Council of the New South Wales Bar Association v Waterstreet

NCAT Occupational|2024-08-13

REASONS FOR DECISION

Mr Waterstreet has been found guilty of unsatisfactory professional conduct under s 296 and s 298(b) of the Legal Profession Uniform Law (NSW) ("the Uniform Law") and professional misconduct under s 297(1)(a) of the Uniform Law (see Council of the New South Wales Bar Association v Waterstreet [2024] NSWCATOD 47 ("the Stage 1 decision")).
On 12 and 13 August and 25 November 2024, a hearing ('the Stage 2 hearing') took place concerning the application by the Council of the New South Wales Bar Association ('the Council') for disciplinary orders pursuant to the Uniform Law in relation to Mr Waterstreet, on the basis of the findings in the Stage 1 decision.
At the hearing, in the Council's case, an affidavit of Christopher Moore dated 16 May 2024 was read and exhibit CEM 1 was tendered. An affidavit of Andreas Heger dated 20 May 2024 was read and its attachment tendered. Some documents from Dr Sippe's records were also tendered (Court Book tab 15) and so were some documents from Dr Ryan's records (Court Book tab 14).
In Mr Waterstreet's case, a further affidavit of Mr Waterstreet was read and Mr Waterstreet gave evidence. Dr Ryan and Dr Sippe provided further reports and gave evidence. Mr Ian Lloyd KC, Mr Malcolm Ramage KC and Ms Judith Swan provided affidavits and gave evidence. An affidavit from Ms Jennifer Shaw dated 12 August 2024 was read and a screenshot of a podcast episode of 28 December 2023 was tendered.

Complaint One, Ground One

Complaint One, Ground One was a complaint of sexual harassment with ten particulars, all set out in paragraph 9 of the complaint. We found that particulars 9(iv), (v) and (vii) of Complaint One, Ground One had been established on the evidence, constituted sexual harassment and were each a breach of rule 117(b) of the New South Wales Barristers Rules 2014 ('the 2014 Rules') (rule 123(1)(b) of the Uniform Barristers Rules 2015 ('the 2015 Rules')). The conduct in these particulars is also likely to diminish public confidence in the legal profession contrary to rule 12(c) of the 2014 Rules (rule 8(c) of the 2015 Rules) and each constituted unsatisfactory professional conduct. The conduct, in summary, was: 1. In October 2014, a client and his female partner attended Mr Waterstreet's chambers for a meeting. After they had left, Mr Waterstreet said to C1 words to the effect of "I want to rub her all over" (Particular 9(iv)). 2. In or around December 2014, Mr Waterstreet viewed a pornographic video on his computer in chambers in the presence of C1 (Particular 9(v)). 3. In or around March 2015, whilst in chambers, Mr Waterstreet drew C1's attention to a drawing of a flaccid penis which was on the wall and said to C1 "this is a drawing of my beautiful penis" (Particular 9(vii)).
Complaint One, Ground One also included allegations which, we found, did not constitute sexual harassment, in context, but did constitute conduct likely to diminish public confidence in the legal profession, contrary to rule 12(c) of the 2014 Rules (rule 8(c) of the 2015 Rules). Each of those allegations was found proven and determined to constitute unsatisfactory professional conduct. Those allegations were as follows: 1. In or around October 2014, Mr Waterstreet showed C1 a picture of women in lingerie on his phone and commented about one of the women's appearance, also saying, "She's your type, isn't she?" (Particular 9(iii)). 2. In or around May 2015, Mr Waterstreet showed C1 a picture of a woman in lingerie on his phone and said words to the effect of, "This is the woman I met with last night. She is wearing the lingerie from Baby Likes to Pony that she bought with the voucher that you organised" (Particular 9(ix)). 3. On 16 June 2015, Mr Waterstreet sent C1 an email containing a picture of a man's lower body with the man wearing revealing "underwear". The "underwear" was a mankini (Particular 9(x)).

Complaint One, Ground Two

Complaint One, Ground Two, appears in paragraph 10 of the complaint. It alleges that Mr Waterstreet failed to pay C1 the wages that he owed her from June 2015, amounting to $1,580.00. Mr Waterstreet admitted this allegation and we found it proven and determined that it constituted unsatisfactory professional conduct.
We determined that all of the conduct alleged against C1, taken together, constitutes professional misconduct under s 297(1)(a) of the Uniform Law.

Complaint Two, Ground Three

The allegations in Complaint Two all concerned conduct of Mr Waterstreet which was said to have taken place during the interview, on 20 September 2017, of C2, who had applied for the position of paralegal and personal assistant to Mr Waterstreet. Mr Waterstreet conducted that interview in his chambers in the presence of a client, a paralegal, a 'creative assistant' and a solicitor.
Complaint Two involved seven allegations of sexual harassment, which are set out in paragraph 15 of the complaint.
We found the following allegations of sexual harassment in the course of the interview on 20 September 2017 proven: 1. Mr Waterstreet drew C2's attention to a black plastic object on display and asked her if she knew what it was. He then said that it had been in his chambers for three years and recently, for the first time, a client had identified it and asked him why it was there. The object was a sex toy (Particular 15(ii)). 2. Mr Waterstreet introduced C2 to the client who was present and said words to the effect that "He has the biggest cock in Australia" and referred to him as a porn star (Particular 15(iii)). 3. Mr Waterstreet said to C2 that female orgasms were volcanic and much more powerful than men's (Particular 15(iv)(d)).
We found that the proven conduct constituted a substantial departure from the standard of conduct expected of a barrister and was a breach of Rule 8(c) of the 2015 Rules.
We determined that each of the proven allegations in Complaint Two constitutes unsatisfactory professional conduct.

Complaint Three, Ground Four

Complaint Three was a complaint of sexual harassment of C3, a law clerk, by Mr Waterstreet in the lift of a city building on 22 February 2019.
C3 was leaving the building, using the lift, when Mr Waterstreet entered the lift with two other men. Mr Waterstreet asked C3 how she would describe one of the men who were with him, and she said she would rather stay silent on that. He then asked her "which one of the three of us would you prefer?". She laughed uncomfortably and did not answer. Mr Waterstreet then said "My friend is your age but if you like money" and gestured to himself, looking her up and down. Another man then entered the lift and Mr Waterstreet said to C3 "Okay, so which of the four of us would you prefer?" The lift stopped again and a woman got in. Mr Waterstreet said to C3 "I didn't mean to be discriminatory earlier, which of the five of us would you prefer?".
Mr Waterstreet admitted the allegations concerning this incident. We determined that the conduct was sexual harassment and was also conduct likely to bring the legal profession into disrepute. We determined that it was unsatisfactory professional conduct.

Complaint Three, Ground Five

It was alleged that all of the conduct, taken together, constituted professional misconduct under the Uniform Law.
We determined that all of the proven conduct, taken together, constitutes professional misconduct under s 297(1)(a) of the Uniform Law. We determined that an allegation of professional misconduct under s 297(1)(b) of the Uniform Law had not been made out.

The Tribunal's power to impose disciplinary orders

The Uniform Law provides, in s 302 and s 299, relevantly: 302 Determination by designated tribunal - disciplinary matters (1) If, after it has completed a hearing under this Part into the conduct of a respondent lawyer, the designated tribunal finds that the lawyer is guilty of unsatisfactory professional conduct or professional misconduct, the designated tribunal may make any orders that it thinks fit, including any of the orders that a local regulatory authority can make under section 299 in relation to a lawyer and any one or more of the following - (a) an order that the lawyer do or refrain from doing something in connection with the practice of law; (b) an order that the lawyer cease to accept instructions as a public notary in relation to notarial services; (c) an order that the lawyer's practice be managed for a specified period in a specified way or subject to specified conditions; (d) an order that the lawyer's practice be subject to periodic inspection by a specified person for a specified period; (e) an order that the lawyer seek advice in relation to the management of the lawyer's practice from a specified person; (f) an order recommending that the name of the lawyer be removed from a roll kept by a Supreme Court, a register of lawyers kept under jurisdictional legislation or the Australian Legal Profession Register; (g) an order directing that a specified condition be imposed on the Australian practising certificate or Australian registration certificate of the lawyer; (h) an order directing that the lawyer's Australian practising certificate or Australian registration certificate be suspended for a specified period or cancelled; (i) an order directing that an Australian practising certificate or Australian registration certificate not be granted to the lawyer before the end of a specified period; (j) an order that the lawyer not apply for an Australian practising certificate or Australian registration certificate before the end of a specified period; (k) a compensation order against the lawyer in accordance with Part 5.5; (l) an order that the lawyer pay a fine of a specified amount not exceeding $100 000 if the lawyer is found guilty of professional misconduct. 299 Determination by local regulatory authority - unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer or a legal practitioner associate of the respondent law practice has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders - (a) an order cautioning the respondent or a legal practitioner associate of the respondent law practice; (b) an order reprimanding the respondent or a legal practitioner associate of the respondent law practice; (c) an order requiring an apology from the respondent or a legal practitioner associate of the respondent law practice; (d) an order requiring the respondent or a legal practitioner associate of the respondent law practice to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring - (i) the respondent lawyer; or (ii) the respondent law practice to arrange for a legal practitioner associate of the law practice - to undertake training, education or counselling or be supervised; (f) an order requiring the respondent or a legal practitioner associate of the respondent law practice to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate or Australian registration certificate of the respondent lawyer or a legal practitioner associate of the respondent law practice.
The Court of Appeal, dealing with the issue of disciplinary orders in the context of a barrister on appeal from the Tribunal said, in Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 ('EFA'): 177. It is well established that the inherent jurisdiction of the Supreme Court to deal with professional misconduct is "entirely" protective: NSW Bar Association v Evatt (1968) 117 CLR 177 at 183; [1968] HCA 20; Clyne v NSW Bar Association (1960) 104 CLR 186 at 201-2; [1960] HCA 40; A Solicitor at [12]; Maddocks. It is, perhaps, one thing to say that the purpose of the jurisdiction is protective; as was recognised in Evatt, the exercise of the powers "may involve a great deprivation to the person disciplined". 178. That the exercise of the powers may be perceived as punitive is reinforced by the nature of the orders contemplated by ss 299 and 302 of the Uniform Law (eg reprimand, fine). Nevertheless, the principle has been applied to the exercise of the statutory powers conferred under different versions of the legislation governing the legal profession: see, for example the judgment of Beazley JA in Law Society of NSW v Walsh [1997] NSWCA 185; see also the doubts expressed by Mahoney JA in Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 440 and following.
In Law Society of New South Wales v Walsh [1997] NSWCA 185 at [40], Beazley JA set out the following components of the duty to protect the public when formulating disciplinary orders:

the protection of the public against further misconduct by the practitioner the subject of the proceedings,
the protection of the public from similar defaults by other practitioners, which includes taking into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of practitioners. A disciplinary order should contain an element of general deterrence which publicly marks the seriousness of what the practitioner has done. (see also de Robillard v Council of the New South Wales Bar Association [2024] NSWCA 299 at [198] ("de Robillard")).

