Legal Profession Board of Tasmania v Darrell George Grey [2026] TASLPDT 2;

I consent to the orders sought in this Instrument of Consent and agree with the grounds upon which the orders are sought...

4. On 13 October 2025 the Chairperson constituted the Tribunal as Members Ker and Jones, sitting with him. On 20 February 2026 Member Ker resigned from the Tribunal to pursue opportunities interstate. By s 612(1) of the Act, despite Member Ker's vacation of office, the Chairperson and Member Jones are able to determine the matter. We proceed on that basis.

Section 479

1. Section 479 of the Act relevantly provides:

479. Consent orders > > (1) The Tribunal may, with the consent of the Australian legal practitioner concerned contained in a written instrument, make orders under this Part without conducting or completing a hearing in relation to the complaint. > > (2) Consent may be given before or after the proceedings are commenced in the Tribunal with respect to the complaint. > > ... > > (4) This section does not apply to consent given by the practitioner unless the practitioner and the Tribunal have agreed on the terms of an instrument of consent. > > (5) Without limiting what may be included in the instrument of consent, the instrument is to contain an agreed statement of facts (including the grounds of complaint) and may contain undertakings on the part of the practitioner. > > (6) The instrument of consent must be filed with the Tribunal. > > ... > > (9) The Tribunal is to be constituted in the same way as for the conduct of a hearing into the complaint. > > (10) In deciding whether to make orders under this Part pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so.

2. It will be apparent from the procedural history that the written instrument, including the respondent's consent was given after the proceedings were commenced. A question arises under s 479(4) whether the Tribunal agrees with the terms of the instrument of consent. That will be considered in due course. It will also be apparent that the agreed facts are not included in the written instrument, however, nothing turns on this. The parties intend the documents to be read together.

1. The agreed facts are comprehensive and deal with all three allegations. We are satisfied with their accuracy. We do not propose to set them out in full.

1. All three allegations involve retainers for the respondent's services as the solicitor for ZWM, who was charged with criminal offences involving the sexual abuse of two young persons. The first retainer, in 2014, related to the criminal proceedings. The second, in 2018, related to civil proceedings commenced by one of the young persons, ZAB, against ZWM for damages arising from assaults and battery. Both the criminal and the civil proceedings involved the same conduct.
2. In the criminal proceedings following negotiations with the Director of Public Prosecutions, ZWM pleaded guilty to one count of maintaining sexual relations with a young person, namely, ZAB. A charge of indecent assault of another young person was dropped. The negotiations were conducted by senior counsel then briefed for ZWM, together with the respondent. However, on the plea of guilty the respondent appeared alone for ZWM. It was on that plea that he made various statements concerning exculpatory justifications for the conduct that ZWM had maintained prior to his plea of guilty. In the plea, however, the respondent accepted on ZWM's behalf that these excuses were a pretext; that 'insofar as one can delude themselves [ZWM] has deluded himself'; and that the conduct was totally inappropriate.
3. The sentencing judge clearly accepted that submission and found that the story ZWM had told police was a 'lie' used 'as a pretext' for his sexual abuse. ZWM was sentenced to four years imprisonment in December 2016. He unsuccessfully appealed his sentence. The majority of the Court of Criminal Appeal noted that it was conceded by ZWM at the sentencing hearing that his explanations were lies.
4. ZAB commenced the civil proceedings in 2018. In his statement of claim he alleged that ZWM had committed a number of assaults and batteries without ZAB's 'consent or lawful justification'. Paragraph 7 of the statement of claim pleaded that ZWM's conviction in the criminal proceedings was in respect of the conduct pleaded in the statement of claim.
5. The allegations of misconduct arise from the respondent's conduct of the civil proceedings on behalf of ZWM.

1. It is alleged that the respondent breached his paramount duty to the Court by filing an Amended Defence and Further Particulars by reason of which those documents contained statements,

(a) which in the course of the criminal proceedings had previously been conceded as false by the respondent to the Court and had been recognised by the Court as false;

(b) which constituted, in part, a defence of consent of indecent touching which, as a matter of law, could not be maintained.

