Legal Services Commissioner v DRA

NCAT Occupational|2018-02-05

Solicitors: Mr K Kwan (Applicant) File Number(s): 2017/00186781

Introduction

These proceedings were commenced by an application under s 551(1) of the Legal Profession Act 2004 (NSW) (the LP Act) filed on 22 June 2017 (the Application). The applicant is the Legal Services Commissioner (the LSC) and we will refer to the respondent as the Solicitor.
The LSC seeks a finding that the Solicitor engaged in professional misconduct in respect of one or both grounds in the Application. Those grounds are as follows: 1. Ground 1: dishonest conduct - knowingly provided false and/or misleading details to NSW Police on 5 October 2014 and; 2. Ground 2: unethical conduct - inappropriate communication and conduct towards NSW Police.
The LSC seeks the following orders: 1. A finding that the Solicitor has engaged in professional misconduct for Ground 1 and/or Ground 2; 2. The Solicitor's name be removed from the roll of local lawyers; 3. In the alternative, the Solicitor be reprimanded; 4. Further, or in the alternative, that the Solicitor be fined; 5. The Solicitor is to pay the costs of the LSC as agreed or assessed; and 6. Such further or other orders as the Tribunal sees fit.
At the hearing of the application on 5 February 2018, the LSC sought only orders in terms of order 1, 2 and 5 of the above orders. The LSC was represented by counsel and a solicitor, and there was no appearance for the Solicitor. The proceedings were called outside the hearing before commencement but no one appeared for the Solicitor.

The Evidence

The LSC tendered the following evidence: 1. Affidavit of John McKenzie (the Legal Services Commissioner) dated 1 February 2018 - Exhibit A; 2. Affidavit of John McKenzie dated 19 June 2017 - Exhibit B; 3. Affidavit of John McKenzie dated 16 November 2017 - Exhibit C; 4. Affidavit of Michael Patrick Plibersek dated 16 November 2017 - Exhibit D; and 5. Affidavit of Shane John Arapa dated 17 November 2017 - Exhibit E.

Non-appearance of the Solicitor

Counsel for the LSC drew attention to evidence in support of the submission that the Solicitor has been made aware of the Application, made aware generally of these proceedings and of this hearing. That evidence is referred to in the following paragraphs.
Exhibit D contains evidence that on 23 June 2017 the Solicitor attended the office of the LSC and was handed correspondence from the LSC, an original sealed Application and an original sealed affidavit being the affidavit which is now Exhibit B.
Exhibit C contains evidence that the LSC forwarded correspondence to the Solicitor's email address on 20 October 2017 (referring to the directions hearing occurring at the Tribunal on that day) and a further letter to the same email address of the Solicitor on 10 November 2017 recording directions made by the Tribunal on 1 November 2017.
Exhibit A discloses that the LSC sent a letter to the Solicitor to his email address on 20 November 2017 forwarding copies of affidavits, including affidavits which have become Exhibits. Exhibit A also contains evidence that the LSC sent a letter to the Solicitor at his email address on 20 December 2017 advising of the Tribunal's hearing set down for 5 February 2018. Exhibit A contains a further letter dated 1 February 2018 from the LSC to the Solicitor's email address confirming details of the hearing on 5 February 2018, namely describing the time of commencement and the address.
In addition, Exhibit B contains an email dated 25 July 2016 from the Solicitor and an earlier email dated 10 February 2016 in response to communications from the LSC.
Having considered the evidence in the various exhibits, we are satisfied that the Solicitor has been served with the Application and supporting affidavits, is aware of these proceedings and is aware of the date and time of the hearing of these proceedings. Given those findings, we do not think it is unfair to the Solicitor to proceed to hear the application in his absence.

Relevant Law

As is disclosed in Exhibit B, the subject matter of the Application was the subject of a complaint by way of a report from Senior Constable Arapa dated 5 December 2014. The office of the LSC commenced investigations into the complaint by letter dated 22 January 2015. The investigation was not completed until on or about 28 February 2017 when the LSC wrote to the Solicitor advising the Solicitor of the LSC's final decision that there was a reasonable likelihood that you (the Solicitor) will be found by the Tribunal to have engaged in professional misconduct (see the letter from LSC dated 28 February 2017 commencing on page 173 of Exhibit B).
As the complaint was made but not disposed of whilst the LP Act was in force, and the investigation had begun while the LP Act was in force but not completed before the commencement of the Legal Profession Uniform Law (NSW) (LPUL Act) on 1 July 2015, these proceedings are governed by the LP Act: cl 26 of Sch 4 of the LPUL Act.

