believed that Mr Quinlivan was now more insightful of the nature of the difficulties than he probably ever had been. He was therefore in a much better place to fulfil his professional obligations now and in the future and believed that he would do so. The overall prognosis was very good. Dr Naidoo then expressed the following opinion: "In my opinion, the patient's ongoing welfare is best served by both continuing psychiatric therapy and adequate occupational functioning. Without these he is likely to deteriorate. My understanding is that he has always performed impeccably as a barrister and it seems that returning to that occupation as soon as possible is going to be necessary to maintain the undoubted strides he has made psychologically in the last four months or so. It would seem to me to be unhelpful to have his progress jeopardised at this point. With regard to therapy, I do believe that he needs to continue along the psychotherapeutic path that he is currently on. He is currently receiving psychiatric therapy on a weekly basis and I do believe he is going to need this for at least 12 to 18 months. Assuming that progress is satisfactory, the nature and frequency of the therapy may be reviewed. I also believe that he does need to continue with specific psychological therapy in relation to his gambling behaviour with his present psychologist for a minimum of 6 months. I expect the patient's antidepressant tablets would need to remain in place for a minimum of 12 to 18 months unless there is a significant reason to change as assessed by his treating psychiatrists."
9. The evidence for Mr Quinlivan was completed by a number of testimonials, primarily as to his professional standing and emphasising the high regard in which he was held by senior barristers and solicitors. It was evident from this evidence that Mr Quinlivan had attained a high level of professional skill. He was described as acting with compassion and integrity. While there was some cross examination on this evidence the various opinions expressed by a cross section of professional colleagues remained as an impressive record of Mr Quinlivan's standing and conduct as a member of the Bar.
10. Of particular significance was the evidence of Mr Brendan Moran, principal of CMC Lawyers Pty Ltd and an accredited specialist in personal injury law. Mr Moran had observed Mr Quinlivan's conduct as counsel opposing his own clients over a number of years and from 2009 commenced briefing him. He spoke highly of the level of skill and professional propriety exhibited by Mr Quinlivan in conducting cases on behalf of the firm's clients and had no reason to doubt his integrity or ethical standards. He had formed the view that Mr Quinlivan was a barrister of the highest calibre and of outstanding character. In Mr Moran's view his client's interests had suffered significantly due to the inability to brief Mr Quinlivan during the extended period he had been unable to practise and he looked forward to Mr Quinlivan returning to the Bar.
11. Significantly, Mr Moran stated that the partners of his firm had held discussions and the firm was prepared to offer him employment as a solicitor, if Mr Quinlivan was able to obtain from the Law Society a practising certificate to practise as an employed solicitor. If Mr Quinlivan was not able to obtain such a limited practising certificate the firm was prepared to offer employment as a legal clerk subject to such employment being approved by the Law Society having regard to s17 the of Legal Profession Act.
12. Mr Moran noted that the difficulty Mr Quinlivan had experienced in his practice at the Bar appeared to relate to his inability to manage administrative matters. Bearing that in mind he noted that if Mr Quinlivan were to be employed by his firm in one of the limited circumstances referred to earlier, he would no longer be required to lodge business tax returns because he would be an employee and PAYE Tax would be paid on his behalf. Mr Quinlivan would also have the benefit of the firm's resources and management department in ensuring his wellbeing and that he complied with the conditions placed on his practising certificate such as attending upon a medical practitioner.
13. Some time after the matter was reserved for decision, solicitors acting for Mr Quinlivan wrote to the Tribunal requesting that it be relisted to deal with developments in his affairs. The Tribunal also had a number of issues that arose during its discussion of the matter and required certain issues to be clarified. A timetable was agreed for the filing of further evidence and the matter was listed for further hearing in early April 2015.
14. At the resumed hearing the Bar Council, without objection from Mr Quinlivan, amended the original application by adding further grounds upon which disciplinary action should be taken. The amendments were as follows: The respondent has engaged in professional misconduct or unsatisfactory professional conduct on the following bases:

Ground 4 24 On or about 1st March 2012 the respondent signed and authorised the filing of his income tax return for the financial year 2010/2011 knowing that amounts stated as gross fees and assessable income were false.