1. The applicant seeks to abandon allegation 1.
2. Before filing ZWM's defence to the statement of claim, the respondent sought advice from senior counsel. The initial advice given in July 2018 was to the effect that ZWM's previous conviction was inadmissible in the civil proceedings and was 'designed to embarrass'. He suggested that the respondent should make a strike out application. He further advised to the effect that the conduct of the defence depended on ZWM's current instructions, not those advanced in his plea of guilty.
3. The respondent filed a defence. It did not admit the battery and assaults and in relation to paragraph 7, pleaded that:

He also filed an interlocutory application seeking to strike out paragraph 7 on the basis that ZWM's conviction was not admissible in the civil proceedings. Before appearing on that application senior counsel gave further advice to the respondent in which he suggested that the strike out application should succeed regardless of the competing arguments about whether ZWM's plea of guilty amounted to an admission or was admissible to prove anything other than the fact of the conviction.

1. The strike out application was lost. Geason J found that ZWM's conviction was prima facie admissible under s 92(2) of the Evidence Act 2001 to prove the fact of the conviction, but not all the factual findings beyond the bare elements of the offence. As a result, the respondent sought further advice from senior counsel about how to plead to paragraph 7 of the statement of claim. Senior counsel provided advice to the respondent on 19 September 2018 stating:

...I think it would be best in light of the instructions you had at the time of plea to plead "The Defendant admits he was convicted by the Honourable Justice Tennent on the 7th of December 2016 of one count of maintaining a sexual relationship with a young person contrary to s 125 A of the Criminal Code and admits that the Plaintiff was the young person the subject of the charge but otherwise the Defendant denies each and every allegation in Paragraph 7 of the Statement of Claim, and further the Defendant repeats his pleading as to Paragraphs 4 and 5 of the Statement of Claim." > > Concerning Paragraphs 4 and 5, I believe they may be currently denials, but I think they should be along the lines that > > "As to Paragraph 4 save and except that on (x) occasions between 1983 and 1989 the Defendant admits that he ( whatever physical acts he admits, remembering that to instruct someone to do something is not an assault or battery) , the Defendant denies each and every allegation in Paragraph 5 of the Statement of Claim and says that such acts as are herein admitted were done without indecent intent, and were done with the Plaintiff's consent and/or in the alternative were done in the discharge of the Defendant's duty as parent of the Plaintiff then an infant to take care for the Plaintiff's health, wellbeing and development." > > "The allegations contained in Paragraph 5 of the Statement of Claim save and except that the Plaintiff was a minor between 1983 and 1989, which is admitted, are denied."

2. The respondent then filed an amended defence. Paragraph 4 stated, inter alia:

' ... the Plaintiff denies each and every allegation in Paragraph 4 of the Statement of Claim and says that such acts as are herein admitted were done without indecent intent and were done with the Plaintiff's consent and/or in the alternative were done in the discharge of the Defendant's duty as a parent of the Plaintiff, then a minor, to take care for the Plaintiff's health, wellbeing and development.'

3. On 12 November 2018, the respondent filed Further Particulars of Paragraph 4 of the Amended Defence, which stated, inter alia:

... On dates not now recalled by the Defendant but between 1983 and 1989 on three occasions the Defendant examined the Plaintiff's testicles. Prior to the examination the Defendant told the Plaintiff that he had a hydrocele ... the Defendant is unable to recall whether the Plaintiff articulated his express consent to such examination but on each occasion, acquiesced in such examination ... .Because of his medical training and experience this duty was enlarged, requiring him to examine the Defendant ... The fourth occasion was not an examination but in respect of a query from the Plaintiff ... On this occasion the Defendant's conduct was in response from a direct request from the Plaintiff and specifically consented to.

4. Blow CJ, in the judgment of ZAB v ZWM [2021] TASSC 64 dated 22 December 2022, stated:

Even if the plaintiff had consented to any indecent touching, the defendant's acts amounted to crimes, contrary to provisions in the Criminal Code, and the consent of a person of the plaintiff's age could not have made the defendant's conduct lawful because of the provisions in the Code, including s 127(3).'