The Court of Appeal in EFA discussed the characterisation of the seriousness of the conduct in issue and set out the appropriate approach to formulating protective orders. At [192] the Court said: 192. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: • notwithstanding the non-publication orders, a level of public notoriety and humiliation; • a four year period of anxiety, while the Council's investigations proceeded; • a further period of anxiety since the filing of the Council's appeal; • severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; • the termination of the respondent's marriage and disruption to his family; • a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and • an unquantifiable but real and significant impact on the respondent's practice.

The Council

An affidavit of Mr Christopher Moore, a solicitor, dated 16 May 2024, was tendered in the Council's case.
Mr Moore provided pages from Mr Waterstreet's website. The text on the website includes these words: Charles is currently "on sabbatical" from legal practice.
The website also provides an address for "Waterstreet Chambers" on William Street, Sydney, with a map showing the location.
Mr Moore provided extracts from a waterstreetdocumentary.com website which concerns a documentary which is presently being made about Mr Waterstreet's "rise and fall" and a copy of the Screen Australia website about the same documentary.
The test on the Screen Australia website, under the heading Story, says: But success would be short-lived, as allegations of improper conduct resulted in him being tried and convicted in the court of public opinion, swept up in the scrutiny of the newly-mobilised #metoo movement which would prove to be the beginning of his professional downfall.
Pages from Mr Waterstreet's X (formerly Twitter) accounts were exhibited to Mr Moore's affidavit. The parties were provided with a draft of the Stage 1 decision on 24 October 2023. A post by Mr Waterstreet on X on 28 October 2023 showed a photograph of a large man wearing a 'mankini' with other men in bathing costumes, with the caption "When your summer body isn't ready but you go on holiday anyway". The text of Mr Waterstreet's post said: Would be grateful if anyone can reply whether this type of photography is offensive, not as fat shaming, but as sexual harassment? Further is it obvious that it is humorous, Borat, important sampling.
Mr Moore's affidavit exhibited pages from Mr Waterstreet's LinkedIn account.
One of Mr Waterstreet's LinkedIn posts was published prior to the Stage 1 hearing. Mr Waterstreet says: Ladies and Gentlemen, I am facing a Tribunal hearing starting 27/7, and I need a PA/young solicitor or student with legal experience, computer skills, good organisation skills, printer available, exciting work, offer near 4 figures paid each week, for period of 5 weeks guaranteed, contract, Bondi area and CBD, must be prepared to work hard. Typing essential. NDA needs to be signed. …
A further LinkedIn post by Mr Waterstreet was included in the exhibit. It reposted an extract from an article about the obligations of a prosecutor when conducting sexual assault trials. The article concludes with a comment about "the very real cost of social campaigns like the #MeToo movement". Mr Waterstreet has commented "I wish it applied to NCAT". It is likely that this post was made after the Stage 1 hearing but before the parties received the draft Stage 1 decision.
Extracts from the transcript of an episode of The Stick Up podcast entitled "The Real Rake - Charles Waterstreet" in December 2023 were exhibited to Mr Moore's affidavit. Mr Waterstreet, by that time, had already had the draft decision of the Tribunal for several weeks. Mr Waterstreet was interviewed by Mr Russell Manser. The extracts from the transcript contained the following: RM If you were in, like let's say you are in trouble, but if you.. CW Well, I'm not really in trouble RM No, but if you were CW I'm politically incorrect RM You're definitely politically incorrect CW I put that down to I'm Bipolar II … RM …Hey listen, what's next for Charles Waterstreet? Tell me. CW Well, I'm on sabbatical at the moment.
Later on in the transcript, Mr Waterstreet was describing the events surrounding the cancellation of his practising certificate on account of bankruptcy, and he said "…but I got into trouble for, you know, slips of the tongue..".
Near the end of the interview, Mr Manser commented that he had run into Mr Waterstreet, writing, in a café in Kings Cross and Mr Waterstreet said: CW …I'm lucky to, you know if I sit down to write I'm fine. It's getting to sit down. You've got to have the discipline to write. I love writing, you know in cafes and other places and in fact I'm writing now with the producers of a documentary because I can't sit in a lonely house and especially as I live in Bondi, if I write in cafes in Bondi my neck gets hurt. RM Yeah, yeah, I get it. Having a good old perv. CW I wouldn't say it's just that you have to bend down, you know, for your lost coins.
An affidavit, dated 17 May 2024, of Mr Andreas Heger, the Executive Director of the New South Wales Bar Association ("the Bar Association"), was tendered in the Council's case.
Mr Heger exhibits to his affidavit the records of the Bar Association concerning the investigation of complaints and 'show cause' events involving Mr Waterstreet.
The Director of Public Prosecutions, Mr Lloyd Babb SC, made a complaint against Mr Waterstreet on 1 March 2018. The grounds of the complaint were that, during his closing address to the jury in proceedings before the District Court of New South Wales in October 2017 Mr Waterstreet had, to quote from paragraph 11 of Mr Heger's affidavit: (a) Ground One: Mr Waterstreet improperly, irrelevantly and offensively referred to nationalities of the complainant in the underlying proceedings and Ms Wieland (a witness). (b) Ground Two: Mr Waterstreet made a number of factual assertions for which there was no proper basis in the evidence at trial, contrary to rule 64(d) of the Legal Profession Uniform Conduct (Barristers) Rules 2015.
The complaint was investigated and processed under the Uniform Law, with submissions being made at several points of the process on behalf of Mr Waterstreet.
Ultimately, the Council, on 2 May 2019, resolved as follows: Resolved, pursuant to section 299 of the Legal Profession Uniform Law (NSW), to find that Charles Christian Waterstreet has engaged in unsatisfactory professional conduct in relation to a disciplinary matter, being Grounds One and Two of the complaint made against him by Lloyd Babb SC. Further resolved, pursuant to section 299(1)(b) of the Legal Profession Uniform Law (NSW), to make an order reprimanding Charles Christian Waterstreet in relation to Grounds One and Two of the complaint made against him by Lloyd Babb SC.
The complaints of C1 and C2 were made in 2018. Whilst the complaints were being investigated, after considering submissions from Mr Waterstreet on the question of the imposition of a discretionary condition on his practising certificate, on 6 December 2018, the Council imposed upon the practising certificate then current and any practising certificate issued up to and including 30 June 2019, the condition that Mr Waterstreet: …is not permitted to interview, employ or otherwise engage any new employee, assistant, intern, trainee, paid or unpaid clerk, student or admitted legal practitioner in any capacity associated with Waterstreet's practice as a barrister.
The Council also resolved: …that Waterstreet may apply to the Bar Council for variation of the above discretionary conditions, if one or both of Waterstreet's existing staff resigns or leaves their current employment, or the needs and circumstances of Waterstreet's practice requires the engagement of additional or replacement staff.
The complaint of C3 was made on 25 February 2019, in relation to Mr Waterstreet's conduct on 22 February 2019.
On 13 May 2019, the Council resolved to suspend Mr Waterstreet's practising certificate until the final determination of the complaint made against him by C3. The Council further resolved that the suspension is deferred until four matters, which were named in the resolution, were complete.
Mr Waterstreet's practising certificate was suspended from midnight on 14 June 2019.
Meanwhile, on 14 March 2018, Mr Waterstreet notified the Council of an automatic show cause event. The Australian Tax Office had filed a statement of claim in the District Court of NSW against Mr Waterstreet seeking the payment of his unpaid tax liabilities in the sum of $373,354.25 plus interest and costs. The claim related to tax which was unpaid from 2012 to 2015. Judgment was entered against Mr Waterstreet for the sum of $420,456.21 on 7 March 2018. Mr Waterstreet was subsequently declared bankrupt.
The Professional Conduct Committee (PCC) of the Bar Association investigated the show cause event.
Whilst the investigation was proceeding, Mr Waterstreet applied for the renewal of his practising certificate for the 2018/2019 year. The determination of the application was deferred until the investigation was complete, and Mr Waterstreet was permitted to continue to practice until that time.
The PCC sought and, ultimately, received information from Mr Waterstreet, including financial information. Mr Waterstreet was given the opportunity to respond to the draft report of the PCC, and his response was taken into account in the final report.
Mr Heger says, in his affidavit, that the Council considered the PCC's report dated 26 June 2019 at its meeting on 27 June 2019 and resolved: (a) pursuant to ss 89(1) and 89(2)(b) of the Uniform Law, that, following the disclosure of an automatic show cause event, namely the filing of a debtor's petition by him on 13 March 2018, and the provision by Mr Waterstreet of a written statement pursuant to s 88(2)(b) of the Uniform Law, the Bar Council does not consider that Mr Waterstreet has shown in the written statement that, despite the show cause event, he is a fit and proper person to hold a practising certificate; (b) pursuant to ss 76 and 89(2)(b) of the Uniform Law that, having determined that Mr Waterstreet has not shown in the written statement that, despite the automatic show cause event, he is a fit and proper person to hold a practising certificate, the Bar Council: (i) refuses to renew Mr Waterstreet's practising certificate for the period 1 July 2018 to 20 June 2019, application for which was lodged on 30 June 2018; and (ii) cancels the practising certificate issued to Mr Waterstreet for the period of 1 July 2017 to 30 June 2018, which has continued in force pursuant to rule 17(2) of the Rules.
Mr Waterstreet was informed of the Council's decision by letter dated 28 June 2019 which enclosed the reasons for the decision.

The Respondent

The additional evidence adduced on behalf of Mr Waterstreet in the Stage 2 hearing consisted of the following affidavits: 1. Mr Waterstreet, affirmed 13 June 2024, 2. Dr Mark Ryan, sworn 14 June 2024, 3. Dr Richard Sippe, sworn 14 June 2024, 4. Mr Ian Lloyd KC, affirmed 14 June 2024, 5. Ms Judith Swan, sworn on 20 June 2024.
All of the deponents were also cross-examined at the hearing.

