Legal Services Commissioner v Harb

Legislative scheme and jurisdiction of the Tribunal

1. The applicant contended and we agree, that the power to make orders in this application is derived from the Legal Profession Act 2004 (LP Act). Although the LP Act was repealed on 1 July 2015 and replaced by the Legal Profession Uniform Law Application Act 2014 (the Uniform Law Act), the LP Act continues to have effect pursuant to the provisions of cl 26 of the Uniform Law Act. That clause provides that a complaint or investigation begun but not completed before the commencement of the Uniform Law Act is to continue to be dealt with in accordance with the old legislation, namely the LP Act. The applicant contended that its investigation in relation to this application had begun before 1 July 2015 and accordingly the LP Act applies. The evidence supports that contention and, as stated above, we agree that the LP Act applies. The respondent did not submit to the contrary.
2. Accordingly, it is relevant to state that s 562 of the LP Act provides the basis for the Tribunal making the orders sought by the applicant provided the Tribunal is satisfied in the terms described in s 562(1). Section 562(1) states the following: (1) Orders generally If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.
3. Section 562(2), (3), (4), (5), (6), (7), (8) and (9) make further provisions for orders which the Tribunal may make and these subsections are set out as follows: 2) Orders requiring official implementation in this jurisdiction The Tribunal may make the following orders under this subsection: (a) an order that the name of the practitioner be removed from the local roll, (b) an order that the practitioner's local practising certificate be suspended for a specified period or cancelled, (c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period, (d) an order that: (i) specified conditions be imposed on the practitioner's practising certificate issued or to be issued under this Act, and (ii) the conditions be imposed for a specified period, and (iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed, (e) an order reprimanding the practitioner, (f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997. (3) Orders requiring official implementation in another jurisdiction The Tribunal may make the following orders under this subsection: (a) an order recommending that the name of the practitioner be removed from an interstate roll, (b) an order recommending that the practitioner's interstate practising certificate be suspended for a specified period or cancelled, (c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a specified period, (d) an order recommending that: (i) specified conditions be imposed on the practitioner's interstate practising certificate, and (ii) the conditions be imposed for a specified period, and (iii) the conditions specify the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed. (4) Orders requiring compliance by practitioner The Tribunal may make the following orders under this subsection: (a) an order that the practitioner pay a fine of a specified amount, (b) an order that the practitioner undertake and complete a specified course of further legal education, (c) an order that the practitioner undertake a specified period of practice under supervision, (d) an order that the practitioner do or refrain from doing something in connection with the practice of law, (e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services, (f) an order that the practitioner's practice, or the financial affairs of the practitioner or of the practitioner's practice, be conducted for a specified period in a specified way or subject to specified conditions, (g) an order that the practitioner's practice be subject to periodic inspection for a specified period, (h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner, (i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner's practice, (j) an order that the practitioner not apply for a local practising certificate before the end of a specified period. Note. This subsection is not an exhaustive statement of orders that must be complied with by the practitioner. (5) Ancillary or other orders The Tribunal may make ancillary or other orders, including an order for payment by the practitioner of expenses associated with orders under subsection (4), as assessed or reviewed in or in accordance with the order or as agreed. (6) Alternative finding The Tribunal may find that a person has engaged in unsatisfactory professional conduct even though the complaint or disciplinary application alleged professional misconduct or may find that a person has engaged in professional misconduct even though the complaint or disciplinary application alleged unsatisfactory professional conduct. (7) Maximum fine The amount ordered by the Tribunal under this section to be paid by way of fines by any one Australian legal practitioner in connection with the Tribunal's findings about a complaint must not exceed in total: (a) $10,000 in the case of unsatisfactory professional conduct not amounting to professional misconduct, or (b) $75,000 in the case of professional misconduct. If the Tribunal finds that the practitioner has engaged in both professional misconduct and unsatisfactory professional conduct not amounting to professional misconduct, the amount must not exceed $75,000 in total. (8) Reprimands If the Tribunal makes an order reprimanding the practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order. (9) It is sufficient compliance with the requirement to publish an order under subsection (8) if the Tribunal provides to the Commissioner sufficient information to enable the Commissioner to exercise the Commissioner's powers or functions in respect of the Register of Disciplinary Action required to be kept under Part 4.10 (Publicising disciplinary action).

