HJJ v Council of Law Society of New South Wales [2025] NSWCATOD 150;

1. The Applicant seeks an order from the Tribunal that the Decision be set aside and the complaint dismissed.

1. The material relied upon in support of the application consists of:

(1) A folder of documents lodged by the Respondent pursuant to the requirements of s 58 of the ADR Act.

(2) The affidavit of the Applicant, dated 20 December 2024 (marked as Exhibit B). There was no objection to the affidavit. The affidavit was tendered and the Applicant was cross-examined by counsel for the Respondent.

1. From Exhibit B it is relevant to record the following:

(1) The Applicant was present at the directions hearing on 15 April 2019 before Lindsay J. He did not take a note of the hearing and it is his clear recollection that during the hearing, Lindsay J stated, words to the effect: "There is no doubt that Ms X has capacity, what we don't know is whether she will continue to have capacity" ( paragraph 9 of Exhibit B).

(2) At the time the Letter was written (15 May 2019) the Applicant did not have a copy of the transcript of the directions hearing held on 15 April 2019 but the Letter reflected the Applicant's recollection of what His Honour had said ( paragraph 13 of Exhibit B).

(3) By letter of 21 May 2019 Mr McGruther wrote to the Applicant and to Zucker Legal stating that in his view, the costs assessment should proceed unless there is an order or a direction of the Supreme Court directing that the assessment be stayed or unless both representatives inform him of their mutual agreement that the assessment be stayed (paragraph 17 of Exhibit B).

(4) In July 2019 the Applicant caused a request for the transcript of the hearing on 15 April 2019 to be obtained and that transcript was received by the Applicant on 23 July 2019 ( paragraphs 24 and 25 of Exhibit B).

(5) At paragraph 26 the Applicant states: "On or around 1st August 2024, and after having myself reviewed the Transcript, and not locating within it the precise statement I believed His Honour to have made on 15th April 2019, I caused my solicitors, YPOL Lawyers, to request the audio recording of the directions hearing on 15th April 2015". The affidavit also states that the Applicant subsequently learnt that no audio recording remained available.

1. The transcript of the directions hearing held on 15 April 2019 is exhibited to Exhibit B. The transcript reveals that there was a discussion about the report of the court appointed expert, Professor Watson, who had provided an opinion about the Client's capacity. The following extracts from the transcript are relevant :

(1) "His Honour: The difficulty I have with the report which I have mentioned it is that on one reading it actually says there is no problem with capacity. But it is conditional. So on the last occasion the proceedings were stood over so that Mr Condon's side at the very least could work out what if anything they want to do with that" - P1 L44-49.

(2) His Honour later states his impressions of the report, including the following concerning the Client: "The medical report which I have not looked at since last time seems to say well, she's got that intellectual capacity but whether she is able to manage her affairs in the future depends upon whether she can endure the pain and what the other medical considerations are. Now it is a highly unusual case, but at the end of the day, we have to look at all of it" - P2 L18-22.

(3) The transcript then states that Mr Ashurst SC (for the Client) states: "We would say it is reasonably clear that she currently has capacity. There is a question as to what may occur in the future, but there is no doubt that she currently has capacity" - P2 L24-27.

(4) Then His Honour says in response: "The problem with that is that the protective jurisdiction, when you look at questions of capacity and the protective jurisdiction, it is involved with not only the here and now but the future and there is an element of risk management. At the end of the day you might be entirely right but it is that area that I think we need at least to hasten slowly with" P2 L29-34.

(5) The transcript then states that Mr Ashurst seeks a hearing date for the hearing of the Notice of Motion. His Honour asks whether that is to do with capacity and Mr Ashurst answers in the affirmative.

1. During his cross-examination the Applicant disputed the accuracy of one aspect of the transcript. As quoted above the transcript attributes to Mr Ashurst the following sentence: "There is a question as to what may occur in the future, but there is no doubt that she currently has capacity" (P2 L26-27). The Applicant stated that his recollection was that those words were the words of His Honour and not the words of Mr Ashurst.

