Law Society of New South Wales v Dib

NCAT Occupational|2018-05-09|Before: Knoll AM

Solicitors: Law Society of NSW (Applicant) Dib Lawyers (Respondent) File Number(s): 2017/00132264

Introduction

Mr Ghassan Dib was admitted to practice as a solicitor in December 1996 and in June 2006 he became the principal of a law practice eventually known as Dib Lawyers. It appears that the practice grew substantially and at its peak employed about 40 people in offices in Bankstown and Parramatta. In more recent times, particularly since about 2014, the size of the practice has reduced anda Mr Dib has remained ceased to be its principal, although he has continued to practise as an employed solicitor of the practice..
Mr Dib was involved in a motorcycle accident in May 2015. He asserts that from about that time he experienced symptoms of post-traumatic stress disorder ("PTSD"), depression and anxiety, and that these disabilities, coupled with the death and illness of family members, reduced his energy and concentration.
Mr Dib asserts that the symptoms persisted throughout the period during which Mr John Michalski, a Trust Account Investigator with the Law Society, undertook an investigation of his practice, which culminated in Mr Michalski's report dated 28 October 2015.
On the basis of that report, the Law Society initiated a complaint against Mr Dib under section s266 (2) of the Legal Profession Uniform Law (NSW) No.16a ("the Uniform Law"). The grounds of complaint were numerous and serious. They included allegations of misappropriation of trust funds, causing a deficiency in a trust account, failure to keep proper trust records and controlled money accounts and failure to pay and a gross delay in paying employees' superannuation entitlements. By a letter dated 31 May 2016 ("the 31 May 2016 Letter"), Mr Knox Sinclair of the Law Society notified Mr Dib of the complaints and his obligations to respond to them and to provide further information. The complaint was covered by a Law Society file, no. 42281. For convenience of reference we shall refer to that complaint as "the primary complaint".

The hearing and relevant statutory provisions

The matter was heard by us in Sydney on 9 May 2018, the earlier hearing date of 25 September 2017 having been vacated on Mr Dib's application to enable him to complete, file and serve an Amended Reply, the medical evidence on which he will rely and any further and related lay evidence. On 25 September 2017 we ordered Mr Dib to pay any costs thrown away by reason of the adjournment, as agreed or assessed.
For convenience of reference, we have set out the statutory provisions relevant to our determination in the Appendix to these reasons

Uncontested facts: the sequence of events and the course of correspondence

Introduction

It appears to be uncontested that the facts summarised below at [15] to [50] represent the sequence of events and the course of correspondence between the Law Society of the one part and Mr Dib or his solicitors of the other in relation to the matters before us. Although the course of events is somewhat complex (if not quite labyrinthine), we think it important to set it out in some detail in order to throw further light on the parties' respective cases and our decisions on the real issues in the matter. In particular, it is necessary to know the sequence of events in order to assess the strength of Mr Dib's assertions of a causal link between his mental illness and his failure to comply with his professional obligations, his extended delay in responding to the section 371 Notice and his assertions as to his misunderstanding of that notice.

The primary complaint and initial delays by Mr Dib

By a letter dated 31 May 2016 ("the 31 May 2016 Letter"), Mr Knox Sinclair, an authorised complaints investigator of the Society, advised Mr Dib of the primary complaints. As noted above, these were serious and numerous and were based on alleged conduct which included trust account deficiencies, breaches of trust account requirements and rules and failure to pay employees' superannuation entitlements. Mr Sinclair attached to his letter a copy of a report by Mr John Michalski, Trust Account Inspector and directed Mr Dib to provide further information and documentation to the Law Society by 21 June 2016. He did not do so. Despite sending a reminder letter to Mr Dib on 8 July 2016, which appears to have extended the deadline for a detailed response to 25 July 2016, the Law Society did not hear from Mr Dib prior to 22 July 2016, when he made telephone contact with the Law Society and left a voice message for Mr Sinclair. Mr Dib and Mr Sinclair first spoke at 4.15 pm on 25 July 2016 (within the extended time for provision of information). In that conversation Mr Dib appears to have commenced by discussing the problems he was having with his software but went on to explain that he had had medical issues, that he could not provide a detailed response within the next two days and that he planned to engage a solicitor through the Senior Solicitors' Scheme. Mr Sinclair told Mr Dib that it could not rely on a telephone call and would require submissions in writing (apparently including submissions regarding any extension of time).
Significantly, as set out in his file note of the conversation (Exhibit AMF1 to the affidavit of Anne-Marie Foord ,at [15]), Mr Sinclair concluded by telling Mr Dib that if he did not receive the information which he had requested in the 31 May 2016 Letter he would: "..require (the) response by Notice."
On 29 July 2016, by fax, Mr Dib sought an extension of 21 days to respond to the 31 May 2016 Letter and identified a senior solicitor with whom he had made contact.

The issuing of the Section 371 Notice

At this stage and certainly by 3 August 2016, Mr Sinclair decided to exercise his right as an Investigator to issue the section 371 Notice. The Notice was sent to Mr Dib with Mr Sinclair's letter of that date. The Notice required Mr Dib to respond in full within 28 days of service (that is by 31 August 2016) or if he was unable to do so, to provide a statutory declaration before that date explaining his inability to do so. The Notice also required Mr Dib's responses to be verified by statutory declaration.
Significantly, in Mr Sinclair's letter of 3 August 2016 which accompanied the Section 371 Notice he said: "When providing your Statutory Declaration responding to the Notice you should also provide your submissions in response as initially advised in my letter dated 31 May 2016. Note, the information requested in the enclosed Notice is in lieu of the information requested on pages 6-9 of my letter dated 31 May 2016."

Mr Dib's further delays and the secondary complaint

There were then further delays by Mr Dib in responding to the 31 May 2016 Letter and to the section 371 Notice.
In late August 2016 Mr Dib appears to have instructed Kent Attorneys to advise and represent him on the matter and there was some correspondence between that firm and Mr Sinclair. In a letter dated 31 August 2016 Kent Attorneys told Mr Sinclair they were instructed that due to illness their client had been unable to respond to the Section 371 Notice and they sought an extension of 28 days until 28 September 2016 to do so. Mr Sinclair replied by letter faxed on 1 September 2016 refusing that request. He pointed out that the Notice had been issued after Mr Dib had failed to respond to a complaint, as requested in the 31 May 2016 Letter and in a follow-up letter dated date July 2016 and in those circumstances the Society required strict compliance with the requirements of the Notice.
By 12 September 2016, having apparently had no further response from Mr Dib or his solicitors, it appeared that the Law Society's patience had expired. On that date the Manager of its Professional Standards Department, Ms Anne-Marie Foord, made the secondary complaint, which asserted that Mr Dib had failed to comply with a requirement under section 371 of the Uniform Law and failed to assist an Investigator. The relevant Law Society file was numbered 42682.
So from this time there were two separate Law Society files which covered the two complaints against Mr Dib: 1. File 42281, covering the primary complaint, initiated under s 266 (2) by Mr Sinclair as reflected in the 31 May 2016 Letter to Mr Dib; and 2. file 42682, covering the secondary complaint, initiated under s 266 (2) by Ms Foord on 12 September 2016.
The secondary complaint was notified and explained to Mr Dib by Mr Sinclair's letter of 15 September 2016. Mr Sinclair sought a response to the complaints by 29 September 2016 to enable the Professional Conduct Committee to consider them fairly. Mr Dib was notified of the availability of the Senior Solicitors' Scheme and was given Complaints Process information.

Responses by Kent Attorneys and Dr Kassar[NOT FOR PUBLICATION]'s report

Kent Attorneys wrote to Mr Sinclair on 16 September 2016 but it appears their letter crossed with Mr Sinclair's letter of 15 September 2016 (which had been sent only to Mr Dib) and in any case that they were not aware of Mr Sinclair's letter by the time they sent their letter the following day. The secondary complaint was not addressed by them. The letter did however indicate that they were : "..endeavouring to obtain instructions and to comply with your request as soon as possible. To date we have not been able to do so due to our client's medical condition."
They attached to their letter a two-page report from Mr Dib's general practitioner Dr George Kassar[NOT FOR PUBLICATION] dated 9 September 2016. That report outlined issues affecting Mr Dib's physical health, but did not make specific mention of any mental health issues being encountered by him. (The contents of medical reports are dealt with in more detail at [87] below.)

