1. his instructions to his bookkeeper were that both transfers be recorded in his trust ledger for Mr Oxlade as 'Belden Namah Reimburse expenses/advances paid'; 2. he believed at the time, based on what he had been told by Mr Oxlade on 22 March 2016 and the attachment set out in para 38 of the SFC, dated 23 March 2016 purportedly signed by Mr Cacciola, those descriptions to be accurate; and

1. otherwise denies each allegation in para 47 of the SFC.
2. Even if Mr Oud gave those instructions on 7 April 2016, they were inaccurate in that the trust ledger did not identify the persons to whom payment had actually been made. The trust ledger should have identified payments to Mr Oxlade and Mr Maiolo. It was Mr Oud's responsibility to ensure that the trust ledger entries were accurate. He cannot shift blame to his bookkeeper. There was nothing to stop him issuing instructions to correct the trust ledger.
3. The Committee alleged at para 48 of its SFC that:

[Mr Oud] did not check with either Mr Reese or Mr Cacciola whether he was authorised to transfer the money to persons other than Mr Namah or at all. Mr Cacciola had not in fact signed either the authority referred to in para 40 [of the Committee's SFC] or the authority delivered by Dr Fiore purportedly signed by him, and had not in any other way consented to the transfers of funds [Mr Oud] made on 30 March 2016.

1. Mr Cacciola confirmed that the signature was not his (Exhibit E paras 35-38).
2. Mr Oud admitted para 48 of the SFC but said further that he believed at the time that Mr Cacciola's signatures on the authorities presented to him were genuine, and that he had had no reason to believe those signatures to have been forged or that Mr Cacciola had not authorised the transfer of funds Mr Oud had made (Oud ASFC para 32)
3. Again Mr Oud had every reason to doubt the validity of the authorities (see also para 50 of the SFC below).
4. The same considerations apply to those payments as stated above. The Tribunal finds that Mr Oud did not check with Mr Cacciola or Mr Reese.
5. Mr Oud further submitted in respect of paras 36 to 48 of the SFC, that Mr Oxlade acted fraudulently with intent to deceive by the following actions:

1. Mr Oxlade made the statement referred to that Mr Cacciola had agreed to the CSG Loan Funds being used; and
2. instructed Mr Oud to transfer $75,000 to him and $100,000 to a bank account in the name of Dr Fiore's partner Kathryn McKelt and described these transactions to [Mr Oud] as a partial reimbursement for funds already sent to Mr Namah.

1. Mr Oxlade sent the email on 23 March 2016 at 9:19 am to Mr Oud with the attachment; and
2. forged Mr Cacciola's signature on the attachment.

1. Mr Oxlade sent the email on 29 March 2016 at 11:20 am to Mr Oud with the attachment;
2. forged Mr Cacciola's signature on the attachment; and
3. forged Mr Cacciola's signature on the letter dated 29 March 2016;

1. Mr Oxlade told Mr Oud the second letter dated 29 March 2016 was an 'updated letter' and for Mr Oud to ignore the first letter referred to in para 42 of the SFC; and

(ii) instructed Mr Oud to deal with the remaining CSG loan funds by transferring $10,000 to Mr Oxlade and $115,000 to Orlando Maiolo.

1. The allegations do not allege that Mr Oud knew that Mr Cacciola's signature had been forged. The allegations made against Mr Oxlade are of reckless disregard, reckless indifference and gross carelessness.
2. Mr Oud further submitted that as a consequence of being deceived by the actions of Mr Oxlade, (referred to in Oud ASFC para 32A above), and not knowing the purported signatures of Mr Cacciola had been forged by Mr Oxlade, Mr Oud:
   1. made the transfers of funds (referred to in the SFC para 39);

(b) had the said records made in the firm's trust ledger for Mr Oxlade (referred to in the SFC para 40);

(c) did not check with either Mr Reese or Mr Cacciola whether he was authorised to transfer the monies to persons other than Mr Namah (referred to in the SFC para 41);

(d) made the transfers of funds (referred to in the SFC para 46);

(e) had the said records made in the firm's trust account ledger (referred to in the SFC para 47);

(f) did not check with either Mr Reese or Mr Cacciola whether he was authorised to transfer the money to persons other than Mr Namah or at all (referred to the SFC para 48).

1. Mr Oud's actions were not solely a consequence of Mr Oxlade's fraud. They were a consequence of his failure to heed the warning signs or to discuss the terms of his undertaking.
2. In addition, Mr Oud submitted that in the course of its investigation into the matters the subject of paras 36 to 49 of the SFC, the Committee had in its possession a letter signed by Mr Cacciola on the basis of which, together with the documents Mr Oud has particularised below, the Committee formed the belief that the purported signatures of Mr Cacciola on each of the attachments referred to in paras 38 and 42 of the SFC and the letter referred to in para 43 of the SFC, had been forged by Mr Oxlade and he had committed a criminal offence (OUD ASFC para 32C):

(a) Email chain ending with email Belden Namah to Practitioner and Peter Fiore 17 February 2016.

(b) Standpoint Legal trust account receipt AVRO Gold 19 February 2016.

(c) Email chain ending with email Rova Olemau to Practitioner 19 February 2016.

(d) Email chain ending with email Belden Namah to Practitioner and Peter Fiore 19 February 2016.

(e) Email chain ending with email Belden Namah to to Practitioner and Peter Fiore 19 February 2016.

(f) Standpoint Legal trust account receipt AVRO Gold 22 February 2016.

(g) ANZ Telegraphic Transfer to Siniwok Limited 22 February 2016.

(h) Email Rova Olemau to Practitioner 24 February 2016.

(i) Letter of Offer from Credit Solutions Group 3 March 2016.

(j) ANZ Statutory Trust Account Statement 8 March 2016.

(l) Email chain ending with email Colin Oxlade to David Cacciola 17 March 2016 (5:27am).

(m) Email chain ending with email Paul Reese to practitioner 22 March 2016 (2:19pm).

(n) Standpoint Legal trust ledger for Colin Oxlade.

(o) Standpoint Legal trust account receipt 22 March 2016.

(p) Practitioner's file note of telephone conversation with Colin Oxlade 22 March 2016.

(q) Email Colin Oxlade to practitioner 23 March 2016 (9:19 am) with attached Authority.

(r) ANZ Telegraphic Transfer to Kathyrn McKelt 23 March 2016.

(s) ANZ Telegraphic Transfer to Colin Oxlade 23 March 2016.

(t) Email chain ending with email Colin Oxlade to practitioner 29 March 2016 (1:51pm) with attached Authority.

(u) Authority addressed to practitioner 29 March 2016.

(v) Practitioner's file note of meeting/telephone conversation with Dr Fiore and Colin Oxlade 29 March 2016.

(w) ANZ Telegraphic Transfer to Orlando Maiolo 30 March 2016.

(x) ANZ Telegraphic Transfer to Colin Oxlade 30 March 2016.

(y) Standpoint Legal trust account bank statements 8 March 2016 to 6 May 2016.

(z) Letter of Confirmation dated Brisbane May 5, 2016 signed by David Cacciola as Managing Director of Credit Solutions Group Pty Ltd stating:

'I, David Cacciola, Sole Director and Secretary of Credit Solutions Group Pty Ltd have at no time provided written consent or any other consent to Nicholas Oud and Standpoint Lawyers to release the $300,000 that was deposited into the Standpoint Lawyers trust account on behalf of Credit Solutions Group Pty Ltd.'

32E. In furtherance of the [Committee's] resolution and on or about 14 February 2017, [the Committee] wrote to the Western Australian Police notifying the Police of its belief that Mr Oxlade had committed a criminal offence by his apparent forgery of Mr Cacciola's signature on each of the attachments and letter referred to in paragraphs 38, 42 and 43 of the [Committee's SFC].

32F. The [Committee] did not disclose to [Mr Oud] Mr Cacciola's letter particularised in paragraph 32C [of the Committee's SFC] until disclosed to [Mr Oud's] Senior Counsel by letter to him dated 23 February 2018.

32G. Despite requests made by Senior Counsel on behalf of the [Mr Oud], [the Committee] has refused to disclose the notification by the [Committee] to the Police of its suspicion after investigation that Mr Oxlade had committed an offence by his apparent forgery of Mr Cacciola's signature on each of the attachments and the letter referred to in paragraphs 38, 42 and 43 of [the Committee's SFC].

1. Paragraphs 32C to 32G of Mr Oud's ASFC are entirely irrelevant. They can only have been pleaded to deflect attention from Mr Oud's conduct.
2. The Committee alleged in its SFC at para 49 and Mr Oud admits (Oud ASFC para 33 that:
   1. After the transfers of monies referred to in paragraphs 39 and 46 [of the Committee's SFC], no monies remained in the firm's trust from the CSG loan funds.
3. At para 50 of its SFC the Committee alleged:
   1. [Mr Oud] did not verify with either Mr Reese or Mr Cacciola any of the instructions he had received from Mr Oxlade or Dr Fiore as to the transfer of the CSG loan funds prior to effecting each transfer of the CSG loan funds from his firm's trust account in circumstances where:
      1. [Mr Oud] was aware that clients of Mr Oxlade and Dr Fiore had paid part or all of the $300,000 paid to Siniwok on 22 February 2016, but in respect of which only two samples of the platinum had been received;
      2. [Mr Oud] knew that CSG regarded possession of the platinum bars as the only security for the loan of the CSG loan funds;
      3. [Mr Oud] knew that CSG's position of requiring security over the CSG loan funds and their limited use as 'proof of funds' had not changed between 15 and 22 March 2016 when the terms of the transfer of the CSG loan funds into [Mr Oud's] trust account were finalised and where [Mr Oud] received the first letter of authorisation for release of the CSG loan funds on 23 March 2016;
      4. the second letter of authorisation dated 29 March 2016 did not identify any person or persons to whom the monies were to be paid or the amounts to be paid to each person, and was inconsistent with the first letter of authorisation of that date;
      5. Mr Reese did not refer to any of the CSG loan funds being released or seek confirmation of the release of any of those funds when he emailed [Mr Oud] on 25 March 2016 requesting a copy of the firm's trust ledger showing receipt of the CSG loan funds;
      6. Mr Oud was given two different reasons by Mr Oxlade and Dr Fiore for the release of the CSG loan funds the subject of the purported authorisations [Mr Oud] received on 29 March 2016;
      7. at no time prior to releasing the CSG loan funds on 30 March 2016 did [Mr Oud] have any evidence that the platinum deal was proceeding as stated in the letter of authorisation hand delivered by Dr Fiore on 29 March 2016.
4. The Committee's SFC at para 50 correctly states the facts based on the proper inferences and conclusions to be drawn from the facts alleged above. The Tribunal finds the facts as set out in para 50 of the Committee's SFC.
5. Mr Oud responded that he does not plead to matters of argument, innuendo or conclusion contained in or arising from the matters pleaded in the particulars of paras 50.1 to 50.7 of the SFCs save to:
   1. admit that only 2 samples of platinum had been received; denies each allegation in para 50.1 of the SFC; says that he believed from the information given to him by Dr Fiore in or about February 2016 that the payment of $300,000 to Belden Namah was as a deposit to secure the transaction, so that the platinum was not sold to other parties; and that Mr Namah was to bring the balance of the platinum with him when he travelled to Australia;
   2. denies that he had any knowledge of CSG's position or the other terms and conditions of the loan, and therefore denies each allegation in paras 50.2 and 50.3 of the SFC;
   3. does not admit the letters of authorisation are inconsistent, but otherwise admits para 50.4 of the SFC; and says that he accepted the explanations given to him by Dr Fiore and Mr Oxlade as to why there was a second letter of authorisation, having no reason to think that they were untrue;
   4. admits para 50.5 of the Committee's SFC, but says that there was nothing in that email which required an answer to the effect alleged;
   5. as to para 50.7 of the Committee's SFC:

1. he was told by Dr Fiore that the platinum transaction was proceeding; 2. he had no other reason to believe that the transaction was not proceeding; and that

1. the authorities presented to him by Mr Oxlade and Dr Fiore were consistent with that belief.
2. The allegations in the SFC at para 50 are not matters of argument or innuendo. They are inferences and conclusions that are correctly drawn from the facts.

1. At paras 51-56 of its SFC the Committee alleged and Mr Oud admitted (Oud ASFC para 35):
   1. On 28 March 2016 [Mr Oud's] external bookkeeper MG (practitioner's bookkeeper) emailed [Mr Oud] to ask for the details of withdrawals from the firm's trust account so that she could enter the details into the firm's trust accounting records.
   2. Relevantly, [Mr Oud's] bookkeeper requested [Mr Oud] to provide details of the withdrawals from the firm's trust account on 23 March 2016 for $100,000 and $75,000 respectively, referred to in paragraph 39 [of the Committee's SFC].
      1. Pursuant to Regulation 45 of the Legal Profession Regulations 2009 (WA) (Regulations), a law practice must keep 'required particulars' of each withdrawal of trust funds by electronic funds transfer. Those required particulars must include, for a payment to an authorised deposit-taking institution (ADI), the name or BSB number of the ADI and the name of the person receiving the benefit of the payment.
      2. [Mr Oud] responded to [his] bookkeeper by email on 28 March 2016 with the following details for both of the withdrawals made on 23 March 2016:

'16011 - Oxlade, Colin - re-imbursement of previous expenses/advances to Belden Namah directly relating to the PNG Platinum Deal.'

1. By email sent on 6 April 2016, [Mr Oud's] bookkeeper requested [Mr Oud] to provide details of the withdrawals from the firm's trust account on 30 March 2016 for $115,000 and $10,000 respectively, referred to in paragraph 46 [of the Committee's SFC]

1. [Mr Oud] responded to [his] bookkeeper by email on 7 April 2016 with the following details for both of the withdrawals made on 30 March 2016:

'16011 - Oxlade, Colin - re-imbursement of previous expenses/advances to Belden Namah directly relating to the PNG Platinum Deal.' [Exhibit A page 198]

1. The evidence of Mr Oud's bookkeeper, Ms Guthrie was:
   1. In my 28 March 2016 email sent at 9.55 pm (ABOD 197) I sought details for trust transactions for the trust account statements and ledger for the following withdrawals:

1. on 23 March 2016 ('EB 16263 TO 281689'') for a withdrawal of $100,000; 2. on 23 March 2016 ('EB 16263 TO 281655') for a withdrawal of $75-000; and

1. on 2-1. March 2016 (Cheque 01007 for a withdrawal of $309).

The 'EB' I refer to in my email is a bank created number and has no particular meaning to me. I used it only to identify the individual withdrawals as they appeared from the bank trust account statement. It was essentially a 'copy and paste' exercise.

1. Nick's reply email sent 28 March 2016 at 10.11 pm provided the information I requested by way of completing information in the text of my email in response to each of the queried withdrawals. This is shown in my email sent 9.55 pm as:

1. where I had listed the 23 March 2016 $100,000 withdrawal he added '16011 ­ Oxlade, Colin ­ reimbursement of previous expenses/advances to Belden Namah directly relating, to the PNG Platinum Deal' (the italics show Nick's additions); 2. where I had listed the 23 March 2016 $75,000 withdrawal he added '16011 Oxlade, Colin ­ reimbursement of previous expenses/advances to Belden Namah directly relating to the PNG Platinum Deal' (the italics show Nick's additions); and

1. where I had listed the 21 March 2016 matter, he added the file number, client name, and the fact it was for a filing fee for a probate application.
2. Nick's reference to '16011' is to his file number and his reference to 'Oxlade, Colin' is to his client. On the basis of his description that the monies were 'reimbursement of previous expenses/advances to Belden Namah directly relating, to the PNG Platinum Deal' I entered into ATOM that the monies were paid to 'Belden Namah' and the purpose was 'Reimburse expenses/advances paid' which I slightly abbreviated from his description as there is minimal space for description.

1. The trust account ledger also records transfers on 30 March 2016 (posted by me on 7 April 20-16) to 'Belden Namah' as, payee of $115,000 and $10,000 respectively as referred to in paragraph 21(c) above and the BSB and account numbers are the same as the 23 March 2016 transactions as I had no further information to enter in that respect. I have entered the 'purpose' of the transaction as was stated by Nick in his 28 March 2016 email sent 10.11 pm, which I have slightly abbreviated to 'Reimburse expenses/advances paid' for 23 March and then 'Reimburse expenses/advances relating to PNG Platinum Deal' for the 30 March 2016 transactions.
2. I have been shown an email from me to Nick sent 6 April 2016 at 9.04 pm (ABOD 198) in which I requested that he provide details of the trust transactions which occurred on 30 March 2016 for the sums of $115,000 ('EB 16452' TO 285722') and $10,000 ('EB; 16452 TO 285699').
3. I have been shown an email sent by Nick to me on 7 April 2016 at 3.12 pm (ABOD 198) in which he provided the details of the transaction which shows in the text of my email, namely:
   1. Re the 30 March $115,000 withdrawals, he added '16011 ­ Oxlade, Colin ­ reimbursement of previous expenses/advances to Belden Namah directly relating to the PNG Platinum Deal' and

b, For the 30 March 2016 $10,000 withdrawal he added '16011 - Oxlade, Colin ­ reimbursement of previous expenses/advances to Belden Namah directly relating to the PNG Platinum Deal'.

(Exhibit C pages 9-10 paras 29-31 and pages 13-14 paras 39­41))

1. The Committee alleged at para 57 of its SFC:
   1. Based on the information provided by [Mr Oud], [his] bookkeeper entered into the firm's trust records that each withdrawal made on 23 and 30 March 2016 was to:

1. Mr Oud denied para 57 of the SFC and said further that:
   1. Mr Oud's trust account records were maintained by a bookkeeper;
   2. Mr Oud did not instruct the bookkeeper to enter the record as she did;
   3. by email sent on 25 March 2016 at 8.47 am Mr Oud requested the bookkeeper to issue a trust receipt for the $300,000 received into his trust account for

Notation: Funds deposited by Credit Solutions Group Pty Ltd as deposit for purchase of Platinum from PNG'

1. Mr Oud's bookkeeper emailed the receipt to Mr Oxlade the same day.

Following Nick providing that information to me I created a trust receipt for the deposit of $300,000 (ABOD 638). I then by email sent 28 March 2016 at 9.57 pm (ABOD 153) sent that receipt to him.

1. Mr Oud's response in ASFC para 36(3) and 36(4) above is irrelevant. The request for a receipt related to the deposit of the $300,000 not the withdrawal.
2. At para 58 of its SFC the Committee alleged:
   1. None of the payments were made to Mr Namah and the trust records did not record the details of the BSB and account numbers for each of the recipients of the withdrawals, the details of which were known to [Mr Oud].
3. As to para 58 of the SFC, Mr Oud admits he knew the BSB and the account numbers for each of the recipients of the payments made from his trust account, but said that he did not provide those details to his bookkeeper as she had access to those details and he was not requested to do so. Mr Oud submitted that due to inadvertence, he did not verify at the end of the month that BSB and account numbers were inserted in the trust records (Oud ASFC para 37).
4. The responsibility for correct trust account records rests with Mr Oud not with his bookkeeper. The fact that Mr Oud's trust records were maintained by Ms Guthrie is irrelevant to Mr Oud's compliance with the legislation.
5. In any event, the trust accounts did not accurately reflect that payments had been made to Ms McKelt ($100,000) and Mr Maiolo ($115,000). Mr Oud's instructions to his bookkeeper were not a correct record of the person to whom the payments were made (see above).
6. Ms Guthrie's evidence was:
   1. Prior to moving to the ATOM software (see paragraph 20) Nick occasionally provided to me by reply email BSB and account details when T requested them. However, he suddenly just stopped doing so. Following the change to ATOM I had on occasions asked Nick for BSB and account numbers but he never provided those details, which I assumed he often didn't have on hand as the replies were in the evenings. This is solely for Trust as that is the only client-related information recorded in the trust accounting package used by Nick.
   2. As a result of his repeated failure to provide the BSB and account details I -stopped asking him for them and instead used the .same series of random numbers to enter each of the relevant ATOM fields (see paragraph 35 below). I made inquiry of the Legal Practice Board about whether it was permissible for me to do this and was informed that it was as long as the lawyer had the relevant information on his or her file, which I then advised Nick. I had and have no access to his client files so I do not know if he has kept that information on them or not.
   3. In the week following the end of each month, I would do a reconciliation of the trust account and would follow up Nick for any information I required by email. I would post originals of the end of month trust reports and receipts to Nick.

1. Ms Guthrie was an honest witness. The Tribunal finds that Ms Guthrie did ask for a BSB and account numbers and Mr Oud did not provide them. The Tribunal finds that Ms Guthrie did not have access to the BSB and account numbers.
2. The Committee alleged at para 59 of its SFC:
   1. As a result of the details entered into the trust records, the trust records did not accurately record all the required particulars set out in Regulation 45 of the Regulations such the firm's trust records did not disclose the true position in relation to the withdrawal of those trust funds as required by section 228(3)(b) of the Act.
3. Mr Oud admitted para 59 of the SFC subject to what he submitted in Oud ASFC paras 36 and 37.
4. Mr Oud did not comply with his obligations in s 45 of the LP Regulations and s 228(3)(b) of the LP Act.

Requests for information about the funds and their return

1. At paras 60-65 of its SFC the Committee submitted:
   1. By email sent to [Mr Oud] on 22 March 2016, being the date the CSG loan funds were transferred into [Mr Oud's] firm's trust account, Mr Reese asked [Mr Oud] to provide a trust receipt for the CSG loan funds. [Exhibit A page 435]
   2. Pursuant to Regulation 41(2) of the Regulations, after receiving trust money a law practice must make out a receipt.
   3. Pursuant to Regulation 41(6) of the Regulations, an original receipt must be delivered, on request, to the person from whom trust money that is required to be paid into a general trust account was received.
   4. By email sent on 25 March 2016, being two days after the first tranche of the CSG loan funds was transferred out of the [Mr Oud's] firm's trust account, Mr Reese asked [Mr Oud] to provide him with a copy of his firm's trust ledger showing receipt of the CSG loan funds. [Exhibit A page 452]
   5. [Mr Oud] did not respond to the emails from Mr Reese of 22 and 25 March 2016.
   6. [Mr Oud] says that on or about 28 March 2016, he caused [his] bookkeeper to prepare a trust receipt for the receipt of the CSG loan funds, and that he sent a copy of the trust receipt to Mr Oxlade. [Mr Oud] did not send a trust receipt to Mr Reese. [Exhibit A page 153]
2. Mr Oud admitted paras 60-65 of the SFC and says further that as reflected in his instructions to his bookkeeper referred to in (Oud ASFC para 36.3), he believed at the time that his obligation was to provide a receipt to his client, whom he perceived to be Mr Oxlade, and that he did not owe the same obligation to Mr Reese's firm or his client; and he did not respond to Mr Reese's correspondence dated 22 and 25 March 2016 because he believed that, once the CSG loan funds had been advanced on the basis of the written authorities presented to him purportedly signed by Mr Cacciola, the CSG loan had been made (Oud ASFC para 39).
3. Mr Oud was informed by Ms Johnson of the Committee of his obligation to provide a trust receipt to CSG no later than about 4 pm on 4 May 2016.
4. The Committee alleged at para 80 of its SFC and Mr Oud admitted (Oud ASFC para 42) that:
   1. At no time did the practitioner provide a trust receipt for the CSG loan funds to Mr Reese.
5. Mr Oud never provided a receipt to CSG or to Mr Cacciola or to Mr Reese.
6. On 5 May 2016, Ms Johnson sent an email (Exhibit A pages 16­17) to Mr Oud. She stated:

I have been shown an email I sent to Mr Oud on 5 May 2016 at 10.56 am (ABOD 16-17), shortly after my discussions with both Mr Oud and Mr Reese, the contents of which are consistent with my recollection. In that email I summarised what Mr Oud had told me, which was inconsistent over the two days, including the discrepancy between him saying the funds would be there when he provided the trust ledger and the trust account balance in the Board's TAI report which showed that the funds were paid out of trust shortly after he received them from Summer Lawyers. In light of what I regarded to be very serious concerns about his conduct, I suggested he consider speaking to senior counsel.

TA to Nicholas Oud Standpoint Legal Pty Ltd 4.5.16 10.39am

FJ noted Legal Profession Regulations 2009 regulation 41.

