Legal Profession Board of Tasmania v Glynn Moate Williams [2025] TASLPDT 6;

That from 1 September 2025 and for 12 months the respondent is to meet with a senior legal practitioner, to be approved by the Board in advance, for 2 hours per calendar month to discuss practice matters and is to request that senior practitioner to report to the Board every 3 months a summary of issues discussed, and the respondent is to bear the costs (if any) of the senior legal practitioner.

1. For the reasons that follow we find the practitioner has engaged in professional misconduct and make orders in the terms submitted by consent, with the order set out in the immediately preceding paragraph being order no 2.

1. The respondent was retained in May 2020 by Ms Gail Burnett ('the client') in relation to a sequestration order that was made in the Federal Circuit Court on 1 December 2017. She wanted it set aside.
2. The client's bankruptcy arose from a claim for unpaid fees and disbursements of $4,559.42 brought against her in the Magistrates Court by her former solicitors, Messrs Fitzgerald and Browne ('the former solicitors') Mr Browne, of that firm, made the complaint giving rise to the present application to the Board. In these reasons he is referred to as the complainant. After a four day hearing the Magistrate gave judgment against her for the full amount and ordered she pay the costs of the proceedings. The client then appealed to the Supreme Court. However, the day before the appeal was to be heard, she (by her then solicitors) filed a notice of discontinuance. She later applied to set that notice aside. In those proceedings she alleged that her former solicitors were not instructed to file the notice. In dismissing that application, the judge who heard it rejected the allegation and also found that her appeal against the magistrate's decision had little merit. He ordered her to pay the costs of the application, which upon taxation amounted to $87,080.21. A certificate for that amount was issued.
3. It is important to note that on 7 October 2016 the client applied for a review of the taxation, however, she did not prosecute it further. In mid 2017 the former solicitors applied to the Associate Judge to have the application for review dismissed. However, on 6 September 2017 the Associate Judge dismissed their application, with the consequence that the application for review remained on foot. Nevertheless, at no time was there a stay of execution for the certificate or the judgment awarding costs.
4. In due course the client brought an application to extend the time limited to appeal to the Full Court for an appeal from the judge's decision to dismiss her appeal from the magistrate. That application was also dismissed. She persisted with an appeal to the Full Court from that dismissal; however, her appeal was stayed on a successful application that she provide security for costs of $15,000.00. It was by then very apparent that the judges of the Supreme Court who had been involved in her various applications and appeals did not consider she had any prospects of success.
5. The client paid the original judgment sum and costs ordered by the magistrate. However, she did not pay all of the costs ordered in the various proceedings in the Supreme Court. Her former solicitors filed and served a bankruptcy notice. She did not comply with it. A creditors petition was issued and eventually a sequestration order was made by a Registrar of the Federal Circuit Court. Yet the client still persisted; this time with an application to a judge of that Court for a review of the sequestration order. That application was dismissed. She appealed to the Federal Court. On this occasion her former solicitors made an interlocutory application for the appeal to be dismissed. On 8 August 2019 that application was granted.
6. In May 2020 the client and her son retained the respondent. They informed him that they had been in discussions with a senior barrister, in Melbourne, named John Arthur. Mr Arthur is now deceased. The respondent deposed that in essence he was asked to be a 'letter box' solicitor, a suggestion about which he felt uneasy. He informed the client and her son that he was not familiar with the law of bankruptcy. However, he agreed to act on the basis that he would work with Mr Arthur. He had also only been involved in one Federal Court matter, which he described in his affidavit as 'essentially formal'.
7. On 21 May 2020 the respondent sent the client a retainer agreement. In the letter accompanying it he wrote:

2.1 I have, in the time we spent together, and with the documents you left with me, formed certain opinions about how your legal issue might be presented to a Court in order to obtain the ultimate remedy, which is that the bankruptcy be set aside, as the bankruptcy order should never have been granted due to the defective material on which it was based. > > 2.2 The basis of your approach to me, at least initially, is that I would collate the information, obtain your instructions, and seek an opinion from a barrister in Melbourne.