Ground 5 25 On or about 6th August 2013 the respondent signed and authorised the filing of his income tax return for the financial year 2011/2012 knowing that amount stated as gross fees and assessable income was false.

Ground 6 26 On or about 14th February 2012 the respondent signed and caused to be lodged Business Activity Statements knowing that the amount stated as 'total sales' was false.

Particulars 1. (i) (BAS for the quarter 1 April 2011 to 30 June 2011 2. (ii) BAS for the quarter 1 July 2011 to 30 September 2011 3. (iii) BAS for the quarter 1 September 2011 to 31 December 2011.

Ground 7 27. The respondent, on about 6 May 2014, swore an affidavit knowing that the affidavit was false in the following material particulars: 1. 'gambling was not an issue during that period' of 2009 and 2010 (at [18]-[19]); 2. 'during 2012 I again commenced to gamble' (at [25]); 3. that from December 2013 to 6 May 2014 'I have managed to confront my gambling addiction' (at [46]) 4. that as at 6 May 2014 he had opened two separate bank accounts and 'from that account I attend to payment of all my tax obligations' (at [52]); 5. as at 6 May 2014 'my financial affairs are in order' and 'there has been no significant accumulation of debt.' (at [57]) 6. 'There have been several occasions over the past six months when I have returned to gambling on the poker machines, but the amounts involved have been nothing like the amounts I used to gamble, and I have not stayed for significant periods of time' (at [58]). It should be noted that in his amended Reply,Mr Quinlivan did not admit Paragraphs (i), (ii) and (iii) of Ground 7.

1. Mr Quinlivan filed a further affidavit that addressed several ongoing issues. He stated that he had not gambled since the last hearing in late November 2014 and had continued regular appointments with Mr Zammit and Dr Naidoo. He had received encouraging support from family members and colleagues although his gambling was no longer a secret.
2. In relation to his debt to the ATO, his home had been sold in mid-December 2014 and the proceeds used to pay in full a tax debt of nearly $325k. His accountant had informed him that by the end of April 2015 he would have a tax debt of approximately $133k in respect of the year ending June 2014. There was some prospect of this figure being reduced to approximately $113k. In oral evidence Mr Quinlivan stated that he could not pay any of this debt and would seek to make arrangements with the ATO for it to be paid off over time. In oral evidence he said that he had no idea of the level of tax due for the current financial year but believed it to be modest due to his lack of employment. Professional fees due to him from earlier periods all would be fully paid within the next few weeks.
3. In oral evidence Mr Quinlivan said that in more than 20 years of gambling he had only understated his income to the ATO for the period 2011-2012. During this period he was in financial strife and was gambling heavily. It was part of his addiction to avoid the true level of his gambling and its financial consequences. He was also trying to avoid a further period of bankruptcy.
4. When asked why he had filed the affidavit of 6 May 2014 that was untrue and misleading, Mr Quinlivan said that until June or July 2014 he could not truly face the existence and extent of his gambling. This was part of his avoidance approach - he could not face the extent of his gambling addiction and it was never revealed to family or friends.
5. It was put to Mr Quinlivan that he must have known that the Tribunal would be misled if the May affidavit was read in evidence. He strongly denied having the objective of lying to or misleading the Tribunal saying that consequence had never entered his mind. It was not in his nature to mislead but that was one consequence of his addiction. His aim was to hide the fact that he was a heavily addicted gambler. It was not until July 2014, when he went to his bank records, that he understood the level of his gambling. His gambling was out of control and he was incapable of facing the truth of his circumstances, even in his dealings with his own lawyers. He was in a highly anxious state.
6. He was badly shaken by the refusal of the Bar Council to issue a new Practising Certificate from 1st July 2014. In his anxious state he resolved to tell his lawyers the full truth about his gambling addiction and its consequences, including understating his income to the ATO. He could not allow the May affidavit to stand and so a new affidavit was filed and read in the proceedings. In this affidavit Mr Quinlivan made the admissions referred to earlier. He said he had reached the point where he had to put things right in the Tribunal. He accepted that his conduct was not rational but that was the effect of his gambling addiction - all reasoning in his life was tainted by this malaise.
