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[2018] ACTCA 19
Court of Appeal (ACT)
2018-06-29
Mossop and Collier JJ, Robinson AJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: Legal Practitioner v Council of the Law Society of the ACT
Citation: [2018] ACTCA 19
Hearing Date: 10 August 2017
Decision Date: 29 June 2018
Before: Mossop and Collier JJ, Robinson AJ
Decision: 1. The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of the appeal.
Catchwords: PROFESSIONS AND TRADES – LEGAL PRACTITIONER – breach of Legal Profession (Solicitors) Rules 2007 – appeal from single judge of the Supreme Court – whether primary judge wrongly refused to admit further evidence – he did not – whether outcome would be affected by reckless as opposed to deliberate attempt to mislead respondent or ACT Civil and Administrative Tribunal – it would not – numerous other grounds of appeal – appeal dismissed
Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT), s 83(2) Court Procedures Rules 2006 (ACT), rr 5052, 5052(1)(c) Evidence Act 2011 (ACT), s 56 Legal Profession Act 2006 (ACT), ss 387, 387(1)(i) Legal Profession (Solicitors) Rules 2007 (ACT), rr 1.2, 36.1, 39.1 Supreme Court Act 1933 (ACT), pt 2A Supreme Court Act 1970 (NSW), ss 75A, 75A(8)
Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 Briginshaw v Briginshaw (1983) 60 CLR 336 Council of the Law Society of the ACT v Legal Practitioner ‘X’ (Occupational Discipline) [2012] ACAT 34 Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupational Regulation) [2013] ACAT 8 Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupational Discipline) [2012] ACAT 40 Fox v Percy [2003] HCA 22; 214 CLR 118 Giudice v Legal Profession Complaints Committee [2016] WASCA 159 House v The King (1936) 55 CLR 499 Huen v Hyland [2004] ACTCA 5 Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408 Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316; 303 FLR 17 Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 Legal Practitioner v Council of the Law Society of the ACT (No 2) [2015] ACTSC 317 Tjiong v Tjiong [2012] NSWCA 201
Texts Cited: Dal Pont, G E, Solicitors Manual (LexisNexis Butterworths, 2005)
Parties: The Legal Practitioner (Appellant) The Council of the Law Society of the ACT ( Respondent)
Representation: Counsel J O’Keefe (Appellant) N Beaumont SC and T Power (Respondent)
Solicitors John O’Keefe & Co (Appellant) Phelps Reid (Respondent)
File Number: ACTCA 50 of 2015
Decision under appeal: Court/Tribunal: Supreme Court of the ACT Before: Burns J Date of Decision: 5 November 2015 Case Title: Legal Practitioner v Council of the Law Society of the ACT (No 2) Citation: [2015] ACTSC 317
THE COURT:
Introduction
The appellant is a legal practitioner in the Australian Capital Territory and was, at the time of the events in question, the holder of an unrestricted practising certificate and the principal of a law firm in the ACT. The respondent, the Council of the Law Society of the ACT (‘Law Society’), was the body charged with the relevant administration of the Legal Profession Act 2006 (ACT).
The Law Society claimed that the appellant had engaged in conduct involving breaches of rr 1.2, 36.1 and 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) (‘LP Rules’) together with misleading conduct, amounting to professional misconduct or unsatisfactory professional conduct as those expressions are defined in the Legal Profession Act.
On 28 June 2012, the Australian Capital Territory Civil and Administrative Tribunal (ACAT) (‘Tribunal’) found the appellant guilty of unsatisfactory professional conduct in respect of three grounds and professional misconduct in respect of one ground: Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupational Discipline) [2012] ACAT 40 (‘ACAT liability decision’). On 8 February 2013, the Tribunal made orders recommending the removal of the appellant from the local roll of practitioners: Council of the Law Society of the ACT v The Legal Practitioner ‘Y’ (Occupational Regulation) [2013] ACAT 8 (‘ACAT penalty decision’).
The appellant sought to set aside the Tribunal’s decisions. The appeal to the Appeal Tribunal of the ACAT was removed into the Supreme Court pursuant to s 83(2) of the ACT Civil and Administrative Tribunal Act 2008 (ACT) and came before the primary judge.
The primary judge dismissed the appeal with costs: Legal Practitioner v Council of the Law Society of the ACT (No 2) [2015] ACTSC 317 (‘primary judgment’).
This current appeal to the Court of Appeal challenges the refusal of the primary judge to set aside the Tribunal’s decisions.
Background to the transactions in question
The primary judge reproduced the general background of this matter from [18]-[31] of the ACAT liability decision. It is helpful to again set this background out here:
On 4 May 2009, the [appellant’s] Firm was instructed to act for Mr N and Ms T, a married couple (the ‘Complainants’) on the purchase of a property at Kaleen (the ‘first retainer’). A costs agreement in relation to the Firm acting on that conveyance was entered into on 5 May 2009. Contracts were exchanged on 6 May 2009 and settlement was to take place on 15 June 2009.
On 18 May 2009, the Complainants instructed the [appellant] to act on their behalf on the refinance of their property in Lyneham, which involved the transfer of the title from the sole name of the Complainant husband to the Complainants’ joint names (the ‘second retainer’). Settlement of this transaction, the subject of the second retainer was required to occur simultaneously with the settlement of the Kaleen purchase, the subject of the first retainer. In relation to that transaction (the second retainer), the Firm provided the Complainants with a costs agreement on or about 18 May 2009. The costs agreement appears to have been signed by the husband Complainant on 21 May 2009 and returned to the Firm at or about the same time. The costs Agreement in relation to the second retainer described thirteen (13) tasks or ‘Works’ to be undertaken by the Firm. One of those was expressed as being:
Communicating and corresponding with the outgoing bank – arranging and attending to the discharge of mortgage and the incoming mortgage.
The second retainer required the stamping of the transfer by the ACT Revenue Office with nominal duty (the “exemption from stamp duty”) being a transfer of a principal residence from the sole name of the husband Complainant to the joint names of the Complainant husband and wife.
The transfer was required by ACT Revenue to be supported by a relatively simple Statutory Declaration attaching relevant documents.
On 3 June 2009, the Complainants signed a Statutory Declaration. It purported to attach a large number of supporting documents, which, as will become clear in due course, did not contain what was essential but did contain a lot of material which was probably surplus to requirements, bearing in mind the fact that the Complainants were married and had children. All that was required to support the stamp duty exemption in relation to the transaction was the Complainants’ marriage certificate.
On 23 June 2009, the Complainants signed yet another Statutory Declaration to which the same comments above are applicable. The statutory declaration was lodged with the Revenue Office on 23 June 2009.
On 24 June 2009, the Firm received a Notice to Complete and advised the Complainants.
On 26 June 2009, the Complainants advised the Firm that they had attended to the stamp duty exemption personally that day and they pressed the Firm for settlement of the transactions, the subject of both retainers. Plainly, the settlement by the Firm of both transactions had now become urgent. The Complainants faced the prospect of forfeiture of their deposit and or penalty interest.
On 30 June 2009, both transactions, the subject of both retainers settled. On 3 July 2009, the [appellant] wrote to the Complainants advising them of a number of matters including the fact that the transactions had settled. There can be no doubt that the letter contained a number of errors and omissions, an important omission, amongst others, being that the Complainants had been charged penalty interest of $1,428.77 in respect in the delay in settling the purchase of the Kaleen property.
On 20 July 2009, the Complainants wrote to the Society complaining about the manner in which the [appellant] had handled the transactions. On 29 July 2009, the [appellant] was advised of the complaint. And on 18 August 2009, the [appellant] responded to the Complainants’ complaint.
On 25 August 2009, the Complainant wife responded to the [appellant]’s response of 18 August.
On 4 September 2009, the [appellant], through his employed clerk, responded to the Complainants in two letters, which purported to correct the earlier errors and omissions regarding the settlement of the two transactions.
On 8 September 2009, the [appellant] responded to the Complainant wife’s letter of 25 August 2009.
On 20 October 2010, the Society commenced these proceedings by way of lodging an Application for Disciplinary Action. The Application was further amended until the final version of the Application the Second Further Amended Application (the “Application”), dated 2 August 2011, was filed.
ACAT proceedings
Ground 1. Failure to act with competence and diligence in breach of Rule 1.
Particulars:
1.1. The [appellant] negligently failed to implement his clients’ instructions relating to the transfer of a property to the joint names of the clients and the refinancing of a loan on the property in a competent and timely manner resulting in loss to the complainants in a related matter in which the [appellant] held concurrent instructions, 1.2. The [appellant] failed to provide the complainants with an accurate and complete settlement statement and tax invoices in respect of the two matters in which he had accepted instructions until after a period of two months of the transaction being settled.
Ground 2. Failure to administer his practice efficiently and properly in breach of Rule 36.1
Particulars:
2.1. The [appellant] failed to ensure that his practice was efficiently and properly administered to deliver the legal services for which he had been retained.
Ground 3. Failure to act honestly and fairly in breach of Rule 1.2
Particulars:
3.1. The [appellant] failed to act honestly and fairly in the service of his clients in blaming the ACT Revenue Office, and his clients’ banks for the delay in the settlement of the matters in which he was instructed when that delay was attributable to his own lack of competence and diligence in arranging for the stamping of the transfer document in a timely manner.
Ground 4. Failure to be open and frank in his dealings with Society in breach of rule 39.1 and misleading and deceptive conduct,
Particulars:
4.1. The [appellant], in his letter to the Society dated 18 August 2009, deliberately attempted to deceive the Society or in the alternative recklessly made a false representation to the Society, in breach of rule 39.1, by stating, in his letter to the Society dated 18 August 2009, with reference to the letter dated 3 July 2009 which was sent to the complainants. “During this period the writer was not in the country”; when in truth, the [appellant] was indeed as at 3 July 2009 when the letter was sent, in the country.
4.2. The [appellant] deliberately attempted to mislead this Tribunal, or alternatively recklessly made a false representation to this Tribunal, by confirming, in his affidavit sworn and filed on 2 February 2011, the correctness of his said letter of 18 August 2009 in that he attached to the said affidavit, relevantly, a copy of that said letter, and deposed to the matters set out in paragraphs 4 and 11 of the said affidavit, without correcting the false statement in the said letter that, “During this period the writer was not in the country”.”
1.2. A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness.
36.1. A practitioner should ensure that his or her practice is efficiently and properly administered and should take all reasonable and practicable steps to enable that professional engagements are fulfilled or that early notice is given if they cannot be fulfilled.
Rule 39.1 provides: 39.1. Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
The Tribunal found all four grounds alleged by the Law Society against the appellant proved. The Tribunal also agreed with the Law Society’s characterisation of the conduct in the first, second and third grounds as unsatisfactory professional conduct, and in the fourth ground as professional misconduct.
It will be necessary to return to the detail of the Tribunal’s findings later in this judgment when addressing the specific grounds of appeal.
The Tribunal recommended that the name of the appellant be removed from the local roll.
Decision of primary judge
Grounds of appeal
i. The affidavit of Mr [Z] [referred to as Mr Y in the ACAT proceedings].
ii. Two letters dated 3 July 2009 from the appellant to the complainants.
iii. The tax invoices from [the Firm] dated 19 June 2009 and 24 June 2009.
iv. The transfer document prepared for the ACT Revenue office and the accompanying printout of the file properties menu noting a modified date of 27 May 2009.
