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[2014] ACTSC 13
Supreme Court of the ACT
2014-02-21
Original judgment source is linked above.
LEGAL PRACTITIONER v COUNCIL OF THE LAW SOCIETY
[2014] ACTSC 13 (21 February 2014)
APPEAL AND NEW TRIAL - In General and Right of Appeal - Appeal from the ACT Civil and Administrative Tribunal - Appeal referred to Supreme Court from the ACT Civil and Administrative Tribunal
APPEAL AND NEW TRIAL - In General and Right of Appeal - Legal Practitioner - Misleading and deceptive conduct constituting professional misconduct - Appeal against finding of professional misconduct - The fact that the Court was misled only for a short period is not an answer to a complaint of misleading the Court - Practitioner attempted to knowingly mislead the Court into thinking he had been instructed in a matter where he would have known he did not have instructions - Appeal dismissed
APPEAL AND NEW TRIAL - Excessive or Inadequate Penalty - Whether removal from the Roll is a harsh and excessive penalty - Whether the ACT Civil and Administrative Tribunal should have imposed a separate penalty for each finding of professional misconduct - No requirement for the ACT Civil and Administrative Tribunal should impose a separate penalty on each ground of the complaint that it upholds - There was one complaint with multiple particulars - One penalty can be imposed where there are particulars - Removal from Roll required.
APPEAL AND NEW TRIAL - Excessive or Inadequate Penalty - Whether removal from the Roll is a harsh and excessive penalty - Whether mitigating circumstances were sufficiently taken into account - Inexperience does not ameliorate the seriousness of a practitioner's lack of understanding about a lawyer's duties - Dishonesty is not a defect related to inexperience - In this instance the lapse showed a pattern of behaviour in that the practitioner attempted to cover his behaviour by lying to the Law Society
EVIDENCE - Generally - Disciplinary proceedings - Burden of Proof - Civil burden of proof to apply to the proceedings
EVIDENCE - Civil and Administrative Tribunal entitled to draw Jones v Dunkel inference from Practitioner not giving evidence in proceedings against him
PROFESSIONS AND TRADES - Lawyers - Disciplinary proceedings - Duties of participation by lawyer
Administrative Appeals Tribunal Act 2008 (ACT), ss 79, 81
Evidence Act 2011 (ACT), s 136
Legal Profession Act 2006 (ACT), ss, 27, 419, 425, 433(1)
Magistrates Court Act 1930 (ACT), s 216
Legal Profession (Solicitors) Rules 2007 (ACT), r 39.1
J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996) looseleaf (service 163)
Adler v Australian Securities and Investment Commission [2003] NSWCA 131; (2003) 46 ACSR 504
Adamson v Queensland Law Society Inc [1990] 1 Qd R 498
Allinson v General Council of Medical Education and Registration [1894] 1 QB 750
Attorney-General v Bax [1999] 2 Qd R 9
Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236
Australian Securities and Investment Commission v Fortescue Metals Group Ltd [2009] FCA 1586; (2009) 76 ACSR 506
Australian Securities and Investment Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364
Blundell v Leighton [2013] ACTCA 1
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148
Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514
Coe v New South Wales Bar Association [2000] NSWCA 13
Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83
Council of the New South Wales Bar Association v Davison [2006] NSWSC 65
Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451
Council of the Queensland Law Society Inc v Whitman [2003] QCA 438
Council of the Queensland Law Society v Wright [2001] QCA 58
Fidock v Legal Profession Complaints Committee [2013] WASCA 108
Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166
Foreman v Law Society of New South Wales (No 2) (1994) 34 NSWLR 408
Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486
Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212
Guss v Law Institute of Victoria Ltd [2006] VSCA 88
House v King [1936] HCA 40; (1936) 55 CLR 499
In Re G Mayor Cooke (1889) 5 TLR 407
Johns v Law Society of New South Wales [1982] 2 NSWLR 1
Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298
Kerin v Legal Practitioners' Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149
Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56
Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282
Law Society of New South Wales v Ciampa [1999] NSWADT 13
Law Society of New South Wales v McNamara (1980) 47 NSWLR 72
Legal Profession Complaints Committee v in de Braekt [2013] WASC 124
Legal Practitioners' Complaints Committee v Trowell [2009] WASAT 42
New South Wales Bar Association v Meakes [2006] NSWCA 340
New South Wales Bar Association v Punch [2008] NSWADT 78
NSW Bar Association v Thomas (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Clarke JJA, 9 May 1989)
O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916
O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204
Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201
Re Fabricius and McLaren and Re Legal Practitioners Ordinance 1970 (1989) 91 ACTR 1 Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517
R v Hook [1858] EngR 136; (1858) 169 ER 1138
Re Middle Harbour Investments Pty Ltd (in liq) (Unreported, New South Wales Court of Appeal, Moffit P, Mahoney and Glass JJA, 15 December 1976)
Re Nelson and the Legal Practitioners Act 1970 (1991) 106 ACTR 1
Re Newen; Carruthers v Newen [1903] 1 Ch 812
R v Richmond [1920] VicLawRp 3; [1920] VLR 9
Re A Solicitor [1960] VicRp 96; [1960] VR 617
Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWR 511
Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256
Smith v Samuels (1976) 12 SASR 573
The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118
Thorpe v Legal Practitioners' Complaints Committee [2007] WASCA 8
Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289
Vogt v Legal Practitioners' Complaints Committee [2009] WASCA 202
Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531
Xu v Council of the Law Society of New South Wales [2009] NSWCA 430; (2009) 236 FLR 480
Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279
AND: COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY
2. The orders of the ACT Civil and Administrative Tribunal made on 19 October 2010 and on 23 August 2011 be confirmed.
3. The proceedings be remitted to the ACT Civil and Administrative Tribunal to give effect to its orders.
4. The Legal Practitioner pay the costs of the Council of the Law Society of the Australian Capital Territory.
1. The appellant, to whom I shall refer as "the Legal Practitioner", was admitted as a legal practitioner of this Court on 10 November 2006 and issued with a restricted practising certificate on 16 November 2006.
2. On 28 July 2008, he entered the Magistrates Court during an application for bail by a defendant, who had been arrested and was in custody. I shall refer to the defendant as Ms V. Ms V had been charged with assault on her partner, to whom I shall refer as Mr G.
3. When the Legal Practitioner entered the courtroom during the hearing of the bail application, it was asserted that he announced to the court that he appeared for Ms V. After some discussion, the learned Magistrate refused to permit the Legal Practitioner to appear. Later, her Honour referred the matter to the Law Society of the Australian Capital Territory (the Law Society), which investigated this complaint
4. Following that investigation, the Council of the Law Society (the Council) applied to the ACT Civil and Administrative Tribunal (the ACAT) in relation to the complaint, under s 419 of the Legal Profession Act 2006 (ACT).
5. The complaint was that the Legal Practitioner, in purporting to act for Ms V on or about 28 July 2008, engaged in conduct that was misleading to the court and which would have placed the Legal Practitioner in a conflict of interest position and that the Legal Practitioner failed to comply with r 39.1 of the Legal Profession (Solicitors) Rules 2007 (ACT) (the Solicitors Rules) and which failure was misleading and deceptive conduct.
6. The proceedings were heard by the ACAT on 19 June 2009. On 19 October 2010, the ACAT found that the Legal Practitioner had engaged in conduct that was misleading and deceptive and had breached r 39.1 of the Solicitors Rules and, that he was, as a consequence, guilty of professional misconduct.
7. On 23 August 2011, the ACAT recommended that the name of the Legal Practitioner be removed from the local roll, being the roll of people admitted to the legal profession under the Legal Profession Act, the roll being required to be kept by this Court under s 27 of that Act. I shall refer to this as the Roll.
8. On 20 September 2011, the Legal Practitioner commenced an appeal from the decisions of the ACAT. That appeal lay, under s 79 of the ACT Civil and Administrative Appeals Tribunal Act 2008 (ACT) (the ACAT Act), to an appeal tribunal of the ACAT as constituted by s 81 of that Act.
9. On 22 September 2011, the Appeal President ordered that the appeal be removed to this Court. I have set out the relevant provisions and procedures for such removal in The Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118. I do not need to repeat what I there said but rely on it in these reasons.
10. The Application to the ACAT set out the complaint and the three grounds of the complaint as follows:
Complaint
The Society contends that the Respondent has, whilst purporting to act for [Ms V] on or about 28 July 2009, engaged in conduct which was misleading to the court, would have potentially placed the Respondent in a conflict of interest position, and, subsequently, the Respondent engaged in conduct in breach of Rule 39 of the Legal Profession (Solicitors) Rules 2007 as well as misleading and deceptive conduct.
The Society further contends that such conduct amounts to professional misconduct or unsatisfactory professional conduct, justifying an order by the Tribunal.
Legal Profession (Solicitors) Rules 2007
Rule 39.1 provides as follows:
"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."
Grounds of Complaint
Ground 1
Misleading the Court
Particulars:
1.1 The Respondent, deliberately or recklessly, misled the court when he appeared before Magistrate Doogan on 28 July 2009 purporting to act for Ms [V] on a bail application in circumstances were he had no actual instructions from Ms [V] at the time of his appearance.
Ground 2
Conflict of Interest
Particulars:
2.1 The Respondent purported to act for Ms [V] upon instructions from Mr [G] who was the victim of the alleged assault on a bail application involving a charge of assault occasioning actual bodily harm and in circumstances were the Respondent had previously acted for Mr [G] in a separate matter, albeit as agent for another practitioner, in interlocutory proceedings where Mr [G] was the perpetrator of an alleged assault upon Ms [V].
Ground 3
Failure to be open and frank in dealings with the Law Society and misleading and deceptive conduct
Particulars:
3.1 The Respondent deliberately or recklessly, made misleading representations to the Society that:
(a) he was unaware that Ms [V] was the victim of Mr [G]'s assault in circumstances were he knew that she was; and
(b) he was unaware that Mr [G] was a victim of Ms [V]'s assault in circumstances were he knew that she was the victim; and
(c) he was instructed by Ms [V] in the court cells prior to the hearing of her bail application when in fact he had no such instructions; and
(d) he held a signed legal application form when he appeared before Magistrate Doogan when this was not in fact the case.
11. The Council relied on an affidavit of the Professional Standards Director of the Law Society, Robert Reis, an affidavit of the lawyer for the Law Society, Michael Phelps, an affidavit of a public prosecutor, Natasha Werner, and two affidavits of a lawyer, Darryl Raymond Perkins. It also tendered statements from Ms V and Mr G.
12. The Council called Ms Werner and Mr Perkins as witnesses. The Legal Practitioner filed an affidavit, but called no evidence.
13. Mr Reis set out in his affidavit the formal matters relating to the admission of the Legal Practitioner, the grant of an unrestricted practising certificate to him and his employment. These matters are relevantly set out above (at [1]) and were not contested.
14. Annexed to the affidavit were some documents. The first was a letter of complaint from the learned Magistrate, which was received by the ACAT as a complaint but not admitted for the truth of its contents.
15. An extract from the local newspaper, The Chronicle, was annexed to the affidavit. It was not, however, tendered. I mention it because it appeared in the Appeal Book (though marked "not tendered"). The Legal Practitioner, of course, prepared the Appeal Book. I shall take no notice of the document.
16. The initial letter from the Law Society to the Legal Practitioner, dated 21 August 2008, referring the complaint to him and seeking a response, was next annexed. The paragraph referring to the newspaper extract was not tendered though, again, it appeared in the Appeal Book. Again, I shall take no notice of it.
17. The response of the Legal Practitioner, dated 5 September 2008, was also annexed. In it, he did not state that he had instructions from Ms V on 28 July 2008, but referred to further appearances he had made for Ms V and that Mr G was not a client of either of the two firms by which he was employed. He admitted, however, that he had appeared as agent by Mr Perkins for Mr G on at least one occasion. He offered an apology for any inappropriate or offensive behaviour. He sought an extension of two weeks in order to obtain a copy of the transcript of the relevant proceedings.
18. On 5 September 2008, however, he wrote again to the Law Society. This letter was also annexed to the affidavit of Mr Reis. In that letter, he stated that he forwarded transcripts of the hearings on 23 July 2008, when he appeared for Mr G an agent for Mr Perkins, and on 28 July 2008, the hearing from which arose of the complaint.
19. The first transcript showed that he announced his appearance as follows:
May it please the court, [the Legal Practitioner] acting as agent for Mr Perkins. Mr [G] is before the court.
20. For some reason that transcript was not annexed to the affidavit of Mr Reis, but it is elsewhere in the Appeal Papers.
21. The second transcript is the subject of the proceedings. It records that the proceedings commenced at 11:49 am. The charge of assaulting Mr G and occasioning him actual bodily harm was read to Ms V. She confirmed that she was applying for bail. The transcript then records
HER HONOUR: You haven't got anyone representing you?
MS [V]: No, I didn't - yeah, sorry.
22. Ms Werner, the prosecutor, stated that bail was opposed and then set out the views of Mr G as complainant. Ms Werner also advised that the informant did oppose bail. Reference was made to Ms V's criminal record, which was tendered, and relied on, as to the risk of her re-offending, and her prior conviction for failing to appear in accordance with a bail undertaking, on 25 October 2005.
23. Ms Werner noted that Mr G was not concerned about his safety, but that the matter was a family violence matter. It appears that, while Ms Werner was making this submission, the Legal Practitioner had entered the courtroom, as the courtroom door can be heard closing. This seems confirmed by comments he made in his second letter of 5 September 2008. Shortly thereafter, the Legal Practitioner is recorded as speaking. The transcript shows the following:
[THE LEGAL PRACTITIONER]: Your Honour, I apologise.