1. Allegation 2 is that the respondent breached his paramount duty to the Court in that he failed to exercise independent judgment and compromised his professional integrity in the course of arranging an assessment of [ZAB] by, and the briefing of, an expert medical witness, leading to a failure to promote a timely and cost efficient disposition of the matter.
2. In the written instrument, the respondent gives a limited concession to the allegation in so far as he accepts that he failed to undertake a proper analysis of the matters in dispute in the civil proceedings as defined by the pleadings and as particularised or raised in the expert reports which had been exchanged, and to use that analysis to inform his drafting of a competent independent medical report request.
3. The applicant seeks to abandon the allegations 'to the extent that it is wider than' the respondent's concession.
4. In November 2018 the respondent proposed to have ZAB attend an independent psychiatric examination. In order to understand what follows, it is necessary to note the following two matters.
5. First, four psychiatrists were involved in the sequence of events. As those events transpired, securing an appointment with the first became untenable. An appointment with the second was abandoned due to his incapacity. As will be seen the third refused to conduct the assessment, and the fourth delivered a report.
6. Secondly, ZAB was not resident in Tasmania. He was overseas. This complicated the logistics of his attendance for an assessment in Tasmania.
7. Because of his absence, ZAB's solicitors suggested it would be better to conduct the assessment by video link. The respondent wrote to ZWM regarding this request, suggesting that it was not unreasonable for ZAB to return to Tasmania. The respondent sought senior counsel's advice about whether ZWM could apply for a stay of proceedings if ZAB refused to attend a medical assessment in Tasmania. The advice was to the effect that, having commenced the civil proceedings in Tasmania, ZAB should submit to an examination within the jurisdiction. The respondent then wrote to the plaintiff's solicitors accordingly.
8. ZAB then sent a letter dated 7 February 2019 directly to the respondent informing him that ZAB's solicitors had not acted on his instructions and that he was prepared to attend a medical assessment in Tasmania.
9. The respondent wrote to the plaintiff's solicitors with a copy of ZAB's letter expressing his concerns about the direct contact by ZAB. He advised them of an available appointment for the assessment with the first of the psychiatrists. ZAB's solicitors subsequently confirmed that he would attend an appointment with that psychiatrist, but it appears that he was unable to meet the suggested time.
10. The respondent sought other dates for the examination. There was some uncertainty about when it could occur. ZAB's solicitors then advised that ZAB could only attend an appointment until 2 March 2019, and after that would not be available.
11. At the same time, the respondent was in contact with ZWM. Importantly, it appears he wanted to obtain ZWM's 'approval' for the briefing letter he proposed to send to the assessing doctor. This marks the beginning of the conduct that the applicant specifically relies on to support allegation 2.
12. By this time, senior counsel, who had given advice in the civil proceedings to date had retired. The respondent attempted to engage another senior counsel but was unable to do so for many months.
13. The respondent commenced to draft the briefing letter himself. He sent the fourth of his drafts to ZWM seeking his comments. He had discussions with ZWM on 29 April 2019, after which he sent ZWM a further draft, noting that he had amended the letter 'in accordance with your instructions'. The respondent again had discussions with ZWM on 7 May 2019 with respect to 6 pages of chronological background instructions. That letter resulted in a file note about the history of the matter and some minor alterations to the chronology. On 14 May 2019, the respondent wrote to ZWM confirming that ZWM would give more consideration to the chronology. He had discussions with ZWM on 17 May 2019 and 20 May with respect to the chronology for the brief. On 22 May 2019, he wrote to ZWM and stated:

I have slightly altered the draft letter ... You will see that I am now asking [the doctor], if he can, to obtain curriculum vitae and use that to base a hypothesis upon whether the conduct you were convicted of has any impact upon [ZAB]'s employment history ... > > . . . [ZAB] held a very significant job as the Chief Privacy Officer and Legal Counsel for [an overseas] company, certainly indicates that there is nothing in his life which has inhibited his career. Rather it would appear that his career has been entirely dependent upon his whim. Any interruption, it would appear, is only of his volition while he has pursued you.

14. On 23 May 2019, the respondent wrote to the plaintiff's solicitor and advised:

I have not sent the brief to [the doctor]. There are still matters which I am finalising. When I have finalised it, I will contact [the doctor's] rooms and make the appointment.