The Legal Services Commissioner's Submissions

The LSC's submissions refer to the definition of "professional misconduct" contained in s 497(1) of the LP Act. That section provides as follows: 497 Professional misconduct (1) For the purposes of this Act: professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice. (2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.
The LSC submitted that the conduct of the Solicitor was not in connection with the practice of law and therefore the LSC relies upon s 497(1)(b) of the LP Act. Section 498(2) sets out conduct that is capable of being professional misconduct. The LSC does not rely upon any of the descriptions of relevant conduct described in s 498(2).
The LSC submitted that the reference to fitness to practice in s 497(1)(b) is to be understood as the classification of the conduct according to the importance of the standard and the seriousness of the breach: The Council Of The New South Wales Bar Association v Sahade [2007] NSWCA 145 at [70] ("Sahade"). That is, the time at which fitness to practice is to be assessed for the purposes of the statutory definition of professional misconduct under s 497(2)(b) is at the time of conduct: Sahade [74]. Thus, present character and fitness is not material to the making of a finding of professional misconduct under s 497(1)(b): Sahade at [70].
The common law provides for a different temporal requirement for assessing fitness to practice when determining what consequential order to make following a finding of professional misconduct, i.e. at the time of the hearing: A Solicitor v The Council of the Law Society of New South Wales [2004] 216 CLR 253 at [21] ("A Solicitor").
The LSC submitted that qualities of honesty, integrity and preparedness to comply with the law are essential requirements of being a fit and proper person. Spigelman CJ explained those qualities in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 at [19] - [20] which are relevant to the present case: Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activates and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity.
The LSC submitted that by s 20 of Sch 5 of the Civil and Administrative Tribunal Act 2013 (NCAT Act), together with s 21 of Sch 1 of the NCAT Act the rules of evidence apply to these proceedings.
By reason of the rules of evidence applying, the standard of proof in civil proceedings before the Tribunal is that prescribed in s 140 of the Evidence Act 1995 (NSW) (Evidence Act). The matters described in s 140(2) constitute the statutory application of the considerations described in Briginshaw v Briginshaw (1938) 60 CLR 336. The gravity of an allegation must be assessed against the weight of evidence.
The submissions of the LSC concerning the factual particulars supporting Grounds 1 and 2 of the Application are summarised in the following paragraphs.
The factual particulars 1.1 to 1.23 set out in the Application are detailed in the evidence of Senior Constable Arapa whose affidavit is Exhibit E. That affidavit attaches his witness statement dated 8 October 2014. In Exhibit E, he adopts and repeats the contents of his statement dated 8 October 2014. Paragraphs 2 to 10 of Exhibit E concern Senior Constable Arapa's training and experience with respect to assessing a person's sobriety following the consumption of alcohol. Paragraphs 20 to 28 contain Senior Constable Arapa's observations of the Solicitor on 5 October 2014. For example, paragraph 22 of Exhibit E states that based upon his training and experience, Senior Constable Arapa observed that the Solicitor was on 5 October 2014 "moderately affected by intoxicating liquor". A further example is contained in paragraph 28 where he states that "at no stage did I consider that [DRA] was seriously intoxicated".
The submissions of the LSC states that that evidence (i.e. from paragraphs 2 to 10 and paragraphs 20 to 28 of Exhibit E) are relied upon on the basis of either expert evidence (under s 79 of the Evidence Act) or lay opinion (s 78 of the Evidence Act) as to Senior Constable Arapa's opinion about the level of the Solicitor's intoxication.
As to expert opinion evidence, the opinion is based upon Senior Constable Arapa's expertise based upon his training and study, and his experience as a police officer who has had the occasion to observe and assess a person's level of intoxication (see paragraph 6 to 10 of Exhibit E). The LSC submissions state that the LSC acknowledges that in the context of undefended proceedings, that this expert (or alternatively, lay) evidence will not be subjected to cross-examination and the Solicitor has not called any competing evidence to the contrary. Those matters, together with the non-independence of the expert opinion, are matters that may go to the weight to be accorded by the Tribunal to this part of the evidence.