The applicant's evidence

1. As stated above, the evidence of the applicant was contained in the affidavit of the applicant dated 18 December 2015 (Exhibit A). The applicant was sworn in and was cross examined by counsel for the respondent.

The respondent's evidence

1. The respondent relied upon portions of the annexures to Exhibit A, namely the following: 1. The respondent's letters to the applicant dated 17 September 2014 and 14 January 2015 which commences at page 218 of Exhibit A and continues until page 306. 2. The respondent's letter to the applicant dated 6 June 2012 (which commences at page 21 of Exhibit A and includes the correspondence which follows from page 21 up to page 124).
2. In the Reply the respondent did not admit the assertion by the applicant that the proceedings against Mr Aiken also included Mr Weinberger. Rather, the respondent's position (as expressed by Ms Haddad) was that Mr Weinberger had never been joined as a defendant.

The applicant's submissions

1. The applicant's case included an explanation of the broader factual context in which the alleged conduct of the respondent took place. The applicant submitted that the respondent had commenced proceedings against an architect and those proceedings were settled in August 2009. In November 2011 the respondent or an entity associated with the respondent commenced proceedings in the District Court against a solicitor (Mr Aiken) for professional negligence with respect to the conduct of the litigation against the architect. Mr Aiken filed a defence in which he sought contribution from the barrister who was involved in the case against the architect. The barrister was a Mr Weinberger.
2. The application also alleged that a Ms Homsy was the clerk of the Chambers for Mr Weinberger. That assertion was not admitted in the Reply but from the bar table Ms Haddad stated that the respondent admitted that Ms Homsy was the clerk of Chambers for Mr Weinberger in 2012.
3. The application alleged (and the respondent admitted) that the mother of Ms Homsy was a Ms Dimitriou who worked for the respondent in 2012.
4. The application alleged (and the respondent admitted) that in April 2012 and May 2012 Ms Dimitriou and/or Ms Homsy spoke with the respondent and provided information relating to the District Court proceedings involving Mr Aiken as defendant. That information included details of what was said in confidential meetings between Mr Weinberger, Mr Aiken, their legal representatives and other parties that related to the District Court proceedings.
5. The application alleged (and the respondent admitted) that the information referred to above conveyed by Ms Dimitriou and/or Ms Homsy was confidential and/or was information the subject of Mr Weinberger's and/or Mr Aiken's legal professional privilege.
6. The application alleged (and the respondent admitted) that the confidential information referred to above was recorded in a document prepared by the respondent headed "Investigation Notes" (and which formed part of the annexures to the applicant's affidavit (see page 41 of Exhibit A)).
7. The application alleged (and the respondent admitted) that Ms Homsy sent a number of emails to the respondent from 28 June 2012. Although the emails have been set out earlier in these reasons, we list them again below for the purpose of identifying where they appear in the evidence: 1. An email dated 28 June 2012 sent at 12:31pm by Ms Homsy to the respondent and which appears on page 120 of Exhibit A; 2. And email dated 2 July 2012 sent at 11:53am by Ms Homsy to the respondent and which appears on page 119 of Exhibit A; 3. An email dated 5 July 2012 sent at 5:09pm by Ms Homsy to the respondent and which appears on page 110 of Exhibit A; 4. An email dated 5 July 2012 sent at 5:08pm by Ms Homsy to the respondent and which appears on page 109 of Exhibit A; 5. An email dated 5 July 2012 sent at 5:08pm by Ms Homsy to the respondent and which appears on page 107 of Exhibit A; 6. An email dated 5 July 2012 sent at 5:06pm by Ms Homsy to the respondent and which appears on page 105 of Exhibit A; 7. An email dated 5 July 2012 sent at 5:02pm by Ms Homsy to the respondent and which appears on page 104 of Exhibit A; 8. An email dated 6 July 2012 sent at 5:00pm by Ms Homsy to the respondent and which appears on page 96 of Exhibit A; 9. An email dated 16 July 2012 sent at 4:02pm by Ms Homsy to the respondent and which appears on page 88 of Exhibit A; 10. An email dated 17 July 2012 sent at 11:09am by Ms Homsy to the respondent and which appears on page 87 of Exhibit A; 11. An email dated 30 July 2012 sent at 10:02pm by Ms Homsy to the respondent and which appears on page 76 of Exhibit A; 12. An email dated 22 August 2012 sent at 10:13pm by Ms Homsy to the respondent and which appears on page 74 of Exhibit A; 13. An email dated 29 August 2012 sent at 5:46pm by Ms Homsy to the respondent and which appears on page 63 of Exhibit A; and 14. An email dated 13 September 2012 sent at 11:58am by Ms Homsy to the respondent and which appears on page 48 of Exhibit A;