Further correspondence 29 September to 11 October 2016

On 29 September 2016 the Law Society received a letter of that date from Mr Dib which confirmed that he had:, "commenced new medication and in the three days I have been taking the medication, I am recovering and feeling much better… I am getting better and stronger healthwise. …The most important thing is that I am now on the road to recovery and am in a position to focus on this."
The letter asked whether 21 days (that is until 13 October 2016) was "an acceptable time for my replied to you". It is not clear if that extension was sought in respect of a response to the primary complaint, the secondary complaint or both. The letter included an apology to the Law Society.
On 4 October 2016 Mr Sinclair responded to Kent Attorneys rather than to Mr Dib personally. He acknowledged receipt of Kent Attorney's letter of 16 September 2016 and Mr Dib's letter of 29 September 2016. Mr Sinclair indicated that any submissions which Mr Dib wished to make to "the complaints" should be received by 19 October 2016. Given the context and the fact that Mr Sinclair's letter showed as his reference the file numbers for both the primary and secondary complaints, it would appear that 19 October 2016 was the new deadline for submissions in respect of both complaints.
On 11 October 2016 Mr Sinclair wrote to Kent Attorneys advising that he did not consider that the Professional Conduct Committee could adequately assess the primary complaint (File 42281) without receiving Mr Dib's response to the Section 371 Notice and therefore he would recommend that the Committee consider only the secondary complaint (File 42682) at its 20 October meeting.

Professional Conduct Committee's resolutions regarding secondary complaint

That recommendation was accepted by the Professional Conduct Committee at its meeting on 20 October 2016. It resolved that Mr Dib be informed: 1. of the issues of professional misconduct which arose from his failure to comply with the Section 371 Notice and his failure to assist the Investigator and; 2. that subject to his submissions, appropriate orders would be sought by referral to this Tribunal, including orders for a reprimand, a fine, a suspension of his Practising Certificate pending his response to the Section 371 Notice, costs and any other orders which the Tribunal deemed fit.
On the same day, 20 October 2016, by a faxed letter Mr Sinclair advised Kent Attorneys of these resolutions and indicated that if Mr Dib wished to make any further submissions of fact or law they must be received by 11 November 2016. It appears that that deadline was not met.
On 30 November 2016 the Law Society received confirmation from Kent Attorneys that they no longer acted for Mr Dib. Apparently in response to that, Mr Sinclair decided to extend the deadline for submissions from Mr Dib. In a letter to him dated 6 December 2016 (which was clearly marked as referring to the secondary complaint) Mr Sinclair noted that Kent Attorneys no longer acted and proposed that the Professional Conduct Committee should reconsider the complaint at its next meeting on 15 December 2016. Mr Sinclair indicated that he would use his best endeavours to ensure that any submissions received from or on behalf of Mr Dib by 4 PM on 14 December 2016 were provided to the reporting member of the Committee.
Then on 9 December 2016 a more detailed letter was sent to Mr Dib by Ms Foord as the Director of Professional Standards of the Society. Her letter encompassed both the primary and the secondary complaints. In essence Ms Foord indicated that because of Mr Dib's delays she proposed to ask the Council of the Society to consider the immediate suspension of his practising certificate and the appointment of a manager to his practice and she invited his submissions before proceeding to do so setting a deadline for submissions of 3 PM on Monday, 19 December 2016. This letter was emailed to Mr Dib's office at 3:33 PM on 9 December 2016.
So, as a result of the Society's letters summarised in the previous three paragraphs, the position was as follows: 1. Mr Dib had been given until 4 PM on 14 December 2016 to respond to Mr Sinclair in relation to the secondary complaint, failing which the Committee would consider resolving to commence proceedings in the Tribunal for professional misconduct arising from his failure to comply with the Section 371 Notice and his failure to assist an Investigator. Mr Dib appears not to have responded to that letter directly to Mr Sinclair and certainly made no response within that extended deadline. He says in his affidavit of 2 August 2017 at [40] that he had formed the view that Ms Foord's letter of 9 December 2016 had ".. surpassed Mr Sinclair's letter and I was no longer required to reply to Mr Sinclair's letter of 6 December 2016…" 1. Mr Dib had been given until 3 PM on 19 December 2016 to respond to Ms Foord with submissions and material as to why the Law Society Council should not consider the immediate suspension of his practising certificate and the appointment of a manager to his practice.

Mr Dib's response of 19 December 2016 and Law Society responses

Mr Dib replied to Ms Foord's letter of 9 December 2016 by email apparently sent on the afternoon of Monday, 19 December 2016. The email included the following statements: "… I am fully cognisant of the serious nature of the allegations against me and appreciate the potential consequences to my practising certificate and to my families (sic) future.. Unfortunately, due to circumstances amounting to a perfect storm, both my physical and mental health deteriorated to the point where I was unable to function to the point that even small tasks appeared overwhelming. The less I was able to achieve the more anxious and depressed I became. ..Until recently I did not have the strength or capacity to address the complaints, I did genuinely try to cooperate with the trust inspectors and was able to clear up a few anomalies but ultimately I became overwhelmed. I have now been properly diagnosed with anxiety and depression and I have been taking medication to deal with the issue. Although I have not been taking the medication for long I have felt an immediate benefit and a new lease on life. I am currently feeling stronger, more confident and more capable than I have felt in years. Today I am in my office going through all of my records in order to answer the questions posed in complaints file 42281".
Mr Dib contended that there was no need to appoint a manager to his practice, because: 1. he was now receiving appropriate treatment for his mental health problems; 2. his practice was much more manageable "having shrunk to one-eighth of its previous size"; 3. he had an employed solicitor with an unrestricted practising certificate to assist him; 4. his wife was also assisting the administrative side of the practice; 5. he had engaged a paralegal to assist with conveyancing matters; and 6. Mr Warren Eacott (who had previously been his book-keeper) was: "…again looking after my trust accounts. I note that during the years Mr Eacott was looking after my Trust account there was (sic) never any significant issues." (Affidavit of Anne-Marie Foord, Exhibit AMF 1 at [145] (Our emphasis).
On those grounds Mr Dib submitted that his practising certificate ought not to be suspended and requested a further extension until "early January 2017 "shortly after the Christmas break" to answer "all the matters raised in the original complaint." He also attached a copy of the report of Mr Tim Watson-Munro[NOT FOR PUBLICATION], Consultant Forensic Psychologist dated 28 November 2016. (That report is dealt with in more detail at [87] below).
The Law Society responded by way of two letters, each dated 21 December 2016, as follows: 1. A letter from Mr Sinclair was emailed at 11.26 am that day. It confirmed that the Professional Conduct Committee's resolution on 15 December 2016 to commence professional misconduct proceedings in this Tribunal based on Mr Dib's failure to comply with the Section 371 Notice and failure to assist the investigator. It provided details of the orders sought and gave brief reasons for the resolution. 2. A letter from Ms Foord was emailed at 11:28 am on that day. It covered only the proposed resolution of the Law Society Council to suspend Mr Dib's practising certificate and appoint a manager to his practice. Ms Foord indicated that the Council would be asked to consider making such a resolution unless Mr Dib had fully complied with the Section 371 Notice by close of business on 13 January 2017.

Mr Dib's response of 13 January 2017 and the importance of Mr Eacott

Mr Dib did not respond to the Law Society until 3:44 PM on the last day, 13 January 2017, when he emailed Ms Foord indicating that he was unable to submit a response by close of business that day, because he was awaiting the return of his book keeper Mr Warren Eacott to the office, which was expected to occur on 17 January 2017 and that he needed his assistance to finalise his reply.
In the circumstances Mr Dib sought yet a further extension of what he acknowledged was his undertaking "as a lawyer" to respond prior to close of business on Monday, 23 January 2017. Mr Dib's letter also attached a copy of the report dated 16 January 2017 from Mr Tim Watson-Munro[NOT FOR PUBLICATION].