15. In due course an appointment was made for an assessment with the second of the psychiatrists. However, that appointment was lost due to the assessing doctor becoming incapacitated.
16. An appointment was arranged with the third psychiatrist, Dr L. ZAB's solicitors confirmed that he would attend.
17. On 2 August 2019, the respondent sent Dr L the briefing letter. This point marks the conclusion of the facts on which the respondent relies to underpin the gravamen of allegation 2. The balance of the conduct set out in the agreed facts is intended to provide the Tribunal with the wider background of the respondent's overall conduct.
18. Perhaps the most important part of that background is Dr L's reaction to the briefing letter. At 10.54 am on 12 August 2019, the day of ZAB's 4.00 pm appointment, the respondent was advised by Dr L's office that Dr L had unilaterally cancelled the appointment. By letter 12 August 2019 Dr L advised ZAB's solicitors (not the respondent), following their query, as follows.

I reviewed the papers on 10 August 2019 when they were provided to me. I considered there to be a number of issues arising from the referral letter, the questions raised in the letter posed a potential risk of psychological harm to the examinee where the letter was directive in terms of a line of questioning that I was asked to adopt. [ZAB] is a survivor of childhood sexual abuse. An assessment by a stranger perceived as a male authority figure with a focus on questions about intimate sexual matters is tantamount to a repetition of the original abuse and may cause psychological harm. > > I was unaware that [ZAB] had travelled from Dubai but this would not have altered my course of action given the issues with the letter of instruction. > > The sensitive nature of the matter should have been personally discussed by the solicitor ... > > A support person would be needed for [ZAB] lest he become distressed and in view the possibility of transference issues a chaperone from the practice should be an observer of the interview ... > > I regret any inconvenience for [ZAB] where the cancellation came late. I am not in a position to be able to conduct the independent assessment on the basis of the instructions to hand.

19. On 12 August 2019, ZAB advised that he was able to attend a further appointment that week, if one could be arranged, with any appointment after that time needing to be conducted by video link. On 15 August 2019 the respondent was able to arrange another appointment with the second psychiatrist (since recovered) for 19 August 2019. In an email from that psychiatrist's office, on 15 August 2019, the respondent was told that he had 'posed throughout the correspondence some very leading questions or line of argument' and had not provided a schedule of questions for the expert.
20. Nevertheless, that day ZAB's solicitors objected to ZAB's attendance, and due to the unusual circumstances requested any correspondence sent by the respondent or ZWM to previous psychiatrists who had been engaged to do an assessment of ZAB. By letter of 16 August 2019, the respondent wrote to the plaintiff's solicitors stating that he would not accept ZAB's attendance by video link at the assessment and asking for 'long range window' for ZAB's return to Tasmania. Then followed arguments about whether ZWM should pay the costs of the failed assessment. The respondent continued to assert ZWM's entitlement to have ZAB medically assessed.
21. ZAB's solicitors sent the respondent a draft interlocutory application seeking orders for ZAB's costs of the failed attendance, and that the plaintiff be examined by an independent psychiatrist, who would be required to answer the following questions:

b) What was the effect of [ZWM]'s offending on [ZAB]'s diagnosis?

c) What is [ZAB]'s prognosis?

1. That application was filed on 20 November 2019.
2. On 28 November 2019 senior counsel advised the respondent that the application was without merit and should be opposed. Senior counsel made some points about the purpose of independent medical examinations, particularly in cases of mental impairment. He said,

Only the psychiatric examiner can determine, in the context of the examination and the materials supplied with the brief, what the examination should involve and what matters are relevant to report. > > ...

3. The interlocutory application was eventually resolved.
4. Dr A, a consultant psychiatrist based in Sydney, was engaged. The respondent discussed the matter with ZWM, noting that Dr A would be sent a briefing notes and documents to consider whether the assessment could be conducted by video link.
5. On 16 April 2020, the respondent wrote to senior counsel and, referring to his briefing letter which he asked senior counsel to settle, noted it had been prepared with specific instructions from ZWM.
6. There was some delay with senior counsel settling the letter. There were also requests made for further discovery and the provision of particulars from ZAB.
7. The respondent eventually wrote to Dr A on 20 May 2020 by email attaching the briefing letter and materials and seeking confirmation that he would be able to conduct the appointment by video link. A request by ZAB that his treating psychiatrist be present at Dr A's examination was eventually withdrawn, after Dr A expressed difficulties with having a three way video link for that purpose. On 23 June 2020 Dr A's rooms confirmed with the respondent an appointment for ZAB on 4 August 2020 at 10.00 am, to be conducted via Zoom.