8. The application alleged (and the respondent admitted) that the respondent knew at the time of receiving the emails referred to above that the emails contained privileged and/or confidential information between Mr Weinberger and his legal representative relating to the District Court Proceedings earlier referred to.
9. The application alleged (and the respondent admitted) that the respondent knew at the time of receiving the emails referred to above that the emails (including the information conveyed by Ms Homsy and/or Ms Dimitriou as recorded in the Investigation Notes) should not have been conveyed to the respondent.
10. The application alleged (and the respondent admitted) that the respondent knew at the time of receiving the privileged and/or confidential information above that Mr Weinberger and Mr Aiken had not authorised the respondent to receive the information.
11. The application alleged (and the respondent admitted) that the respondent failed to disclose to Mr Weinberger and/or Mr Aiken the fact that he was in receipt of the privileged and/or confidential information above.
12. The application alleged (and the respondent admitted) that he failed to disclose to Mr Weinberger and/or Mr Aiken the circumstances of how he came to be in receipt of the privileged and/or confidential information referred to above.
13. The application alleged (and the respondent admitted) that the respondent failed to destroy the privileged and/or confidential information and/or failed to return the privileged and/or confidential information to Mr Weinberger and/or Mr Aiken. The respondent admits that he did not destroy or return the privilege and/or confidential information.
14. In respect of the Investigation Notes the applicant submitted that that document contained information which was confidential and which was not intended for the respondent. The applicant conceded at the hearing that the document may not contain privileged information because the document appears to record a meeting between Mr Aiken, Mr Weinberger, their representatives, insurers and others being persons who may have had conflicting interests. The notes appear to record discussions between those persons as to how to resolve the proceedings commenced against Mr Aiken and possibly involving Mr Weinberger. The applicant submitted that it was clear that the document recorded information which the parties would have regarded as confidential to them. The applicant also submitted that the document did not reveal any improper or corrupt conduct on the part of those persons recorded in the Investigation Notes and that, accordingly, there was no reasonable basis which would justify the release of or use of the information contained in the Investigation Notes.
15. The applicant submitted in respect of the emails referred to above that those emails contained information which was the subject of legal professional privilege and which was confidential to Mr Weinberger and his legal advisor. For example, the email at page 120 is a privileged and confidential communication between Mr Weinberger (as client) and his legal advisor. The same can be said about the email at page 119. The email at page 110 to a Mr Windybank was an email which the applicant now conceded may not be the subject of legal professional privilege because the role of Mr Windybank is not clear but the applicant submitted that it was a confidential communication.
16. The other emails are likewise privileged and confidential because they record information between Mr Weinberger and his advisors or are confidential because they concern his communication with Mr Windybank. The respondent did not deny that the communications were confidential.
17. The applicant made submissions concerning how the information relied upon by the applicant came to the applicant's attention. The applicant referred to a letter dated 6 June 2012 from the respondent to the applicant in which the respondent made a complaint against Mr Weinberger, that was followed by the respondent's letter to the applicant dated 21 September 2012 in which the respondent attached the Investigation Notes. In that letter the respondent continued to assert that there had been improper conduct and conduct to pervert the administration of justice in which Mr Aiken and Mr Weinberger were involved.