The LSC submissions state that the key facts supported by the affidavit evidence are as follows: 1. On 5 October 2014 at 10:50pm the Solicitor was at Strathfield railway station holding an open bottle of beer; 2. The Solicitor was approached by Senior Constable Arapa and another police officer; 3. Senior Constable Arapa informed the Solicitor that he intended to take action against the Solicitor for having liquor in his possession on a railway station, and being warned against, and the consequences of, providing false and misleading information; 4. The Solicitor was asked his name. He gave the name "Matthew Fleming" and a middle name "Damien"; 5. When asked whether he had any identifying documents relating to his name, address and date of birth, he said he did not. In truth, he had a bank card, cab charge card, a Law Society solicitor member card and a Medicare card which each displayed his actual name; 6. When asked his address and date of birth, he gave the wrong birth year; 7. When it was ascertained that he had an Opal card, he was asked whether he had "tapped on" and the Solicitor replied that he had. Senior Constable Arapa checked that fact on a scanning machine and ascertained that he had not done so; 8. The Solicitor then pulled out a Law Society member identity card bearing his name and swore at the Senior Constable; 9. When informed that he would be having action taken against him for offensive language, the Solicitor responded threatening the Senior Constable with litigation. He continued to swear at the Senior Constable. In addition, the Solicitor threatened to 'destroy' him; 10. The Solicitor was then arrested; 11. When confronted with why he had given a false name, the Solicitor continued to maintain that he had not, and refused to confirm whether his date of birth was correct; 12. Sometime later, the Solicitor attempted to resist his arrest and leave whilst still in police custody; 13. The particulars are supported by Senior Constable Arapa's evidence and that evidence should be accepted as proof of the facts asserted by the Senior Constable; and 14. In the Senior Constable's opinion, the Solicitor was "moderately affected by intoxicating liquor" for the reasons given in his statement, namely that the Solicitor had a strong smell on his breath, there was a smell of urine emanating from his clothes, his voice was louder than would reasonably be expected in speaking to someone in close proximity and his speech and demeanour was first, argumentative and then progressed to aggression and confrontation.
The LSC's submission is that the evidence plainly discloses that the Solicitor was well aware that he was providing false and misleading information to NSW Police regarding his name and date of birth. Having regard to the whole of the evidence, the conduct is objectively dishonest by ordinary standards of reasonable and honest people: Brereton v Legal Services Commissioner [2010] VSC 378 at [53] applied in Law Society of NSW v Shehadie [2016] NSWCATOD 46 at [37]; Council of the Law Society of New South Wales v Haseldine [2017] NSWCATOD 156 at [141].
Having regard to the evidence summarised above, the LSC submitted that on the balance of probabilities and having regard to the s 140(2) factors (see the Evidence Act), the Tribunal should be satisfied that particulars 1.1 to 1.23 have been made out and that accordingly Ground 1 is proved.
So far as Ground 2 is concerned, the LSC submitted that the evidence in respect of this ground includes the particulars the subject of Ground 1. In addition, the particulars in this ground alleges that the Solicitor: 1. Knew or ought to have known that he did not have a lawful or a reasonable basis to leave police custody; 2. Knew or ought to have known that he did not have a lawful or a reasonable basis to resist arrest; 3. Knew or ought to have known that he did not have a reasonable basis to make certain statements and that the statements would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency, those statements to Senior Constable Arapa being as follows: 1. "You're fucked you fat cunt, I'm a solicitor"; 2. "Go and get fucked you fat cunt"; 3. "I don't give a fuck you cunt, you're fucked you fat cunt, this worth $50,000 to me. I'll have you sacked for this"; 4. "You are really fucked now. I'll get $50,00 for this you cunt"; and 5. "You fat cunt, you are fucked for this, you will be sacked for this, say goodbye to your job, I will get $50,000 for this you cunt, I'm a solicitor, you are fucked you cunt".
The LSC submitted that having regard to the evidence regarding the Solicitor's moderate intoxication, it is clear that despite his intoxication, he had sufficient cognizance of his conduct - which the giving of a deliberately false name points towards - to understand what he was doing. That he had the presence of mind to threaten an arresting police officer with legal action indicated he was sufficiently cognizant of what was occurring, and thus knew or ought to have known that his conduct was wrong and highly inappropriate for a solicitor. Further, the Solicitor was clearly warned he was under arrest. His attempts to resist arrest therefore had no legal or reasonable basis. In circumstances where he had sufficient cognizance, despite his intoxication, his behaviour was highly inappropriate for a legal practitioner.
Accordingly, having regard to the evidence, on the balance of probabilities and having regard to the s 140(2) factors, this Tribunal should be satisfied that the particulars 2.1 to 2.7 have been made out and accordingly, Ground 2 is proved.
The LSC submitted that the Tribunal should find that the evidence comfortably demonstrates that the Solicitor has engaged in professional misconduct within the meaning of s 497(1)(b) of the LP Act.
The LSC submitted that if the Tribunal finds that the Solicitor has engaged in professional misconduct, it may pursuant to s 562(1) of the LP Act make any order it thinks fit, including those set out in s 562(2).
The LSC submitted that the question of "fitness is to be decided at the time of the hearing": A Solicitor at [21].
The LSC submitted that in the present case, the only appropriate penalty would be an order that the name of the Solicitor be removed from the local roll pursuant to s 562(2)(a) of the LP Act.
The LSC submitted that this order is appropriate in the circumstances of this case.