7. In relation to the ATO, Mr Quinlivan's accountant provided a letter setting out the process of amending the 2011 and 2012 tax returns. The accountants confirmed that no culpability penalties or proceedings had been commenced by the ATO nor had further information been sought in relation to the amended returns. The opinion was offered that further penalties or proceedings were unlikely.
8. An updated supplementary report was provided by Dr Naidoo. It was confirmed that Mr Quinlivan continued with regular consultations with both Dr Naidoo and Mr Zammit. Mr Quinlivan's progress was described as "as good as can be expected'. He had not gambled since June 2014 and had no inclination to do so. He was unwavering in his determination to persist in achieving rehabilitation and that was regarded as impressive in view of the considerable stress he had been under.
9. Dr Naidoo was of the view that Mr Quinlivan had progressively achieved greater insight into the pathological issues surrounding his previous behaviour. He regarded his past behaviour as belonging to a lifestyle he could hardly recognise today. Dr Naidoo said that Mr Quinlivan had acquitted himself admirably in his quest for a new life direction. The prognosis was good while he continued with his medication and therapy.
10. Dr Naidoo observed that prior to stopping gambling in June 2014, the evidence was 'fairly clear' that Mr Quinlivan was in a very compromised state around May 2014. His very anxious and depressed state was driving his obsessive and compulsive behaviour. This was exhibited symptomatically in the drivenness of his gambling behaviour. That behaviour created brain changes resulting in an increasing inability to take a reasonable view. Insight was lost by the behaviour itself. In Mr Quinlivan's case the combination of circumstances meant that his ability to resist the reward process became increasingly futile. At May 2014 he was prone to indulge in behaviour that was not typical of him. His increasing anxiety due to his situation would have led to a dissociative state meaning that his behaviour would have been atypical and split off from what might be judged as his normal pattern of behaviour.

Consideration

1. In light of the evidence given by Mr Moran and his firm's public offer of employment as a solicitor or legal clerk, the submission forcefully put by senior counsel for Mr Quinlivan was that the Tribunal should reject the application that his name be removed from the local roll and, instead, should permit Mr Quinlivan to enter the roll as an employed solicitor with such conditions as the Tribunal thought to be appropriate.
2. These opposing contentions leave the Tribunal with a most difficult decision having regard to Mr Quinlivan admitted misconduct (involving interalia, non payment of taxes, the filing of false taxation returns significantly understating the level of his income and swearing a false affidavit), his otherwise impeccable record in his dealings with all members of the profession and the courts whilst practising as a barrister, his long standing addiction to gambling and the general state of his health including the necessity for ongoing therapy.
3. At this point it is appropriate to consider some of the authorities relevant to the decision to be made in this matter. For present purposes, professional misconduct is defined in section 497 of the Legal Profession Act as ….conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. Section 58 of the Act provides that the holder of a current practising certificate must not contravene a condition to which the practising certificate is subject. Section 498 of the Act provides certain conduct is capable of amounting to either unsatisfactory professional conduct or professional misconduct including conduct consisting of a contravention of the Act, the regulations or the legal professional rules. Section 660 (3) imposes a statutory obligation on the holder of a current local practising certificate to comply with a requirement to produce, at a specified time and place, any specified document or copy of the document. Section 676 (3) of the Act obliges an Australian lawyer who is subject to a requirement under Section 660 not to fail to comply without reasonable excuse. Section 671 of the Act provides failure of an Australian legal practitioner to comply with a requirement is 'professional misconduct'. At all relevant times Mr Quinlivan was an Australian legal practitioner.
4. As pointed out by the counsel for the Bar Council, the regulation of the profession such as by the imposition of conditions on a practising certificate, is an important element in establishing a relationship of trust between a legal practitioner on the one hand and his or her client, colleagues and the judiciary on the other and in ensuring confidence in the profession (NSW Bar Association v Cummins (2001) 52 NSWLR 279 at [22] per Spigelman CJ). Further a practitioner subject to an enquiry is under a duty to assist with the investigation and attendance to such obligations is part of proper professional conduct (Legal Practitioners Board v Lind (2011) 110 SASR 531 at 534: Law Society of New South Wales v Grech [2006] NSW ADT 73 at [109]: Malfanti v Legal Profession Disciplinary Tribunal [1993] 1 LPDR 17 at 19 per Clarke JA)
5. It has long been recognised that the nature of the jurisdiction exercised by the Tribunal in matters such as this is protective and not punitive (e.g Wentworth v NSW Bar Association (1992) 176 CLR 239). The orders of the Tribunal in disciplinary proceedings are therefore said to be protective of the interest of the public including the interest of clients, other legal practitioners and the courts. There is a public interest also in maintaining the high standard of the legal profession. It has also been accepted that the time for assessing fitness to practice is to be decided at the time of the hearing ( for example see A Solicitor v Council of the Law Society of NSW) 216 CLR 253 at [21] ).