18. The applicant relied upon a letter dated 15 December 2012 from the respondent to a firm of solicitors representing Mr Weinberger (that letter being at page 52 and following of Exhibit A). That letter attached a copy of the Investigation Notes and, in the submission of the applicant, demonstrates the willingness of the respondent to make use of the confidential information. An earlier letter had also been sent to the solicitors: see the letter of the respondent dated 6 July 2012 commencing at page 99 of Exhibit A. This letter confirmed that the respondent claimed that Mr Weinberger was liable to the entity associated with the respondent. The applicant submitted that this letter constitutes evidence that the respondent was attempting to recover compensation from Mr Weinberger and that he (the respondent) stood to gain financially if the case against Mr Aiken was settled in favour of the respondent. In the letter dated 6 July 2012 (page 99 of Exhibit A) from the applicant to Mr Weinberger's solicitors, the applicant contended that Mr Weinberger was liable to the entity associated with the respondent.
19. The applicant drew attention to the fact that the information received by the respondent occurred over a period of several months, namely from April and May 2012 (being the information recorded in the Investigation Notes) and thereafter from June through to September 2012.
20. The applicant submitted that the respondent's correspondence with the applicant demonstrated that the respondent lacked remorse, contrition or an understanding of his wrong doing.
21. In support of the above submission the applicant relied upon the respondent's letter to the applicant dated 14 January 2015 (commencing at page 218 of Exhibit A). On page 224 the respondent stated that he believed that Mr Aiken, Mr Weinberger and others were engaged in a conspiracy to "defy being held liable" and that Ms Homsy was a whistle blower "voluntarily assisting me in exposing the conspiracy and cover up".
22. The applicant submitted that there was no justification for the respondent to believe that he was exposing corruption. There was no basis for concluding that Mr Aiken or Mr Weinberger were involved in any corruption. The respondent's true motive could not in those circumstances have been based upon a desire to expose corruption.
23. The applicant drew attention to and relied upon the decision of the New South Wales Court of Appeal in NSW Bar Association v Meakes [2006] NSWCA 340 in which the Court, referring to earlier decisions of the Court of Appeal, said that there is an expectation that legal practitioners will mount the witness box to provide some explanation as to their conduct, rather than simply relying on evidence from the bar table. In circumstances where a prima facie case against a local practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is: "inappropriate and irregular for the legal practitioner to attempt to do so through submission from the Bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath" (see Meagher JA in Coe v NSW Bar Association [2000] NSWCA 13.
24. The applicant referred to ss 496, 497 and 498 of the LP Act. These sections are set out below: 496 Unsatisfactory professional conduct For the purposes of this Act: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. 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. 498 Conduct capable of being unsatisfactory professional conduct or professional misconduct (1) Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act, the regulations or the legal profession rules, (b) charging of excessive legal costs in connection with the practice of law, (c) conduct in respect of which there is a conviction for: (i) a serious offence, or (ii) a tax offence, or (iii) an offence involving dishonesty, (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration, (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth, (f) conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice), (g) conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law), (h) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. (2) Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.
25. The applicant submitted that the application was based upon reliance upon the definition set out in s 497 as well as the principles set out in the decision in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750.
26. The applicant submitted that the conduct referred to in s 498 of the LP Act which is conduct capable of being unsatisfactory professional conduct or professional misconduct is not the only conduct which may constitute unsatisfactory professional conduct or professional misconduct. The applicant submitted that that position is made clear by the introductory words "Without limiting section 496 or 497". In other words, the applicant submitted that conduct may be unsatisfactory professional conduct or professional misconduct notwithstanding that it is conduct which does not fit within any one of ss 498(1)(a) to (h).