If the Tribunal finds that there is professional misconduct within the meaning of s 497(1)(b) of the LP Act relevantly finding that the Solicitor is not a "fit and proper person to engage in legal practice", it is then, the LSC submits, difficult to avoid the conclusion that the person is not a fit and proper person to remain on the roll and accordingly, his name should be removed. Any lesser penalty in the absence of any explanation would be inconsistent. The Tribunal would be finding that the person is not a fit and proper person for the purposes of liability and yet imposing a "sentence" at odds with that finding. It cannot be thought that the Tribunal would be fulfilling any of its protective responsibilities in this regard. Nor would such an outcome be likely to have any general deterrence value. The use of the word "sentence" by the LSC is, in our view, not appropriate in the context of these proceedings but nothing turns on the inappropriateness of the word so far as this decision is concerned.
The LSC submission acknowledges that there may be mitigating circumstances in this case if the Solicitor had defended the matter or otherwise participated by filing evidence to answer the allegations and explain his conduct.
For instance, in the Solicitor's response to the LSC in the course of its investigation of the complaint, the Solicitor alleges to have "suffered an alcohol induced blackout on the night" and has "no recollection of the events" and was "horrified" by the events: see letter from the Solicitor to the LSC dated 3 November 2015 which is annexed to Exhibit B (page 101).The Solicitor states that since the relevant events, he has "abstained from consuming alcohol since 1 September 2016 and attends regular meetings (5-7 per week) of Alcoholics Anonymous": see Solicitor's submission under cover of email dated 13 January 2017 forming part of Exhibit B.
The LSC submission draws attention to the fact that the Solicitor explained his reasons for not responding to the LSC investigation as being the result of "significant anxiety and depression exacerbated by my current unemployment and precarious financial situation": email from the Solicitor to LSC dated 25 July 2016 forming part of Exhibit B (page 132).
The LSC submission states that the Solicitor has no previous disciplinary record. He no longer has a practising certificate. This, together with character references, medical evidence and evidence of real remediation may have resulted in a different penalty according to the LSC submissions. However, the LSC submission states that in the absence of any explanation for his conduct or evidence as to his personal and/or medical difficulties and attempts to address them, the public and the profession can have no confidence that he does not remain a risk.
The LSC submission states that to the above risk can be added the well-known observations of the NSW Supreme Court that it is a legal practitioner's duty in disciplinary proceedings to explain his or her conduct: Re Veron; Ex parte Law Society of New South Wales [1966] 1 NSWR 511 at 515. A failure to do so is "inexcusable" in circumstances where the person is uniquely placed with information to explain his or her conduct and there is clear prima facie evidence against him or her: NSW Bar Association v Meakes [2006] NSWCA 340 at [78]. The LSC submissions state that although the statements in these cases regarding a solicitor's duty to provide an explanation for his or her conduct were made in the context of defended proceedings, they are equally apposite in undefended proceedings. Indeed they speak to the risks of allowing disciplinary proceedings to go undefended.
In addition to these cases, the LSC submission states that it was also imperative for the Solicitor to explain his conduct given that the conduct the subject of the charges related to conduct outside the practice of law and thus, whether by the statutory test in s 491(b) of the LP Act he was a fit and proper person. As was noted by Fullagar JA in Ziems v The Prothonotary (1957) 97 CLR 279 at [288] in a case relating to professional misconduct outside the conduct of law "every fact which can throw light on the question" is relevant to determining whether the conduct amounts to professional misconduct and its penalty.
The LSC submission states that it was for the Solicitor to provide an explanation of his conduct to rebut the prima facie case against him. He was uniquely placed to explain his conduct and provide an explanation, if it exists, in mitigation. He has not done so.
The LSC submissions state that from the perspective of the public perception and confidence of the profession, the Solicitor's deliberate dishonesty, the subject of charge 1, and his unethical conduct, the subject of charge 2, is plainly conduct inconsistent with the high standards of integrity expected of a legal practitioner. The conduct evidences not just dishonesty, but also a fundamental lack of respect for the law and officers charged with administering the law, and attempts to use his status as a solicitor to not only threaten that person in the discharge of his responsibilities in administering the law, but to use that status to his personal advantage.
In the circumstances, nothing short of the Solicitor's removal from the roll can protect the public and preserve the reputation of the profession.
The LSC claims costs. Its submission records that the Tribunal must, unless there are "exceptional circumstances" make an order requiring the respondent to pay the applicant's costs consequent on a finding of professional misconduct pursuant to cl 23(1) of Sch 5 of the NCAT Act. The LSC submitted that there are no exceptional circumstances in this case to warrant displacing the usual rule. Accordingly, there should be an order for the Solicitor to pay the LSC's costs of these proceedings.

