Legal Services Commissioner v Livers

The Disciplinary Allegations

1. The disciplinary application has one ground subdivided into three allegations. For convenience in these reasons we will usually refer to the allegations separately as Grounds 1.1, 1.2 and 1.3.
2. The three allegations are supported by a common set of particulars, Particulars 1 to 25.
3. Particulars 1 to 12 deal with the history of the previous claim, first the making of a claim on the insurer in March 2012, and then when it was declined the making of an application to the WCC 'the July 2012 claim'.
4. Particulars 13 to 25 deal with the history of the funding application.
5. The first allegation is: Ground 1. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: Altering the date on an audiogram dated 1 March 2012 to read 1 March 2014.
6. Background: An audiogram had been undertaken in March 2012. It was submitted to the insurer in respect of the prior claim. It was re-used and submitted in support of the funding application under notice. The stated year 2012 had been altered in handwriting to 2014. There were no other amendments to this document.
7. The second allegation is: Ground 1. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: 1.2 Drafting and relying on his client's statement dated 1 March 2014, which he knew was false, or he was recklessly careless as to whether or not the statement was false in a material particular namely that his client did not make a claim earlier for hearing aids.
8. Background: The practitioner also re-used the client statement submitted to the insurer and the WCC in support of the prior claim. He has consistently admitted that he deliberately altered paragraph 7 of the original statement to add the words underlined below: I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test.
9. He has also admitted that he added a fresh paragraph 9, to which we refer further below. The practitioner does not dispute that there was an initiating claim to the insurer (22 March 2012) that including a claim for hearing aids. However, he asserts that the application made to the WCC on 4 July 2012 after that claim was rejected (July 2012) did not cover hearing aids. He does acknowledge that when he applied to relist the matter with the WCC in February 2014 that was for the purpose of obtaining a medical expenses order covering hearing aids. That application was withdrawn in May 2014. A more detailed history is given in our reasons below.
10. The third allegation is: Ground 1. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: 1.3 Preparing and/or relying on an application for an ILARS Grant dated 19 September 2014, which contained material omissions and/or false assertions.
11. Background: Grounds 1.1 and 1.2 relate to the contents of the two supporting documents forwarded with the funding application. Ground 1.3 puts in issue the contents generally of the application itself as well as the contents of the two supporting documents. Particulars 15 to 18 set out the Commissioner's case in support of Ground 1.3, as follows: 15 The Application including the attachments contained the following statements each of which the Respondent knew was false, or the Respondent was recklessly careless as to whether or not the statements were false, in a material particular: 15.1 Mr Souaid had not made a claim prior to 19 June 2012 relating to the injury the subject of the Application - answer to question 3, page 1 of the Application. 15.2 Mr Souaid's current employer was North Sydney TAFE - answer to Part A question 3 and Part B question 2 of the Application. 15.3 There was no dispute with the insurer - answer to Part B question 1(c) of the Application. 15.4 No dispute had been notified to the insurer - answer to Part B question 1(d) of the Application. 15.5 Proceedings had not been filed in the Workers Compensation Commission - answer to Part B question 1(e) of the Application. 15.6 This was a preliminary investigation - answer to Part C question 1(a) of the Application. 15.7 Mr Souaid wanted to apply for hearing aids only - answer to Part C, question 1(b) of the Application. 15.8 There had not been any past section 66/67 claims or payments - answer to Part C, question 3(a) of the Application. 15.9 No prior claims for industrial deafness had been made - answer to Part C, question 3(g) of the Application. 15.10 A recent audiogram from a qualified audiologist was attached - answer to Part C, question 3(g) of the Application. 15.11 No prior claims for industrial deafness had been made - answer to Part C, question 5(e) of the Application. 15.12 A recent audiogram from a qualified audiologist was attached - answer to Part C, question 5(e) of the Application. 15.13 The audiogram attached to the Application was purportedly dated 1 March 2014. 15.14 Mr Souaid had not made a claim earlier for hearing aids as he was not aware he had industrial deafness until a friend of his introduced him to the Respondent who arranged a hearing test - paragraph 7 of the statement of Mr Souaid dated 1 March 2014 (being one of the attachments). 16. The Audiogram referred to in particulars 14 and 15.13 was an identical copy of the Audiogram referred to in particular 3 [i.e. the one used in support of the 2012 application], however the Respondent altered the date to read '1.3.14'. 17. The Respondent certified on 19 September 2014 that the contents of the Application were true and correct and the Respondent as not aware of any other relevant material subject to the Application for an ILARS grant. 18. The statements in the Application set out in particular 15 were false and/or misleading.