By limiting the use of the appellant’s affidavit affirmed 30 June 2011 to use as evidence of the appellant’s state of mind.
By refusing to permit the appellant to elicit supplementary evidence in chief from Mr Boyd.
By finding that the appellant had deliberately delayed the production of his passport to the Law Society, when the appellant had in fact sought directions from the Tribunal regarding the provision of pages from the passport.
By finding that the appellant’s distressed state of mind would have likely eased by 3 July 2009.
By finding that the appellant did not properly supervise his staff.
By finding that the appellant had recklessly or deliberately misled the Law Society as to his whereabouts on 3 July 2009.
By failing to find that the appellant had filed the transfer document with the ACT Revenue’s (sic) office on 9 June 2009.
By not finding that the Commonwealth Bank, Bank West and the ACT Revenue Office contributed to the delay in the conveyance. 10) By finding that the appellant if he had misled the Law Society recklessly rather than deliberately, that his conduct would nonetheless amount to professional misconduct.
By taking into account the manner in which the appellant conducted his defence in determining liability.
By finding that the appellant failed in his duty to be open and frank with the Law Society.
By confusing the refinancing of the complainant’s Lyneham property with the purchase of the complainant’s new property in Kaleen.
By failing afford adequate weight to the character references tendered in support of the appellant.
By failing to afford adequate weight to the appellant’s evidence of the loss of his practice and his financial hardship.
By ruling that a previous disciplinary proceeding subject to a pending appeal could properly be taken into consideration adverse to the appellant in determining penalty.
The appellant did not press Ground 13 before the primary judge.
The appellant also sought leave to adduce fresh or further evidence.
The conduct of the appeal before the primary judge
In the course of the hearing of the appeal and recorded in his judgment (primary judgment at [11]-[12]), the primary judge set out the nature of the appeal he was conducting. He adopted his own reasons in the related matter, Legal Practitioner v Council of the Law Society of the ACT [2015] ACTSC 316; 303 FLR 17 at [59]-[84], and made clear that he was conducting an appeal by way of rehearing, requiring the appellant to demonstrate error on the part of the Tribunal and invoke well know principles. The primary judge said ([2015] ACTSC 316 at [82]-[84]):
The principles governing a rehearing are well known. In the absence of wider statutory powers, the appellate court may only intervene to change the decision appealed from where, having regard to all the evidence, the appellant demonstrates some legal, factual or discretionary error by the original decision maker: Allesch v Maunz (2000) 203 CLR 172 at [23] per Gaudron, McHugh, Gummow and Hayne JJ. In conducting such an appeal, the appellate court proceeds on the basis of the record and any fresh evidence it may admit: Fox v Percy [2003] HCA 22; 214 CLR 118 at [22] per Gleeson CJ, Gummow and Kirby JJ. The appellate court is obliged to conduct a real review of the trial and the first instance reasons, and, within the constraints of the appeal process, to give the judgment that should have been given at first instance.
Among the constraints marked out by the appellate process is the need to bear in mind that the appeal court has not seen or heard the witnesses. It is only if, making proper allowance for the advantages of the first instance tribunal, the appellate court concludes that an error has been demonstrated that it is authorised to exercise its appellate function: Fox v Percy at [27]; Lukatela v Birch [2008] ACTSC 99 at [21]. 84. The circumstances where an appellate court will overturn findings of fact based on findings of credibility were discussed in Fox v Percy at [28] – [29]: Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellate obligations and appellate restraint. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings. That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the present case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. (Footnotes omitted).
There is no ground of appeal challenging his Honour’s description of the nature of the appeal before him. Once the nature of the appeal is recognised, it is clear that the fact finding task is primarily that of the Tribunal who saw and heard the witnesses during the trial subject only to the permitted appellant intervention such as that referred to above. As will be seen below, the appellant, in both his grounds for appeal and his submissions, strayed from this approach.
Application to adduce further evidence before the primary judge
(a) the affidavits of Ms Yingzi Sun and Ms Danica Davies, former employees of the appellant;
(b) the affidavit of Mr Z, a locum at the appellant’s practice;
(c) the affidavit of Mr Christopher Boyd, an accredited property law specialist from the NSW Law Society; and
(d) miscellaneous documents, being:
(i) subpoenas addressed to the Proper Officer of the ACT Revenue Office;
(ii) two bundles of documents, referred to as Bundle of Documents (1) and Bundle of Documents (2);
(iii) the “Kaleen final letter” dated 3 July 2009;
(iv) the “Kaleen Tax Invoice” dated June 2009;
(v) the “Lyneham final letter” dated 3 July 2009;
(vi) the “Lyneham Transfer”; (vii) the “Lyneham Tax Invoice” created 19 June 2009;
(viii) the “Lyneham Tax Invoice” created 28 June 2009;
(ix) email correspondence between the appellant and the Tribunal; and
(x) correspondence between the appellant and the Tribunal.
The primary judge recorded the fact that the affidavits of Ms Sun and Ms Davies were not sought to be read during the hearing before the Tribunal, but the affidavits of Mr Z and Mr Boyd and the miscellaneous documents were sought to be relied upon by the appellant at the hearing but were rejected by the Tribunal: primary judgment at [38]. This then involved a situation where there was both further evidence and a question of whether other evidence had been wrongly rejected by the Tribunal.
His Honour noted that the application to adduce further evidence was governed by r 5052(1)(c) of the Court Procedures Rules 2006 (ACT) (the Court “may, on special grounds, receive further evidence”), and was subject to the principles set out in Tjiong v Tjiong [2012] NSWCA 201 at [165]-[176]. In summary, his Honour found:
(a) In relation to the proposed evidence of Ms Sun: by his own admission, the appellant had failed to issue subpoenas to Ms Sun prior to the trial, and while he did not indicate the methods that he used to attempt to locate Ms Sun, the methods he now proposed were those that were open to him prior to the Tribunal hearing. Accordingly, his Honour was satisfied that Ms Sun’s proposed evidence could have been obtained by reasonable diligence prior to the trial. Further, the appellant had acknowledged that, at best, Ms Sun would be able to provide evidence about what she was told by another employee. It followed that there was not a high degree of probability that there would be a different verdict were her evidence admitted.
(b) In relation to the proposed evidence of Ms Davies: although the appellant may not have been aware of the need to call evidence from Ms Davies until the hearing before the Tribunal had begun, the evidence would have been available had he made appropriate enquiries. Further, the fact that Ms Davies had signed a relevant letter was not disputed. There was neither a high likelihood, nor a requirement of justice, that would support the exercise of the Court’s discretion to receive this evidence.
(c) In relation to proposed evidence of Mr Boyd: the evidence of Mr Boyd was incorporated into a joint expert report. The appellant had not explained what additional evidence he sought from Mr Boyd, nor explained why such evidence would result in a high likelihood of a different verdict.
(d) In relation to proposed evidence of Mr Z: it appeared that Mr Z had sworn an affidavit on 7 November 2011, which was three days before evidence finished in the Tribunal hearing. It followed that the appellant had time in the period leaving up to the hearing to make arrangements to ensure that Mr Z was able to attend the Tribunal hearing. There was also material from which the Court could infer that the appellant had deliberately decided not to call Mr Z. In any event, although the appellant sought to rely on the evidence of Mr Z to suggest that the appellant was not responsible for the letter of 3 July 2009 (because Mr Z had taken over responsibility of conducting the practice at that time), the affidavit of Mr Z did not go that far. Further, it appeared from the locum agreement dated 3 July 2009 that Mr Z’s locum duties in the appellant’s firm had commenced only on 6 July 2009. It followed that the evidence of Mr Z would not have resulted in a different outcome in the proceedings.
(e) In relation to the miscellaneous documents: his Honour noted that these documents had been rejected by the Tribunal, and the appellant had not identified the relevance of the documents or how they would be likely to result in a different outcome on the appeal.
Disposition of the grounds of appeal
The notice of appeal
The appellant appealed from the decision of the primary judge. Although there were 16 grounds of appeal before the primary judge, in the Notice of Appeal to this Court there were 43 grounds of appeal. The multiplication of grounds of appeal was unnecessary and complicated the disposition of the appeal.
The grounds of appeal fall into three different categories:
(a) Grounds 1-5 are not organised under any heading;
(b) Grounds 6-15 are organised under headings which corresponded to headings in the primary judge’s decision in which he was summarising the decision of the Tribunal;
(c) Grounds 16-43 are organised under headings which correspond to those parts of the primary judge’s decision in which he addressed the appellant’s grounds of appeal.
The jurisdiction of this Court on the appeal
It is important to identify the nature of the jurisdiction exercised by the Court of Appeal in this case. There is a body of authority that concludes that the nature of an appeal under pt 2A of the Supreme Court Act 1933 (ACT) is that of a re-hearing: see for example, Huen v Hyland [2004] ACTCA 5 at [54]; Australian Capital Territory v Crowley [2012] ACTCA 52; 7 ACTLR 142 at [5].
In the context of an appeal to the Court of Appeal from a primary judge, who also conducted a rehearing as explained in [19] above, the joint judgment in Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 made this general observation:
As a general statement, the Court observes that where an appeal is in essence an appeal from an appeal (in this case an appeal from the decision of Refshauge J who heard an appeal from a decision of ACAT) the appellant is confined to identifying error in the decision in the court below, and is not permitted to mount a fresh attack on the decision of the original tribunal (ACAT). This is not to say of course that errors in the court below dealing with the earlier decision cannot be the subject of complaint. The errors however must be errors of the court below and not be the subject of a renewed assault on the decision of the original court or tribunal.
How the appeal was argued
At the hearing of the appeal, counsel for the appellant identified the grounds that he submitted were the “critical” points. He refined this later by saying that they were his “strongest” points.
Counsel stressed that all grounds of appeal were pressed by the appellant and relied upon the 56 pages of written submissions which his client had previously filed with the Court in relation to those grounds not addressed orally.
It is convenient to address the grounds of appeal taken up by counsel for the appellant in oral argument at the hearing of the appeal before turning to the balance of the grounds of appeal.
Ground 15 – refusal to admit evidence
It would have been more helpful to express this ground as encompassing two distinct discretions, distinguishing between the situation where the evidence was sought to be tendered before the Tribunal, but was rejected by the Tribunal, and the admission by the primary judge of further evidence on appeal. In the former case, the primary judge needed to review the exercise of the discretion by the Tribunal, as a matter of practice and procedure, having regard to the circumstances in which it was tendered and the time it was tendered. In the latter case, the primary judge needed to exercise a discretion under the rules for further evidence.
In written submissions the appellant stated:
(i) The appellant clearly articulated to the Court [below] how and why the appellant’s evidence that was refused by the Tribunal and his fresh evidence would clearly help him to win the appeal. However, the whole of his request was unfairly and unjustly refused.
There was no analysis contained in those submissions showing how the discretion, or discretions, miscarried and no reference to such cases as House v The King (1936) 55 CLR 499.