HER HONOUR: [The Legal Practitioner].
[THE LEGAL PRACTITIONER]: I've just been instructed in regard to this matter.
HER HONOUR: What, just this instant? Because Ms ---
[THE LEGAL PRACTITIONER]: I've been instructed by ---
HER HONOUR: Ms [V] said she didn't have anyone appearing for her.
[THE LEGAL PRACTITIONER]: I've been instructed outside the court by Ms [V]'s partner ---
HER HONOUR: Who's that, Mr [G]?
[THE LEGAL PRACTITIONER]: --- ho is the victim of the assault.
HER HONOUR: Mr [G] I'm not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault representing the defendant.
[THE LEGAL PRACTITIONER]: No. My only instruction was to speak to the defendant.
HER HONOUR: Say no more, [the Legal Practitioner]. I'm proposing to grant her bail so ---
HER HONOUR: I'll put conditions on it. And it's bizarre, [the Legal Practitioner], that you would - is that what you're saying to me, that you've been instructed by - just sit for a moment.
[THE LEGAL PRACTITIONER]: Your Honour, I was ---
[MS V]: Sorry, I was ---
[THE LEGAL PRACTITIONER]: Your Honour, I was approached outside the court by the victim in the matter ---
HER HONOUR: By Mr [G]?
[THE LEGAL PRACTITIONER]: --- and asked if I would go downstairs and see the defendant. They were my instructions, your Honour. And it is bizarre your Honour.
HER HONOUR: I think that's ---
[MS V]: Yes, he needs to go to the ---
HER HONOUR: It's unbelievable, [the Legal Practitioner], that you would purport to act on behalf - that you are instructed by a victim to go and speak to a defendant in a matter.
[THE LEGAL PRACTITIONER]: Your Honour.
HER HONOUR: If that's not a serious conflict of interest ---
[THE LEGAL PRACTITIONER]: Yes, your Honour.
HER HONOUR: --- what on earth in this court is? This is a family violence matter.
[THE LEGAL PRACTITIONER]: Yes, your Honour.
[MS V]: It's a mental case, it is.
HER HONOUR: I'll just pretend that you didn't even appear, [the Legal Practitioner].
[THE LEGAL PRACTITIONER]: Thank you, your Honour.
24. Although the printed transcript does not so show, the recording that was later tendered then shows that Ms V said
25. It appears that the Legal Practitioner said "That's okay". Ms V then said
But he's very manipulative. I know that. I thought you were Legal Aid.
26. The Legal Practitioner said "No" and Ms V said "Thanks anyway". The Legal Practitioner was then excused by the learned Magistrate.
27. In his covering letter, the Legal Practitioner made the following points:
1. He was not present when the charge was read to Ms V in which Mr G is named.
2. He submitted that the learned Magistrate "by way of a facial gesture and hand action" indicated that he could speak to her.
3. He noted that his "only instruction" was to speak to Ms V.
4. He refers to the comment of the learned Magistrate "I'll just pretend that you didn't even appear".
28. He emphasised in the letter, however, that he had been "instructed outside the court by Ms [V]'s partner". He then emphasised again that his "only instruction was to speak to the defendant", ie Ms V. This, he noted, was because of what Mr G said to him outside the courtroom. He did not assert at this time that he had instructions from Ms V direct nor that he had already seen her in the court cells.
29. The Legal Practitioner also referred to an appearance on 23 July 2008, the transcript for which was included in the Appeal Papers as I have noted above (at [18], [20]). He also referred to an appearance on 20 August 2008 but, again, the transcript was not annexed and was not included in the Appeal Papers.
30. Finally, a further letter from the learned Magistrate, apparently responding to the Legal Practitioner's response was attached. Its admission was objected to by the Legal Practitioner but it was admitted not for the truth of the assertions in it, but as the letter to which the Legal Practitioner further responded giving his letter context and meaning. The letter disputed some of the assertions of the Legal Practitioner.
31. The final annexure was the Legal Practitioner's response in which he challenged the disputed matters raised by the learned Magistrate and asserted that he held signed statements from Ms V and Mr G and that at the time he appeared he had a signed application for Legal Aid from Ms V by whom, he stated, he was instructed in the cells prior to his appearance before the learned Magistrate.
32. Mr Reis was not cross-examined on his affidavit.
33. The statements of Ms V and Mr G were annexed to the affidavit of Mr Reis, but in a redacted form. The unredacted versions were tendered without objection.
34. The statement by Mr G was, relevantly, in the following terms:
I [Mr G] state that on Monday 28 July 2008 that I first saw [the Legal Practitioner] outside courtroom 1 at about 9.45 am he was rushing into court as he had just seen my partner [Ms V] in the court cells. I asked [the Legal Practitioner] to act for Ms [V] in regards to her bail application. [The Legal Practitioner] told me that as he had previously acted for me as agent for Mr Darryl Perkins that he had to confirm with me that there was no conflict of interest in the matter, he was also concerned that [Ms V] may be Darryl Perkins [sic] client and did not want to do the matter if she was Darryl's client. I told him that Darryl only acted for me and that I wanted him to act for her. I told him there was no conflict of interest in the matter as far as I was concerned. [The Legal Practitioner] told me that he had just seen [Ms V] and was instructed to act for her in the bail application and in the regards to her current charges.
At no time did I tell [the Legal Practitioner] that I was the victim in the matter I did not think that it mattered, as it was only a bail application. And he did not have time to ask me as he rushed off to try to beat the Corrective Services officers who were bringing [Ms V] up. We only spoke for a few minutes possibly 90 seconds.
35. The statement by Ms V was, relevantly, in the following terms:
I [Ms V] ... state that I saw [the Legal Practitioner] in the Court cells at the ACT Magistrates Court on Monday 28 July 2008. I asked [the Legal Practitioner] to act for me in regards to my bail application and also in regards to the charge that I was facing that being AOBABH [sic] ...
At the time I saw [the Legal Practitioner] in the cells prior to court I did not have the time to tell him who the victim of the AOABH was as I was called up to court. I signed a legal aid application that [the Legal Practitioner] had put under the door and asked him to represent me.
At no time was [the Legal Practitioner] aware prior to entering the court that Mr [G] was the victim in this matter. I asked him to do my bail application I signed a legal aid form for his firm.
36. Both statements included references to the authors having no concerns about the alleged conflict of interest.
37. The affidavit of Mr Phelps was then read. Annexed to his affidavit were the Magistrates Court bench sheet, the Police Statement of Facts, the criminal record of Ms V for her bail proceedings and a legal aid application form signed by Ms V and dated 28 July 2008.
38. Annexed also were communications with and from the Legal Practitioner. These included an email from the Legal Practitioner in response to the Law Society's letter to Ms V about the complaint, in which he stated that his client, Ms V, did not wish to communicate with the Law Society. Mr Phelps' reply on behalf of the Law Society is also annexed, in which he suggested that it was inappropriate for the Legal Practitioner to respond to the Law Society's approach to Ms V and asking whether he still acted for Mr G. It also sought a copy of the statements of Ms V and Mr G. The Legal Practitioner's response to that letter is also annexed, rejecting the concerns of the Law Society about his responding on behalf of Ms V, stating that he does not act for Mr G, that he last acted for him on 23 July 2008, that he continues to act for Ms V and attaching copies of an unredacted version of the statements of Ms V and Mr G.
39. I note in passing that the statement of Ms V forwarded with this letter is in fact a materially different one, though exhibiting the same date, to that tendered and said to have been forwarded with the earlier letter.
40. As noted above (at [37]), the application for legal aid signed by Ms V was also annexed. It is dated 28 July 2008 and on it has been written that the "next court date" is "28/7/08 ... 12 pm". It also contains the statement that the "victim of the offence" is Mr G. It is signed by the Legal Practitioner who has annotated it, "I appeared today for an opposed bail app Bail was granted".
41. In the letter, the Legal Practitioner stated that he "was not aware that [Mr G] was the victim until [he] appeared at the bar table".
42. A letter in reply was also annexed. Mr Phelps was not cross-examined.
43. The Legal Practitioner's counsel objected to Ms Werner's affidavit in its entirety, though the first four paragraphs were admitted. Counsel for the Legal Practitioner sought that she give her evidence orally. She did so.
44. She confirmed the contents of the first four paragraphs of her affidavit, which stated that she had been employed in the Office of the Director of Public Prosecutions of the ACT since April 2007 and that she appeared in the subject proceedings on 28 July 2008. She deposed that Mr G had approached her before the hearing, stating that he did not want Ms V remanded in custody and that he had "no problem" with her being granted bail. She further deposed that, when the matter was called, Ms V was brought to the bar table and the matter commenced; Ms V had no legal representation.
45. Ms Werner then referred in her oral evidence to a file note she had made after the court appearance either the afternoon after she had appeared or the next day.
46. She stated that she told the Court that bail was opposed and that she had spoken to Mr G who did not wish Ms V to be remanded in custody. She referred to the previous offence of failing to appear in accordance with a previous bail undertaking. She referred to the learned Magistrate asking about the attitude of the informant, to which she said she told her Honour that the informant did oppose bail.
47. She then said, that after some time, the Legal Practitioner came to the bar table. Her impression was he "rushed up to the Bar Table" because the matter had started. She said that he stated that he appeared in the matter. She said that the learned Magistrate questioned him about that and that he replied that he had just received instructions from the complainant, Mr G. She said her Honour appeared to be displeased with that and made comments showing her disapproval.
48. Ms Werner said that Ms V made some interjections, but she did not hear what they were.
49. The file note of Ms Werner was then admitted. It was broadly consistent with her oral evidence, though it did record that Ms V interjected saying something like "he doesn't act for me/I don't want/never have wanted him" though none of this is on the transcript of, nor can it be heard on the recording of, the proceedings.
50. In cross-examination, Ms Werner confirmed that she was not completely sure when she made the file note, but that it would not have been days after the proceedings were heard.
51. She was asked to describe the layout of the Court, which she did. I do not need to set out that evidence. She confirmed that she had a "mention brief", consisting of the charge sheet, a statement of facts and a criminal history. There may also have been a "police bail opposition form" and a copy of the first three documents for Ms V or her lawyer. She did not recall whether she handed any of them over and, if so, to whom she did so. These documents, however, were not, she said, handed over as a matter of course to litigants in person.
52. Ms Werner said that she had a memory of Ms V seated at the bar table when the Legal Practitioner spoke but no memory of her position prior to that. She could not recall if Ms V appeared to be affected by alcohol. She did say that she found it difficult to hear what Ms V said, but saw her nodding at what the learned Magistrate was saying.
53. She also said she had seen a copy of the transcript but only on the previous day, that is, after she had made her affidavit.
54. It was put to her that Ms V had not said of the Legal Practitioner that "[h]e doesn't act for me. I don't want/never have wanted him". She agreed it was not recorded but said that she recalled Ms V saying something to that effect, by interjection, though she did not hear clearly what Ms V said. She maintained that Ms V said something along those lines. She conceded that she could have been mistaken.
55. In re-examination, Ms Werner was asked about whether what is said at the bar table is always recorded. She said that definitely not everything that is said at the bar table is recorded. She gave some examples. She stated that what the microphone picks up is different to what the transcriber chooses to transcribe, but she also acknowledged that the microphone does not always pick up what is said. She had, however, never had to listen to a tape but stated that, in her experience, "what ends up on the transcript is not always everything that's said".
56. The affidavits of Mr Perkins were then read. He deposed that he would instruct the Legal Practitioner as his agent on occasion when he had matters listed in more than one of the Magistrates Courts at the same time. Most of the matters were legally aided.
57. He deposed that Mr G had been his client for the past nine years and he had represented him on many occasions in many courts. He further deposed that Mr G had, about four years previously, formed a relationship with Ms V, and that they had two children together. The relationship was not particularly healthy and resulted in "many Court appearances by both of them, involving drugs, alcohol and assaults upon one another".
58. Mr Perkins deposed that he instructed the Legal Practitioner on 23 July 2008 to act as his agent in a Case Management Hearing on behalf of Mr G in proceedings where Ms V was the complainant.
59. He also referred to the proceedings involving Ms V as defendant where, he deposed, she had allegedly hit Mr G with a baseball bat on 27 July 2008. He had received a telephone call from Mr G that evening, who described what had happened. He deposed that he saw Mr G at court on 28 July 2008 but did not see the Legal Practitioner speak to him.
60. In a second affidavit, he annexed a copy of the Practice Direction which sets out the arrangements for Case Managing Hearings. It relevantly provides
4. Procedure at the Case Management Hearing
4.1 Preparation for Case Management Hearing
By the time of the Case Management Hearing the defence must be fully instructed. Defendants must be present. Arrangements will be made by the Court to ensure in custody defendants are brought from the Remand Centre. If a defendant does not appear a warrant may issue for that person's arrest.
The representative of the DPP must be authorised to take the decisions necessary to effectively participate in the Case Management Hearing.
At the Case Management Hearing the presiding Magistrate may:
61. He further deposed that when he instructed other lawyers, such as the Legal Practitioner, in Case Management Hearings, it was sometimes his practice to do so "verbally" when he handed the lawyer the relevant file and introduced the client to the lawyer at the same time, with appropriate instructions, such as naming the relevant witnesses required, whether or not the complainant was required, availability dates, a comment on the defence relied upon and some indication of "our preference" for jurisdiction. He further deposed that if issues arose outside these general instructions, his agent should seek to have the matter stood down until he could attend, though that rarely happened.