NO agreed to immediately provide trust receipt to Paul Reece and apologise for not doing so earlier. Cc LPCC.

Money NO received instructions from his client in relation to the trust monies.

NO will not provide trust statement to LPCC and/or PL.

NO would not confirm whether monies remained in trust.

NO to speak to his client and revert to FJ later today.

Left message to return call. PR is meeting until 4pm (EST) FS.

TA to Paul Reece Summers Legal 02 9799 8557 4.5.16 2pm 10 mins

David Cacciola is PR's client. DC says he has not provided written instructions to NO to release/use trust money. DC awaits confirmation from Perth Mint product is platinum not tin. DC cannot understand why NO needs to take his client's instructions prior to providing a trust statement. PR and DC are suspicious NO has released/used trust money contrary to undertaking.

PR to forward DC email confirming he hasn't provided written instructions to NO.

1. The following exchange took place in cross­examination:

YOVICH, MR: What's incorrect? --- I believed there was a general obligation upon me to provide trust account receipts.

All right, Mr Oud? --- I did produce a trust account receipt and I sent it to my client. I did not - as it turned out I mistakenly sent it to my client when I should have sent it to Mr Reese and that's the discussion I had with Ms Johnson.

And Ms Johnson corrected your misapprehension, didn't she? --- Yes, she did.

She told you that you were obliged by law to provide a trust account receipt to Mr Reese? --- That's right.

And you promised to do it? --- No, that's incorrect.

So after Ms Johnson told you that you had a legal obligation to do it, you didn't promise to do it? --- No, she didn't - she didn't say that I should do that. She - I rose the fact that I had made a mistake and I should have sent it to my client but she had - at no point did she tell me, 'Can you please send one off to Mr Reese?' In hindsight, 20/20 vision, I should have taken the extra step and sent one to Mr Reece but once I acknowledged my fact I thought well, okay, I've rung - I've acknowledged that. Next time this type of situation arose I would send one out.

But you won't correct this one; that's your evidence? --- I won't what, sorry?

You won't correct the mistake you made on this occasion? That was what you had resolved? --- I - because I - because I gave an explanation.

'I've had a mistake pointed out to me - - - ? --- I gave an explanation to Ms Johnson. I told her, 'Listen, I - ' - she said, 'Well, you should have sent one to Reece' and I said, 'Okay. I - I was under the misapprehension I did send one. I sent it to my client' and that was it.

1. It is inconceivable that Mr Oud could have believed that he was under no obligation to provide a receipt to the person who provided the funds. His explanation that he was not under an obligation to provide a trust receipt to CSG because Mr Oxlade was 'his client' is preposterous.
2. The Tribunal prefers Ms Johnson's evidence to Mr Oud's. The Tribunal finds that Mr Oud did agree to provide a trust receipt to Mr Reese; and Ms Johnson did tell Mr Oud he was under an obligation to provide a receipt.
3. At paras 66-78 of its SFC the Committee alleged and Mr Oud admitted (Oud ASFC para 40.1):
   1. On 4 April 2016 at 9.09 pm, [Mr Oud] was copied in to an email from Mr Cacciola to Dr Fiore, Mr Oxlade, and Mr John Buckby, a director of Irongrow, in which Mr Cacciola said that he had not received a call back from either Mr Oxlade or Dr Fiore for 'days now', and that if he did not receive a call by close of business on 5 April 2016 he would be passing the file over to Mr Reese for enforcement. [Exhibit A page 468]
   2. On 5 April 2016 at 3.32 pm, [Mr Oud] forwarded Mr Cacciola's email of 4 April 2016 to Mr Oxlade and asked, relevantly, 'Correct me if I'm wrong but is there something wrong here??' [Exhibit A page 469]
   3. On 5 April 2016, [Mr Oud] spoke to Mr Oxlade, who told him to ignore Mr Cacciola's email. Later the same day [Mr Oud] spoke to Dr Fiore, who asked him to provide a 'status update' and accordingly [Mr Oud] responded to Mr Cacciola by email later on 5 April 2016 informing him that Mr Namah was anticipated to be in Australia 'mid next week to conduct business'. [Exhibit A page 470-471]
   4. Mr Nick Tran, an associate of Mr Cacciola, responded to [Mr Oud] on 9 April 2016 confirming that if the platinum bars were not in custody of CSG by 20 April 2016 the CSG loan funds must be returned to Mr Reese's firm's trust account. Mr Tran also said that CSG had been told that the CSG loan funds were required urgently and would only be required for a maximum of 2 weeks. [Mr Oud] did not respond to Mr Tran's email.
   5. By email sent on 18 April 2016 to Dr Fiore, which was also copied to [Mr Oud], Mr Cacciola asked whether there were further updates on whether the platinum transaction was proceeding and said that he required the $300,000 to be transferred back to their lawyer's trust account on Wednesday (20 April 2016). [Mr Oud] did not respond to this email. [Exhibit A page 472]
   6. By email sent on 28 April 2016 at 7:59am AEST (4.59 am AWST) to [Mr Oud] (the 7.59 am Reese email**)**, Mr Reese referred to [Mr Oud's] failure to respond to his email sent on 25 March 2016, and required the CSG loan funds to be returned to his firm's trust account. Mr Reese also said that if [Mr Oud] failed to respond that he would be reporting a potential trust breach to the WA Law Society (or equivalent). [Exhibit A page 473]
   7. [Mr Oud] responded to Mr Reese by an email on 28 April 2016 at 9:24 am, saying 'As per the agreement reached between the parties please provide me with express written consent of both parties jointly.' At the time he sent that email, [Mr Oud] knew that the CSG loan funds were no longer retained in his firm's trust account. [Exhibit A page 502]
   8. Mr Reese responded to [Mr Oud] by email on 28 April 2016 at 9:26 am stating, 'We wrote to you a number of weeks ago requiring you to provide us with a copy of our (sic) trust ledger. Please do so immediately.' [Exhibit A page 488]
   9. [Mr Oud] responded to Mr Reese by email on 28 April 2016 at 9:32 am stating that he would seek instructions from his client and revert to him once he had done so. [Exhibit A page 502]
   10. [Mr Oud] sent a further email to Mr Reese on 28 April 2016 at 3:25 pm stating, relevantly:

'I have sought instructions from client and advise that he has agreed to return the $300,000.00 to you on the proviso that you forego any interest or setup costs.

He further says that the delay in getting the platinum from PNG arose at the outset when the funds were delayed a week in getting them transferred.'

1. At the time that he sent this email, [Mr Oud] knew that he did not have the CSG loan funds in his trust account. He did not tell Mr Reese that he no longer had the CSG loan funds in his firm's trust account.
2. Mr Reese responded to [Mr Oud] by email on 28 April 2016 at 3:44 pm saying, relevantly:

'Your client does (sic: does not) act for the borrower or the guarantor and therefore cannot make demands on the Credit Provider. The terms of the agreement between the Credit Provider and the borrower and guarantor remain.

We once again demand that you provide us with the following:

1. Trust receipt for the $300,000 we transferred to your account; and
2. Current trust ledger showing that the $300,00 (sic) still remains within your trust account'.

1. [Mr Oud] responded to Mr Reese by email on 29 April 2016 at 11.47 am, saying that he had been endeavouring to get further instructions from his client without success, and that he would revert once he had instructions. He again did not tell Mr Reese that he did not have the CSG loan funds in his trust account. [Exhibit A page 500]
2. In relation to the SFC at paras 66-78, Mr Oud further submitted that:
   1. he knew the funds were not in his trust account at all times after 29 March 2016, but on the basis of the attachments and letter referred in paras 38, 42 and 43 of the SFC, believed until receipt of the email set out in para 71 that the disbursement of the funds had been authorised by and was known to Mr Cacciola;
   2. thereafter, on the basis of verbal instructions given by Mr Oxlade on 29 March 2016 he believed that Mr Oxlade would repay the funds he had obtained as conveyed to Mr Reese by Mr Oud's email referred to in the SFC at para 75.

1. Neither of these sub-paragraphs explains the implied representations that the funds were still in Mr Oud's trust account.
2. The Committee alleged at para 79 of its SFC:
   1. [Mr Oud's] emails sent on 28 April 2016 at 9.24 am and 3:25 pm and on 29 April 2016 at 11.47 am in response to Mr Reese's email sent on 28 April 2016 requesting the return of the CSG loan funds (the 28 and 29 April 2016 emails) were misleading in that:

79.1 they did not disclose that [Mr Oud] no longer retained any of the CSG loan funds in the firm's trust account;

79.2 they implied that [Mr Oud] did retain the CSG loan funds in the firm's trust account, when, in truth, [Mr Oud] had disbursed the CSG loan funds and was not in a position to return the CSG loan funds to Mr Reese's trust account.

1. that his email set out in the SFC at para 72 reflected his belief at the time that he required the authority of both Messrs Cacciola and Oxlade to respond to Mr Reese; 2. says that his email set out in para 75 of the SFC reflected his instructions from Mr Oxlade to the effect that Mr Oxlade would return the funds; and

1. otherwise denies each allegation in para 79 of the SFC.

1. In cross-examination the following exchange took place:

YOVICH, MR: You respond at 11.24 am and look at page 502, bottom of the page? --- Yes.

And your response was, 'Dear Paul, as per the agreement reached between the parties, please provide me with express written consent of both parties jointly'? --- Yes.

Now, that was a reference to your undertaking? --- That's correct, yes.

And your undertaking required you not to release the funds from your trust account without that condition being met? --- Yes.

It was not a condition that applied to anything other than you; correct? --- Yes.

It did not apply if Mr Oxlade had the money and was being asked to send it back; correct? ---That's right.

1. Mr Oud's response makes it clear that he knew that the undertaking no longer applied once the funds were released. Therefore, referring to the undertaking implied that the funds were still in the trust account at a time when Mr Oud had already released the funds from his trust account. This was misleading.
2. The exchange continued:

So that email, by invoking the condition of your undertaking, implied that the funds were still in your trust account, didn't it? --- No. I was under the impression, all along, that these funds had been released - that - released with - because the - I've got written authority, so - - -

1. Mr Oud is evading the question. The exchange continued:

We will come to that. Mr- - - ? --- Well, you're - you're interrupting me, Mr Yovich. I haven't had a chance to finish my statement.

What's your answer? Your next email is from Mr Reese to you, page 502 further up the page. 9.26 am:

Nicholas, we wrote to you a number of weeks ago requiring you to provide us with a copy of our trust ledger. Please do so immediately.

I will seek instructions from my client and revert to you further once I have done so.

Go back to page 501. You then say in an email later on 28 April:

I have sought instructions from client and advise that he has agreed to return the 300,000 on the proviso that you forego any interest for setup costs, etcetera.

Mr Reese replied to that email and his email starts at the bottom of page 500 but the bulk of it's on page 501. Right? --- Yes.

And you were paying careful attention to these emails, weren't you? --- Don't patronise me. I was paying attention. Yes,

HIS HONOUR: - - - your evidence has been that you didn't pay attention to emails. So for Mr Yovich to ask in this instance if you did is not patronising you? --- Very well.

YOVICH, MR: Now, then Mr Reese sent you a further email at the top of page 501:

Dear, Nicholas. Thank you for your email. Your client does not act for the borrower or the guarantor -

The terms of the agreement between the credit provider and the borrower and guarantor remain.

Do you see that? Do you see that line? --- I'm - I'm reading it. Yes, I do.

The credit provider has made simple demands upon you, having placed a large sum of money in your trust account.

Your reluctance to provide us with any records of: (1) receipt of the money into your trust account; and, (2) the current balance of the credit provider's funds within your trust account causes the credit provider great concern. We once again demand that you provide us with the following: (1) trust receipt for the $300,000 we transferred to your account; and, (2) current trust ledger showing that the $300,000 still remains within your trust account.

You read that at the time you got it, didn't you? --- Yes.

That email made it 100 per cent crystal clear that Mr Reese believed that the money was still in your trust account, didn't it? --- I don't comment in relation to that. No.

Are you saying that when you read that you didn't know whether Mr Reese believed - - - ? --- I - I - - -

- - - the money was still in your trust account? --- I believed that I had been given authority and that - I didn't believe - I didn't believe - this is why I didn't trust any of these characters, to be honest, and I didn't believe that what I knew was the case and what I was - of the mind of the case. I had received a proper authority releasing those funds. They were immediately - including Reese - asking for this money back within days of it going into my account. And I was told by my client that the money was there. It was a - and it has been - come out in evidence that it was for a three month loan period. They couldn't just turn around and demand the money back. When I got these emails it - it - when I got these emails about them threatening I then thought 'hang on a tick'. The - I'm being put in a position here. I need to find out - maybe I've been lied to. And that's where my - my - I - I started saying - well, I finally woken up and smelt the coffee, so to speak, and realised that I've been - I've been lied to here. And - and - and I - I was getting on to my client and saying, 'What the hell is going on?'

Instead of simply doing one of two things, Mr Oud. Here is one thing that I suggest you could have done. You could have provided those written authorities to Mr Reese with an email saying, 'Hang on a second. Your client authorised the release of these funds and here's the documentary proof'? --- That didn't occur to me. I wanted the answers from my client because you've got to - you have to understand, Mr Yovich, that I was of the apprehension up until this period of time that they had a three month loan in place, that it was - that I was told that they didn't have to pay it back. They were paying these exorbitant moneys in respect to it. That Reese couldn't just change his mind and demand the funds back. And those moneys were - were - were there and - and to be payable at the end of the three month loan. I was of the belief I had doubly discharged my duty and my undertaking.

1. The propositions put by Mr Yovich were absolutely correct. Mr Oud's answer was evasive. The exchange continued:

And it would, Mr Oud, have been the simplest thing in the world to have said all of that to Mr Reese, wouldn't it? --- Because I - I wanted - - -

But you didn't, did you? --- No. Because I didn't - I - I - I didn't have a very good working relationship with Reese.

1. The fact that Mr Oud may not have had a very good working relationship with Mr Reese is irrelevant to Mr Oud's duty not to mislead a fellow practitioner.
2. The exchange continued:

Did you think that not telling him these things improved - - - ? --- No. I did - I - I thought it would be important to understand for my client. That's why I sought instructions from my client. What - and I challenged him 'what's going on?'

And he didn't tell you? --- Well, he did tell me that it - he did tell me he - in a roundabout sort of way. I got this email saying they had just taken the funds.

Now - - - ? --- And then I realised, 'Hang on a tick. I've been duped here. I'm an idiot. I should have seen it coming but I didn't'.

And on 29 April 2016 when it was entirely open to you to say those things in an email clarifying the apparent apprehension of Mr Reese that you still had the funds that you didn't? --- My focus turned immediately from realising that I had been lied to to getting my guy to pay back the funds. He - he - he has obviously lied to me. He has - he forged emails - forged signatures and - and - and lo and behold, these - he has got it - they - they need to - to - to fix this situation. They need to give back the money that they've fraudulently taken.

You knew that by 28 April? --- That - what's the significance of 28 April? I - at 28 April I - I had been - obviously smelt a rat. And that's where I went and got - and I said, 'What the hell is going on?' to my client. I said, 'What's - what - what's going on? I've - I've - I've got - I released these funds under an - under the belief that I had been given a - an authorised letter. Is that not the case?'

Mr Oud, you first raised this issue with your client on 4 April, didn't you? --- On 4 April?

101. That's when Mr Cacciola first said in an email to Mr Fiore which was copied to you:

Peter and Colin, I have tried to contact you for days now. If I don't receive a call back by close of business on Tuesday, 5 April I will pass the file over to Paul Reese for enforcement.

That's an email you got? --- - - - once again, these are operational things. Right. I've been - - -

Mr Oud, I just want you to answer the question I asked? --- I

I do not want you to give the tribunal an essay. The question is a yes/no question. Did you get that email? --- I was cc'd it.

Did you - go to page 102 - on the next day ask Colin Oxlade:

Correct me if I'm wrong but is there something wrong here?

? --- Well, I was referring to the fact that that's when he gave ­ ­ -

The question is did you send that email? --- Show me where - the email you're referring to.

102? --- 102. 'When you wanted' - well, I'm - I'm just querying why he's asking that.

Did you send that email to - - - ? --- Yes. I did. Yes, I did; yes.

Okay. Did you send that email to Mr Oxlade because you thought something might be wrong? --- No.

Well - - - ? --- Well - well, listen, yes. I - I - I - - -

You - - - ? --- I questioned him, 'Why are they saying this?' Yes.

And he told you to ignore them, didn't he? --- He told me - yes. That's correct.

And you did ignore them, didn't you? --- On the basis that I - he - of the explanation he gave me.

You didn't say to them, 'I have authority from you', did you? --- No. Because - - -

Because you knew those authorities were bogus? --- That's absolutely incorrect.

At any time you could have at least tried to shut these people up by telling them that the funds had been dispersed according to authorities you had been given? --- I had been given an explanation by Colin Oxlade that they had borrowed the funds and they were paying exorbitant interest and that they had a three month loan period. Once they - - -

1. Mr Oud evaded answering the question because, of course, he could have solved the whole problem by giving a copy of the alleged authorities to Mr Reese. Mr Oud's failure to do so is a damning indictment.
2. The exchange continued:

So they could do what they wanted? --- Once they had agreed to release the funds, they couldn't just demand those funds back. And that made perfect sense to me.

HIS HONOUR: That may be so, Mr Oud. But why didn't you send the copy - it still doesn't answer Mr Yovich's question which is why didn't you send a copy of the authority to Mr Reese? --- It didn't even occur to me, to be honest.

1. The Tribunal finds that Mr Oud's answer that it did not occur to him to send a copy of the authority to Mr Reece is a lie.
2. The exchange continued:

YOVICH, MR: I have another suggestion for you, Mr Oud. I'm sure you will not agree with it, but my suggestion to you is you didn't send it to Mr Reese because you wanted to hide things from him? --- That's absolutely incorrect.

And you did mislead him, all the way up to and including 28 April, about where the funds were? --- That's incorrect.

And you did that on purpose, didn't you? --- I deny that.

And when you got Mr Reese's email on 28 April saying, 'Prove to us that the funds are still in your account', the easiest thing in the world would have been to say, 'The funds are no longer in my account', and you should know that, you were silent on it? ---- No. That's not correct.

All right. Now - - - ? --- My - my primary focus, as I've said to you all along - - -

You've answered my question, Mr Oud? --- I didn't want to be accountable to two masters.

1. Mr Oud's claim that he needed Mr Cacciola's or CSG's authority to respond to Mr Reese, CSG's solicitor, is ludicrous. Mr Oud's belief, if it existed, that Mr Oxlade would return the funds does not justify an implied representation that the funds were still in Mr Oud's trust account.
2. Mr Oud knew that the funds were not in his trust account. He knew that the email was misleading. The Tribunal finds that Mr Oud's emails were intended to mislead Mr Reese into believing that the funds were still in Mr Oud's trust account. Mr Oud's subjective intention was to mislead Mr Reese. Mr Oud was subjectively aware that the emails were false and misleading.

1. At paras 81-84 of its SFC the Committee submitted:
   1. On 4 May 2016, Mr Reese contacted the Legal Profession Complaints Committee (Committee) concerning [Mr Oud's] failure to respond to his requests for a trust receipt and the trust ledger in respect of the CSG loan funds. The Committee contacted [Mr Oud] the same day to inform him of that contact and to make enquiries of him regarding the CSG loan funds.
   2. Some time between 4 and 9 May 2016, Mr Oxlade and Dr Fiore and their associate Mr Jaydeep Biswas (Mr Biswas), became aware either that Mr Reese had foreshadowed reporting [Mr Oud] to the WA Law Society (or equivalent) or that the Committee had been in contact with [Mr Oud]. During that time, Mr Biswas attempted to negotiate an agreement with CSG in relation to repayment of the loan.
   3. In an email sent on 9 May 2016 at 9.04 am from Mr Oxlade to Dr Fiore and [Mr Oud], Mr Oxlade set out proposed terms for the repayment of the loan. Mr Oxlade suggested that [Mr Oud] send an email to Mr Reese with the proposed settlement terms, which included a condition that Mr Reese confirmed contact with the Law Society (sic: Committee) and the formal withdrawal of the complaint.

1. [Mr Oud] sent an email to Mr Reese on 9 May 2016 at 3.51 pm, in which [he] said that he understood that discussions had taken place between Mr Cacciola, and Mr Biswas. [Mr Oud] then said, relevantly:

'It has been agreed that loan funds are to be repaid by Mr Oxlade within 48 hours directly into Mr Cacciola's nominated account contingent upon you immediately sending an email sent (sic) to the Legal Practitioners (sic) Complaints Committee withdrawing your complaint and explaining the confusion that occurred in the terms discussed.

I am further advised that the remaining balance of the loan (interest, fees and charges) shall be under the terms and conditions of the loan (3 months).'

1. Mr Oud admitted paras 81, 83 and 84 of the SFC and says further that:
   1. the email identified in para 84 of the SFC was sent at 3.51 pm after Mr Oud had received the email from Mr Oxlade referred to in para 83 of the SFC;
   2. the email reflected what Mr Oud believed on the basis of the said email from Mr Oxlade sent at 9.04 am had occurred between Messrs Cacciola and Biswas; and
   3. Mr Oud then received an email sent by Mr Reese at 4.03 pm on 9 May 2016 copied into Mr Cacciola, Mr Oxlade and Mr Biswas setting out terms for payment of the $300,000 including the statement that 'Should the above terms be complied with, my client will withdraw their complaint';

1. Mr Oud did not suggest or initiate the request that the complaint against him be withdrawn.

I do not now recall the precise matters, but recall receiving a phone call saying that if we retracted the complaint about Mr Oud, then CSG would get a pay out of the loan. I cannot now recall if that discussion was with Mr Biswas or another person. There was some negotiation going on to try to get the CSG net loan funds back and I recall saying to Paul to just hold off with the complaint as Mr Oxlade was making an offer which I was waiting to see in writing, and that we should wait and see what happened with that. In the end nothing was achieved and CSG's money was never returned

In his 6 May 2016 email (ABOD 18) and in response to my query as to the trust funds, Mr Oud advised that the borrower and lender were communicating about the loan funds - and that an imminent resolution was anticipated. He further noted that the 'confusion surrounding this issue has been clarified' and advised that the lender would be sending an email explaining 'what actually in fact occurred' such that the complaint to the Committee would come to an end.

1. In cross-examination the following exchange took place:

YOVICH, MR: There's no (indistinct) on page 580, Mr Oud? --- There is. In - in the email there, he spelt Reese's name in the email that he sent on the - the - 508, the third last paragraph.

I know that. I'm not asking you about that. I'm asking about the email that you sent, which is email you marked J and said to the LPCC on 12 July 2016:

I was given instructions by Colin Oxlade to send an email, as dictated to me, to Mr Reese, a copy of which is attached hereto and marked J.

The question is that Mr Oxlade, who you by this time realised had lied to you and duped you, told you to do something and you did it? My major concern, as I told you before, was once I realised I had been duped, was to do everything possible to make sure these people were paid back their money.

And - - - ? --- Because it was their money. It was not - it's not - it wasn't other people's money. They lied.

And the confusion that you describe in your email at page 580 - - - ? --- Is it my - is - yes, the confusion. Yes.

This is what Mr Oxlade said for you to say? --- I can't recall whether - I - I don't - I don't believe he said - he used those words - confusion - no.

So those were your words? --- Which - sorry - which page are you referring to?

YOVICH, MR: So is this email in your words? --- Yes. I was still of the belief that they had sent it - you've got to understand - - -

Mr Oud, different question. My question is: is this email one that you composed or that someone else composed and you sent? Let me read.

And you sent it to him in order to hopefully get the deal done for the $300,000; correct? --- What deal done? What are you talking about?

The money returned? That was the primary reason. Yes.

And your primary reason was to get yourself out of a possible investigation by the LPCC? --- Well - - -

Whether or not you had done anything wrong? --- The primary reason is not to - was to get the money repaid. That's correct. Well, it was the - - -

And the removal of any complaint against you was just a fortunate by-product that was not your idea? --- Mate, it was the fact that I had been reported. Yes. But it wasn't my - it was based on a lie that - I take that word back - a fraudulent act committed on the part of Oxlade - presumably, Oxlade - that he forged those signatures.

And the first suggestion that the matter be resolved this way that you heard about was on 9 May? --- When I got that letter - that email - that's right.