1. Allegation 3 is that the respondent breached his paramount duty to the Court in that he failed to exercise independent judgment and compromise his integrity in the course of finalising expert medical evidence in a form that could be served upon [ZAB] and tendered to the Court, leading to a failure to promote a timely and cost efficient disposition of the matter.
2. The applicant seeks to abandon allegation 3.
3. The appointment with Dr A took place on 4 August 2020. After some prompting by the respondent Dr A's report was received on 12 October 2020 (report dated 6 October 2020).
4. Dr A diagnosed ZAB with delusional disorder. He was not sure how it had developed. He was of the view it did not arise from the previous sexual abuse by ZWM. He did not think there was any other psychiatric disorder. He recommended that additional medical records be obtained in order to see if he could determine an underlying organic cause.
5. Following a request by the respondent, ZAB's solicitor provided various information and documents to the respondent on 5 November 2020. There were further exchanges of correspondence from then until May 2021 concerning possible causes of Dr A's diagnosed delusional disorder. The results of these exchanges were inconclusive.

1. The parties attended a mediation on 8 June 2021. It did not resolve the matter.
2. The respondent's instructions were terminated by ZWM on 10 June 2021, at which time the respondent had not received a supplementary report from Dr A.
3. On 26 and 30 July 2021, the trial in the civil proceedings proceeded before Blow CJ. ZWM did not appear.
4. On 22 December 2021 Blow CJ delivered judgment in the Civil Proceedings, ZAB v ZWM [2021] TASSC 64. Judgment was entered for ZAB against ZWM for $5,313,500.00.

1. The purpose of disciplinary proceedings is well known. It was eloquently expressed by Cosgrove J in Dickens v Law Society:[1]

The powers to discipline a legal practitioner are entirely protective in character and no element of punishment is involved. The powers are to be exercised for the purpose of, and in a manner seen to be likely to achieve, the maintenance of that high standard of conduct within the legal profession which will continue its good reputation, and so protect, not only the future profession, but also protect its clients from harm. With this object in mind, it is necessary to look to the future. Even if the practitioner's misconduct is relatively slight, he or she may yet be removed from the roll, if his or her capacities and attitude have been revealed to be such that [the practitioner's] continuance in practice constitutes a threat to the profession or the public. On the other hand, conduct which is itself more grave in nature, may not warrant removal from the register, if it is seen as a temporary and explicable departure from the practitioner's own high standards. The objective is to uphold the standards of the profession. To that end, [the Legal Profession Act 2007, the Act, s471], provides for removal from the roll, suspension, a fine, conditional registration, ...and a ... reprimand. Insofar as the exercise of any of these powers involves a deprivation of one kind or another to the practitioner, the deprivation is merely part of the exercise of the discipline of the profession. There is no retributive element, no intention to express outrage, as there sometimes is in sentences for crime. The order to be made is the order that is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct. A distinction is to be drawn between disciplinary action, which is corporate and self-respecting, and punishment, which is personal and retributive.

Written Instrument - s 479

1. By s 479 the Act contemplates that the position that the parties now adopt is permissible. Sub-ss s 479(1) and (10) make clear that the Tribunal is not obliged to accept that position.
2. In Legal Services Commissioner v McLeod[2] the Queensland Civil and Administrative Tribunal summarised law relating to an agreed position submitted by the parties to a tribunal as follows.[3]

[31] In Legal Services Commissioner v Manz this Tribunal...questioned the applicability of the proposition that, in determining civil penalty, a tribunal should not depart from the position taken by both parties in relation to the orders to be made, based on NW Frozen Foods v Australian Competition and Consumer Commission, Commonwealth v Director, Fair Work Building Industry Inspectorate & Ors, and Legal Services Commissioner v XBV. In the present case, the applicant referred to a statement by Vice President Judge Hampel in Victorian Legal Services Commissioner v Hyatt: > > The High Court in Commonwealth v Director Fair Work Building Industry Inspectorate, set out the following principles which are applicable here:

• there is an important public policy benefit in receiving, and if appropriate, accepting agreed penalty submissions;
• the decision of the High Court in Barbaro and Zirilli v The Queen, as to the inadmissibility of prosecution, or agreed penalty provisions in criminal proceedings has had no application to cases of this kind;
• upon persuasion of the accuracy of the parties' agreement as to facts and consequences, and that the penalty the parties propose is an appropriate one, it is a highly desirable practice for the Court to accept the parties' proposal.