There is no doubt that the primary judge was alive to the distinct cases: see primary judgment at [38]. In particular, he observed:
The affidavits of Ms Yingzi Sun and Ms Danica Davies were not adduced during the original ACAT proceedings. The practitioner attempted to rely on the affidavits of Mr Z and Mr Boyd and the miscellaneous documents in those proceedings, but they were rejected by the ACAT; as such, this material is not strictly further evidence, and the question of its admissibility is properly to be dealt with under Grounds 1 and 3 of the grounds of appeal. I will nevertheless, for the sake of completeness, apply the appropriate test governing the reception of further evidence to this material.
(Emphasis added).
The primary judge, at [69]-[77] of his judgment, examined separately the question of whether the Tribunal had properly refused to admit the evidence.
At the hearing of the appeal, counsel for the appellant focused on the test applied by the primary judge as to further evidence. Counsel put:
MR O'KEEFE: I'll address your Honour on that additional evidence point first. The appellant had a number of difficulties subpoenaing witnesses to that hearing. It's our submission that the evidence assists him with a number of different points that he was challenging in the appeal. The test that his Honour applied was a fairly strict one. He took it from a case called Tjiong v Tjiong. In fact the rule of court under which the evidence may be admitted is a little more general: "The court may on special grounds seek further evidence about questions of fact." We'd submit that the Tjiong test is not the test. The court should apply the Rules of Court which gives a broader discretion.
…
MOSSOP J: In any event, I think we understand your submission. You say that the test in Tjiong is different from that required by rule 5052?
MR O'KEEFE: That's right.
MOSSOP J: Yes.
MR O'KEEFE: That's as far as I can advance the argument. I accept that - - -
Section 75A(8) of the Supreme Court Act 1970 (NSW) provides that “the Court may not receive further evidence on appeal where the appeal is from a judgment after a hearing on the merits except on special grounds”. This was the rule referred to in Tjiong v Tjiong.
Rule 5052(1)(c) of the Court Procedures Rules provides that for an appeal to the Supreme Court, “the court may, on special grounds, receive further evidence about questions of fact, either orally in court, by affidavit or in another way”.
There is no relevant difference between the formulation of the test in s 75A and that in r 5052.
In Tjiong v Tjiong, at [165]-[176], the applicable principles relevant to the exercise of the discretion under this rule are discussed. Counsel did not suggest that the Court should adopt a different interpretation of the rule than that given to it by the NSW Court of Appeal, nor did he suggest that the application of the discretionary factors had been misapplied in such a way as to raise appellable error.
In the case of the proposed affidavit evidence of Ms Sun, the primary judge found that the evidence could have been obtained by reasonable diligence prior to the trial and that her evidence would have been rendered moot by other findings of the Tribunal. No error is apparent in the analysis of the primary judge in respect of this issue.
So far as it concerns the refusal of the Tribunal to accept the further evidence the appellant sought to adduce, his Honour considered the circumstances in which the Tribunal had declined to accept the affidavit of Mr Z, the tax invoices, the affidavit of Ms Davies, other miscellaneous documents, and the affidavit of Mr Boyd. The primary judge gave detailed reasons for his view that the Tribunal had not erred in its approach. No errors are apparent in his reasons in this respect and counsel for the appellant did not identify any specific error for our consideration.
This ground of appeal has no merit.
Ground 36 – deliberately or recklessly
(i) Wrongfully held that the ACAT’s primary finding in its para [156], articulated that the appellant had deliberately misled the Respondent.
In contrast to other grounds in the Notice of Appeal, Ground 36 corresponds to Ground 10 which was before the primary judge and which is set out above at [13] above.
As can be seen, the ground first takes issue with characterisation of the appellant’s conduct and not the primary facts making up that conduct. Second, it takes issue with the primary judge’s interpretation of the Tribunal’s finding.
It is necessary to interpolate here to record that Ground 36, as expressed above, does not refer to the finding that the appellant also misled the Tribunal and not just the “Respondent.” What follows deals with both contentions as that appears to be the substance of the appellant’s complaint.
This ground of appeal was directed to the fourth complaint made by the Law Society which is set out in full at [8] above.
Each of particulars to 4.1 and 4.2 allege that the appellant “… deliberately attempted to deceive the Law Society/Tribunal or in the alternative recklessly made a false representation to …”
That formulation is a combination of elements of a breach of r 39.1 and misleading and deceptive conduct.
The primary facts making up the fourth complaint are the subject of other grounds of appeal. For present purposes, it suffices to record that on 3 July 2009, a letter was sent to the complainants which the Tribunal found contained serious errors. In a letter to the Law Society dated 18 August 2009, the appellant stated, in reference to the 3 July 2009 letter, that “[d]uring this period the writer was not in the country” and as a result he was not responsible for its contents. As a matter of fact, the appellant was in Australia on 3 July 2009. On 2 February 2011, the appellant swore and filed an affidavit which attached the letter of 18 August 2009 and deposed to the matters set out in the affidavit, without correcting the false statement that “[d]uring this period the writer was not in the country”.
The Tribunal made findings and reached conclusions on the fourth complaint which it is necessary to set out in full so as to expose the Tribunal’s reasoning.
Those findings and conclusions (omitting footnotes) were: 139. The Society submitted that the Practitioner deliberately attempted to mislead this Tribunal, or alternatively recklessly made a false representation to this Tribunal, by confirming, in his affidavit affirmed and filed on 2 February 2011, the correctness of his letter of 18 August 2009, in that he annexed to that affidavit, relevantly, a copy of that letter, and deposed to the matters set out in paragraphs 4 and 11 of his affidavit, without correcting the false statement in that letter that, ‘during this period the writer was not in the country’.
The Society submits that the Tribunal should be comfortably satisfied that the Practitioner knowingly and deliberately attempted to mislead the Society when he claimed in his letter to the Society of 18 August 2009 that he was ‘not in the country’ when the settlement letter of 3 July 2009 was sent.
The Society submitted that this entirely false assertion occurred only some six weeks after the event (that is 18 August 2009, with the letter and day in question being 3 July 2009). The 3 July 2009 letter was, as has been submitted, replete with significant and, in the circumstances, embarrassing misstatements.
It was the one thing, which, as the Practitioner conceded, he could not blame on the banks, ACT Revenue, or his clients. Indeed, in the Tribunal’s view, it was in fact, the only concession he made and he had to make it because nothing else except the term ‘inexcusable’ could adequately describe the contents of the letter.
The Society contends that the Practitioner’s claim not to have been in the country was a dishonest statement or a statement made recklessly with scant regard for the accuracy or indeed the truth of the statement in circumstances, which the Tribunal has noted above sits most uncomfortably with the Practitioner’s duty of frankness and candour.
Having regard to the evidence which the Tribunal has found in relation to the grounds already proved, it is conduct which is characteristic of the Practitioner’s attempts to blame others for his own shortcomings.
Not only was the Practitioner in Australia on 3 July 2009, he was in the office, working. Indeed, the Practitioner signed the locum agreement with Mr [Z] on 3 July 2009. This agreement provided that his locum (while undoubtedly present and introduced to staff for some at least some of the time on 3 July 2009) would begin in earnest on 6 July 2009.
It beggars belief that the Practitioner could possibly have forgotten that he was still in the office as of this day, and indeed that he did not arrive at his destination until 5 days later on 8 July 2009.
Having regard to the evidence, the Tribunal regarded the Practitioner’s submission that the letter of 3 July 2009 was the responsibility of his locum, Mr [Z] when, plainly it was his responsibility.
The true facts were readily at his disposal when he wrote this letter and indeed he had had a considerable amount of time to respond to the complaint of 20 July 2009, having been asked to do so on 29 July 2009 by the Law Society.
The Society submitted that the Practitioner’s oral evidence on this topic merely underscored his evasiveness and mendacity, as well as exemplifying his appalling approach to giving evidence.
Having regard to the foregoing, the Society submitted that the Tribunal should be comfortably satisfied that this false representation could only have been deliberate. Alternatively, the Society submits that, if the conduct was not deliberate, it was at least reckless, given the ease with which Practitioner could have ascertained the true position, the importance of the letter, in the context of a duty of frankness and candour to the Society, and the closeness in time of the events.
Particular 4.2
On 9 June 2011, the Society served a notice on the Practitioner returnable at the hearing, then set to commence on 9 August 2011, to produce his passport which was current in and around June 2009, and sought in the meantime a copy of the same. The Practitioner failed to provide any such copy;
On 16 June 2011, the Practitioner, quite inappropriately, and yet not for the first time, corresponded directly with the learned General President of the Tribunal and;
Asserted that the passport was ‘irrelevant to the matter at hand and also breaches my privacy and confidentiality’ and that he ‘opposed' the notice to produce;
Agreed to show ‘the page of my passport to the Law Society that proves I have travelled overseas during early July 2009, a fact I have stated previously. This should be sufficient for the present purpose’.
Pausing, it is obvious to the Tribunal that the Practitioner was aware of what the passport truly showed, and that, far from being frank, even at this late stage, he was attempting to prevaricate both as to the facts and as to how he had characterised them.
On 17 June 2011 the Society requested a copy of the relevant pages of the Practitioner’s passport indicating the period during which he was overseas in June/July 2009 for the present purposes.
The Practitioner failed over the ensuing month to provide this material even though he had alleged that it would be ‘sufficient’. The Society followed up the Practitioner by an email and, in response on 22 July 2011, he finally provided a copy of his passport pages indicating, as he stated in his covering letter, arrival at his overseas destination on 8 July 2009 and departure on 22 July 2009.
The Practitioner attempted in his evidence to portray his ultimate ‘disclosure’ of having been in the country in his affidavit of 30 June 2011 as demonstrative of his frankness and candour. That a lawyer does not attempt to conceal or downplay the seriousness of his or her misconduct, responding in an honest and frank manner to the inquiries of the relevant professional body, tribunal or court ‘may well demonstrate that he is a person truly to be relied on’. That is simply not the case here. The Tribunal does not accept that assertion made by the Practitioner. In all of the circumstances of this case, that assertion made by him is specious. That is because, upon analysis, the contrary is the case.
The Practitioner’s oral evidence and his tone, demeanour, and characteristic evasiveness, reinforces the conclusion that arises from the surrounding circumstances outlined above, namely that he engaged in a deliberate act of dishonesty, or, in the alternative, at the very least was reckless in making on his affirmation a false statement to the Tribunal. 157. The Tribunal is comfortably satisfied, as to the submissions in relation to each of Grounds 4.1 and 4.2. The Tribunal finds them proved.
Characterisation of Conduct
To attempt to mislead the Society, and then this Tribunal in affirmed evidence is, in each case, professional misconduct of a high order. The same is true of recklessly making so false a statement to the Society, and of recklessly giving false evidence in disciplinary proceedings, concerning the Practitioner and as to a material matter.
Either alternative (deliberate or reckless), each charge would justify a finding that the Practitioner is not fit and proper to engage in legal practice.
Further, under the common law definition which section 387 encompasses, each charge (4.1 and 4.2) on either alternative of deliberateness or recklessness would reasonably be regarded as disgraceful and dishonourable conduct by practitioners of good repute and competency.
There is ambiguity attaching to the Tribunal’s finding in [156] in the quote above. One way of reading the paragraph is that both the “deliberateness” allegation and the “recklessness” allegation were each proved. However, that contention is undercut by the expression “at the very least”. There is also an inconsistency between deliberateness and recklessness as being two incompatible states of mind. If a statement is deliberately false then it is not recklessly false. The Tribunal recognised in its judgment, at [13]-[14], that the standard of proof involved in proving the allegations was that of Briginshaw v Briginshaw (1938) 60 CLR 336. When the standard of proof is brought into consideration it may provide the reason for saying “at the very least”.