That's the 508 email? --- Yes. The email saying - from Oxlade to everybody about what Biswas had negotiated.

And your email to the LPCC on 6 May at 10 am in which you said that you expected the borrower and the lender would 'resolve the confusion about the issues between you' was something different? --- I described it as confusion. The fact of the matter is that they had lied and taken the money and it needed to go back.

And the fact of the matter was that you wanted the complaint dropped - that was your bit of - your condition for the loan funds being - - - ? --- No. No. No. It wasn't.

1. Mr Oud sent the email containing the terms concerning the withdrawal of the complaint.
2. Mr Oud further submitted that:
   1. He does not know and cannot admit para 82 save to refer to the email from Mr Oxlade referred to in para 83 of the SFC and the email sent by him to Mr Reese copied into Mr Cacciola, Mr Oxlade and Mr Biswas referred to in para 84; and
   2. By 9 May 2016 and the exchange of emails which occurred that day Mr Oud formed the belief that Mr Oxlade must have acted fraudulently in presenting to him the authorities purportedly signed by Mr Cacciola and instructing Mr Oud to pay out the $300,000 as directed by him.

1. Mr Oud sent the email and he knew the terms of the email.

1. At paras 85-92 of its SFC in relation to Ground 1 of Annexure A, the Committee alleged:
   1. [Mr Oud] undertook not to disburse any of the CSG loan funds without the 'expressed written consent' of Mr Cacciola as well as that of Mr Oxlade. The importance of this undertaking to CSG for the protection of CSG's interests was or should have been evident to [Mr Oud] from the information referred to in paras 3 to 23 and 26 to 32 [of the Committee's SFC], and from all Mr Oud's dealings with Mr Oxlade to that point.
   2. Necessarily implicit in the performance of this undertaking was the requirement that [Mr Oud] only disburse loan funds consistently with the terms of any expressed written permission from Mr Cacciola.
   3. On 23 March 2016 [Mr Oud] received what purported to be an expressed written consent signed by Mr Cacciola to disburse $175,000 'for previous expenses/advances to Belden Namah directly relating to the PNG Platinum deal'. [Mr Oud] made no attempt to contact Mr Cacciola to verify that he had genuinely given this consent, nor to clarify whether the funds were to be disbursed directly to Mr Namah or to another entity.
   4. Instead, [Mr Oud] relied on oral instructions from Mr Oxlade to disburse the funds in the manner set out in para 40 [of the Committee's SFC] without checking with either Mr Reese or Mr Cacciola that Mr Cacciola gave his consent at all or to the disbursement of the funds in the manner Mr Oxlade instructed [Mr Oud] to disburse the funds.
   5. On 29 March 2016 [Mr Oud] received what purported to be two further and different expressed written consents signed by Mr Cacciola to disburse, ultimately, the remaining $125,000 of the CSG loan funds. Again, [Mr Oud] made no attempt to contact either Mr Reese or Mr Cacciola to verify that he genuinely had given either of these consents, nor to clarify why the terms of the consent had changed, nor to clarify how or to whom the funds were to be disbursed.
   6. [Mr Oud] disbursed the CSG loan funds without the actual consent of Mr Cacciola in reckless disregard as to whether he was in breach of his undertaking.
   7. Alternatively, he was grossly careless in failing to ensure that the release of the CSG loan funds was not in breach of the undertaking.
   8. [Mr Oud's] conduct in releasing the CSG loan funds in the circumstances described above is professional misconduct in that it was conduct that involved a consistent and substantial failure to reach a reasonable standard of competence and diligence.
2. In relation to Ground 1 of Annexure A, Mr Oud's response was:
   1. Mr Oxlade fraudulently deceived Mr Oud into disbursing from the firm's trust account the CSG loan funds, $300,000, received from Credit Solutions Group Pty Ltd.

(a) Mr Oxlade fraudulently forged Mr Cacciola's signature on:

(i) the attachment to the email sent by Mr Oxlade to Mr Oud referred to in para 38 of the Committees SFC;

(ii) the attachment to the email sent by Mr Oxlade to Mr Oud referred to in para 42 of the Committee's SFC; and

(iii) a letter delivered to Mr Oud by Dr Fiore referred to in para 43 of the Committees SFC; and

(b) by the attachments referred to in paras 38 and 42 of the SFC and the letter referred to in para 43 and his instructions to the practitioner as set out in para 36 of the SFC, Mr Oxlade fraudulently deceived Mr Oud into making disbursements of the sum of $300,000 to:

(c) in acting on the authorities bearing the apparent signature of Mr Cacciola there was no reason for Mr Oud not to accept that Mr Cacciola's signature was other than genuine;

(d) Mr Oud believes and the Committee suspects Mr Oxlade committed criminal offences by forging the purported signatures of Mr Cacciola on the basis of which Mr Oud acted to disburse the $300,000 CSG loan funds; and

1. In the circumstances, Mr Oud's conduct was neither unsatisfactory professional conduct nor professional misconduct.

1. Mr Oxlade's fraud would have been obvious if Mr Oud had taken even the most basic steps of checking with Mr Cacciola or Mr Reese. Mr Oud failed to do so. The reasons why Mr Oud should have been alerted to the validity of the authorities are detailed above. He should not have released the funds.
2. The Tribunal finds that Mr Oud acted in reckless disregard as to whether he was in breach of the undertaking.
3. The authorities make clear the importance of a solicitor's undertaking. Mr Oud knew that his undertaking was central to the loan funds transfer taking place. Mr Oud's conduct in releasing the funds in the circumstances would be regarded as disgraceful or disreputable by lawyers of good repute. Mr Oud was more concerned with the repayment of his $20,000 loan than he was with honouring the terms of his undertaking. Mr Oud's conduct amounted to professional misconduct as alleged in SFC para 92.
4. The Tribunal finds that Mr Oud subjectively recklessly disregarded whether the authorities were valid or not. He was wilfully indifferent to the truth of the authorities despite the clear warnings as set out above.
5. The Tribunal finds that:
   1. Mr Oud undertook not to disburse any of the CSG loan funds without the 'expressed written consent' of Mr Cacciola as well as that of Mr Oxlade. The importance of this undertaking to CSG for the protection of CSG's interests was or should have been evident to Mr Oud from the information referred to in paras 3 to 23 and 26 to 32 of the Committee's SFC, and from all Mr Oud's dealings with Mr Oxlade to that point.
   2. Necessarily implicit in the performance of this undertaking was the requirement that Mr Oud only disburse loan funds consistently with the terms of any expressed written permission from Mr Cacciola.
   3. On 23 March 2016 Mr Oud received what purported to be an expressed written consent signed by Mr Cacciola to disburse $175,000 'for previous expenses/advances to Belden Namah directly relating to the PNG [Papua New Guinea] Platinum deal'. Mr Oud made no attempt to contact Mr Cacciola to verify that he had genuinely given this consent, nor to clarify whether the funds were to be disbursed directly to Mr Namah or to another entity.
   4. Instead, Mr Oud relied on oral instructions from Mr Oxlade to disburse the funds in the manner set out in para 40 of the Committee's SFC without checking with either Mr Reese or Mr Cacciola that Mr Cacciola gave his consent at all or to the disbursement of the funds in the manner Mr Oxlade instructed Mr Oud to disburse the funds.
   5. On 29 March 2016 Mr Oud received what purported to be two further and different expressed written consents signed by Mr Cacciola to disburse, ultimately, the remaining $125,000 of the CSG loan funds. Again, Mr Oud made no attempt to contact either Mr Reese or Mr Cacciola to verify that he genuinely had given either of these consents, nor to clarify why the terms of the consent had changed, nor to clarify how or to whom the funds were to be disbursed.
   6. Mr Oud disbursed the CSG loan funds without the actual consent of Mr Cacciola in reckless disregard as to whether he was in breach of his undertaking.
   7. Mr Oud's conduct in releasing the CSG loan funds in the circumstances described above is professional misconduct in that it was conduct that involved a consistent and substantial failure to reach a reasonable standard of competence and diligence.

1. At paras 93-96 of its SFC the Committee submitted in relation to Ground 2 of Annexure A:
   1. A law practice is required in accordance with section 228(1) and (3) of the Act to keep, in the form of a permanent record, trust records in relation to the trust money received by the practice, in accordance with the Regulations and in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person.
   2. On 28 March 2016 [Mr Oud] failed to ensure, in his role as the sole legal practitioner director of the law practice, that withdrawals from the firm's trust account made by electronic funds transfer on around 23 March 2016 of sums of $100,000 and $75,000, were properly disclosed in the firm's trust records in circumstances where:

94.1 Regulation 45 requires that a law practice keep 'required particulars' of each withdrawal of trust funds by electronic funds transfer, where the "required particulars" must include for a payment to an authorised deposit taking institution (ADI), the name or BSB number of the ADI and that name of the person receiving the benefit of the payment;

1. at 2.05 pm [Mr Oud] transferred $75,000 from his firm's trust account to Mr Oxlade's Commonwealth Bank of Australia account;
2. at 2.09 pm [Mr Oud] transferred $100,000 from his firm's trust account to Ms Kathryn McKelt's Commonwealth Bank of Australia account;

94.3 The transfer of these funds was recorded in the firm's trust ledger for Mr Oxlade as two separate payments to Mr Namah of $75,000 and $100,000;

94.5 The Commonwealth Bank is an ADI within the meaning of the Regulations;

94.5 Based on information provided to her by [Mr Oud] as set out in paragraphs 54 to 56 [of the Committee's SFC], [Mr Oud's] bookkeeper entered into the firm's trust records that each of the two withdrawals from the firm's trust account were payments to Mr Namah with the BSB and account details set out in paragraph 57 [of the Committee's SFC], when in fact neither payment was made to Mr Namah and the trust records did not record the details of the BSB and account numbers for each of the recipients of the withdrawals, namely Mr Oxlade and Ms McKelt, the details of which were known to [Mr Oud];

and, as a result of the correct details of the names and BSB and account numbers of each of the recipients not being recorded in the trust records, the firm's trust records did not accurately record all the required particulars set out in Regulation 45, such that the firm's trust records did not disclose the true position in relation to the withdrawal of those trust funds as required by section 228(3)(b) of the Act.

1. On 7 April 2016 [Mr Oud] failed to ensure, in his role as the sole legal practitioner director of the law practice, that withdrawals from the firm's trust account made by electronic funds transfer on around 30 March 2016 of the sums of $10,000 and $115,000 were properly disclosed in the firm's trust records in circumstances where:

95.1 Regulation 45 requires that a law practice keep 'required particulars' of each withdrawal of trust funds by electronic funds transfer, where the 'required particulars' must include for a payment to an ADI, the name or BSB number of the ADI and that name of the person receiving the benefit of the payment;

1. at 1.22 pm [Mr Oud] transferred $10,000 from his firm's trust account to Mr Oxlade's Commonwealth Bank of Australia account;
2. at 1.33 pm [Mr Oud] transferred $115,000 from his firm's trust account to Orlando Maiolo's Macquarie Bank Limited account;

95.3 The transfer of these funds was recorded in the firm's trust ledger for Mr Oxlade as two separate payments to Mr Namah of $10,000 and $115,000;

95.4 The Commonwealth Bank and the Macquarie Bank are ADIs within the meaning of the Regulations;

95.5 Based on information provided to her by [Mr Oud] as set out in paragraphs 55 to 56 [of the Committee's SFC], [Mr Oud's] bookkeeper entered into the firm's trust records that each of the two withdrawals from the firm's trust account were payments to Mr Namah with the BSB and account details set out in paragraph 57 [of the Committee's SFC], when in fact neither payment was made to Mr Namah and the trust records did not record the details of the BSB and account numbers for each of the recipients of the withdrawals, namely Mr Oxlade and Mr Maiolo, the details of which were known to [Mr Oud];

and, as a result of the correct details of the names and BSB and account numbers of each of the recipients not being recorded in the trust records, the firm's trust records did not accurately record all the required particulars set out in Regulation 45, such that the firm's trust records did not disclose the true position in relation to the withdrawal of those trust funds as required by section 228(3)(b) of the Act.

1. [Mr Oud's] conduct referred to in paragraphs 94 and 95 [described above] constituted unsatisfactory professional conduct within the meaning of sections 402 and 438 of the Act in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner, particularly where the practitioner had given an undertaking that the funds would only be disbursed with the expressed written consent of the lender of the funds and in accordance with the terms of that consent.
2. In relation to Ground 2 of Annexure A Mr Oud's response was:
   1. Mr Oud accepts that his trust account records did not correctly record the identity of the persons who received the payments made from his trust account on 23 and 30 March 2016 nor the BSB and account numbers for each of the recipients of those payments, as required by reg 45 of the LP Regulations and s 228(3)(b) of the LP Act.
   2. When advising his bookkeeper on recording in his trust account payments of the CSG loan funds Mr Oud believed proper entries were being made but inadvertently failed to verify that proper entries for bank account details of the recipients of payments had been recorded as required by the LP Regulations and the LP Act.
   3. Mr Oud admits that his conduct in failing to ensure that the required account details were kept constituted unsatisfactory professional conduct.

1. The Tribunal finds that Mr Oud's conduct constituted unsatisfactory professional conduct.
2. The Tribunal finds that:
   1. A law practice is required in accordance with s 228(1) and s 228(3) of the LP Act to keep, in the form of a permanent record, trust records in relation to the trust money received by the practice, in accordance with the LP Regulations and in a way that at all times discloses the true position in relation to trust money received for or on behalf of any person.
   2. On 28 March 2016 Mr Oud failed to ensure, in his role as the sole legal practitioner director of the law practice, that withdrawals from the firm's trust account made by electronic funds transfer on around 23 March 2016 of sums of $100,000 and $75,000, were properly disclosed in the firm's trust records in circumstances where:

1. Regulation 45 requires that a law practice keep 'required particulars' of each withdrawal of trust funds by electronic funds transfer, where the 'required particulars' must include for a payment to an authorised deposit taking institution (ADI), the name or BSB number of the ADI and that name of the person receiving the benefit of the payment; 2. On 23 March 2016: 1. at 2.05 pm Mr Oud transferred $75,000 from his firm's trust account to Mr Oxlade's Commonwealth Bank of Australia account; 2. at 2.09 pm Mr Oud transferred $100,000 from his firm's trust account to Ms Kathryn McKelt's Commonwealth Bank of Australia account;

1. The transfer of these funds was recorded in the firm's trust ledger for Mr Oxlade as two separate payments to Mr Namah of $75,000 and $100,000;

1. The Commonwealth Bank is an ADI within the meaning of the Regulations; 2. Based on information provided to her by Mr Oud as set out in paras 54 to 56 of the Committee's SFC, Mr Oud's bookkeeper entered into the firm's trust records that each of the two withdrawals from the firm's trust account were payments to Mr Namah with the BSB and account details set out in para 57 of the Committee's SFC, when in fact neither payment was made to Mr Namah and the trust records did not record the details of the BSB and account numbers for each of the recipients of the withdrawals, namely Mr Oxlade and Ms McKelt, the details of which were known to Mr Oud;

and, as a result of the correct details of the names and BSB and account numbers of each of the recipients not being recorded in the trust records, the firm's trust records did not accurately record all the required particulars set out in Reg 45, such that the firm's trust records did not disclose the true position in relation to the withdrawal of those trust funds as required by s 228(3)(b) of the LP Act.

1. On 7 April 2016 [Mr Oud] failed to ensure, in his role as the sole legal practitioner director of the law practice, that withdrawals from the firm's trust account made by electronic funds transfer on around 30 March 2016 of the sums of $10,000 and $115,000 were properly disclosed in the firm's trust records in circumstances where:

1. Regulation 45 requires that a law practice keep 'required particulars' of each withdrawal of trust funds by electronic funds transfer, where the 'required particulars' must include for a payment to an ADI, the name or BSB number of the ADI and that name of the person receiving the benefit of the payment; 2. On 30 March 2016: 1. at 1.22 pm [Mr Oud] transferred $10,000 from his firm's trust account to Mr Oxlade's Commonwealth Bank of Australia account; 2. at 1.33 pm [Mr Oud] transferred $115,000 from his firm's trust account to Orlando Maiolo's Macquarie Bank Limited account;

1. The transfer of these funds was recorded in the firm's trust ledger for Mr Oxlade as two separate payments to Mr Namah of $10,000 and $115,000;

1. The Commonwealth Bank and the Macquarie Bank are ADIs within the meaning of the Regulations; 2. Based on information provided to her by Mr Oud] as set out in paras 55 to 56 of the Committee's SFC, Mr Oud's] bookkeeper entered into the firm's trust records that each of the two withdrawals from the firm's trust account were payments to Mr Namah with the BSB and account details set out in para 57 of the Committee's SFC, when in fact neither payment was made to Mr Namah and the trust records did not record the details of the BSB and account numbers for each of the recipients of the withdrawals, namely Mr Oxlade and Mr Maiolo, the details of which were known to Mr Oud;

and, as a result of the correct details of the names and BSB and account numbers of each of the recipients not being recorded in the trust records, the firm's trust records did not accurately record all the required particulars set out in Reg 45 of the LP Regulations , such that the firm's trust records did not disclose the true position in relation to the withdrawal of those trust funds as required by s 228(3)(b) of the LP Act.

1. Mr Oud's conduct referred to in paras 94 and 95 described above in the Committee's SFC constituted unsatisfactory professional conduct within the meaning of s 402 and s 438 of the LP Act in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner, particularly where the practitioner had given an undertaking that the funds would only be disbursed with the expressed written consent of the lender of the funds and in accordance with the terms of that consent.

1. In relation to Ground 3 of Annexure A the Committee alleged at paras 97-100 of its SFC:
   1. On 22 March 2016, after the deposit of the CSG loan funds into [Mr Oud's] trust account, Mr Reese asked for a receipt for the trust monies received by the law practice.
   2. On 28 April 2016 Mr Reese again asked for a receipt for the trust monies received by the law practice, as well as confirmation that the funds were still in his firm's trust account.
   3. Mr Oud ignored the first request, and responded to the second request by saying that he was seeking instructions from his client, that he had not been able to get those instructions and that he would respond when he did so, in circumstances where

99.1 pursuant to Regulation 41(2) of the Regulations the law practice of which he was the sole legal practitioner director was required to make out a receipt after receiving those monies; and

99.2 pursuant to Regulation 41(6) of the Regulations the law practice was required to deliver on request to the person from whom the trust money was received the original receipt.

1. Mr Oud's failure to comply with Mr Reese's requests in a timely manner or at all was a breach of Regulations 41(2) and 41(6) and constituted a failure to reach a reasonable standard of competence and diligence, so as to amount to unsatisfactory professional conduct pursuant to sections 402 and 438 of the Act.
2. In relation to Ground 3 of Annexure A Mr Oud's response was:
   1. Mr Oud accepts that he was obliged to provide a trust account receipt to Mr Reese in a timely manner but excuses his conduct as set out in the following contentions.
   2. Mr Oud further refers to:

1. his repeated position that he did not wish to be responsible to both Credit Solutions Group Pty Ltd, as lender and a client, and Mr Oxlade, on behalf of Irongrow as a client, regarding the release of the $300,000 proposed to be deposited by Credit Solutions Group Pty Ltd to his trust account; 2. in relation to the first request by Mr Reese, his understanding at the time that he was obliged to provide a trust account receipt only to his client, Mr Oxlade, and says that he did provide a receipt to Mr Oxlade on 25 March 2016;

1. in relation to Mr Reese's second request, his belief on the basis of his contention in 50.1 and the terms of his undertaking as set out in paragraph 25 herein that he was required to obtain both Mr Cacciola's and Mr Oxlade's consent to the provision of the receipt to Mr Reese. 3. In all of the circumstances, Mr Oud does not admit that he failed to provide a trust account receipt to Mr Reese in circumstances which constituted unsatisfactory professional conduct.

1. Mr Oud's failure to provide a receipt to Mr Reese was inexcusable. He had a clear legal obligation to do so. The Tribunal rejects his response that he did not wish to be responsible to both parties; that has nothing to do with providing a receipt.
2. Mr Oud could not possibly have believed that he was obliged to provide a receipt only for his client. CSG deposited the money. There was absolutely no reason that Mr Oud required any consent let alone the consent of two parties to provide a receipt for the deposit of the funds. On what possible basis could Mr Oud believe that he could not provide a receipt to CSG's solicitor, Mr Reese? Mr Oud's failure to ever provide a copy of the recept to CSG or Mr Reese, even after he had been informed of his legal obligation by Ms Johnson of the Committee only emphasises Mr Oud's disregard of his obligations. All Mr Oud had to do was forward Ms Guthrie's email.
3. Mr Oud's conduct was unsatisfactory professional conduct.
4. The Tribunal finds that:
   1. On 22 March 2016, after the deposit of the CSG loan funds into Mr Oud's trust account, Mr Reese asked for a receipt for the trust monies received by the law practice.
   2. On 28 April 2016 Mr Reese again asked for a receipt for the trust monies received by the law practice, as well as confirmation that the funds were still in his firm's trust account.
   3. Mr Oud ignored the first request, and responded to the second request by saying that he was seeking instructions from his client, that he had not been able to get those instructions and that he would respond when he did so, in circumstances where
      1. pursuant to reg 41(2) of the LP Regulations the law practice of which he was the sole legal practitioner director was required to make out a receipt after receiving those monies; and

99.2 pursuant to reg 41(6) of the LP Regulations the law practice was required to deliver on request to the person from whom the trust money was received the original receipt.

1. Mr Oud's failure to comply with Mr Reese's requests in a timely manner or at all was a breach of reg 41(2) and reg 41(6) of the LP Regulations and constituted a failure to reach a reasonable standard of competence and diligence, so as to amount to unsatisfactory professional conduct pursuant to s 402 and s 438 of the LP Act.

1. At paras 101-106 of its SFC the Committee alleged in relation to Ground 4 of Annexure A:
   1. After [Mr Oud] received on 4 April 2016 the email from Mr Cacciola referred to in para 67 [of the Committee's SFC], he knew or ought to have known that Mr Cacciola was unaware that [Mr Oud] had disbursed the CSG loan funds.
   2. Between the time that he received that email and the time he received the 7.59 am Reese email on 28 April 2016, [Mr Oud] did not make any inquiries with Mr Cacciola or Mr Reese in relation to the CSG loan funds.
   3. In the 7.59 am Reese email, and in his later email on 28 April 2016, Mr Reese required the CSG loan funds to be returned to CSG. [Mr Oud] sent the three emails referred to in paragraphs 74 to 80 [of the Committee's SFC]; knowing that:

103.1 he had on 23 March 2016 and 30 March 2016 disbursed the CSG loan funds;

103.2 he had done so after receiving what purported to be signed consents to do so from Mr Cacciola;

103.3 he was not in a position to return the CSG loan funds to Mr Reese's trust account.

1. In the three emails referred to above, [Mr Oud]:

104.1 failed to refer to the fact that he had on 23 March 2016 and 30 March 2016 disbursed the CSG loan funds;

104.2 failed to refer to the purported signed consents he had received;

104.3 said that his client agreed to return the CSG loan funds upon certain conditions being met.

1. By doing so, [Mr Oud] conveyed the false impression that the CSG loan funds were retained in his firm's trust account and permitted that impression to remain uncorrected where he:

105.1 knew the emails were misleading in a material respect;

105.2 alternatively, was recklessly indifferent as to whether the emails were misleading in a material respect;

105.3 alternatively, was grossly careless as to whether the emails were misleading in a material respect.