Mr Dib responds to the 31 May Letter but not the Section 371 Notice

Eventually Mr Dib sent the Law Society his full response to the 31 May Letter on Friday 27 January 2017. It appears that the response was sent by Document Exchange and so was not received by the Law Society until Monday, 30 January 2017: one week later than Mr Dib had undertaken.
Most importantly, what was received by the Law Society on 30 January 2017 was a response only to the 31 May 2016 Letter. It did not address the requirements of the Section 371 Notice. On 31 January 2017 Mr Sinclair wrote to Mr Dib 1. confirming that because of a notation on Mr Watson-Munro[NOT FOR PUBLICATION]'s reports the reports would not form part of his investigation nor be included in his report to the Society's Professional Conduct Committee; and 2. drawing Mr Dib's attention to the fact that he had still not responded to the Section 371 Notice or verified his response.
We deal with Mr Dib's failure to respond specifically to the Section 371 notice at [89]- [94] below.

Further delays in March 2016

On 7 March 2017 Ms Foord wrote to Mr Dib confirming that because no response had been received to Mr Sinclair's letter of 31 January 2017 and his failure to respond to the Section 371 Notice, she proposed to ask the Council of the Society to consider suspension of his practising certificate at its meeting on 16 March 2017. It appears that the Council's consideration of that issue on 16 March 2017 proceeded in the absence of Mr Watson-Munro[NOT FOR PUBLICATION]'s reports.
By letter dated 15 March 2017 which was apparently faxed to the Law Society that day, Mr Dib indicated that he had been "…putting my reply in the proper format as requested by Mr Sinclair and I am 85% complete on my reply."
He asked for a further extension for his response to the Section 371 Notice, to Monday, 25 March 2017, indicating that Mr Eacott had in fact taken leave overseas and was returning on 21 March 2017 and that he needed his assistance to complete the response and was also awaiting a statutory declaration from a former employee.
Ms Foord replied on the same day by emailed letter, refusing to extend the time for Mr Dib's response to the Section 371 Notice. She went on to indicate that she did not propose that the Council of the Society should consider the suspension of Mr Dib's Practising Certificate and the appointment of a Manager at its meeting the following day, but she foreshadowed that she would recommend that Council take that action at its following meeting unless Mr Dib's full response to the Section 371 Notice was received by close of business on Monday, 27 March 2017.

Mr Dib sends his response to the Section 371 Notice

On 27 March 2017 Mr Dib sent the Law Society his statutory declaration made that day, which addressed the requirements of the section 371 Notice.
As a result the Law Society did not proceed with the suspension of Mr Dib's practising certificate, but on 3 May 2017 it filed its application which initiated the present proceedings.

Mr Knoll's application and submissions on it

The following interlocutory question arose for our determination and we determined it in the course of the hearing.
During his cross-examination of Ms Foord, Mr Knoll of Counsel (appearing for Mr Dib) asked whether Mr Dib's letter (found at page 143 of the Exhibit AMF1 to her affidavit) and Mr Watson-Munro[NOT FOR PUBLICATION]'s report were before the Professional Conduct Committee when it resolved to commence the current proceedings. Ms Foord replied that she did not know. He also asked whether Mr Dib's response dated 27 January 2017 was before the Professional Conduct Committee. Ms Foord replied to the effect that it was presumably not before the Committee as it met in December 2016, before the date of the response. Mr Knoll called for production of the Law Society's file.
Mr Knoll submitted, in summary, as follows: 1. it appeared from the course of correspondence that relevant exculpatory matter, namely an expert report on Mr Dib's mental health issues, was not placed before the relevant decision-maker, being the Professional Conduct Committee, 2. that omission by the Law Society was so materially significant to the decision made to prosecute this application that the Tribunal should consider whether the application should be declared void. In this regard we understood Mr Knoll to rely upon ss 316 and 319 (1) of the Uniform Law which provides that to the extent that the rules of procedural fairness are not inconsistent with the provisions of the Uniform Law or the Uniform Rules, they apply in relation to a local regulatory authority's investigation and determination of complaints, making of other decisions in respect of the complaints; and its procedures in respect of the complaints; 3. in the circumstances there had been a clear breach by the Law Society of the rules of procedural fairness and accordingly the Law Society had failed to comply with section 319; and 4. the Law Society had also failed to comply with section 316 which requires a designated local regulatory authority in exercising applicable discretions to act on a fair manner, having regard to the respective interests of the complainant and the respondent and the public interest.
However, Mr Maddigan opposed the tender of this documentation. He argued that ss 467 and 468 of the Uniform Law provided that the Law Society is not compellable to give evidence or to produce documents in any proceedings and that the file is not relevant to the matter before the Tribunal and, in any event, the documents referred to were produced to the Law Society after the date of the Resolution to commence these proceedings.
He also relied on the relevant provisions of the Legal Profession Uniform Law Application Act 2014 No 16 ("the Application Act") particularly section 138, which requires a Tribunal to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal and section 147, which provides that proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal and that leave can be granted if the tribunal is satisfied that the continuation of the proceedings is not warranted in the public interest. There is no other instance justifying the granted leave stated in the legislation. Mr Maddigan submitted that proceedings before the Tribunal were effectively initiated by the Professional Conduct Committee's resolution of 15 December 2016. In addition: 1. it could not be in the public interests for these proceedings to be terminated and therefore the Tribunal's overriding obligation is to conduct the hearing, by conducting a hearing into the allegations as particularised in the application; 2. because the documentary information sought in Mr Knoll's application was non-compellable and its production is refused, the Tribunal has an obligation to continue to hear the complaints as pleaded
The legislative provisions referred to in this section are set out in the Schedule, for convenience of reference.
We adjourned briefly to consider the application.

Our determination of the interlocutory application

We upheld the Law Society's refusal to produce the documentation which was the subject of Mr Knoll's application. We did so because we agreed with Mr Maddigan that the provisions of section 468 of the Uniform Law when read with the definition of "relevant person" in section 467 makes the tender or production of documentation of this sort non-compellable.
We also determined that we have no inherent administrative review jurisdiction in these matters. Appeals against administrative decisions are dealt with by the Administrative and Equal Opportunity Division of the Tribunal, in accordance with the Civil and Administrative Tribunal Act 2013 (NSW) and the Administrative Decisions Review Act 1997 (NSW) and there is nothing in the relevant legislation or rules relating to the Occupational Division which grants this division an independent jurisdiction to review an administrative decision of a "relevant person" as that term is defined in s 467 (2) of the Uniform Law.
It is true that the Law Society has the ability to close a complaint after preliminary assessment (Uniform Act s 277), to withdraw a complaint were it is the complainant (s 273 (1)), or to conduct an internal review of a decision (s313 (1)). But it did not do so here and there is no provision under the Uniform Law whereby a respondent legal practitioner can appeal against : 1. a refusal to hold an internal review, or 2. a decision made in an internal review for a disciplinary matter, other than a finding of unsatisfactory professional conduct made by the designated local regulatory authority itself under s 299, which is not applicable here (see s314).
It followed that the interlocutory application must fail.
We add for completeness that on the basis of the facts as outlined in the previous section of the reasons, particularly at [30]-[39], it appears that the sequence of events relevant to the interlocutory application was as follows. 1. The subject of the interlocutory application, namely Mr Watson-Munro[NOT FOR PUBLICATION]'s report dated 28 November 2016, was initially sent by Mr Watson-Munro[NOT FOR PUBLICATION]'s office to Mr Christopher Ford, solicitor (who we understand to have been assisting Mr Dib at that time) on 28 November 2016. 2. However Mr Dib did not send it to the Law Society until 19 December 2016 (some three weeks later). It formed an attachment to Mr Dib's letter emailed to Ms Foord of the Society that day. 3. In the meantime, on 15 December 2016, the Professional Conduct Committee of the Law Society resolved to initiate these proceedings. Mr Watson-Munro[NOT FOR PUBLICATION]'s report dated 28 November 2016 could not have been before the Committee when it resolved to commence these proceedings. 4. That resolution constitutes the initiation of these proceedings for the purposes of Chapter 5 of the Uniform Law. It is a jurisdictional fact for the purposes of the current proceedings under Chapter 5 of the Uniform Law: see s 300 (1).
It must follow that the principal cause of the Professional Conduct Committee not having Mr Watson-Munro[NOT FOR PUBLICATION]'s report of 28 November 2016 available to it was the hiatus between the receipt of that report by the solicitor assisting Mr Dib at that time (Mr Ford), probably on or about 29 or 30 November 2016 and Mr Dib's decision to send it to the Law Society some three weeks later, on 19 December 2016.