62. Mr Perkins was cross-examined. He explained that most of his legal work was in criminal law for legally aided clients. It was, he said, a busy practice. He described how he accessed clients in custody in the court cells, which required some time to access. He also commented that the purpose of the case management hearing process was to "streamline court processes so that case [sic] can be disposed of in a quicker, more appropriate manner".
63. He confirmed that he acted for Mr G on 23 July 2008 in relation to a charge of assaulting Ms V that had been preferred against him. It was scheduled for a Case Management Hearing at 2:30 pm on that day when he was already required in the Supreme Court for a sentencing matter. He confirmed that he approached the Legal Practitioner to act on his behalf on that day at close to 2:30 pm.
64. He said that he had had a brief discussion with the Legal Practitioner; he discussed the evidence only to the extent of indicating the plea of not guilty, that the "defence that was present", the witnesses required, namely two police witnesses and the complainant.
65. He was not completely sure if he introduced Mr G to the Legal Practitioner but was "90% sure ... I would have done that". He noted that Mr G must have been present at some stage otherwise a hearing date would not have been set. He recalled receiving some typed notes from the Legal Practitioner at the end of the day. He did not request the Legal Practitioner to obtain any instructions from Mr G.
66. In re-examination, Mr Perkins said that he recalled giving the Legal Practitioner the brief of evidence obtained from the Director of Public Prosecutions (the DPP). He said he may also have given him the file.
67. Mr Perkins identified his file and noted a letter from the DPP on which he had made some notes which showed what he wanted to pass on. It included the date of the offences, a reference to the complainant and to two police officers, namely the witnesses he required to be called.
68. The letter listed the documents that had been supplied, including a reference to a typed record of a conversation between one of the police constables and Ms V.
69. In re-examination, Mr Perkins agreed that he likely provided the Legal Practitioner with a copy of the charge.
70. In further cross-examination, Mr Perkins said that the charge sheet and the statement of facts would have been "near the top of the file".
71. The transcript of the proceedings in the Case Management Hearing was tendered by counsel for the Legal Practitioner. It showed the matter took two minutes. The Legal Practitioner indicated that the matter was ready to proceed and that the two named police witnesses were required. He agreed that the statements of corroborating police officers would be tendered and that the complainant would be required. He stated that it appeared to be "roughly [sic] a summary hearing". He said that it was a factual issue. He noted the date from the hearing and stated that it would be suitable.
73. It was not entirely clear whether the affidavit of the Legal Practitioner was read. It was not marked as an exhibit, as were all the other affidavits, but it was included in the Appeal Book. It seems that it was not tendered.
75. On 19 October 2010, the ACAT delivered its decision on the issue of whether the complaint against the Legal Practitioner had been substantiated.
76. It set out the background of the complaint and the investigation by the Law Society. These matters are largely set out above. It set out the complaint in summary form. It referred to the relevant laws in a way not challenged on this appeal.
77. In brief, it referred to the definitions of "unsatisfactory professional conduct" and "professional misconduct" in ss 386 and 387, respectively, of the Legal Profession Act. As the definition of the latter term is an inclusive definition, it pointed out that the general law as to the meaning of "professional misconduct" as set out in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763-7 applied, namely that where a professional engages in behaviour that would reasonably be regarded as disgraceful or dishonourable by professional colleagues who are of good repute and competency that constitutes professional misconduct. That approach has been followed in Australia: Re Veron; ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515; Re A Solicitor [1960] VicRp 96; [1960] VR 617 at 620; Prothonotary of the Supreme Court of New South Wales v Costello [1984] 3 NSWLR 201 at 203; Adamson v Queensland Law Society Inc [1990] 1 Qd R 498 at 507. It has expressly been held applicable in this Territory in Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 43 FCR 148 at 153, 168. Such conduct requires more than mere negligence, though it may be constituted by gross negligence or recklessness.
78. Unsatisfactory professional conduct includes conduct which falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner.
79. The ACAT set out the material presented at the hearing.
80. It referred to the rule in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298. It accepted that the rule applied to the proceedings, but only in appropriate cases and that the Council had still to prove its case.
81. Mr K Archer, counsel for the Legal Practitioner, had sought that the rule be applied to the evidence of the Council, which had not called Ms V or Mr G. It noted that their statements had been tendered by the Council only for the purpose of establishing the fact and the content of the response by the Legal Practitioner and not for the purpose of proving the facts asserted in them. The ACAT held that it was not reasonable to draw an adverse inference that the evidence of Ms V or Mr G would have been unfavourable to the Council in the circumstances if they had been called.
82. The ACAT then considered each ground of the complaint.
83. As to the first ground, it considered the transcript and the recording of the proceedings.
84. It noted that the Legal Practitioner had conceded that he purported to act for Ms V on the bail application, so that the only issue in dispute was whether Ms V had, in fact, instructed the Legal Practitioner in the court cells before the bail application. It was not clear whether the Legal Practitioner wished to withdraw from that concession on the appeal.
85. The findings of the ACAT about the evidence of the transcript and recording can be summarised as follows:
1. Ms V can be assumed to be familiar with criminal proceedings and bail applications because of her previous criminal record.
2. Ms V told the learned Magistrate that she was not represented and did so without hesitation or qualification.
3. The Legal Practitioner entered the court as Ms Werner said "but [Mr G] has indicated that he's not concerned for his safety".
4. Ms V did not say anything that indicated she recognised or acknowledged the Legal Practitioner when he entered the courtroom or that she had seen him in the court cells or given him instructions immediately before coming into Court.
5. Ms V clearly was following the course of her bail application and understood what was happening. Although not hesitant about interjecting, she said nothing in support of the attempts by the Legal Practitioner to appear for her.
6. Ms V did not appear affected by alcohol or other drugs nor other impairment that would explain a denial of being represented if she was, in fact, represented.
7. The exchange between Ms V and the Legal Practitioner at the end of the hearing was consistent with Ms V not knowing who the Legal Practitioner was and with her assuming that Mr G had manipulated a scenario in which the Legal Practitioner would be unable to appear for her.
8. The transcript disclosed that the Legal Practitioner did not assert or attempt to assert that he was appearing for, acted for, or had instruction to act for or had spoken to or seen Ms V. This is a somewhat odd articulation of the finding of fact in view of the concession by the Legal Practitioner and the ultimate finding of the ACAT.
9. The Legal Practitioner must be taken to have used the word "instructed" in relation to his interaction with Mr G and not be taken to have used the word loosely to mean "asked".
86. The ACAT was prepared to draw these inferences especially in the light of the failure of the Legal Practitioner to give evidence. It relied on what Tobias JA said in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70] where his Honour, with whom Bryson and Basten JJA agreed, referred with approval to the following comment of Meagher JA in Coe v NSW Bar Association [2000] NSWCA 13 at [21] of a legal practitioner the subject of a complaint that
If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then it is our view he has an obligation to meet the situation by explanation on oath.
87. The ACAT assessed Ms Werner's evidence. It noted that her file note and her evidence were not quite accurate when compared with the transcript, but that it was clear that both she and the learned Magistrate were under the clear impression that the Legal Practitioner was announcing an appearance for Ms V. It also noted that Ms Werner agreed in cross-examination that she was somewhat mistaken in her recollection that Ms V had overtly denied that the Legal Practitioner was acting for her.
89. The ACAT then assessed the responses by the Legal Practitioner in correspondence with the Law Society. It noted that his first response made no mention of having spoken to Ms V in the cells and only referred to his interaction with Mr G outside the court.
90. It noted that his first reference to being instructed by Ms V in the cells was in his letter of 18 October 2008. It enclosed the redacted statements of Ms V and Mr G, though they pre-date his first letter of response. It was, the ACAT found, reasonable to infer that they were prepared for the purpose of responding to the complaint. In the case of Ms V, she says she signed a legal aid application form in the cells before she was called up to court. The ACAT remarked that the failure of the Legal Practitioner to refer to Ms V's instructions in his first response called for an explanation; it was a matter wholly within his knowledge. He gave no explanation.
91. The letter also failed to explain why he did not explain, in Court to the learned Magistrate, that he had actually been instructed by Ms V, if that were the case, and subsequent correspondence did not explain these matters.
92. As to the legal aid application form, it was submitted by Mr N Beaumont, who appeared for the Council, that it was "filled out, it's plain enough, by [the Legal Practitioner] but signed by Ms [V]". That is certainly how it appears. The ACAT said that Mr Archer acknowledged that. That seemed to be the case but only by inference that he acknowledged this, but it is not a ground of appeal that the ACAT erred in so finding.
93. The ACAT did not accept that the form was signed before the bail application had been made, and found that the statement on it that the Legal Practitioner appeared on the opposed bail application was false. While this was not the subject of a charge, it was relevant to the truthfulness generally of the Legal Practitioner.
94. The ACAT then considered the statements of Mr G and Ms V.
95. As to Ms V's statement, the ACAT found that there were a number of concerns about the statement. These may be summarised as follows:
1. The assertion by Ms V that she "really did not understand what was going on" was not consistent with her behaviour as recorded in the transcript.
2. Ms V's assertion that she had requested that the Legal Practitioner be contacted to act for her is not consistent with her recorded assertion that she thought he was "Legal Aid".
3. Her suggestion that she was granted bail "thanks to [the Legal Practitioner]" was quite incorrect as he had no involvement in the hearing before the learned Magistrate and her Honour's decision to grant bail, as must have been obvious to her.
4. There was no explanation as to why Ms V told the Court that she was not represented.
5. There were unexplained differences between the various versions of her statement.
96. As to Mr G's statements, the ACAT declined to attach any weight to it because of problems it identified which may be summarised as follows:
1. The assertion in it that Mr G saw the Legal Practitioner at 9:45 am on 28 July 2008 when "he was rushing into court as he had just seen [Ms V]" was inconsistent with the transcript showing that the bail application commenced at 11:49 am.
2. Mr G's statement that the Legal Practitioner had just seen [Ms V] in the cells was not within Mr G's knowledge.
3. The statement that Mr G left the Court after Ms V was bailed and did not enter the courtroom is inconsistent with Ms Werner's statement to the learned Magistrate that Mr G was present in court.
97. At its highest, the ACAT held, the statement confirmed that Mr G spoke to the Legal Practitioner and told him that Mr G wanted him to act for Ms V.
98. The ACAT then proceeded to make findings on the three grounds.
99. On Ground 1, the ACAT was comfortably satisfied that the ground was made out, finding that the Legal Practitioner was not instructed by Ms V before the bail application to appear or act for her on the bail application.
100. It took, at face value, the statement of the Legal Practitioner recorded in the transcript that he was "instructed" by Mr G to act for Ms V. It rejected the suggestion that Ms V was impaired in any way when she denied that she had any legal representation. The application form for legal aid provided no support for the case sought to be made by the Legal Practitioner.
101. In the absence of any explanation on oath by the Legal Practitioner, the ACAT found that the Legal Practitioner deliberately or knowingly misled the Court, and such misleading was not negligent. Such conduct, it found, was professional misconduct, relying on authorities such as Kyle v Legal Practitioners' Complaints Committee [1999] WASCA 115; (1999) 21 WAR 56 (Kyle); Council of the Queensland Law Society v Wright [2001] QCA 58 and Guss v Law Institute of Victoria Ltd [2006] VSCA 88.
102. On Ground 2, the ACAT noted that the Legal Practitioner conceded that he purported to act for Ms V on the bail application. It found that he did not have those instructions, though he purported to act on the instructions of Mr G. Mr G was the complainant in respect of the charge laid against Ms V.
103. The Legal Practitioner had acted for Mr G as agent for Mr Perkins five days previously in a Case Management Hearing.
104. The ACAT referred to the general principle that lawyers owe a fiduciary duty to give undivided loyalty to their clients and that this cannot be fulfilled if they owe the duty to two or more parties whose interests are in opposition.
105. That the Legal Practitioner acted as agent for Mr Perkins in respect of the Case Management Hearing involving Mr G on 23 July 2008 did not mean, as the Legal Practitioner seemed to imply, that Mr G was not the client of the Legal Practitioner. I note that there may have been no privity of contract between the Legal Practitioner and Mr G, but as Farrell J pointed out in In Re Newen; Carruthers v Newen [1903] 1 Ch 812 at 819-20, there is the same solicitor-client relationship as far as the proceedings were concerned as between Mr Perkins and Mr G.
106. It found that a conflict of interest could have arisen if the Legal Practitioner had confidential information as a result of acting for Mr G at the Case Management Hearing, but noted that the Legal Practitioner contended that he had no such information.
107. It relied on the evidence of Mr Perkins, to which I have referred above.
108. The ACAT was not satisfied, however, that there was any such information known to the Legal Practitioner and found that Ground 2 was not made out.
109. On Ground 3, the ACAT noted the four alleged misleading representations made by the Legal Practitioner in response to the investigation by the Law Society.
110. It referred to the requirement for a practitioner to be frank in communications with the professional regulatory body and to co-operate with investigations into complaints, an extension of the duty of lawyers and officers of the court. See NSW Bar Association v Thomas (Unreported, New South Wales Court of Appeal, Kirby P, Samuels and Clarke JJA, 9 May 1989) at p 19; Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6; Law Society of New South Wales v Ciampa [1999] NSWADT 13 at [33]; Council of the Queensland Law Society Inc v Whitman [2003] QCA 438 at [36]. To mislead such an investigation may be professional misconduct as found in Law Society of the Australian Capital Territory v Burns (2012) 6 ACTLR 282 at 294-5; [42]-[44]; Kerin v Legal Practitioners' Complaints Committee [1996] SASC 5650; (1996) 67 SASR 149 at 163-4, 167. See also r 39.1 of the Solicitors Rules.