6. Apart from those general principles, of relevance are observations made by Mahoney JA in two cases. In Dawson v Law Society of NSW [1989] NSWCA 58, his Honour said: In judging whether an applicant will, in the future, act differently from the past, the court is not required to act on psychological theories or analyses ….. As I have said, it is difficult to decide what a man will do and the decision in a particular case is, to a greater or lesser extent, dependent on the Court's assessment of the applicant. In making that assessment it may draw inferences from what he has done in the past, and in particular, what led to his being removed from the Roll. An understanding of that may assist the Court to determine what are his standards and his understanding of a solicitor's responsibility and, from this, what he is apt to do in the future. And it is perhaps, on this basis that, where what has been done in the past has been sufficient to indicate his probably permanent unfitness. In the Law Society of New South Wales v Foreman (1994) 34 NSWLR 408, his Honour again discussed the issue of assessing a practitioner's future conduct, observing that an intention not to reoffend might have little weight unless it was supported by an understanding of his wrong conduct.
7. It is with these principles in mind that the Tribunal comes to consider the present matter. While Mr Quinlivan has substantially admitted the charges as particularised and has admitted that he is guilty of professional misconduct, the Tribunal is of the view that it is a matter upon which it should reach its own conclusion. Having stated that approach the Tribunal has no difficulty in concluding that in the several ways particularised Mr Quinlivan is guilty of professional misconduct. The continued breach of the conditions imposed upon his practising certificate in circumstances where he was continually in difficulties in meeting his taxation obligations because of his gambling addiction was a serious breach of the Act and Mr Quinlivan's obligations under the terms of his practising certificate. The course of conduct upon which he embarked led his financial adviser to provide reports to the Bar Council that did not represent or truly reflect his financial position, his ongoing gambling and the use of large amounts of his income to feed his gambling habit. He was not frank with his medical advisers and again this resulted in the Bar Council not being fully appraised of the course of his therapy and prevented an informed assessment being made of his progress in overcoming the addiction that was clearly placing him in breach of his taxation obligations. In this context especially, Mr Quinlivan's failures to fully comply with a Notice issued pursuant to Section 660 (1) of the Act deprived the Bar Council of the information that would have allowed it to properly assess his level of compliance and importantly would have demonstrated his continuing inability to fully meet his taxation obligations and other reporting obligations.
8. The seriousness of those breaches were compounded by the filing in the Tribunal in May 2014 of an affidavit that Mr Quinlivan knew was untrue in several respects and in particular in relation to his taxation situation. It was not until he filed his November affidavit that the Tribunal and the Bar Council became aware that in two financial years he had substantially understated his income and had filed a false declaration with the ATO. These matters alone would have provided grounds for a finding of professional misconduct. It should be noted at this point that not all of the conduct set out in the amended application filed by the Bar Council might constitute professional misconduct. The parties, however, apparently proceeded on the basis that considered in its totality, Mr Quinlivan's conduct constituted professional misconduct. The Tribunal is content to proceed on that basis.

What order should be made?