The real issues for determination

Under section 36 of the Civil and Administrative Tribunal Act a "guiding principle" is set out in subsection (1). It requires the facilitation of the just, quick and cheap resolution of the real issues in proceedings in this Tribunal Under subsection (2), the Tribunal must seek to give effect to that guiding principle.
Clearly, compliance with the guiding principle depends upon clear identification of the real issues in the proceedings.
On the basis of the pleadings and the uncontested facts concerning the general sequence of events, as set out at [15] to [50] above, we have identified the real issues in these proceedings as follows: 1. Did Mr Dib: 1. Fail to comply with a requirement under section 371 of the Legal Profession Uniform Law; or 2. Fail to assist an investigator in the investigation of a complaint? 1. If he did, to what extent should he be excused by reason of the state of his mental health. This involves our assessment as to: 1. the state of Mr Dib's mental health condition: did he have a mental illness at the relevant times? and 2. if he did, the extent to which that caused the failure on his part to comply with section 371 or to assist the investigator and the extent to which he should be excused. 1. To the extent that Mr Dib's failures are not excused, is he guilty of either professional misconduct or unsatisfactory professional conduct? 2. What disciplinary orders should we make?

(1) Was there a failure to comply with the s371 Notice or to assist the investigator?

Summary of relevant periods

In relation to the section 371 Notice there appears to have been a period of approximately 200 days between: 1. the last of the 28 days provided for a response to that Notice after it was personally served on Mr Dib on 9 August 2016, that is: 7 September 2016, and 2. the lodgement of Mr Dib's statutory declaration in response on 27 March 2017.
There was a delay of 55 days between Mr Dib's receipt of Mr Sinclair's letter of 31 January 2017 and the delivery of that statutory declaration.
There was a delay of approximately 238 days between Mr Dib receiving the 31 May 2016 letter (we are unaware of the exact date of its receipt but have calculated the period from Friday, 3 June 2016) and a full response being received by way of Mr Dib's letter of 27 January 2017.

The Failure to comply with requirements of section 371

Ground 1 of the Application is based on the alleged failure by Mr Dib to comply with a requirement under section 371 of the Uniform Law. In his amended Reply, Mr Dib: "..admits Ground 1 in so far (sic) he failed to comply with the specified time with a requirement under section 371 of the (Uniform Law) but submits that he should be excused.
However, Mr Dib's case as to this issue is put slightly differently in the Particulars relevant to Ground 1 in his Reply. The Particulars claim that he did comply, "albeit late" with the requirement under s 371 and that his delay in complying with that requirement is explained by medical unfitness by reason of a mental illness, namely a Severe Depressive Disorder as particularised in the reports of Dr George Kassar[NOT FOR PUBLICATION] and Mr Tim Watson-Munro[NOT FOR PUBLICATION].
We do not understand that Mr Dib disputes that he failed to comply with, at the very least, s 371 (1). That subsection allows an investigator, by notice served on a legal practitioner, to require him or her: "…to do any one or more of the following-… (a) to produce, at or before a specified time and a specified place, any specified document (or a copy of the document); (b) to provide written information on or before a specified date (verified by statutory declaration if the requirements those states); (c) to otherwise assist in or cooperate with the investigation of a complaint in a specified manner. (Our emphasis)
It is obvious that a failure to produce a specified document or to provide the required written information by the specified time or date constitutes a breach of a requirement of section 371, that requirement being set out in s 371 (3), which provides that a person who is subject to a requirement under subsection (1) must comply with that requirement.
The uncontested sequence of events set out in paragraphs [15] to [50] above demonstrates to our satisfaction breaches of the requirements of section 371. For these reasons, we are satisfied that ground 1 is made out.

Failure to assist the investigator

Ground 2 of the Application is based on a failure by Mr Dib to assist the investigator in the investigation of a complaint. As noted above, s 371 (1) (c) allows a notice under that section to require the legal practitioner to otherwise assist in or cooperate with the investigation of a complaint in a specified manner.
The Section 371 Notice clearly does this. It specifies in its opening paragraph the actions which Mr Dib was required to take: that is, to provide the information set out in Schedule 1 within 28 days and produce the documents specified in Schedule 2 within 28 days of service upon him. The Notice confirms that: "These requirements arise out of the following complaints made against you by the Law Society under Section 266 of the (Uniform Law) arising from a report by John Michalski, Trust Account Investigator… as initially advised in Society letter dated 31 May 2016"
A reasonable construction of the Notice, indeed the only sensible reading of it, is that the first two paragraphs must be read together and that in this manner the Notice required Mr Dib to assist in or co-operate with the investigation of the primary complaint.
It is not disputed that he failed to do so.
It follows that Mr Dib was in breach of s 371 (3) of the Uniform Law, as he was in breach of a requirement of s 371 (1) (c).
We add that, as noted in Council of the Law Society of NSW v Tsalidis (No 3) [2012] NSW ADT 229 at [23] there have been a number of fairly recent decisions, for example Law Society of New South Wales v Knudsen [2006] NSW ADT 49 and Council of the Law Society of New South Wales v Autore [2012] NSW ADT 139 in which the practitioner's obligation to assist an investigator has been based on the existence of a duty to do so at law rather than by reference to a specific statutory notice (in that case a notice under section 660 of the Legal Profession Act 2004). In our view Mr Dib in failing to co-operate with the investigation of the primary complaint, also failed to act in accordance with that duty at law.

(2) To what extent should Mr Dib be excused by reason of his mental health?

The statutory "reasonable excuse" defence is no longer available

We commence by noting that under the predecessor provision to section 371, s 676 (3) in the Legal Profession Act 2004, an Australian practitioner who was required to comply with requirements in relation to complaint investigations including requirements in a section 660 notice: "must not, without reasonable excuse, fail to comply with the requirement." (Our emphasis)
The qualification "without reasonable excuse" was not continued under the Uniform Law. The position is therefore that under the Uniform Law the existence of a reasonable excuse does not, of itself, prevent a finding of professional misconduct or unsatisfactory professional conduct.
But that of course does not mean that a finding of unsatisfactory professional conduct or professional misconduct must be made where a breach has been established. The Tribunal retains discretion as to whether or not to combine a finding of breach of section 371 with a finding of unsatisfactory professional conduct or professional misconduct. That is clear from: 1. subsection 466 (6), which provides merely that failure to comply with a section 371 notice "is capable of" constituting unsatisfactory professional conduct or professional conduct; and 2. the fact that the language of s 302 (1) and 371 in this regard is clearly facilitative not mandatory, except insofar as s 371(3) makes a penalty of 50 penalty units applicable for a breach of subsection (1) (failure to comply with s 371 notice) or subsection (2) (failure to comply with investigator's request for access to documents or information).
It follows that we can and should enquire as to whether, and if so the extent to which, Mr Dib's conduct should be "excused"; that is, the extent to which his conduct did not amount to either professional conduct or unsatisfactory professional conduct.