1. In the following paragraphs we summarise the Applicant's written and oral submissions.
2. The Applicant submitted that in making the request for a pause of the costs assessment proceedings the Applicant set out his honest understanding of what Lindsay J had said about the Client's capacity at the directions hearing on 15 April 2019. It was reasonable for the Applicant to focus on the Client's current capacity to manage her own affairs, not the future position. Although the Letter was written without the Applicant having the benefit of the transcript, the transcript generally accords with the Applicant's recollection. There was no doubt expressed that the Client had capacity in the "here and now" (to adopt the language of Lindsay J). Rather, the question was whether the Client could maintain that capacity in the future. The Applicant submitted that there is no legitimate basis to criticise him for understanding Lindsay J's comments in the way that he did.
3. The Letter was copied to the solicitors for the NSW Trustee and Guardian and they did not suggest anything in the Letter was inaccurate.
4. Further, the Letter came before Lindsay J subsequently in connection with an application to the court to have the costs assessment stayed. No one, including Lindsay J, suggested that anything in the Letter was inaccurate.
5. The Applicant submits that his conduct was appropriate and did not fall short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The Decision should therefore be set aside.
6. The Applicant's submissions state that the particulars of the complaint against him are opaque as to whether it is alleged that the Applicant intentionally sought to mislead the costs assessor by making the statement contained in the Letter. This would have required the Respondent to be satisfied that the Applicant knew that the statement was inaccurate but nevertheless made that statement to induce the costs assessor to stay the costs assessment.
7. The Applicant's submissions state that the reasons contained in the Decision are also opaque as to whether intentional conduct is alleged. The Decision states in one place that the Applicant was aware that the Client's capacity was the subject of conflicting medical opinion and in another place states that it should have been apparent to him that his statements had the capacity to mislead the costs assessor. However, the allegation is put, it cannot be made good for the following reasons.
8. First, the Applicant recalled that at the directions hearing on 15 April Lindsay J said words to the effect: "There is no doubt that [the Client] has capacity, what we don't know is whether she will continue to have capacity".
9. Second, the Applicant was not reporting a finding made in a published judgment or a conclusion following argument. He was reporting a comment - something "noted" - at a directions hearing. His report was self-evidently his own understanding of the aspects of what the judge had said that were relevant to the stay of the Costs Assessment.
10. Third, it is necessary to have regard to the broader context in which the impugned statement was made. The statement was one of several propositions advanced in the Letter in favour of the position that the costs assessment should be stayed. None of the other statements made in the Letter is criticised. In the same Letter the Applicant stated that Professor Watson's report included a finding that the Client "has full capacity". The Applicant submitted that neither the complainant nor the Respondent has ever suggested that this statement was in any way inaccurate or misleading. That statement is entirely consistent with what the Applicant understood to be the material part of Lindsay J's comments.
11. Fourth, the Applicant's understanding of the position in relation to the Client's capacity was also consistent with the views previously expressed by other medical experts, and Professor Watson's opinion, as the court appointed expert, was in line with what the various other experts had concluded about the Client's capacity. In this regard, it is unclear on what basis the reasons contained in the Decision found that the Applicant was aware that the Client's capacity was the subject of conflicting medical opinion - see [188] of the reasons.
12. Fifth, the Applicant submits that what His Honour is recorded as saying is consistent with the Applicant's understanding. In particular, His Honour stated that it appears that the Client currently had capacity but that she may encounter difficulties in enduring pain in the future which may affect her capacity at that stage.
13. Sixth, the Letter was copied to the NSW Trustee and Guardian and tendered at a later hearing before Lindsay J. No objections were raised by any party or His Honour in relation to the accuracy or completeness of the statement made in the Letter.
14. Seventh, the Applicant refers to his letter to Mr McGruther on 21 May 2019 in which he stated that the opinion of Professor Watson was that the Client had capacity to manage her own financial affairs and added "That is the very issue to be tried in the proceedings." The Applicant states that he was straightforward with Mr McGruther noting that the question of capacity had not yet been finally determined.
15. The Applicant's submissions go on to state that there is nothing in the Letter which would suggest that there was any real possibility of Mr McGruther being misled.