Practitioner's Position

1. In his Amended Reply filed 7 December 2016, the practitioner had stated that: (a) he had a proper basis for the funding application; (b) the audiogram had formed a supporting document to the claim made on the insurer in March 2012 which preceded the application made in July 2012 to the WCC; and denied that he had altered its date when it was used as a supporting document for the funding application under notice (Ground 1.1), or that he had instructed an employee to alter, the audiogram; (c) he had no reason to alter the audiogram; (d) he did re-use the client's statement made in March 2012 and submitted to the insurer and the WCC in support of the prior claim, and was responsible for making certain handwritten amendments to its text (but denied that they included the alteration of the date); (e) in relation to the allegations made by Grounds 1.2 and 1.3, he accepted that there were inaccuracies and omissions in the application, and he should have exercised greater care in checking it before forwarding it to WIRO; and (f) in relation to Ground 1.3 he conceded that he had been negligent, that a finding of unsatisfactory professional conduct was warranted, and a fine was appropriate.
2. The application proceeded to hearing on 15 March 2017, confined to the making of findings in relation to the three allegations. The practitioner gave oral evidence and was cross-examined. We resumed on 19 April 2017 to hear closing submissions in relation to our findings.
3. At the commencement of the hearing counsel for the practitioner, Ms Withana, informed the Tribunal that her client had altered his position, and now acknowledged in relation to the conduct the subject of Ground 1.2 and Ground 1.3 that he was guilty of professional misconduct. He accepted that he had been negligent in the drafting of his client's statement with the result that it was misleading as to the making of a prior claim (G1.2), and that he had been negligent in failing to check carefully the statements made in the funding application, before certifying them to be true and correct (G1.3). He continued to deny the allegation in Ground 1.1 that he altered the date of the 2012 audiogram to 1 March 2014.
4. We, perhaps mistakenly, understood that the practitioner now conceded, at least so far as Ground 1.2 was concerned, that he was guilty of reckless carelessness as it only pleaded that he had engaged in the making of a false statement in his alteration to the words of paragraph 7 or had been recklessly careless in that regard. Mere carelessness or negligence had not been pleaded.
5. The distinction between wilful and deliberate misconduct, recklessly careless misconduct and conduct that though unacceptable is merely careless is an important one in this area of the law. While it is generally accepted that an adverse disciplinary finding, typically one of professional misconduct, will follow if the misconduct under notice is found to have been wilful and deliberate, or recklessly careless, the outcome may vary where the finding is one of (mere) negligence or carelessness. A negligent act might give rise to a lesser disciplinary finding of unsatisfactory professional conduct, or not be seen, in the circumstances, to infringe disciplinary standards though unacceptable.
6. As to what is meant by 'reckless carelessness', the leading statement is that of Hardie J in Re Hodgekiss 1962 SR (NSW) 340; 79 WN (NSW) 163. The disciplinary authority there had sought a finding against a lawyer on the basis that the conduct under notice involved 'wilful negligence'. Hardie J began his examination of what was required to prove wilful negligence by referring to an English case, Re City Equitable Fire Insurance Co Ltd [1925] Ch 407. There Romer J drew a distinction between 'gross negligence arising from careless recklessness' and 'wilful neglect or default'. Romer J considered that reckless carelessness should properly be seen as a type of wilful neglect or default. Hardie J adopted Romer J's analysis. Hardie J said at 352: … [I]n that case the question for decision was the meaning of the phrase "wilful neglect or default" in a provision in the articles of association of the company limiting the liability of directors for loss suffered by the company by reason of the exercise of their powers and duties. Romer J. reviewed a number of earlier decisions dealing with the phrases "wilful default" and "wilful misconduct" in contracts of sale and other instruments, and then proceeded … "the difficulty is not so much in ascertaining the meaning of the adjective "wilful", as in ascertaining precisely what is the noun to which the adjective is to be applied. An act … is wilful where the person … knows what he is doing and intends to do what he is doing. But if that act or omission amounts to a breach of his duty, and therefore to negligence, is the person guilty of wilful negligence? In my opinion that question must be answered in the negative unless he knows he is committing, and intends to commit, a breach of his duty, or is recklessly careless in the sense of not caring whether his act or omission is or is not a breach of duty" … "Wilful misconduct means misconduct to which the will is party as contradistinguished from accident and is far beyond any negligence, even gross or culpable negligence, and involves that a person wilfully misconducts himself who knows and appreciates that it is wrong conduct on his part in the existing circumstances to do, or to fail or omit to do (as the case may be), a particular thing, and yet intentionally does, or fails or omits to do it, or persists in the act, failure or omission regardless of consequences … or acts with reckless carelessness not caring what the results of his carelessness may be". … "[A] person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it is a breach of his duty or not".
7. See also the discussion of this distinction in Leon Nikolaidis v Legal Services Commissioner [2007] NSWCA 130 per McColl JA; and in Guidice v Legal Profession Complaints Committee [2016] WASCA 159 (WA Court of Appeal).
8. In her closing written and submissions on 19 April 2017, Ms Withana submitted that no finding of deliberate falsity or reckless carelessness should, on the evidence, be made against her client in respect of Ground 1.2. To adapt the words of Romer J, the evidence did not warrant a finding that the practitioner had either intended deliberately to mislead WIRO or had been recklessly careless as to the accuracy and truthfulness of the information he submitted to WIRO.
9. His position therefore, as we apprehend it, must now be, despite the seeming concession in the opening submissions, that he does not now admit Ground 1.2, as it is pleaded.
10. In relation to Ground 1.3 he accepts that the funding application contained material omissions, but does not accept that there were any 'false' assertions if that is meant to suggest that he knew them to be false at the time. Particulars 15 and 18 include that allegation.