Mr Waterstreet

In his affidavit, Mr Waterstreet said that receiving the diagnosis of Bipolar II Disorder from Dr Ryan and Dr Sippe in early 2022 had given him significant insight into the behaviour and conduct he had engaged in which had led to these proceedings.
Mr Waterstreet said that he regrets the proven conduct with respect to C1, C2 and C3. He said: 37 …I am embarrassed and ashamed by the grossness and uncurbed nature of my conduct. My tendency to over share personal information and to broach sexualised topics and over sexualised topics at the time is now startlingly frank to me. I realise now that my inability to distinguish my good and bad moods had serious consequences for C1, C2 and C3. In addition, I deeply regret my financial recklessness at the time that resulted in my failure to pay C1 wages in the sum of $1580, causing C1 financial difficulties, and adding to her hurt and distress whilst working for me.
Mr Waterstreet said the following about his practice as a barrister: 39 Based on my sessions with Dr Ryan and Dr Sippe and my reflections of my conduct culminating in the Stage 1 Decision, I recognise that I had a disturbing lack of boundaries and behaved inappropriately towards the complainants whilst my Bipolar II Disorder was undiagnosed and untreated. For example, I am now aware that what I regarded as joking would not be taken as jokes by others. I also completely accept that oversharing about details of my private life is not appropriate. I accept that as a barrister I must maintain proper standards of behaviour in the workplace and in other public and professional settings. For example, I now embrace the concept of meeting clients and others separately rather than mixing three or more matters together. The latter leads to chaos and confusion and the former leads to comfort and clarity. I also now understand how others might perceive statements, which I might earlier have regarded as inoffensive, as unwelcome and inappropriate and contrary to the ethical standards expected of a barrister. 40 Furthermore, the medication I take, and improving my sleep patterns, has also helped treat the phases of mania and depression that I used to swing between. I am now much more aware, knowing that I have Bipolar II Disorder, to be attentive to and to monitor my mood and careful to ensure that it does not impact on my personal and professional life. I am especially attentive to the fact that whilst untreated it was usually when I was in a manic state that I tended to veer into the inappropriate and sexually suggestive statements and conduct of the kind which the Tribunal has found I engaged in. Accordingly, I understood the importance of ensuring adherence to the medication and sleep regime to help manage and stabilise my moods.
Mr Waterstreet said that, if he were to return to practice, he would "engage with Ian Lloyd KC in a mentor like capacity". He also said, at paragraph 44 of his affidavit, that he was "willing to commit to discretionary conditions on any practising certificate issued to me" and suggested six conditions.
In examination-in-chief, Mr Waterstreet said that he had been living at a backpackers hostel, but that he would, the following day, be moving into an apartment by himself, which, he anticipated, would be much better.
In cross-examination, Mr Waterstreet was taken to the statement on his website that he was "on sabbatical" from legal practice. The following exchange took place about the meaning of the word "sabbatical": A. It's an academic term. I'm - my familiarity with sabbatical is the - I was once an academic, an academic leave of absence to pursue your own interest. Q. What I want to suggest to you, that an accurate definition of the word "sabbatical" is a voluntary rest or break from work, firstly, do you agree? A. Yes. … Q. Do you say that "sabbatical" accurately reflects your current position? A. It's a way of putting a very uncomfortable experience with - on the public record without self-critical - without saying "I've been cancelled". I-I-it's not the sort of thing you'd put on a website. … Q. What I'm suggesting to you is the sentence I've taken you to is (a) inaccurate and (b) potentially misleading. A. I agree that it is potentially misleading, but it is the soft way I chose to put myself.
Later in his cross-examination, Mr Waterstreet agreed that his comments in this context about describing himself as being on sabbatical also apply to his use of that word in "The Stick Up" podcast.
In response to being questioned about why he had not taken steps to have the statement taken off the website, Mr Waterstreet indicated that he had not had an awareness that the statement was on the website until the Council's documents drew it to his attention, and he also said "I had things to do". In relation to other instances of material on the internet, he indicated that he lacked the technical skill to remove it and also indicated that it did not occur to him to remove it.
Mr Waterstreet was further cross-examined the next day about the issue that the material on the internet in the exhibit to Mr Moore's affidavit was still present on the various websites. The further cross-examination took place after an affidavit sworn on 12 August 2024 by Ms Shaw, Mr Waterstreet's solicitor, was tendered. In her affidavit, Ms Shaw gave an account of a conference at Forbes Chambers with Mr Waterstreet and his legal advisers on 6 August 2024. The purpose of the meeting was to discuss the Council's material for Stage 2, which had been served some months before. At the conference, Ms Shaw raised the question of whether Mr Waterstreet should remove material from the internet. Ultimately, at the conference, Mr Waterstreet was advised not to take steps to amend the website. In the further cross-examination of Mr Waterstreet on this question, Mr Waterstreet said that he had an independent recollection of the conference referred to in Ms Shaw's affidavit. He indicated, in effect, that he left the conference understanding that he should not take any steps to remove material from any website. When asked why he had not disclosed this advice the previous day in cross-examination, Mr Waterstreet said that he "didn't have the subject matter of Ms Shaw's affidavit in mind when I answered the questions of why I didn't take it down".
In cross-examination, Mr Waterstreet was asked about the map on his website which shows a building on William Street Sydney as the address of "Waterstreet Chambers". The following exchange took place: Q. On what basis do you use the phrase "Waterstreet Chambers" on a website that is current at the moment? A. I believe I - I was tongue - tongue-in-cheek at the time. On reflection, it's misleading.
Mr Waterstreet conceded that designating a location as "Waterstreet Chambers" could imply that he was working as a barrister at that location.
Mr Waterstreet was taken to the passage on the Screen Australia website set out at [29] above and the following exchange took place in relation to that passage: Q. Is that a sentiment you agree with? A. Except for the "newly mobilised MeToo movement". I certainly wouldn't blame that. Q. Why wouldn't you now blame that? A. MeToo is a good movement and I - I'm thoroughly in - in full support of it, and it was well - nigh due. Other - other people have used those words. Q. And so you wouldn't adopt those words "swept up in the scrutiny of a newly mobilised MeToo movement"? A. No. That's a very minor aspect of my journey. Q. When you say it's minor, was it a factor that you say contributed to your current position? A. Yes, I would think so. Q. In what way? A. In the way that I was targeted by a small online publication that chose to target me. Other than that, that's about it.
Mr Waterstreet was taken to his post on X which showed a man in a mankini. He accepted that it was posted several days after he received the draft Stage 1 decision. He denied, though, that the post had been prompted by the draft decision. He said that there was no conscious connection between the two. He was asked why he had sent the tweet and he said: A. It's a repost of something I came across and, in a trigger-happy moment, I wrote what I wrote. It - it - this part of the decision and the process is one that I, at the time, grappled with but - but time has taken its way and I now see perception of my conduct as more relevant than my subjective view.
When asked why he had not taken the mankini post down, Mr Waterstreet said that it had not occurred to him that he could "erase the …net".
Mr Waterstreet was taken to his LinkedIn posts in the exhibit to Mr Moore's affidavit (p 41). He was asked about the post he put up shortly prior to the Stage 1 hearing, in which he sought to engage the services of a "PA/young solicitor or student with legal experience…" to assist him with the Tribunal hearing. It was pointed out to him that, under his name and beside his photograph, the words "Consultant at Charles Waterstreet Legal and Creative" appeared on each post. Mr Waterstreet said that there was no entity registered in that name. He accepted that it had the potential to suggest that he was practising as a lawyer. He agreed that the use of the description was unwise.
Mr Waterstreet was asked about his bankruptcy. He agreed that he was entered on the National Personal Insolvency Index on 13 March 2018 and discharged from bankruptcy on 14 March 2021.
Mr Waterstreet was taken to the LinkedIn post described in [33] above. He said that he was unable to recall what he meant by his comment "I wish it applied to NCAT".
Mr Waterstreet was asked to explain his answer during his interview with Mr Manser quoted at [36] above. He said: I was self-mocking myself sitting in a Bondi café surrounded by Bondi types with being unable to write because I couldn't write in my room and I couldn't write in cafes because of the temptations of the population. It was a mock, not the statement of truth.
Mr Waterstreet was asked whether his failure to pay $1,580 of wages due to C1 was related to his bipolar II disorder. Mr Waterstreet said that it was an explanation, not an excuse. He agreed that he was, at the time, paying other bills and expending money on his own behalf in a systematic fashion. Mr Waterstreet indicated that his chambers and his staff suffered from his "irresponsible priority of finances". The following exchange took place: Q. I mean, I think a more useful question is why was everything else prioritised over C1's wages? A. Selfishness. Q. But why her? A. It wasn't just her. It was chambers. It was tax. It was everything but my gratification, and self-comfort.
In re-examination, Mr Waterstreet made it clear that he did not write the text for the waterstreetdocumentary.com website, but said that he would have had input.
Senior Member Dixon SC and Mr Waterstreet had the following exchange: Q. …As a barrister, how could you not, in 2014 and 2015, not have understood, just that basic premise, that as a barrister you must maintain proper standards of behaviour in the workplace, and in other public settings? A. I could not - I would not have understood workplace, in a proper understanding as I do now. I obviously maintain proper standards in 43 years of practice, and did not follow up properly that that applied, not just in a court setting, but in a workplace, personal, public forums. I did not see that - what I perceived, as I said - an eccentricity and free speech also had its limits, in being a barrister, and the perception of others of a legal practitioner. Q. Did you understand that maintaining proper standards of behaviour meant that you should not sexually harass females? A. The last thing on my mind, in the shock of 2017 media coverage, was that I was the last person, in my mind, who would be a sexual harasser. Q. Mr Waterstreet, that's not my question. A. I'm sorry. Q. Did you understand that maintaining proper standards of behaviour meant that you could not sexually harass? A. Oh, yes. Q. And that was your understanding, at the time of all the conduct that has been found against you in these decisions. A. I didn't understand sexual harassment. I didn't understand the 2014 - and the definition of sexual harassment. I did not understand it, at the time. I thought it was subjective, and intention played a part. It was only as a result of public outing, and these proceedings, that I came to understand sexual harassment, as it is defined. Q. And by intention, you mean the intention - A. Oh yeah. Q. - of the accused harasser. A. My subjective intention.