The primary judge dealt with this ground of appeal at [108] of his judgment. He said:
The practitioner alleges that the ACAT erred by finding that, if he had misled the Society recklessly rather than deliberately, his conduct would nonetheless amount to professional misconduct. In his written submissions on appeal, the practitioner said that the ACAT held that he had misled the Society either deliberately or recklessly, but that the reasons did not differentiate between the two. He submitted that there is a significant difference between deliberately misleading and recklessly misleading the Society. In my opinion, there is no merit in this submission. It is apparent from the reasons of the ACAT, at [156], that the primary finding was that the practitioner deliberately misled the Society. The ACAT then went on to say that, in the alternative, he was reckless “at the very least”. Whilst there is a difference between recklessly and deliberately misleading, the Tribunal was correct, in these circumstances, to conclude that recklessly misleading the Society, and recklessly giving false evidence in an attempt to mislead the Tribunal would nevertheless justify a finding of professional misconduct.
There are five matters to notice in this paragraph. First, the passage in [156] is capable of ambiguity as to what finding was made by the Tribunal against the appellant to the requisite standard. Second, presumably the primary judge meant that the finding was that the appellant deliberately misled or was reckless both towards the Society and the Tribunal. Third, it is not accurate to say, and the appellant was not charged with, “recklessly giving false evidence in an attempt to mislead the Tribunal”. Fourth, the primary judge has not, other than by an unvarnished conclusion, matched the conduct found to the standard of professional misconduct set out in the inclusionary definition under s 387 of the Legal Profession Act. Fifth, the appellant is entitled to a precise finding as to his conduct, for he faces being struck off the roll as a result of his conduct. A finding of “recklessness” as opposed to “deliberateness” may be of benefit to him in seeking to resist that application.
The primary judge read [156] of the Tribunal’s judgment as amounting to a “primary finding” of deliberateness. This is not the only reading of the passage.
For present purposes, it is necessary to determine whether the finding of recklessness has a material outcome for the appeal. The Tribunal found in circumstances that that would not be so in their judgment at [158]-[160] above. The primary judge agreed.
Section 387(1)(i) of the Legal Profession Act provides, by way of an inclusionary definition, that:
387 What is professional misconduct?
(1) In this Act
professional misconduct includes—
(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and
(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.
In oral submissions, counsel for the appellant submitted that it was important for the Tribunal to make a finding about whether the conduct was deliberate or reckless. This submission is correct.
Counsel argued that the concepts of deliberateness or recklessness did not feature in the rules or legislation and that no authority was cited for them. It was also submitted that “reckless dishonesty” was a nebulous concept: either a person would be aware something was untrue and therefore their conduct was deliberate, or the person was not sure if it was untrue and therefore their conduct would be negligent and unrelated to deception or dishonesty. There is no intermediate third concept of recklessness, and it was not open to the Tribunal to make that finding, and therefore the matter should be referred back to the Tribunal for clarification. This latter submission cannot be accepted.
It is clear enough that an appellant may be guilty of recklessness were he or she to certify to a professional body that they had undertaken a minimum of 10 hours of professional development where the appellant's state of mind, at the time, was that he or she were not sure that had been completed, but that it was in the order of 10 hours or maybe even more. That is not negligence but is recklessness. There is an advertence to the possibility of the statement made being untrue and a conscious decision to disregard that risk.
The concept of recklessness is recognised in G E Dal Pont, Solicitors Manual (LexisNexis Butterworths, 2005) at [35,035] where the author states:
[35,035] Introduction
Although making false or misleading statements to the court clearly strikes at the heart of the administration of justice …, for a lawyer to knowingly or recklessly make false or misleading statements to persons other than the court – whether to a client, an opponent, a professional body or tribunal … is likewise indicative of dishonesty. It therefore amounts to professional misconduct, or at least unsatisfactory professional conduct.
The author also observes, at [35,015], that “a finding of recklessness as opposed to knowledge, though, may influence the severity of the disciplinary sanction”.
The concept of recklessness is well illustrated in Giudice v Legal Profession Complaints Committee [2016] WASCA 159 at [31] where the Western Australian Court of Appeal stated:
… A finding that the appellant was reckless as to whether the statement in par 20 of the affidavit was true or false required the Tribunal to find as a fact that the appellant was subjectively aware there was a risk that it was false and that he consciously disregarded that risk.
A finding made against the appellant at [156] of the Tribunal’s judgment was that “at the very least [the appellant] was reckless in making on his affirmation a false statement to the Tribunal”. Whether this amounts to professional misconduct requires an analysis of all of the proved circumstances.
Those circumstances are that the appellant was answering a complaint made against him by a client where his answer, he knew, would be material to the Law Society’s further actions and deliberations. It concerned a relevantly recent matter within his own knowledge and a matter that could easily be verified by documents in his possession. There was time to carefully consider the reply. The same comments apply with the necessary changes to the swearing of an affidavit to be used by the appellant in the Tribunal hearing. The false statement, that he was not in the country at the relevant time, was a statement made to the perceived advantage of the appellant himself.
Given that the finding of recklessness implies that the appellant was aware of the risk in each case, that the statement made by him may be untrue but that he disregarded that risk in those circumstances, then that conduct is correctly characterised as professional misconduct.
There are numerous statements which detail the role played and position occupied by a solicitor in the proper administration of justice. It is clear that the system for administration of justice relies heavily upon the integrity of the profession and the discharge of the duties falling upon members of the profession. Members must be able to command the confidence of all the participants in the administration of justice. Elements of that confidence are that the word of the member must be able to be trusted to be true and that the member will not make false statements or create misleading impressions.
The conduct engaged in by the appellant, justifies a finding that the appellant is not a fit and proper person to engage in legal practice. This is so whether the conduct is measured directly against the statute or the test derived from conduct which “would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency.” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750).
Other grounds of appeal
The remaining grounds of appeal were not the subject of any oral submissions. They are to be determined upon the basis of the written submissions that were filed. As pointed out above at [26], Grounds 16 to 43 in the Notice of Appeal were organised under headings which corresponded to those parts of the primary judgment in which the primary judge addressed the grounds of appeal before him. It is convenient to address those grounds first because they address the substantive grounds of appeal which the primary judge was obliged to determine. It will then be necessary to make reference to the remaining grounds of appeal.
The headings below identify the grounds of appeal in the present appeal and also the corresponding grounds of appeal before the primary judge.
Grounds 16-17 (primary judge Grounds 1 and 3)
(a) the affidavit of Mr Z;
(b) two letters dated 3 July 2009 from the appellant to the complainants;
(c) tax invoices from the firm dated 19 June 2009 and 24 June 2009; and
(d) the transfer document prepared for the ACT Revenue Office and the accompanying printout of the file properties menu noting a modified date of 27 May 2009.
In relation to Ground 3, the evidence was “supplementary evidence in chief from Mr Boyd”.
The primary judge dealt with Grounds 1 and 3 before him in addition to having earlier dealt with the application to adduce further evidence in the appeal. There was a substantial overlap in relation to the material subject to the application to adduce further evidence and the material subject to Grounds 1 and 3.
His Honour dealt with these grounds at [69]-[77] of the judgment. In summary, his Honour reasoned as follows:
(a) The appellant submitted that, pursuant to s 56 of the Evidence Act 2011 (ACT), the Tribunal was under a statutory obligation to receive that evidence. His Honour rejected this submission on the basis that, if it were correct, a party to litigation could utterly ignore directions given by a court or tribunal concerning the filing and service of evidence and tender evidence at any time during proceedings, provided the evidence was in some way relevant.
(b) In the Tribunal, the appellant had not attempted to read the affidavit of Mr Z until he was in the process of making final submissions, and the Tribunal correctly saw this as an application by the appellant to reopen his case. (c) The contents of Mr Z’s affidavit did not establish that the appellant was not present at, and in charge of, his firm on 3 July 2009.
(d) Similarly the appellant did not attempt to tender the tax invoices or other miscellaneous documents until he was in the process of making final submissions to the Tribunal.
(e) There was no merit in the appellant’s claims concerning Mr Boyd’s evidence, in circumstances where Mr Boyd had been party to a joint expert report. The appellant did not press the acceptance by the Tribunal of Mr Boyd’s affidavit during the hearing, and it was difficult to believe that the appellant misapprehended the difference between the affidavit having been filed in the Registry and being placed before the Tribunal as evidence.
(f) The extent to which Mr Boyd disagreed with the other expert was expressed in the joint report.
(g) The appellant had not demonstrated any error on the part of the Tribunal concerning its reception of the joint expert report and its refusal to allow the appellant to reopen his case, read Mr Boyd’s affidavit and to call Mr Boyd as a witness.
Wrongfully held that contents of the appellant’s 1 October 2013 affidavit do not establish that the appellant was not present at and in charge of the firm on 3 July 2009.
Wrongfully held that the appellant did not [attempt] to tender tax invoices from his firm created on 19 June 2009 and 28 June 2009 until he made the final Tribunal submissions, and that those documents were not relevant to producing a different result.
In relation to Ground 16, the appellant submitted that his evidence proved that Mr Z was working as a locum in the office on 3 July 2009 and that Mr Z’s affidavit confirmed that fact. He asserted that Mr Z was willing to come and give evidence and the Court’s rejection of that application was unlawful.
He also relied upon his submissions in relation to Ground 12 in which he contended that the Tribunal had wrongly refused to admit Mr Z’s affidavit and that the Court should have so found.
The primary judge dealt with the admission of Mr Z’s affidavit at some length in the context of further evidence. There is no error in his Honour’s approach or his Honour’s conclusion in the circumstances of the case before him. Therefore, this ground of appeal is not made out. Finally on this ground, the ground of appeal is, in any event, misconceived insofar as it asserts that his Honour made a finding in relation to the affidavit of 1 October 2013 (“Wrongfully held that contents of the appellant’s 1 October 2013 affidavit do not establish…”). His Honour did not make a finding in relation to the affidavit of 1 October 2013.
In relation to Ground 17, the appellant submitted that he had explained the relevance of the documents in his affidavit of 1 October 2013. He also submitted that the Court had made a presumption in relation to the creation date of the two tax invoices in [71] of the primary judgment (that the documents had been produced on the date indicated by a handwritten note on them and not on the later dates which they bore) and that the presumption had not been put to the appellant.
The affidavit of 1 October 2013 annexes and makes reference to the two tax invoices. The affidavit and the submissions taken together do not explain how the tax invoices might have been significant evidence. Unfortunately, we are left in the same position as the primary judge who said (at [71]):
… I must confess that the relevance of these documents eludes me. In his written submissions on this appeal, the practitioner does not explain how these documents are relevant, and how they would have been likely to have made any difference to the outcome of the proceedings before the ACAT.
This ground of appeal has not been made out.
Grounds 18-19 (primary judge Ground 2)
Failed to acknowledge that the Tribunal’s view was to make the appellant’s entire affidavit of 30 June 2011 inadmissible except for establishing the appellant’s state of mind, but, incorrectly believed that the Tribunal’s view was to accept inadmissible material for the limited purpose of establishing the appellant’s state of mind.