8. On 1 June 2020 the respondent formally briefed Mr Arthur. The client and her son signed Mr Arthur's costs agreement on 2 June 2020.
9. On 15 June 2020 the respondent sent an email to Mr Arthur. In that email he discussed the question of whether the client lacked capacity, and the question of whether there should be a litigation guardian appointed. (The respondent deposed that it was Mr Arthur who first raised the point.) Mr Arthur responded by email that evening that if it could be established that the client was suffering a disability, both the sequestration order, the subsequent review and appeal 'are liable to be set aside ex debito justitiae.' He suggested that urgent steps should be taken to obtain medical reports.
10. The following day the respondent wrote to the client's general practitioner seeking a report. He set out the sad history of the litigation and expressed his view that the client 'may well be a person under a legal incapacity and in need of a legal representative under the Federal Court Rules 2011'. The evidence before the Tribunal does not include Dr Hampton's reply, if there was one.
11. On 1 July 2020 the respondent wrote to Dr Philip Reid, a consultant psychiatrist, seeking a report on the client's capacity. In that letter he noted that Dr Hampton had provided further background. He also noted that '[i]n our view [the client] may well be a person under a legal incapacity and accordingly in need of a legal representative under the Federal Court Rules 2011.'
12. By a report, dated 5 August 2020, Dr Reid expressed a strong suspicion that the client had 'never exhibited reasonable capacity through court proceedings', including 'the Magistrates Court, Supreme Court and proceedings regarding bankruptcy, then and now.' By an email sent to Mr Arthur on 10 August 2020 the respondent said that Dr Reid confirms that the client has been psychotic throughout and 'quite frankly this should be obvious to any legal practitioner who deals with her'. He said that his 'gut feeling is that there is something here to [pursue]'.
13. On 4 September 2020 the respondent filed an application in the Federal Court seeking an annulment of the sequestration order. The grounds for annulment included the client's alleged incapacity, but also, at paragraph 1(c) of the application, an allegation that:

...the sequestration order was induced by the fraud of the First and Second Respondents, as petitioning creditor, in Mr Browne informing the Registrar that the Applicant's review of the Costs Assessment dated 24 August, 2016 in proc no 8/2014/1066 was not on foot, when it was...

14. Allegations to similar effect were made at paragraphs 2(b), 3(a) and 4(iii) of the application and similar allegations were included in the client's 482 page affidavit filed in support.
15. On 11 September 2020 the respondent filed an interim application to appoint the client's son as litigation guardian. That application was heard by O'Callaghan J on 9 February 2021. The respondent appeared as counsel. In his reasons dismissing the application[1] his Honour noted:

...it seems to me that the annulment claim as at present constituted is not only prolix but contains grounds which, for a variety of reasons I outlined, are untenable and an abuse of process, including because they seek to agitate claims made and determined in previous proceedings, or make claims that, if new, ought to have been made in previous proceedings. The annulment application also contains an allegation of fraud on the part of Mr Browne, who is a solicitor. That allegation is that Mr Browne told a Registrar of the Federal Circuit Court that Ms Burnett's review of a costs assessment was not on foot, when it was. It is not necessary in these reasons to explore that matter, beyond saying that in light of the affidavit filed in the proceeding by Mr Browne, and in the absence of a single particular of the alleged fraud, the allegation against Mr Browne is untenable.[2]