The Solicitor's Submissions

No appearance and no submissions have been received from the Solicitor. The Tribunal made an order on 6 September 2017 for the Solicitor to file and serve a reply on or before 27 September 2017. The Solicitor has not complied with that order. A further order was made on 20 October 2017 for the Solicitor to provide a reply to the Tribunal and to the LSC. A reply has not been filed.
However, the Solicitor has responded in writing to correspondence from the LSC by letter dated 3 November 2015 (Exhibit B page 101). The relevant parts of that letter state: 1. The Solicitor has no recollection of events which occurred on 5 October 2014 "after approximately 10:30pm"; 2. The Solicitor says he is a "recovering alcoholic" who has obtained "extensive medical assistance" including from a drug and alcohol "counsellor/psychologist"; 3. "Prior to receiving the correspondence from your office I was unaware of any events outlined nor was I aware of subsequent court proceedings in Burwood Court which proceeded to conviction in my absence"; and 4. "I am horrified by what has occurred on the late evening of 5 October 2014 and greatly disturbed by my complete lack of recollection".
The Solicitor also sent an email to the LSC dated 25 July 2016 (Exhibit B page 132) in which he states he has been suffering "significant anxiety and depression".
A further email (dated 5 September 2016) was sent by the Solicitor to the LSC (Exhibit B page 146). In it he apologises for the "further delayed response" to prior correspondence from the LSC. The email states: "Unfortunately I have experienced some poor health over the last few weeks and this has prevented me from attending to the required response. Please advise as to whether you require a medical certificate in support". The email then provides answers to questions put by the LSC, none of which are presently relevant.
The Solicitor sent an email to the LSC on 15 January 2017 (Exhibit B page 171) to which he attaches a document headed "Final Submissions". It contains approximately a little more than half a page of comments concerning the prior communication from the LSC which recorded the preliminary view of the LSC as to the reasonable likelihood of a finding of professional misconduct against the Solicitor. The relevant parts of this document state: 1. "I fully appreciate the seriousness of this matter" and "I have abstained from consuming alcohol since 1 September 2016" and attend "regular meetings (5 - 7 per week) of Alcoholics Anonymous"; and 2. "I am unable to comment on the specifics raised in the allegations, however, in relation to allegation 1 (dishonest conduct) I note on Senior Constable Arapa's own evidence, accurate identification was produced with all resultant proceedings instituted reflecting accurate name, date of birth and address (as it then was)".