Failed to find that the Tribunal allowed the Respondents Counsel to use the Appellant’s affidavit to cross-examine him, which it had held inadmissible.
In relation to Ground 18, the Tribunal explained how it had dealt with the inadmissible portions of the appellant’s affidavit (at [83]) by setting out a portion of transcript in which the presiding member and counsel for the Law Society discussed how to deal with the multitude of objections that the Law Society made to the admissibility of the appellant’s affidavit. The end result of that process was that the whole of the affidavit was admitted into evidence but those portions which were ultimately determined to be inadmissible would be taken into account as providing evidence of the appellant’s state of mind at the time.
It is important to note that the affidavit evidence of the appellant was supplemented by oral evidence. He gave oral evidence which appears over 100 pages of transcript. He was then cross-examined.
The Tribunal was extremely critical of his evidence saying (at [76]) that he “appeared to either have no understanding of the differences between evidence, more importantly, admissible evidence and submission or argument when the proceedings were at the evidentiary stage”. The Tribunal said, “It was for that reason that most of his ‘evidence’ in his case was rejected or was given little weight by the Tribunal”. So far as the evidence that he gave in cross-examination was concerned, the Tribunal said (at [77]):
… When asked questions in cross-examination from [counsel for the Law Society] or from members of the Tribunal, he gave unresponsive answers, engaged in what appeared to the Tribunal to be obfuscation, prevarication and resorted to irrelevant lengthy speeches, complaints and insulting remarks directed, not only at the Tribunal, but also at [counsel for the Law Society] personally.
(Footnotes omitted).
The primary judge dealt with the complaint about how his affidavit evidence was received (at [78]) as follows: 78. The practitioner alleged that the ACAT erred by limiting the use of his affidavit affirmed 30 June 2011 as evidence of his state of mind only. This ground is misconceived. It is very clear from a reading of the transcript of the proceedings in the ACAT that there were a number of objections raised by the Society to the contents of the practitioner’s affidavit. Examination of the affidavit in question reveals that much of the material is clearly inadmissible as hearsay, speculation, opinion and comment. As the ACAT noted, it would have been a time-consuming task to deal with all of the objections to the contents of the affidavit taken by the Society. The ACAT proposed a sensible course of receiving all of the material in the affidavit, but where material was otherwise inadmissible it would be received for the limited purpose of establishing the practitioner’s state of mind with respect to that particular matter. There can be no question of prejudice to the practitioner as a consequence of the ACAT adopting this approach; indeed, it was an approach favourable to the practitioner and constituted an indulgence by the ACAT in his favour. No error has been demonstrated by the practitioner with respect to the approach adopted by the ACAT to the reception of this affidavit.
In our view, his Honour correctly characterised the manner in which the Tribunal dealt with the question of admissibility. His Honour also correctly identified that there could be no question of prejudice to the appellant as a consequence of the ACAT adopting that approach. There is no error in his Honour’s reasoning and hence, this ground of appeal is not made out.
So far as Ground 19 is concerned, this ground goes beyond any ground of appeal taken below. Given that it was not a ground of any appeal before the primary judge, his Honour did not err in failing to make the finding contended for. In any event, having regard to the manner in which the Tribunal dealt with the admissibility of the affidavit, counsel for the Law Society was clearly entitled to cross-examine on that material. Even if the material had been specifically ruled to be inadmissible, counsel for the Law Society would have been entitled to cross-examine it back in for, most obviously, credibility purposes.
Grounds 20-21 (primary judge Ground 4)
When proceedings were before the Tribunal, the Law Society had requested the appellant to produce his passport. The contents of his passport had the potential to be significant evidence because it may show whether the appellant was overseas on 3 July 2009 as he had asserted in the letter of 18 August 2009 to the Law Society. The Tribunal made findings in relation to the appellant’s conduct concerning the production of the passport when dealing with particular 4.2: see ACAT liability decision at [151]-[157].
Ground 4 of the appeal to the primary judge was that the Tribunal had erred in finding that the appellant had deliberately delayed the production of his passport when he had in fact sought directions from the Tribunal regarding the provision of pages from the passport.
The primary judge found (at [80]-[81]) that it was, in fact, open to the Tribunal to find that the course adopted by the appellant demonstrated a reluctance to produce the relevant material in circumstances where he was well aware that the contents of the passport would not support the proposition that he was overseas on 3 July 2009. Further, this issue was not significant in the reasoning process of the Tribunal. In any event, the appellant now accepted that he was in Australia, in his office, on 3 July 2009.
Grounds of appeal 20 and 21 alleged error on the part of the primary judge in that he:
Wrongfully held that the delay in production of the passport did not prominently feature in the ACAT’s reasoning in finding the appellant guilty of Ground 4 when it was the prominent feature of the ACAT’s finding.
Failed to hold that the Tribunal failed to give deference to the appellant’s affidavit of 30 June 2010 [2011] which corrected the innocent mistake that the appellant made in his 18 August 2009 letter; and that affidavit overrides the error in the letter.
So far as Ground 20 is concerned, the written submissions of the appellant assert baldly that “it was the prominent feature of the ACAT’s finding” and then refers to the terms of his affidavit on 1 October 2013 in which he provides an explanation for his failure to provide his passport to the Law Society.
Ground 4.2 in the Law Society’s complaint (at [8] above) alleged a deliberate attempt to mislead the Tribunal or make a false representation to it by confirming in an affidavit of 2 February 2011, the correctness of the letter of 18 August 2009 in which he asserted “during this period the writer was not in the country”. The reasons of the Tribunal go into some detail about the attempts made by the Law Society to obtain the appellant’s passport. It also addressed the appellant’s contention that his ultimate disclosure in his affidavit of 30 June 2011 that he was in the country demonstrated his “frankness and candour.” It rejected that contention. The particularised misleading was in February 2011 and the subsequent conduct in relation to the disclosure of his passport was of some relevance because it demonstrated that his later disclosure of the error in his earlier affidavit was not evidence of frankness or candour at all. While this Court would not say that the reluctance of the appellant to produce his passport “did not feature prominently in the reasoning of the ACAT”, the conclusion that his Honour reached in relation to Ground 4 was undoubtedly correct.
The balance of the submissions on this ground go to matters not raised as part of the ground of appeal. They assert that the Court failed to take into account “the many innocent reasons for the appellant’s delay in producing the passport” that were outlined in his affidavit 1 October 2013. This was an affidavit filed in support of an application to his Honour to lead further evidence on the appeal. For reasons which he gave at [37]-[67], his Honour did not allow any of that additional material to be put into evidence on the appeal. Although his Honour dealt with the application to have admitted into evidence on the appeal the documents that were referred to in the affidavit, his Honour did not deal with some proposed additional evidence-in-chief from the appellant set out in the affidavit. The relevant portion of the affidavit provided:
xi.. At the hearing I failed to adduce the following evidence about my Passports (Australian and Sri Lankan). I now seek leave to adduce them:
(a). My Australian passport does not have a departure stamp for July 2009 (to my knowledge the Australian Immigration does not place a departure stamp on the passport).
(b). When I was in Sri Lanka in July 2009, I obtained a new Sri Lankan passport, which is my current Sri Lankan passport. At the time of writing the 18 August 2009 letter, the old Sri Lankan passport I had used to land in Sri Lanka on 8 July 2009 at 1230 am had already been cancelled, and I had put it away in a different place at home to the current passports. This was another reason why it took time for me to figure out whether or not I was not in the country on 3 July 2009.
(c) I adduced following evidence during the hearing in regards to providing my passports to the Law Society:
((a)) that I was waiting for a direction (ruling) from the Tribunal about giving my passport copies to the Law Society
((b)) I was always willing to provide the Law Society with relevant passport pages and not the full passports;
(( c)) I was reluctant to comply with the passport request because I honestly believed that like in the past the Law Society was on a fishing expedition to find different faults with mean
((d)) it was the Law Society’s request for the passports that triggered me to find out that I was indeed in the country on 3 July 2009.
(d) However, I failed to adduce the following. Thus I now seek leave from this Honourable Court to say the following:
((a)) I was also reluctant to give my passports to the Law Society and their lawyers because they disclosed my date of birth; I was not comfortable for them to know my age.
((b)). During this period (mid 2011), I was getting ready to go overseas for a short time, I was very busy, I emailed the passport pages to the Law Society, I believe sometime in July 2011, just prior to my overseas travel.
His Honour may have overlooked the aspect of the application to adduce further evidence insofar as the appellant sought to adduce this evidence. However, there was no prospect that this evidence would have been admitted as further evidence. That is because there are no special grounds as to why it should be admitted. It is all evidence which the appellant could have led at trial. There is certainly not a high degree of probability that there would be a different verdict as a result because the findings in relation to the production of the passport were only ancillary to the central finding that his affidavit adopted the falsehood that he was not in the country on 3 July 2009. Therefore, even if there was a ground of appeal which sought to challenge the primary judge’s failure to admit this evidence, such a ground would fail.
In relation to Ground 21, the reference to the appellant’s affidavit of 30 June 2010 should be a reference to his affidavit of 30 June 2011. It was in that affidavit that he admitted that what he had told the Law Society was “not correct, and I regret my genuine mistake”. He also disclosed his movements between 3 July 2009 and his arrival in Sri Lanka on 8 July 2009 to the extent that he could recall them. The important point to note is that this affidavit was only affirmed after the Law Society had served a notice to produce, returnable at the Tribunal hearing scheduled to commence on 9 August 2011, requiring him to produce his passport. In those circumstances there is no reason why the Tribunal was required to “give deference” to the affidavit of 30 June 2011. Further, having regard to the terms of Ground 4 before his Honour (which only raised specifically the fact that the appellant had sought directions from the Tribunal about his passport), there was certainly no error on his part in failing to hold that the Tribunal ought to have given such deference to that affidavit. Ground 22 (primary judge Ground 5)
Ground 22 in the Notice of Appeal was as follows:
The appellant’s father died on 1 July 2009. Therefore the letter of 3 July 2009 was sent only a short period after his father’s death. When considering the appellant’s state of mind as at early July 2009, the Tribunal recorded that he had been extremely close to his father and was very distressed that he could not be at his dying father’s bedside. The Tribunal said (ACAT liability decision at [90]) that:
... the urgency to see and comfort his father before he died had passed by 3 July 2009 and the earlier distressed state of mind of the Practitioner before his father died, one might reasonably infer, had likely eased by 3 July 2009 as his father had died some days prior to that.
The Tribunal referred to the fact that the appellant did not arrive in Sri Lanka until 8 July 2009. The appellant challenged this in Ground 5 of his appeal to the Supreme Court.
The primary judge referred to the appellant’s evidence that he had been “desperately trying” to arrange travel to be with his father before he died but because of work commitments was unable to go. The primary judge recorded that there was “nothing particularly remarkable” about the Tribunal’s observation that by 3 July 2009 that desperate need of the appellant had passed: primary judgment at [83]. His Honour also observed that the appellant had not demonstrated that the finding by the Tribunal had any effect on the ultimate finding of fact that it made because it could not be relevant to the finding that the appellant had misled the Law Society some six weeks later (in the letter of 18 August 2009) or that he misled the Tribunal at an even later time: primary judgment at [84].