Written Evidence before Tribunal

1. The following is the written evidence is before the Tribunal: Commissioner: Affidavit in Support of application (John McKenzie, Legal Services Commissioner), filed 17 February 2017 (Ex A1) annexing Ex JM1; Affidavit of Tamera McManis, Principal Lawyer, Workers Compensation Independent Review Office, filed 17 February 2017 (Ex A2). Practitioner: Affidavits of the practitioners filed 2 November 2016 (Ex R1, annexing Ex PJL1) and, a supplementary affidavit making some corrections to Ex R1, filed 7 November 2016 (Ex R3); Affidavit of Effie Anthony, practitioner's legal secretary at relevant times, filed 4 November 2016 (Ex R2). Affidavit of Jennifer Ann Shaw, practitioner's solicitor, dated 14 March 2017 (Ex R4), relating to Ms Anthony's inability to attend and give evidence (Ex R4, allowed into evidence, on day 2, subject to qualifications).

Oral Hearing

1. At the commencement of the proceedings on 15 March 2017, both parties handed up opening written submissions, and spoke to them. The Tribunal proceeded to hear oral evidence. The practitioner gave oral evidence and was cross-examined.
2. The applicant had required the practitioner's secretary, Ms Effie Thomas, for cross-examination in respect of her affidavit. She was responsible for typing up the funding application. She did not make herself available.
3. Ms Withana for the practitioner submitted that reasonable attempts had been made to procure her attendance, and the practitioner wished to avoid any adverse inference in relation to her non-attendance. The Commissioner did not dispute that reasonable attempts had been made, but reserved his right to apply for a summons if a need arose in the course of the hearing to test the practitioner's evidence in relation to matters of which Ms Thomas might have knowledge. As noted in our account of the evidence before us, we received into evidence on day 2 of the hearing an affidavit from the practitioner's solicitor as to the attempts made to obtain her attendance.
4. In our directions at the end of day 1, we had limited the parties to the making of oral submissions on the question of liability. As it transpired, on day 2, counsel for the practitioner handed up written submissions together with a folder of case law authorities that included a transcript of the hearing on day 1. We proceeded to hear the parties' oral submissions, and gave the Commissioner liberty to file any written submissions in reply within seven days. The Commissioner filed written submissions in reply within the time allowed, on 26 April 2017.