111. The first representation was that the Legal Practitioner was unaware that Ms V was the complainant to the assault charge laid against Mr G, for whom he had earlier acted, as agent for Mr Perkins.
112. The ACAT accepted that the Legal Practitioner was not specifically told by Mr Perkins that Ms V was the complainant. Ms V's name was not mentioned in court. The ACAT found that the Legal Practitioner paid little attention to the details of the case, though it was rightly critical of such careless and imprudent practice. The ACAT did not uphold this complaint by the Council.
113. The second representation was that the Legal Practitioner was unaware that Mr G was the complainant of the assault offence charged against Ms V until he appeared at the bar table.
114. The ACAT noted, however, that the Legal Practitioner mentioned this fact almost as soon as he announced his appearance in Court. There was nothing to show how he would have discovered this before he spoke. Since the ACAT found he did not speak to Ms V in the cells, he could not have found out from her. Mr G is noted - in the handwriting of the Legal Practitioner - as the victim in the legal aid application form. Mr G, in his statement, denies telling the Legal Practitioner that he was the complainant.
115. The ACAT found that the Legal Practitioner had a responsibility to find out who the complainant was, so as to be alert to possible conflicts of interest.
116. Nevertheless, it could not conclude that the representation he had made to the Law Society was misleading and the ground was not upheld.
117. The other two representations were that the Legal Practitioner was instructed by Ms V in the cells and that he held an application form for legal aid both prior to the bail application.
118. It followed from the finding on ground 1, and the ACAT so found, that these representations were misleading. It also found that the making of them was properly characterised as professional misconduct.
119. The ACAT then proceeded to hear submissions on sanctions. I had the written submissions but no transcript of any oral hearing.
120. The Council submitted that the ACAT should recommend that the name of the Legal Practitioner should be removed from the Roll.
121. The Legal Practitioner acted for himself at this point. His submissions tended to controvert the ACAT's findings, suggesting at a number of points that there was no misleading of the court or, at least, no intentional misleading of the court. These submissions were inconsistent with the findings of the ACAT.
122. Leaving that aside, the Legal Practitioner's submissions raised a number of other matters. He submitted that the finding of the ACAT that the court "was not misled to any significant extent and that the Court did not act on [the Legal Practitioner's] misleading actions" was relevant and had to be taken into account.
123. He referred to a number of authorities where decisions of courts and tribunals had imposed sanctions less severe or drastic than the removal of a legal practitioner's name from the Roll for occasions where the court has been misled. He submitted that any penalty should be at the lower end of the scale.
124. Indeed, in relation to the sanction for the third ground (for which only two statements of the four alleged were found to be misleading), he submitted that a sanction other than "a small fine" would be an "appellable error".
125. As to costs, he submitted that since the Council had been unsuccessful in its complaint on ground 2 and two of the four statements that constituted ground 3, it was only successful on half its complaint. He submitted that each party should pay its or his own costs.
126. Reference was made, in the Council's submissions, to the fact of other disciplinary proceedings, in which a differently constituted ACAT had also found that the Legal Practitioner guilty of professional misconduct and of professional conduct. The Legal Practitioner noted that these charges were currently on appeal and, as such, should not be taken into account.
127. He raised a number of subjective matters, including his heavy workload and limited professional experience and set out his personal circumstances. In cases of dishonesty, these are, perhaps, not so relevant for, as McPherson JA observed in Attorney-General v Bax [1999] 2 Qd R 9 at 13
basic honesty is not a quality that is ordinarily acquired through experience, or by lengthy practice of trying one's best to be honest.
128. He also submitted that the charges should be dealt with separately as they were "separate courses [sic] of action on different dates and under different circumstances".
129. The ACAT delivered its decision on the sanction to be imposed on 23 August 2011. It is not clear why there was such a delay, save from the undoubted heavy workload the ACAT has had to endure.
130. It recommended that the name of the Legal Practitioner be removed from the Roll and that he pay the Council's costs on the Supreme Court scale on a party and party basis.
131. It set out the findings it had made and referred to the possible orders that it could make under s 425 of the Legal Profession Act. It also referred to the purposes of the Act set out in s 6 and of the disciplinary regulations as set out in s 384, noting the relevance of specific deterrence and general deterrence.
the nature of, and the circumstances surrounding, the acts found to constitute misconduct; the level of understanding demonstrated by the practitioner of the nature of his conduct; the attitude of the practitioner especially whether he demonstrates any remorse or regret for the conduct; the likelihood of a future re-occurrence of behaviour warranting disciplinary action and any previous adverse findings in relation to the practitioner's professional conduct.
These factors are to be considered in the context of the purposes of disciplinary proceedings. The Tribunal's sanction should aim to uphold the administration of justice and, so far as is possible, protect the public from the risk of future acts of professional misconduct or unsatisfactory professional conduct.
134. It analysed and summarised the submissions of the Legal Practitioner and of the Council.
135. It considered that the Legal Practitioner had misunderstood the relevant law and the significance of its findings.
136. It found that both of its findings were matters of serious breaches of the conduct required of lawyers. It emphasised that the fact that the court was not misled to any significant degree did not mean the matter was trivial. It noted that the misleading statements involved a significant degree of deception.
137. It accepted the Council's submission that it should consider the findings as a whole and not separately. It also noted that the Legal Practitioner, by contesting the complaint, had shown no remorse or regret for his misconduct, but placed no weight on that.
138. It decided that it should take the earlier matter into account, even though they were later incidents, but found that they did not add anything to its consideration of penalty. It rejected the submissions about workload or limited professional experience as not shown to be related to the actions involved.
When considered together and when considered in the light of the apparent misunderstanding of the seriousness of those matters, the findings lead to the conclusion that the respondent's character is such that he is not a fit and proper person to engage in legal practice. This in turn, leads the Tribunal to conclude that it is appropriate to recommend that the respondent's name be removed from the roll of local practitioners.
140. As to costs, it noted that s 433(1) of the Legal Profession Act required that if it found that a legal practitioner is guilty of professional misconduct, it must order the Legal Practitioner to pay the costs of the Council unless it finds exceptional circumstances exist.
141. It concluded that the fact that some grounds are not made out in a complaint to the requisite degree is not an exceptional circumstance. Accordingly, it ordered that the Legal Practitioner pay the costs of the Council.
142. The Legal Practitioner clearly prepared the Notice of Appeal himself. It was in some ways an extraordinary document which included a very wide range of grounds, many overlapping.
143. In his written submission, the Legal Practitioner did not address each of the grounds clearly. He appeared to have addressed all of the so-called "Questions of law" but many of them collectively, suggesting a careless drafting of them, which tended to obscure rather than identify the real issues. Some were then addressed twice or more but in conjunction with others. It was very difficult to follow the submissions, which were confusing and largely unhelpful. It did not appear from what I could see that the questions of fact were identifiably addressed separately.
144. This was certainly not a helpful way to approach the appeal. That this was clearly true became apparent in the oral submissions, which barely addressed the grounds of appeal, and certainly not all of them.
145. Nevertheless, it is appropriate that I deal with the issues that I consider were properly before the Court from the material presented.
146. I set out, therefore, the grounds of appeal as follows:
The evidence adduced at the hearing provides a too fragile a base to sustain the Tribunal's finding of fact which are against the weight of evidence. The Tribunal's finding of fact are unsafe and unsatisfactory. There are only three people that are able to give evidence as to the fact V, G and the practitioner. V and G have given unchallenged evidence and the practitioner has utilised his right not to give evidence.
147. In order to deal properly with the appeal, which essentially addressed a small range of issues, but which had been pleaded so expansively, I think it is easiest to address the arguments addressed to the Court serially and deal with each.
148. Because, as noted, the oral submissions were not really related to specific grounds of appeal, I will try to articulate the issue and relate it where I can to the written grounds of appeal.
149. It is convenient to deal with the oral submissions first.
(a) On the findings of fact of the ACAT, the first ground of the complaint could not be made out (apparently the chapeau to the Questions of Fact and some of the grounds thereunder specified together with Question of Law grounds 3 and 4)
150. The Legal Practitioner initially submitted that "there's an issue in regard to the impossibility of the charge." That seemed to mean that because the terms of the complaint (at [10] above) comprehended in its formal articulation all three of the grounds and because the ACAT had dismissed one of the grounds, namely that relating to an alleged conflict of interest, the complaint could not be made out.
151. I do not consider that this is the way to approach the pleading of the complainant. The complaint has three grounds, the last having four separate representations. It is not a criminal charge where, if one element is not proved, the offence the subject of the charge is not proved. The grounds of the complaint are not elements but particulars. Any of the particulars of the complaint, if made out to the requisite degree of proof, would be sufficient to found an appropriate disciplinary finding because they would show some departure from the conduct to be expected of a legal practitioner.
152. The Legal Practitioner, however, submitted that Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 required that all the elements of the pleaded complaint had to be made out. He referred to the following passage in the judgment of Deane J at 270:
Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct. Two of those requirements in such proceedings are relevant for present purposes. The first is that the allegation against the particular practitioner must be specifically identified. The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them. (Citations omitted).
153. This does not support the submission. The Legal Practitioner was made very aware of the allegations against him and could have been under no misapprehension. That the particulars of the complaint were cumulative but separate was clear in the way the grounds were specified. There was nothing at all to suggest that only if all three grounds were proved could a complaint sounding in disciplinary action be upheld.
154. When confronted with this, the Legal Practitioner then changed tack and submitted that none of the grounds had actually been made out as a matter of fact. That led to a lengthy consideration of the first ground, namely that the Legal Practitioner deliberately or recklessly misled the court.
155. The Legal Practitioner's submission was that he could not have been guilty of this ground because the ACAT had found that the Court was not misled. He submitted that the complaint was not that he attempted to mislead the Court, but that he did so.
156. Mr N Beaumont, who appeared for the Council, submitted that, construed properly, the Legal Practitioner did mislead the Court, though ultimately it was not misled, as found by the ACAT.
157. He submitted that, at least, the initial remark made by the Legal Practitioner achieved this.
158. The Legal Practitioner interrupted the proceedings. He, of course, had no right to do so unless he had an interest in the proceedings, that is, because he was acting for someone entitled to be heard.
159. The Legal Practitioner then said: "I've just been instructed in regard to this matter". That, it was submitted, could only have meant that he was instructed by Ms V.
160. What is complicated is that, in his subsequent, but not immediate, correspondence with the Law Society, that is what he says is the position; his position was that he spoke to Ms V in the court cells, obtained her signature on an application for legal aid and was instructed to appear for her. That is why, apparently, he was rushing into Court and interrupted the proceedings.
161. The Council pointed to the finding of the ACAT
It is clear that both Ms Werner and the Magistrate were under the impression that the [Legal Practitioner] was announcing an appearance for V, and indeed, in his own representations to the [the Law Society], the [Legal Practitioner] asserts that he was purporting to act for V.
162. That is consistent with the evidence given by Ms Werner and the next comment by the learned Magistrate who raised the issue of how that could be as Ms V had told her that she was not represented.
163. This may be also supported by a comment that was made by the Legal Practitioner. In his second letter of 5 September 2008, he refers to "passing behind the defendant at the bar table to get the statement of facts etc". Indeed, in the course of his submissions before me, he lapsed into giving evidence. He did this quite a few times, but in that context said to me: "I heard what was mentioned in the Court and I picked up the statement of facts from the end of the bar table". While I cannot, and do not, accept evidence in this way on an appeal, I can at least take that as a submission that the inference from his letter is not challenged; indeed, it is confirmed.
164. There are two comments to make about this. If that is what he was doing, then that is conduct that is only consistent with him acting or understanding that he was acting for Ms V, else he would not be entitled to a copy of the Statement of Facts. The "etc" presumably was the charge sheet and the prior criminal record of Ms V. In this, the Legal Practitioner was adhering to the concession that has been made before the ACAT that he had appeared for Ms V.
165. That action, which the Court must have seen, would, in itself, be part of the circumstances which, in conjunction with the words spoken, would make it clear to the court that he purported to act for Ms V.
166. The Legal Practitioner then submitted that the ACAT had found that he did not appear, and played no part, in the bail application and that this meant that this ground of the complaint could not succeed. That cannot be right. The attempt to appear, though unsuccessful, amounted to the misleading by purporting, albeit unsuccessfully, to appear and act for Ms V.
167. This is where the position becomes quite curious, for the Legal Practitioner then announces that he has been instructed by Mr G, the complainant in respect of the charge against Ms V.
168. Why that is curious is that the Legal Practitioner's stand in the hearing was that he had seen Ms V in the court cells and obtained her instructions to appear.
169. That is consistent with the annotation on the application for legal aid - "I appeared today for an opposed bail app" - and yet he appeared to be now saying to the Court that he was instructed by Mr G not Ms V and added "My only instruction was to speak to the defendant". The implication of that is that he was not acting for her, but for him.
170. That, however, is not the position he took at the hearing of the appeal where, again, giving evidence in the course of his submissions, he said: "I'd gone to the end of the Bar table to represent Ms [V]". Again, I cannot accept the evidence, but that confirms the approach taken, namely that he intended to act for Ms V and so his announcement to the court is consistent with that.