The appellant’s written submissions reagitate the factual issue, submitting that “The Court ought to have stated that the Tribunal was insensitive to the appellant’s desire to return to his family overseas that increased with the passing away of the most beloved Father-to be with his elderly mother and siblings/relatives; communal mourning etc”. He submitted:
(a) he had been unable to travel overseas to see his dying father because of his work and in that situation it was unfair to make such a finding against the appellant;
(b) when he wrote the letter on 18 August 2009 “his mind was still predominated with the Father’s sickness period of 3 months” and “the situation was the same for him when he wrote the letter to the Law Society on 18 August 2009”;
(c) the Tribunal failed to consider that the appellant had been unable to leave his practice because he could not find a locum;
(d) it was “quite reasonable” for him to believe when he wrote the letter of 18 August 2009 and swore the affidavit on 2 February 2011 that he was not in the country and relied upon writings on “natural ageing and depression” which were attachments to an affidavit affirmed on 8 December 2014.
None of these arguments demonstrates that the conclusion reached by his Honour was incorrect.
As to the material in the affidavit of 8 December 2014, it is not clear what affidavit is being referred to. Having regard to its date, it cannot have been material which was before the Tribunal, it is not identified as material which was before his Honour and was not sought to be read before this Court. In an Addendum to the Appeal Book before the primary judge, there was a printout of an article from the internet which was a report from the British Broadcasting Corporation (BBC). This was identified in the index to the Addendum to the Appeal Book as “new evidence”. The article was entitled “Brain function can start declining ‘as early as age 45’” and reported on a study in the British Medical Journal. Assuming this to be the material to which the appellant referred, it would not have been admissible as further evidence or admissible to prove any fact about the state of the appellant’s memory.
Grounds 23-27 (primary judge Ground 6)
(i) Erred in holding that the appellant failed to demonstrate to the Court how the file notes were inconsistent with the ACAT findings, when he clearly demonstrated the same.
Erred in holding that the file notes that the appellant sought to tender as further evidence which tender was refused by the Tribunal, was held as not being an error on the part of the Tribunal.
Erred in erroneously holding that the appellant failed to adduce evidence about the experience of his conveyancing clerks; the Tribunal did not make such a finding.
Erred in not holding that the Tribunal failed to give regard to the appellant’s vast experience in conveyancing.
Erred in holding that the Tribunal was able to infer from the ’proven litany of errors’ that the appellant committed other errors on the Grounds in the Application.
In relation Ground 23, the appellant submitted “there were a few errors” in the 3 July 2009 letter but “they were not serious”. He submitted that a lawyer’s duty to be more vigilant is stricter when he or she is aware of factors that may indicate greater supervision is required citing Council of Law Society of New South Wales v Foreman (No 2) (1994) 34 NSWLR 408. He submitted that each of these two senior conveyancing clerks had worked for more than two years in the firm and had done hundreds of conveyances on their own “under the able supervision of the appellant”. The appellant submitted that because the Court failed to mention this submission it is unlikely that it gave weight to it and therefore erred.
His Honour’s reasons pointed to the finding of Tribunal that “[the practitioner] rightly characterised the errors as “inexcusable” (primary judgment at [86]). In relation to a submission that was put to the primary judge that the appellant had “employed two experienced conveyancing clerks” who had carried out a very considerable number of conveyances under his supervision, his Honour said “This submission also did not refer to any evidence before the ACAT concerning the experience of the conveyancing clerks employed by the practitioner, or to any finding of the ACAT” (primary judgment at [89]). The submissions made by the appellant in this Court do not demonstrate any error on the part of the primary judge.
Ground 23(i) appears to be a separate ground of appeal. It alleges that his Honour “erred in holding that the appellant failed to demonstrate to the Court how the file notes were inconsistent with the Tribunal findings, when he clearly demonstrated the same”. This appears to arise from the contents of [87] of the primary judge’s reasons where his Honour said:
In his written submissions on appeal, the practitioner complained that the ACAT had ignored or wrongly failed to receive file notes produced by the staff of the practitioner. Other than making this bold assertion, the practitioner did not attempt to take me to any of the file notes to demonstrate how the contents of the notes were inconsistent with the findings of the ACAT. It is clear from the reasons of the ACAT that it took into account the contents of the file notes that were in evidence before it; for example, the ACAT noted that the file note dated 10 June 2009 (see [24] above) revealed that the practitioner simply did not know, as at that date, who was responsible for preparing the discharge of the mortgage over the Lyneham property. I have carefully considered the file notes that were in evidence before the ACAT, and the file notes the practitioner sought to tender as further evidence on this appeal, and, in my opinion, they do not establish error on the part of the ACAT.
The written submissions of the appellant on this appeal were no more coherent than the submissions that appear to have been before the primary judge. The written submissions complain about what he says was an unfair limit on the length of his written submissions before the primary judge and refers to some 19 pages of written submissions which mostly appear under the heading:
Important further submissions about the Courts wrongful affirmation of the Tribunal’s finding on the appellant’s bad demeanour and credit (in support of Grounds 2-5 of the Notice of Appeal) (pp 5-23). They also personify that the appellant did not receive a fair and just trial, an important finding that the Court failed to make:
The submissions do not demonstrate that the primary judge was wrong in reaching the conclusion that he did at [87].
Ground 24 is a complaint that the primary judge failed to find that the Tribunal had erred in failing to admit “the file notes that the appellant sought to tender as further evidence”. The written submissions in support of this ground assert that the primary judge erred in his findings at [87] (which paragraph is set out above). That paragraph does refer to the written submissions complaining about the Tribunal ignoring or wrongly failing to receive file notes produced by the staff of the appellant. The primary judge expressed the view, set out at [87], that the written submissions of the appellant did not explain this submission and that the appellant did not take the primary judge to any of the file notes to demonstrate how the contents of the notes were inconsistent with the findings of the Tribunal. The written submissions in this Court also include cross references to other parts of the submissions which include the 19 pages of submissions irrelevant to this issue referred to above, as well as a cross reference to paragraphs in the written submissions which are impossible to locate.
In disposing of this ground of appeal there are two points to note: (a) first, Ground 6 in the Notice of Appeal before the primary judge did not assert any error by reason of a failure to admit file notes into evidence;
(b) second, it is clear that the submissions made by the appellant were of such a nature that his Honour did not conclude that there had been any error on the part of the Tribunal.
The submissions made to this Court were obscure and confusing. They do not demonstrate any error on the part of the primary judge in reaching the conclusion that he did in relation to Ground 6 of the Notice of Appeal that was before him.
Ground 25 challenges the finding in [89] of the primary judge’s decision. That paragraph of the decision was as follows:
In his written submissions on appeal, the practitioner also asserted that he had “employed two experienced conveyancing clerks” who had carried out a very considerable number of conveyances under his supervision. This submission also did not refer to any evidence before the ACAT concerning the experience of the conveyancing clerks employed by the practitioner, or to any finding of the ACAT.
While the written submissions make clear that Ground 25 challenges [89], the submissions made are not relevant to this ground of appeal. In any event, the ground of appeal does not properly engage with what appears in [89]. His Honour simply said that the written submissions did not refer to any evidence before the Tribunal concerning the experience of his conveyancing clerks or to any finding of the Tribunal. No error has been demonstrated in that conclusion. It is entirely consistent with the confusing and inadequate nature of the lengthy written submissions made in this appeal. It certainly does not demonstrate any error by the primary judge in his dismissal of Ground 6 of the appeal before him.
Ground 26 alleges that the primary judge “erred in not holding that the Tribunal failed to give regard to the appellant’s vast experience in conveyancing”. The appellant’s written submissions indicate that this is a challenge to a finding in [87] of the primary judge’s decision. However, [87] relates to file notes produced by the staff of the appellant. The written submissions refer to some evidence from the appellant that he did six property settlements every week. It is not clear how this evidence, or the assertion that he had “vast experience in conveyancing”, supported Ground 6 of the appeal before the primary judge which challenged the finding that the appellant did not properly supervise his staff. Therefore Ground 26 does not demonstrate any error on the part of the primary judge.
Ground 27 contended that the primary judge erred in holding that the Tribunal was able to infer from the “proven litany of errors” that the appellant committed other errors on the grounds in the application. This refers to the statement at [88] in the primary judge’s decision that “ACAT was entitled to infer from the proven litany of errors committed by the appellant or his firm that the appellant’s firm was not efficiently and properly administered.” Thus the statement related to the finding challenged in Ground 6 of the appeal, namely that the appellant’s firm was not efficiently and properly administered. His Honour’s reference to the “proven litany of errors” was to the errors in the appellant’s letter of 3 July 2009. They were described by the Tribunal as follows (ACAT liability decision at [121]):
The initial letter reporting of 3 July 2009 was full of serious errors. First, settlement did not occur, of course, on 19 June 2009. It was delayed until 30 June 2009. Secondly, the ‘total fees and disbursements’ were not of ‘$975.80’ but rather also included a further invoice of ‘$646.50’. Thirdly, the cheque directions were substantially inaccurate. Fourthly, there was, of course, no mention of the penalty interest payable, or of the $300.00 payable for the payment of the vendor’s solicitors' legal fees as a consequence of the delay. This is set out, but not explained, in the settlement statement, which was attached to that letter.
(Footnotes omitted).
In his written submissions, the appellant asserted that this statement amounts to the Court making a prejudgment and involved a denial of procedural fairness. This submission is without substance. His Honour was entitled to rely upon the findings of the Tribunal as to the errors committed by the appellant or his firm. To do so did not amount to prejudgment or any other denial of procedural fairness.
The written submissions of the appellant also refer to the fact that the phrase “proven litany of errors” was first used by the respondent in its written submissions to the primary judge and that the format for the judgment followed a format used by the Tribunal which in turn, the submission asserts, was first introduced by the respondent in its submissions to the Tribunal. Even assuming the submissions about phrases and formatting to be factually accurate, they do not demonstrate any error on the part of the primary judge.
Grounds 28-29 (primary judge Grounds 7 and 12)
Erred in finding that the Tribunal failed to consider the number of valid reasons given by the appellant for making the innocent mistake.
Erred in the unfairly holding that there was ample evidence for the ACAT to conclude that the appellant made an attempt to mislead the Respondent in the 18 August 2009 letter, but, failed to demonstrate them.
iii) It was the appellant’s evidence that he may not have done everything that the Court believed he should have done that, but, when he wrote the letter he was absolutely sure 3 July 2009 he was still in the country. He carefully thought about this before writing. True, he failed to do enough due diligence. It is unfair to punish him for things he had not done. All humans make mistakes, there was ample evidence for the Court to decide that it was a genuine mistake on the appellant’s part and not a calculated lie by him. The Court should have held that on balance, the Tribunal ought to have given benefit of the doubt to the appellant.