It is clear that it is my duty to determine the level of conduct alleged, and to impose sanctions. No agreement between a regulator and a regulated practitioner such as Mr Hyatt can supplant that duty. Subject to that overriding responsibility, it is appropriate for parties to put an agreed position before the Tribunal. If satisfied the agreed penalty is an appropriate one, it follows I should not lightly depart from that agreed position. > > [32] The Tribunal accepts that, if satisfied of the accuracy of the agreement of the parties as to the facts and their consequences, it should not lightly depart from the agreed position. That inevitably requires some consideration of the relevant facts, in the light of the principles relating to the Tribunal's powers to make orders on the determination of a discipline application.[4]

1. We consider that s 479 pursues similar public policy benefits and we propose to consider the application accordingly.

1. The applicant is not at liberty unilaterally to abandon an allegation once it is made. It can only do so with the agreement of the Tribunal.[5] Moreover, s 469 of the Act provides:

(1) Proceedings before the Tribunal with respect to a complaint cannot be terminated, whether by withdrawal of the disciplinary application or otherwise, before the Tribunal makes its final decision about the complaint, without the leave of the Tribunal.

(2) The Tribunal may give leave for the purposes of this section if it is satisfied that continuation of the proceedings is not warranted in the public interest.

1. Whether this provision applies in view of the specific requirements of s 479 is academic in this case, because we take the view that the public interest is properly served by the course the parties have taken.
2. The following general principle relating to the requirement to satisfy the public interest in an application under s 469 is taken from the Tribunal's decision in Parkinson v Castrisios.[6]

9. The Tribunal has previously observed that s. 469(2) requires that it consider whether the nature of the complaint that gave rise to the Board's determination, and the circumstances giving rise to that complaint, are such that there is a public interest in the continuation of the proceedings and a final determination by the Tribunal that overrides any private interest the Applicant has in bringing the proceedings to an end by withdrawal of the application, and any private interest the Respondent has in summary termination of the proceedings: EP v Legal Practitioner [2019] TASLPDT 6 at [12].

3. In EP v Legal Practitioner the Tribunal examined the relevant provisions of the Act and concluded, in effect, that there was a public interest in the prosecution of complaints of misconduct made against legal practitioners, arising out of its jurisdiction in disciplinary proceedings to protect the public and to uphold the high standards of the profession.[7]
4. In an application by the Board, as this one is, there is no 'private interest' to be served. The applicant is a statutory authority and has taken it upon itself to prosecute the complaint. The discretionary factors identified in McLeod,[8] above support that view. Further, as will be seen, the disciplinary action proposed by the parties is no more than is necessary to maintain professional discipline and high standards of conduct in the profession.
5. In our view, there is no overriding public interest in continuing the prosecution of the application, beyond the parties' agreement.

1. The terms 'unsatisfactory professional conduct' and 'professional misconduct' are found in Chapter 4, Part 4.1, Division 1 of the LP Act. Those expressions are defined as follows:

420 Unsatisfactory professional conduct > > For the purposes of this Act - > > unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. > > 421 Professional misconduct > > (1) For the purposes of this Act - > > professional misconduct includes -

(a) unsatisfactory professional conduct of an Australian legal practitioner, where 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 occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the 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.

1. In Legal Profession Board of Tasmania v Barclay,[9] Brett J said that the task of determining conduct under ss 420 and 421:

...involves an evaluative assessment of the conduct, measured against the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The second step is to determine whether the unsatisfactory professional conduct amounts to professional misconduct. In making this determination, an assessment must be made as to whether the conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. It is the finding that the relevant failure has been substantial or consistent which is critical to this determination. A further observation which can be made about the legislative scheme incorporated into this legislation is that the standard of competence and diligence required of a legal practitioner is to be evaluated on the basis of what a reasonable member of the public would be entitled to expect of the practitioner. I think that this results in an important shift of emphasis away from the formulation which preceded this legislation, which depended upon what practitioners of good repute and competency would reasonably consider to be conduct which could be described as disgraceful or dishonourable.