1. [Mr Oud's] conduct in so doing constituted professional misconduct within the meaning of sections 403 and 438 of the Act, in that it would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence.
2. In relation to Ground 4 of Annexure A Mr Oud's response was:
   1. Paragraph 101 of the SFC is denied. Mr Oud repeats paragraph 44 of Oud ASFC and further says in the prior belief that the $300,000 had been disbursed with the written consent of Mr Cacciola, Mr Oud directed a proper inquiry to his client Mr Oxlade as referred to in paragraph 67 of the Committee's SFC;
   2. In respect of para 102 of the SFC:

1. he advised Mr Reese by the email sent at 9.24 am on 28 April 2016 referred to in para 72 of the SFC that the 'parties' meaning the parties to the CSG Loan and Mr Oxlade had reached an agreement as communicated by Mr Oud's email; 2. between 4 April 2016 and 28 April 2016 that Mr Reese knew or ought to have known his client, Mr Cacciola, was in discussion with the parties to the CSG Loan concerning the disbursement of the $300,000;

1. he properly directed his inquiry to his client Mr Oxlade by his email sent on 5 April 2016 at 3.32 pm referred to in para 67 of the Committee's SFC. 3. In respect to paragraphs 103, 104, 105 and 106 of the SFC, Mr Oud's response was:

1. Mr Oud denies that by his alleged conduct he conveyed the false impression, as alleged in para 105 of the SFC or acted recklessly or with gross carelessness in a manner which constituted professional misconduct as alleged in para 106 of the SFC; 2. Mr Oud at all relevant times believed on reasonable grounds that he had received the written consent of Mr Cacciola to the release and disbursement of the $300,000 as required by his undertaking to Mr Reese contained in Mr Reese's email sent to the practitioner on 22 March 2016 at 1.18 pm referred to in para 25 herein;

1. Mr Oud advised Mr Reese by his email sent at 3.25 pm on 28 April 2016 that Mr Oxlade agreed to return the $300,000 on the conditions set out in that email. Implicit in that statement was the disclosure of the fact that the funds had been paid to Mr Oxlade or at his direction, consistent with Mr Oud's belief that Mr Cacciola had given his written consent to the disbursement of the $300,000 from Mr Oud's trust account.

1. Mr Oud's conduct seeking the consent pursuant to the undertaking when he knew the funds had been released conveyed the false impression that the funds were retained in the trust account. The emails were misleading in a material respect. Mr Oud's conduct amounts to professional misconduct.
2. Mr Oud conveyed the false impression that the CSG loan funds were retained in his firm's trust account and permitted that impression to remain uncorrected where he knew the emails were misleading in a material respect.
3. Mr Oud's conduct in so doing constituted professional misconduct within the meaning of s 403 and s 438 of the LP Act, in that it would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence.
4. The authorities make it clear that a practitioner has an obligation to deal honestly with fellow practitioners. Mr Oud breached that obligation.
5. The Tribunal finds that Mr Oud's conduct and communication with Mr Reese as set out above were false and misleading when he knew that his conduct and communication were false and misleading and it was his subjective intent to engage in conduct and communication that were false and misleading.
6. The Tribunal finds that:
   1. After Mr Oud received on 4 April 2016 the email from Mr Cacciola referred to in para 67 of the Committee's SFC, he knew or ought to have known that Mr Cacciola was unaware that Mr Oud had disbursed the CSG loan funds.
   2. Between the time that he received that email and the time he received the 7.59 am Reese email on 28 April 2016, Mr Oud did not make any inquiries with Mr Cacciola or Mr Reese in relation to the CSG loan funds.
   3. In the 7.59 am Reese email, and in his later email on 28 April 2016, Mr Reese required the CSG loan funds to be returned to CSG. Mr Oud sent the three emails referred to in paras 74 to 80 of the Committee's SFC; knowing that:

1. he had on 23 March 2016 and 30 March 2016 disbursed the CSG loan funds; 2. he had done so after receiving what purported to be signed consents to do so from Mr Cacciola; and

1. he was not in a position to return the CSG loan funds to Mr Reese's trust account. 4. In the three emails referred to above, Mr Oud:

1. failed to refer to the fact that he had on 23 March 2016 and 30 March 2016 disbursed the CSG loan funds; 2. failed to refer to the purported signed consents he had received; and

1. said that his client agreed to return the CSG loan funds upon certain conditions being met. 5. By doing so, Mr Oud conveyed the false impression that the CSG loan funds were retained in his firm's trust account and permitted that impression to remain uncorrected where he knew the emails were misleading in a material respect. 6. Mr Oud's conduct in so doing constituted professional misconduct within the meaning of s 403 and s 438 of the LP Act, in that it would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence.

1. In relation to Ground 5 of Annexure A the Committee alleged at paras 107-109
   1. In the email dated 9 May 2016 and referred to in paragraph 83 [of the Committee's SFC], [Mr Oud] conveyed to Mr Reese an offer that his client Mr Oxlade repay the CSG loan funds if, and by implication only if, Mr Reese withdrew a complaint he had made to the Legal Profession Complaints Committee against [Mr Oud], and told the Committee that the complaint had arisen out of a misunderstanding.
   2. [Mr Oud's] conduct in sending the email dated 9 May 2016 had a tendency to subvert the authority of the Committee.
   3. [Mr Oud's] conduct in acting in a manner that had a tendency to subvert the authority of the Committee constituted professional misconduct within the meaning of sections 403 and 438 of the Act, in that it would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence.
2. In relation to Ground 5 of Annexure A Mr Oud responded:
   1. In respect of para 107 of the SFC Mr Oud's email to Mr Reese sent on 9 May 2016 at 3.51 pm was sent in circumstances where:

1. Mr Oxlade had fraudulently presented documents bearing Mr Cacciola's purported signature to the practitioner to obtain the release of the $300,000 held by Mr Oud upon trust; 2. an associate of Mr Oxlade, Jaydeep Biswas, had negotiated the return of the funds with Mr Cacciola;

1. the negotiated terms on which that was to be done included a term that Mr Reese withdraw the complaint to the Committee;

and Mr Oud had played no part in the negotiations by Mr Biswas identified by Mr Oxlade.

1. Mr Oud's email was not an offer made by the Mr Oud. Mr Oud conveyed to Mr Reese advice he had received from Mr Oxlade that an agreement had been reached between Messrs Biswas and Cacciola for the repayment of the CSG Loan funds which included a term agreed between them that the complaint by Mr Cacciola to the Committee would be withdrawn.
2. By the email from Mr Reese to Mr Oud on 9 May 2016 at 4.03 pm referred to in paragraph 43.3 of Oud ASFC, Mr Reese proposed, as a term of settlement between the parties to the CSG Loan and Mr Oxlade that should the $300,000 be paid on the terms set out in the email that Mr Cacciola would withdraw his complaint to the Committee;
3. Mr Oud denies his conduct subverted or had a tendency to subvert the authority of the Committee as alleged in paras 108 and 109 of the SFC or otherwise contravened s 403 and s 438 of the LP Act.
4. Mr Oud was under no obligation to convey an offer to withdraw the complaint. He took no steps to advise his clients that it was inappropriate. It was his intent to have the complaint withdrawn.
5. Mr Oud's conduct had a tendency to subvert the authority of the Committee and constituted professional misconduct.
6. The Tribunal finds that:
   1. In the email dated 9 May 2016 and referred to in para 83 of the Committee's SFC, Mr Oud conveyed to Mr Reese an offer that his client Mr Oxlade repay the CSG loan funds if, and by implication only if, Mr Reese withdrew a complaint he had made to the Legal Profession Complaints Committee against Mr Oud, and told the Committee that the complaint had arisen out of a misunderstanding.
   2. Mr Oud's conduct in sending the email dated 9 May 2016 had a tendency to subvert the authority of the Committee.
   3. Mr Oud's conduct in acting in a manner that had a tendency to subvert the authority of the Committee constituted professional misconduct within the meaning of s 403 and s 438 of the LP Act, in that it would be reasonably regarded as disgraceful or dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence.

That the practitioner NICHOLAS NEIL PETER OUD (practitioner) between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming (Mr & Mrs Warming) filed in the Federal Circuit Court in Adelaide ADG453/2015 (creditor's petition), engaged in professional misconduct within the meaning of sections 403 and 438 of the Legal Profession Act 2008 (WA) (Act) in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:

1. a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 (the 29 March 2016 letter) that contained the following statements (together, the 29 March 2016 statements):

(a) that the practitioner acts for ICBC Capital Pty Ltd (ICBC), which statement was false and misleading as, in truth, the practitioner did not then and never had acted for ICBC, and ICBC at that time was in liquidation;

(b) that the practitioner is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, the practitioner was holding $138,662.80 in his trust account as at 29 March 2016;

(c) that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, the practitioner did not and never had acted for ICBC, and he had no instructions to that effect;

(d) that the practitioner had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions;

1. a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements (together, the 3 April 2016 statements):

(a) that his reference to ICBC Capital Pty Ltd was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd/Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, the practitioner was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd/Mr John Buckby;

(b) that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,

in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, the practitioner:

(i) well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr & Mrs Warming's solicitors, Cowell Clarke;

(ii) alternatively, acted with reckless disregard as to whether or not each or any of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Cowell Clarke.

The statements of facts and contentions by the parties in relation to Annexure B

1. In its statement of facts and contentions in regards to Annexure B (SFC-B) the Committee referred to paras 3 to 41 inclusive of Annexure A to this application as background to the events outlined below and submitted at paras 4 to 8 of SFC-B:
   1. By email sent on Monday 28 March 2016 at 6:06 am to Mr Oxlade with the subject title 'Freer' (Freer email), Mr Warming:

4.1 says that the sheriff will be evicting Mr Mark Freer's mother and father in the morning failing a last minute solution;

4.2 says that $100,000 would likely stop the eviction;

4.3 says that he is aware that [Mr Oud] holds $300,000 in trust which he believes is specifically for platinum;

4.4 asks Mr Oxlade to speak to Mr John Buckby, the director of Irongrow, to get his authority to use $100,000 of those funds, to be repaid once the MT103 clears;

4.5 if such authority is received, asks if Mr Oxlade could get confirmation that day on [Mr Oud's] letterhead saying he currently holds $100,000 in trust he can release immediately.

1. By a further email sent on 28 March 2016 at 2:31 pm to Mr Oxlade with the subject title 'Warming Bankruptcy - URGENT!!' (Warming bankruptcy email), Mr Warming:

5.1 refers to the bankruptcy proceedings against him and his wife being at 'critical point';

5.2 says that he and his wife have been ordered to file and serve an affidavit tomorrow (29 March 2016) to oppose the petition;

5.3 says that the 'the current registrar is tough' and the matter returns to Court on Monday 4 April 2016;

5.4 says that he hopes funds will arrive to resolve the claims against him that week;

5.5 says that he is going to try to resolve the matter for $200,000, but says that he has no credibility due to past failed attempts;

5.6 asks Mr Oxlade to get [Mr Oud] to send a letter tomorrow morning on [Mr Oud's] letterhead in terms that he sets out in that email, so that he can include the letter in the affidavit he has to file.

1. By email sent on 28 March 2016 at 5:23pm to Mr Warming in response to the Freer email (the Freer response), Mr Oxlade responds with details of the monies he is expecting to receive in the near future, relevantly including:

6.1 $300,000 from the MT103 which he says should clear by close of business tomorrow (29 March 2016);

6.2 around $500,000 being his share of the platinum deal with Mr Namah which he says will be transacted 'Thur/Fri'(31 March/1 April 2016), and states in relation to the CSG loan funds in the practitioner's trust account:

6.3 that he does not think they can 'blatantly misrepresent' the funds, as they are for a specific purpose;

6.4 suggests that 'given we don't need them until Thursday we could show them (but not use them)' (meaning the CSG loan funds) until he (Mr Oxlade) can put 'other funds in the [practitioner's trust] account';

6.5 asks Mr Warming to draft the letter he wants from [Mr Oud] telling him to 'be careful about how and what we say'.

1. Mr Oxlade then sent a further email to Mr Warming on 28 March 2016 at 5:27 pm in response to the Warming bankruptcy email, in which he refers to the Freer response as outlining the source of funds and states that he will get [Mr Oud] to prepare the letter set out in the Warming bankruptcy email in the morning.
2. Mr Oxlade forwarded the Freer email and the Freer response on to [Mr Oud] on 28 March 2016 at 7:45 pm stating:

'First email with the history and need for a letter before 10 am tomorrow (Adelaide time).'

1. In his proposed further amended statement of facts and contentions in relation to Annexure B (Oud ASFC-B), Mr Oud referred to paras 3 to 29 of Oud ASFC in which he responded to Annexure A of the Committee's application and submitted:
   1. he admitted receiving the emails set out in para 4 to 6 and 8 of the Committee's SFC-B, but denied having read the email chain which formed part of each email at any material time.
   2. he does not know and cannot admit para 7 of the Committee's SFC-B.

1. Once again Mr Oud relies on his alleged failure to read the email chain.
2. The Committee alleged at para 9 of its SFC-B and Mr Oud admitted (Oud ASFC-B para 5) that:

[Mr Oud] replied to this email from Mr Oxlade by an email sent on 29 March 2016 at 8:13 am, in which he asked Mr Oxlade to confirm that the MT103 would be transferred into his trust account 'today'. [Exhibit A page 563]

1. Mr Oud's evidence was that the first time he had any knowledge or awareness of Mr Warming was when Mr Oxlade telephoned him on the morning of 29 March 2016 (ts 113-114, 20 September 2018; Exhibit A page 56).
2. The fact that Mr Oud did not know Mr Warming and even have any awareness of him raises serious questions as to Mr Oud's motivation. It was obviously not because of any prior relationship with Mr Warming.
3. At para 10 of its SFC-B the Committee alleged:

By email sent on 29 March 2016 at 9:02 am to [Mr Oud], Mr Oxlade on-forwarded the Warming bankruptcy email and his response to it on 28 March 2016 at 5:27 pm and said:

'This is the one relating to John's Bankruptcy ....... Great Southern Plantation where we are offering $200K to wipe out $3m in a failed MIS!'

Mr Oxlade did not respond to [Mr Oud's] email inquiry seeking confirmation that the MT103 funds would be transferred to [Mr Oud's] account that day. [Exhibit A page 558]

1. Mr Oud admitted receiving the email set out in para 10 of the SFC-B, but denies having read the email chain which formed part of it at any material time (Oud ASFC-B para 6).
2. Once again Mr Oud relies on his alleged failure to read the email chain.
3. At para 11 of its SFC-B the Committee alleged:

By email on 29 March 2016 at 14.27 pm [Mr Oud] responded to the above email by saying that 'I am as always happy to assist ... However, the love is going only one way! You were supposed to have $10K deposited in my account and have those shares issued' and asked Mr Oxlade to 'attend to' those matters.

1. Mr Oud admitted para 11 of the SFC-B, and says further that the reference to the deposit of $10,000 to his trust account and the issue of shares related to the basis on which Mr Oud was prepared to act for Astra Far East Pte Ltd, a company he believed to be controlled by one of Mr Oxlade's associates.
2. Mr Oud denied that he was saying that he was happy to assist Mr Oxlade but that he wanted something in return. Mr Oud claimed that he was referring to something else (ts 101-102, 20 September 2018).
3. Mr Oud subsequently admitted that he wanted Mr Oxlade to deposit $10,000 into Mr Oud's account (ts 102, 20 September 2018).
4. The following exchange took place:

YOVICH MR: Because in return for you doing him this favour in relation to the Warming bankruptcy, you wanted him to do something that he had to do? --- That's not - that's not true.

So they were completely unrelated - - -? --- That's right.

- - - although they were in the same email? --- Yes.

And your offer of assistance was not contingent on Mr Oxlade putting the $10,000 into your account? --- Most certainly not.

You would have helped him anyway? --- Well, it was - I did assist in providing that letter, yes. But I - they - - -

Not the - not my question? ---They are two separate issues.

Two separate issues that you put in the same email - - -? ---That's right.

? --- That was just the - that was just a - a - it was - it was (indistinct) because he was - he had - I had - he was supposed to have done something in relation to something else, and he hadn't done it.

And you were taking this opportunity, when he was asking you for a favour about an unrelated matter, to remind him of a thing that he had to do for you; is that your evidence?---Well, I was reminding him that that was an agreement we had, yes.

And that you wanted him to fulfil that agreement; correct? ---Well, that was the intended - intention that he said he was going to do. That's correct.

I'm not asking about his intention, I'm asking about your intention, Mr Oud. Your intention was to remind him that he owed you $10,000; correct? --- He didn't owe me $10,000.

Or that he had to put $10,000 into your account? --- They were going to be funds on account of work to be - anticipated to be done. They were - - -

So you wanted him to - - -? --- They were trust funds.

1. Mr Oud had a financial interest in the funds being deposited into his trust account.
2. The exchange continued:

So at this stage, you knew that Mr Oxlade had a tendency to promise to do things and not do them? --- That's not correct.

Just this one thing, then - - -? --- No. There was - there was - - -

- - - that he had promised to do and hadn't done it?---There was only one other instance where I agreed to act on a case-by-case business for him in relation to a matter, and it - on that basis, these funds were going to be deposited on account of costs for anticipated work.

Okay. And so at page 89 of the (indistinct) document, you see the first page of this email chain; correct? --- It is, that's correct.

Which is the most recent of the emails; correct? --- That's correct.

And this is an email from Mr Oxlade to you on 29 March - - -? ---Yes.

- - - at 1.51, which appears to be earlier than your email, but that may be because he's in a different time zone? --- Probably. Yes.

And it's plainly a reply to your email because it says 're: Warming bankruptcy, urgent'; correct? --- Yes.

It has an attachment, being a payment authority letter to - that's the title of the attachment? --- That's right.

Which is a direct reference to your email, 'the love is going only one way'; correct? --- I presume so, yes.

Yes. It refers to Ian Nathaniel, which you had referred to in the - your previous email; correct? --- Yes.

It refers to Oxlade buying all of the shares back, which is a reference to shares that you wanted to have issued in your previous email; correct? --- No, that's not correct.

It's completely different, unrelated shares, is it? --- Well, I - I - well, I can't say whether they're related or not. I don't - - -

At the time that you got the email, you didn't think, 'What are those shares that he's talking about', though, did you? --- No, I didn't think that (indistinct)

You assumed that they were the shares that you had referred to in your email? --- No.

You didn't have any - you didn't think about it at all? --- No, I didn't.

Okay. Because it didn't matter to you whether Mr Oxlade kept his side of the bargain. You were going to help him in relation to Mr Warming anyway; correct? --- There was no relation between these two matters.

is also coincidental?---He is cross- he is cross-pollinating the various issues here. There was - I was acting in relation to one specific matter, and he was - I was just reminding him that he had to do what he said he was going to do.

In the context of him asking you for a favour? --- And he was - he was - this - no, no, it wasn't in the context of doing a favour. It wasn't in the context of a favour. It - it was - he had been harassing me to get these letters done to - for - for John Warming.

1. The email's content makes it plain that the issues were related. Mr Oud's answer is calculated to avoid the obvious implication arising from the email. It was a quid pro quo.
2. The exchange continued:

But this was not the first communication about John Warming that he had with you; correct? --- I had - I had a telephone conversation with him.

And you've made a file note of that telephone conversation? ---No, I didn't make a file note.

Not a file note of that one. All right. So this email on page 90, that he sends you about John's bankruptcy - go back to page 90? --- Yes.

Which says, "This is the one relating to John's bankruptcy", he's alluding to something he has already discussed with you; is it? --- No, I don't believe so.

All right. So this is the first communication he has had with you about John's bankruptcy? --- No. It was discussed with me about - on the phone, about getting a letter done for Warming.

All right. So his statement, "This is the one relating to John's bankruptcy" was not a surprise to you because you knew about John's bankruptcy from before this email was sent? --- Only one - I had a conversation with him, I believe, yes.

Okay. And your email in response did not, in any way, say or imply that you were prepared to help Mr Oxlade in relation to Warming, but you wanted something out of it? --- No. It wasn't - there were - I stress this point, that there were unrelated issues.

You've made - - -? --- I was just merely using the opportunity to point out to him that I had be doing work in relation to another matter, and that he said that there was going to be funds put into my account for anticipated work to be done.

I see? --- And those funds hadn't been transferred to my account, as he had alluded to.

Okay. Now - - -? --- This Warming - this Warming matter was just - was something else that he had requested assistance in regard to.

Okay. And attached to his email on page 89 is a document called Payment of Authority Letter to; correct? --- What page are you referring to?

89? --- Yes, but what letter are you - okay. Sorry.

His email, and the attachment? --- There is an attachment there. I can see that. Yes.

Yes. Now, you described that attachment in your letter of 12 May 2016 to the committee, to which this email chain was an attachment; correct? --- Yes.

And you say, at page 27 of the book of documents, go back to that, "Attached hereto, marked 'I' is a copy of the covering email and letter of authorisation." Do you see that bit in the middle paragraph? --- On page - - -

And so the letter of authorisation comes at the end of the email chain at page 93, doesn't it? --- There was an attachment with the letter, yes.

Yes. And you knew, on 12 May 2016, what that attachment was, don't you - didn't you? --- I told him.

No, no. It's about what you told the committee? --- Sorry, I'm not - I'm not sure what your question is, sorry. Can you repeat it?

All right. My question is this: the document on page 93, which you sent to the committee as part of this attachment I is the payment authority letter that was attached to Mr Oxlade's email, which is on page 89, isn't it? --- Yes, it is. Wait up. No. No, it's not.

No, it's not. Well, that's what you told the committee in your letter of 12 May 2016? --- Well, then I've been - I've been confused and it's not - it's not the letter.

YOVICH, MR: Now, Mr Oud, the upshot of the events of 29 March in relation to the remaining CSG funds was that you got what you were told was the final authorisation letter, which is the document on page 94? --- The final authorisation letter to disburse the funds, yes.

That letter did not say how much to pay to whom? --- No.

You got that information from Mr Oxlade? --- I did, yes.

And that information was that Mr Oxlade was to be paid $100,000? --- Correct.

And Mr Maiolo was to get about $115,000? --- That's right.

And it was a sheer coincidence that emails between you and Mr Oxlade on 29 March referred to you needing Mr Oxlade to deposit $10,000 into your trust account; correct? --- I didn't draw any connection at the time; correct.

And, in particular, you didn't say, 'I want $10,000, and you can pay it out of that 125'? --- There is no connection between that.

1. The Tribunal does not accept that it was just a coincidence. Mr Oud did not know Mr Warming. There was absolutely no reason to agree to send the letter other than as a favour to Mr Oxlade, in return for Mr Oxlade paying $10,000 to him.
2. At para 12 of its SFC-B the Committee alleged:

Mr Oxlade responded to the above email at 11.21 am on 29 March 2016 attaching a document titled 'Payment Authority Letter 2' (March 2016) and saying 'I am buying all the shares back and will have proof of funds this week to show them.'

1. Mr Oud admitted the email set out in para 12 of the SFC-B was sent, but denied knowledge of its contents (Oud ASFC-B at para 8).
2. The Tribunal rejects Mr Oud's plea that he did not know its contents.
3. In regards to the letter sent to the Adelaide Registry of the Federal Magistrates Court on 29 March 2016, the Committee alleged at paras 13, 14 and 15 of its SFC-B:

On 29 March 2016, [Mr Oud] cut and pasted Mr Warming's draft letter referred to in para 5.6 [of the Committee's SFC-B] onto his letterhead and, after making some amendments and additions, signed and faxed the letter direct to the Federal Circuit Court in South Australia (29 March 2016 letter).

The 29 March 2016 letter's contents, including its date and address, were as follows:

Creditors Petition John and Jennifer Warming ADG453/2015

I confirm that I am currently holding $300,000.00 cleared funds in my trust account to be released shortly upon settlement of a pending commodity transaction.

My client is aware of current bankruptcy proceedings against John and Jennifer Warming listed in the Adelaide Registry in the above proceeding and client is prepared to assist the Debtors position for reasons both personal and commercial.

Accordingly, I have been instructed to release upon settlement (scheduled within 14 days, likely earlier) a minimum of $200,000.00 to permit satisfaction of the Petition amount and to then negotiate a resolution of all claims maintained by the Petitioning Creditor.

[Mr Oud] had made three additions or changes to the letter from the text of Mr Warming's draft letter that he had cut and pasted from the email he received containing that draft:

1. he had added the date;
2. he had added the facsimile number for the Adelaide Registry of the Federal Magistrates Court; and
3. he had changed the third paragraph of the letter by changing it from two sentences in the Warming draft to one sentence, by deleting the full stop and the word 'Our' and adding the conjunction 'and' before the word 'client'.