27. The applicant submitted that the Tribunal should have regard to the circumstances in which the respondent's conduct came to the attention of the applicant. Those circumstances are described in the letter of 6 June 2012 from the respondent to the applicant (a copy of which commences at page 30 of Exhibit A). The respondent wrote a letter to the applicant on 21 September 2012 (a copy of which commences on page 35 of Exhibit A) and in that letter the respondent attached a copy of the Investigation Notes. In that letter the respondent made complaints against Mr Aiken and Mr Weinberger, and purported to justify the obtaining of the emails and the information in the Investigation Notes. He wrote, for example, that "there is a clear litany of improper conduct and plotting and scheming to pervert the administration of justice in the proceedings" (referring to the District Court proceedings).
28. The applicant submitted that the correspondence referred to above from the respondent to the applicant demonstrated the respondent's lack of understanding of the fact that he should not have had the confidential information provided to him or the emails which had been sent to him.
29. The applicant further relied upon the letter referred to earlier dated 14 January 2015 (commencing on page 218 of Exhibit A) in which the respondent continued to assert that Mr Aiken and Mr Weinberger had engaged in unethical conduct and that he, the respondent, was justified in collecting the information from Mr Homsy in order to support the exposure of a conspiracy and a cover up. The applicant submitted that the respondent did not provide any basis for the view that he had taken as evidenced in that correspondence and that there was no reasonable basis for the respondent's assertion of misconduct, or any cover up.
30. The applicant submitted that privileged information has a "sanctity" and the improper use or release of such information by a person, such as the respondent, not entitled to it constitutes professional misconduct. The applicant submitted that the conduct falls within the description provided in s 497 of the LP Act. In particular the conduct constituted a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence (see 497(1)(a)). Here the consistent failure is constituted by the repeated acceptance of emails over many months and the receipt of the information in the Investigation Notes without any evidence of attempting to dissuade Ms Homsy from providing such evidence or emails.
31. The applicant also relied upon s 497(1)(b) which states that professional misconduct includes conduct of an Australian legal practitioner as set out in that subsection that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.
32. The applicant submitted that the respondent's conduct and in particular his continued acceptance of the confidential information over a period of six months satisfies the common law test of professional misconduct as contained in the Allinson case as such conduct would "be reasonably regarded as disgraceful or dishonourable by professional brethren of good repute and competency" (to quote from Allinson).
33. The applicant relied upon the comments of Rich J Kennedy v Council of the Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 in which his Honour stated: A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrong doing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting... professional character and was indicative of a failure to understand or to practice the precepts of honesty or fair dealing in relating to Courts, ... clients or the public.
34. The applicant also relied upon Frugtniet v Board of Examiners [2005] VSC 332 where Gillard J stated in commenting that all true professions are built on a solid foundation of honesty, that there "must be no hesitation on the part of any member of the legal profession when confronted with a situation which could involve dishonesty to immediately desist from any dishonest conduct".
35. The applicant submitted that a finding by the Tribunal that the respondent was not guilty of unprofessional conduct but was guilty of unsatisfactory professional misconduct would be inappropriate in the circumstances.
36. Finally, the applicant submitted that it is also relevant for the Tribunal to take into account the respondent's apparent complete lack of insight into his own conduct and, in particular, there is a reasonable basis for concluding that if the respondent were to be faced with the same situation again he would repeat the same conduct.