The expert medical and psychological evidence

The documentary expert reports admitted into evidence were these: 1. a report from Dr George Kassar[NOT FOR PUBLICATION], Mr Dib's general practitioner dated 9 September 2016, which was not separately tendered but which was included as Annexure to Ms Foord's affidavit (Exhibit AMF 1 at [127]); 2. a second report from Dr Kassar[NOT FOR PUBLICATION] consisting only of one page, dated 22 November 2016 , which was tendered the by Mr Dib and which we shall refer to as "Dr Kassar[NOT FOR PUBLICATION]'s second report"; 3. a third report from Dr Kassar[NOT FOR PUBLICATION] tendered by Mr Dib, which is undated but apparently prepared in late September or early October 2017. This was tendered by Mr Dib; 4. a report from Mr Tim Watson-Munro[NOT FOR PUBLICATION], consultant forensic psychologist, dated 28 November 2016; based on a consultation on 22 November 2016, being an attachment to Ms Foord's affidavit (Exhibit AMF 1 at [146]) 5. a second report from Mr Watson-Munro[NOT FOR PUBLICATION], dated 16 October 2017 which was tendered by Mr Dib and 6. a report from Dr Stephen Allnutt, forensic psychiatrist, dated 4 February 2018, in respect of a consultation on 13 December 2017 This was tendered by the Law Society.
None of the expert witnesses was required to attend for cross-examination.
The following facts appear to be uncontested. 1. As at the date of Dr Kassar[NOT FOR PUBLICATION]'s first report (9 September 2016) Mr Dib had physical medical conditions which included the extensive injuries (including shattering of his collarbone) suffered in his motorbike accident in May 2015, as well as Mediterranean fever, severe joint and muscle aches, abdominal colicky pain compounded by ongoing diverticulitis, von Willebrand's disease and related persistent thrombocytosis. 2. As reported by Mr Watson-Munro[NOT FOR PUBLICATION] in his first report of 28 November 2016, Mr Dib had at that time a confluence of severe depression, Anxiety Disorder and the physical conditions described above. His mental health difficulties were compounded by his involvement in the motorbike accident in May 2015 and arising from this Mr Dib developed a range of symptoms reflective of Post-Traumatic Stress Disorder (PTSD). Mr Watson-Munro[NOT FOR PUBLICATION] suspected that Mr Dib's features of PTSD and hyper-arousal had made him extremely vulnerable to additional stress. 3. As confirmed in the same report, on the basis of his clinical testing Mr Watson-Munro[NOT FOR PUBLICATION]'s clinical impression was that Mr Dib had a Severe Depressive Disorder according to the DSM-5 criteria and on the Beck Anxiety Inventory and a range of severe somatic symptoms typically found in individual suffering high levels of anxiety according to the DSM-5 criteria. Mr Watson-Munro[NOT FOR PUBLICATION] concluded that Mr Dib was suffering from a Depressive Disorder, an Anxiety Disorder and features of PTSD. He opined that: "These issues singularly and collectively have impacted upon his ability to effectively manage his life… His mood state is leading to severe cognitive intrusion, in addition to avoidance reactions and an inability to focus on tasks which are highly stressful." 1. However, based on a further consultation on 6 January 2017, which was the basis of Mr [NOT FOR PUBLICATION]Watson-Munro's report of 16 January 2017, Mr Dib's condition had improved. Although Mr Dib had acknowledged at the consultation that the unresolved nature of the Law Society proceedings was extremely stressful, he reported that he was coping more effectively and feeling more positive regarding the future. Mr [NOT FOR PUBLICATION] Watson-Munro thought that the improvement was due to Mr Dib commencing the course of psychotropic medication, namely [NOT FOR PUBLICATION]Aropax. Mr Dib had lost 6 kg. Mr Dib had said that his "task focus" had returned and he felt confident of ultimately meeting the Law Society's requirements. Mr Dib's wife corroborated his account. 2. Significantly at that consultation Mr Watson-Munro[NOT FOR PUBLICATION] administered the Beck Depression Inventory again and as a result was of the clinical impression that Mr Dib's depressive symptoms were of reduced intensity, although he was still experiencing anhedonia, feelings of guilt and low esteem. However, as Mr [NOT FOR PUBLICATION] Watson-Munro added: ".. on a more positive note his decision-making and concentration have improved."
Dr Stephen Allnutt's written report dated 4 February 2018 was based on his clinical evaluation of Mr Dib on 13 December 2017. Dr Allnutt summarised Mr Dib's clinical history and the previous reports. He noted that Mr Dib had not previously consulted a psychiatrist. Mr Dib had reported that he was working full time and thought that he was now coping. He reported that he had "answered the notice" (presumably the 31 May 2016 Letter) and felt relief. He reported his performance at work to be good. He had restarted visiting friends in gardening and walking. His mood was normal and he denied any sleep disturbance or any energy or motivation issues, problems with self-esteem, or difficulties with concentration for decision making.
Dr Allnutt confirmed a diagnosis of a chronic adjustment disorder with a depressed and anxious mood or a major depressive episode with associated anxiety. He said that on balance of probability his view was that Mr Dib met the criteria for a major depressive episode, with panic attacks, as at 31 May 2016. As at 6 September 2016 his symptoms of depression and anxiety persisted and he continued to suffer from a major depressive episode with associated panic attacks, but his medical problems appeared to have been settling. Significantly Dr Allnutt concluded that, as at the date of examination, 13 December 2017, Mr Dib: "… was not suffering significant symptoms of a major mental problem and had recovered… At this stage, in the absence of any significant symptoms of a depressive and (sic) disorder, and in light of his report of absence of psychiatric symptoms and stabilisation of his medical problems and discontinuation of Endone and OxyContin, he presents as and in the foreseeable future fit to practice as an Australian legal practitioner."

Improvement in Mr Dib's condition by early December 2016

On the basis of our consideration of the expert medical evidence and the course of events summarised at [15] to [50] above we conclude that the existence of a depressive illness and Mr Dib's other conditions may have been a contributing factor to his initial misunderstanding as to the nature of and his requirements under the section 371 Notice, when it was served on him on 3 August 2016. However his case is that his misunderstanding continued unabated until on or shortly after 31 January 2017; in short, that up until that time he had no idea he had to comply separately with the Section 371 Notice and had not read it in any sort of detail.
Yet it is clear that, on Mr Dib's own account, his condition had improved substantially by mid-December and certainly by 19 December 2016, when he wrote to the Law Society (see Ms Foord's affidavit Exhibit AMF 1 at [144-145]).
Moreover, on the basis of the expert evidence on which Mr Dib relies, he had clearly improved by 6 January 2017, when he saw Mr [NOT FOR PUBLICATION]Watson-Munro. Mr [NOT FOR PUBLICATION] Watson-Munro confirmed this in his report of 16 January 2017, which relates to that consultation (see Ms Foord's affidavit, Exhibit AMF-1 at [169] to [171]). He observed that: 1. Mr Dib "is coping more effectively" because he had followed up on Mr [NOT FOR PUBLICATION]Watson-Munro's recommendation that he commence psychotropic medication, namely [NOT FOR PUBLICATION]Aropax; 2. that improvement was verified by his wife, whom Mr [NOT FOR PUBLICATION] Watson-Munro had interviewed separately; 3. Mr Dib had stated that he felt calmer, that his "task focus" had returned and that he felt "more confident in terms of the requirements that have been made upon him"; 4. at the consultation Mr Dib was well oriented in time, place and person and more alert; and 5. most significantly, testing by [NOT FOR PUBLICATION]Mr Watson-Munro had confirmed his clinical impression that Mr Dib had reduced depressive symptoms; that although he still experienced feelings of guilt and low esteem, he was less self-critical and: "… his decision-making and concentration have improved".
Despite these improvements it would be at least another 25 days before Mr Dib, on his own account, first understood the requirements and the import of the Section 371 Notice and just under three months before the Notice was complied with, on 27 March 2017.
In addition, whilst noting these improvements in Mr Dib's condition, yet making due allowance for the fact that his mental health issues may have continued to cause him some ongoing stress and some periods of lack of concentration, we cannot be satisfied that Mr Dib has provided a reliable or persuasive explanation of why he proceeded in blissful ignorance of the importance of the section 371 Notice until "the penny dropped" when he read Mr Sinclair's letter of 31 January 2017 (Mr Dib's affidavit at [50]).
His account in this regard is all the more unconvincing because of the clear and repeated indications which he had received from the Law Society as to the importance of considering and responding separately to the Section 371 Notice. The following matters seem to be relevant. 1. In Mr Dib's first telephone conversation with Mr Sinclair on the matter, on 25 July 2016, Mr Sinclair asserts (and we accept) that he told Mr Dib that if he, Mr Sinclair did not receive the information required by the 31 May 2016 Letter then he: "… would require response by Notice" (Ms Foord's affidavit, Exhibit AMF 1 at [15] 1. In Mr Sinclair's letter dated 3 August 2016 (that is about 10 days later) Mr Sinclair said: "I confirm our telephone conversation on 25 July 2016… As anticipated when we spoke on 25 July 2016, enclosed is a Notice under section 371 of the Legal Profession Uniform Law (NSW)… "When providing your Statutory Declaration responding to the Notice you should also provide your submissions in response to (the 31 May Letter). Note, the information requested in the enclosed Notice is in lieu of the information requested on pages 6-9 of (the 31 May Letter) "(Our emphasis) 1. We find it difficult to accept that a reasonably competent legal practitioner, even one who at that time had the mental health issues asserted by Mr Dib, would not have understood from the words quoted the importance of carefully reviewing the Section 371 Notice and its requirements separately from those of the 31 May 2016 Letter, or having someone review it for him or her. We note that by this time Mr Dib had consulted at least two members of the Senior Solicitors' panel and at least by late August 2016 had engaged Kent Attorneys. 2. When Kent Attorneys, acting on the instructions of Mr Dib, wrote to the Law Society on 31 August 2016, they requested an extension of 28 days: "… in order to respond to your Notice and letter dated 3 August 2016." (Our emphasis). 1. Ms Foord's letter emailed to Mr Dib on 9 December 2016 explained the distinction between the initial complaint and the supplementary complaint and noted that Complaint 1 in File for 2682 "concerned your outstanding response to a Notice issued… Under Section 371…" (Ms Foord's affidavit, Exhibit AMF-1 at [138]). 2. Ms Foord's letter emailed to Mr Dib on 21 December 2016 clearly warned that absence to comply with the outstanding Section 371 Notice by Friday, 13 January 2017 would result in the Law Society Council being asked to consider suspension of Mr Dib's Practising Certificate and the appointment of a Manager to his practice. (Ms Foord's affidavit, Exhibit AMF-1 at [164]). Given that this was received two days after Mr Dib had assured the Law Society that his condition, his confidence and his capability were the best they had been in 10 years (Exhibit AMF-1 at [144]), it seems most surprising, to say the least, that this did not cause "the penny to drop" and cause Mr Dib immediately to give detailed separate attention to the section 371 Notice.