1. In regards to his letter to the Federal Magistrates Court dated 29 March 2016, Mr Oud responded as follows:
   1. There was no connection between the $300,000 referred to in Mr Oud's letter to the Federal Magistrates Court dated 29 March 2016 and the $300,000 deposited to his trust account by Credit Solutions Group Pty Ltd which was the subject of Annexure A of the Committee's application.
   2. As at March 2016, Mr Oud understood that Mr Oxlade was attempting to obtain a loan of $300,000 from an international financier Rishi Levi (the Rishi Loan).
   3. The Rishi Loan, as Mr Oud understood it based on what he was told by Messrs Oxlade and Fiore, was to be a 'back-up loan' to pay for contingencies that might arise in respect to the purchase of the platinum the subject of Annexure A of the Committee's application.
   4. About mid-morning on 29 March 2016 Mr Oxlade telephoned Mr Oud and asked him if he had read his email (about his lawyer mate John Warming), which Mr Oxlade had sent Mr Oud the night before. Mr Oud said that he had not, and that all he had received was an email with the heading 'Freer'. Mr Oud said that he sent an email to Mr Oxlade in response to that email that morning.
   5. Mr. Oxlade then told Mr Oud that the email contained a draft letter that he wanted Mr Oud to send a letter on his behalf to assist Mr Warming's stave off bankruptcy proceedings. Mr. Oxlade said to Mr Oud that once the Rishi Loan settled he was prepared to release some of the Rishi Loan funds to bail him out.
   6. Fraudulently and with intent to deceive Mr Oud, Mr Oxlade:

1. told Mr Oud that that the funds had been sent and they would hit Mr Oud's account overnight and that these funds would be used to assist Mr Warming. Mr Oud said he did not know Mr Warming. 2. sent the Freer email and the Freer Response to Mr Oud;

1. led Mr Oud to believe ICBC Capital Pty Ltd was one of his solvent companies;

1. had caused Peter Fiore to send to Mr Oud an email sent by Mr Oxlade on 25 March 2016 at 4.17 am (SA time) attaching a copy of an MT 103 international bank transfer showing the transmission of the sum of $300,000, which Fiore sent to Mr Oud by an email on 25 March 2016 at 9.26 am, fraudulently intending Mr Oud to rely upon the MTR and believe that the MTR funds would be deposited in his trust account at the time the Federal Magistrates Circuit Court opened proceedings in the Warming bankruptcy hearing next morning. 7. Relying upon the truth of the statements by Mr Oxlade referred to in para 14 of the Committee's SFC-B, on 29 March 2016 at 5.20 pm WST in the belief that it was Mr. Oxlade's intention to assist Mr Warming with the settled Rishi Loan funds and that those funds would be deposited into his trust account at the time his letters would be read by the Federal Magistrate in Adelaide in the Warming bankruptcy proceedings, Mr Oud cut and pasted (with minor amendments) the draft letter referred to in para 13 of the Committee's SFC-B onto his letter head and urgently faxed it to the Federal Circuit Court Registry, in Adelaide. 8. Mr Oud admits paras 14 and 15 of the Committee's SFC-B and says further that the amendment referred to in para 15.3 namely deleting the full stop and the word 'Our' and adding the conjunction 'and' before the word 'client' provides weight to Mr Oud's contention that the letter was drafted in haste, because the purported amendments mean that the paragraph does not make sense.

1. Mr Oud was remarkably evasive when it came to whether or not he had read the email from Mr Oxlade. The email that Mr Oud subsequently cut and pasted from that email and sent to the Federal Circuit Court:

And so then you read the email; correct? --- (indistinct)

After Mr Oxlade said to you that he had sent an email about Mr Warming's bankruptcy - - -? --- Yes.

- - - which contained a letter that he wanted you to send, did you read the email that Mr Oxlade had sent you? --- I presume so.

Because it would make no sense for you not to read the email, would it? --- Well, I can't - I'm not really sure. I'm unsure what your (indistinct)

For one thing, Mr Oud, you don't have to follow me, Mr Oud; you just have understand my questions and answer them? --- But I'm not - I'm not - perhaps I'm not - I'm not zoned into what you're saying because I can't understand it.

You don't have to understand why I'm asking questions (indistinct)? --- I'm not asking - I'm not understanding - - -

After - my question is this - after you got Mr Oxlade's email did you read it? --- Well, I can't recall.

Okay. Mr Oxlade told you that it contained a letter he wanted you to send; correct? --- If that's what I put in my statement then it's correct.

And you put that in your statement two weeks ago, didn't you? --- Well, if it's written there; yes.

You wrote your own statement, didn't you? --- Of course.

And your recollection of events hasn't changed in the 13 days since you wrote it and filed it, has it? --- No, my recollection has not changed; no.

In fact that was the second version of that statement; the first one was 29 August, wasn't it? --- If you say so.

Okay. So in order to find out what letter Mr Oxlade wanted you to send for Mr Warming you would have to read the email that contained a letter, wouldn't you?---Not necessarily.

And - well, you would have to find the letter in the email chain, wouldn't you? --- Well, I cut and pasted the letter so - - -

And in order to cut and paste the letter you would have had to know where it was; correct? --- Well, I would have had to find the email to - yes.

And in order to find the letter in the email you would have had to read the email, wouldn't you? --- Not necessarily.

Otherwise you wouldn't know what to cut and paste? --- Well, it's fairly obvious there - it was a letter there cut and pasted.

And in order to find out why you were being asked to do this, you would have to read the email, wouldn't you? --- That's not correct; no.

No? You did not want to be informed about the reason for the email? --- It's not - no. It's not that I didn't want to be informed. It's just - - -

1. Mr Oud's assertion that he did not read the email which contained the letter he cut and pasted from is disingenuous.
2. The exchange continued:

You did not consider - - -? --- Mr Oxlade sent a lot of emails to me that were chain emails that were sometimes 20-25 pages long. I didn't - when I read the first email, it said it contained a letter that - a letter in there. I

would have found that email. It doesn't necessarily mean that I read the email. In fact, I'm almost certain that I didn't read the email - - -

This email chain at the time that Mr Oxlade sent it to you was three pages? --- But, as I was saying to you, Mr Oxlade would send not just emails like this. He would - this one in particular - but all his emails were 25 pages long, often containing irrelevant material that I didn't read. No.

All his emails were 25 pages long? --- Most of them were chain emails. Most of them were chain emails.

This one is three pages, Mr Oud? --- I did not read it. In answer to your question, I did not read it. I just cut and pasted the letter.

1. The Tribunal rejects Mr Oud's evidence that he did not read the email chain on the basis that it was too long. The chain was three pages. The Tribunal finds that Mr Oud did read it. The exchange continued:

And in doing so - you did read the letter that you cut and pasted, didn't you? --- Well, I did read it but not with any great detail - not enough detail, in hindsight. I admit that.

You say - in fact, you - before you sent it, you actually changed it, didn't you? --- I made minor variations but I always do that.

And in order to do that, you need to read the letter, don't you? ---But I scanned it. I'm not saying that I didn't read the letter.

Okay? --- I didn't read it enough - the degree of accuracy - I focused on parts of the letter rather than the whole of the letter.

So the letter that you were about to send to the Federal Magistrates Court in Adelaide under your signature and on your letterhead, you only read parts of? --- I'm saying that I didn't read it in enough detail - I didn't - I was focused on part of the letter - not the whole of the letter. In my mind at the time, I specifically noted that the payment was going to be made within 14 days of - and it was concomitant or dependent upon the commodity transaction being completed.

1. The letter is short. Mr Oud's evidence that he did not read the whole of the letter is preposterous. Indeed it is impossible to imagine how he could not read the whole letter. It was a letter he was sending with his name to the Federal Magistrates Court. Mr Oud lied when he said he did not read the entire letter which he had cut and pasted and made corrections to.
2. The exchange continued:

Mr Oud, at the time that you sent the letter, you did not know who ICBC Capital were, did you? --- Right. No. I did not.

You knew, however, that you didn't act for any entity called ICBC Capital, didn't you? --- That's correct.

You did not have any retained from ICBC or Oxlade in relation to the Warming bankruptcy, did you? --- But I had no reason to believe that - - -

My question was - - -? --- I just want to answer - go back to your first question.

HIS HONOUR: No. No. Mr Oud, I'm getting tired of having to tell you to answer the questions. It's not hard? --- But I wanted to answer the previous question. That's all.

Answer the question. Did you - the question is clear. Just answer it?---In relation to ICBC Capital, I did not believe - I believed it to be one of Warming's and I put that in one of my statements - - -

YOVICH, MR: At the time of the letter, you did not act for ICBC Capital? --- No. I did not.

So when you said 'I act for ICBC Capital' in the letter, that was untrue? --- Yes. It is untrue.

1. Mr Oud never acted for ICBC Capital. His statement that he did was admittedly untrue.
2. The exchange continued:

And you knew it was untrue when you sent it? --- That is - I would say that I wasn't - I did - when I copied the letter, I didn't read it with enough veracity. I regret doing that. I strongly regret - - -

My question - you knew - - -? --- Can I say - answer your question? I'm answering your question.

YOVICH, MR: You're not answering my question. Mr Oud, when you said - when you wrote "I act for ICBC Capital Proprietary Limited", you knew that it was untrue; correct? Because you did not act for ICBC Capital? --- Right. No. I did not act for ICBC Capital.

And so you knew that that part of the letter was untrue? --- I say that - I knew after the event that that's untrue. I didn't pay attention at the time that it was true or not. I didn't and that was my mistake.

So you did not care whether it was true or not? --- It's not that I didn't care.

You did not turn your mind to whether it was true or not? --- No. It's just that I was negligent in doing so (indistinct)

1. The Tribunal finds that Mr Oud knew that the statement that he acted for ICBC Capital was untrue when Mr Oud sent the letter.
2. The exchange continued:

HIS HONOUR: - - - you can leave that to the panel, Mr Oud, as to (indistinct)? --- I presume - I'm not trying to use legal words. I'm saying - what I'm saying is I cut and pasted something in a rush, in a hurry, under duress, in certain circumstances. I was focusing on one particular part of the letter. I admit that parts of the letter, in hindsight, were incorrect. I should have done better than what I did. What you're saying - at the time, I did not - no. I did not act for ICBC Capital.

YOVICH, MR: Now, having said all of that, Mr Oud, are you confident that the tribunal understands that that's your evidence? --- What do you mean by that?

Having said all of that, do you need to tell the tribunal that again? --- If you're being facetious, I don't appreciate it.

Not at all, Mr Oud. I'm just wanting to make sure that, when I ask you another question, you don't feel the need to repeat what you've just said because the tribunal already understands it?---Please don't badger me.

VINER, MR: I object. I object to - I object to that - to the (indistinct)

VINER, MR My learned friend is haranguing the witness with that comment.

HIS HONOUR: No. He's not haranguing the witness. This is a witness who, for the last hour, has persistently failed to answer the most simple of questions, which are obvious on the documentation, and it started off with "this

is the one range of John's bankruptcy". When the witness - any witness, let alone a legal practitioner - conducts himself like that and counsel cross-examining him tries to pin him down, that's not haranguing. What is happening is he's not answering the questions. He has been asked - we've now had a monologue from him and Mr Yovich is, as I understand it, simply trying to prevent another monologue. I have - and I'm sure the other members of the tribunal have no problems with that and, perhaps over lunchtime - you're not normally supposed to speak to your witness - - -

VINER, MR: No. I'm very conscious of my professional obligation.

HIS HONOUR: - - - but you might remind him of the duty to answer questions because I'm plainly not getting through to him and I'm a Supreme Court Justice. So, hopefully, a silk of your longstanding might get through to him. Mr Yovich.

YOVICH, MR: Thank you, your Honour. As at the time that you cut and pasted and edited the letter, you knew you did not act for ICBC Capital, didn't you? --- That's correct. Yes.

You also knew that, as at the time that you cut and pasted and sent this letter, you did not currently hold $300,000 cleared funds in your trust account, did you? --- That's correct.

To be used or released for any purpose; correct? --- I did not hold them at that time. No.

But you (indistinct) just said that you did? --- Yes. I can't even give you an explanation because you don't want to hear it.

I'm not asking for an explanation. Just - I'm just asking you to confirm the simple fact that you said that you held those cleared funds; correct?---That's correct. Yes.

When you knew that you did not; correct? --- At the time that I sent the letter, that's correct. Yes.

And in your letter to the LPCC on 12 July 2016 at page 192 of the documents - paragraph 35 - you said, at the representation, about $300,000 cleared funds being in your account - quote - did not reflect the discussions you had had with Oxlade before you sent the letter; correct?---Sorry. I'm just reading it.

Okay. Have you found those words? I'm pretty sure I've got them right. Just paragraph 35 and those words? --- I see.

Do you see those words ?--- I'm reading it. I'm sorry I'm not as quick as you.

All right. And when you wrote those words to the LPCC, those words were true? Correct? --- That's correct.

Nor did it reflect my actual belief and understanding at the time that the letter was sent.

So you knew, when you sent the letter, that that key part of it was untrue; correct? --- Yes. It - well, when you say 'untrue' - yes. Okay.

1. Mr Oud admitted he did not currently held $300,000 cleared funds when he sent the letter.

Yes. And you knew that, if anyone read that letter, they would be misled if they believed it was true; correct? --- No.

No. You thought that someone who read a letter from a solicitor would not believe it's true?---Well, if someone read it was true, then they would believe that - can you repeat that question. Sorry, sir.

Certainly. You knew that if someone read the letter and believed that you were telling the truth they would be misled. Correct? --- At what point in time are you saying this? At the time?

At the time that they read the letter? --- At the time that they - they read the letter I anticipated the funds were going to be in the account.

If someone read the letter they would be misled because at the time you wrote the letter the money was not there? --- No.

No. Because you've referred to this in your witness statement, haven't you? What you've effectively said is, 'I expected by the time anyone read the letter the following morning it would have become true'? --- That's right. That's correct.

Okay. But if someone read it that night they would have been misled? --- Yes.

And heaven forbid that people in court registries and judicial officers sometimes work after hours, don't they? --- Please don't talk to me in that way, please.

Is the answer to my question - - -? --- I'm not a child. I - I - - -

Is the answer to my question true or not? --- Well, I - I - is true? It's possible, yes, that's true.

All right. And in any event, in order to be sure that no one would be misled all you had to do was say what the truth was which was that you anticipated that there would be $300,000 in cleared funds in your account that night; is that correct? --- That would be - that would have been a prudent course of action. Yes.

1. The 28 March 2016 was Easter Monday. The 29 March 2016 was a Tuesday. Mr Oud's statement that he expected the funds to be in the account overnight does not make the letter true. Letters are read on the basis of the facts at the time they are sent. In any event the letter was dated 29 March 2016, not 30 March 2016, the following day. The Tribunal does not accept Mr Oud's evidence. Mr Oud lied to the Federal Magistrates Court in his letter. The exchange continued:

That would have been telling the truth, wouldn't it, Mr Oud? ---It wasn't my intent to deceive anybody. I did so copy and paste. I should have read the letter correctly.

You did read the letter. You knew what it said and you knew it wasn't true. Correct? --- I - I deny that I intended to mislead or deceive anybody.

I know you deny that but you read the letter before you sent it and you knew its contents were not true in that respect. Correct? --- That's not a true statement that reflects - accurately reflects the situation.

Now, if the funds did not go into the account overnight then the letter would continue to be untrue, wouldn't it? --- That's correct. Yes.

And the funds did not go into the account that night, did they? --- No. They did not.

And the next morning you knew that the funds had not gone into the account overnight, didn't you? --- No, I was told that they didn't arrive; no.

So you did know that they hadn't gone into the account? ---That's correct. Yes.

So you knew then that anyone who read the letter that morning would be misled? --- I didn't - well, that's correct. Yes.

And so you knew that your letter, which had started out untrue, was still untrue? --- No, because events of the situation overtook the matter at that point.

That's not an answer to the question, Mr Oud. My question was you knew that the letter that you had written, which was untrue when you wrote it, was still untrue the next morning? --- I did - I'm trying to answer this question.

Is the answer 'yes'? --- Well, if - if that was the case then yes, yes. That's correct. Yes.

1. The fact that Mr Oud did nothing on the morning of Wednesday 30 March 2016 when he knew the funds were not in his account evidences that he did not believe that the funds would be in his account. If he had a genuine belief that the funds would be in, he would have contacted the Court. He did not.
2. The exchange continued:

And you knew it was the case, wasn't it? --- Well, I did know. Yes.

And you know that the Legal Profession Conduct Rules require that a lawyer who misleads a court even innocently and finds out they've misled the court has to correct that as soon as they find out. Correct? --- I understand that. Yes.

And you understood that in March 2016, didn't you? --- Well, I would have understood that. Yes.

Yes. And you didn't correct the error, did you? --- I didn't have an opportunity.

All you had to do was send an email saying what the truth was? --- I - - -

Correct? --- What had happened - can I say what happened?

HIS HONOUR: Might as well, because I don't understand your answer.

HIS HONOUR: You've sent a letter. The letter was sent by email, was it? --- That's right. Fax. Fax.

By fax. So you didn't have an opportunity. Why didn't you have an opportunity? Was the fax machine not working or - - -? --- No, no.

- - - was there some - was there a communications problem? ---No. There was no communications problem.

1. Mr Oud offered no explanation at the time or at all as to why he 'did not have an opportunity' to correct the error. There is no evidence that he took any steps to correct the error at the time. The following exchange demonstrates that Mr Oud had no basis for a belief that the funds would be deposited overnight.

We probably all are? --- Well, I'm getting confused of what actually happened now.

YOVICH, MR: Well, I will move on to the next thing. What I'm asking now about the source of your belief that the $300,000 was going to be in there overnight. Now, the person who told you that was Mr Oxlade. Correct? --- Yes. That's correct. Yes.

And he told you that in the telephone conversation? --- Yes.

And he told you the source of those funds was the Rishi loan? --- That's right.

Now, this was not the first time you've heard about the Rishi loan, was it? --- No.

In your letter to the committee of 12 July at page 189 - if you can go to that. You said at paragraph 20 that Mr Oxlade told you once the Rishi loan settled he was prepared to release some of the Rishi loan funds to bail Mr Warming out?---That's right.

And he said that, 'The funds had been sent and they would hit my account overnight'? ---Yes.

And these were the funds that you were relying upon to turn your false letter into a true letter? --- That's correct. Yes.

Okay. Now, you've told us in your witness statement that you did not read Mr Oxlade's email chain until all these events were over and in preparation for the hearing, in essence? --- Yes. That's correct.

You didn't read it at the time? --- Yes. That's correct. Yes.

And in your witness statement you say that that evidences the dishonest nature of Mr Oxlade, in your mind. Correct? --- I'm not following. Sorry.

All right. You say in your email - in your witness statement, I think, that the email evidences the dishonest nature of Mr Oxlade? --- Because there's discussions there - - -

And Mr Oxlade sent you that whole email chain, didn't he? ---He did, yes.

He was apparently prepared for you to read it? --- No.

No. He wasn't. He sent it to you in the express expectation that you wouldn't read it, did he? --- There was - I can't comment why he sent the - I can't comment on that. Sorry.

- - - when a person sends you an email it is reasonable to assume that they expect you to read it - - -?---No. That's where - - -

- - - as a general proposition?--- - - - you have to be specific here. When I get an - no. The - - -

Just answer the general proposition? --- I'm - I am answering your question.

Do you agree with the general proposition - - -? --- No. I disagree with that - that statement.

All right. So what your evidence is is that as a general proposition when someone sends you an email they shouldn't expect that you would read it? --- There's an expectation that you read the first email. Yes.

And when a person sends you an email chain they are certainly prepared for you to read the whole email chain, aren't they? --- I don't - I - I don't think there's an intention there for that to happen.

If they positively don't want you to read a whole email chain they won't send you the whole email chain? --- I think that that's - you're implying things that just can't be inferred.

Okay? --- I would say - I would go further than that and say that when - I always read the emails that I get. I rarely - - -

Except Mr Oxlade? --- - - - if never - no matter what email I get I don't past the email that I'm being dealt with. And this was the case in this instance.

1. Mr Oud's evidence that he only read the first email in a chain is another lie. An email in an email chains is, in general, often difficult to understand without reading the previous email or emails.
2. The exchange continued:

Well, let's now talk about communications about the Rishi loan, Mr Oud. Go to page 549 of the book of documents, if you would, please? --- Yes.

And he says in that email a number of things, one of which is:

...and overlaying all of this is another 300K I raised from Rishi Levi going in today.

So on 10 March 2016 Mr Oxlade is saying that he has raised $300,000 from Rishi Levi and it was going in that day? --- That's what it says. Yes.

And that's sent at 6.13 am on 10 March. So it's going in on 10 March. Correct? --- Yes.

It didn't go in on 10 March though, did it? --- No.

Well, that's just - let's just make one thing clear. $300,000 from Rishi Levi never went into your trust account ever, did it? --- No. It didn't.

Okay. Go to page 550. Later on that day, Mr Oxlade sends you another email letter - email - - -? --- Yes.

Rishi instructing his Singapore investor to send direct your trust account.

And that's the $300,000, isn't it? --- That would be, yes.

Okay. And it didn't go in then; correct? --- I don't think it says that - he says it's sending the process.

All right. Page 551. Mr Oxlade emails you again a couple of hours later on 10 March - - -? --- Yes.

So the Rishi money was still coming in, but it hadn't come in? ---That's right.

553. 12 March. Email from Mr Oxlade to you? --- Yes.

The first part of it is about the Irongrow loan? --- (indistinct) it's not - is it to me? It's not to me.

Colin Oxlade to Nicholas - - -? --- It is. Yes, it is. Sorry.

It's all right. The first part of it is about the John Buckby Irongrow, 300k? --- Yes.

The second paragraph is about him contacting Cacciola; yes? ---Yes.

On the Rishi Levi front, he has arranged 300k for me and I need to get to Sydney tonight -

... and these funds will be available Monday morning.

And as you see from the top, this is an email sent on the Saturday? --- 'Not guaranteed yet'.

These funds will be available. Waiting for his call to guarantee the funds.

? --- 'Not guaranteed yet, but I'm waiting for his call to guarantee the funds'.

You read all that at the time? --- Yes, I would have read that.

Okay. So then we go to page 527? --- We're going back, are we?

So not in time. Do you see this is your file note? --- Yes.

13.3.2016. So that's the day after the last email I just said? ---Yes.

Loan from Rishi has been negotiated. A few things still to finalise.

These funds were to make up the rest of the deposit on a platinum.

Best not for me to contact him because it may upset applecart.

ie, Oxlade will keep you informed? --- That's right.

You didn't think it was suspicious that Mr Oxlade didn't want you to contact Mr Levi? --- No, not at all.

But he's still promising that the Rishi funds are coming? --- Yes, that's correct.

Email from Mr Oxlade to you and Peter Fiore? --- Yes.

And paragraph - this email you would have read because it was an email, regardless of whether there was a chain; correct? --- It was the first email, yes.

Yes. Which it appears to be. Go down four paragraphs to the one starting:

Very straight forward. Wait for me to get to Sydney and do another 300k with Rishi, which has been confirmed this morning.

Money getting sent from Dubai late this afternoon via SWIFT to Nick's trust account of which I have control over.

Okay. So on 15 March, Mr Oxlade is promising that the money from the Rishi loan will be getting to your trust account that afternoon, isn't he? --- Yes.

I need 3k to get to Sydney for a few days to get this 300k done tonight and some basic walking-around money.

So Mr Oxlade needs to borrow money for his basic living expenses? --- I can't comment in relation to that.

All right. Did you draw any conclusions from that about Mr Oxlade's solvency? --- No.

Or about whether the money would be in your trust account the following day? --- No.

So that email did not lead you to believe that the $300,000 would be in your trust account late this afternoon? --- No.

And it wasn't in your trust account that afternoon, was it? --- No.

And the sender is the person sending the money? --- I presume so.

And this means that the sender has to reconfirm before the beneficiary will get credited? --- I can see that it says that.

And if we go to page 555, which is an email from Fiore dated 25 March forwarding to you a copy of the MT103 SWIFT transfer - - -?---That's right.

...and I am settling on the (indistinct) platinum next week with you, do you have two to three k left out of your advance to cover me for a few days.

I'm not asking you to comment; I'm just asking you to read what's written there? --- I - yes, I read that. Yes.

And you did read it when Mr Fiore sent it to you? --- Well, not - not necessarily. Not necessarily, no.

You were passionately interested in these funds arriving in your account, weren't you? --- Not - not - I wasn't interested in - in Colin Oxlade's personal circumstance.