1. In the following paragraphs we summarise the Respondent's submissions.
2. The Respondent submitted that it is clear from the portions of the transcript set out earlier in this decision that Lindsay J was of the view that any opinion expressed by Professor Watson concerning capacity was conditional. His Honour also stated that the case concerning the Client was a "highly unusual case". Additionally, when Mr Ashurst SC expressed his view that the report established that there was no doubt that the Client currently has capacity not only did His Honour not endorse that view but disavowed it by saying "the problem with that... when you look at questions of capacity and the protective jurisdiction, it is involved with not only the here and now but the future".
3. The Respondent submits that the only rational conclusion flowing from His Honour's comments was that in the court's view the question of capacity was very much alive. Contrary to that, the Letter stated that His Honour "noted that there was no doubt that [the Client] has capacity".
4. The Respondent further submitted that His Honour did not state or "note that there was no doubt that Ms X has capacity". That impugned statement was inaccurate on its face. The statement was not couched in terms of the Applicant's belief or recollection of what had transpired, but rather as a positive assertion.
5. The Respondent submitted that the Applicant's impugned statement regarding what His Honour purportedly "noted" concerning Ms X's capacity did not provide a fair and accurate account of what had in fact transpired at the directions hearing or of the observations made by Lindsay J.
6. The Respondent further submitted that it is unclear how the Applicant could have reasonably formed the understanding that he had of what His Honour had said about Ms X's capacity because on a plain reading of the words uttered by His Honour it could not sensibly be suggested that His Honour considered there to be "no doubt" that Ms X has capacity.
7. The Respondent submits that the Applicant's claim that he recorded his honest memory of what His Honour had said needs to be scrutinised more closely given the professional circumstances in which the Letter was written. To the extent that the Applicant contends that it was reasonable to focus on Ms X's current capacity, not the future position, it is relevant that such a contention was expressly disavowed by Lindsay J., yet this consideration was ignored in the Letter.
8. The Respondent further submitted that even if the Tribunal were not satisfied that the Applicant intentionally sought to mislead the costs assessor, the Respondent submits that in authoring the impugned statement, the Applicant was either recklessly indifferent as to the consequences of his actions, or, made a mistake which fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. That is to say, on any view (being intention, recklessness or a mistake) the Respondent submits that the Tribunal would be satisfied that the conduct amounts to unsatisfactory professional conduct. This is because solicitors are rightly held to a high standard of competence and diligence.
9. The Respondent's submissions then turn to a discussion of the meaning of the term "unsatisfactory professional conduct" which is defined in s 296 of the Uniform Law as including "conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer".
10. The test for determining whether conduct is unsatisfactory professional conduct is an objective one. The Respondent submits that taking the Applicant's case at its highest, that being that he relayed to the costs assessor an honest recollection of what was said by Lindsay J it is submitted that the Tribunal would find that such a recollection could not have been reasonably held by the Applicant and that the conduct of authoring the impugned statement falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. As such, a finding of unsatisfactory professional conduct is the correct and preferable decision.
11. The Respondent's submissions consider the nature of a protective order that the Tribunal has power to make under s 314(2) of the Uniform Law. The jurisdiction is protective, not punitive, and is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the legal profession which will continue its good reputation, and so protect not only the future of the profession, but also protect its clients from harm: Youssef v New South Wales Legal and Services Commissioner [2020] NSWCA 285 at [79].
12. In determining the appropriate protective orders to make, it is open to the Tribunal to take into account a range of factors that emerge from the material before it. The principal (but not exclusive) considerations relevant to that decision include the gravity of the misconduct, the deterrent effect of any protective order on the future conduct of the practitioner, the deterrent effect of any protective order on the conduct of other practitioners and the enhancement of confidence in the public in the integrity of the profession (Law Society of New South Wales v Maharja [2017] NSWCAOD 79 at [24]).
13. The Respondent submitted that the decision of the PCC to impose a caution was, and is, appropriate. More severe sanctions are not appropriate primarily based on the fact that the conduct was an isolated incident, and the result of inadvertence on the Applicant's behalf.
14. The Respondent also submitted that the fact that the Applicant has sought to defend his conduct - first before the PCC and now before the Tribunal - by raising the fact that no other party to the proceedings "objected" to the impugned statement demonstrates a lack of appreciation of why his conduct is problematic from a professional standpoint and demonstrates a lack of insight. This reinforces the appropriateness of a caution.
15. Finally, the Respondent's submissions state that the Respondent does not seek an order with respect to costs. The Respondent's submission states that while cl 23 of sch 5 to the NCAT Act and s 303 of the Uniform Law empower the Tribunal to make costs orders where findings of unsatisfactory professional conduct or professional misconduct have been made, those provisions do not apply to these proceedings: Cupac v APL Pty Ltd t/as Adams and Partners [2019] NSWCATOD at [48] and Youssef v NSW Legal Services Commissioner (Costs) [2020] NSWCATOD 115 at [121]- [123].