Relevant Evidentiary Principles

1. We are bound to observe the rules of evidence in proceedings under the LP Act in relation to a question of professional misconduct: Civil and Administrative Tribunal Act 2013, Sch 5, cl 20. The Evidence Act 1995 is therefore applicable. These are civil proceedings for the purpose of that Act, and the civil standard (the balance of probabilities) applies to the making of findings: s 140(1), Evidence Act. Section 140(2) provides: (2) Without limiting the matters that the court may take into account in deciding whether it is so satisfied, it is to take into account: (a) the nature of the cause of action or defence, and (b) the nature of the subject-matter of the proceeding, and (c) the gravity of the matters alleged.
2. This provision accords with the principles enunciated in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 by Dixon J. His Honour cautioned that care must be taken in finding a matter proved on the balance of probabilities where the consequence of the finding is grave. The proofs should be commensurate to the gravity of the finding. He observed at 361-2 that: The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences.
3. Counsel for the practitioner drew attention to the High Court's further consideration of Dixon J's statement in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170; (1992) 110 ALR 449 (citations omitted): The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent proof is necessary "where so serious a matter as fraud is to be found". Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct.
4. We agree with Ms Withana's submission that the circumstances must do more than give rise to competing inferences of equal probability where any choice would come down to a matter of conjecture. We accept the observations of Lord Wright in Caswell v Powell [1940] AC 152 at 169 (cited with approval in JD Heydon, Cross on Evidence (10th Aust. Ed., 2015)): There can be no inference unless there are objective facts from which to infer the other facts which it is sought to establish. In some cases, the other facts can be inferred with as much practical certainty as if they had actually been observed. In other cases, the inference does not go beyond reasonable probability. But if there are no positive facts from which inference can be made, the method of inference fails and what is left is mere speculation or conjecture.
5. The Commissioner emphasised in his closing written submissions in reply the following passage in Kennedy v The Council of the Incorporated Law Institute of NSW (1939) 13 ALJ 563 at 563-4 per Rich J: 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 from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, was to be reached by a general survey of the whole transaction.
6. His submissions emphasised at a number of points the need to make an informed, practical assessment of the whole of the transaction informed by the protective function of disciplinary standards.
7. We agree with that submission, and have approached the evidence before us in that way, conscious of the caution sounded by Lord Wright in relation to the making of findings based on inference.

(1) The 2011 and 2012 claims

1. The practitioner's client, Mr Souaid, worked as a cleaner between 1985 and 2008, mainly in hospitals. In 2011, he had lodged with the WCC, via his then solicitors, an industrial hearing loss claim and was unsuccessful. On the recommendation of a friend, he took his case to the practitioner. In November 2011, he instructed the practitioner to make a new claim.
2. The practitioner arranged for a loss of hearing assessment from a WCC approved ENT surgeon, Dr Stylis. Dr Stylis duly reported. The practitioner also drafted a statement for his client to sign.
3. On 22 March 2012, the practitioner made the following claim on the insurer, Allianz. We ... hereby claim under sc. 66 & 67 of the [Workers Compensation] Act for industrial deafness whole person impairment being In the sum of $13750 & $10,000 and the cost of the manufacture and the fitting of hearing aids under sc. 60 expenses. [sic]
4. His letter included a completed claim form filled in by his client (Form 1 under the WC Act, and the form were headed Industrial Deafness: Notice of Injury). Attached to it was the client's statement in support which bore the handwritten date, '1.3.2012'; and Dr Stylis's report bearing the same date. These are the documents subsequently re-used in support of the funding application under notice.
5. Client Statement. The statement had eight paragraphs. Paragraphs 1 to 3 referred to his personal background, and then at paragraph 4 there was a description of the work he had performed in the years 1970 to 2008. Between 1985 and 2008 he had worked as a cleaner in the TAFE sector. He attributed his hearing loss to the noise of the cleaning machines he had used during those years. Paragraph 7 stated: 7. I say I did not make a claim earlier as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test.
6. It is apparent from the history so far given that this statement is problematic. There is no reference to the claim rejected in 2011.
7. The final paragraph, paragraph 8 dealt with family history in respect of the deafness and his exposure in his private life to noise.
8. Medical Report. In his report, Dr Stylis assessed Mr Souaid as a having binaural hearing loss of 21% which for the purposes of the workers compensation scheme equates to 11% of total body impairment, and falls above the claim threshold. He recommended the provision of hearing aids, named a particular type of hearing aid that would be suitable and attached a quotation from Comfort Hearing and Services Pty Ltd for supply and fitting, $5322.35. Dr Stylis's report attached the audiogram he had taken. The audiogram bore the handwritten date '1/3/12', placed in the space provided near the top right-hand side of the page.
9. Insurer's Decision. The insurer rejected the claim. It had regard to the prior claim made on 9 August 2011, via Mr Souaid's then solicitor. On that occasion, a specialist had assessed Mr Souaid's degree of hearing loss at 5.9% which for the purposes of the workers compensation scheme equates to 0% whole person impairment.