Respondent's Submissions

1. The thrust of the submissions of Ms Haddad was that the conduct engaged in by the respondent was wrong and that there was no excuse for such conduct. However, that conduct occurred in 2012 and it is relevant to consider the nature of the information which the respondent obtained via Ms Homsy. The evidence contained in the investigation notes was second hand hearsay sourced from Ms Homsy and could not have been used for any purpose by the respondent.
2. Ms Haddad submitted that the emails supplied by Ms Homsy did not contain any useful information and there was no information which the respondent could have effectively used to advance his position.
3. Ms Haddad submitted that the respondent's conduct, although improper, did not constitute a grave impropriety. Ms Haddad submitted that the respondent's conduct was not in the category described in Kennedy v Council of the Incorporated Law Institute of New South Wales.
4. Ms Haddad further submitted that the respondent was involved in a unique set of circumstances, that he had been severely affected by the experience of the prior litigation and that he is not a practitioner experienced in litigation. These matters do not excuse the respondent but assist in explaining the respondent's conduct.
5. Ms Haddad further submitted that the Tribunal could not conclude that the respondent would repeat the same conduct in the future. The conduct in question was based upon the respondent's view concerning the existence of corruption. The respondent's view may be unreasonable but it was a view genuinely held. The respondent's letter of 14 January 2015 demonstrates the respondent's honest belief that the information recorded in the Investigation Notes came from an independent investigation which was being conducted.
6. Ms Haddad submitted that it would be reasonable for the Tribunal to conclude that the respondent's conduct was not professional misconduct but rather unsatisfactory professional misconduct. The respondent did not ask for the information to be provided by Ms Homsy and in any event the information was inconsequential. There is no evidence that the leaking of the information by Ms Homsy or its subsequent use by the respondent caused any party to suffer any monetary loss.
7. We should also record that on 7 October 2016 the respondent filed lengthy written submissions in these proceedings, which appear to have been prepared by the respondent personally. They are signed by him. In summary those submissions state that he (the respondent) had to "weigh up between ethical duties and values" in "profound, unprecedented, chaotic, oppressive, abhorrent and prejudicial circumstances and an out of whack hierarchy that prevailed", that is, the "ethical duty of confidentiality and legal professional privilege versus" a "higher and prevailing ethical duty that was compromised and struck at the very heart of the justice system, where the principles of a fair trial, access to justice and the proper administration of justice were at stake". In short, these submissions sought to vigorously defend the respondent's actions.

Applicant's Submissions in Reply

1. Ms Millar for the applicant made submissions in reply to the effect that the submissions of the respondent were inconsistent with the written submissions provided by the respondent in early October 2016. Ms Millar submitted it was relevant that the respondent had changed his position at the eleventh hour.
2. Ms Millar also submitted that the respondent did ask for the information after the initial supply of information from Ms Homsy. At the time he asked for the information he would not have known that the information was inconsequential. However, some information was material. His conduct in receiving the emails was unethical. The respondent took no steps to destroy the emails, nor steps to notify the persons who owned the confidential or privileged information.
3. Ms Millar referred to the letter from the applicant dated 12 December 2014 to the respondent and in particular to question 7(iv) which stated, in summary: Did you ever ask Ms Homsy to obtain information in relation to your proceedings, through her position working at Mr Weinberger's chambers?
4. In the letter of 14 January 2015 the respondent replied in the affirmative adding: Not until after Ms Dimitriou gave me the information in Annexure A of the letter of 21 September 2012 and the initial emails in Annexure B were volunteered and provided to me where I formed the mindset that we were trying to expose fraud and cover up
5. A few lines below the respondent referred to Ms Homsy "who foolishly complied with my request".