Inconsistencies concerning the availability of Mr Eacott (Mr Dib's book-keeper)

We regard the issue of Mr Eacott's unavailability, outlined at [37]-[41] and [47]-[48] above, as significant. That is because of Mr Dib's representations in his letter of 19 December 2016, which emphasised Mr Eacott's importance as the person best able to assist with the response, insofar as it concerned trust account issues and also made clear the degree of reliance which Mr Dib placed on Mr Eacott to complete a full reply to the Society (see [37(6)] above). We think on a fair reading of that letter, the Law Society was entitled to regard it as a representation that Mr Eacott was, at that time and generally, available to deal with outstanding trust account issues.
We accept that Mr Dib's case is that on 19 December 2016 he was still labouring under the misapprehension that the responses referred to in that letter (responses only to the 31 May 2016 Letter and not the Section 371 Notice) would end the matter and that therefore his letter of that date primarily addresses the issue of whether a Manager should be appointed or his practising certificate suspended.
However in our view that does not explain why, on 19 December 2016 (with only 4 business days remaining until the Christmas break), he sought an extension only until "early January 2017, shortly after the Christmas break" in circumstances where: 1. he was already in breach of the final extended deadline for submissions on the secondary complaint (which was 4pm on 14 December, as per Mr Sinclair's letter of 6 December 2016) 2. he had the indicated the important role of Mr Eacott in resolving trust account issues and on his own admission he needed Mr Eacott's assistance in order to deal with a number of such issues raised in relation to the primary complaint (which of course would impact upon a response to the secondary complaint): see Mr Dib's affidavit of 2 August 2017 at [43]; and yet, 3. Mr Eacott was in fact not available on 19 December 2016 and would not be available until well into January 2017. The latter point emerges from Mr Dib's email to Ms Foord on 13 January 2017 , (see affidavit of Anne-Marie Foord, Exhibit AMF 1 at [165]) where he confirms that "prior to the Christmas break, (Mr Eacott was) away on leave and overseas and also due to his wife's operation and illness (and his own surgery)… He will be returning to the office on 17 January 2017."; and
It is of course possible that as at 19 December 2016 Mr Dib was for some reason not aware of the likely extent of Mr Eacott's January absences, but even allowing for that, it must be the case that his absences prior to Christmas were known by Mr Dib as at 19 December 2016.
We cannot see why Mr Dib could not, at the very least, have informed the Law Society a much earlier stage about Mr Eacott's absences from the office during what appears to be a critical period.
We therefore find that Mr Dib's mental health at the particular times covered in the discussion at [90]-[100] above was not the principal cause of his failure to comply with section 371 or to assist the investigator and to that extent those failures on his part should not be excused.

(3) Professional misconduct or unsatisfactory professional conduct?

By operation of section 466, subsections (1) and (6) of the Uniform Law, a failure of an Australian lawyer to comply with a requirement under section 371 to produce documents, providing information or otherwise assist in or cooperate with an investigation is capable of constituting unsatisfactory professional conduct or professional misconduct.

Professional misconduct

Professional misconduct is defined in conclusively in section 297 of the Uniform Law. Essentially it includes: 1. unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and 2. conduct of a lawyer which would justify a finding that he or she is not a fit and proper person to engage in legal practice (whether or not that conduct occurred in connection with the practice of law).
As confirmed recently in Legal Services Commissioner v Livers [2017] NSWCATOD 117 at [138], it is accepted that the Parliament intended to preserve the common law meaning of professional misconduct. It accepted that at common law professional misconduct was conduct that would be reasonably regarded as disgraceful or dishonourable by a professional colleagues of good repute and competency: Allinson v General Medical Council [1894] 1 QB 750 at 768; Hoile v Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157
Mr Maddigan for the Law Society submitted that Mr Dib's conduct constituted professional misconduct within the meaning of s 297 (1) (a) because it involved a substantial failure to reach the requisite standard in a way which was meaningful or relevant to his ability to practice law.
Mr Maddigan relied upon Johns v Law Society of New South Wales [1982] 2 NSWLR 1 and Veghelyi v Council of the Law Society of New South Wales, Unreported, Supreme Court, 6 September 1989. In the latter case Smart J noted the importance of solicitors responding promptly to the Law Society when it seeks a response to complaints. He went on to observe that it would be an unusual or complex case where a delay of more than 14 days is acceptable and that often a reply should be delivered within 7 to 10 days. In our view, although His Honour was undoubtedly correct in emphasising the importance of prompt responses and indicating certain time limits for compliance applicable to straightforward complaints, his prescriptions of 14 and of 7 to 10 days would not be regarded as strictly prescriptive in more recent times. Many of the recent statutory notices which form the basis of applications to this Division of the Tribunal do involve facts or circumstances which would be accepted as being "complex", at least by the standards of 1989.
Mr Maddigan relied principally however on more recent decisions in matters where there had been a substantial delay in responding to a statutory notice from the relevant professional body, including Council of the Law Society of NSW v Tsalidis (No 3) [2012] NSW ADT 229 ("Tsalidis No. 3"); Council of the New South Wales Bar Association v Asusu [2011] NSW ADT 209 and Council of the Law Society of New South Wales v Webb [2013] NSWSCA 423 ("Webb").
In Tsalidis No 3, at [24], the Legal Services Division of the Administrative Decisions Tribunal applied the reasoning adopted in other leading decisions, including Law Society of New South Wales v Knudsen [2006] NSW ADT 49 and Council of the Law Society of New South Wales v Autore [2012] NSW ADT 139, and held that the following matters should be taken into account in determining whether common-law misconduct has been committed: 1. the length of time during which the respondent practitioner failed to comply with the directions or requests to assist, including but not limited to the statutory notice; 2. whether for any significant period or periods of time the investigator appeared not to be pursuing the investigation; 3. the number of occasions on which such directions or requests were addressed to the practitioner without generating any response; 4. the number of occasions, if any, on which the practitioner, having promised that assistance would be forthcoming, failed to abide by this promise; 5. whether the practitioner ever complied in part with a direction or request to assist the investigation and if so the extent to which he or she did so; 6. the importance of the response sought from the practitioner to the progress of the investigation; and 7. whether any mitigating factor falling short of a "reasonable excuse" under s 676 (4) (of the Legal Profession Act 2004) was present.
Significantly, the Tribunal stated that an example of such a reasonable excuse might be a depressive illness.
We are not persuaded that these authorities, important as they are, provide sufficient justification in the present case for a finding of professional misconduct. We do not accept that, taken as a whole and in light of Mr Dib's established mental health issues, his conduct would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.
We reach that conclusion for the following reasons: 1. In the present case there is a more direct nexus between Mr Dib's mental health and at least part of his delay which occasioned his breach of section 371 and his failure to assist the investigator than appears to have been the case in Tsalidis No.3 or in Webb. 2. We are satisfied that, notwithstanding our conclusion at [101] that Mr Dib should not be completely excused from his conduct because of his mental health, some weight must be given to factor (7) in Tsalidis No 3, as cited at [108] above and particularly to the Tribunal's specific mention of mental illness. There is a substantial body of expert and specialist opinion available in this case, unlike many of the cases (for example, Webb) where the respondent's personal lay assertions of mental health issues were not supported by substantive expert evidence. In this case, we accept that specialist evidence and we give particular weight to the diagnoses and conclusions proffered by the specialist practitioners Mr [NOT FOR PUBLICATION] Watson Munro and Dr Allnutt. Allnutt. It is clear that during relevant periods Mr Dib was experiencing mental illness and in particular depression with some anxiety, which hindered him in recognising and accepting the import of both the 31 May 2016 Letter and the Section 371 Notice and what he needed to do, without procrastination or excuse, to respond to them promptly and to assist the investigator. We accept that for much of the period he could not give sustained attention or focus to these tasks and we find that to that extent there was a causal link between his mental condition and that inability. 3. Some of the other factors which were considered by the Tribunal in Tsalidis No 3 also apply to Mr Dib's situation. Factors (1) and (3) are clearly satisfied, in that there was a very extensive period of delay overall and many occasions in which enquiries or requests generated. Again, some of Mr Dib's responses were unhelpful and many deadlines were broken which seemed to attract factor (4). However Mr Dib did comply in part with some requests (factor (5)) and factor (2) is not applicable. In most instances Mr Dib made some form of response by the due date, although in most of those instances it was a response which sought further time. 4. From an early stage, Mr Dib expressed his understanding of his obligations and his contrition. His affidavit and submissions on his behalf reflect this recognition. 5. We have also taken into account the fact that in many instances Mr Dib did keep the Law Society informed of his progress. Whilst at least for for the most part progress was very slow, there is a clear distinction between Mr Dib's actions and those of solicitors in previous similar cases who ignored or completely failed to respond to notices and correspondence from the Law Society.
On that basis we cannot be satisfied that Mr Dib's conduct amounted to professional misconduct.