In addressing Grounds 7 and 12 of the appeal, the primary judge correctly pointed out that it was not sufficient on an appeal by way of rehearing to simply contend that it was open for the Court to reach a different finding to the Tribunal below. His Honour pointed to the decision in Fox v Percy at [28]-[29]. His Honour then addressed the written submissions of the appellant and concluded (at [94]): 94. … There was ample evidence upon which the ACAT was entitled to conclude that it was an attempt by the practitioner to mislead the Society. The letter written by the practitioner to the Society was written in the context of a complaint against him. It may be inferred from that fact that the practitioner was aware of the need to accurately state the relevant facts in his letter. The practitioner had a number of documents available to him to assist him in that regard. He had his passport, which demonstrated that he did not arrive in the overseas country until 8 July 2009. More importantly, he had a copy of the locum agreement, which was signed on 3 July 2009 and was expressed to come into effect on 6 July 2009. The practitioner presumably also had access to documents concerning his travel in July 2009. It was not surprising, in this context, that the ACAT rejected the practitioner’s submission that his statement was an innocent error. Certainly, no relevant error on the part of the ACAT has been demonstrated by the practitioner.
No error has been demonstrated in the approach taken by his Honour and, as a consequence, these grounds of appeal fail.
Grounds 30-34 (primary judge Ground 8)
Confirmed with the ACAT’s wrongful finding that the evidence given by the staff, Lisa Furlonger, did not assist the appellants case, when they very much assisted him.
Wrongfully rejected Ms Furlonger’s evidence alleging she was inexperienced, when that had nothing to do with her evidence; and the Tribunal did not make such a finding.
Wrongfully held that the female client, Ms Tran’s evidence that she had to “re do” the statutory declaration, did not assist the appellant’s case.
(i) Wrongly assumed that this was the statutory declaration that the clients signed on 5 June 2009, when it was the statutory declaration that they signed on 23 June 2009.
Wrongfully understood that the appellant had attempted to lodge the Transfer prior to 5 June 2009, and it was this Transfer that the ACTRO [ACT Revenue Office] had lost.
Failed to consider and give any regard to the favourable evidence given by the appellants other staff Carly and work experience student, Petra, and the file note about Natasha of the ACTRO advice to the firm on 18/6/09.
Ground 8 of the appeal before the primary judge alleged that the Tribunal erred by failing to find that the appellant had filed a transfer document with the ACT Revenue Office on 9 June 2009. The appellant had contended that he had filed a transfer document with the ACT Revenue Office on 9 June 2009 but that it had been lost or returned by that office, requiring a further document to be filed on 23 June 2009. This was relevant to determining whether or not he or his firm had been responsible for the delay in the settlement of the purchase of the property in Kaleen.
The written submissions of the appellant were the same in relation to Grounds 30 and 31. The submission was that Ms Furlonger’s evidence was relevant both to the lodgement of the transfer on 9 June 2009 and also to the second lodgement of the transfer on 23 June 2009. He submitted that the evidence of Ms Furlonger was that she made the file note cover which stated “Re-submitted stat dec on 22/09/09” and that it was written after she did the resubmission to ACT Revenue Office.
The Tribunal had concluded that whether or not any transfer and statutory declaration had been lodged on 9 June 2009, the statutory declaration was at all material times defective. This lessened the significance of the issue of whether or not the transfer and statutory declaration were lodged by the appellant prior to 23 June 2009. However, the Tribunal analysed the evidence in relation to whether or not the appellant had lodged any application for stamp duty exemption or transfer with the ACT Revenue Office prior to 23 June 2009 and concluded that he had not and that the appellant had simply concocted a story about having lodged such an application on 9 June 2009.
In dealing with the Ground of appeal 8, the primary judge referred to the evidence of Ms Furlonger and said at [98]:
The evidence given by Ms Furlong[er] did not assist the practitioner. Ms Furlong[er] was a very inexperienced clerk working in the practitioner’s office in June 2009; she only commenced working there on 15 June 2009. She was taken to a file note which stated “Re-submited (sic) stat dec on (Note: in the file note, “22/06/09” is crossed out) 23/06/09”, and she agreed that it was her handwriting. She went on to say that she had written the note in the form it was because another member of staff, “Carly”, told her to write it. It was clear from the evidence of Ms Furlong[er] that she had no personal knowledge of any supposed attempt to lodge transfer documents on 9 June 2009 (she was not even employed by the practitioner at that time) and referred to the statutory declaration as being re-submitted in the file note as that was what she was told to write.
His Honour’s decision was plainly correct. Having regard to the circumstances in which the file note was prepared, it was not probative evidence of the fact of any earlier submission of a statutory declaration. Therefore Grounds 30 and 31 are not made out.
The submissions in support of Grounds 32, 33 and 34 were the same. Those submissions were to the effect that the primary judge had failed to give consideration to certain written submissions filed by the appellant for the purposes of the appeal to the Supreme Court. Those submissions were then repeated. The submissions referred to the evidence given by the appellant, the file notes of Ms Sun, the evidence of Ms Furlonger and the evidence of the complainant wife. He asserts that the ACT Revenue Office had failed to release all the documents, that it was very unlikely that if the complainant was ringing the firm on a daily basis he would have done nothing about the issue from 5 June 2009 to 23 June 2009, and that to suggest that he did nothing between those date was “extremely farfetched and fanciful”.
Contrary to the appellant’s submissions, it is clear that his Honour had regard to the written submissions that were made to him. His Honour said (primary judgment at [96]):
... In his written submissions on the appeal, the appellant asserts that he gave evidence that he had arranged to file a transfer document with ACT Revenue on 9 June 2009, and that this is supported by evidence from the female complainant that she and her husband had been contacted to “redo” the statutory declaration, and also by evidence from a former employee of the appellant, Lisa Furlong[er]. He also submitted that the affidavit of Ms Sun of 3 February 2014 also supported this assertion.
His Honour then went on to consider other aspects of the submissions that had been made to him. In the light of the terms of his Honour’s reasons which illustrate specific consideration of these matters, it is clear that the appellant’s submissions cannot be accepted. The written submissions do not disclose any error on the part of the primary judge that would permit Grounds 32, 33 and 34 to be upheld. Ground 35 (primary judge Ground 9)
Ground 35 alleged that the primary judge:
Ground 9 of the appeal before the primary judge alleged that the Tribunal erred by not finding that the Commonwealth Bank, Bank West and the ACT Revenue Office contributed to the delay in the conveyance. His Honour referred to the submissions that were made to him based upon the affidavit of Mr Christopher Boyd (the expert engaged by the appellant). That affidavit was not in evidence before the Tribunal because the joint expert report, prepared by Mr Boyd along with Mr Michael James (the expert engaged by the Law Society), had been admitted and it was therefore not necessary to admit the separate affidavits. The submission of the appellant before the primary judge was that Mr Boyd’s opinion was that the appellant was entitled to expect the Commonwealth Bank would attend promptly to its responsibilities. His Honour (at [104]) summarised Mr Boyd’s opinion as being that it was not unusual for the incoming mortgagee to discharge the mortgage of the outgoing mortgagee and that a solicitor who had been informed that the incoming mortgagee had requested the form of discharge would not have a further duty to request discharge from the outgoing mortgagee. He expressed the opinion that that was what had occurred in the present case and maintained that opinion in the joint expert report.
His Honour dealt with this ground of appeal by:
(a) identifying that the file notes before the Tribunal revealed that the appellant and his staff did not know as late as 10 June 2009 whether the Commonwealth Bank was preparing the discharge and, in those circumstances, the Tribunal had found (consistent with the view expressed by the experts in their joint report) his professional obligation to his clients was to prepare the discharge himself;
(b) the ground of appeal was, in any event, misconceived because the Law Society’s the allegation in Ground 3.1 was that the appellant wrongly blamed the ACT Revenue Office or the banks for the delay in settlement when in truth that delay was caused by his own failure to arrange for the stamping of the transfer document in a timely manner.
(i) Failed to consider that the application alleged that the appellant was solely responsible for the delay, and not others.
This submission is misconceived, in the same way that his Honour considered the submissions to him were misconceived, in that it fails to recognise that the essence of the ground of complaint was a failure to act honestly and fairly and the substantive failing which fed into that failure to act honestly and fairly related to the failure to arrange stamping of the transfer document in a timely manner.
The second submission was: (ii) Though Mr Boyd’s positive opinions about the appellant were considered (para 103), the appellant was not given the benefit of them.
This submission does not disclose any error in the manner in which his Honour addressed Ground 9. His Honour was not obliged to accept the opinion of Mr Boyd in circumstances where the Tribunal had found that the appellant had recognised that it was standard for him to undertake to do that work: ACAT liability decision at [114] and, although the Commonwealth Bank had taken some inadequate steps to begin the process, the appellant and his firm did not know whether or not the Commonwealth Bank was doing the discharge for the Lyneham property: ACAT liability decision at [115]. Because there was no evidence that the Commonwealth Bank advised the appellant that it, rather than he, would attend to the discharge of Bank West’s mortgage over the Lyneham property, the Tribunal accepted the submission that the evidence of Mr James should be preferred to that of Mr Boyd (ACAT liability decision at [119]).
The third submission was:
(iii) The Court failed to find that the ACAT ignored to address the significant delays by BankWest and the ACTRO which the appellant well explained in his evidence and submissions.
This submission, undeveloped in any oral submissions, invites this Court, unassisted, to search for, and attempt to discover, relevant evidence and submissions made to the Tribunal which might disclose an error in the manner in which the primary judge dealt with Ground of appeal 9. That is not the task of this Court on appeal. This submission does not demonstrate any error on the part of the primary judge.
The fourth submission was:
(iv) The court failed to realise that the appellant was entitled to defend his complaint, thus must outline the delay by others - and this does not amount to blaming others.
This submission, even if it was factually correct, would not demonstrate any error on the part of the primary judge in dealing with Ground 9 of the appeal before him.
The final submission made in support of this ground of appeal is that the primary judge incorrectly “affirmed the Tribunal’s finding that the appellant had done nothing to stamp the Transfer until 26 June 2009”. He submitted that this involved ignoring the file notes and other evidence that the firm did lodge the transfer for the first time on 9 June 2009 and for the second time on 23 June 2009. Further, he submitted that the primary judge erred in failing to find that the Tribunal erred by refusing to admit “the large array of the appellants file notes”.
So far as the finding that the appellant had done nothing to stamp the transfer until 26 June 2009, that issue was subject to Ground 8 of the appeal before the primary judge. The Grounds 30-34 of the appeal to this Court challenging the primary judge’s conclusions on Ground 8 are dealt with above (at [128]-[132]). It is not clear which file notes are referred to in the written submissions. Insofar as the file notes were within the further documents sought to be tendered before the primary judge, the refusal to admit those documents is addressed by Ground of appeal 15 (see [33]-[46] above).
For these reasons, the ground of appeal is not made out. Ground 37 (primary judge Ground 11)
Ground 37 was that the primary judge:
The Court refused to accept that that Tribunal refused to accept the appellant’s evidence and submissions; also the tribunal’s unfair treatments of the appellant; thus it started with the tribunal.
The appellant relies on his submissions in pages 5-23. Also, submissions in relation to Ground 18 of the Notice of Appeal, above.