- - - to Mr Oxlade's financial reliability at any point? --- No, I did not.

Okay. So, then, against the background of all of those messages about the Rishi loan, your evidence is that on 29 March when Mr Oxlade called you and said that the Rishi loan funds would settle that night, you believed him? --- On the basis of that SWIFT, yes.

Despite all of the - well, the SWIFT had been sent - - -? --- It takes - it takes - - -

- - - days ago? --- It takes time to get that done. It doesn't - - -

Money getting sent from Dubai late this afternoon via SWIFT.

? --- The - the SWIFT copy is - is - is more persuasive than anything Mr Oxlade might say.

And the SWIFT copy was dated 20 March - - -? --- That's right. And - - -

- - - 2016? --- That's right. And these - these international SWIFTs follow a process, of my understanding, where it - it can take anywhere up to two weeks for the funds to be transferred.

- - - about which Mr Oxlade said on 25 March it will settle in a few days, led you to believe that 100 per cent of the money would be in your account overnight on 29 March? --- Because, as I said - - -

And that's why - that's your evidence. That's what you believed? --- I believed that, yes.

It wouldn't settle on the 30th or the 31st; it would settle that night? --- No. I believed it was going to be there overnight, yes.

1. The Tribunal rejects Mr Oud's evidence that he believed the funds would be there overnight. There was a history of Mr Oxlade promising funds that did not arrive on time or at all.
2. The exchange continued:

And when it wasn't overnight, you still believed it would be there? --- Until told otherwise, I believed it was coming, yes.

And we will get to you being told otherwise in a moment, but on the 30th it didn't arrive; correct?---No, it wasn't there. No.

So your letter to the Federal Magistrates Court was still untrue? --- Yes.

And you didn't correct it?---No, I didn't correct it.

And on the 31st, the money hadn't arrived?---Can I just vector in. When was Easter around that point? Is - is that Easter? I'm just curious.

30 March was a Wednesday?---Right. And is that prior to Easter or after Easter?

And the 31st was a Thursday - of March - and the money still wasn't there; correct? -- -Correct.

And your letter was still untrue? --- That's right.

And you took no steps to correct it? --- No, I didn't.

And the same was true on 1 April, the Friday; correct? --- Yes.

And then on 3 April you changed part of what that letter had said after calls from - it was Oxlade and Warming; correct? ---Yes.

And that's when you sent the letter to Cowell Clarke? --- That's right.

Because it had been pointed out to you that ICBC was in liquidation? --- Yes. Well - - -

And so you had to change that lie? --- I reject - it - it's not a lie.

When you were working for ICBC Capital? --- It wasn't a lie.

1. At para 16 of its SFC-B the Committee alleged and Mr Oud admitted (Oud ASFC-B para 16A) that:

In an email sent to Mr Oxlade on 29 March 2016 at 5:25 pm and copied to Mr Warming and Dr Fiore, [Mr Oud] confirmed that he had sent the 29 March 2016 letter.

The 29 March 2016 letter contained statements that were false and misleading in that:

1. [Mr Oud] did not act for, and had never acted for, ICBC, which was in liquidation as at 29 March 2016;
2. as at 29 March 2016, the firm did not hold $300,000 in cleared funds in its trust account;
3. as at 29 March 2016, the firm did not have instructions from ICBC to release a minimum of $200,000 (once the platinum deal was settled) to satisfy the amount owing under the creditor's petition.
4. Mr Oud admitted para 17 of the SFC-B above but denied intentionally deliberately making false and misleading statements when he faxed the letter (Oud ASFC-B para 17).
5. At paras 18-20 of its SFC-B the Committee alleged:
   1. On 30 March 2016, [Mr Oud] transferred the remaining CSG loan funds ($125,000) out of the firm's trust account, leaving an overall total of $13,662.80 in the firm's trust account.
   2. By email sent to Mr Oxlade on 30 March 2016 at 10.58 pm, [Mr Oud] enquired as to the position with the MT103, and saying 'give me the black & white please'.
   3. On 31 March 2016, [Mr Oud] spoke to Mr Oxlade who told him that he had decided to cancel the Levi loan because it was too expensive, and that he intended to use the CSG loan funds to assist Mr Warming once the platinum deal had settled.
6. Mr Oud admitted para 18­20 above except to say the loan was not with 'Levi' but 'Rishi' and says further that the fact that that he was actively following up the transfer of the funds into his trust account to ensure that Mr Oxlade could meet his commitment to assist Mr. Warming as was Mr Oud's understanding that it was always Mr Oxlade's intention (Oud ASFC-B para 18).
7. At para 21 of its SFC-B the Committee alleged:

[Mr Oud] took no steps to inform the Federal Circuit Court of the true position with respect to the matters referred to in paragraph 17 [of the SFC-B] above.

1. Mr Oud admitted para 21 but said that the period after the letter was sent over the Easter holiday period provided limited opportunity to take steps to inform the Federal Circuit Court (Oud ASFC para 19).
2. The letter was not sent over the Easter holiday period.
3. At para 22 of its SFC-B the Committee alleged:

Mr Warming sent an email to [Mr Oud] (copied to Mr Oxlade) on Friday 1 April 2016 at 11.24 am, in which he told [Mr Oud] that his bankruptcy hearing was on the following Monday, that 'it seems' ICBC had been wound up and that there may have been a mix up, and saying that this had caused major problems. In the email Mr Warming asked [Mr Oud] to 'clarify and if necessary send a corrective email'. He asked for an urgent response and said that [Mr Oud] could call Mr Oxlade if need be.

1. Mr Oud admitted receiving the email referred to in the SFC-B para 22 on Friday, 1 April 2016 but said that he did not recall reading the email at the time and did not act on it nor did he know of any problems caused by ICBC. Mr Oud said further that on the weekend of 2 and 3 April 2016 that he was holidaying in the South West of Western Australia it being part of the Easter/School holidays. He says that he was not contactable on either day. Mr Oud says that over that period he had a number of missed calls from Mr Oxlade and a message to send a corrective letter to rectify incorrect statements that were contained in the letter dated 29 March 2016. Mr Oud said that he did not receive the messages to call Mr Oxlade until Sunday evening 3 April 2016 and due to the urgency of the request he went straight to the office to deal with this request after travelling five and a half hours from the Bridgetown, South Western Australia. Upon reaching the office (on the way to another private function that he was late for), Mr Oud said he telephoned Mr Oxlade and informed him that he was in a rush, because he had another commitment to get to (Oud ASFC-B paras 20-22). The fact that Mr Oud may have been in a rush is irrelevant.
2. At para 23 of its SFC-B the Committee alleged:

On 3 April 2016, [Mr Oud] spoke to Mr Oxlade regarding the reference to ICBC in the 29 March 2016 letter, and Mr Oxlade dictated a letter to him for him to send to Cowell Clarke.

1. Mr Oud admitted para 22 and 23 of the SFC-B and said that Mr Oxlade did not dictate a prepared letter to him but believing Mr Oxlade and relying upon what he told him, he typed the letter to Mr Warming's solicitors while Mr Oxlade was on the phone.
2. At para 24 of its SFC-B the Committee submitted and Mr Oud admitted in relation to the Cowell Clark letter (Oud ASFC-B para 24) that:

On 3 April 2016, [Mr Oud] prepared and sent a letter to Cowell Clarke in the terms as dictated by Mr Oxlade (3 April 2016 letter), which said:

Creditors Petition: John and Jennifer Warming ADG453/2015

I refer to my correspondence to the Court dated 29 March 2016 ('my Letter').

It has been drawn to my attention that in my Letter I referred to the company ICBC Capital Pty Ltd. This was an administrative error caused by cutting and pasting from earlier correspondence.

The trust funds are in fact held on behalf (sic) Irongrow Corporation Pty Ltd/Mr John Buckby an unrelated company.

I apologise for the confusion this error has caused.

The 3 April 2016 letter contained statements that were false and misleading in that [Mr Oud] was not holding any trust funds on behalf of Irongrow/Mr John Buckby in his firm's trust account, and in that it said that the substance of the 29 March 2016 letter was otherwise correct, when it was not.

1. Mr Oud denied that the statements contained in the Cowell Clarke letter were deliberately false and misleading as alleged in para 25 of the SFC­B. Mr Oud relied upon the honesty and truth of Mr Oxlade's instructions (Oud ASFC-B para 25).

1. In regards to the Federal Court Registry letter of 29 March 2016, the Committee submitted the following contentions at paras 26-38 of its SFC-B that:
   1. [Mr Oud] knew when he sent the 29 March 2016 letter that he did not act for ICBC in any capacity, and that he never had.
   2. [Mr Oud] knew when he sent the 29 March 2016 letter that he was not holding $300,000.00 cleared funds in his trust account on behalf of ICBC or at all.
   3. [Mr Oud] knew when he sent the 29 March 2016 letter that he did not have instructions or authority from ICBC or any other person or entity to release any money then in his trust account to permit satisfaction of any of the debts of either Mr or Mrs Warming.
   4. [Mr Oud] knew or believed when he sent the 29 March 2016 letter that it would be read by all or some of the following people:

29.1 a judicial officer of the Federal Circuit Court;

29.2 creditors of Mr and Mrs Warming who had brought bankruptcy proceedings against them;

1. [Mr Oud] knew or believed when he sent the 29 March 2016 letter that its contents, which he knew were false, were material to the bankruptcy proceedings against Mr and Mrs Warming.
2. [Mr Oud] also knew or believed when he sent the 29 March 2016 letter that some or all of the people who read the letter would or might rely on its contents as being true.
3. [Mr Oud], in the 29 March 2016 letter, sought to mislead anyone who read the letter, and particularly the Federal Circuit Court in Adelaide, Mr and Mrs Warming's creditors and any solicitors acting for the creditors, in order to help Mr and Mrs Warming avoid or delay the legal consequences of the bankruptcy petition against them, by representing that he had cleared funds in his trust account that were available to Mr and Mrs Warming to satisfy their creditors' claims.
4. Alternatively, [Mr Oud] was at least recklessly indifferent as to the truthfulness of the contents of the 29 March 2016 letter and as to the consequences of sending it to the Federal Circuit Court in Adelaide under his signature and on his firm's letterhead.
5. [Mr Oud's] conduct in so doing, whether knowingly or recklessly:

34.1 constituted a substantial departure from the standards of conduct reasonably expected of a practitioner;

34.2 fell short, by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence;

34.3 would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence;

1. On 3 April 2016, when he sent the 3 April 2016 letter, [Mr Oud] knew that his reference in the 29 March 2016 letter to ICBC had caused 'major problems' in relation to Mr and Mrs Warming's bankruptcy.
2. [Mr Oud] also knew that he was not holding any trust funds on behalf of Irongrow/Mr John Buckby in his firm's trust account, that the total amount of funds in his trust account was nowhere near $300,000, and that he was not authorised to release any money in his trust fund in satisfaction of debts owed by Mr and Mrs Warming.
3. The contentions set out at paragraphs 29 to 34 [of the Committee's SFC-B] apply equally to the 3 April 2016 letter, and [Mr Oud] engaged in professional misconduct when he sent the 3 April 2016 letter to Cowell Clarke.
4. [Mr Oud's] conduct in sending the 29 March 2016 letter and the 3 April 2016 individually and cumulatively constitute professional misconduct.
5. In relation to the Federal Court Registry letter of 29 March 2016, Mr Oud contended that:
   1. He was duped by the fraudulent and deceitful conduct of Mr Oxlade in writing and sending the Federal Court Registry letter;
   2. He continued to be duped by Mr Oxlade into believing he was transmitting or causing to be transmitted into his trust account funds which would satisfy the representation Mr Oxlade caused Mr Oud to make in the Federal Registry letter;
   3. Notwithstanding that he was duped by Mr Oxlade as aforesaid, Mr Oud admitted in hindsight he should have better turned his mind to the content of the Federal Court Registry letter and considered it in a meaningful way. If he had done so, the inaccurate statements contained therein would have been corrected or at the very least clarified thus ameliorating the discrepancies contained therein; and
   4. Notwithstanding that he was duped by Mr Oxlade, Mr Oud admitted he negligently failed to give due care and attention to the content of the letter.

1. Mr Oud was not duped by Mr Oxlade. It was Mr Oud who knew that he did not have cleared funds in his trust account. It was Mr Oud who knew of the history of Mr Oxlade's promises. It was Mr Oud who took no steps to advise the Court that the funds had not arrived.
2. Mr Oud further contended that at the time he faxed the letter to the Federal Court Registry, he was of the belief that the Rishi Loan funds were on the way, as Mr Oxlade had forwarded to him a copy of a document showing a MT103 international bank transfer showing this to be the case and that these funds would be in his trust account prior to the letter being received by the Federal Court Registry. In sending the letter to Federal Court Registry, Mr Oud contended that he did so in the belief that:
   1. ICBC Capital Pty Ltd was one of Mr. Oxlade's solvent companies;
   2. at least $300,000 of funds were going to be deposited in his trust account overnight before the letter would have been read by the Federal Court Registry it being faxed to the Registry in Adelaide after it had closed;
   3. that the release of the funds was dependent upon the settlement of the platinum transaction; and
   4. that Mr. Oxlade had a genuine intention to make funds available to assist Mr. Warming.

1. Mr Oud contended that he did not seek to mislead anyone who read his letter to the Federal Court as alleged in para 32 of the SFC-B or send it recklessly and indifferently to its truthfulness as alleged in paras 33 and 34 of the SFC-B (Oud ASFC-B para 31).
2. The Tribunal finds that Mr Oud knew the contents of his letter to the Federal Magistrates Court was false and misleading. Mr Oud was subjectively aware that the contents of the letter were false and misleading. Mr Oud's subjective intent was to make false and misleading statements when he faxed the letter.

1. In relation to the Cowell Clarke letter of the 3 April 2016, Mr Oud contended that:
   1. he was further duped by the fraudulent conduct of Mr Oxlade into writing and sending the Cowell Clarke letter;
   2. having been duped by Mr Oxlade, Mr Oud nevertheless accepted that his actions in typing the Cowell Clarke letter while it was being dictated over the phone were similarly careless and negligent; and
   3. being duped by Mr Oxlade's fraudulent conduct, he was led to believe and he understood at the time that it was Mr Oxlade's intention to assist Mr Warming with his bankruptcy from funds that were imminently to be deposited in Mr Oud's trust account, initially from the Rishi Loan, and then the settlement funds from the Irongrow / Platinum deal (but not the $300,000 which had been borrowed from Credit Solutions Group Pty Ltd.

1. In conclusion, Mr Oud contended that there were other mitigating circumstances occurring, at the time of sending the Federal Court Registry letter and the Cowell Clarke letter which when considered together with Mr Oxlade's fraudulent conduct should be regarded as extenuating, namely, that he was tired, stressed, time pressured; it was the Easter holiday period; he was dealing with serious personal family issues in respect to his eldest daughter and was not in a proper state of mind to have made considered judgments about Mr Oxlade's conduct and his urgent requests that he write the letters that Mr Oud did to the Federal Magistrates Court and Cowell Clarke. (Oud ASFC-B para 35)
2. In cross-examination the following exchange took place:

YOVICH MR: And when it wasn't overnight, you still believed it would be there? --- Until told otherwise, I believed it was coming, yes.

And we will get to you being told otherwise in a moment, but on the 30th it didn't arrive; correct? --- No, it wasn't there. No.

So your letter to the Federal Magistrates Court was still untrue? --- Yes.

And you didn't correct it? --- No, I didn't correct it.

And on the 31st, the money hadn't arrived? --- Can I just vector in. When was Easter around that point? Is - is that Easter? I'm just curious.

30 March was a Wednesday? --- Right. And is that prior to Easter or after Easter?

And the 31st was a Thursday - of March - and the money still wasn't there; correct? --- Correct.

And your letter was still untrue? --- That's right.

And you took no steps to correct it? --- No, I didn't.

And the same was true on 1 April, the Friday; correct? --- Yes.

And then on 3 April you changed part of what that letter had said after calls from - it was Oxlade and Warming; correct? --- Yes.

And that's when you sent the letter to Cowell Clarke? --- That's right.

Because it had been pointed out to you that ICBC was in liquidation? ---Yes. Well - - -

And so you had to change that lie? --- I reject - it - it's not a lie.

When you were working for ICBC Capital? --- It wasn't a lie.

That falsehood? --- I admitted that that - that was incorrect, I think, yes.

But you didn't find out that you had been caught in it until the Sunday? --- I was relying on what Colin Oxlade - - -

And when you were told something different you changed it? --- I - I did. Well, I did, because I was told by Warming. Yes.

VINER, MR: Well, I object to my learned friend using the word 'lie'.

YOVICH, MR: You did not change the statement about the $300,000.

HIS HONOUR: Just a minute, Mr Yovich. He's entitled to put that it's a lie.

YOVICH, MR: I will rephrase, your Honour. I think the tribunal gets it.

HIS HONOUR: I mean, the untruth - because it is being put in this case is, without question, that this was a deliberate untruth, which constitutes a lie.

VINER, MR: Well, with respect, I would have to check the application that "lie" does carry the connotation that it's an intentional untruth, as distinct from the fact that something is not true.

YOVICH, MR: And that, indeed, is our case. And on 3 April you sent the Cowell Clarke letter? --- I did send the letter, yes.

And in that letter you said that the balance of the letter you sent to the Federal Magistrates Court was true, didn't you? --- That's correct. Yes.

And by then Mr Oxlade had told you that he wasn't even pursing the Rishi loan any more because it was too expensive, hadn't he? --- He told me that. Yes.

He told you that before you sent the Cowell Clarke letter; correct? ---I would have to check the sequence of events, but I believe so.

And he told you that the platinum deal would be settling soon and there would be ample money from that; correct? --- That's right.

And you knew that the Federal Court - the letter to the Federal Court said there was $300,000 cleared funds in your account; correct?---When I say I knew, I - - -

You sent the letter? --- - - - I don't necessarily agree with that statement.

You hadn't forgotten, had you, what you said? --- Forgotten in what sense?

Forgotten the letter that you had sent on 29 March? --- I wasn't - I - I wasn't focusing on that. That's the point I was trying to make.

You were not focusing on the contents of the letter that you were reaffirming was true when you sent the Cowell Clarke letter. Is that your evidence? --- I was - I was still of the belief that - that the - the funds were going to be there.

HIS HONOUR: So what page is that again, the Cowell Clarke letter, Mr Yovich?

YOVICH, MR: - - - in one of the places, your Honour.

HIS HONOUR: It's all right. Well, I (indistinct)

YOVICH, MR: I will make sure Mr Oud has got it. I don't want to be unfair to him.

YOVICH, MR: Do you see that letter at 576? ---Yes, I do.

Written by you? --- It was - it was dictated to me, yes.

You refer to your previous letter of 29 March 2016; correct? --- I do.

You say the trust funds are in fact held on behalf of Irongrow and Mr Buckby? --- I said that, yes.

That's what the letter says that you wrote and signed? --- Well, it was dictated to me, yes. And I - I wasn't - yes. That's - - -

But you wrote down the words that were dictated to you, didn't you? ---I did.

Knowing that there were no trust funds in your account for Irongrow; correct? --- At that point in time, no, there were no trust funds.

And you then say - or the letter then says, which you wrote and did not change, 'The substance of my letter is otherwise correct', didn't you? --- That's what I've just - if that's what it says there. Yes.

And you said it there, because you typed it? --- Yes, as dictated to me.

And when you typed it you knew the words you were typing? --- Well, I typed it. Yes.

And when you typed it you knew the words you were typing, didn't you? --- Well, that's a loaded question. Did I know the - I knew I was typing those words, yes.

Thank you. And you knew those words were untrue? --- Well, I was aware that - that there was no funds in my trust account at that point. Yes.

And therefore the words were untrue? --- Well, by definition of that they're untrue. Yes.

You said that you did not intend to mislead or deceive anyone? --- No.

But you expected the letter to be read; correct? --- I expected the letter to be read. Yes.

You've said in correspondence with the committee that you felt the reason for sending it was that you felt for someone in Mr Warming's position; correct? --- That's why I agreed to send this - the letter, because of the mistakes that were in the first one.

And therefore that, in sending the letter, your motivation was to help Mr Warming; correct? --- My - my motivation was to express the fact that Colin Oxlade was going to help Mr Warming.

And that you were helping Mr Oxlade help Mr Warming by sending this letter as a solicitor? --- I was just correcting - well, I - I was correcting a letter that - that had mistakes in it. I didn't refer back to the other letter. I should have. It's a debacle. I should have done that.

You wanted people who read your letter to believe it was true, didn't you? --- Well, did I want people to believe that it was true? My intention was to correct it - to correct the mistakes in the other letter.

And therefore that people reading the letter would say, 'There are mistakes in the earlier letter. If we put those aside, this letter is true'? --- There were funds going to be made available. Yes.

Answer to a different question, Mr Oud. Your letter says the trust funds are in fact held by you; correct? --- Yes.

And the substance of your previous letter, which says the trust funds are in your account, is otherwise correct. That's what the letter says? --- It says that. Yes.

And you knew it said that? --- Well, I knew that - that there were funds coming into my trust account. I believed that to be the case.

Different question. You knew that the letter had said they were there, didn't you? --- I believed that they were going to be there, yes.

1. Further, Mr Oud's letter to Cowell Clarke was untrue. The Tribunal finds that Mr Oud knew the contents of his letter to be false and misleading. Mr Oud was subjectively aware that the contents were false and misleading. Mr Oud's subjective intent in writing the letter to Cowell Clarke was to mislead Cowell Clarke to believe that he held $300,000 in his trust account when in fact Mr Oud did not hold $300,000 and he knew he did not.
2. Mr Oud's conduct was entirely reprehensible. He knowingly misled a court. He continued to mislead the court when the funds had not arrived. He breached a fundamental duty which overrode any duty to his client. He misled his fellow practitioners.
3. No practitioner could have any confidence in Mr Oud's word.
4. The Tribunal finds that Mr Oud between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming filed in the Federal Circuit Court in Adelaide ADG453/2015, engaged in professional misconduct within the meaning of s 403 and s438 of the LP Act in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:
   1. a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 that contained the following statements:

1. that Mr Ouds acts for ICBC, which statement was false and misleading as, in truth, Mr Oud did not then and never had acted for ICBC, and ICBC at that time was in liquidation; 2. that Mr Oud is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, Mr Oud was holding $138,662.80 in his trust account as at 29 March 2016;

1. that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, Mr Oud did not and never had acted for ICBC, and he had no instructions to that effect;

1. that Mr Oud had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions; 2. a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements:

(a) that his reference to ICBC was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, Mr Oud was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby;

(b) that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,

in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, Mr Oud well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr and Mrs Warming's solicitors, Cowell Clarke;

1. It was put to Mr Oud that his evidence was deliberately dishonest by counsel for the Board.
2. The way in which the proceedings were run means that Mr Oud was on notice that there was a risk of finding of dishonest evidence being made and used by the Board in determining what final order should be made and Mr Oud had an ample opportunity to deal with the prospect of such a finding.
3. The Tribunal finds that Mr Oud was a deliberately dishonest witness.

1. The Tribunal finds that Nicholas Neil Peter Oud behaved in a way that constitutes professional misconduct and/or unsatisfactory professional conduct for the purposes of the Legal Profession Act 2008 (WA) in six of the grounds as alleged by the Legal Profession Complaints Committee as follows:

That Nicholas Neil Peter Oud (the practitioner) between 23 March 2016 and 30 March 2016, in connection with acting for Mr Colin Oxlade and/or Dr Peter Fiore, or alternatively Irongrow Corporation Pty Ltd (Irongrow), in respect of a proposed purchase of platinum, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently or by a substantial degree, or both, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, by disbursing from the firm's trust account $300,000 (CSG loan funds) which had been received into trust on behalf of Credit Solutions Group Pty Ltd (CSG) for use in connection with the purchase of the platinum, in circumstances where:

(1) the practitioner undertook to CSG not to deal with, transfer, move or use the CSG loan funds without the expressed written consent of Mr David Cacciola on behalf of CSG, and Mr Oxlade (the undertaking);

(2) the practitioner disbursed the CSG loan funds without the expressed written consent of Mr Cacciola, and contrary to purported written consents he had received;

(3) in releasing the CSG loan funds the practitioner acted in reckless disregard or with reckless indifference as to whether he was in breach of his undertaking by doing so.