2. The standard of proof to find unsatisfactory professional conduct or professional misconduct is the balance of probabilities. But it is well recognised that the standard requires the Tribunal to be reasonably satisfied, and that threshold is not reached 'by inexact proofs, indefinite testimony, or indirect inferences'.[10]
3. We apply those principles.

1. There is no doubt that the first duty of a legal practitioner is owed to the Court. That duty includes the negative stipulation that the practitioner must not mislead the Court.
2. In Kavia Holdings Pty Ltd v Wencog Pty Ltd[11] it was said:

...their legal advisers ... have also by virtue of their duties to the court, a personal duty to the court, overriding their duty to the client, to disclose the law and not mislead as to the facts...A legal adviser depends on the instructions given. Nonetheless the legal adviser should remain alert to the importance of ensuring he or she can fulfil the personal duty of candour he or she owes to the Court. If in doubt about the veracity of the instructions or their potential to mislead the Court, the legal advisers should press the client until properly satisfied that such potential is removed and in the meantime must decline to put submissions to the Court while in doubt about their potential to mislead. The point may be reached, where the lawyer ceases to act...

3. However, referring to that case, in Satz v ACN 069 808 957 Pty Ltd,[12] Barrett J said:

...I find it difficult to justify the imposition of such a broad duty on parties and their legal advisers in adversarial litigation where the parties are present and represented. Solicitors and counsel, as officers of the court, will always have, in the first place, a duty to the court. That duty includes a clear obligation to be frank and "not to keep back from the court any information that ought to be before it"... But where both parties are before the court and represented, I do not think that they have a duty to "supply the place of the absent party". As long as litigation remains adversarial, a party can be presumed - indeed expected - to put their best case forward. That is not to say that a wilful misleading of the court will pass without remedy, but a mere failure to present a neutral case or to seek to remedy some deficiency in an opponent's evidence (or, as it was here, entire absence of evidence) cannot lay the foundation for subsequent intervention.

1. The gravamen of allegation 1 is that, having made concessions about ZWM's criminal conduct during the sentencing hearing in the criminal proceedings, it was improper for the respondent to file an amended defence and particulars in the civil proceedings that were directly inconsistent with those concessions, both as to lawful justification for the conduct, and the consent of ZAB.
2. In the present case, the respondent's conduct was scrutinised and, to a significant extent, kept in check by ZAB's solicitors. In particular, ZWM was forced to plead to ZAB's allegations in the pleadings. The respondent was careful to rely on the advice of senior counsel, albeit that both of them failed to identify the issue of ZAB's lack of consent. It is not known how this may have played out, ZWM having terminated the respondent's retainer and failing to appear by himself or counsel at trial.

1. In the joint written submissions, the respondent concedes, and the applicant accepts that the conduct in allegation 2 (to the extent it has not been abandoned) is constituted by the respondent's failure to undertake a proper analysis of the matters in dispute in the civil proceedings, as defined by the pleadings in that action and as particularised or raised in the expert reports exchanged and to use that analysis to discharge his duty, which carried with it an obligation of independence, so as to objectively inform his drafting of a competent independent medical report request to Dr L**.** This no doubt included the fact that before sending his briefing letter, the respondent also had:

(a) a report from Dr W, consultant Psychiatrist, to ZAB's then solicitors, dated 19 December 2016;

(b) comments of the sentencing judge in passing sentence on ZWM dated 7 December 2016;

(c) a report from Dr T, ZAB's treating psychiatrist, to the plaintiff's then solicitors dated 19 February 2017;

(d) a letter from the plaintiff's solicitors, dated 21 May 2019 which noted that Dr GO had assessed ZWM for the Parole Board (but not a copy of GO's report).