1. The Tribunal having made a finding of professional misconduct as detailed above it does not automatically follow that Mr Quinlivan's name should be removed from the Roll although a finding of such serious breaches as evident in this case would lead to close consideration being given to that result. It has long been accepted that assessment of the fitness of a practitioner to practice is decided at the time of the hearing (for example, A Solicitor v the Council of the Law Society of NSW (2003-2004) (216 CLR 253). In considering the fitness of a practitioner, in NSW Bar Association v Kalaf [1988] NSWCA 101, Kirby P. observed: The High Court of Australia has made it plain (as has this Court on many occasions) that to remove the name of a practitioner from the roll, it is necessary to conclude that the practitioner is permanently or indefinitely unfitted to be a member of the legal profession….If the Court were to determine that there were not that measure of unfitness as warrants permanent, or at least indefinite, removal from the ranks of the legal profession, the proper course to adopt, misconduct being found, is to suspend the practitioner from practice for a specified time…
2. The unusual aspect of this case is that Mr Quinlivan now does not seek to practise as a Barrister but wishes to take up an offer of employment as a solicitor with the firm that had regularly briefed him as Counsel. Senior Counsel for Mr Quinlivan submitted (and it was not contested) that under present legislation there is only one roll of legal practitioners and not a separate roll for Solicitors and another for Barristers. It was submitted that to accede to the orders sought by the Bar Council would have the effect of removing Mr Quinlivan from the Roll of practitioners and would destroy any capacity he has of rehabilitating himself, both professionally and financially, by pursuing an opportunity to practise as an employed solicitor. That proposal has not been accepted by the Bar Council. These contending positions leave the Tribunal with a most difficult decision in determining the appropriate disposition of this matter. There are a number of significant aspects of the case that point in different directions such that they are not readily reconcilable.
3. The Tribunal is asked to accept that the person who now stands before it is a very different person to the one who was unable to overcome his gambling addictions for twenty years and who thereby became unable to meet his tax obligations that caused him to engage in conduct that was antithetical to practise at the Bar. Counsel for the Bar Council submitted that Mr Quinlivan had for a long time misled both his financial and medical advisers and although conceding that there was evidence of changed character, cautioned that it was too early to rely upon the optimism expressed by Dr Naidoo. There are elements of truth in both aspects of this submission.
4. In approaching this difficult task the Tribunal is mindful of the statements of Mahoney JA in Foreman and Dawson. In Foreman it was regarded as relevant to make an assessment of whether or not the practitioner had an understanding of the wrongfulness of his conduct that was the subject of the disciplinary charge while in Dawson his Honour spoke of an assessment of what the practitioner might do in the future being assisted by whether or not it could be said that the practitioner had a understanding of what led to the conduct causing removal from the Roll (or here, refusal of a continuing practising certificate), an understanding of that may assist the Tribunal to determine the practitioner's standards, his understanding of responsibilities and from that to conclude what he may do in the future.
5. Mr Quinlivan was closely cross examined and the Tribunal had the opportunity to observe him at close quarters over an extended period of time. For the most part his answers were frank and he appeared to be genuine in expressing remorse for his past conduct in all its aspects. When challenged on aspects of his evidence that appeared to be less than frank or possibly misleading, Mr Quinlivan was quick to indicate his state of mind and his desire to confront his previous behaviour and make a new start. He gave the appearance of a person much wearied and diminished by years of deception resulting from his addiction. While he had said that he had stopped gambling, the evidence suggests that since July 2014 he has had no income and that may have compelled his new abstinence. It is possible that during that time however, he did have access to financial facilities although his financial affairs by this time appeared to be in dire trouble. He appeared to have taken responsibility for his financial position and his gambling addiction. He had made arrangements to sell his home in order to meet his debts, the largest being debts to ATO. The result is that with the sale of his home in mid December 2014 he has no place to live and again will have to seek the assistance of family members or friends to offer him accommodation. At the time of giving evidence he appeared to be genuine in his desire to pursue further therapy especially with Dr Naidoo and clearly understood that there was still much to be done in that direction as indicated by Dr Naidoo. The Tribunal is in no doubt that these recent disclosures as to the extent of his gambling over more than 20 years of lying and deceitful conduct in relation to his therapist, financial advisers and the Bar Council in avoiding his practising conditions has left him publically shamed which is precisely what he had been desperately trying to avoid over the long period of his addiction. He appears to understand that he has over the years burnt a lot of bridges and that he is standing on a precipice in both his personal and professional life where another false step will see him lose everything that he has previously held dear to him.
6. We think it important to note that for almost 20 years Mr Quinlivan was nevertheless able to practise to a high level in jurisdictions of some complexity. He was able to do so without having his conduct towards clients, colleagues, courts and members of the profession ever having been called into question. He not only possessed significant skill but throughout his troubles he has been able to attract the support of a variety of senior colleagues who appeared to see real worth in the man despite his considerable failures.