Decision

We are satisfied that the particulars alleged in the Application have been proven by the evidence tendered by the LSC. We are comfortably satisfied to the standard referred to in Briginshaw v Briginshaw that all of the facts particularised (from particular 1.1 to 2.6) occurred as alleged.
We agree with the assertion made in particular 2.7 that by engaging in the conduct described in particulars 1.3 to 1.23 the Solicitor brought the legal profession into disrepute. The particular conduct of the Solicitor concerning ground 1 which leads to these conclusions are: 1. Giving a false name (particular 1.4); 2. Giving a false date of birth (particular 1.5); 3. Giving a false answer to the question of whether he (the Solicitor) had identifying documents (particular 1.7); 4. Threatening Senior Constable Arapa (particular 1.10, 1.11, 1.12, 1.15 and 1.20); 5. Resisting arrest (particular 1.16, 1.17 and 1.19); and 6. Using offensive language (particular 1.4, 1,10, 1.11, 1.12, 1.14, 1.15, 1.16, 1.18 and 1.20);
In addition, we are satisfied that particulars 1.21, 1.22 and 1.23 have been made out.
We have considered whether the evidence of Senior Constable Arapa is mistaken in that what he thought he heard the Solicitor say was in fact not what the Solicitor said. The evidence relied upon by the LSC includes a statement dated by Senior Constable Arapa on 8 October 2014. There is no evidence that the words or conduct attributed to the Solicitor were inaccurately heard and recorded by Senior Constable Arapa. Indeed when challenged by Senior Constable Arapa that he had given a false name, the Solicitor did not deny it and instead said in effect "prove it".
We have considered whether the opinion of Senior Constable Arapa that the Solicitor was moderately intoxicated should be accepted. We have specifically considered whether the Senior Constable's evidence that the Solicitor's clothes smelt of urine is consistent with an assessment that the Solicitor was moderately intoxicated as opposed to severely intoxicated. On the evidence available, we do not think that this consideration causes us to disagree with the Senior Constable's overall assessment. Our view is that the Senior Constable's assessment can be accepted as an accurate assessment of the level of intoxication of the Solicitor. The surrounding evidence of the conversation between the Solicitor and the Senior Constable supports that view. In other words, the Solicitor's replies to questions put by the Senior Constable were responsive (even if false) indicating in our view that the Solicitor understood the questions and provided answers which the Solicitor thought would best suit his interests. The exception to this conclusion is the fact that the Solicitor swore incessantly at the police. This appears to reflect the Solicitor's anger.
In our view, the conduct of the Solicitor considered as a whole during his interaction with the police on the evening of 5 October 2014 can be fairly described as lacking honesty and integrity and objectively dishonest by the ordinary standards of reasonable and honest people.
Accordingly, we are comfortably satisfied that ground 1 has been made out.
We are also satisfied that the particulars supporting ground 2 have been made out.
Our conclusion is that the Solicitor engaged in professional misconduct as that term is understood under the general law and within the meaning of s 497(1)(b) of the LP Act, as the conduct of the Solicitor justifies the finding (which we make) that the Solicitor was not a fit and proper person to engage in legal practice at the time when the relevant conduct occurred (i.e. October 2014).
By reason of the finding that we have made, that the Solicitor engaged in professional misconduct, we are able to propose such orders as we think fit (s 562(1) of the LP Act) including those set out in s 562(2) of the LP Act.
We agree with the LSC's submission that when determining what consequential orders to make following a finding of professional misconduct, the time for assessing fitness to practice is at the time of the hearing. In A Solicitor v The Council of the Law Society of New South Wales (2004) 216 CLR 253, the Court said: Professional misconduct may not necessarily require a conclusion of unfitness to practise, and removal from the roll. In that regard, it is to be remembered that fitness is to be decided at the time of the hearing.
Accordingly, the question to address is whether at the time of the hearing foreshadowed by the orders set out in these reasons, we are satisfied that the Solicitor is unfit to practice.
The duty described in Re v Veron to explain conduct necessarily incudes a duty to explain why the conduct is unlikely to occur again. Such an explanation would assist the Tribunal in determining whether the solicitor is, at the time of the hearing, a fit and proper person to remain on the roll notwithstanding the finding of professional misconduct.
As the LSC's submission recognises there may be mitigating circumstances in any case warranting an order less severe than the removal from the roll. Indeed, at the hearing Counsel for the LSC conceded that there may be cases where the facts themselves were self evident of an explanation of the conduct and whether it was likely to occur again, but said that such cases would be rare.
Earlier in these reasons we recorded that the LSC only sought an order that the Solicitor's name be removed from the roll (apart from a cost order) and submitted that a reprimand and/or a fine would not be appropriate. It is not clear to us that the Solicitor was aware that the LSC would submit to the Tribunal that the only appropriate order was that the Solicitor's name be removed from the roll.
Although it is open to the Tribunal to draw adverse inferences from the Solicitor's failure to attend the Tribunal, we have concerns based upon the Solicitor's correspondence (referred to earlier in these reasons) that his asserted depression and associated medical condition may have resulted in his non-attendance and, accordingly, we intend, at this stage to only publish our decision that the Solicitor has committed professional misconduct.
In addition, we think it appropriate that these reasons be sent to the Solicitor and that he be given an opportunity to provide submissions and evidence relevant to "penalty" (i.e. what orders the Tribunal should make consequential upon our finding that the Solicitor has been guilty of professional misconduct). Should submissions and/or evidence be provided by the Solicitor, the LSC should have an opportunity to provide its submissions and evidence and if requested, an opportunity to cross-examine the Solicitor. If no response is received from the Solicitor, it is open to the Tribunal, based on the material currently before it, to draw adverse inferences against the Solicitor as to whether he is a fit and proper person to hold a practising certificate.