Dr Ryan

An affidavit of Dr Ryan, psychiatrist, dated 13 June 2024, to which was annexed a letter dated 3 June 2024 to Dr Ryan from Mr Waterstreet's solicitors, seeking his answers to five questions following the Stage 1 decision, and a responding letter from Dr Ryan, dated 11 June 2024, was tendered.
Dr Ryan said that Mr Waterstreet continued to see both him and Dr Sippe but he understood that Dr Sippe would soon retire, at which time Mr Waterstreet would continue with Dr Ryan as his psychiatrist.
In his letter, Dr Ryan referred to the diagnosis of bipolar II disorder. Dr Ryan said that his treatment comprised guidance to address Mr Waterstreet's sleep issues, psychotherapy, a course of brain training, medication and further assessment to inform treatment of Mr Waterstreet's gut issues.
Dr Ryan said, in paragraph 8 of his letter: 8. Related to, but separate from psychotherapy, Mr Waterstreet has commenced 'brain training' intervention to enhance and improve 'top down' attentional control and self-regulation, which are important skills in attending, apprehending salience, interoceptive states and empathic awareness of self, others and context. This is a neurofeedback intervention that I organise and oversee. This is relevant because chronic stress and sleep disturbance are associated with dysregulation of brain networks especially those involved in self-regulation. This 'brain training' is a method of enhancing connectivity and functionality in these areas of functioning and behaving.
Dr Ryan said that he had observed a "marked improvement" in Mr Waterstreet's behaviour. Dr Ryan said: He is quieter, calmer and more appropriate in his demeanour and the language he uses with me. For example, he is far less flippant. That is not to say that he is not without a sense of humour but his use of sexualised references as a form of humour have dissipated. [sic]
Dr Ryan said that Mr Waterstreet's financial constraints have prevented him from getting the "range of additional interventions that have efficacy for the sleep and gut issues" and he hoped to offer these when Mr Waterstreet's finances allowed.
Dr Ryan said that Mr Waterstreet's treatment would continue "as per his current treatment to manage his Bipolar 2".
In the last two paragraphs of his report, Dr Ryan says: 23. I anticipate a good outcome, by which I mean, mood stability, situationally appropriate self-regulation and behaviours and good real-world functionality. Continued contact with me and implementation of the current treatments will ensure changes are sustained. 24. On the basis of my assessments and opinions detailed in this report I consider Mr Waterstreet fit to resume his practice as a barrister.
In cross-examination, Dr Ryan was asked if his current diagnosis of Mr Waterstreet includes "a differential diagnosis of ADHD"? Dr Ryan said: A. … So the current view in the diagnostic manuals is that all labels are descriptive only. They have vague - vague categories, and that the key thing is to go looking for the expressions of the symptoms set in this person, and also what may be the pathophysiological drivers. So while he - he does have a - had or have a clinically significant load of ADHD symptoms, that's like a symptoms set that - that - that fits in with sleep disturbance. It fits in with mood disorder. It fits in with - with the sort of functional dysregulations or anomalies that I've picked up on the - on the brain mapping and other assessments. And so in perhaps contrast to maybe how he was treated in the past, I go looking for the causes and treat the - the physiological stuff, and as opposed to just providing medications that are designed to improve focus and concentration, but, in fact, have a range of downstream negative consequences, particularly in - for sleep and for mood disorder.
Mr Waterstreet had not completed the brain training treatment at the time of the hearing. His treatment had been interrupted by, among other things, hospitalisation after a fall. Dr Ryan said that the duration of the treatment was indeterminate in that it would depend upon the results.
Dr Ryan was asked to comment on whether it was appropriate that Dexamfetamine (sometimes also spelled 'dexamphetamine') be prescribed for Mr Waterstreet. Dr Ryan described Dexamfetamine as a psychostimulant and said: A … as his sleep improves, then I think the - the need for something like that diminishes anyway, and it's a more effective treatment to treat the sleep and the gut rather than just medicate it. The Dexamfetamine has a number of other problems. One is that it has an impact on sleep. It can disrupt the- the - the electrical power of the circadian rhythm sleep, and it can delay sleep onset. And the - the other problem that's relevant in terms of bipolar is that the - being a - because it activates dopamine release in the brain, dopamine then activates the sensory motor networks to - to enhance behavioural activation. And that's a sort of a subtle contributor, perhaps, to behavioural activation or behavioural reactivity. And I prefer to normalise sleep and normalise physiological brain and other functions to allow the process to be normalised. And I think the need for medication becomes less and less.
Later in the cross-examination, Dr Ryan was asked whether Dexamfetamine could exacerbate bipolar II disorder. Dr Ryan said: Can it exacerbate? Well, yes, it can exacerbate, but it doesn't necessarily do so. I mean, that's the problem with any of this stuff. In my- because of how I work and how I formulate things, then it's something I'd like to see him off at some point once I've further addressed his sleep.
Dr Ryan said that Mr Waterstreet was suffering from three sleep disorders and is someone who is very sensitive to sleep disruption.
At the time that he was giving evidence, on 12 August 2024, Dr Ryan had not seen Mr Waterstreet for a consultation since 21 May 2024. Dr Ryan said that Mr Waterstreet's hospitalisation had "got in the way of ongoing contact". Dr Ryan had spoken to Mr Waterstreet on the phone. Dr Ryan said that, when he takes over Mr Waterstreet's care, he will see him for a minimum of once a month.
Dr Ryan said that Mr Waterstreet had experienced a number of bouts of depression over the previous six months. They were less frequent and less severe than in the past.
Dr Ryan indicated that Mr Waterstreet's psychiatric treatment would be ongoing.
Dr Ryan was asked about the last two paragraphs of his letter, set out at [83] above. He agreed that paragraph 24 of his letter had been added to his original draft letter after he received a request to add his opinion about Mr Waterstreet's fitness for work, we infer by Mr Waterstreet's solicitor.
Dr Ryan said that he knew that barristers were sole practitioners, but he said that he did not take that into account, specifically, in forming his opinion. He could not recall whether he had been provided with the barristers conduct rules.
Dr Ryan was taken to paragraph 6 of his report of 14 July 2022, in which he said: Both the dexamphetamine and the antidepressants alone and in combination have been identified as being associated with illness episodes in bipolar II, and in combination, would increase the risk of episodes and at least mood destabilisation and increased vulnerability to hypomanic episodes of bipolar II.
Dr Ryan said that Mr Waterstreet had remained on the Dexamfetamine for the whole time that Dr Ryan had been seeing him and he had not become hypomanic again. Dr Ryan said, in effect, that his statement in the report of 14 July 2022 was 'an established fact', but that it was a question of assessing the risk in the context of the individual. Over time, if Mr Waterstreet's sleep improves, it may be an option to try to withdraw drugs which could pose a risk.
Senior Member Dixon SC asked Dr Ryan about his notes with respect to Mr Waterstreet which indicate that Mr Waterstreet was suffering from problems with sleep and sleep deprivation. Dr Ryan confirmed that. The notes also said that Mr Waterstreet was suffering from depression on 21 May 2024. Dr Ryan confirmed that. Dr Ryan also indicated that Mr Waterstreet's financial and accommodation predicaments were contributing to Mr Waterstreet's difficulties. Dr Ryan said that psychotherapy would be as important in Mr Waterstreet's treatment as other, highly technical measures such as Transcranial Magnetic Stimulation. Dr Ryan indicated that psychotherapy had only commenced "superficially" and that it would be "a long-term project".
In re-examination, Dr Ryan said that Mr Waterstreet had been living in a place which did not allow him privacy, self-determination and the ability to self-cater. Dr Ryan said that the accommodation issues, together with financial constraints, had been "a huge stress" for Mr Waterstreet.
Dr Ryan clarified that when he said he thought that Mr Waterstreet was fit to work as a barrister, his opinion depended upon Mr Waterstreet continuing his treatment with Dr Ryan. Dr Ryan said that Mr Waterstreet was much better regulated, in the sense of being situationally appropriate, than when they had first met. He said Mr Waterstreet now showed "reflective insight" and he also said "I think he can also in retrospect identify that he's probably been unwell for a long time - had been unwell for a long time". Dr Ryan said that his view was that Mr Waterstreet's inappropriate behaviour in a professional context reflected his unwellness "which he doesn't have at this point and so he'd be able to function professionally in those contexts and would be back to what should and would be expected of him". Dr Ryan seems to have based his opinion on his consultations with Mr Waterstreet. He undertook no other investigation.