That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to keep his firm's trust records in a way that disclosed the true position in relation to withdrawals from trust of the CSG loan funds, in that the trust records did not accurately record the names of the persons who received the funds and the names or BSB numbers of the bank accounts into which the funds were paid as required by reg 45 of the Legal Profession Regulations 2009 (WA) and s 228(3)(b) of the Legal Profession Act 2008 (WA).

That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to deliver to CSG's solicitor Mr Paul Reese the original receipt made out by the practitioner for the receipt of the CSG loan funds into his trust account when requested to do so by Mr Reese by emails sent to the practitioner on 22 March 2016 and 28 April 2016, in breach of reg 41(2) and reg 41(6) of the Legal Profession Regulations 2009 (WA).

That Nicholas Neil Peter Oud (the practitioner) in or about April 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence in responding to an email from Mr Reese requiring the CSG loan funds to be returned from the practitioner's firm's trust account to Mr Reese's trust account, when the practitioner sent a series of emails to Mr Reese on 28 and 29 April 2016 which:

(1) did not disclose the fact that he no longer retained the CSG loan funds in his firm's trust account;

(2) implied that the practitioner did retain the CSG loan funds and was in a position to return the CSG loan funds to Mr Reese's trust account,

and which conveyed the impression that the CSG loan funds were retained in his firm's trust account and were available to be returned to Mr Reese's trust account when, in truth, the practitioner had disbursed the CSG loan funds and was not in a position to effect the return of the CSG loan funds to Mr Reese's trust account, and which impression the practitioner permitted to remain uncorrected in circumstances where the practitioner knew the emails were misleading in a material respect.

That Nicholas Neil Peter Oud (the practitioner) on 9 May 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence by conveying an offer from Mr Oxlade to Mr Reese to repay the CSG loan funds that was contingent upon Mr Reese withdrawing a complaint he had made to Legal Profession Complaints Committee against the practitioner in relation to the practitioner's breach of his undertaking with respect to the CSG loan funds.

That Nicholas Neil Peter Oud (the practitioner) between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming (Mr & Mrs Warming) filed in the Federal Circuit Court in Adelaide ADG453/2015 (creditor's petition), engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:

(1) a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 (the 29 March 2016 letter) that contained the following statements (together, the 29 March 2016 statements):

(a) that the practitioner acts for ICBC Capital Pty Ltd (ICBC), which statement was false and misleading as, in truth, the practitioner did not then and never had acted for ICBC, and ICBC at that time was in liquidation;

(b) that the practitioner is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, the practitioner was holding $138,662.80 in his trust account as at 29 March 2016;

(c) that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, the practitioner did not and never had acted for ICBC, and he had no instructions to that effect;

(d) that the practitioner had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions;

(2) a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements (together, the 3 April 2016 statements):

(a) that his reference to ICBC Capital Pty Ltd was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd /Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, the practitioner was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby;

(b) that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,

in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, the practitioner well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr & Mrs Warming's solicitors, Cowell Clarke;

1. The Legal Complaints Committee is to file and serve its written submissions on penalty and costs by 19 November 2018.
2. Mr Nicholas Neil Peter Oud is to file and serve his written submissions on penalty and costs by 3 December 2018.
3. Subject to any further order of the Tribunal, the question of penalty and costs is to be dealt with entirely on the documents.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

CITATION : LEGAL PROFESSION COMPLAINTS COMMITTEE and OUD [2018] WASAT 119 (S)

BETWEEN : LEGAL PROFESSION COMPLAINTS COMMITTEE

Penalty - Penalty order - Referral to Full Bench with recommendation that practitioner's name be removed from Roll of Practitioners

Legal Profession Act 2008 (WA), s 402, s 403, s 438, s 438(3)(c), s 439, Pt 13

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Recommendation that practitioner's name be removed from Roll of Practitioners

Respondent's local practising certificate suspended

A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253

Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438

Barwick v Council of the Law Society of NSW [2004] NSWCA 32

Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54

Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62

Craig v The Medical Board of South Australia [2001] SASC 169

Khosa v Legal Profession Complaints Committee [2017] WASCA 192

Law Society of New South Wales v Foreman (1994) 34 NSWLR 408

Law Society of New South Wales v Walsh [1997] NSWCA 185

Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9

Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S)

Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S)

Legal Profession Complaints Committee and Barber [2015] WASAT 99

Legal Profession Complaints Committee and Bower [2017] WASAT 47

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S)

Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124

Legal Profession Complaints Committee and Leask [2010] WASAT 133

Legal Profession Complaints Committee and Oud [2018] WASAT 119

Legal Profession Complaints Committee v Brickhill [2013] WASC 369

Legal Profession Complaints Committee v Detata [2012] WASCA 2014

Legal Profession Complaints Committee v Lashansky [2007] WASC 211

Legal Profession Complaints Committee v Love [2014] WASC 389

Legal Profession Complaints Committee v Masten [2011] WASC 71

Legal Profession Complaints Committee v O'Halloran [2013] WASC 430

Legal Profession Complaints Committee v Pepe [2009] WASC 39

Legal Profession Complaints Committee v Segler [2014] WASC 159

Medical Board of Western Australia and Roberman [2005] WASAT 81 (S)

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177

New South Wales Bar Association v Hamman [1999] NSWCA 404

Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361

Quinn v Law Institute of Victoria [2007] VSCA 122

Re A Practitioner (1984) 36 SASR 590

Re Maraj (a Legal Practitioner) (1995) 15 WAR 12

Smith v New South Wales Bar Association [2014] WASAT 112 (S); [1992] HCA 36; (1992) 176 CLR 256

Stirling v Legal Services Commissioner [2013] VSCA 374

The Council of the Qld Law Society v Wright [2001] QCA 58

Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308

Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159

Victorian Legal Services Commissioner v Hession (Legal Practice) [2016] VCAT 2056

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1. In Legal Profession Complaints Committee and Oud [2018] WASAT 119 (Oud) the Tribunal determined that Nicholas Neil Peter Oud behaved in a way that constituted professional misconduct and unsatisfactory professional conduct within the meaning of s 402, s 403 and s 438 of the _Legal Profession Act 2008 (_WA) (LP Act). This decision determines the appropriate penalty.
2. The Tribunal determines that the appropriate professional disciplinary consequence of Mr Oud's professional misconduct and unsatisfactory professional conduct in the circumstances of this case is to make and transmit a report on the finding to the Supreme Court (Full Bench) with a recommendation that Mr Oud's name be removed from the Roll of Practitioners.
3. The Tribunal also determines that Mr Oud's practising certificate should be suspended pending the determination of the Supreme Court (Full Bench).
4. Finally, the Tribunal orders Mr Oud pay costs in terms of the disbursements incurred by the Legal Profession Complaints Committee (Committee) of $53,522.70.

1. The Tribunal found that Mr Oud behaved in a way that constitutes professional misconduct and/or unsatisfactory professional conduct for the purposes of the LP Act in six of the grounds as alleged by the Committee as follows:

That Nicholas Neil Peter Oud (the practitioner) between 23 March 2016 and 30 March 2016, in connection with acting for Mr Colin Oxlade and/or Dr Peter Fiore, or alternatively Irongrow Corporation Pty Ltd (Irongrow), in respect of a proposed purchase of platinum, engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently or by a substantial degree, or both, of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner, by disbursing from the firm's trust account $300,000 (CSG loan funds) which had been received into trust on behalf of Credit Solutions Group Pty Ltd (CSG) for use in connection with the purchase of the platinum, in circumstances where:

(1) the practitioner undertook to CSG not to deal with, transfer, move or use the CSG loan funds without the expressed written consent of Mr David Cacciola on behalf of CSG, and Mr Oxlade (the undertaking);

(2) the practitioner disbursed the CSG loan funds without the expressed written consent of Mr Cacciola, and contrary to purported written consents he had received;

(3) in releasing the CSG loan funds the practitioner acted in reckless disregard or with reckless indifference as to whether he was in breach of his undertaking by doing so.

That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to keep his firm's trust records in a way that disclosed the true position in relation to withdrawals from trust of the CSG loan funds, in that the trust records did not accurately record the names of the persons who received the funds and the names or BSB numbers of the bank accounts into which the funds were paid as required by reg 45 of the Legal Profession Regulations 2009 (WA) and s 228(3)(b) of the Legal Profession Act 2008 (WA).

That Nicholas Neil Peter Oud (the practitioner) in March and April 2016 engaged in unsatisfactory professional conduct within the meaning of s 402 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent practitioner by failing to deliver to CSG's solicitor Mr Paul Reese the original receipt made out by the practitioner for the receipt of the CSG loan funds into his trust account when requested to do so by Mr Reese by emails sent to the practitioner on 22 March 2016 and 28 April 2016, in breach of reg 41(2) and reg 41(6) of the Legal Profession Regulations 2009 (WA).

That Nicholas Neil Peter Oud (the practitioner) in or about April 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence in responding to an email from Mr Reese requiring the CSG loan funds to be returned from the practitioner's firm's trust account to Mr Reese's trust account, when the practitioner sent a series of emails to Mr Reese on 28 and 29 April 2016 which:

(1) did not disclose the fact that he no longer retained the CSG loan funds in his firm's trust account;

(2) implied that the practitioner did retain the CSG loan funds and was in a position to return the CSG loan funds to Mr Reese's trust account,

and which conveyed the impression that the CSG loan funds were retained in his firm's trust account and were available to be returned to Mr Reese's trust account when, in truth, the practitioner had disbursed the CSG loan funds and was not in a position to effect the return of the CSG loan funds to Mr Reese's trust account, and which impression the practitioner permitted to remain uncorrected in circumstances where the practitioner knew the emails were misleading in a material respect.

That Nicholas Neil Peter Oud (the practitioner) on 9 May 2016 engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct would be reasonably regarded as disgraceful and dishonourable by practitioners of good repute and competence and, to a substantial degree, fell short of the standard of professional conduct observed by members of the profession of good repute and competence by conveying an offer from Mr Oxlade to Mr Reese to repay the CSG loan funds that was contingent upon Mr Reese withdrawing a complaint he had made to Legal Profession Complaints Committee against the practitioner in relation to the practitioner's breach of his undertaking with respect to the CSG loan funds.

That Nicholas Neil Peter Oud (the practitioner) between 29 March 2016 and 3 April 2016 inclusive, in connection with a creditor's petition in respect of John and Jennifer Warming (Mr & Mrs Warming) filed in the Federal Circuit Court in Adelaide ADG453/2015 (creditor's petition), engaged in professional misconduct within the meaning of s 403 and s 438 of the Legal Profession Act 2008 (WA) in that his conduct fell short, consistently and by a substantial degree, of the standard of professional conduct observed and approved by members of the legal profession of good repute and competence and would be reasonably regarded as disgraceful or dishonourable to practitioners of good repute and competence, by preparing and sending:

(1) a letter addressed to the Federal Circuit Court in Adelaide dated 29 March 2016 (the 29 March 2016 letter) that contained the following statements (together, the 29 March 2016 statements):

(a) that the practitioner acts for ICBC Capital Pty Ltd (ICBC), which statement was false and misleading as, in truth, the practitioner did not then and never had acted for ICBC, and ICBC at that time was in liquidation;

(b) that the practitioner is currently holding $300,000.00 cleared funds in his trust account, which statement was false and misleading as, in truth, the practitioner was holding $138,662.80 in his trust account as at 29 March 2016;

(c) that his client was aware of current bankruptcy proceedings against Mr and Mrs Warming listed in the Adelaide Registry, and was prepared to assist the Debtors' position, which statement was false and misleading as, in truth, the practitioner did not and never had acted for ICBC, and he had no instructions to that effect;

(d) that the practitioner had been instructed to release upon settlement of a pending commodity transaction a minimum of $200,000.00 to permit satisfaction of the petition amount, which statement was false and misleading as, in truth, the practitioner did not have any funds in trust at that time which were subject to such instructions;

(2) a letter to solicitors Cowell Clarke dated 3 April 2016, which he knew was intended to be used by Mr Warming in connection with the hearing of the creditor's petition scheduled for 4 April 2016, that referred to the 29 March 2016 letter and contained the following statements (together, the 3 April 2016 statements):

(a) that his reference to ICBC Capital Pty Ltd was a 'cut and paste error', and that he was in fact holding the trust funds (being a reference to the $300,000.00 referred to in the 29 March 2016 letter) on behalf of Irongrow Corporation Pty Ltd /Mr John Buckby, a company unrelated to ICBC, which statement was false and misleading as, in truth, the practitioner was not at that time holding any trust funds on behalf of Irongrow Corporation Pty Ltd / Mr John Buckby;

(b) that the substance of the 29 March 2016 letter was otherwise correct, which statement was false and misleading as, in truth, the 29 March 2016 statements were all untrue,

in circumstances where, when making the 29 March 2016 statements and the 3 April 2016 statements, the practitioner well knew each of the 29 March 2016 statements and the 3 April 2016 statements was false and misleading and had the potential to mislead the Federal Circuit Court and/or the party which had presented the creditor's petition and/or Mr & Mrs Warming's solicitors, Cowell Clarke.

1. The Tribunal notes that many of Mr Oud's submissions dated 12 December 2018, in particular paras 2-39 and para 42, were directed to contesting the Tribunal's findings in Oud. Such submissions are inappropriate in submissions in relation to penalty and costs. Submissions in relation to penalty and costs do not permit Mr Oud to contest the findings made by the Tribunal.
2. The Tribunal has not addressed those paragraphs in Mr Oud's submissions other than in so far as they reflect on Mr Oud's lack of remorse.

The parties' submissions as to appropriate orders

1. In its submissions filed on 26 November 2018, the Committee sought the following orders:

1.1 an order, pursuant to s 438(2)(a) and s 438(4)(b) of the Legal Profession Act 2008 (Act), that the Tribunal make and transmit a report to the Supreme Court (Full Bench) with a recommendation that the name of the respondent (practitioner) be removed from the Roll of Practitioners;

1.2 a consequential order pursuant to s 438(3)(a) of the Act that the practitioner's local practising certificate be suspended pending the determination of the Supreme Court (Full Bench); and

1.3 an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) that the practitioner pay the Committee's costs fixed in the sum of $53,522.70, such costs to be paid to the Legal Practice Board within 30 days or as otherwise agreed between the practitioner and the Legal Practice Board.

1. In his submissions dated 12 December 2018, Mr Oud submitted in relation to the Committee's submissions on costs and penalty:

1.0 ... that the recommendation sought is not the only outcome open to the Tribunal. The Tribunal may make the orders having regard to s.441 of the Legal Profession Act 2008 (WA) either as a single order or in combination with other orders. The first option is a fine not exceeding $25,000 though [the Committee's] submissions do not address that option nor any other options.

1.1 The section has a wide range of management options several of which were embraced by the Legal Practice Board such as but not limited to only practising as a supervised practitioner, and not operating a trust account.

1.2 [Mr Oud's] practising certificate is already restricted to supervised practice and there is no reason why that restriction should not continue. [Mr Oud] is not practising law having not yet made arrangements for supervised practise.

1.3 The costs order sought is effectively an order for indemnity costs relating to counsel fees and is put beyond the scrutiny of the Tribunal. The rate charged by counsel is not shown. The issue of costs is open to negotiation.

1. The purposes of Pt 13 of the LP Act are, relevantly:

(a) to provide for the discipline of the legal profession in this jurisdiction, in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally; and

(b) to promote and enforce the professional standards, competence and honesty of the legal profession.

1. Sections 438(2) to 438(4) of the LP Act provide:

(2) If, after it has completed a hearing in relation to a referral under this Part in respect of an Australian legal practitioner, the State Administrative Tribunal is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the Tribunal may -

(a) make and transmit a report on the finding to the Supreme Court (full bench); or

(b) make any one or more of the orders specified in section 439, 440 and 441.

(3) If the State Administrative Tribunal transmits a report in respect of a legal practitioner to the Supreme Court (full bench) under subsection (2)(a), the Tribunal may, pending the determination of the Supreme Court (full bench), make the following orders

(a) an order that the Australian legal practitioner's local practising certificate be suspended for a specified period;

(b) an order that specified conditions be imposed on an Australian legal practitioner's local practising certificate restricting the entitlement of an Australian legal practitioner to practise for a specified period.

(4) Where appropriate, a report forwarded under subsection (2)(a) may include either or both of the following -

(b) a recommendation that the name of the practitioner be removed from the local roll.

The State Administrative Tribunal may, under section 438(2)(b), make any one or more of the following orders

(a) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled;

(b) an order that a local practising certificate not be granted to the practitioner before the end of a specified period;

(i) specified conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a specified time; and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed;

(d) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

1. The jurisdiction of the Tribunal is protective rather than punitive, and such protection runs to both the public and the profession (Re Maraj (a Legal Practitioner) (1995) 15 WAR 12 at 25); Legal Profession Complaints Committee v Love [2014] WASC 389 (Love) at [19]; Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 (Foreman) at 440G­441A­B; Legal Profession Complaints Committee and in de Braekt [2013] WASAT 124 (in de Braekt) at [24]­[26]; New South Wales Bar Association v Hamman [1999] NSWCA 404 (Hamman) at [21] and at [77]).
2. The appropriate sanction is to be considered at the time of the making of the sanction and not by reference to the date of the unprofessional acts (Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) (A Legal Practitioner (S)) at [23]; Legal Profession Complaints Committee v Segler [2014] WASC 159 (Segler) at [7]; A Solicitor v Council of the Law Society of NSW [2004] HCA 1; (2004) 216 CLR 253 (A Solicitor [2004] NSW) at [15]; Love at [16]).
3. It is the practitioner's conduct that attracts any sanction (A Legal Practitioner (S) at [24]; Smith v New South Wales Bar Association [2014] WASAT 112 (S); [1992] HCA 36; (1992) 176 CLR 256 at 267­268 and 271­272; A Solicitor [2004] NSW).
4. As the Tribunal explained in A Legal Practitioner (S) at [24]:

[I]n determining the appropriate penalty, care needs to be taken that the penalty reflects the matters with which the practitioner is charged and not other conduct including the defence of the action by the practitioner which is ultimately held to be unsuccessful: Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 (Smith) at 267 - 268 and 271 - 272[.]

See generally Khosa v Legal Profession Complaints Committee [2017] WASCA 192 at [188]­[195].

1. In determining an appropriate sanction, twelve matters may require consideration. Those matters are interrelated and are not mutually exclusive. The list of matters is not exhaustive. The twelve matters are:
   1. Any need to protect the public against further misconduct by the practitioner (Legal Profession Complaints Committee and Amsden [2014] WASAT 57 (S) (Amsden (S)) at [8]; Foreman at 440C; Hamman at [77]).
   2. The need to protect the public through general deterrence of other practitioners from similar conduct (Veterinary Practitioners Board of NSW v Johnson [2010] NSWADT 308 (Johnson) at [103]; Hamman at [77]).
   3. The need to protect the public and maintain public confidence in the profession by reinforcing high professional standards and denouncing transgressions and thereby articulating the high standards expected of the profession (Amsden (S)) at [8]; Foreman at 444F; and Hamman at [77] and [79]), such that, even where there may be no need to deter a practitioner from repeating the conduct, the conduct is of such a nature that the Tribunal should give an emphatic indication of its disapproval (Craig v The Medical Board of South Australia [2001] SASC 169 at [64]; Johnson at [103]).
   4. In the case of conduct involving misleading conduct, including dishonesty, whether the public and fellow practitioners can place reliance on the word of the practitioner (Johnson at [109]; Foreman at 445B ­ 445G).
   5. Whether the practitioner has breached any:

1. Guidelines or Code of Conduct, issued by the relevant professional body; and

1. whether the practitioner has done so knowingly. 6. Whether the practitioner's conduct demonstrated incompetence, and if so, to what level. 7. Whether or not the incident was isolated such that the Tribunal can be satisfied of his or her worthiness or reliability for the future (Foreman at 442E - 442G; New South Wales Bar Association v Evatt [1968] HCA 20; (1968) 117 CLR 177 at 183; Council of the Law Society (NSW) v A Solicitor [2002] NSWCA 62 at [80]; Chamberlain v Law Society of the Australian Capital Territory [1993] FCA 527; (1993) 118 ALR 54 at 62 and 63). 8. The practitioner's disciplinary history (Legal Profession Complaints Committee v O'Halloran [2013] WASC 430 at [93]); 9. Whether or not the practitioner understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by the practitioner, since a practitioner who fails to understand the significance and consequences of misconduct is a risk to the community (Law Society of New South Wales v Walsh [1997] NSWCA 185 per Beazley JJA (Walsh); Legal Profession Complaints Committee v Lashansky [2007] WASC 211 (Lashansky) at [31]-[52] and (second) at [35]; Amsden (S) at [8]; Foreman at 444E; Love at [9]). 10. The desirability of making available to the public any special skills possessed by the practitioner. 11. The practitioner's personal circumstances at the time of the conduct and at the time of imposing the sanction. However, the weight given to personal circumstances cannot override the fundamental obligation of the Tribunal to provide appropriate protection of the public interest in the honesty and integrity of legal practitioners and in the maintenance of proper standards of legal practice (Love at [59]); Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 (Paridis) at [30(5)]). 12. The Tribunal may consider any other matters relevant to the practitioner's fitness to practise and other matters which may be regarded as aggravating the conduct or mitigating its seriousness (A Legal Practitioner (S) at [25]). In general, mitigating factors such as no previous misconduct or service to the profession are of considerably less significance than in the criminal process because the jurisdiction is protective not punitive (Walsh).

1. Where there is a choice of sanctions, the Tribunal will choose that sanction which maximises the protection of the public (Quinn v Law Institute of Victoria [2007] VSCA 122 at [31]).
2. The dominant purpose of the disciplinary regulation of the legal profession is the protection of the public by the maintenance of proper standards within the profession. Hence, the impact which an appropriate penalty would have upon a practitioner guilty of misconduct, and personal hardship to a practitioner, are necessarily secondary considerations (see Legal Profession Complaints Committee v Detata [2012] WASCA 2014 at [47]; Legal Profession Complaints Committee v Masten [2011] WASC 71 at [29]; and Legal Profession Complaints Committee and Leask [2010] WASAT 133 at [54]).
3. There are circumstances in which a 'global' approach to sanction, rather than the imposition of separate sanction for each unprofessional act, may be more appropriate in vocational disciplinary proceedings namely, where the facts of the case are so inextricably woven as to make it difficult to meet a clear standard of prescription (A Legal Practitioner (S) at [5]; Stirling v Legal Services Commissioner [2013] VSCA 374 at [72]­[75]).
4. All of the above matters are to be considered in the context of the Tribunal's findings as to penalty, that is, how serious was the conduct and the agent's explanation for the conduct (Paridis at [30(1)]­[30(2)]).

1. The jurisdiction of the Tribunal to remove a practitioner from the Roll is exercised not for the purpose of punishing the practitioner concerned, but for the protection of the public and the reputation and standards of the legal profession: Legal Practitioners Complaints Committee v Thorpe [2008] WASC 9 at [43].
2. Where an order for removal from the Roll is contemplated, the ultimate question is whether the material demonstrates that the practitioner is not a fit and proper person to remain a legal practitioner: A Solicitor [2004] NSW at [15].
3. A practitioner is not a fit and proper person to be a registered practitioner and should be removed from the register where the unprofessional conduct is so serious that the practitioner is permanently or indefinitely unfit to practise (Veterinary Surgeons Investigating Committee v Howe (No 2) [2003] NSWADT 159 at [27]; Barristers' Board v Darveniza [2000] QCA 253; (2000) 112 A Crim R 438 at [38]; Love at [17]-[18]; A Legal Practitioner (S) at [21]-[25]; Legal Profession Complaints Committee v Brickhill [2013] WASC 369 at [19]- [20] (Thomas JA, McMurdo P and White J agreeing); New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at [26]- [28]); Love at [17]-[18]).
4. Although serious dishonesty is an obvious example of where removal from the Roll is appropriate (Love at [18]), removal is not necessarily confined to circumstances involving findings of dishonesty.
5. In Lashansky at [36], the Full Court stated:

... Hope JA observed, [in Law Society of New South Wales v Moulton [1981] 2 NSWLR 736] the ignorance which the practitioner displayed was not ignorance of some esoteric or difficult corner of the law, but was an ignorance of general principles applicable to common activities of a solicitor (at 741). Hope JA concluded that '[s]uch an unawareness of and lack of care about the most elementary propositions of law concerning the responsibility he had taken on and the standards required of solicitors are themselves sufficient to justify the protection of the public by his removal from the roll' (at 743, Reynolds JA agreeing, and see Hutley JA at 759).