Orders

Accordingly, the following orders are made: 1. The Solicitor is guilty of professional misconduct; 2. Within 7 days the Registry is to send a copy of these reasons to the Solicitor at the address given under Rule 13(2)(8) of the Civil and Administrative Tribunal Rules; 3. Within 7 days the LSC is also directed to send a copy of these reasons to the Solicitor at the above email address and at the Solicitor's current place of residence (if known to the LSC) and within 7 days thereafter file and serve an affidavit of service; 4. Within 14 days thereafter the Solicitor is to file with the Tribunal and serve a copy on the LSC any submissions and evidence he wishes to make concerning what orders the Tribunal should make consequent upon the finding that the Solicitor is guilty of professional misconduct; and 5. The Registry is directed to list these proceedings for a directions hearing on a date as soon as possible after 21 days from the date of these orders.

Grounds for Application and Particulars GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) GROUND 1 - Dishonest conduct- Knowingly provide false and/or misleading details to NSW Police - October 2014. Particular 1.1 At around 10:50 pm on 5 October 2014, the Respondent was at Strathfield Railway Station holding an open bottle containing liquor. Particular 1.2 The Respondent was approached by Senior Constable Shane Arapa and Constable Justin Dover from the Police Transport Command of the NSW Police Force. Both police officers were in full police uniform and were rostered on duty. Particular 1.3 Senior Constable Shane Arapa ("SCSA") and the Respondent then had an exchange, in words to the following effect (Particulars 1.3 to 1.20): SCSA: "I intend on taking action against you for having open liquor in your possession on a railway station. You are required by legislation to provide your details to me, I need to warn you that if you provide false or misleading details to me that it's an offence and further action can be taken against you, do you understand?" The Respondent: "Yes." Particular 1.4 SCSA: "What's your name?" The Respondent: "Matthew Fleming." SCSA: "Do you have a middle name?" The Respondent: "Damien." SCSA: "How do you spell that, D-A-M...?" The Respondent: "Are you that fucken dumb you can't spell?" Particular 1.5 SCSA: "Date of birth?" The Respondent: "5th of the 12th, 1975." Particular 1.6 SCSA: "Address?'' The Respondent: "XXXXXX Livingstone Road, Marrickville." Particular 1.7 SCSA: "Do you have any identifying documents that can verify those details?" The Respondent: "No I don't." Particular 1.8 SCSA: "Do you have your train ticket with you? The Respondent: "I have this." [The Respondent handed an Opal Card to Senior Constable Arapa]. SCSA: "Did you tap on for your journey?" The Respondent: "Yes." SCSA: "Which railway station did you tap on at?" The Respondent: "Here." [Senior Constable Arapa scanned the Opal card with an Opal card reader] SCSA: "This is telling me you did not tap on here?" The Respondent: "Yes I did." SCSA: "I will be taking action against you for failing to tap on as required." Particular 1.9 The Respondent displayed to Senior Constable Arapa a Law Society Solicitor Member identity card bearing details "[DRA]", number "50014", expiry 30/06/2015" Particular 1.10 The Respondent said: "You're fucked you cunt." Particular 1.11 The Respondent then said: "You're fucked you fat cunt, I'm a solicitor." Particular 1.12 Senior Constable Shane Arapa and the Respondent then continued their exchange, in words to the following effect: SCSA: "I thought you told me that you did not have any identification with you?" The Respondent: "Go and get fucked you fat cunt." SCSA: "I need to tell you that I will be taking action against you for offensive language as well." The Respondent: "I don't give a fuck you cunt, you're fucked you fat cunt, this is worth $50,000 to me, I'll have you sacked for this. SCSA: "Okay, I am placing you under arrest for offensive language, you don't have to say anything unless you want to but anything you say can be recorded and may be used as evidence in court, do you understand?". The Respondent: "You are really fucked now, I'll get $50,000 for this you cunt." Particular 1.13 Senior Constable Arapa obtained from the Respondent a Commonwealth Bank card, a Cabcharge card, a Law Society of New South Wales card and a Medicarecard. Each of these cards displayed the name "[DRA]". Particular 1.14 The exchange continued in words to the following effect: SCSA: "Do these cards belong to you or someone else?" The Respondent: "What do you think you fat cunt." SCSA: "Well if they belong to you then why have you given me false details?" The Respondent: "No I didn't." SCSA: "You gave me a name of Matthew Damien FLEMING." The Respondent said: "Prove it you cunt." SCSA: "So did you give me your correct date of birth?" The Respondent said: "None of your business you cunt." SCSA: "Have you given me your correct address?" The Respondent said: "Yes ...cunt." SCSA said: "Do you have any tattoos or any other identifying features on