Dr Sippe

An affidavit of Dr Sippe, psychiatrist, dated 14 June 2024, to which was annexed a letter to him dated 5 June 2024 from Mr Waterstreet's solicitors, seeking his answers to five questions following the Stage 1 decision, and a responding letter of Dr Sippe, dated 14 June 2024, was tendered.
Dr Sippe said, in his letter, that he was retiring in August 2024, at which time Mr Waterstreet "will be overseen" by Dr Ryan.
Dr Sippe said that his treatment of Mr Waterstreet involves medication, psychological counselling to help Mr Waterstreet understand his condition and advice about a healthy lifestyle, disciplined daily routines, especially as to bed and rising times and regular exercise.
Dr Sippe said that he had formed the view as he got to know Mr Waterstreet "that it is possible that he has a non-hyperactive type of attention deficit disorder (ADHD)". Dr Sippe said: I remain of the view that he has Bipolar 2 disorder, which is the main disorder. I am now of the opinion that it is also possible that he has a non-hyperactive type of ADHD. I believe this is a secondary, related but separate, disorder to bipolar 2. I treat this non-hyperactive type of attention deficit disorder through medication.
Dr Sippe said that he was currently treating Mr Waterstreet with mood stabilising and anti-depressant medication as well as the stimulant Dexamfetamine for the non-hyperactive ADHD.
Dr Sippe said that he had continued the Dexamfetamine as an antidepressant, because Mr Waterstreet found that it helped him "getting going" in the morning and to address the ADHD. He did not think that the Dexamfetamine was triggering manic episodes, and he thought that Mr Waterstreet's manic episodes had reduced in frequency and severity over time.
Dr Sippe said, in his letter: 19. Most noticeably, I have not seen him in a state of hypomania, which I observed when he first consulted with me in 2022. I have seen him slightly manic in that time, however, on the whole, the florid manifestation of mania (talking rapidly, being flippant, casually sexualised joking) has not been present. 20. His mood now fluctuates between normal and depressed, with minor elevations of mood (ie the hypomanic phase) from time to time but not near the levels I observed when I first saw him in 2022. His personality remains gregarious and somewhat flamboyant which is not a manifestation of illness but rather just his personality.
It is Dr Sippe's opinion that Mr Waterstreet will require the kind of treatment Dr Sippe was providing him with, "likely with occasional modifications" indefinitely.
At the end of his letter, Dr Sippe said: 22. Prognosis for future mood stability including freedom from judgment impairing hypomanic episodes is moderately good. I believe, that as a result of psychological counselling, he has a much better awareness of how hypomanic episodes impair his judgment, with the result that recurrence of inappropriate sexual comments, etc, is far less likely than in the past. It is actually likely that recurrent hypomanic episodes are a thing of the past. Unfortunately, episodes of depressed mood are likely to continue. However, these should be shorter and of less intensity than in the past. 23. I am confident that if Mr Waterstreet continues to follow the treatment that I have recommended he is presently and will continue in future to be fit to practice as a barrister.
Dr Sippe gave oral evidence. In examination in chief, he was asked if Mr Waterstreet's solicitor, Ms Shaw, had asked him to express an opinion as to whether he was presently fit, and would, in the future, be fit, to practise. Dr Sippe said that he had not been asked. Senior Member Dixon SC then asked Dr Sippe what question he was asked that caused him to write paragraph 23 and how was that question communicated. Dr Sippe said that he wrote it in response to question 6 which asked for his prognosis. Senior Member Dixon SC asked him if he received any other communication from anyone representing Mr Waterstreet that caused him to write paragraph 23 and Dr Sippe said "No, it was my judgment".
In cross-examination, Mr Griffin showed Dr Sippe a copy of his draft letter to Mr Waterstreet's solicitors, which did not include paragraph 23, set out above at [83], even though it responded to the same questions as the final letter of 14 June 2024.
Dr Sippe said, in effect, that he added paragraph 23 because he had had "more time to consider the whole matter and I wanted to make a fuller prognostic statement".
Dr Sippe was asked what factors he took into account in assessing Mr Waterstreet's fitness to practise. He said: …unimpaired cognitive functioning and long experience in the field. His memory is unimpaired. His ability to concentrate is good. His judgment is good in professional matters, and this - this is all, of course, conditional on his illness being treated.
Dr Sippe was asked on what basis he formed the opinion that Mr Waterstreet's judgment was good in professional matters, and the following exchange took place: A. On the basis of many discussions I've had with him over the misdemeanours or offences with which he is charged, when he was manic, his understanding of the inappropriateness of those and how it was related to his disinhibited manic state, and how he would recognise in future if such a state was emerging. Q. In that opinion you go beyond, saying Mr Waterstreet is fit to work; you specifically say he is fit "to practise as a barrister". A. I know that he's practised when he's been well, successfully and competently. That's the main reason I made that comment.
Towards the end of his evidence, Dr Sippe said that Mr Waterstreet was the main source of the information he had about his career, together with the press and possibly shared acquaintances.
In further cross-examination, it emerged that Dr Sippe was not aware that a barrister could only practise as a sole practitioner. He was not aware of the Legal Profession Uniform Conduct (Barristers) Rules 2015 ('the Conduct Rules'). He had not sought further information beyond Mr Waterstreet.
The fact of Dr Sippe and Dr Ryan treating Mr Waterstreet concurrently was put to Dr Sippe, and he said that it was "certainly unusual". He agreed that he knew that Dr Ryan was concerned that the prescription of Dexamfetamine to Mr Waterstreet would lead to the disturbance of his sleep.
Dr Sippe said that his concern with Dexamfetamine being stopped would be that, when Mr Waterstreet is depressed, his concentration is impaired. Dexamfetamine helps concentration "in a major way". Dr Sippe said that he would be very concerned if the mood stabiliser was stopped because Mr Waterstreet's mood could then, again, become very unstable possibly with significant manic episodes "which have quite destructive effects on a person's life". Dr Sippe said that he would be less concerned if the anti-depressants were stopped, and that it may be in the future that anti-depressants need to be taken only intermittently, with careful monitoring.

Mr Malcolm Ramage KC

Mr Ramage KC swore an affidavit dated 18 June 2024. Mr Ramage has known Mr Waterstreet since the early 1970s. Mr Ramage KC is a member of Forbes Chambers and said Mr Waterstreet practised from those chambers for about 10 years.
Mr Ramage KC said that, while Mr Waterstreet was at Forbes Chambers, he worked very hard and was "quite fearless in taking and holding unpopular cases and positions". Mr Waterstreet was a very good advocate with "an extremely varied practice ranging through all areas of criminal law from murder down".
Mr Ramage KC has read the Stage 1 decision in this matter. He said: I am aware of the evidence and findings in the Liability Decision that Charlie Waterstreet, at relevant times, suffered from bipolar II disorder and had both major depressive episodes and shorter hypomanic episodes periodically. I am not able to comment on the expert material except to say that it is entirely consistent with what I saw in and out of Chambers, particularly the described criteria of hypomania of inappropriate sexual conversation, disinhibition, and overfamiliarity, impulsivity (verbal and behavioural), and increased sexual interest in general conversation.
Mr Ramage KC said that he would be happy to work with Mr Waterstreet were he to resume practice as a barrister.
In cross-examination, Mr Ramage KC agreed that it had been many years since he had worked directly with Mr Waterstreet. He continues to believe, however, that if he can keep his mental health issues under control, Mr Waterstreet could be a useful member of the bar.

Ms Judith Swan

Ms Swan swore an affidavit dated 20 June 2024. She is one of two directors of Judy Swan Pty Ltd, trading as Swan Lawyers. Ms Swan had been a solicitor for more than 28 years. Prior to undertaking her law degree, Ms Swan completed a Bachelor of Arts with Honours in Clinical Psychology at the University of Cape Town in South Africa. She has never worked as a psychologist, however.
Ms Swan said that she worked with Mr Waterstreet regularly from September 1995 until 1998. She then worked with him again from November of 2013, though less regularly because her focus at that time was not so much on criminal law. Ms Swan said: 10. I have always found Charles to be a brilliant barrister. I found him to be extremely intelligent and I would even say that I considered him to be one of the better cross-examiners I have witnessed. To my observation he was always well prepared and dedicated and very clever on his feet in Court. Further, to my observation Charles was very kind to people and went out of his way to help them with his pro bono work and legal aid work. I considered Charles to be honest and trustworthy and a diligent and respected colleague and friend. Over the years that I have known Charles I have also witnessed his ups and downs and his bouts of depression. 11. By about 2016 or 2017, I recall that I began to find Charles' behaviour quite outrageous and ridiculous. By this I mean that while I still found him funny and have always found him funny, some of his comments from about 2016 or 2017 onwards I found to be distasteful, and his behaviour appeared to me to be often hypomanic. To my observation Charles lost a lot of his friends during this time.
Ms Swan has seen Mr Waterstreet socially every four to eight weeks since early 2022. She said that, since Mr Waterstreet's diagnosis with bipolar II disorder and his treatment for that condition, she has found that he is more measured in his behaviour. He is sometimes depressed, but Ms Swan has not seen him in a hypomanic episode since his diagnosis.
Ms Swan said that, were Mr Waterstreet to resume practice as a barrister, she would "happily brief him again and work alongside him in the legal profession as a trusted and respected colleague".
In cross-examination, Ms Swan said that she first observed Mr Waterstreet behaving in a way consistent with bipolar II disorder in about 1996 or early 1997. She recalled a lunch at which he was extremely gregarious and tipped about $400, which was an outrageously large tip. She said that sometimes he was very chatty, but then, at other times, he would not talk at all. Then, in 2015 and the period following 2015, Ms Swan observed him at times when he was "even more manic" with "no boundaries, really". She said that he was not like that with clients, but sometimes when he was with her she thought that he seemed "out of control". She would simply "shut him down" when he tried to show her inappropriate images or make inappropriate comments. Ms Swan noticed that Mr Waterstreet would sometimes talk very quickly. He would forget social arrangements and make nonsensical excuses when she telephoned to find out if he was going to attend.
Ms Swan said, in re-examination, that her recent conversations with Mr Waterstreet lead her to believe that he understands that some of his behaviour was appalling.

Mr Ian Lloyd KC

Mr Lloyd KC swore an affidavit dated 14 June 2024.
Mr Lloyd KC said, in his affidavit, that he had known Mr Waterstreet for 47 years. He was in the same chambers as Mr Waterstreet from June 1977 to about 31 July 1980. Mr Lloyd occasionally observed Mr Waterstreet in court and considered him to be an able advocate with an excellent knowledge of criminal law. Mr Lloyd never saw him behave inappropriately at that time.
Mr Lloyd KC became a Crown Prosecutor at the Office of the Director of Public Prosecutions NSW in mid-September 1988. During his time in that role, he conducted a four to six week fraud trial with Mr Waterstreet defending. He found Mr Waterstreet to be a good advocate, who gave his client every chance.
In 1990, Mr Lloyd KC was seconded to be the first General Counsel for the NSW Independent Commission against Corruption (ICAC). Mr Lloyd saw Mr Waterstreet appear "in one or two ICAC hearings" and was again impressed by his skills as an advocate.
From 1996 to 2008, Mr Lloyd KC did not have an experience of Mr Waterstreet as an advocate. Mr Lloyd KC was in Hong Kong for much of that period. However, Mr Waterstreet did have a room in Mr Lloyd's chambers for part of that time, and Mr Lloyd KC became aware that Mr Waterstreet was not paying his chambers expenses as and when they fell due. Ultimately, Mr Waterstreet left the Chambers.
Mr Lloyd KC returned to Sydney in about 2008.
About five years ago, Mr Lloyd KC was consulted informally by a District Court judge who had presided over a trial in which Mr Waterstreet was appearing. In the course of the trial, Mr Waterstreet had disappeared for a day without notice to the Court. He was also late for court and the judge thought that he had been behaving strangely. The judge said that he had no concern about the quality of Mr Waterstreet's advocacy, but he was concerned about Mr Waterstreet's absences and his welfare. Mr Lloyd KC knew, by then, that disciplinary action was underway. He observed, one day, when he ran into Mr Waterstreet, that he seemed depressed.
Mr Lloyd KC said that, from his own experience, he regarded Mr Waterstreet as being of good fame and character, albeit eccentric, especially in his personal life. Mr Lloyd KC said that he would trust Mr Waterstreet with a case. If Mr Waterstreet were to be treated for his bipolar II disorder, Mr Lloyd KC said that he would happily work with him at the Bar once more.
Mr Lloyd KC said that he was willing to act as Mr Waterstreet's mentor in the sense that Mr Waterstreet could check in with Mr Lloyd KC regularly to discuss how he is going and to get general support. Mr Lloyd KC has previously mentored other barristers and it was his practice, in doing so, to provide monthly emails to the Council after each monthly meeting with the barrister.
In examination-in-chief, Mr Lloyd KC said that he intended to keep working until at least 30 June 2027. Mr Lloyd KC said that he would be happy to be named as Mr Waterstreet's mentor in a condition on his registration and would seek to be provided with on-going reports from his treating professionals if he were to be assigned that role.
In cross-examination, Mr Lloyd KC said that he had not seen Mr Waterstreet in court for the last five years.