1. The Applicant's submissions in reply may be summarised as follows:

(1) The Applicant submits that the question before the court was the Client's "capacity" as that concept is relevant to a financial management order under the Guardianship Act. That involves a consideration of whether the client was "capable of managing her own affairs" and that in turn involves a present and a future component. The Applicant submitted that it is an appropriate use of language to say that a person may "have" capacity (in the present tense), even if there is some doubt about possible future matters. The Applicant submitted that it was reasonable to have the understanding of what had been said at the hearing on 15 April involving Lindsay J, noting that the client had capacity and the issue for further determination was whether that capacity might be maintained in the future. His Honour did not suggest that there was any basis on the present state of the evidence to doubt the Client's current capacity.

(2) The Applicant takes issue with the Respondent's submission that Lindsay J "expressly disavowed" the contention of Mr Ashurst SC that there was "no doubt that Ms X has capacity". The question of the Client's current capacity was reasonably considered by the Applicant to be relevant in seeking for the costs assessment to be paused, because such costs assessment was, at that time, contrary to the Client's wishes despite it purportedly being undertaken by the NSW Trustee and Guardian on her behalf.

(3) It is clear that the Applicant was not suggesting to the costs assessor that the court proceedings had been finally determined in the Client's favour as at 15 May 2009. The Applicant was seeking a stay of the costs assessment pending final determination and expressly referred in his letter to the timetable to progress the matter with the final hearing expected in 2019.

(4) The Applicant's submission included the contention that the word "noted" is commonly understood as a reference to something which does not constitute a definitive finding: see Murad v Assistant Commissioner for Immigration and Bordon Protection [2017] FCAFC 73; (2017) 250 FCR 510 at [46].

(5) A difficulty with the Respondent's approach is that it asks the Tribunal to make an assessment of the reasonableness of the Applicant's recollection of the directions hearing on 15 April 2019 and the Applicant's consequent account in the Letter by reference to what the Respondent describes as a "plain reading" of the words uttered by Lindsay J. However, the Applicant did not have the transcript available to him when he wrote the Letter.

(6) The Applicant contends that it is unsurprising that when he wrote the Letter, he was left only with an impression of what was said and it was not unreasonable for him to express himself in the Letter in the way that he did, but it is unreasonable to conclude that his conduct was so patently unreasonable as to constitute unsatisfactory professional conduct.

(7) The Applicant contests the submission of the Respondent that the Letter could have had a serious impact. The Applicant submits that a stay of the costs assessment would simply have avoided significant costs being incurred on a process that the Client objected to where an appeal against the appointment of the NSW Trustee and Guardian as the Client's financial manager was on foot. If the appeal failed, the Costs Assessment could resume.