His Honour addressed this issue when addressing Ground 11. His Honour said:
It is not clear to me that the ACAT in fact took into account the way in which the practitioner conducted his defence when determining liability. At [43] of the reasons, the ACAT qualified their observations and comments relating to the practitioner’s conduct during the proceedings as such: The Tribunal’s observations and comments above and ones that follow in these respects are relevant and warranted. While the Tribunal has approached its difficult task of assessing all the evidence and the comprehensive written and oral submissions made by both parties in a purely objective and impartial manner, the behaviour of the Practitioner throughout these proceedings was very often inconsistent with his professional duty to cooperate reasonably in the process and avoid an unduly combative approach. 112. It is not unusual in disciplinary proceedings for the ACAT to comment on the conduct and attitude of the legal practitioner subject to the proceedings. Indeed, the practitioner correctly concedes that such a consideration is relevant when determining an appropriate penalty. The fact that the ACAT noted their concern about the practitioner’s conduct in proceedings in the judgment on liability merely gave the practitioner an opportunity to address those concerns at the later penalty hearing.
The determinations made regarding liability are clearly based on the evidence that was before the Tribunal and not reliant upon any finding as to the practitioner’s conduct in the running of his defence. This ground of appeal fails.
The appellant’s submissions do not demonstrate any error in the approach taken by his Honour.
Grounds 38-39 (primary judge Grounds 14 and 16)
i. The Court failed to hold that the Tribunal only noted the large number of references and newspaper clippings that the appellant provided to prove his good character, but failed to give regard to them.
His Honour dealt with the complaint in Ground 14 before him by noting that all but one of the character references failed to acknowledge the two Tribunal decisions on liability, and the one that did had internal inconsistencies which meant that it could not be given any weight: primary judgment at [117]. In any event his Honour noted that a complaint about the weight given to a discretionary factor did not disclose a House v The King error.
There is no error in the manner in which his Honour dealt with the ground before him.
Ground 39 is as follows:
(i) Confirmed that the Tribunal was correct in adversely commenting about a character reference issued for the appellant in a different disciplinary proceedings of the appellant (SCA 25 of 2013), which the ACAT in the present matter (SCA 26 of 2013), had no knowledge of and involvement of; and by then, the appeal for that matter had been filed.
(ii) The Court failed to find that the Tribunal committed the error in sentencing by holding that the appellant had not learnt from a previous Tribunal decision.
(a) When the complaint in the present matter (SCA 26 of 2013) was made, the decision in the previous Tribunal matter (SCA 25 of 2013), had not been handed out.
In the absence of any oral submissions explaining this ground of appeal, it is not possible to reach the conclusion that it demonstrates any error on the part of the primary judge. While the material in the grounds of appeal appear to be directed to the manner in which his Honour dealt with Grounds 14 and 16, it is not at all clear what is meant by the contention in Ground 39 that his Honour “Implied that the ACAT was correct in acting without jurisdiction”. This assertion does not engage in any understandable way with his Honour’s reasons. His Honour was addressing Ground 16 in the Notice of Appeal before him which alleged that the Tribunal fell into error by ruling that a previous disciplinary proceeding subject to a pending appeal could properly be taken into consideration adverse to the appellant in determining penalty. His Honour concluded that the ground of appeal demonstrated a misunderstanding of the Tribunal’s reasons because the comments made by the Tribunal about the appeal in the other proceedings was in the context of determining what to make of a reference tendered on behalf of the appellant which, on the one hand said that he was “remorseful in respect of his conduct giving rise to” the matters subject of those separate proceedings, but on the other hand said also that the appellant “rejects and challenges” each of the findings relating to the same conduct.
The appellant has not demonstrated any error in relation to the manner in which his Honour dealt with Grounds 14 and 16.
Ground 40 (primary judge Ground 15)
(i) Failed to state that the Tribunal’s sentence was extremely harsh and disproportionate to the alleged offence of misleading the Respondent and that Tribunal.
Ground 15 before the primary judge was a complaint that the Tribunal had failed to afford adequate weight to the appellant’s evidence of the loss of his practice and his financial hardship. In dealing with this issue his Honour said (primary judgment at [122]):
The fact is, once the Tribunal had concluded that the practitioner was not fit and proper to remain on the role of practitioners, the inevitable outcome was an order recommending the removal of the respondent’s name from the roll. This outcome would be unchanged regardless of how much weight the ACAT gave to the practitioner’s financial hardship and the loss of his practice.
Thus, the statement that his Honour made was clearly premised on the correctness of the Tribunal’s finding that the appellant was not a fit and proper person to remain on the roll of practitioners. In those circumstances it is not correct to say, as the appellant does in his submissions, that “there were so many other sentencing options available to the Tribunal”. The balance of his submissions refer to the impact of removal from the roll upon him, characterised his errors as “an unintentional, tiny, innocent mistake” and refer to the fact that, even though in earlier proceedings LP 8 of 2009 (Council of the Law Society of the ACT v Legal Practitioner ‘X’ (Occupational Discipline) [2012] ACAT 34) he was found guilty of professional misconduct, the Tribunal had not recommended his name be removed from the roll. None of these matters demonstrate that his Honour was incorrect in approaching the ground of appeal that was before him in the manner that he did.
The submissions of the appellant also assert that the Tribunal wrongly held that he had not learnt from his mistake in decision LP 8 of 2009 when the complaint in the present matter was made in December 2010, prior to that decision being handed down in August 2012. This appears to relate to the ACAT penalty decision at [42]-[46], although the submission fails to properly address the reasons actually given by the Tribunal. In any event, the appellant’s submission does not relate to the subject matter of Ground of appeal 15 which was before the primary judge and hence, does not demonstrate any error in the manner in which the primary judge dealt with Ground 15.
Grounds 41-43 (costs)
The Court failed/refused to set aside the interim costs order made against the appellant by the Tribunal on 21 September 2011.
The Court made a very unfair interim costs order against the appellant on 13 November 2014.
The Court failed to award costs to the appellant for the four (4) failed Applications filed in the Tribunal by the Respondent.
The submissions in relation to Grounds 41 and 42 simply refer to an affidavit affirmed on 28 January 2016, written submissions dated 28 January 2016 and undated written submissions in reply. In doing so the appellant is simply repeating submissions made to the primary judge and not demonstrating any error on the part of the primary judge. Although that is sufficient to dispose of these grounds of appeal, it is appropriate to say some more about each ground.
So far as Ground 41 is concerned:
(a) There was no ground of appeal before the primary judge relating to any costs order made by the Tribunal on 21 September 2011; (b) There was, in fact, no order made by the Tribunal on 21 September 2011. This was the date of an internal appeal filed by the appellant to the Appeal Tribunal of the ACAT against a costs order made against the appellant on 9 August 2011 and modified on 24 August 2011. Therefore, the relevant date of any Tribunal order is 24 August 2011.
(c) The costs order ultimately made on 24 August 2011 was made as a result of an application by the appellant to adjourn the Tribunal proceedings against him.
(d) When the appeal was heard by the primary judge there was no ground of appeal relating to that decision.
(e) Following the handing down of his Honour’s decision on 5 November 2015, the appellant made an application to amend his Notice of Appeal so as to challenge the 24 August 2011 order. That application was heard and refused by his Honour on 22 February 2016. Although no published reasons or transcript of his Honour’s oral reasons was put before this Court, the bench sheet relating to that hearing records as a note:
HH notes that the appellant has been provided with every opportunity to amend his notice of appeal, and no application has been made prior to today to re-agitate this issue. HH also notes that the costs order made by the ACAT on 24 August 2011 originally formed a ground of appeal and was subsequently deleted when Mr Crispin was representing the appellant. The effect of HH rejecting the appellant’s application to amend his notice of appeal is that this matter cannot be determined by this Court.
In those circumstances, there was no error on his Honour’s part in failing or refusing to set aside costs order of the Tribunal. Ground 41 is not made out.
In relation to Ground 42, it is important to note that the present Notice of Appeal only challenges the decision made by the primary judge on 5 November 2015. Ground 42 purports to challenge a costs order made on 13 November 2014. On that date, the Court made an order for costs requiring the appellant to pay certain costs of the Law Society relating to interlocutory applications and amendments to the Notice of Appeal. Those orders were made, along with other orders, in order to resolve applications in proceeding by the Law Society seeking to strike out the Notice of Appeal. Following the delivery of his decision on 5 November 2015, an application was made by the appellant to the primary judge to reopen the order made on 13 November 2014. That application was heard on 22 February 2016. His Honour refused the application. No transcript of his Honours reasons or published judgment was put before this Court. The bench sheet relating to that hearing records as a note, somewhat obscurely, “HH considers that this is more appropriately dealt with by the agent that will assess the costs to be paid.” There is no appeal against the decision made on 22 February 2016 refusing to re-open the 13 November 2014 orders. Even if there was such an appeal, the material before this Court does not demonstrate any error on the part of the primary judge in refusing to re-open the consent orders made on 13 November 2014.
For these reasons, Ground 42 is not made out.
In relation to Ground 43, the appellant’s submissions were: The appellant’s innocent error was mentioned for the first time when the respondent filed their … fifth amended application (roughly about 12 months after the first application was filed). It was not a part of the clients’ complaint but an addition by the Respondent. The Court ought to have held that the appellant should have been awarded costs for the Respondent’s four (4) failed Applications, but it failed to make such a finding.
This ground of appeal asserts that his Honour should have, but did not, award costs to the appellant for the “four… failed Applications filed in the Tribunal” by the Law Society. This appears to relate to amendments made to the Law Society’s application when the proceedings were before the Tribunal. No ground of appeal recorded in his Honour’s judgment related to the costs of those amendments (or indeed any issue in relation to costs). When the proceedings were before primary judge in relation to costs, his Honour refused an application to amend his Notice of Appeal to include a challenge to the costs order made by the Tribunal on 24 August 2011. Neither the ground of appeal, nor anything in the written submissions, indicate why the primary judge was obliged to deal with the matters raised by this ground of appeal. Therefore the appellant has failed to establish any error on his Honour’s part.
Purported additional Ground 41
The Court made inconsistent Orders in relation to the appellant’s notices of appeal
(i) Between May-October 2014, based on the Respondents Applications in Proceeding, the Court ordered the appellant to prepare notices of appeal, when on 29 April 2014, through a formal Order, it accepted the appellants to documents as the proper notices of appeal.
Other grounds of appeal
As pointed out above, the first 15 grounds of appeal are grounds of appeal which are directed not to the manner in which the Court dealt with any of the grounds of appeal that were before the primary judge. Rather, they are grounds of appeal directed to passages in the earlier parts of the primary judge’s decision which described the background to the case and the decision of the Tribunal below. The appellant made voluminous but unhelpful submissions in relation to these grounds of appeal. None of those submissions indicate any error on the part of the primary judge in the manner in which he dealt with the grounds of appeal that were before him. To the extent to which the submissions in relation to these grounds of appeal were adopted elsewhere in the written submissions, they have been taken into account in reaching the conclusions set out above. In those circumstances it is not necessary to separately address them in these reasons. Orders
The orders of the Court are:
The appeal is dismissed. 2. The appellant is to pay the respondent’s costs of the appeal.
I certify that the preceding one hundred and seventy-seven [177] numbered paragraphs are a true copy of the Reasons for Judgment of the Court.
Associate:
Date: 29 June 2018
Legal Practitioner
Council of the Law Society of the ACT [2018] ACTCA 19
(1983) 60 CLR 336
(1936) 55 CLR 499
(1994) 34 NSWLR 408
(2000) 203 CLR 172
(1938) 60 CLR 336