The Council's submissions

The Council asked that the Tribunal reprimand Mr Waterstreet pursuant to s 299(1)(b) and s 302(1) of the Uniform Law and make an order that Mr Waterstreet not apply for an Australian practising certificate before the end of a three year period, pursuant to s 302(1)(j) of the Uniform Law.
The Council submitted that the orders sought would: a. appropriately reflect the gravity of the misconduct proved; b. have a deterrent effect on both the conduct of the Respondent, and the conduct of other practitioners; and c. enhance confidence in the public of the integrity of the profession. (see Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-194)
The Council submitted that the findings of professional misconduct against Mr Waterstreet comprised, in part, persistent sexualised conduct toward young women. It was submitted that the importance of protecting young professionals and university students entering the legal profession from sexual harassment is paramount.
The Council said that the material on Mr Waterstreet's website, which says that he is on "sabbatical" from legal practice and gives an address for 'Waterstreet Chambers', displays a lack of regard for, and a lack of any true insight into, his current status as a barrister, given that his practising certificate was cancelled in June 2019 and he is currently the subject of a finding of professional misconduct.
The reference on the waterstreetdocumentary.com website to Mr Waterstreet being "swept up in the scrutiny of the newly-mobilised #metoo movement" set out above at [29], is, the Council submitted, inconsistent with someone who has gained true insight with respect to adverse findings of sexual harassment.
Mr Waterstreet's post on LinkedIn, on 28 October 2023, of a large man in a mankini, with the comment set out at [30] above was, the Council submitted, further evidence of a lack of insight. Four days prior to the LinkedIn post, Mr Waterstreet had been provided with a draft Stage 1 decision which explicitly found that Mr Waterstreet's conduct, on 16 June 2015, in sending C1 a similar photograph, constituted a breach of the Bar Rules.
Mr Waterstreet, in cross-examination, was asked why he did not take the problematic material down from the internet. He said, as we have set out above, variously, that he had other things to do, that he did not know how to take it down and that it did not occur to him to take it down. Subsequently, Ms Shaw, in her affidavit of 12 August 2024, disclosed that Mr Waterstreet had been given legal advice not to take the material down from the internet. When he was asked, on the second day of the hearing, why he had not referred to being given legal advice about taking the material down, Mr Waterstreet said "I wasn't asked…I didn't have in mind the subject matter in Ms Shaw's affidavit." The Council submitted that it is clear that Mr Waterstreet lacked the insight to remove the material. In other words, he did not appreciate that having that material present on a website in his name is inconsistent with the changes he needs to make in the content of his communications with people, individually and collectively, in order to comply with the Uniform Barristers Rules.
Mr Waterstreet's conduct in seeking to employ a PA or young solicitor or student with legal experience to assist him in Stage 1 was, the Council submitted, a further demonstration of his lack of insight into the allegations against him.
The comments by Mr Waterstreet in "The Stick Up" podcast set out at [34] - [36] above were, the Council submitted, further evidence that Mr Waterstreet has not gained adequate insight into what behaviour is capable of being sexual harassment.
The Council submitted that, whilst Mr Waterstreet appeared to be committed to having his bipolar II disorder treated, his lack of insight as to why the behaviour found proven was unacceptable and his lack of apparent understanding of the importance of maintaining integrity in the profession continued to be of concern.
As we have said, both Dr Sippe and Dr Ryan concluded their letters to Mr Waterstreet's solicitors by saying that they considered that Mr Waterstreet is now fit to resume practice as a barrister. The Council submitted that those statements should be disregarded, firstly because they are outside of the psychiatrists expertise and secondly because they lack a proper basis.
The Council, in its written submissions, said that the following emerged from the oral evidence of the psychiatrists: a. Aside from how the Respondent presents clinically during consultations, both practitioners remain exclusively reliant on his self-reporting of the Respondent as to his history and his compliance with treatment; b. Dr Ryan and Dr Sippe do not consult with each other concerning the treatment plan or progress of the Respondent. This was the case notwithstanding Dr Ryan held concerns about dexamphetamine being prescribed to the Respondent by Dr Sippe; c. Neither practitioner has consulted with a single legal colleague of the Respondent; d Dr Ryan has administered 'brain training' to the Respondent. An expected outcome of 'brain training' is to 'improve his awareness, attention and the enhancement of nuanced responses to contexts'. When asked by senior counsel for the Applicant how long this brain training is likely to be necessary in the case of the Respondent, Dr Ryan said it is 'indeterminate'; e. Dr Ryan gave evidence that when the Respondent is depressed, he loses contact (albeit temporary) with the Respondent. Senior Member Dixon asked Dr Ryan during the course of the Stage Two hearing how many depressive occasions have there been in recent times, to which Dr Ryan responded with words to the effect of "there have been a number of episodes in the last six months. They are becoming less frequent but there have been multiple"; f. When Dr Ryan was asked by senior counsel for the Applicant how long the Respondent is likely to require treatment the answer given was 'ongoing'; …
The Council made the point that neither Dr Ryan nor Dr Sippe was provided with the Conduct Rules or any other information about the role of a barrister. Dr Sippe was unaware that barristers could only practice as sole practitioners.
Dr Ryan conceded that he prepared a draft report which did not make any conclusion as to Mr Waterstreet's fitness to work as a barrister, but that Mr Waterstreet's solicitors asked him to add a paragraph on that topic, and he did so. Dr Sippe also provided a draft report with no conclusion as to Mr Waterstreet's fitness to work as a barrister. He agreed that he had attended a conference with Mr Waterstreet's solicitors the day after he had provided his draft report, but he denied that anything said at that conference prompted him to add the concluding paragraph to his draft report.
The Council submitted that the psychiatric evidence adduced in Stage 2 "lacked impartiality". It did not engage with the online material or with Mr Waterstreet's lack of insight into the proven conduct.

The Respondent's submissions

The submissions on behalf of Mr Waterstreet submitted that the principles to be applied in determining the appropriate protective orders include the following: (a) the protection of the public is of paramount importance; (a) the need to maintain high standards of the profession [sic]; (b) deterring not only the particular practitioner but others who may stray from the appropriate standards and serving as a reminder to the profession; (c) protecting the public from further wrongdoing by the practitioner; and (d) emphasising the unacceptability of the conduct involved.
It was submitted that, while disciplinary proceedings are sui generis (Weaver v Law Society (1979) 25 ALR 359 at 363) and the objective of such proceedings is protective and not punitive, nonetheless, some guidance "can be taken from certain well-established principles of criminal sentencing law". The following passage from Council of the New South Wales Bar Association v EFA (a pseudonym) [2021] NSWCA 339 ('EFA') was relied upon: 195. The question for this Court is what measure is called for to mark the Court's intolerance of conduct of the kind in question and to convey its intolerance to others who might be tempted similarly to engage in conduct that is demeaning to women and perpetuates unacceptable attitudes. We consider that, notwithstanding (as we have already mentioned) that the objective of disciplinary orders is protective and not punitive, some guidance may be taken from two well established principles of sentencing law: (i) proportionality and (ii) weight that may be given to extra-curial punishment. It is appropriate to note the level of extra-curial punishment (in some respects going far beyond any action the Court could take) that has already been visited on the respondent. This includes: • notwithstanding the non-publication orders, a level of public notoriety and humiliation; • a four year period of anxiety, while the Council's investigations proceeded; • a further period of anxiety since the filing of the Council's appeal; • severe impact on the respondent's mental health, detailed in the reports of Dr Bowers and Dr Nielssen; • the termination of the respondent's marriage and disruption to his family; • a very significant quantifiable cost resulting from the variation in the terms of the respondent's policy of professional indemnity insurance for 2022, with an unquantifiable potential penalty in forthcoming years (already, the annual cost has dwarfed the maximum fine this Court could impose); and • an unquantifiable but real and significant impact on the respondent's practice.
It was noted that "general deterrence" is also a concept common to both disciplinary proceedings and criminal sentencing (see EFA at [77]).
The respondent submitted that it followed that the concept of moral culpability, which is applicable in criminal law sentencing, is relevant in these proceedings for the purpose of assessing an appropriate protective order. The following statement in Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194 at [177] was referred to: 177 Where an offender is suffering from a mental illness, intellectual handicap or other mental problems the courts have developed principles to be applied when sentencing: see, eg, R v Engert (1995) 84 A Crim R 67; R v Tsiarias [1996] 1 VR 398 at 400; R v Fahda [1999] NSWCCA 267 at [40] - [48]; Lauritsen v R [2000] WASCA 203; (2000) 114 A Crim R 333 at [43] - [51]; R v Harb [2001] NSWCCA 249 at [35] - [45]; R v Israil [2002] NSWCCA 255; R v Hemsley [2004] NSWCCA 228 at [33] - [36]; R v Verdins [2007] VSCA 102 at [32]; Courtney v R [2007] NSWCCA 195 at [14]-[18]; and R v Henry [2007] NSWCCA 90 at [28]. They can be summarised in the following manner: ● Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28]. ● It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50 - 51; Israil at [22]; Pearson at [42]; Henry at [28]. ● It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28]. ● It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192]. ● Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24].
It was submitted that, in these proceedings, "the concept of moral culpability is relevant to the assessment of the weight to be attached to the general and specific deterrence objectives to be achieved by the protective order".
Our findings in the Stage 1 decision with respect to Mr Waterstreet's mental health were relied upon. We found, in summary, that the respondent's undiagnosed and untreated bipolar II disorder was "the dominant causal factor in his offending conduct". It was submitted that Mr Waterstreet's moral culpability was thereby reduced, and that this, in turn, reduced the general and specific deterrence objectives of the protective orders. It was submitted that Mr Waterstreet, in the circumstances, was not an appropriate person to make an example of for the profession generally.
Mr Waterstreet's statements about his insight, his acceptance of the findings in the Stage 1 decision and his expression of deep regret were relied upon. His determination to continue treatment for his bipolar II disorder and his understanding that failure to maintain treatment could result in further swings between depression and mania were also relied upon.
In his submissions, Mr Waterstreet relied upon the material from Mr Ramage KC, Mr Lloyd KC and Ms Swan as attesting to his good character. He also relied upon his services to the profession by undertaking cases for Legal Aid, the Aboriginal Legal Service and Civil Liberties Societies. He also pointed to the considerable volume of pro bono work he had undertaken.
It was proposed that the Tribunal reprimand Mr Waterstreet under s 299(1)(b) and s 302(1) of the Uniform Law and recommend that conditions be imposed upon his registration. Detailed draft conditions were provided.
Subsequently to the exchange and filing of written submissions, Mr Waterstreet sought a further oral hearing. This was convened on 25 November 2024.
An affidavit of Ms Shaw dated 6 September 2024 was tendered. Ms Shaw had researched the Bar Association's policy on 'Returning to the Bar'. The policy provides that, where more than two years have elapsed since the expiry of a person's last barrister's practising certificate, that person "must undertake the NSW Bar Examination and complete the Bar Practice Course and the Reading Program". There is provision, in the 'Exemption Policy' for the requirements to be waived, but the Exemption Policy says that waiver of the requirements will occur "only rarely, and in compelling circumstances".
It was argued for Mr Waterstreet that the Tribunal ought to take into consideration the fact that there would be "significant barriers" to Mr Waterstreet's return to practice as a barrister, quite apart from whatever protective orders are made. The requirement to sit (and pass) the NSW Bar Examination, complete the Bar Practice Course and the Reading Program are among these 'barriers', and the need to obtain professional indemnity insurance may also be a 'barrier'. The time that elapsed between the making of the complaints on 21 February 2018 and 25 February 2018 and 28 February 2019, and the present, was highlighted. No criticism was levelled at anyone for that delay, but the fact of it was characterised as extra-curial punishment.
It was argued that the processes of the investigation and hearing of the disciplinary complaints have brought with them extra-curial punishment similar to the extra-curial punishment found to be present in EFA, where the Court said, at [196], that the conduct complained of "needs to be seen in proportion to what the conduct has already cost the respondent in personal and emotional, as well as financial, terms". It was submitted that it is self-evident that the delays at various stages would have caused Mr Waterstreet some anxiety.