7. All his difficulties and defaulting conduct with the ATO are attributable to his gambling addiction. His failures to comply with conditions placed upon his practising certificate were also caused, if not driven, by his need to continue gambling and to do so with money that was rightfully due to ATO. He misled his medical and financial advisers to hide the depth of his gambling and his failure to meet taxation obligations. More recently that necessity became somewhat more anxious for him as he sought to keep secret his understatement of taxation from 2010 to 2012. It is likely that for the foreseeable future he cannot be placed in a position in the profession where he would be responsible for his taxation obligations. The offer made by Mr Moran and his firm, in the opinion of the Tribunal, is therefore most significant. The offer of employment either as a solicitor or as a legal clerk takes out of play any capacity that Mr Quinlivan might have to get hold of his taxation deductions as an employee and use them for the purposes of gambling. This possibility therefore raises different considerations for Mr Quinlivan's immediate future in the profession.
8. At the resumed hearing Dr Naidoo's supplementary report confirmed that at the time of swearing the May affidavit Mr Quinlivan was in the depths of his depression and addiction - he had lost insight and was unable to take a reasonable view of his conduct. In this state he was likely to behave in a way not typical for him and outside his normal pattern of behaviour. The Tribunal accepts that analysis and concludes that the May affidavit does not represent Mr Quinlivan's normal values or behaviour. It is difficult, however, for the Tribunal to accept that Mr Quinlivan did not also realise that the May affidavit would mislead the Tribunal in its deliberations if it was read in evidence. Mr Quinlivan was firm in his view that this possibility did not enter his mind and that it was only in June/July that he came to realise the need to correct his evidence. Dr Naidoo's supplementary report appears to accept that possibility and it is consistent with Mr Quinlivan's avoidance behaviour throughout his addiction.
9. Having stated that position the Tribunal cannot pass without making comment on Mr Quinlivan's more recent behaviour in filing an affidavit in the Tribunal that was misleading in some aspects but in other aspects was simply untruthful. Mr Quinlivan admitted that when he swore and filed that affidavit it had the capacity to mislead the Tribunal. When the matter was first listed in August 2014 the affidavit was not read and apparently by then Mr Quinlivan had also disclosed to his legal representatives the false declarations he had made to the ATO regarding the level of his income for two financial years.
10. The swearing and filing of a false affidavit is clearly a most serious matter and by itself would normally attract a finding of professional misconduct. The seriousness of this breach is mitigated to a certain extent by the fact that ultimately the affidavit was not read but was replaced by a rather more frank account of his financial circumstances and therapy he had undertaken and was now undertaking. In the more than 20 years of his gambling addiction this appears to be the first occasion that it may be said that in dealing with the legal system he had acted unethically in the most fundamental manner. The filing of the May affidavit appears to represent the nadir of his professional life. It represents the point where his gambling addiction and the need to avoid facing up to the reality of his circumstances had so consumed him that he could no longer recognise what was right and proper even with in his professional life.
11. Dr Naidoo observed that it was well understood that people would not change their psychological direction in the absence of a major crisis. The loss of his practising certificate in the circumstances outlined in this decision was identified as such a major crisis in his life as to amount to being so profound that it had awakened a real desire for him to change. He has told Dr Naidoo and has told this Tribunal that he is now able to think more clearly about his circumstances and has confronted his gambling addiction. He no longer feels it necessary to rely on avoidance and denial to delude himself as to his circumstances. In this context it may well be that by the time the hearing had resumed in November 2014 Mr Quinlivan was so shaken by this major crisis that he made full disclosure of his untruthful declaration to the ATO and filed a new affidavit in the Tribunal that more frankly recounted his circumstances.