16. At the hearing before us, we were invited to look at O'Callaghan J's reasons in the 9 pages that followed that passage. The respondent's argument about the client's incapacity relied on the following premises. First, Dr Reid's report. Secondly, evidence from the client's trustee that the client had been uncooperative. Thirdly, some extracts from one of the judgments of the Supreme Court relating to the client's demeanour and evidence. Fourthly, an assertion by the respondent from the bar table that he had been unable to obtain instructions from his client by reason of her incapacity. Each of these arguments was rejected. However, the first and fourth points need to be addressed.
17. Dr Reid's report was rejected because it referred to numerous documents that were not produced to the Court; the diagnosis given was admitted to be incomplete; and it did not address the correct tests for incapacity in the proceedings.
18. Counsel for the former solicitors, who were the first and second respondents before O'Callaghan J, opposed the respondent's assertion that the respondent had been unable to obtain instructions on the basis that it was contradictory and self-defeating. He pointed out that the respondent had filed a considerable amount of material in the Court, including a lengthy affidavit from his client. It could not be the case, it was argued, that the respondent would be able to do so unless he had competent instructions. The Court accepted that argument.
19. On 24 February 2021 the respondent filed an amended application. The allegations of fraud had been struck through. It can be inferred that the respondent now accepted that the allegations of fraud should not be advanced. There is some evidence that client instructed him that they should be reinserted into the application, but he refused to do so.
20. Dr Reid provided a further report to the respondent on 12 March 2021. It confirmed the client's incapacity. On 19 March 2021 the respondent sent an email to Justice O'Callaghan's associate. He said that the application to amend the application would not be made by her client 'as she is no longer considered by me as a legal practitioner as competent to instruct.' He proposed that the client's son would make the application.
21. On 9 April 2021 the respondent lodged an interlocutory application for the appointment of a litigation representative for the client. It was heard by O'Callaghan J that day. His Honour dismissed the application on 15 April 2021.[3] In that decision his Honour explains that the further report of Dr Reid was inadmissible because it did not explain how his field of specialised knowledge applied to the facts either asserted or assumed; he had not stated or explained the grounds or reasoning that led to his opinion and he had not been asked for his opinion on the core issue of whether the applicant was capable of managing her own affairs in the proceeding. His Honour gave detailed reasons for his ruling.
22. On 30 April 2021 the respondent sought a further report from Dr Reid. In his letter to Dr Reid he identified the problem that 'in the absence of a case for fraud, as a legal practitioner, it is not possible for fraud to be advanced.' On 10 May 2021 Dr Reid swore an affidavit annexing a report, which answered questions put to him by the respondent.
23. On 7 May 2021, the respondent filed an affidavit made by the client in support of the amended application. In that affidavit the client asserted that the complainant had 'lied over his affidavit 17 November 2017 and others to get bankruptcy form issued' and that 'the bankruptcy was obtained falsely' by the complainant. It will be recalled that the grounds of fraud had been deleted from the amended application.
24. The respondent appeared as counsel for the client on 12, 13 and 17 May 2021 at the trial of the amended application. The application was dismissed.[4] There was an order that required the former solicitors and the client's trustee in bankruptcy to file and serve any submissions or evidence on the question of costs, 'including whether the legal representative for the application should bear any part of the costs of the proceedings...'
25. In his reasons O'Callaghan J pointed out that Dr Reid had first met and consulted with the client in 2020. He found that Dr Reid had, in effect conceded that he could not give reliable evidence about the critical question of Ms Burnett's condition and symptoms at the relevant time of her appearances before the Magistrates Court and the Supreme Court. He also found that the client had demonstrated 'in a tolerably clear way the consequences of the bankruptcy proceedings, and was capable of adequately conducting it, or giving adequate instructions for the conduct of it...'. His Honour went on to that there was 'nothing in this case that can sensibly be said in support of the proposition that the appropriate order would the appropriate order would be to set aside the sequestration order...' [Emphasis added].
26. On 22 July 2021 the practitioner filed a Notice of Ceasing to Act for the client. On 29 July 2021 O'Callaghan J ordered the practitioner to pay fixed costs of the respondents in the proceedings at $14,200.00.
27. In the meantime, on 20 June 2021, the respondent wrote to his professional indemnity insurer notifying it of the application against him to pay the costs personally. Mr Shaun McElwaine SC (as he then was) was appointed to act for the insurer and his advice, delivered in typically direct terms, was that the respondent was at significant risk that the order to pay the costs personally would be made.

(a) commenced applications in the Federal Court on behalf of the client that were demonstrably an abuse of process, or did not have reasonable prospects of success at the time he commenced them, whether he was instructed to commence them or not;

(b) advanced a series of claims that the complainant had misled the Court and procured the bankruptcy of the client by fraud, where

(i) there were no reasonable grounds for the allegations to be advanced;

(ii) the client was not, according to the respondent, competent to instruct him.

1. The facts speak for themselves. In our view, the respondent has quite properly conceded that his conduct amounted to professional misconduct, and we find that it did.

1. The question for us is whether the orders, sought by the parties' consent, are sufficient for the Tribunal in the discharge of its jurisdiction. That question is to be considered in the context of the agreed position between the parties.
2. In Legal Services Commissioner v McLeod[5] the Queensland Civil and Administrative Tribunal summarised the relevant law as follows.[6]

[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.

1. We adopt those principles. It was appropriate for the parties to put their agreement before us, and we are also grateful for the helpful submissions that were put to us by Mr Willing for the applicant and Mr Whitten KC for the respondent. However, it is important for the respondent to appreciate the considerable difficulty we have had in determining whether the agreement is the correct one, having regard to the disciplinary orders that we might make. In our view, this case is not at the lower end of conduct which might amount to professional misconduct, being unsatisfactory professional conduct that involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. We do not accept that the submission that the 'gravity of the offending' was low, because it was not deliberate. The statutory test for professional misconduct and the disciplinary response are not necessarily tied to a standard of deliberate conduct. The measure is competence and diligence; a point we will return to.
2. We adopt the eloquent statement by Cosgrove J in Dickens v Law Society[7] as accurately describing the character of the Tribunal's power to make disciplinary orders. Referring the Disciplinary Committee, under the former Legal Practitioners Act 1959, his Honour noted is that its powers 'are entirely protective in character and no element of punishment is involved'. He continued:

But to say that is merely to say that 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 profession which will continue its good reputation, and so protect, not only the future of the profession, but also protect its clients from harm. With this object in mind, the Committee is required to look to the future. Even if the practitioner's misconduct be relatively slight, he may yet be struck off, if his capacities and attitude have been revealed to be such that his continuance in practice constitutes a threat to the profession. On the other hand, conduct which is itself more grave in nature, may not warrant striking off, if it is seen as a temporary and explicable departure from the practitioner's own high standards. The Committee's task is to uphold the dignity and standards of the profession. To enable them to do so, they have been given powers to fine, to order payment of costs, to suspend, and to strike off. The exercise of any of these powers inevitably involves a deprivation of one kind or another to the practitioner. But the deprivation is merely part of the exercise of the discipline of the profession. There is in it no retributive element, no intention to express outrage, as there sometimes is in sentences for crime. The order which the Committee is called upon to make is that order which, in its opinion, is necessary, and no more than is necessary, to maintain professional discipline and high standards of conduct. It is not entirely incorrect to describe such an order as punishment, and that term is often used. But it is punishment of a special kind, for a special purpose.[8]

3. We accept the thrust of Mr Whitten KC's submissions to the effect that the mistakes of the respondent can be explained in light of the circumstances. However, those submissions must be understood in the context of the admission of professional misconduct. They are not exculpatory. They are mitigatory.
4. First, we accept that the circumstances in which the practitioner first accepted the instructions were fraught and involved a matter in the Magistrates Court that had blown out of proportion in the subsequent litigation in the Supreme Court and the bankruptcy proceedings in the Federal Court. However, an analysis of the reasoning of the numerous judicial officers involved before the respondent was retained by the client and the fact not one of them had identified error should have given the respondent reason to pause. The case was hopeless.
5. Secondly, the respondent accepted the retainer from his client and her son because they instructed him that they had been dealing with Mr Arthur, who was an expert in bankruptcy. In Yates Property Corporation Pty Ltd v Boland,[9] a Full Court of the Federal Court said:

... it may be accepted that a solicitor who does not have specialist experience in a particular field is entitled to rely heavily on counsel. It is proper for a solicitor who conducts a general practice to rely on the Bar to obtain specialist advice. It may be that for many solicitors who have no particular experience in an area of law counsel is the source of specialist advice. In such a case the solicitor will only be guilty of negligence if counsel's advice is obviously wrong - that is so wrong that the error should be obvious to a reasonably competent solicitor.

6. In his affidavit read to the Tribunal, the respondent deposed:

I relied on John Arthur in all aspects of the case, including advice, preparing the application to have Gail's bankruptcy annulled or set aside and settling the evidence...

7. Mr Whitten submitted that the respondent 'blindly relied on counsel's advice' and that it was not until 8 April 2021 that the respondent began to scrutinise it more closely. We accept that submission to a degree. It is acknowledged that, so far as the law of bankruptcy was concerned, the respondent had no particular expertise to evaluate what Mr Arthur was telling him. However, the issues were not confined to an understanding of the law of bankruptcy. A reasonably competent solicitor ought to know that the material on which allegations of fraud is based should be sound and for that purpose precautionary inquiries should be made. Where the allegation is made against a legal practitioner it suffers the added vice that the reputation of the profession may be undermined. The respondent's evidence was that:

I was not aware of that anything further was required in the Application by way of particulars of the fraud allegation.

8. When we asked Mr Whitten about the respondent's understanding of allegations of fraud, he took brief instructions and responded to the effect that the respondent was aware of the principle, but had little practical understanding about the enquiries he should have made. We do not agree that the respondent was entitled to rely on counsel's advice in relation to the allegation of fraud, in the absence of affirmative steps to ensure that they were soundly based. That is so particularly in circumstances where he entertained serious misgivings about his client's capacity. A cursory examination of the material she had filed in previous proceedings would have alerted him to his client's propensity to make allegations of that nature.
9. The ease with which the issue could have been resolved is demonstrated by the respondent's evidence that:

... with the benefit of hindsight, and an in-depth examination of the material filed in Gail's various proceedings before I became involved, the fraud allegation against Mr Browne was unnecessary and should never have been made. I realise now that I should have undertaken my own independent inquiries before signing off on the pleading. For instance, I now realise that the affidavit material filed by Gail for the hearing of her bankruptcy application before Registrar Browning included a copy of the orders by Holt AsJ in September 2017 dismissing the application by Messrs Browne and Fitzgerald to dismiss Gail's costs review. Therefore, the Registrar would have been presumed to know that the review was still technically on foot. In that event, it is highly unlikely that anything Mr Browne said or did not say to the Registrar during that hearing could have misled the Court about the status of Gail's costs review in its determination to issue the sequestration order. Those observations and that analysis was never mentioned in any of John's advices or during his discussion with me.