Consideration

We bear in mind that disciplinary orders under the Uniform Law are to be considered in relation to the circumstances as they are at the time that the orders are made (see Prothonotary v Del-Castillo [2001] NSWCA 75 at [71]).
In considering the psychiatric evidence, we note, as we noted in Stage 1, that Dr Ryan and Dr Sippe, as Mr Waterstreet's current treating psychiatrists, are not independent expert witnesses. The only independent expert psychiatrist whose evidence is before us is Dr Martin, and his evidence is relevant to the task of crafting the appropriate disciplinary orders. We summarised Dr Martin's evidence at [349] to [356] and considered it at [357] to [369] of the Stage 1 decision.
The disciplinary orders to be made must be considered in the context of the proven unsatisfactory professional conduct and professional misconduct and the background to that conduct. Dr Martin said the following (among other things) in relation to the background to the conduct (see the Stage 1 decision at [357]): Mr Waterstreet has profound psychological difficulties manifesting with severe mood dysregulation, disinhibition, disorganisation and an impaired sense of interpersonal boundaries that have clearly affected his behaviour. In my opinion, it is likely that historical substance use and an apparent preoccupation with sexual themes have probably represented attempts to self-regulate his underlying emotional instability, but with harmful results. … …In my view, the picture of hyper-sexuality and disinhibition, talking excessively, being expansive and over-familiar, together with apparently reckless spending to the point of financial and professional harm, are consistent with significant mental illness [bipolar disorder] especially when taking into account his history of psychiatric/psychological treatment. … …The totality of evidence suggests that there has been a long-term pattern of problems with maintaining appropriate boundaries and functioning in intimate relationships. The general picture is one of background chaos, even while he was able to work as a barrister and in other fields such as writing. In my view, the problematic behaviour is so extreme as to be strongly suggestive of a poorly controlled mental illness. In my view, mood disorder has been the predominant problem, which has been superimposed on the background of early development loss/attachment disruption, complicate by prior substance use and a chaotic lifestyle. …
In the Stage 1 decision, we said, at [367]: 367. It seems to us that the conduct alleged in the complaint which has been proven was a product of Mr Waterstreet's then undiagnosed, and therefore poorly controlled, bipolar II disorder, in combination with being an expression of some of his personality traits, such as his desire to entertain, his self-centeredness and his tendency to prioritise his own needs over the needs of others. Hypomania is expressed differently in different people.
Having recognised that certain of his personality traits had played a part in his unsatisfactory professional conduct, we found, in Stage 1, that Mr Waterstreet's bipolar II disorder, which, at the time of his proven offending was undiagnosed and therefore poorly controlled, was the dominant causal factor in his offending conduct.
Mr Waterstreet's unsatisfactory professional conduct occurred from 23 September 2014 to the end of June 2015 with respect to C1, on 20 September 2017 with respect to C2 and on 22 February 2019 with respect to C3. It is noted in the psychiatric evidence that the hyper-sexuality, disinhibition, impaired sense of interpersonal boundaries and other issues displayed by Mr Waterstreet are long-standing. We note that aspects of the offending involved the long-standing presence of items in Mr Waterstreet's chambers that would not usually be expected to be found in a barrister's chambers, namely a drawing of a penis and a sex toy. The background to the complaint of C2 was a chaotic meeting at which Mr Waterstreet was, perhaps performatively, trying to conduct an interview, collaborate with a client and give advice to a solicitor simultaneously. Mr Waterstreet's interactions with other people, including in a professional setting, have been shaped by his bipolar II disorder for many years, as well as being an expression of some of his personality traits.
We bear in mind that the Uniform Law confers upon the Tribunal, in s 302, the power to make "any order that it thinks fit", including the orders listed in s 302 and the orders listed in s 299 of the Uniform Law.
The objectives of disciplinary orders under the Uniform Law are: 1. The protection of the public against further misconduct by the legal practitioner the subject of the proceedings; 2. The protection of the public from similar defaults by other barristers (general deterrence); 3. To reflect the gravity of the conduct the subject of the proceedings in order to enhance the confidence of the public in the integrity of the profession. (see New South Wales Bar Association v Evatt (1968) 117 CLR 177 ('Evatt'), Ex parte Macaulay (1930) 30 SR (NSW) 193 at 193-194, EFA and de Robillard.)
The question of insight was the subject of much discussion in the Stage 2 hearing. In Evatt, the High Court said: The Court did regard certain matters as extenuating circumstances but none of them really bears upon the vital issue, viz. whether the findings of misconduct, which were made, proved the unfitness of the respondent to be a barrister. The Supreme Court thought, moreover, that as the exercise of its disciplinary powers was, to some extent, a punishment for wrongdoing, mercy might be shown towards a young man who had not understood the error of his ways. The power of the Court to discipline a barrister is, however, entirely protective, and, notwithstanding that its exercise may involve a great deprivation to the person disciplined, there is no element of punishment involved. This has already been pointed out by this Court in Clyne v. N.S.W. Bar Association [1960] HCA 40; (1960) 104 CLR 186, at pp 201, 202 . The respondent's failure to understand the error of his ways of itself demonstrates his unfitness to belong to a profession where, in practice, the client must depend upon the standards as well as the skill of his professional adviser. (at p184)
We do not find that Mr Waterstreet is permanently unlikely to be fit to practise as a barrister.
In considering whether Mr Waterstreet is presently fit to resume practise as a barrister, we must be satisfied that he is not at risk of behaving in the same, or a similar fashion, as he behaved towards the three complainants in this matter, and that his conduct generally will not put his clients and other people he will encounter in the course of practice at risk, and will not diminish the confidence of the public in the legal profession.
By the time of the Stage 1 hearing, Mr Waterstreet demonstrated that he had clearly understood that his behaviour towards C3 had upset her very much, and he was ashamed of the way that he had behaved.
Mr Waterstreet's attitude with respect to his behaviour towards C1 and C2 had not evolved to the point where he was demonstrating insight to a significant extent at the Stage 1 hearing. By the time he gave evidence at the Stage 2 hearing, however, he was able to say that receiving the diagnosis of bipolar II disorder in early 2022 and then reading the draft Stage 1 decision had given him some insight and caused him to regret his conduct towards C1 and C2 (see [56]-[57], above). Mr Waterstreet indicated that he had been surprised that some of his conduct constituted sexual harassment, and said that he had thought, in 2014 and 2015, that whether or not conduct constituted sexual harassment depended upon the subjective intentions of the accused harasser, rather than the subject of the harassment (see [75], above).
We take into account the evidence of Mr Ramage KC, Ms Swan and Mr Lloyd KC. We note, however, that years have elapsed since any of those practitioners worked with Mr Waterstreet. The character evidence has little weight in assessing Mr Waterstreet's present fitness to practise as a barrister.
The evidence of Dr Sippe and Dr Ryan is that the respondent's present psychiatric treatment is more appropriate for him than the treatment he was receiving prior to 2022. Both treating doctors agree that a mood stabiliser and an anti-depressant are necessary medications. The treating doctors do not agree that Dexamfetamine is appropriate on a long-term basis. Dr Sippe thinks that it is appropriate. Dr Ryan thinks it would be better if it were ceased, though the issue is not urgent. Dr Ryan would, by now, have taken over Mr Waterstreet's care upon Dr Sippe's retirement. Dr Ryan, Dr Sippe and Dr Martin all say that psychiatric treatment will be ongoing indefinitely.
Dr Ryan observed that Mr Waterstreet was quieter, calmer and more appropriate than he was in 2022. However, Dr Ryan gave evidence on 12 August 2024, and had not seen Mr Waterstreet since 21 May 2024, partly on account of Mr Waterstreet's fall and hospitalisation. Dr Ryan also gave evidence that he sometimes loses contact with Mr Waterstreet when Mr Waterstreet is depressed, and that Mr Waterstreet has suffered multiple bouts of depression over the six months prior to 12 August 2024.
In Dr Ryan's opinion, brain training and treatment for sleep disorder and gut disorder are important components of Mr Waterstreet's psychiatric treatment. On the evidence before us, there has been one session of brain training. Mr Waterstreet was hospitalised for some weeks in 2024, which, among other things, interrupted the treatment. Dr Ryan said that financial constraints have prevented the treatment for sleep disorder and gut disorder from progressing. We note that Dr Ryan has been treating Mr Waterstreet since January 2022.
Dr Ryan also said that psychotherapy will be an important part of Mr Waterstreet's treatment. He said that psychotherapy has only been embarked upon "superficially" to date.
Much of Dr Ryan's opinion was based upon his optimistic assessment of what could be achieved in the future by the treatment he recommends, including the treatment for sleep disorders and psychotherapy.
We take into account Dr Ryan's oral evidence and his letter of 3 June 2024, except for paragraph 24, which is clearly not within his area of expertise. Dr Ryan has no training or experience in what being a barrister entails. Experience as a witness, even an expert witness, does not qualify Dr Ryan to assess whether a person is fit to be a barrister.
Dr Sippe said that the hypomania he observed in Mr Waterstreet in 2022 had not reappeared, but he has noticed slight mania from time to time.
As with Dr Ryan, we do not take into account the conclusion Dr Sippe set out at paragraph 23 of his letter of 5 June 2024. Dr Sippe does not have the expertise to express the conclusion he expresses in that paragraph. We take into account the balance of Dr Sippe's written and oral evidence.
In his report of 6 March 2024, Dr Martin said (p 26 at e and f): e. …In short, Mr Waterstreet requires a combination of medication and psychotherapy, and support around his social situation [eg accommodation issues, isolation]. In my view, if he were to engage in such treatment regularly, his level of function could significantly improve across a range of domains. In my view, he requires treatment for the foreseeable future. His presentation is clearly chronic and enduring. f. His prognosis can probably best be considered guarded. The prognosis would be dependent in part on his active and regular engagement with clinicians and following appropriate plans. If he does not engage in appropriate treatment, his prognosis is poor…Currently, his treatment appears somewhat haphazard and I was unable to ascertain that he was engaged in appropriate therapy or taking medication as recommended. As noted above, if he is adherent with recommended, assertive and regular treatment, there is a good chance of significant improvement in his level of functioning across various domains.
On the evidence, Mr Waterstreet has a considerable way to go with respect to his psychiatric treatment, and his own reflections on his conduct, before we can be confident that the risk of him engaging in sexualised conduct, including sexual harassment, has been reduced to an acceptable degree. His hypersexualised behaviour and conversation is of very long-standing. His comment in The Stick Up podcast indicates that his conversation is still, to some extent, apt to revert to sexualised topics and to sexually objectify people in the process. His reference to getting into trouble for "slips of the tongue" and his characterisation of himself as "politically incorrect" show his inclination to minimise the findings against him. His posting on X of the picture of a man in a mankini shows that he is still inclined to think that, if he finds something funny, it cannot also be sexually harassing or fat shaming. His joking in The Stick Up podcast about not being politically correct is part of his tendency to minimise such movements, showing that he does not recognise that they exist to focus attention on the hurtful impact of "incorrect" behaviour upon the people targeted by that behaviour.
As to the text on the waterstreetdocumentary.com website (see [29], above), we accept that Mr Waterstreet did not write that text, but he was involved in the creation of the website, knew of its contexts and took no steps to correct it. Although he said, in cross-examination, that he was in support of the #metoo movement, Mr Waterstreet also said that the #metoo movement had contributed to his current situation in that he was "targeted by a small online publication" which is a reference to the complaint of C2. Mr Waterstreet is still quick to deflect blame from himself. In deflecting blame to #metoo or "political correctness", Mr Waterstreet avoids facing up to the fact that three young women who he sexually harassed experienced enduring adverse impacts from his behaviour, in all cases psychologically and in one case financially. The objective of laws and rules prohibiting sexual harassment is not to spoil the fun of people who enjoy sexualising the workplace. The objective is to make workplaces safer for those who work there, many of whom do not wish to be subjected to, and may be traumatised by, sexualised behaviour and conversation and sexual objectification at work. A barrister's chambers should be a safe workplace.
Mr Waterstreet has come some way towards gaining insight into his behaviour, and its effect on other people, but he has a considerable way to go. Insight is the first step. The next step is for him to change his behaviour.
Disciplinary orders must address the need to protect the public, including co-workers and clients, against further misconduct by Mr Waterstreet. We bear in mind that Mr Waterstreet has a limited but still relevant disciplinary history (see [39]-[41] above).
In the context of the protection of the public from similar defaults by other barristers, and the marking of the seriousness of Mr Waterstreet's conduct, it was submitted that the attribution of his conduct to bipolar II disorder reduced the need to consider these objectives when arriving at disciplinary orders. It was argued, as we have set out above at [158] - [159] that the concept of "moral culpability" in the sense that it is relevant to sentencing in criminal matters, should be applied to disciplinary orders.
Part of the purpose of a sentence in a criminal matter is to punish the offender. The law is clear that punishment is not one of the objectives of disciplinary orders, although it is acknowledged that a disciplinary order may have a punitive collateral impact. For that reason, "moral culpability" has no part to play in arriving at disciplinary orders, except to the extent that it has been a factor in assessing the seriousness of the conduct in Stage 1.
As we have said, above, we found, in Stage 1, that undiagnosed and untreated bipolar II disorder was the dominant causal factor in Mr Waterstreet's offending. We made it clear that it was not the only factor, and that some of his personality traits also played a part. There remains a need to mark our disapproval of sexual harassment and conduct likely to diminish public confidence in the legal profession and to acknowledge the seriousness of such conduct.
The factors of proportionality and weight must be taken into account, in accordance with EFA.
We have regard to the matters affecting Mr Waterstreet which have been experienced by him as extra-curial punishment, namely:

Unfavourable public notoriety and humiliation,
A period of anxiety from the time that he learned of the first complaint to the present,
As a practical matter, an inability to apply for a practising certificate from the time that he was discharged from bankruptcy on 14 March 2021,
A diminution in his capacity to earn an income.

In considering proportionality, we take into account that the separate incidents of sexual harassment were not, individually, at the higher end of the scale of that kind of conduct. Taken together, however, they assume greater severity as a course of conduct over a period of years. In the case of each of C1 and C2, the conduct was directed at a young woman working in a barrister's chambers in which Mr Waterstreet was in the position of authority. In the case of C3, the conduct was directed at a young woman, who was not known to Mr Waterstreet, going about her working day. The conduct, which constitutes a breach of the Conduct Rules because it was likely to diminish public confidence in the legal profession, is towards the more serious end of that kind of conduct, because it is conduct of a character which has no place in a barrister's practice.
Both Dr Sippe and Dr Ryan have been treating Mr Waterstreet since January 2022. The medication prescribed has been beneficial, to the point where hypomania has not been evident at Mr Waterstreet's appointments, though a degree of mania has been observed. Quite frequent bouts of depression still occur. Psychotherapy has yet to progress beyond the superficial. Mr Waterstreet has gained some insight into his behaviour, but only recently, and he still tends to minimise the seriousness of the allegations against him. He has missed appointments with his psychiatrists, for various reasons. Dr Ryan, Dr Sippe and Dr Martin all believe that a commitment to ongoing treatment is critical to his ability to practice. We are not satisfied that Mr Waterstreet is presently capable of changing, in a sustained way, the habits of many years in the personal interactions in which he would have to engage whilst practising as a barrister. We are not satisfied that the public would be adequately protected were Mr Waterstreet able to apply for a practising certificate in the immediate future, even taking into account the time it would take him to undertake the pre-requisite steps.
We will make an order allowing Mr Waterstreet to apply for a practising certificate in one years' time. A year should be long enough for him to demonstrate that he is capable of engaging in psychiatric treatment on a sustained basis and making progress with improving his insight and changing his behaviour.
We were invited to set out the conditions under which a practising certificate might be given to Mr Waterstreet in the future. We decline to do that, because the Council will be in the best position to craft appropriate conditions when the need arises.

Costs

The parties agree that the Council is entitled to an order for costs in relation to the substantive Stage 1 and Stage 2 proceedings.
A number of interlocutory hearings were conducted in the course of this matter. On 7 August 2024, Judge Cole heard an application in which the respondent claimed legal privilege in respect of eleven documents produced by Dr Sippe in response to a summons issued on the application of the applicant on 21 June 2024. The outcome of the hearing was that nine documents were held to be covered by legal professional privilege and two were not. One of the two which was not was the draft report of Dr Sippe. Much of the argument at the hearing related to Dr Sippe's draft report.
The respondent argued that costs should follow the event, and asks that we order that the Council pay 80% of the respondent's costs of the privilege application, and the respondent pay 20% of the Council's costs of that application.
The power to award costs is conferred by s 303 if the Uniform Law, which provides: 303 Costs (1) The designated tribunal must make orders requiring a lawyer whom it has found guilty of unsatisfactory professional conduct or professional misconduct to pay costs (including costs of the designated local regulatory authority and the complainant), unless the designated tribunal is satisfied that exceptional circumstances exist.
We do not consider that partial success in the application described above at [204] constitutes "exceptional circumstances" within the meaning of s 303 of the Uniform Law (see Council of the New South Wales Bar Association v BRJ (No 2) [2015] NSWCATOD 140 at [22]). No other "exceptional circumstances" have been argued.
We will make an order that the respondent pay the Council's costs.

Orders

The following orders will issue: 1. Mr Waterstreet is reprimanded pursuant to s 299(1)(b) and s 302(1) of the Legal Profession Uniform Law (NSW). 2. Mr Waterstreet may not apply for an Australian practising certificate before the end of one year from the date of these orders. 3. Mr Waterstreet is to pay the costs of the Council of the New South Wales Bar Association to be agreed or assessed.

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: 15 January 2025

At a glance

Court

Decision date

Source

Judgment (22 paragraphs)

Parties

Cases Cited (26)