171. On his subsequent approach to the proceedings, however, namely that he had prior instructions from Ms V, this was quite misleading. On his own version of the facts when submitting that his instructions came from Mr G and not Ms V, he was misleading the Court. That, however, was not how the complaint was particularised. It was particularised that he was "purporting to act for [Ms V] on a bail application".
172. The original announcement was misleading. It was inescapable that the court was to think that he was acting for Ms V. It was only when challenged as to the oddity of this that he changes direction and reduced it to being instructed by Mr G "only ... to speak to the defendant". It was misleading for the ACAT found he had not been instructed by Ms V.
173. That the misleading was for a short period and, indeed, would inevitably be discovered, is not an answer to a complaint of misleading the court. See Kyle.
174. I do not read the remarks of the ACAT to say that the Court was not at any time misled, only that it was shortly disabused of the misleading conduct which did not ultimately impact on the proceedings. That seems to me to be consistent with Kyle. It is a more difficult issue as to whether the conduct of misleading the Court can only be committed where the court is actually misled. Proof of this may be quite problematic and it would not ordinarily be appropriate for the judicial officer to be called to say that he or she was misled.
175. In Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [100], the Court of Appeal of Western Australia considered that it was sufficient to act dishonestly towards the court if
a practitioner ... makes a false assertion in closing submissions to the court about the facts, in the absence of any genuine belief that the evidence supports such an assertion ... even if the practitioner did not know that the statement was misleading.
176. Similarly, in Legal Profession Complaints Committee v in de Braekt [2013] WASC 124 at [6], two occasions of misleading the court were in issue; in one, the Court clearly acted on the mis-statement made by the lawyer, but in the other, the court was content merely that the lawyer had made the same misrepresentation without adverting to any response or effect on the Court.
177. In neither of these decisions, however, was the issue directly addressed of whether a legal practitioner can be guilty of misleading the court if the court is not actually misled. In my view, I do not have to decide that issue finally in these proceedings, as I am satisfied that the Court was initially misled but not ultimately so, which is what I understand the ACAT's finding actually to be.
178. Such a finding is strongly supported by a decision of the High Court on which the Legal Practitioner heavily relied, but not for this purpose, Smith v New South Wales Bar Association. To show the similarity, I set out the facts as stated by the Court
The assault case was listed for hearing in Penrith Local Court on 11 November 1986. The appellant announced his appearance for Andrew Knight. His retainer was immediately challenged by opposing counsel whose instructing solicitor had been informed by Ms Watson, a solicitor employed in Mr McDonald's firm, that that firm had no interest in the matter. The appellant asserted that he was briefed and that he was instructed by Mr McDonald, not Ms Watson. Mr McDonald was not present. The appellant said that Mr McDonald was 'engaged in other work'. After some further discussion, the matter was stood down in the list so that Mr McDonald could be in attendance. The matter was mentioned twice before the luncheon adjournment, although the appellant was not present on the first mention,. On the second mention, the appellant again asserted that he was instructed by Mr McDonald and said that during the adjournment he had received 'a back-sheet specifically relating to this matter". He indicated that there had been 'a misunderstanding' about the backsheet, to the effect that the matter was included in a brief 'covering the family matters and property settlement matters and those associated with it'. The presiding magistrate declined to proceed in the absence of an instructing solicitor. The matter proceeded after the luncheon adjournment when Ms Watson was present in court.
179. On these facts, Samuels JA, in the Court of Appeal, found that Mr Smith had deliberately misled the Magistrate and Meagher JA held that he had lied to the Magistrate.
180. Although the High Court allowed the appeal, that was on other grounds and did not make any comment suggesting that these findings were not open.
181. It seems, on the facts, that the Magistrate did not accept the truth of Mr Smith's assertion that the Court found was a lie and certainly did not act on it. This is very similar to these proceedings.
182. The only other question, not directly raised by the Legal Practitioner, was whether the conduct was deliberately or knowingly done.
183. Again, the words of the Legal Practitioner are important. He said "I've just been instructed in regard to this matter". The context is important; he was interrupting a bail application hearing. His only right to be heard was if he was acting for Ms V.
184. If he were merely going to seek an adjournment, even a short one, so that he could speak to Ms V and offer his services to an unrepresented litigant, then that was inconsistent with his words and his actions. He was knowingly trying to lead the Court into believing that he was instructed by Ms V. There is no other plausible explanation for his conduct.
185. The challenge to the findings of the ACAT cannot succeed.
(b) The ACAT erred in respect to the "onus of proof" (probably Questions of Law grounds 6, 7, 8 and 9)
186. The Legal Practitioner submitted that he wished to deal with the "onus of proof" but his oral submissions appeared, at least initially, to deal with the standard of proof. This is to what the grounds of the Notice of Appeal, to which I have referred above, are directed.
187. The Legal Practitioner submitted that the standard of proof was what was described in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. He described it as the "civil standard, but a little bit more is actually required due to the serious consequences". It was in the "more" that he submitted that the ACAT had failed to comply with what the High Court had required.
188. He then reverted to the onus of proof, submitting that
Despite bearing the onus of proof, the respondent only calls one witness, which was Ms Werner, and in my respectful submission her evidence is completely contrary to the transcript and to the audio. Apart from this witness, no supporting evidence is given to the allegations by the respondent. Mr Perkins' evidence barely touched on the grounds that were found against the appellant. So the respondent's case basically ---
189. He acknowledged, however, that the transcript was an important piece of evidence that had also to been taken into account.
190. While he acknowledged this, he also referred to the statements of Ms V and Mr G as well.
191. I then turned the Legal Practitioner back to the standard of proof to see what complaint he had. He referred critically to [24] of the ACAT's finding
The applicant bears the onus of proof on the balance of probabilities. A line of authorities establish that the standard of proof as described in Briginshaw v Briginshaw is appropriate for disciplinary proceedings because of the potential serious consequences for a practitioner who is found guilty of misconduct.
192. It is worth recording here what was actually said in Briginshaw v Briginshaw. Rich J said (at 350):
By sec. 80 of the Marriage Act 1928, which is taken from sec. 29 of the English Act it is provided that - 'Upon any petition for dissolution of marriage, it shall be the duty of the court to satisfy itself, so far as it reasonably can, as to the facts alleged'. The phrase 'satisfy itself, so far as it reasonably can' obviously reflects the influence of the common expression 'reasonable satisfaction'. In a serious matter like a charge of adultery the satisfaction of a just and prudent mind cannot be produced by slender and exiguous proofs or circumstances pointing with a wavering finger to an affirmative conclusion. The nature of the allegation requires as a matter of common sense and worldly wisdom the careful weighing of testimony, the close examination of facts proved as a basis of inference and a comfortable satisfaction that the tribunal has reached both a correct and just conclusion. But to say this is not to lay it down as a matter of law that such complete and absolute certainty must be reached as is ordinarily described in a criminal charge as 'satisfaction beyond reasonable doubt'.
At common law two different standards of persuasion developed. It became gradually settled that in criminal cases an accused person should be acquitted unless the tribunal of fact is satisfied beyond reasonable doubt of the issues the burden of proving which lie upon the prosecution. In civil cases such a degree of certainty is not demanded ... The truth is that, when the law [Starkie's Law of Evidence] requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency ...
It means that the nature of the issue necessarily affects the process by which reasonable satisfaction is attained. When, in a civil proceeding, a question arises whether a crime has been committed, the standard of persuasion is, according to the better opinion, the same as upon other civil issues ... But, consistently with this opinion, weight is given to the presumption of innocence and exactness of proof is expected.
194. The Legal Practitioner relied on some comments of the State Administrative Tribunal of Western Australia in Legal Practitioners' Complaints Committee v Trowell [2009] WASAT 42 at [63]:
In this respect the significance of Briginshaw is that the seriousness of the matter and of its consequences does not affect the standard of proof but goes to the strength of the evidence necessary to establish a fact required to meet that standard. It does no more than reflect a conventional perception that members of society do not ordinarily engage in criminal or improper conduct: Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 (Neat Holdings).
195. What the Legal Practitioner did not do is to refer to further statements of the Tribunal. For example, it went on to refer to the following comments of the High Court in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at [11]
the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof is no mere matters of words: it is a matter of critical substance.
It is the case that the civil rather than the criminal standard applies, notwithstanding the onerous penalties which may be imposed. The purpose of professional disciplinary proceedings is the protection of the public rather than the punishment of the individual. This explains also why a practitioner facing a complaint is under a duty to co-operate in the investigation and ought take a less combative approach than he or she might in other proceedings.
197. None of this is inconsistent with what the ACAT said, which I have cited above (at [191]). Indeed, it is, in my view, entirely consistent.
198. The Legal Practitioner had a problematic habit of making reference to passages from authorities without relating them to the issues or articulating the precise submission he considered they supported.
199. The Legal Practitioner made the following curious submission:
At this point the Tribunal fails to understand the that although the standard of proof is to the Briginshaw civil standard a little bit more than that is actually required due to the serious consequences the practitioner potentially faces. The standard of proof requires more and this is where this Tribunal fails.
200. There appears to be a misconception of what Briginshaw v Briginshaw decides. It decided that there are only two standards: the civil standard (usually described as the balance of probabilities) and the criminal standard (beyond reasonable doubt). What the case itself decides, however, is that where serious consequences flow from a finding in civil proceedings, the court or tribunal must take care to ensure that there is no mere mechanical comparison of probabilities but a reasonable satisfaction produced by more exact proofs, definite testimony and direct references such as to satisfy "any sound and prudent judgment". At the end of the day, however, the Court held that the standard is the same for any other civil issues.
201. Thus, it is simply incorrect to refer to the standard of proof "to the Briginshaw civil standard [plus] a little bit more". There is no "little bit more" to the standard set by the High Court.
(c) The ACAT made findings that were unsafe (apparently Questions of Fact grounds 1 and 2 and possibly Questions of Law grounds 6, 29, 30 and 31)
202. The Legal Practitioner submitted that the ACAT made an unsafe finding when it found at [102]
The only interpretation that can be placed on the words and actions of the respondent and of V during the bail application as evidenced by the transcript and the audio recording is that the respondent did not have instructions from V to act for her when he appeared before the Magistrate.
203. This is to be contrasted with its finding in upholding ground 1 that the Legal Practitioner purported to act for Ms V. As it found he was not instructed to act for her, in so doing, he misled the court. The finding of the ACAT just quoted was a necessary finding to reach that conclusion, for, if he were instructed, there would be no misleading in the terms of the ground of the complaint - although, as noted earlier (at [171]), he would have then misled the Court by stating he was instructed by Mr G, not Ms V.
204. The Legal Practitioner refers to the initial response of Ms V to the Court
HER HONOUR: You haven't got anyone representing you?
[MS V]: No, I didn't - yeah sorry.
205. He says that it is significant that Ms V does not say, "No, I don't" nor "No, I haven't". He submitted that the past tense was significant which made it an "unclear" answer. This, he submitted, breached the constraints on the ACAT that it is not able to inform itself about the relevant evidence as it thinks fit. He conceded, however, that it is, of course, entitled to draw inferences and conclusions from the evidence.
206. Was the inference available? In my view it clearly was, especially in the circumstances. Indeed, when I listen to the recording, the "No" is very clear and definite. The inference it drew was unarguably open to the ACAT.
207. The picture that the Legal Practitioner painted is that very shortly - a matter of minutes - before Ms V appeared in Court, he had spoken to her in the court cells and had been retained to act for her, knowing that a bail application is imminent. If we take her statement into account, she had asked for him to act for her and sent out messages for him to be contacted so he could do so. He had then arranged for her to authorise him to act under a grant of legal aid.
208. In that scenario, a responsive answer could not be as recorded; it would have had to be "Yes ...". One would expect her to add something like "I have just seen him; he will be here very shortly".
209. We shall never know what Ms V was going to add to "I didn't ...". On the scenario painted by the Legal Practitioner, it could have been "I didn't but I do now" or similar, though the Legal Practitioner never addressed that issue. In that event, however, it would have to be "Yes, I didn't but I now do", not "No, I didn't ...".
210. It is perhaps idle speculation, but "No" is much more consistent with something like "I didn't think it was necessary" or "I didn't have time to organise it".
211. Further, such latter scenarios are much more consistent with "yeah, sorry" than is any formulation that might favour the Legal Practitioner. There is no occasion to express regret if Ms V was represented as the Legal Practitioner says happened minutes before.
212. The ACAT was entitled to draw the inference that Ms V was telling the Court that she was unrepresented and that, in this, she was telling the truth.
213. That is reinforced by the fact that Ms V says nothing when later the learned Magistrate says "[Ms V] said she didn't have anyone appearing for her". The transcript shows that she is not at all reticent about letting the Court hear her views. While, of course, not decisive, it is supportive that she does not contradict the Court.
214. Perhaps in support of his interpretation, the Legal Practitioner suggested that Ms V was affected by alcohol and drugs. He did not describe what the significance of this submission was. I can only speculate that it may have resulted in some confusion by Ms V so as to require further caution in assessing the evidence of her response in the transcript.
215. I did not hear on the recording, which was before me and to which I listed on a number of occasions, any support for a necessary inference that Ms V was so impaired. Indeed, I did not hear any such impairment in her voice at all.