your body?" The Respondent said: "None of your fucken business you fat cunt." Particular 1.15 At some point during the exchange, the Respondent walked up to Senior Constable Arapa and said words to the following effect: "You fat cunt, you are fucked for this, you will be sacked for this, say goodbye to your job, I will get $50,000 for this you cunt, I'm a solicitor, you are fucked you cunt." Particular 1.16 After a period of time an exchange took place, in words to the following effect: The Respondent: "Listen cunt, what is taking so long, I'm going outside for a cigarette." SCSA: "No you're not, you are under arrest, you are to stay here until I have identified you." The Respondent: "I gave you my details you cunt." SCSA: "Yes but I believe the details are false." The Respondent: "No they're not, I'm going for a smoke." SCSA: "If you walk away you will be forcing me to restrain you." The Respondent: "Come and get me you cunt." Particular 1.17 The Respondent began to walk away from Senior Constable Arapa. Particular 1.18 Senior Constable Arapa took hold of the Respondent and a further exchange took place, in words to the following effect: SCSA: "Sit on the ground, you're not free to leave yet." The Respondent: "You are so fucked." SCSA: "Sit down and stop resisting." Particular 1.19 Senior Constable Arapa attempted to pull the Respondent down to the ground to sit the Respondent down, however the Respondent resisted his efforts. Senior Constable Arapa swept the Respondent's leg and took the Respondent to the ground, whereupon the Respondent was handcuffed with his hands to the rear. Particular 1.20 The Respondent then said words to the following effect: "You are so fucked you cunt. I'll get $50,000 for this you dumb cunt, I can't wait to take this to court you cunt. I will fucken destroy you." Particular 1.21 At the time the Respondent was approached by Senior Constable Arapa and was spoken to, the Respondent was aware that both he and Constable Justin Dover were members of the NSW Police Force, who were purporting to exercise their duties in that capacity. This is because both officers were in police uniform and Senior Constable Arapa had identified himself when he first approached the Respondent. Particular 1.22 At the time the Respondent told the police that his name was "Matthew Damien Fleming", and that his date of birth was the "5th of the 12th, 1975", the Respondent was aware that: a) His real name was [DRA]; and b) His real date of birth was [DATE]. Particular 1.23 On each occasion that the Respondent provided the details referred to at particulars 1.4, 1.5 and 1.7, the Respondent knew that they were false, and had the intention of misleading Senior Constable Arapa as to his actual name, and date of birth. GROUND 2 - Unethical Conduct - Inappropriate communication and conduct towards NSW Police Particular 2.1 The Particulars in Ground 1 are repeated. Particular 2.2 When the Respondent made the statement referred to at particular 1.11, the Respondent knew or ought to have known that he did not have a reasonable basis to make that statement, and that statement would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. Particular 2.3 When the Respondent made the statements referred to at particular 1.12, the Respondent knew or ought to have known that he did not have a reasonable basis to make those statements, and those statements would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. Particular 2.4 When the Respondent made the statements referred to at particular 1.15, the Respondent knew or ought to have known that he did not have a reasonable basis to make those statements, and those statements would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. Particular 2.5 When the Respondent began to walk away from Senior Constable Arapa as referred to in Particular 1.17 - 1.18, the Respondent knew or ought to have known that he did not have a lawful or reasonable basis to do so, and that this would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. Particular 2.6 When the Respondent resisted Senior Constable Arapa as referred to in Particular 1.19, the Respondent knew or ought to have known that he did not have a lawful or reasonable basis to do so, and that this would reasonably be regarded as disgraceful or dishonourable by professional brethren of good repute and competency. Particular 2.7 By engaging in the conduct described above in particulars 1.3 to 1.23, which included identifying himself as a solicitor, using prolific offensive language and threatening unfounded legal action against Senior Constable Arapa and / or NSW Police, the Respondent brought the legal profession into disrepute. I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 14 December 2018 - Pursuant to orders made in [2018] NSWCATOD 195 Respondent details anonymised. 18 December 2018 - Further anonymisation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2018

Legal Profession Act 2004(NSW)

At a glance

Court

Decision date

Source

Judgment (11 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (10)

Cited By (2)