1. The practical effect of an order striking a practitioner off the roll is that if a practitioner wishes to resume practice he/she must persuade the Full Court that he/she is truly reformed and that he/she is a fit and proper person to resume practice.
2. The Tribunal also refers to its decisions in Legal Profession Complaints Committee and Barber [2015] WASAT 99 at [26]­[27] and Legal Profession Complaints Committee and Bower [2017] WASAT 47.

1. Suspension is a less serious result and differs from removal from the Roll because suspension is for a specified limited period and the practitioner has a preserved right to resume practice without any further onus upon them to prove that they are a fit and proper person to practice (A Legal Practitioner (S) at [26]; Legal Profession Complaints Committee v Pepe [2009] WASC 39 at [12]).
2. The proper use of suspension is in cases where the practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he/she lacks the qualities of character which are the necessary attributes of a person entrusted with the responsibilities of a practitioner (A Legal Practitioner (S) at [26]; Re A Practitioner (1984) 36 SASR 590 at 593 per King CJ). That is, suspension is suitable where the Tribunal is satisfied that, upon completion of the period of suspension, the practitioner will be fit to resume practice (A Legal Practitioner (S) at [27]).
3. The practical effect of an order suspending a practitioner's registration is that at the end of the period of suspension, the practitioner is entitled to resume practice without having to prove to the Full Court that he/she is a fit and proper person.
4. Mr Oud submitted:

General deterrence can be met by options other than striking off. Examples include

• suspension of the right to practise law
• fines
• controlled practice orders - allowing practice under controlled supervision[.]

1. As the Committee's submissions at paras [2]­[21] and [40] and [42] correctly state:

1. The Tribunal's findings and orders are set out in [310] of the [Oud] Reasons. The findings of professional misconduct made by the Tribunal included multiple factual findings of dishonesty. Arguably the most serious are that the practitioner prepared and sent a letter to the Federal Circuit Court in which he knowingly made statements that were false and misleading, intending to do so ([Oud] Reasons at [300]), and that he continued to mislead the court in relation to the subject matter of that letter ([Oud] Reasons at [305]).
2. The Tribunal also found that the practitioner prepared and sent a letter to solicitors Cowell Clarke, which he knew was intended to be used in connection with the proceedings before the Federal Circuit Court, in which he knowingly and intentionally made statements that were false and misleading ([Oud] Reasons at [304] ­ [305]).
3. The Tribunal also found that the practitioner sent a series of emails on 28 and 29 April 2016 to a fellow practitioner, Mr Paul Reese, which he knew were misleading in a material respect, intending to mislead Mr Reese ([Oud] Reasons at [197] and [229] ­ [230]), thereby intentionally breaching his obligation to deal honestly with fellow practitioners ([Oud] Reasons at [228]).
4. In addition to making findings as to these matters, which were consistent with the pleaded case of the Committee, the Tribunal found that the practitioner had a financial motive for at least some of his dishonest conduct. The Tribunal found that there was 'absolutely no reason to agree to send the letter other than as a favour to Mr Oxlade, in return for Mr Oxlade paying him $10,000 to him' ([Oud] Reasons at [255], and see also [Oud] Reasons at [248] ­ [250]).
5. Finally, the Tribunal found that the practitioner's evidence was deliberately dishonest on at least the following occasions:

6.1 his evidence that it did not occur to him to send a copy of the authorities (to release funds the subject of his undertaking) to Mr Reese ([Oud] Reasons at [194]);

6.2 his claim that he did not read the entire letter referred to in paragraph 2, which he had cut and pasted, and to which he had made corrections ([Oud] Reasons at [265]);

6.3 his evidence that he only read the first email in an email chain ([Oud] Reasons at [276]).

1. Short of finding that the practitioner had lied in his evidence, the Tribunal also found that on other issues he was evasive in his evidence and formal response in the proceedings (for example, see [Oud] Reasons at [21], [73], [104], [188], [189] and [192]), or described his evidence on other occasions as 'simply not credible' ([92]), 'fanciful' ([105] ­ [106]), 'preposterous' ([178] and [265]) or 'ludicrous' ([196]). These findings call into question both the practitioner's honesty and his competence.
2. The Tribunal's findings about the practitioner as a witness may be summarized by the findings that he was 'a totally unsatisfactory and evasive witness ([Oud] Reasons at [17]), and that he was a 'deliberately dishonest witness' ([Oud] Reasons at [310]). The Tribunal found that the practitioner's dishonest conduct was such that 'no practitioner could have any confidence in his word' ([Oud] Reasons at [306]).

Relevant factual findings: other professional misconduct

1. The Tribunal also made a finding that the practitioner acted in reckless disregard or with reckless indifference as to whether he was in breach of an undertaking he made in respect to $300,000 received into his trust account (CSG loan funds), when he disbursed those funds from his firm's trust account and did so without the expressed written consent required and contrary to the terms of the purported written consents he had received ([Oud] Reasons at [206] ­ [212]).
2. The Tribunal rejected as 'fanciful' the practitioner's contention that a payment to an unidentified party could constitute compliance with the terms of his undertaking, and said his evidence was driven by his awareness he had acted contrary to the terms of the undertaking ([Oud] Reasons at [105] ­ [106]).
3. The Tribunal noted that the authorities make it clear the importance of a solicitor's undertaking and that the practitioner knew his undertaking was central to the loan funds transfer occurring. They found that he was wilfully indifferent to the truth of the authorities and his conduct in releasing the funds in the circumstances would be regarded as disgraceful or disreputable by lawyers of good repute (Reasons at [209] ­ [211]), as well as being conduct that involved a consistent and substantial failure to reach a reasonable standard of competence and diligence ([Oud] Reasons at [212](7)).
4. The Tribunal therefore concluded that the practitioner was guilty of professional misconduct in breaching his undertaking.
5. The Tribunal also made a finding that the practitioner sent an email conveying an offer between the parties that was contingent on Mr Reese withdrawing the complaint he had made to the Committee in relation to the practitioner's breach of his undertaking set out above, and that he knew the terms of the email ([Oud] Reasons at [203], [205]).
6. The Tribunal found that the practitioner was under no obligation to convey the offer to withdraw the complaint, yet took no steps to advise his clients it was inappropriate, and that it was his intent to have the complaint withdrawn ([Oud] Reasons at [233]).
7. The Tribunal accepted the Committee's contention that this conduct had the tendency to subvert the authority of the Committee, and found that the conduct was professional misconduct ([Oud] Reasons at [234]).

Relevant factual findings: unsatisfactory professional conduct

1. The Tribunal made findings of unsatisfactory professional conduct in respect to the practitioner's breach of regs 41(2), 41(6) and 45 of the Legal Profession Regulations 2009, in that:

16.1 he failed to deliver to Mr Reese the original receipt for the deposit of the CSG loan funds into the practitioner's trust account when requested to do so by email on two occasions (Orders - Annexure A Ground 2; [Oud] Reasons at [217] ­ [222], which conduct the Tribunal regarded as 'inexcusable' ([Oud] Reasons at [219]); and

16.2 he failed to keep his trust records in a way that disclosed the true position in relation to withdrawals of the CSG loan funds, in that the trust records did not accurately record the names of the persons who received the funds and the names and BSB numbers of the bank accounts into which the funds were paid (Orders ­ Annexure A, Ground 3; [Oud] Reasons at [213]­[216]).

1. In making these findings the Tribunal found that it was 'inconceivable' that the practitioner could have believed that he was under no obligation to provide a receipt to the person who provided the funds (ie Mr Reese/CSG) and his explanation that he was not under such an obligations was 'preposterous' ([Oud] Reasons at [178]).
2. The Tribunal noted that the practitioner's bookkeeper Ms Guthrie, whose evidence the Tribunal accepted, asked for BSB and account numbers for the relevant payments and the practitioner did not provide them.
3. The Tribunal also noted that the responsibility for correct trust account records rests with the practitioner and not his bookkeeper ([Oud] Reasons at [137] and [166]). In any event, the trust accounts did not accurately reflect that payments had been made to Ms McKelt ($100,000) and Mr Maiolo ($115,000). The Tribunal found that the practitioner's instructions to his bookkeeper were not a correct record of the person to whom the payments were made ([Oud] Reasons at [162] ­ [169]).
4. Finally, the Tribunal also noted that if the trust ledger was accurate and stated to whom payments had been made (instead of stating they had been made to Mr Namah), then it would have been inconsistent with the purported authorities dated 23 March and 29 March 2016 ([Oud] Reasons at [129], [137]).
5. The Tribunal further noted that the practitioner had a financial interest in the funds being deposited in this trust account ([Oud] Reasons at [250]), and in the funds being released, because the release of funds meant that he would be repaid a loan of $20,000 he had made to Dr Peter Fiore ([Oud] Reasons at [126]).

1. The importance of legal practitioners performing their undertakings cannot be overstated, for the reasons set out in Legal Profession Complaints Committee v Detata [2012] WASCA 214 (Martin CJ, Pullin and Murphy JJA agreeing) at [48] ­ [54] (Detata). In particular, His Honour said at [53]:

Further, it is vital for the maintenance of public confidence in the integrity of the legal profession and its practitioners, and for the maintenance of the confidence which practitioners have in dealing with each other, that performance of their undertakings be enforced.

1. This case involved repeated and continuing dishonesty, not a mere isolated error of judgment. [Mr Oud] intentionally and seriously misled the Federal Circuit Court, a firm of solicitors involved in proceedings before that Court and a practitioner with whom he was dealing directly in relation to the funds deposited into his trust account. His dishonest conduct was not isolated. He had the opportunity to correct it; instead he repeated it.

Factor 1 Is there a need to protect the public against further misconduct by Mr Oud?

1. Mr Oud's conduct shows that he is unable to command the personal confidence of other practitioners and the courts. Mr Oud's conduct is such that there is a clear need to protect the public against further misconduct by Mr Oud. His conduct was extremely serious and involved serious dishonesty, both misleading the Court and other practitioners. The fact that his conduct was not isolated emphasises the need to protect the public.

Factor 2 Is there a need to protect the public through general deterrence of other practitioners?

1. The integrity of practitioners is an essential part of our legal system. A penalty for Mr Oud's conduct must emphasise to other practitioners the need to be scrupulously honest with fellow practitioners and the courts.

Factor 3 Is there a need to protect the public by reinforcing high professional standards and denouncing transgressions?

1. As noted above, the integrity of practitioners is an essential part of our legal system. The need for practitioners to be honest in all circumstances must be emphasised. Any penalty must reflect the seriousness of Mr Oud's conduct.

1. Mr Oud's conduct in misleading the Court and his client was clearly and deliberately dishonest.
2. No reliance can be placed on the word of Mr Oud. His dishonest evidence to the Tribunal only compounded the seriousness of his conduct.
3. The totality of Mr Oud's misconduct and his almost complete lack of acceptance or even appreciation of it, are plainly incompatible with the characteristics of honesty and integrity that are fundamental to the practice of the law. Mr Oud's conduct establishes that he cannot be trusted to deal fairly within the system within which he hopes to continue to practice. It is wholly inconsistent with the privileges and the responsibilities of future legal practice as a legal practitioner.

Factor 5 Breach of an Act, Regulations, Guidelines or Code of Conduct

1. Mr Oud breached a number of regulations relating to the maintenance of his trust account. Those breaches, while perhaps the least serious of the findings against Mr Oud, are nevertheless serious: as was said in Victorian Legal Services Commissioner v Hession (Legal Practice) [2016] VCAT 2056 at [17], 'The profession must know and be reminded that the trust account is sacrosanct and must be conducted scrupulously and honestly'.

1. Mr Oud's explanations for his conduct were, on occasions, bizarre.
2. They involved a convoluted explanation of reading only the excerpts from emails.
3. The Tribunal notes that a very basic requirement of a practitioner's competence is to read the entire document and not selective parts.
4. Further, Mr Oud's explanations of his alleged conflict in relation to both his lawyer's undertaking and providing a receipt, reflect, at best, a serious incompetence.

1. It is apparent that Mr Oud's professional misconduct was not isolated, but repeated over a period of time.

1. Mr Oud does not have any relevant disciplinary history. However, that is of limited significance in a case such as this, where the fundamental consideration is that Mr Oud has been found, through a calculated course of conduct, to have deliberately and dishonestly misled and deceived the Federal Circuit Court, this Tribunal and his fellow practitioners.

Factor 9 Whether or not Mr Oud understands the error of his ways, including an assessment of any remorse and insight (or a lack thereof) shown by Mr Oud

1. It is obvious that Mr Oud has no insight into his conduct whatsoever and the Tribunal has so found (Oud at [17]). Mr Oud has failed to demonstrate any insight or remorse. In his submissions Mr Oud persisted in challenging the findings against him.
2. The practitioner's conduct of the defence and the veracity and candour of his or her testimony will often be the best evidence as to whether the mitigating circumstances are to be accepted: Barwick v Council of the Law Society of NSW [2004] NSWCA 32 at [108].
3. A practitioner's denial of the charges and the consequent need for the regulator to prosecute the charges to conclusion will deny the practitioner the mitigating benefit of immediate remorse and cooperation: The Council of the Qld Law Society v Wright [2001] QCA 58 at [43]- [46].
4. Mr Oud continues to downplay the significance of his dishonest conduct and seeks to blame others rather than to frankly acknowledge his conduct.

Factor 10 Are there any special skills possessed by Mr Oud?

1. Mr Oud has does not have any special legal skills that are relevant to penalty.

41.11 Since the limitations imposed by the Legal Practice Board [Mr Oud] has not earnt any income from legal practice. As of 9 September 2018 [Mr Oud] stopped seeing clients and earning income from legal practice.

41.12 the situation with his daughter is stabilizing as she now attends a new school. Additional documentation has now been supplied to counsel outlining issues relating to [Mr Oud's daughter].

41.12.2 As will be seen the problems facing [Mr Oud] and his wife with [Mr Oud's daughter] date from earlier in 2016[.]

41.13 School fees are still outstanding as are fees to senior counsel. Counsel has not rendered his fee note. Fees are outstanding to senior counsel.

1. The fact that Mr Oud may have outstanding fees (school fees and counsel fees) is not a factor that carries much weight. These factors might be relevant if the penalty was punitive but the paramount consideration in disciplinary proceedings against legal practitioners is the protection of the public.
2. The only evidence about Mr Oud's other personal circumstances is his own. Mr Oud refers to the stress arising from his daughter and his heavy workload as extenuating factors.
3. The Tribunal does not accept that Mr Oud's daughter's conduct is relevant to his breaches. It is not necessary for the purposes of these reasons to state his daughter's conduct suffice it to say that it related to a relatively minor incident (see Annexures to Mr Oud's submissions).
4. A heavy workload provides no excuse for Mr Oud's conduct. A heavy workload is a normal incident of legal practice. It provides no excuse for a practitioner failing to meet his/her professional obligations. The Tribunal notes that it was not persuaded that Mr Oud had a heavy workload.

Factor 12 Are there any other matters related to Mr Oud's fitness to practise?

1. Mr Oud was admitted in 1995 and was the sole principal of his legal practice. He was not acting at the direction of, or under pressure from, any other practitioner. After over 20 years in practice he should have been well aware of his professional obligations.
2. The Tribunal does not accept that publication of the Tribunal's reasons provides an adequate deterrent to Mr Oud's future conduct.
3. The suggestion that lawyers do not make good witnesses is ludicruous.

1. Mr Oud's submissions did not individually address the 12 factors.
2. Mr Oud submitted that:

The facts arise out of distinct and unusual circumstances involving a number of individuals to which reference is made in the internet links shown in the appendix to these submissions. The comments made in the internet sites referenced about the individuals named raise questions. It is unlikely that [Mr Oud] will be involved in anything similar

1. The fact that Mr Oud was dealing with persons who were dishonest misses the point. Mr Oud's decisions to engage in misleading conduct were entirely his own, as the Tribunal's findings make clear. For example, he was well aware that he did not have cleared funds in his account when he wrote to the Federal Magistrates Court stating that he did. That was dishonesty on his own part.
2. Mr Oud submits that the 'key' events were affected by situations which no longer exist or have changed (Oud's submissions at 41.4).
3. The Tribunal does not accept that any of the changes in 'key' events is relevant to Mr Oud's penalty.
4. The evidence clearly establishes that Mr Oud was repeatedly dishonest. That dishonesty persisted in his evidence to the Tribunal. There is nothing in Mr Oud's submissions to suggest that he has gained any insight into his dishonesty.

1. Given the seriousness of Mr Oud's conduct the Tribunal has concluded that the only appropriate penalty is that the Tribunal make and transmit a report on the findings of professional misconduct to the Supreme Court (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the LP Act,
2. The Tribunal's findings demonstrate that Mr Oud is not a fit and proper person to remain a legal practitioner. His conduct is so serious that the practitioner is permanently or indefinitely unfit to practise.
3. Mr Oud has engaged in seriously dishonest conduct to the Federal Magistrates Court and to fellow practitioners. His conduct is made even worse by the dishonest manner in which he conducted his defence before the Tribunal. He has shown a complete lack of remorse.
4. None of the alternatives suggested by Mr Oud would adequately reflect the seriousness of his conduct and the need to protect the public.

1. Given the seriousness of Mr Oud's conduct and that the facts are inextricably linked which has led to the findings of professional misconduct and unsatisfactory professional conduct it is appropriate to impose a global penalty.
2. The Tribunal accepts the Committee's submissions at paras 63­64 that:

Given the gravity of the dishonesty findings against the practitioner and the close factual relationship to the other misconduct findings, this is a situation in which it is both convenient and preferable to impose a global penalty: Legal Profession Complaints Committee and A Legal Practitioner [2013] WASAT 37 (S) at [18], [19].

Accordingly, the Committee does not seek the imposition of a separate, additional or lesser penalties with respect to the findings made by the Tribunal, but seeks only the order pursuant to s 438(2)(a) and s 438(4)(b) of the Act, that the Tribunal make and transmit a report to the Supreme Court (Full Bench) with a recommendation that the name of the practitioner be removed from the Roll of Practitioners.

1. The Tribunal has determined that Mr Oud is not fit to remain on the Roll of Practitioners. Accordingly it is appropriate that he be suspended from practice pursuant to s 438(3)(c) of the LP Act pending the Supreme Court of Western Australia's determination of the question to strike off (Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S) at [49]. It would be inappropriate to allow a dishonest practitioner to remain in practice pending a decision of the Full Bench.

1. Section 87(1) and s 87(2) of the State Administrative Tribunal Act 2004 (WA) provide:

Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.

Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.

1. In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32, Murphy JA (Martin CJ and Corboy J agreeing) stated:
   1. The effect of s 87(1) of the SAT Act is, relevantly, that each party in proceedings before the Tribunal is to bear its own costs, unless the Tribunal otherwise orders.

1. Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
2. In Medical Board of Western Australia and Roberman [2005] WASAT 81 (S) (Roberman (S)) at [30], the Tribunal stated:

Section 87(2) gives the Tribunal the discretion to order the payment by a party of all or any of the costs of another party. Where a regulatory authority successfully brings a complaint of conduct which, if proved, justifies disciplinary action by the Tribunal, there will usually be a strong case for the exercise of that discretion in favour of the regulatory body. That is because such bodies perform a function which promotes the public interest, and usually with limited resources. The financial burden of bringing disciplinary action if the body had no capacity to recover some or all of its costs may be such as to provide a disincentive to bring disciplinary action, or when brought, to ensure that the allegations against the practitioner concerned are properly and thoroughly presented. It is in the public interest that such bodies have an expectation that, if the allegations are made out, the offending professional will meet or at least contribute to the costs incurred in bringing the application. The question of an award of costs is, of course, a matter of discretion to be exercised in the circumstances of each case.

1. Although the decision in Roberman (S) does not limit the discretion of the Tribunal in awarding costs, the public obligations of the Committee to prosecute practitioners who breach the LP Act is an important factor to be considered.
2. A further reason why costs should be ordered is Mr Oud's dishonest evidence in the proceedings. If Mr Oud had shown any insight and given his evidence honestly these proceedings could have been avoided.

1. In his supplementary submissions dated 21 December 2018, Mr Oud did not contest the liability to pay the costs of the Committee and the Committee's disbursements were not disputed by him. Mr Oud's dispute related to the fees of senior counsel. However, Mr Oud submitted:

2.1 The first point is whether the Committee was justified in briefing senior counsel. That it was appropriate to brief counsel is not in issue. The issue here is why it was necessary to brief senior counsel. Clearly [the Committee] has the right to brief any counsel it chooses senior or otherwise. But when a third party is paying for the fees of counsel different considerations arise.

2.2 The application was not attended by argument of points of law.

2.3 The leading but not the only authority on briefing senior counsel is STANLEY v. PHILLIPS [1966] HCA 24; (1966) 115 CLR 470 though the proposition is put as whether two counsel ought to be briefed. The principles discussed by the Chief Justice in that decision remain good law despite the passage of time. A recent example is Wiltshire v Amos & Anor [2018] QSC 224 where at [33]:

2.4 the Court noted The Assessor rules that this instant case satisfies this test as to: - Volume of material; - Nature and extent of cross-examination required; - Complexity of fact or law; - The extent of preparation; and - The involvement of serious imputations of personal reputation or integrity; 'make it reasonably necessary or proper that the services of two counsel be engaged in order that the court may do justice between the parties.'

2.5 Admittedly the focus lies on the use of two counsel but the principle could equally be applied to the briefing of senior counsel. Noting that the number of witnesses before the trial did not require a second counsel. Complexity of law is not apparent. While some complexity of fact is apparent it is not of such a level as to be beyond the competence of experienced counsel.

2.6 Members of the Court of Appeal in Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23 (S) address the issue of briefing senior counsel though the coram did not find it necessary to decide the issue. A feature of the comments made by individual members was focus on the complexity of issues faced by counsel. Note the comments of Buss JA at [20]. The general comment about the court being assisted by senior counsel does not apply in the context of the Tribunal without regard to context.

2.7 It must be said that the [Committee] appears to have a practice of briefing senior counsel though the point about briefing senior counsel may not yet have been argued before the Tribunal. The argument now being put is to say that whether the briefing of senior counsel is justified as between party and party needs to be decided on a case by case basis not as a general rule.

2.8 The rate for counsel is set in paragraph six of the schedule to the 2018 Report about costs in SAT at $341 per hour including GST or $3410 per day. The rate for senior counsel $539 per hour or $5390 per day again inclusive of GST.

2.9 Converting the accounts of Mr Yovich SC these results occur:

3.1 [He] does not oppose orders that he pay the disbursements as claimed nor the fees of senior counsel as fees of counsel.

3.2 [Mr Oud] needs to negotiate terms of payment when his financial situation becomes clearer.

1. The Tribunal is satisfied that it was appropriate to brief Senior Counsel. The allegations made against Mr Oud by the Committee were serious and it was entirely appropriate that the Committee brief Senior Counsel. The Tribunal notes that Mr Oud engaged Senior Counsel to represent him.
2. The Tribunal has considered the Committee's schedule of costs and is satisfied that they are reasonable.
3. Accordingly, Mr Oud should pay the Committee's costs of $53,522.70.
4. The Tribunal's order is that Mr Oud pay the Committee's costs within 30 days of the date of this order. It is a matter between the Committee and Mr Oud as to whether he should be given time to pay.

1. Pursuant to s 438(4)(b) of the Legal Profession Act 2008 (WA) the Tribunal makes and transmits a report on the findings of professional misconduct and unsatisfactory professional conduct to the Supreme Court of Western Australia (Full Bench) with a recommendation that the practitioner's name be removed from the roll of persons admitted to the legal profession under the Legal Profession Act 2008 (WA).
2. Pursuant to s 438(3)(a) of the Legal Profession Act 2008 (WA), the respondent's local practising certificate is suspended 14 days from the date of this order until the determination of the Supreme Court (Full Bench).
3. Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent must pay to the applicant its costs of the proceeding in terms of disbursements in the amount of $53,522.70 within 30 days of the date of this order.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.