216. The Statement of Facts for the offence shows that Ms V was arrested at 1:57 am on 27 July 2008. At the Regional Watch House she was assessed as being too intoxicated and too aggressive to be interviewed. She appeared in Court, having been in the Watch House since shortly after her arrest. The bail application commenced at 11:49 am, that is ten hours after her arrest. I do not consider this leads to a strong conclusion, certainly not a necessary inference, that she was affected by alcohol at the time of the hearing of the bail application.
217. There is no discernible error in the finding of the ACAT that Ms V was not affected by drugs or alcohol when she denied that she had legal representation.
218. The Legal Practitioner was also critical that neither Ms V nor Mr G were called to give evidence. They were subpoenaed by the Council but only because it considered that the Legal Practitioner might wish to call them. He did not do so and it was plain that they were not considered witnesses of truth by the Council.
219. The Legal Practitioner first submitted that, as the statements of Ms V and Mr G had been tendered by the Council, they then formed part of the Council's case and had to be accepted as evidence on its behalf and reliance placed on them. He submitted that the statements had been inappropriately rejected by the ACAT. He particularly referred to that of Mr G.
220. I shall take these challenges separately. I shall first deal with the statements and, in particular, the statement of Mr G.
221. The two statements were tendered because they were attached to the response of the Legal Practitioner to the letter of complaint supplied to him and to which he was responding. As the learned General President of the ACAT remarked
it would be normal practice for the complainant's initial letter of complaint and the response, if you like, to the reply from the practitioner to be part of the applicant's case.
222. Thus, it is clear that the statements had the same status as the letter of response from the Legal Practitioner. That is to say, they were tendered to show what the response was to the complaint without the Council asserting the truth or reliability of what was said. Indeed, given the Legal Practitioner's denial of any wrongdoing, such an assertion would end the proceedings were the statements have to be accepted as true.
223. Nevertheless, as no direction was given under s 136 of the Evidence Act 2011 (ACT) as to the use to be made of them, they were available to be used for the truth of the assertions made in them. That, of course, did not mean that they were necessarily to be accepted as true and they were required to be scrutinised and evaluated as evidence like all the other evidence.
224. The Legal Practitioner submitted that the two matters of concern expressed by the ACAT about Mr G's statement, namely the incorrect time and the denial that he entered the court room, which it held rendered the statement of no weight, were too insubstantial to have that effect.
225. There was, in fact, more that was problematic with the statement, as identified by the ACAT. The time was wrong; clearly the event must have occurred closer to 11:45 am than 9:45 am, a significant difference.
226. The order of events, however, was also wrong. Mr G stated that he saw the Legal Practitioner as "he was rushing into court as he had just seen my partner [Ms V]". If so, then on the evidence of the Legal Practitioner, he had already received instructions and a signed application form for legal aid from Ms V. He had already seen Ms V when he first saw Mr G. The Legal Practitioner cannot then, as he told the Court, have been instructed by Mr G to see Ms V in the cells. The two scenarios are inconsistent.
227. Then, Mr G says he asked the Legal Practitioner to act for Ms V on the bail application. That does not make sense if, as Mr G asserted, the Legal Practitioner was rushing into court having seen Ms V in the court cells. He can only have been doing so in order to appear for her. There was no occasion for the Legal Practitioner to be asked for Mr G to act for Ms V; why he did not say "I am already instructed" is at least curious. In any event, the Legal Practitioner is recorded on the transcript as getting different instructions from Mr G, namely on to go and see Ms V, not to act for her on a bail application. These are irreconcilable differences.
228. Then Mr G says that the Legal Practitioner told him that there may be a conflict because he had acted as Mr Perkins' agent for Mr G and this might cause a problem. That is inconsistent with the emphatic statement by the Legal Practitioner that he did not know that Mr G was the complainant in the charge against Ms V until he arrived at the bar table.
229. Mr G said that he did not enter the courtroom at any time. That is inconsistent with the evidence of Ms Werner who said, as recorded in the transcript, that Mr G was in Court. The Legal Practitioner made a pathetic attempt to argue that "in court" meant in the precincts of the Court. That must be rejected. In any event, it was never suggested to Ms Werner in cross-examination that this is what she meant.
230. It is unsurprising and, not only was there no error, but in my view, it was correct that the ACAT considered that Mr G's statement could be given no weight.
231. The Legal Practitioner then submitted that the finding of the ACAT that he did not have instructions to act for Ms V was in error since, as it found, and I have agreed was not an error, he purported to appear on her behalf.
232. The difficulty with the submissions of the Legal Practitioner is that he fails to make the distinction between actually acting (which is what the ACAT was addressing in the challenged passage) and purporting to act (which is the ground of the complaint).
233. The ACAT carefully analysed the transcripts. It relied on the Legal Practitioner's odd volte face when confronted by the learned Magistrate. Instead of saying, as would be expected if his version of events is true, "I have just seen Ms V in the cells and received her instructions", he then says that he was instructed by Mr G but not, as Mr G asserts, to appear on the bail application, merely to speak to her.
234. At no stage did Ms V suggest that she has even met the Legal Practitioner before, much less that she had instructed him only minutes before to appear for her, so that he was rushing into court to do so.
(d) The ACAT erred in its application of the rule in Jones v Dunkel with respect to the evidence of the Legal Practitioner, Ms V and Mr G (apparently Questions of Law grounds 1, 2, 6, 11, 12, 13, 14, 15, 16, 17, 18 and 36)
236. The Legal Practitioner submitted that the failure of the Council to call Ms V and Mr G, though they had been subpoenaed to attend and, as is clear from the transcript of the proceedings before the ACAT, they were present outside the hearing room, meant the ACAT should have applied the rule in Jones v Dunkel and draw an inference against the Council. He did not identify what inference was to be drawn.
237. He also submitted that it should not have drawn inferences from his failure to read his affidavit or to give oral evidence, or indeed, to call Ms V and Mr G.
239. These submissions relate to the principle in Jones v Dunkel which is not always well understood.
240. Some written submissions made by the Legal Practitioner's counsel address that issue but they were made outside leave granted to the Legal Practitioner. Leave was granted to file further written submissions, but only to address some specific areas; the actual submissions addressed other areas than that which was the subject of leave.
241. When written submissions are filed after a court or tribunal has reserved its decision without leave to file them, they ordinarily are to be rejected and not read. I have collected some authorities to this effect in Australia and New Zealand Banking Group Ltd v Manny (No 4) [2013] ACTSC 236 at [116]. This principle applies to any submissions that travel outside the remit of any leave granted to file submissions directed to a particular issue or issues.
242. Nevertheless, the Legal Practitioner's counsel made submissions at the hearing as follows:
So the Jones v Dunkel considerations that are said to apply in relation to our client we say don't apply at all. But they apply very clearly, directly and obviously where a party who has carriage of a matter and who has the onus of proving the matter fails to call relevant witnesses in their case. And the Tribunal, as a matter of fact and of law, are entitled to draw the inference their failure to call Mr [G] and Ms [V] resulted in a perception on their behalf that the evidence that they would give would be unfavourable to their cause.
243. The rule in Jones v Dunkel in civil cases may properly be summarised in the following propositions based on the discussion of the rule in J D Heydon, Cross on Evidence (LexisNexis Butterworths, 1996) looseleaf (service 163) at 1091-99; [1215]:
1. Unexplained failure by a party to give evidence to call a witness, or to tender documents or other evidence, or to produce particular material to an expert witness may (not must) in appropriate circumstances lead to an inference that the uncalled evidence or missing material would not have assisted that party's case.
2. The appropriate circumstances exist where it was within the power of the party to call the witness or to tender the documents or other material which was not called or tendered depending on whether the failure is satisfactorily explained, in which case, the rule has no application.
3. The application of the rule entitles the trier of fact to take into account the failure to adduce the relevant evidence in deciding whether to accept any particular evidence which relates to the matter to which the evidence may have been directed and more readily to draw any inference fairly to be drawn from the other evidence by reason of the party failing to adduce the evidence being able to prove the contrary had that party chosen to adduce it, but not to permit the inference that the evidence not adduced would have in fact been damaging to the party not adducing it.
4. The rule only applies where a party is required to explain or contradict something, which depends on the issues in the case as thrown up by the pleadings and the course of the evidence in the case.
5. The rule does not apply where the witness not called is the party's solicitor or where the evidence which is not adduced is privileged and the privilege has not been waived.
6. The rule does not require a party to adduce merely cumulative evidence.
7. The rule does not apply to the calling of non-party witnesses unless it would be natural for the party to call the witness or the party might reasonably be expected to call the witness.
8. The evidence of an uncalled witness must be such as to be likely to have elucidated the facts, but if not sufficient merely to assert that the witness had knowledge or may have had knowledge of them.
9. The rule applies to both parties and can operate against a party which does not bear the burden of proof as well as against those that do.
10. The rule applies to the failure by a party to ask a witness called by that party questions in chief, at least where the most natural inference is that the party feared to do so.
244. Although these proceedings are akin to civil penalty proceedings, it appears that the rule in Jones v Dunkel applies even to such proceedings: Adler v Australian Securities and Investment Commission [2003] NSWCA 131; (2003) 46 ACSR 504 at 644; [661].
245. For a careful and comprehensive analysis of the relevant authorities, see Australian Securities and Investment Commission v Fortescue Metals Group Ltd [2009] FCA 1586; (2009) 76 ACSR 506 at 525-31; [85]- [108] per Gilmour J. Although that decision was overturned on appeal by the Full Court in Australian Securities and Investment Commission v Fortescue Metals Group Ltd [2011] FCAFC 19; (2011) 190 FCR 364, this issue was described (at 396-7; [78]-[81]) as a "peripheral" issue and was apparently undisturbed. The decision of the Full Court was itself overturned on appeal in Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486, though the approach of the trial judge was not restored (at 514; [68]), but this issue played no part in that appeal.
246. The tender of the statements of Mr G and Ms V did not make them the Council's witnesses, in the sense used by Fullager J in Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 293. The statements were merely part of the course of the investigation which the Council was required to place before the ACAT.
247. The unchallenged material showed that Ms V and Mr G had been subpoenaed by the Council so that they might be called by the Legal Practitioner if he chose to do so. Indeed, a letter to the Legal Practitioner's lawyers had actually stated that while they had been subpoenaed by the Council they were not the Council's witnesses.
248. There were a number of reasons for this. In the first place, the Council did not rely on their evidence; indeed, it sought to challenge and discredit it.
249. Secondly, it was reasonable to suppose that they were likely to be hostile to the Council. In Smith v Samuels (1976) 12 SASR 573 at 581 Bray CJ pointed out that a reason why no unfavourable inference should be drawn from the absence of a witness included "his hostility to the party".
250. Thirdly, as the Legal Practitioner had continued to act for Ms V and had provided her statement and that of Mr G to the Law Society and which were in a form that appeared to have been prepared by him and, having regard to the contents of the statements, it was reasonably to suppose that both Ms V and Mr G were in the Legal Practitioner's "camp" and therefore it would be unrealistic for them to be called by the Council. See O'Donnell v Reichard [1975] VicRp 89; [1975] VR 916 at 920.
251. In these circumstances, it was, as found by the ACAT, not reasonable to draw any adverse inference against the Council from its failure to call Ms V or Mr G.
252. More problematic, is that the Legal Practitioner never formulated the inference that he sought should be drawn against the Council. I advisedly say problematic because the inconsistencies in the statements and between them and the material from the Legal Practitioner, which ultimately in fact came only from that provided by him to the Law Society, showed such contradictions that it is difficult to see how they would have assisted the Legal Practitioner.
253. The second issue is the failure of the Legal Practitioner to give evidence.
254. It should first be noted that the ACAT found that it did not need to rely on any inference that it could draw from the failure of the Legal Practitioner to give evidence in order to be comfortably satisfied that ground 1 was made out. Accordingly, even were the ACAT to be wrong about the inferences that could be drawn and the entitlement it had to draw them, this could not have affected the outcome of the appeal.
255. The Legal Practitioner relied on a decision of the New South Wales Administrative Decisions Tribunal, Council of the Law Society of New South Wales v Clapin [2011] NSWADT 83 at [215], where the Tribunal declined to draw an inference from the failure of Mr Clapin to give evidence.
256. That was, however, an entirely different case and the inferences sought to be drawn were quite different; indeed, they went to the substance of the complaint.
257. Mr Clapin was charged with professional misconduct through withdrawing funds from the trust accounts he maintained for various clients in respect of specific transactions, such as the administration of deceased estates, without complying with the statutory obligations to provide timely accounting and bills of costs in connection with such withdrawals.
258. To show how different the case is, it is necessary to quote, at some length, from the reasons of the Tribunal, as follows:
259. Whether the Tribunal is correct in its approach is not a matter I need to consider. I am, of course, not bound by its decision, which has no precedental effect for me. In any event, the situation here is quite different. There are no inferences of the kind in that case which were sought to be drawn here, in these proceedings, from the failure of the Legal Practitioner to give evidence.
260. At issue here were matters that were factual and of which the Legal Practitioner had peculiar knowledge. For example, how the variations in the form of the two statements each made by Ms V and Mr G came about and what involvement he had in the making of the statements.
261. Further, the Tribunal in Council of the Law Society of New South Wales v Clapin make no reference to decisions of courts by which it was bound and which had come to somewhat different views of this matter. For example, in Coe v New South Wales Bar Association [2000] NSWCA 13 at [21] Meagher JA, with whom Priestley JA agreed, said
In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.