1. In acknowledging that independent medical report request to Dr L was not competent, the respondent accepts the observations of Dr Michael Evenhuis, and independent psychiatrist engaged by the applicant to provide an opinion in these proceedings. At pp 8-9 of his report of 5 September 2024, tendered by consent, Dr Evanhuis writes:

It was clear to me from the letter of instruction what questions were being posed, as set out above. An issue that concerned me was the request for assessment as to whether the claimant was "sociopathic" as it seemed to relate to the alleged perpetrator's claims that there was a conspiracy against him that had been orchestrated by the claimant. I found this implication concerning in the context of the alleged perpetrator having pleaded guilty and my understanding of the facts of the case. Had I been asked such a question, I would likely have liaised with the referrer and explained the nature of sociopathy, the extremely low likelihood of that being a relevant factor, and the difficulties in assessing sociopathy in the context of an assessment focused on the impact of child sexual abuse. I would also have some concern about addressing the issue of whether a psychiatric illness had caused the claimant to misinterpret non abusive behaviour as abusive. It would be very difficult to address this issue without invalidating the claimant's experience and potentially causing significant psychological harm. Given that an individual's interpretation of events is more relevant to their experience of a trauma than what objectively may have occurred, I would not consider that matter was particularly relevant and suggested that the issue be reframed in terms of whether the symptoms that [ZAB] went on to experience were consistent with the history that he provided.

" .. .Examiners are also sensitive to tone, and I can understand why [Dr L] could have been uncomfortable with the request given that it seemed to be implied that the claimant was dishonest and manipulative."

1. Dr Evenhuis' opinion draws attention to the respondent's apparent deference to his client, ZWM, in drawing the briefing letter. The agreed facts reveal that the practitioner was not merely taking instructions from his client and attempting to put them dispassionately in the best light possible. His draft letter was an attempt to lead Dr L to accept ZWM's hypothesis about ZAB's desire to pursue him. It was not an attempt to obtain an independent expert report. Regrettably, this is exemplified in many of the respondent's communications with ZWM.
2. The respondent should not have been in any doubt about this. Practice Direction No 1 of 2016 made clear that:[13]

An expert witness is not an advocate for a party and has a paramount duty, overriding any duty to the party to the proceedings or other person retaining the expert witness, to assist the Court impartially on matters relevant to the area of expertise of the witness.

3. We are quite sure that Dr L was perfectly entitled to act as he did and that the respondent should not have put him in that position.

1. We accept the parties' submissions on this allegation. The briefing letter to Dr A was settled by counsel. It was not leading. The fact that Dr A came to a diagnosis that was contrary to ZAB's interests is not relevant to the respondent's conduct. The follow up, inconclusive, actions by the respondent to obtain further material to support the diagnosis were permissible.

(a) the respondent's conduct did not involve a course of conduct;

(b) the respondent relied on the advice of senior counsel;

(c) at the time of drafting the briefing letter, senior counsel first briefed had retired from practise and the respondent was unable to retain the services of a second senior counsel for many months, notwithstanding that his several attempts to do so. When the briefing letter was finally sent to Dr L, the respondent had still not heard back from senior counsel;

(d) the respondent was not experienced in historical child sexual abuse litigation. We place little weight on this factor, because in our view, the respondent's deference to his client significantly affected the substance of the draft letter;

(e) the respondent's prior disciplinary history bears no relationship to the conduct.

Subject to the qualification in paragraph (d), we accept these submissions.

1. We also take into account that the respondent has retired from practice and no longer holds a practising certificate.
2. In our view, the respondent's conduct, in allegation 2, as it is now conceded, amounts to unsatisfactory professional conduct. Having regard to the parties' agreement, that is the only finding we need to make.
3. We make the following orders, by consent.

(a) Pursuant to paragraph 4(1) of the application dated 1 May 2024, the respondent is reprimanded.

(b) Allegations 1 and 3 of the application are dismissed.

(c) The remainder of allegation 2 that is not conceded by the respondent is dismissed.

(d) The respondent pay the applicant's costs of the application in the sum of $10,000.00 within 28 days of this determination.

[1] [1981] TASSC 81, 15-16.

[2] [2020] QCAT 371 (Hon. P J Lyons)

[4] See also Legal Profession Board of Tasmania v Dixon [2024] TASLPDT 7, [68], Legal Profession Board of Tasmania v Williams [2025] TASLPDT 6, [35].

[8] [2020] QCAT 371.

[9] [2022] TASSC 14, [11]; applied in Legal Profession Board of Tasmania v Glynn Williams [2023] TASFC 1, [14] (Estcourt J, with whom Jago J and Porter AJ agreed).

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 362 (Dixon J)

[11] [1999] NSWSC 839, [2] (Santow J).

[12] [2010] NSWSC 365 [64] (Barrett J)

[13] Supreme Court Practice Direction made on 5 January 2016.