12. The conclusions reached by Dr Naidoo provide assistance to the Tribunal in assessing how Mr Quinlivan may act in the future. In Dr Naidoo's opinion the prospect of him overcoming the addiction are very good given his changing psychological perspective. Mr Quinlivan was seen as more insightful of the nature of his difficulties that he had ever been and he was therefor in a much better place to fulfil his professional obligations now and in the future. The overall prognosis was very good. Dr Naidoo also stated: In my opinion the patients ongoing welfare is going to be best served by both continuing psychiatrics therapy and adequate occupational functioning. Without this he is likely to deteriorate. My understanding is that he has always performed impeccably as a Barrister and it seems that returning to that occupation as soon as possible is going to be necessary to maintain the undoubted strides he has made psychologically in the four months or so. It would seem to me to be unhelpful to have this progress jeopardise at this point.
13. The Tribunal has already observed that at this point in time there is a risk that should Mr Quinlivan resume practise at the Bar that the access he would be given to money otherwise due to ATO might again be used for gambling. This would not be the case if he is employed as a legal clerk or an employed solicitor as proposed by Mr Moran. Bearing in mind Dr Naidoo's assessment of Mr Quinlivan, the Tribunal is ultimately persuaded, in the very unusual circumstances of this case, that Mr Quinlivan can again practise in the legal profession with distinction in the capacity of an employed solicitor only.
14. Mr Quinlivan has undertaken the task of clearing his debt with the ATO and all other debts through the sale of his home. He faces further tax problems relating to the financial year ending 2014. Continuing with his therapy is at the core of efforts to defeat his gambling addiction. Dr Naidoo has suggested that therapy may be necessary for up to a further 18 months. At the time of giving his initial evidence Mr Quinlivan had only participated in this new therapy regime for a matter of 4 months. He had appeared to make remarkable progress. The Tribunal accepts that, nevertheless, it is too early to be able to conclude that therapy has been successful and that he has overcome his addiction. It is apparent from Mr Moran's evidence that his firm will offer Mr Quinlivan administrative assistance relating to his financial affairs and will also assist in ensuring he has the time available to continue such therapy as Dr Naidoo deems appropriate. The assistance offered by Mr Moran and his firm in this regard satisfies the Tribunal that those arrangements are suitable and address important aspects of Mr Quinlivan's previous behaviour that led him into such dire circumstances.
15. Having regard to the foregoing discussion the Tribunal is comfortably satisfied that Mr Quinlivan is a fit and proper person to be admitted to the Roll as an employed solicitor. The Tribunal accepts that the grip of his gambling addiction was the central factor that compelled his professional misconduct. He has acknowledged his addiction and has taken responsibility for changing his life through therapy and the assistance of Dr Naidoo. There are good prospects for rehabilitation. Engagement as an employed solicitor will prevent access to future taxation contributions. He has strong support from friends and professional colleagues and Mr Moran has outlined various ways in which the firm would be supportive of his ongoing therapy and the administration of his financial affairs.
16. A question then arises as to the timing of Mr Quinlivan's return to the profession. While the present ATO debt of $325k was satisfied in February 2015 a new tax obligation has to be finalised. As earlier observed Mr Quinlivan's therapy has a long way to go. His need for employment might possibly be met in the short term should Mr Moran's firm take on Mr Quinlivan as a legal clerk. The Tribunal also has regard to the seriousness of Mr Quinlivan's conduct. By the time this determination is published it is likely that Mr Quinlivan will have been unable to practise for nearly 11 months. Bearing in mind the unusual nature of this case the Tribunal is of the view that it would be appropriate for Mr Quinlivan to be able to apply for a practising certificate but not before the 1st July 2015. In making this determination the Tribunal wishes to make it clear that the Law Society should feel free to impose any conditions in the issuing of such a practising certificate as it thinks appropriate especially having regard to Mr Quinlivan's history as revealed in this decision and his need for ongoing treatment.

ORDERS

1. The Tribunal makes the following orders: 1. Anthony Phillip Quinlivan is found guilty of professional misconduct. 2. A local practising certificate shall not be issued to Anthony Phillip Quinlivan before 1 July 2015 and such local practising certificate, if issued, shall be limited to practise as an employed solicitor. 3. A practising certificate to practise as a barrister shall not be issued to Anthony Phillip Quinlivan by the NSW Bar Council until he is able to establish that he has overcome his gambling addiction and has in operation financial arrangements securing the payment of his taxation obligations. 4. Anthony Phillip Quinlivan is to pay the costs of the Council of the NSW Bar Association in relation to these proceedings. 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: 04 June 2015