262. A differently constituted Court of Appeal held in New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70], Tobias JA, with whom Bryson JA agreed and, on this issue Basten JA also agreed, said
263. His Honour then set out the passage I have quoted above (at [261]) with apparent approval.
264. I note that Hall J in Council of the New South Wales Bar Association v Davison [2006] NSWSC 65 distinguished such cases and held that in that case the lawyer was not obliged to give evidence, but that his failure to do so left the evidence amenable to the rule in Jones v Dunkel.
265. That the failure of the Legal Practitioner to give evidence or to call Ms V or Mr G, who were clearly available, left open the application of the rule in Jones v Dunkel is, in my view, unarguable. It is supported by authority. The New South Wales Court of Appeal held that, in appropriate cases, the rule applies in legal profession disciplinary proceedings in Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 at 459-67; [13]- [29].
266. See also Thorpe v Legal Practitioners' Complaints Committee [2007] WASCA 8 at [44]- [46] and New South Wales Bar Association v Punch [2008] NSWADT 78 at [52]- [56].
267. The ACAT was entitled to rely on the fact that the Legal Practitioner did not give evidence, and did not call Ms V or Mr G, to draw an inference that the evidence given by all three would not have been favourable to the Legal Practitioner, even though it was not necessary ultimately to rely on any such inferences.
268. This ground is not made out and there is no error in the findings of the ACAT on this issue.
(e) The ACAT erred as a matter of law in finding that the Legal Practitioner 'deliberately or recklessly' misled the court (Question of Law ground 4)
269. This was, in the written submissions, largely, a repeat of earlier submissions, but was barely addressed in oral submissions.
270. The first point was that the charge could only have been a charge of attempting to mislead and not of actual misleading. I have dealt with this earlier (at [150]-[185]). The Council submitted correctly that this issue was not raised at the hearing and so should not now be permitted to be raised. There is force in that submission for, as noted, the Council could have, if it considered it necessary, sought to amend the particulars of the complaint.
271. I have found that this would not have been necessary. It does seem to me, however, that in a matter as significant as to whether, on the findings of the ACAT, the Legal Practitioner could have been found guilty of the complaint as particularised by the Council, the fact that the issue was not raised at the hearing may not preclude it being raised on appeal. The principles, though in respect of criminal matters, established in Fingleton v The Queen [2005] HCA 34; (2005) 227 CLR 166 at 174; [6]; Crampton v The Queen (2000) 206 CLR 161 at 170-1; [5]-[10]; 182-4; [47]-[52]; Gipp v The Queen (1998) 194 CLR 106 at 153-5; [134]-[138]; Giannarelli v The Queen [1983] HCA 41; (1983) 154 CLR 212 at 221, seem to favour such an approach.
272. Nevertheless, this issue does not avail the Legal Practitioner.
273. He submitted that the essence of the charge of misconduct constituted by misleading the court is that the lawyer has done something dishonourable. He referred to what Lord Esher MR, with whom Fry and Lopes LJJ, agreed said in In Re G Mayor Cooke (1889) 5 TLR 407 at 408. As Lord Denning said in Tombling v Universal Bulb Co Ltd [1951] 2 TLR 289 at 297, the dishonourable quality lies in knowingly misleading the court.
274. What it appears that the Legal Practitioner was suggesting was that he had innocently misled the court.
275. The difficulty for the Legal Practitioner is that his approach to the facts in this case has been inconsistent and confusing. His ultimate position was that he was actually instructed by Ms V whom he had seen in the court cells immediately prior to the court hearing of the bail application and that he held an application for legal aid signed by Ms V as his instructions to act for her.
276. This makes the construction of his initial actions (obtaining the statement of facts) and announcing his appearance ("I've just been instructed in regard to this matter") consistent, and only consistent, with him announcing an appearance for Ms V by whom he was implicitly and necessarily asserting that he had been instructed.
277. It makes his subsequent statement to the Court, that he was instructed by Mr G, misleading (though not particularised by the Council, for their position, ultimately accepted by the ACAT, was that he had not been instructed by Ms V) and a lie to the Court, for he had not been, on his final position, as stated in his letter to the Law Society of 18 October 2008, instructed by Mr G merely to speak to Ms V.
278. The Legal Practitioner completely failed to reconcile these two inconsistent scenarios, trying, indeed, to hold to both of them.
279. It seems to me that, having found that the ACAT did not err in finding that the Legal Practitioner had not been instructed Ms V, he must have known he had not been instructed by Ms V when he obtained the statement of facts and announced his appearance; it is not possible to find that he did so innocently. Thus, the grounds of the complaint are made out and this ground of appeal is not made out.
(f) The evidence could not have sustained the findings of the ACAT (Questions of law grounds 29, 30, 31, 32, 33, 34, 35 and 36)
280. These grounds, not addressed orally, added little to what has already been said earlier.
281. The Legal Practitioner summarised these by making two points, both unarguable propositions, though not maintainable on the facts of this case. He submitted:
1. "There is no cure for a weak case by way of submissions from the bar table on the acceptance of competing available and reasonable inference being directed to only the [Council]"; and
2. It is "not up to the [Legal Practitioner] to disprove the case against him it was up to the [Council] to prove its case".
282. The written submissions, however, broadly traverse issues that have already been considered:
(a) The Council did not call Ms V or Mr G and put to them "any questions about their credit or statements";
(b) There were no discrepancies in the statements of Ms V and Mr G; and
(c) The response of the Legal Practitioner was consistent and unchallenged.
283. None of these matters can be maintained and must be rejected for reasons already given.
284. The Legal Practitioner then attempted to construe the transcript in a way that is consistent with one of his scenarios. I shall briefly refer to these issues.
285. The Legal Practitioner made the following submissions:
1. Ms V's response to the question of the learned Magistrate about whether she had legal representation, namely "No, I didn't - yeah, sorry", were not responsive nor made without hesitation. I reject that submission. Having regard to the recording of the evidence, I conclude that the finding of the ACAT about these matters was open to it and certainly there was no error of law.
2. Ms V's response "No, I didn't - yeah sorry", the Legal Practitioner submitted, "imply the alternative". I do not understand that submission. I have earlier discussed this response and concluded that it does not help the Legal Practitioner.
3. The Legal Practitioner then submitted that the learned Magistrate in her statement "It's unbelievable [the Legal Practitioner] that you would purport to act on behalf - that you are instructed by a victim to go and speak to a defendant" shows she was not misled. Her Honour, however, was making it clear that she was initially misled, for it is clear that she was going to say "to act on behalf of the defendant", namely the first position taken by the Legal Practitioner but corrected herself, for the Legal Practitioner, having been chided by her Honour, had changed his story and (inconsistently with what he told the Law Society) told her Honour he had only been instructed by Mr G to speak to Ms V, not that he had been instructed by Ms V. That is of no help to the Legal Practitioner and, indeed, re-inforces the case of the Council.
4. The Legal Practitioner then submitted that his earlier response namely "No" to the earlier comment of her Honour, who stated "I'm not accepting instructions from somebody who comes and stands before me and says that they are instructed by the victim of an alleged assault to representing the defendant", means that what her Honour said was not the case. He seems to suggest he was agreeing that he had not been instructed by Mr G. That is unbelievable, because he did actually say to her Honour that this was the case, though he then tries to ameliorate it by saying that his "only instruction was to speak to the defendant". This is inconsistent with his later response to the Law Society in which he said he had instructions from Ms V - the instruction to speak to Ms V not being his "only instruction". I can only conclude that the Legal Practitioner is capable of holding inconsistent and diametrically opposed views, swapping from one to another when it suits his purpose or when he fears that one is prejudicial to his interests. I hesitate to conclude that this amounts to rank dishonesty, but it is difficult to think of a rational but innocent explanation.
5. The Legal Practitioner submitted that when he said he used the word "instruction" in respect of his discussion with Mr G, that was a careless use of words; it only meant "asked". If, however, this is what he meant, it is incredible that, on his version, he did not refer at any stage at all to what he later stated were his "instructions" (properly meant) from Ms V.
6. The Legal Practitioner then made the surprising submission that, had he been allowed to finish his second statement to her Honour, namely "I've been instructed by ...", he "would have said 'instructed by [Ms] V'". That, it seems to me, proves the case made by the Council. The Legal Practitioner's only lame response is that he was not allowed to finish. He has, however, conceded that he was actually going to say what everyone in the Court assumed he was saying. Their assumptions were correct and amounts to an admission of the case made against him. It is, therefore, unsurprising that his counsel made the concession before the ACAT that he did appear for Ms V before the Court.
7. The Legal Practitioner then submitted that Ms V made no statement contradicting the statement of the Legal Practitioner "about being asked to go downstairs and see [Ms V]". He submitted that Ms V made no contradictory statement. One would not, however, expect a contradictory statement, for the Legal Practitioner never said anything which Ms V could contradict. He did not say that he had gone downstairs. In fact, Ms V said "Yes, he needs to go to the ---", which is only consistent with Ms V having no idea what is going on and no recognition of the Legal Practitioner, nor having seen him, on the case ultimately put by the Legal Practitioner, only a few minutes earlier.
8. The Legal Practitioner made the rather extreme submission that if Ms V's failure to support the Legal Practitioner's appearance for her expressly and in words is held against him, then "[i]f this is now a prerequisite for appearances then perhaps other practitioners should be advised". I do not know if the Legal Practitioner is deliberately misconstruing the position or not. It is clear here that there is a challenge to his retainer; that is very unusual. It is, of course, relevant when there is such a challenge as to whether the alleged client confirms the retainer. It is, of course, unnecessary for a client to affirm a lawyer's retainer when there is no challenge to it.
9. The Legal Practitioner submitted that the finding by the ACAT that the formal exchange with Ms V was consistent with Ms V assuming that Mr G had manipulated a scenario in which the Legal Practitioner could not act for her "makes absolutely no sense". I reject that. Indeed, it is only consistent with Ms V's reference to "he's very manipulative" as referring to Mr G; there was, apart from the Legal Practitioner, no other relevant male involved and Ms V would not refer to the Legal Practitioner as "he" if talking to him. Given the events, namely that the Legal Practitioner could not, on the direction of the learned Magistrate, act for Ms V that day at least, the finding by the ACAT was at least open to that interpretation if not, as I conclude, the most likely meaning to be given to the words.
10. The Legal Practitioner submitted that the evidence of Ms Werner was quite wrong and of no value. Indeed, he submitted she was not a witness of truth. The ACAT accepted that Ms Werner made errors in her recollection but, as it was entitled to do, accepted some parts of her evidence and rejected other parts. It is relevant that it was never put to Ms Werner in cross-examination by counsel for the Legal Practitioner that her recollection was faulty or that she was unreliable; indeed, the Legal Practitioner's counsel sought to adduce relevant evidence from her which he did not challenge and on which he appeared to rely. As often is a mark of an honest witness, Ms Werner conceded that she could be wrong about matters she recorded in her note which were not included in the transcript of the hearing. There was no occasion for the ACAT to reject all the evidence of Ms Werner; it was open to it to accept those parts of her evidence on which it did rely.
11. The Legal Practitioner reported several times the submission that the statements of Ms V and Mr G were not challenged. That is simply wrong. It was crystal clear that the Council tendered them only as part of the Legal Practitioner's response and that it challenged them vigorously and, in my view, successfully.
12. The Legal Practitioner submitted that there was "a very strong inference" that the application for legal aid was signed before the bail application was made. He principally relied on the fact that the question "When is the next court date (if you know)?" was answered "28/7/08 ... 12 pm" which was the hearing to which the Legal Practitioner says he then directly went after seeing Ms V in the court cells. It is consistent with this, but it is also consistent with the Legal Practitioner seeking to have the grant of aid dated from that day so that his appearance on the bail application would be paid for by Legal Aid. That latter construction is supported by his false annotation on the application form that he had appeared from Ms V and managed to obtain bail for her. There was no particularly strong inference either way and the ACAT was entitled to make the finding that it did.
286. These grounds of appeal cannot be upheld; there is no error shown to have been made by the ACAT.
(g) The evidence of the statements of Ms V and Mr G should have been accorded significant weight (Questions of Law grounds 16, 22, 23, 24 and 26)
287. The Legal Practitioner submitted that the statements of Ms V and Mr G were unchallenged and were strong evidence in support of his response to the complaint. It was, he submitted, an error for the ACAT to have rejected them and not to have relied on them.
288. I have addressed much of this above. I have shown how Mr G's statement is so confusing, internally inconsistent, inconsistent with facts established independently and inconsistent with the response of the Legal Practitioner that the ACAT was entitled to find it of no weight. There is no basis on which the ACAT could reasonably have relied on it. It was, I repeat, not unchallenged; it was strongly challenged and effectively so.
289. Ms V's statement was similarly unreliable. It stated that she asked the Legal Practitioner to act for her when he saw her in the court cells just before her bail application. It states that she asked him to act on that application. Indeed, she further states that she had requested that he be contacted to act for her.
290. This is simply inexplicably inconsistent with her response to the questions from the learned Magistrate about whether she was represented. It is also inconsistent with her later statement recorded in the transcript that she thought the Legal Practitioner "was Legal Aid".
291. It also went further than Ms V could possibly go. She stated that the Legal Practitioner was not aware that Mr G was the complainant before he entered the Court. She could not know that. Indeed, it was inconsistent with the more likely interpretation of the Legal Practitioner's statement to the learned Magistrate about the fact that Mr G was the "victim" which must have been known to him before he entered the Court. In any event, it was also inconsistent with the disclosure on the application form for legal aid which disclosed who the "victim" was.
292. The statement states that Ms V "was bailed thanks to him". That is not so, and even Ms V could not reasonably have believed that.