Decision

1. Our findings are set out below. The evidence of the applicant is largely uncontested.
2. The evidence discloses that the respondent was admitted to practice on 10 October 1997 and that he is a director of LBC Lawyers. Around 2007 he commenced proceedings in the District Court. A Mr Aiken, solicitor and a Mr Weinberger, barrister acted for him in those proceedings, which were ultimately settled. In or about November 2011 the respondent commenced District Court proceedings against Mr Aiken for professional negligence in connection with the earlier proceedings. Mr Aiken filed a defence which nominated Mr Weinberger as being proportionately liable.
3. Mr Weinberger retained a Chris Wood and a Rob Vorbach of Lee and Lyons Lawyers to act for him. Ms Homsy was a clerk on the floor on which Mr Weinberger maintained his chambers and had access to Mr Weinberger's emails. Ms Homsy's mother, Ms Dimitriou worked with LBC Lawyers at its Fairfield office.
4. Between April and May 2012 the respondent received confidential and/or privileged information from Ms Dimitriou and/or Ms Homsy. Between June and September 2012 Ms Homsy forwarded to the respondent confidential and/or privileged email communications between Mr Weinberger and his lawyers concerning District Court proceedings in which the respondent had an interest.
5. On 7 June 2012 the applicant received a letter of 6 June 2012 from the respondent. That letter complained about the conduct of a number of persons including Mr Aiken and Mr Weinberger. Subsequently by letter dated 23 September 2012 the respondent wrote to the applicant and enclosed the Investigation Notes referred to in the grounds for application. The respondent also enclosed emails from Ms Homsy forwarding emails between Mr Weinberger and his solicitors.
6. In September 2013 Ms Homsy was convicted of an offence under the Crimes Act 1900 (NSW) and sentenced.
7. By letter dated 14 January 2015 the respondent wrote to the applicant and in that letter included explanations concerning his conduct in relation to the emails and other information provided to him by Ms Dimitriou via Ms Homsy. He stated that he believed that Mr Aiken, Mr Weinberger and others were engaged in a conspiracy to "defy being held liable". He stated that he thought that the sender of the information was "acting as a whistle blower, voluntarily assisting me in exposing the conspiracy and cover up". He stated that his view was that he was collecting evidence that "supported the cause to expose the conspiracy and cover up".
8. The particulars set out in the Grounds for Application are admitted save for particulars 1.27 and 2.3. In relation to those two matters the respondent denies that it was not reasonable for the respondent in all the circumstances to: 1. not disclose the fact of receipt, and the circumstances of receipt, of the privileged and/or confidential information referred to in particulars 1.5, 1.6 and 1.8 to 1.21 and 2. not destroy and/or not return, the privileged and/or confidential information referred to in particulars 1.5 to 1.21 of Ground 1.
9. The respondent concedes he received confidential information from Ms Homsy which was confidential and much of which was also the subject of legal professional privilege. That is to say, the information was protected from disclosure because it recorded communications between lawyers and their client and therefore had the protection of legal professional privilege.
10. The information referred to in the particulars was received by the respondent over a period of months. In our view, the respondent had ample opportunities to refuse the receipt of further information from Ms Homsy after the initial supply of information. The respondent also had ample opportunities to disclose the fact of receipt to Mr Weinberger and/or to destroy and/or return the information.
11. However, the respondent did not refuse the information after the initial supply of information by Ms Homsy, did not fully disclose the receipt of the information to Mr Weinberger or his representatives and did not destroy or return the information.
12. The evidence discloses that the respondent requested the information from Ms Homsy and he knew that Ms Homsy did not have authority to release such information.
13. The first of two central issues which counsel for the respondent raised at the hearing was that, although the conduct of the respondent was wrong, the information passed to the respondent was inadmissible and was not information which the respondent could have effectively used to advance his position. Whether this is so or not, our view is that the forensic value of the information given to the respondent is not relevant to the fact that the respondent failed, as asserted in ground 1 to "disclose the fact of receipt and circumstances of receipt of privileged and/or confidential information" and is, in addition, not relevant to ground 2 that the respondent failed to "destroy and/or return privileged and/or confidential information".
14. The respondent himself appears to have thought that the information was of value because by letter dated 5 September 2012 he wrote to Lee and Lyons attaching the Investigation Notes and in that letter made serious allegations against Mr Weinberger arguing that, from the Investigation Notes, one could draw adverse inferences against Mr Weinberger. In our view, the conduct of the respondent is not to be regarded as less serious because his attempts to use the information were unsuccessful or because the information was, as Ms Haddad submitted, "second hand hearsay".
15. The second central issue raised by Ms Haddad was that the respondent genuinely held the belief that he was exposing corruption or other improper conduct. In our view there are a number of difficulties with this submission. First, the respondent has not put forward any evidence which persuasively supports the existence of any improper conduct or corruption. The only evidence relied upon by the respondent were his letters of 6 June 2012, 17 September 2014 and 14 January 2015. However, the respondent declined to give evidence directly. Consistent with the decisions referred to earlier in NSW Bar Association v Meakes and Coe v NSW Bar Association, we are of the view that the respondent's failure to give an explanation for his conduct in a manner which could be tested (i.e. by giving evidence and being available for cross examination) leads to the conclusion that there was never any reasonable basis for the respondent to engage in the conduct which is the subject of these proceedings. Further, we conclude that we cannot be satisfied that the respondent genuinely held the views he articulated in his correspondence concerning corruption and the exposure of improper conduct.