(8) The Applicant further submissions concern the fact that the other parties to the proceedings did not dispute the accuracy of the Letter. Their silence suggests either that the Applicant's recollection was accurate or that any inaccuracy was not obvious or important to those parties

1. Finally, the Applicant seeks costs on the basis that his conduct was not sufficient to justify the action taken against him. This is, of course, in addition to the order sought to have the Decision and the caution set aside.

1. The task before us boils down to deciding whether the language contained in the Letter constitutes conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. That is the description of unsatisfactory professional conduct contained in s 296, provided that the conduct occurs in connection with the practice of law. That last consideration is not in dispute as the Letter was written by the Applicant in connection with the practice of law.
2. The purpose of the Letter was to persuade the costs assessor that the application for costs assessment be held in abeyance for a period of 12 weeks "so that the present proceedings before the Court may be determined".
3. For the purposes of persuading the costs assessor that it would be appropriate to pause the costs assessment the Applicant stated the following in the Letter:

(1) The Court had appointed an expert to determine the Client's capacity, namely Professor John Watson.

(2) On 12 March 2019 Professor Watson filed his report with the court "with a finding that [the Client] has full capacity".

(3) At the directions hearing on 15 April 2019, Lindsay J "noted that there is no doubt" that the Client "has capacity".

1. The uncontradicted evidence is that the Applicant wrote the Letter based upon his recollection of what had occurred on 15 April before Lindsay J without the benefit of any contemporaneous notes and without the benefit of a transcript of the hearing.
2. In our view, it is relevant that the Letter was written to a person performing an important function, namely the adjudication of costs to be paid by the Client as a consequence of legal services provided and invoices for costs having been rendered by the Applicant. The facts referred to in the Letter (namely, what occurred on 15 April 2025 before Lindsay J) were not within the knowledge of the recipient of the Letter, namely the costs assessor. In our view such a Letter required the Applicant to use language reflective of his obligations to not only be competent and diligent, but also to be accurate in the choice of language used in the Letter.
3. When one turns to an examination of the transcript of what occurred at the directions hearing there is, in our view, a disparity between the language used in the Letter and the language of Lindsay J as recorded in the transcript. These disparities are as follows:

(1) His Honour stated that Professor Watson's report is conditional and whether the Client is able to manage her own affairs in the future depends upon whether she can endure the pain and what the other medical considerations are. It seems to us that the Letter was not justified in stating that Lindsay J "noted that there is no doubt" that the Client "has capacity". There was clearly resistance by His Honour to the submissions of Mr Ashurst SC who sought to persuade His Honour that because the Client had present or current capacity "that really should be the end of the issue" [Transcript p 29-34].

(2) It is clear that His Honour was of the opinion that the protective jurisdiction of the Court required the Court to consider the Client's capacity in the future. However, the Letter stated that His Honour "noted that there is no doubt that the Client has capacity". There is a clear disparity between that sentence in the Letter and what His Honour in fact said, as evidenced from the transcript.