293. It was, at the very least, open to the ACAT to reject the statement; indeed, there was every reason to do so.
294. The Legal Practitioner challenged the finding of the ACAT that there was "no evidence that [Ms] V was confused or affected by drugs or alcohol when she denied that she had legal representation". He did not refer to any basis for this in his submissions. It is not my function to hunt for such a basis or speculate on what it might be. The ground must be rejected.
(h) The ACAT delayed its decision (Question of law ground 28)
295. The Legal Practitioner submitted that there was delay. That is so. The incident giving rise to the complaint occurred on 28 July 2008. The proceedings were heard on 19 June 2009. I do not consider that this is unreasonable, given the need for proper investigation, especially as the affidavit of the Legal Practitioner himself, though not read, was only filed on 12 May 2009.
296. The ACAT did not deliver its decision until 19 October 2010. That is a regrettable delay. The Legal Practitioner, however, made no submission as to how that affected the decision. I do not consider it did so. See Blundell v Leighton [2013] ACTCA 1 at [22]- [29].
(i) The ACAT erred in finding ground 3(c) and (d) proven (Questions of law grounds 5 and 7)
297. For some unaccountable reason, the Legal Practitioner addressed submissions on grounds 3(a) and (b), on which the ACAT had found that the complaints could not be upheld. I do not need to address these submissions.
298. As to grounds 3(c) and (d), the Legal Practitioner relied on the proposition that there is a difference between the rejection of a person's evidence and the finding that he or she deliberately lied. That is not difficult to accept. If authority is needed, see Smith v New South Wales Bar Association at 268 and O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 208, 230. A rejection of such evidence may, however, lead to such a conclusion.
299. The Legal Practitioner referred to the problem of rejecting sworn evidence as mentioned by Cussen J in R v Richmond [1920] VicLawRp 3; [1920] VLR 9 at 12 and that a person who deliberately lies when giving evidence is guilty of perjury, as held by R v Hook [1858] EngR 136; (1858) 169 ER 1138 at 1142. These submissions, however, are irrelevant, for the Legal Practitioner never gave sworn evidence in these proceedings.
300. The submissions under this heading rehearsed many of the points already made by him and addressed above. It is not clear why there was such needless repetition in his submissions; repetition did not make bad submissions any better.
301. The Legal Practitioner did submit that if "there is an allegation or inference that [the Legal Practitioner] had lied to [the Law Society] then ... [he] should be given the opportunity of giving evidence to explain his position". What the Legal Practitioner strangely did not seem to realise was that he had, at the hearing, been given that opportunity, as was his right, but he had chosen not to avail himself of it.
302. Again, in his submissions, the Legal Practitioner admitted the facts in relation to ground 1 by asserting that he had announced his appearance for Ms V, his client.
303. Other than on the basis of his challenge to the ACAT finding on ground 1, which, were it otherwise, would not have meant that the letters of the Legal Practitioner to the Law Society, were not lies, and which challenge I have rejected, there was no relevant submission on these grounds.
304. There was no error in the finding made by the ACAT as challenged under this ground.
(j) The conduct was not professional misconduct (Question of law grounds 19, 20 and 21)
305. It is hard to see what submission the Legal Practitioner makes in support of these grounds.
306. There are two grounds for disciplinary action under the Legal Profession Act 2006 (ACT) unsatisfactory professional conduct and professional misconduct - they are both defined in the Act as follows:
386 What is unsatisfactory professional conduct?
In this Act:
unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.
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.
307. I note that both are "inclusive" definitions. In my view, that means that the common law definitions are not necessarily excluded, unless, of course, they are inconsistent with the statutory definitions.
308. I have referred earlier (at [77]) to the common law, where professional misconduct has been defined in Allinson v General Council of Medical Education and Registration, an approach followed in Australia.
309. Misleading a court is serious misconduct for it strikes at one of the pillars of the success of the common law system of the administration of justice, namely the confidence that the courts can place on the honesty and candour of their officers, the lawyers who appear before them. The administration of justice would proceed more slowly and at a greater cost were the courts not able to rely on the honesty and candour of those lawyers, as noted by Mahoney JA in Foreman v Law Society of New South Wales (No 2) (1994) 34 NSWLR 408 at 445-6.
310. It has long been considered that misleading the court is a grave and serious offence amounting to professional misconduct. See O'Reilly v Law Society of New South Wales at 208. As Higgins and Foster JJ said in Re Nelson and the Legal Practitioners Act 1970 (1991) 106 ACTR 1 at 23
It would be a grave matter reflecting adversely on the solicitor's fitness to practice, if, rather than frankly facing deficiencies in his conduct, he gave false evidence to this court or made false denials or assertions to the Law Society to avoid disciplinary action (or, indeed, for any other reason).
311. Similarly, misleading the Law Society is usually considered to be professional misconduct, as the Full Court held in Law Society of the Australian Capital Territory v Burns at 294-5; [42]-[44].
312. The Legal Practitioner made no substantive submissions on these grounds. It appears that he was inferentially submitting that his behaviour in court was "incredibly sloppy" work, rather than a serious breach of his duty of honesty and candour. That, he appeared to be inferentially submitting, was because it involved innocent false representations. He relied on Xu v Council of the Law Society of New South Wales [2009] NSWCA 430; (2009) 236 FLR 480. That was, however, a completely different case. There, the complaint did not involve any kind of dishonesty (at 486; [23]) and involved very poor conveyancing practice and the improper exercise of a lien.
313. The court described the conveyancing work as "incredibly sloppy" and irresponsible (at 491; [50]). It held that, if repeated, then that could amount to professional misconduct but, by itself, it was an isolated departure from proper professional responsibility and amounted only to unprofessional conduct.
314. Here, the Legal Practitioner has committed acts that are substantively more serious; they involve dishonesty and strike at the integrity of the administration of justice and the proper relations with the legal profession. Not only that, the offences were not isolated; the misleading of the court continued to involve misleading the Law Society as well.
315. I have no doubt that the behaviour constituted professional misconduct. Therefore, I find no error in the decision made in this respect by the ACAT.
(k) The penalty imposed by the ACAT was too severe (Questions of law grounds 28, 38, 39, and 40)
316. The Legal Practitioner made three submissions; he submitted that the ACAT should have imposed a separate penalty for each finding, he submitted that the ACAT erred in taking his prior disciplinary history into account when deciding the penalty and he submitted that the penalty was too severe.
317. I shall deal with each of these submissions in turn. It should, however, be noted that the decision of the ACAT is, as submitted by the Council, a discretionary decision. It must, therefore, be set aside only if there are errors of the kind identified by the High Court in House v King [1936] HCA 40; (1936) 55 CLR 499 at 504-5.
318. It seems to me that there is no requirement that the ACAT should impose a separate penalty on each ground of a complaint which it upholds. Indeed, I am not at all convinced that, were there to have been separate complaints, there should have to be a separate penalty on each complaint.
319. The Legal Practitioner cited no authority. Indeed, the authority to which he had earlier referred, Xu v Council of the Law Society of New South Wales, showed the court acted inconsistently with his submission by, in fact, imposing one undifferentiated fine for the two charges.
320. In any event, his submission appears wrong in principle. As Deane J said in Smith v New South Wales Bar Association at 270,
Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner.
321. This must mean that the disciplinary body, whether court or tribunal, must retain the right to evaluate that separate acts of professional misconduct might, individually, not require the striking off of a practitioner's name from the Roll, but, cumulatively, that may be required to meet the purpose of the proceedings.
322. In this case, in any event, there was one complaint; the grounds were in the nature of particulars of the complainant. This would further justify one penalty for the whole of the conduct actually found.
323. There is no basis for this appeal ground and no error is shown in the findings by the ACAT.
324. The ACAT, differently constituted, had previously made findings against the Legal Practitioner in other disciplinary proceedings brought by the Council. The ACAT had there found the Legal Practitioner to have been dishonest and recommended the removal of his name from the Roll.
326. Again, no authority was cited in support of the submission by the Legal Practitioner that the earlier matter should not be considered.
327. The fact is that a duly constituted body has found the Legal Practitioner to have been guilty on another occasion of professional misconduct. It is very relevant that there is no automatic stay on appeal (cf s 216 of the Magistrates Court Act 1930 (ACT)) and, in fact, no stay has been granted pending this appeal.
328. In Re Middle Harbour Investments Pty Ltd (in liq) (Unreported, New South Wales Court of Appeal, Moffit P, Mahoney and Glass JJA, 15 December 1976) Mahoney JA, with whom Moffit P and Glass JJA agreed, pointed out
Prima facie, a successful party is entitled to the benefit of the judgment obtained by him [sic] and is entitled to commence with the presumption that the judgment is correct.
329. This is consistent with the nature of an appeal as explained in Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 552-3.
330. It is also echoed, though in a criminal context, by what Brennan J said in Chamberlain v The Queen (No 1) [1983] HCA 13; (1983) 153 CLR 514 at 519-20
To suspend or defer the sentence before an appeal is heard in such a case is to invest the verdict of the jury with a provisional quality, as though it should only take effect after all the channels of appeal have been exhausted ... To grant bail in such a case is to whittle away the finality of the jury's finding and to treat the verdict as merely a step in the process of appeal.
331. In my view, the ACAT was entitled to have regard to its earlier findings of professional misconduct against the Legal Practitioner. In any event, it found that it could still arrive at the same penalty without such reliance, thereby making any finding of error, though I have not done so, not determinative of the appeal.
332. The final matter is that the Legal Practitioner sought to show that the penalty was too severe. He did that by reference to other cases where dishonesty was shown in various ways, including the misleading of a court, yet where the penalty was not that the solicitor's name should be struck off the Roll.
333. There was, however, no analysis of the cases by the Legal Practitioner to show any principle or approach to penalty that would be relevant to an assessment of the appropriateness of the penalty that the ACAT had recommended.
334. It may help to identify some relevant factors.
335. The Legal Practitioner had been admitted for less than two years at the date of the matters the subject of the complaint. He was, however, a mature man who had come to law later in life; he was 57 at the time of the ACAT hearing.
336. The level of experience, however, has two aspects. On the one hand, inexperience and a general lack of understanding of a solicitor's duties to a client may ameliorate the seriousness of conduct, as in Re Fabricius and McLaren and Re Legal Practitioners Ordinance 1970 (1989) 91 ACTR 1 at 9-10. This seems hardly to apply here, for dishonesty to a court is as fundamental an issue as one could imagine.
337. The other aspect is that a defect in character such as dishonesty is not something related to inexperience. I have already referred to what McPherson JA said in Attorney-General v Bax above (at [127]).
338. The Legal Practitioner has, by his submissions on the present appeal, shown that he is neither contrite nor remorseful. He continues to challenge the findings of fact and penalty and, in his submissions on penalty, continued to traverse the findings of the ACAT.
339. The findings of the ACAT also show that the Legal Practitioner attempted to cover up the behaviour by lying to the Law Society. Thus, the lapse was not an isolated instance, but an ongoing pattern of behaviour. This pattern of behaviour is how the earlier proceedings are relevant, though the ACAT decided it did not need to take them into account.
340. The Legal Practitioner referred in his submissions to the ACAT to three of its earlier decisions in relation to other legal practitioners; one was a quite different case, and the other two did not disclose any penalty. They were odd authorities to rely on for penalty.
341. In the appeal, he referred to Vogt v Legal Practitioners' Complaints Committee [2009] WASCA 202. That was also a case of misleading the court. The WA Court of Appeal held, with respect quite properly, that an order removing a practitioner's name from the Roll was not an inevitable order for such conduct.
342. The mitigation there, however, was substantial. Here there were no references from fellow practitioners, the conduct was not an isolated incident. The lawyer in that case had an unblemished record, he had put into place specific arrangements to prevent the situation that led to the conduct arising again and he had carried out substantial pro bono work.
343. Nevertheless, the Court held that a suspension was still appropriate.
344. Intentionally misleading the court is a very serious matter. See Vogt v Legal Practitioners' Complaints Committee. It applies even where the misleading is for a short time and is soon discovered. See Kyle.
345. The attempt to resort to dishonesty to conceal misconduct is also very serious. See Law Society of New South Wales v McNamara (1980) 47 NSWLR 72 at 80.
346. The Legal Practitioner has disclosed no error in the decision of the ACAT as to penalty.
348. The appeal of the Legal Practitioner cannot succeed. It is appropriate that the appeal be dismissed with costs.
349. The proceedings should be remitted to the ACAT to implement its orders.
I certify that the preceding three hundred and forty-nine (349) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.
Legal Practitioner
Council of The Law Society of The Australian Capital Territory [2014] ACTSC 13
(2011) 190 FCR 364
(1938) 60 CLR 336
(1993) 43 FCR 148
(1983) 153 CLR 514
(2008) 71 NSWLR 451
(2000) 206 CLR 161
(2005) 227 CLR 166
(1994) 34 NSWLR 408
(2012) 247 CLR 486
(1983) 154 CLR 212
(1998) 194 CLR 106
(1936) 55 CLR 499
(1959) 101 CLR 298
(1996) 67 SASR 149
(1999) 21 WAR 56
(2012) 6 ACTLR 282
(1980) 47 NSWLR 72
(1988) 24 NSWLR 204
(1965) 112 CLR 517
(1992) 176 CLR 256
(1976) 12 SASR 573
(2011) 257 FLR 118
(1979) 142 CLR 531
(2009) 236 FLR 480
(1957) 97 CLR 279
(1992) 67 ALJR 170