16. We are of the view that there is no evidence that the respondent understands the gravity of his conduct or demonstrates contrition. His counsel's submissions concerning his recognition that his conduct was wrong came only at the hearing. Only a matter of weeks before the hearing the respondent filed submissions in which he continued to justify his conduct. Notwithstanding the submissions made from the bar table that the conduct of the respondent was wrong, there is no evidence before us sufficient for us to safely conclude that the respondent recognises that his conduct was wrong.
17. It is relevant in considering the respondent's conduct to say something about the significance of information which is protected by legal professional privilege (or client legal privilege as it is sometimes called). In Esso Australia Resources v Commissioner of Taxation [1999] 201 CLR 49 the High Court said that the rationale of privilege [i.e. legal professional privilege] has been explained in a number of cases and that the "privilege exists to serve the public interest in the administration of justice by encouraging full and frank disclosure by clients to their lawyers" [par 35]. In our view, the conduct which the respondent in this case engaged in could be described as conduct which attacks or undermines the administration of justice.
18. Accordingly, in our view the conduct of the respondent carries with it an added dimension of seriousness having regard to the significance which the law places upon communications which are protected by legal professional privilege.
19. The applicant argued that the solicitor's conduct identified in the Grounds for Application could properly be regarded as professional misconduct as defined in s 497 of the LP Act.
20. In our view the conduct of the respondent is conduct which responds to the description provided in s 497(1)(b) in that the respondent's conduct justifies a finding that the practitioner is not a fit and proper person to engage in legal practice.
21. The applicant submits that the statutory definition is "inclusive" and that it is the case that the common law concept of professional misconduct retains its relevance. We agree with that submission.
22. Earlier decisions of this Tribunal have acknowledged that the description of professional misconduct provided in Allinson v General Council of Medical Education and Registration remains relevant. In that case the Court referred to conduct which "would be reasonably regarded as disgraceful and dishonourable" by the practitioner's "professional brethren of good repute and competency". In our view, the conduct of the respondent in these proceedings is conduct which fairly fits within the description provided in the Allinson case. Accordingly, we are of the view that based upon the common law concept of professional misconduct the respondent is guilty of professional misconduct.
23. In coming to this finding we have also had regard to the comments made by the High Court in Kennedy v Council of the Incorporated Law Institute of New South Wales (per Rich J) where the Court said: A charge of misconduct as relating to a solicitor need not fall within any legal definition of wrongdoing. It need not amount to an offence under the law. It was enough that it amounted to grave impropriety affecting his professional character and was indicative of a failure either to understand or to practise the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and the conclusion whether it betokened unfitness to be held out by the court as a member of a profession in whom confidence could be placed, or on the other hand, although a lapse of propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by the general survey of the whole transaction.
24. Having made the above findings, by reason of the provisions of s 562 of the LP Act, we are able to make one or more of the orders set out in that section. One such order includes an order that the practitioner be removed from the roll of practitioners.
25. It is generally accepted that the Tribunal's role with respect to the issue of a penalty or other orders under the LP Act is a protective, not a punitive role (Law Society of New South Wales v Bannister (1993) LPDR 24).
26. The issue for our determination in these circumstances is whether the respondent has been shown not to be a fit and proper person to remain on the roll (see Prothonotary of the Supreme Court of NSW v Dimitrious [2015] NSWCA 258). Having regard to the conduct of the respondent, his apparent inability to recognise the wrongfulness of his conduct and his own unwillingness to properly give an explanation of his conduct, we are of the view that the respondent is not a fit and proper person to remain on the roll. Furthermore, we are of the view that there is no evidence that the respondent's conduct which occurred in 2012 does not continue to reflect his present character and fitness. In other words, we are not satisfied that during the period since the conduct in question occurred he has demonstrated that he is in a relevant sense a "different man" (see Health Care Complaints Commission v Litchfield (1997) 41 NSWLR 630).

Orders

1. In these circumstances the Tribunal makes the following orders: 1. The respondent is guilty of professional misconduct in relation to both grounds 1 and 2; 2. The respondent's name is to be removed from the roll of lawyers; and 3. The respondent is to pay the costs of the applicant as agreed or assessed.

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 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: 16 January 2017