10. The last sentence refers to Mr Arthur. We do not attribute much weight to it. We also note the submission made on this point, to the effect that following the orders made by Holt AsJ in September 2017 the client took no further steps to pursue the review of the taxation. There was never an order staying the certificate of taxation. Accordingly, the allegation could have no operative effect on the bankruptcy proceedings.
11. Thirdly, in relation to the prosecution of the claim for the client's incapacity we accept that there was psychiatric evidence concerning the client. However, what seems to be lacking from the evidence before the Tribunal was any forensic examination of the facts that might support the opinion that the client was incapacitated at the time of the proceedings in the Magistrates Court, the Supreme Court, or in the bankruptcy proceedings in the Federal Circuit Court. It was accepted on behalf of the practitioner that the client's ability to represent herself in various courts, filing documents, making submissions and appearing in person did not support Dr Reid's conclusion and that it was going to make the 'very high hurdle' for the annulment of a sequestration order even higher.
12. Fourthly, we note the submission that pursuing the case to the extent he did lacked any utility, because even if she had been successful in persuading the Court to annul her bankruptcy, her trustee would have been entitled to his costs, which she would have been unable to pay, potentially resulting in further proceedings in bankruptcy.
13. Finally, we acknowledge that in about December 2020 Mr Arthur ceased to be involved because the client's son had insufficient funds to pay his fees. From that date forward, despite obvious disadvantages, the respondent continued to act. He deposed that he kept in touch with Mr Arthur. However, following Mr Arthur's departure the case was his professional responsibility and his alone. He was then both solicitor on the record, and counsel when it was before the Court. He was responsible for all aspects of the client's case, including settling her affidavit, obtaining admissible and relevant medical evidence and presenting it to the Court. The fact that he says he began to doubt the quality of Mr Arthur's work around 8 April 2021 does not assist his position. We note the evidence that in his correspondence with Mr McElwaine the respondent said that it was as a result of the case management hearing of 8 February 2021, he realised that Mr Arthur's work was questionable. We do not consider much turns on the discrepancy between the dates, because the point should have been plain from the reasons of O'Callaghan J, 10 February 2021. There is a certain conceit involved in the failure to pay heed to his Honour's strong misgivings.
14. It was submitted that the respondent has already suffered significant financial impact as a result of this case. He suffered an order that he personally pay the complainant's and trustee's costs in the Federal Court. His eventual contribution to those costs was $14,200.00. We do not place much weight on the submission that the respondent was required to write off a considerable amount of work in progress; the bulk of which was work that should not have been undertaken in the first place.
15. We note, however, that the costs order we are asked to make will result in a significant financial impost on the respondent.
16. Accordingly, we agree that it is not necessary to impose a fine on the respondent.
17. However, we regard the conduct as a serious case of a failure to meet a reasonable standard of conduct and diligence, both qualitatively, and quantitatively. It is the protective nature of our powers and the need to look to the future, that led us to suggest to the parties at the hearing that the respondent, the profession and the public might benefit from the imposition of the requirement to regularly report to a senior practitioner. We adhere to that view and make the order terms of the draft submitted to us.
18. Following the hearing, the respondent tendered a draft letter of apology, which we have settled. It is annexed to these reasons.
19. It is the requirement to make an order 'no more than is necessary to maintain professional discipline' that leads us to the conclusion that we should do no more than we are presently asked by the parties to do in order to determine the matter.

By email: Roland@fablawyers.net.au

Legal Profession Board of Tasmania v Williams No 04/24DT

I sincerely and unreservedly apologise for and unconditionally withdraw the allegations contained in the application made against you, Mr Fitzgerald and Mr Cooke on behalf of Ms Gail Burnett which I caused to be filed to the Federal Court of Australia on 10 September 2020.

I acknowledge that the allegations were unfounded and improper and were in breach of my professional duties. I should never have made them and I deeply regret doing so.

[1] Burnett v Browne [2021] FCA 85.

[3] Burnett v Browne (No 2) [2021] FCA 373.

[4] Burnett v Browne (No 3) [2021] FCA 703.

[5] [2020] QCAT 371 (Hon. P J Lyons)

[9] [1998] FCA 8; (1998) 85 FCR 84, 108 (Drummond, Sunberg & Finkelstein JJ) (reversed on appeal, but, the quote below was not criticised: Wakim v McNally [2002] FCAFC 208, [46] (Branson, Mansfield & Stone JJ).