1. The Applicant's submissions state that one should consider the Letter less critically than might otherwise be the case in the light of the fact that the opposing party did not suggest that the Letter was inaccurate and nor did Lindsay J make comment upon the Letter at a subsequent occasion before the Court.
2. Dealing first with the response of the solicitor for NSW Trustee and Guardian, the evidence shows that on 16 May 2019 Zucker Legal wrote to the costs assessor noting receipt of the Letter from the Applicant and attaching a copy of the record of proceedings as published by the Associate to Lindsay J. Zucker Legal put forward the submission that the notations and orders speak for themselves. They further stated that the matter before the Court is whether [the Client] is capable of managing her own affairs and that the medical evidence is but one element of the issues to be considered by the Court. Whilst this Letter does not in terms assert that the Letter was inaccurate, it does imply that the issues before the Court were different to the issue identified in the Letter. Whilst it is true that the Applicant's Letter is not the subject of criticism by Zucker Legal it is also true that Zucker Legal disagreed that the Letter represented an accurate description of the issue before the Court.
3. We do not place any weight on the fact that at subsequent Court proceedings Lindsay J did not make any criticism of the Letter. We do not have a submission that the content of the Letter was put before him for consideration and/or comment or whether, in the context of the subsequent directions hearings, it would have been relevant for His Honour to have made comment upon the terms of the Letter.
4. In our opinion, the Letter did not record an accurate representation of what His Honour Lindsay J had said at the directions hearing and that the Letter had the capacity to mislead the costs assessor.
5. In the absence of a contemporaneous note, or of the transcript, it was not reasonable, in our view, for the Applicant to have written the Letter using language recording what His Honour had said without appropriately expressed qualifications as to the fact that the Letter represented the Applicant's best recollection of what was said.
6. Nor do we think it was reasonable for the Applicant to have formed the view that the words attributed in the transcript to Mr Ashurst ("there is no doubt that she currently has capacity") were recalled by the Applicant to have been expressed by His Honour. That recollection is inconsistent with the clear concerns expressed elsewhere by His Honour as recorded in the transcript. His Honour states that there is more to be considered than whether Ms X currently has capacity. In other words, we do not accept that the Applicant could reasonably have recalled that the words attributed to Mr Ashurst were words that in fact came from His Honour.
7. In short, it is our opinion that the Letter was inaccurate and contained language which was likely to mislead the costs assessor.
8. The Applicant referred to the letter that he wrote to the costs assessor on 21st May 2019 (in response to the letter from Zucker Legal dated 16th May 2019) for the purpose of submitting that he was clear in stating that capacity had not been determined. We do not agree with that submission. That letter states that the other parties wish to put in issue evidence concerning "future matters "and that the Applicant and the Client say that future matters are not relevant. This letter does not undo the misleading nature of the Letter which implied that His Honour's view aligned with the Applicant's view when in fact His Honour had stated that future matters were relevant.
9. We are not satisfied that the Applicant intended to mislead the costs assessor or that he was dishonest. However, we are comfortably satisfied that the Applicant was reckless in the use of language contained in the Letter and that in the circumstances, the issue of the Letter by the Applicant constitutes conduct occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
10. Having determined that we are in agreement with the Respondent's submissions that the correct and preferable decision is to affirm the resolution of the PCC that the conduct of the Applicant constitutes unsatisfactory professional conduct, we turn to the question of what protective order should be made.
11. We are of the opinion that the Applicant's conduct could be fairly described as careless or inadvertent and it involved a single event (namely the issue of the Letter), rather than conduct of a continuing nature. It is also relevant that the costs assessor did not acquiesce in the request made in the Letter but rather determined that the costs assessment should continue. In the circumstances we are of the opinion that the appropriate protective order is a caution and that the PCC was correct to make such an order. In coming to this view, we are mindful of the fact that a member of the public is entitled to expect that a reasonably competent lawyer would be careful not to mislead in correspondence and that therefore a caution would act not only as a deterrent to the Applicant but also act more generally to members of the profession to exercise the appropriate level of care and diligence in the issue of communications.
12. In conclusion, it is our view that the correct and preferable conclusion is that which was reached by the PCC in the Decision. It follows that the Decision should be affirmed. It also follows that the Applicant's request for costs is dismissed.
13. We make the following declaration and orders:

(1) The Applicant has engaged in unsatisfactory professional conduct.

(2) The decision of the Respondent to issue a caution to the Applicant by the resolution of the Professional Conduct Committee of the Respondent on 19 July 2024 is affirmed.

(3) Pursuant to s 64 of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure of the names of the Applicant, the Applicant's client as referred to in these proceedings, or the client's family is prohibited.

I hereby certify that this is a true and accurate record of the reasons for Decision of the New South Wales Civil and Administrative Tribunal.

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.