Unsatisfactory professional conduct

Under section 296 of the Uniform Law unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer.
The recent Supreme Court case of BRJ v Council of the New South Wales Bar Association [2016] NSWSC 146 ("BRJ") involved disciplinary proceedings against a barrister who claimed that her conduct, including persistent failure to attend Court punctually, arose from her anorexia nervosa. Adamson J gave a detailed exposition of the development of the concept of unsatisfactory professional conduct. Her Honour found, at [57] that the barrister was late because of the physical consequences of her mental condition. Her Honour concluded that she did not consider that the cause of the barrister's lateness (repeated as it was) deprived her conduct of its character as unsatisfactory professional conduct. Relevantly, she commented, at [61] that although the barrister's medical condition may have provided some explanation further her conduct (since it compromised her judgment): "… It did not deprive her conduct of its character as unsatisfactory professional conduct."
Adamson J concluded, at [63], that the compromise of the barrister's judgment by reason of a mental condition : "… may explain her breach of the NSW Barristers Rules. However, her mental condition was not such as to render it any less a breach, or to deprive it of its character as unsatisfactory professional conduct."
We believe those comments to be equally applicable to Mr Dib's case.
We are satisfied that Mr Dib's conduct when viewed as a whole, particularly but not restricted to his conduct analysed at [90]-[100] above, plainly fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner and his mental condition was, to that extent, not such as to deprive his conduct of its character as unsatisfactory professional conduct.
His conduct amounts to unsatisfactory professional conduct.

Principles

As was noted by Adamson J in BRJ at [102] the mental condition of a practitioner, if it is relevant to the conduct, will generally be relevant to the question of what orders should be made as the result of a finding of professional misconduct or unsatisfactory professional conduct.
It is well established that in deciding the issue of penalty by making any of the orders available to us under section 302 of the Uniform Law, the jurisdiction of the Tribunal is protective not punitive: Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 at 441 ("Foreman No 2"). But it is equally clear that our role is also educative and extends to protecting the public against similar defaults by other practitioners: Law Society of New South Wales v Walsh [1997] NSWCA 185 ("Walsh").
The Tribunal is well aware of the long history of attempts by the Law Society, through its own publications including the Law Society Journal, training courses and publication of disciplinary decisions, to remind its members of the significant importance of statutory notices to solicitors and the importance of complying with an investigator following the making of a complaint.
In determining penalty orders we are motivated primarily by the need, as enunciated in Foreman No 2 and Walsh, to continue to attempt to educate members of the profession in this regard. We consider that our educative role should be directed towards ensuring that solicitors understand that a failure to either comply with a statutory notice or to cooperate with an investigator may substantially hinder the Law Society's investigation and the achievement of a just and proper outcome.
In determining the amount of any fine which should be imposed we had regard to the table of authorities which was produced by the Law Society. That was useful, but of course the order in each case must be determined upon its own particular facts and circumstances.
As recognised in BRJ at [83], mental illness may be a mitigating circumstance in considering what disciplinary order should be made and we took into account Mr Dib's established history of mental illness. However, we tempered that by reference to our finding at [101] that Mr Dib's mental health at the particular times particularised at [90]-[100] was not the principal cause of his failure to comply with section 371 or to assist the investigator and to that extent those failures on his part should not be excused.

Determination: there will be a reprimand, a fine and a costs order

For these reasons we cannot be satisfied that a mere finding of unsatisfactory professional conduct without further disciplinary orders would be sufficient to fulfil our educative function discussed at [122]. That will only be achieved if there is, in addition, a reprimand and a fine.
In determining the quantum of the fine, we were guided principally by the principles enunciated in Foreman No 2, at [143]-[144] that the quantum should be a credible reflection of the seriousness of the solicitor's conduct so as to leave no doubt as to the standards which are to be observed by practitioners. We also took into account the existence of Mr Dib's mental illness, subject to the limitations noted at [124], which inclined us to conclude that the fine should not be a substantial one. We also took into account Mr Dib's current bankruptcy.
For those reasons we decided that it was appropriate to impose a fine of $2000.
We were satisfied that there were no exceptional circumstances for the purposes of clause 23 (1) of Schedule 5 of the Civil and Administrative Tribunal Act and it must follow that Mr Dib be ordered to pay the costs of the Law Society as agreed or assessed.

Orders

The Tribunal finds Ghassan Dib (the Respondent) guilty of unsatisfactory professional conduct and orders that: 1. The Respondent is reprimanded. 2. The Respondent is fined $2,000. 3. The Respondent is to pay the applicant's costs, as 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

Civil and Administrative Tribunal Act (No.2) 2013 (NSW) 36 Guiding principle to be applied to practice and procedure (1) The guiding principle for this Act and the procedural rules, in their application to proceedings in the Tribunal, is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. (2) The Tribunal must seek to give effect to the guiding principle when it: (a) exercises any power given to it by this Act or the procedural rules, or (b) interprets any provision of this Act or the procedural rules. 55 Dismissal of proceedings (1) The Tribunal may dismiss at any stage any proceedings before it in any of the following circumstances: (a) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) withdraws the application or appeal to which the proceedings relate, (b) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, (c) if the applicant or appellant (or, if there is more than one applicant or appellant, each applicant or appellant) has failed to appear in the proceedings, (d) if the Tribunal considers that there has been a want of prosecution of the proceedings. (2) The Tribunal may reinstate proceedings that have been dismissed under subsection (1) (c) if the Tribunal considers that there is a reasonable explanation for that failure.

Legal Profession Act 2004 (NSW) 676 Obligation of Australian lawyers (1) The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned.. (3) An Australian lawyer who is subject to: (a) a requirement under section 660 (Requirements in relation to complaint investigations), or (b) a requirement under provisions of a corresponding law that correspond to that section, must not, without reasonable excuse, fail to comply with the requirement. (4) An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.

Legal Profession Uniform Law (NSW) No.16a 266 Who may make a complaint? (1) … (2) The designated local regulatory authority may initiate a complaint containing a disciplinary matter only. 273 Withdrawing complaints (1) A complaint may be wholly or partly withdrawn by the complainant. 277 Closure of whole or part of complaint after preliminary assessment (1) At any stage after the preliminary assessment of a complaint, the designated local regulatory authority may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable - (a) the complaint is vexatious, misconceived, frivolous or lacking in substance; (b) the complaint was made out of time; (c) the complainant has not responded, or has responded inadequately, to a request for further information; (d) the subject matter of the complaint has been or is already being investigated; (e) the subject matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body; (f) the designated local regulatory authority has made a recommendation under section 82(4) in relation to the lawyer concerned; (g) the subject matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter; (h) the designated local regulatory authority, having considered the complaint, forms the view that the complaint requires no further investigation, except so far as it is a consumer matter; (i) the complaint is not one that the designated local regulatory authority has power to deal with; (j) the designated local regulatory authority is satisfied that it is otherwise in the public interest to close the complaint. … (4) The designated local regulatory authority is not required to give a complainant, a lawyer or law practice an opportunity to be heard or make a submission to the designated local regulatory authority before determining whether or not to close a complaint under this section. (5) The power to close a complaint under this section extends to closure of part of a complaint. 277 Closure of whole or part of complaint after preliminary assessment (1) At any stage after the preliminary assessment of a complaint, the designated local regulatory authority may close the complaint without further consideration of its merits for any of the following reasons to the extent they are applicable - (a) the complaint is vexatious, misconceived, frivolous or lacking in substance; (b) the complaint was made out of time; (c) the complainant has not responded, or has responded inadequately, to a request for further information; (d) the subject matter of the complaint has been or is already being investigated; (e) the subject matter of the complaint would be better investigated or dealt with by police or another investigatory or law enforcement body; (f) the designated local regulatory authority has made a recommendation under section 82(4) in relation to the lawyer concerned; (g) the subject matter of the complaint is the subject of civil proceedings, except so far as it is a disciplinary matter; (h) the designated local regulatory authority, having considered the complaint, forms the view that the complaint requires no further investigation, except so far as it is a consumer matter; (i) the complaint is not one that the designated local regulatory authority has power to deal with; (j) the designated local regulatory authority is satisfied that it is otherwise in the public interest to close the complaint. (2) After the preliminary assessment of a complaint made by a commercial or government client, the designated local regulatory authority must immediately close the complaint without further consideration of its merits unless it contains or gives rise to a disciplinary matter. (3) A complaint may be closed under this section without any investigation or without completing an investigation. (4) The designated local regulatory authority is not required to give a complainant, a lawyer or law practice an opportunity to be heard or make a submission to the designated local regulatory authority before determining whether or not to close a complaint under this section. (5) The power to close a complaint under this section extends to closure of part of a complaint. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 300 Initiation and prosecution of proceedings in designated tribunal (1) The designated local regulatory authority may initiate and prosecute proceedings against a respondent lawyer in the designated tribunal if the designated local regulatory authority is of the opinion that - (a) the alleged conduct may amount to unsatisfactory professional conduct that would be more appropriately dealt with by the designated tribunal; or (b) the alleged conduct may amount to professional misconduct. 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. 313 Internal review of decisions of local regulatory authority (1) The designated local regulatory authority may (at its absolute discretion) conduct an internal review of a decision made by the designated local regulatory authority (or its delegate) if the designated local regulatory authority considers it appropriate to do so. 314 Right of appeal or review of decisions of local regulatory authority (1) A respondent lawyer or a legal practitioner associate of a respondent law practice may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by the designated tribunal of, a determination of the designated local regulatory authority under - (a) section 290, in relation to a compensation order for more than $10 000; or (b) section 299. (2) The designated tribunal may make any order it considers appropriate on the appeal or review. (3) It is intended that jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision. 316 Duty to exercise discretions fairly It is the duty of the designated local regulatory authority, in exercising or considering whether or how to exercise any applicable discretions when dealing with a complaint (including the conduct of any investigation), to act in a fair manner, having regard to the respective interests of the complainant and the respondent and to the public interest. 319 Rules of procedural fairness (1) The rules of procedural fairness, to the extent that they are not inconsistent with the provisions of this Law or the Uniform Rules, apply in relation to - (a) the investigation and determination of complaints by the designated local regulatory authority; and (b) the making of other decisions by the designated local regulatory authority in respect of complaints; and (c) the procedures of the designated local regulatory authority in respect of complaints and any associated matters. (2) Subsection (1) does not apply in relation to a decision of the designated local regulatory authority that the whole or part of a complaint should be resolved by the exercise of functions relating to consumer matters (see section 269(1)). 371 Requirements - complaint investigations (1) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, an investigator may, by notice served on the lawyer or a legal practitioner associate of the law practice (as the case requires), require the lawyer or associate to do any one or more of the following - (a) to produce, at or before a specified time and at a specified place, any specified document (or a copy of the document); (b) to provide written information on or before a specified date (verified by statutory declaration if the requirement so states); (c) to otherwise assist in, or cooperate with, the investigation of the complaint in a specified manner. (2) For the purpose of carrying out a complaint investigation in relation to a lawyer or law practice, the investigator may, on production of evidence of his or her appointment, require any person (other than the lawyer) who has or had control of documents relating to the subject matter of the complaint to give the investigator either or both of the following - (a) access to the documents relating to the affairs of the lawyer that the investigator reasonably requires; (b) information relating to the affairs of the lawyer that the investigator reasonably requires (verified by statutory declaration if the requirement so states). (3) A person who is subject to a requirement under subsection (1) or (2) must comply with the requirement. Penalty: 50 penalty units. (4) A requirement imposed on a person under this section is to be notified in writing to the person and is to specify a reasonable time for compliance. (5) If a notice under subsection (1) is served on the lawyer or legal practitioner associate by the investigator personally, the investigator must produce evidence of his or her appointment for inspection at the time of service. 466 Provisions relating to certain requirements under this Law (1) This section applies to a requirement under - … (d) section 371 to produce documents, provide information or otherwise assist in, or cooperate with, an investigation; or (2) The validity of the requirement is not affected, and a person is not excused from complying with the requirement, on - (a) the ground of legal professional privilege or any other duty of confidence; or (b) the ground that a law practice or Australian legal practitioner has a lien over a particular document or class of documents. (3) A person is not excused from complying with the requirement on the ground that compliance with the requirement, or an answer, document, information or assistance provided in complying with the requirement, may tend to incriminate the person. (4) Any information, document or other thing obtained as a direct or indirect consequence of a person complying with the requirement is admissible against the person in proceedings or procedures - (a) for making a false or misleading statement; or (b) for an offence against this Law; or (c) relating to a disciplinary matter - but is not otherwise admissible in evidence against that person. (5) A person complying with the requirement is not subject to any liability, claim or demand merely because of compliance with the requirement and, without limitation, is not liable for any loss or damage suffered by another person as a result of the person's compliance with the requirement. (6) A failure of an Australian lawyer or Australian-registered foreign lawyer to comply with the requirement is capable of constituting unsatisfactory professional conduct or professional misconduct. (7) A local regulatory authority may recommend to the designated local regulatory authority that an Australian practising certificate or an Australian registration certificate be suspended while a failure by the holder to comply with the requirement continues.

Legal Profession Uniform Law Application Act 2014 (NSW) No 16 138 Hearings The Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal. 147 Early termination of proceedings before Tribunal (1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal. (2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.

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

Amendments 05 June 2019 - The Tribunal orders under s 64 (1) of the Civil and Administrative Tribunal Act (No.2) 2013 (NSW) as follows:

That the version of the reasons for decision which carried the Medium Neutral Citation [2019] NSWCAT OD 15 ("the Original Reasons") is to be varied in accordance with the attached mark-up document.
The Respondent's requested alterations (1) pertaining to paragraphs 1, 9 (1), the heading above paragraph 25, and paragraphs 26, 38, 41, 43 (1), 45, 52, 62 (1), 62 (3), 63, 71, 85, 87 (2), (3), (4) and (5), 92 and 111 of the Original Reasons, are made; (2) pertaining to paragraphs 36 and 8 of the Original Reasons, are not made; and (3) pertaining to paragraph 87 (1) of the Original Reasons ,are made in part only. 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: 05 June 2019

Legal Profession Act 2004(NSW)

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Judgment (41 paragraphs)

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