(2) Application to WCC for Resolution of the Dispute

1. On 4 July 2012, the practitioner lodged an application to resolve a dispute with the WCC. He completed the standard form.
2. On the first page, there is the heading '1.1 Claim to which dispute relates' with the subheading '1.1A. For referral for determination by the Commission (under s 288 of the Act).
3. There is a box 'Lump sum compensation where liability in dispute'. It is marked with an 'X'. (This is commonly known as an s 66 claim.) The rest of the boxes are left blank. Two of boxes left blank bear on issues that have arisen in the present proceedings. One is the box 'Medical expenses'. (This is commonly known as a s 60 claim) The other is the box 'Compensation for pain and suffering'. (This is commonly known as an s 67 claim.)
4. The next heading is '1.1B. For referral to an Approved Medical Specialist (s 293 of the 1998 Act)'. There are two boxes, one is marked with an 'X' - 'Lump sum compensation where degree of permanent impairment in dispute'.
5. The next part of the form '1.2' requires the provision of Compliance Documentation. The form attached correspondence relating to the insurer's 'Failure to Determine'. The form recorded the relevant reference numbers. The Injury Details section of the form gave the date of injury as 1 January 2008, the place of injury as the respondent employer's premises, and described the injury as 'industrial deafness'.
6. At point 5.6 of the form there is a heading, 'Permanent impairment including pain and suffering'. The form gives '1/1/2008' as the date of injury and describes it as 'industrial deafness whole impairment'. Under the heading 'Percentage %' the number '11' appears and under 'Amount claimed $' the amount '13750'. Below the space for that information there is a further category headed 'Pain and suffering' where the form shows the '%' as '11' and the 'amount claimed' as '$10,000'. This is followed by a heading: 'Supporting Documentation'. The form has attached, among other items, the client statement dated '1.3.12', the signed form and the medical report. All the insertions to which we have referred were done in handwriting.
7. It will be seen that this part of the claim is completed inconsistently with the markings under heading 1.1A. There the claim was expressed to be for lump sum compensation and the box for pain and suffering compensation had been left blank.
8. Liability Determination: The WCC arbitrator issued a Certificate of Determination - Consent Orders on 11 June 2013. Clause 1 of the Certificate amended the date of injury to 1 February 2008. Clause 2 referred to the material treated as evidence in the proceedings and material excluded from treatment as evidence. There followed Short Reasons.
9. Clause 3 stated: 3. I direct the matter be referred back to me [the arbitrator] following issue of the Medical Assessment Certificate to determine the question of whether hearing aids are reasonably necessary and as to question of s 67 entitlements, if any.
10. Clause 4 stated 'Costs reserved'.
11. The question of the employer's liability had been determined. Now the question was the amount of compensation. It will be seen that the directions treated as still in dispute the head of claim relating to pain and suffering (s 67) and raised the issue of medical expenses in the form of hearing aids (s 60). It would appear that the principal head of claim (lump sum compensation for whole person impairment, s 66) was no longer in issue.
12. Compensation Determination: On 8 November 2013, the WCC issued a Certificate of Determination - Consent Orders, as follows Consent Orders 1. That the Respondent agrees to pay the Applicant the sum of $15,400.00 in relation to 11% whole person impairment in respect of loss to hearing. 2. That the Respondent agrees to pay the Applicant the sum of $5,000.00 in respect of Section 67 for pain and suffering. 3. That the Respondent agrees to pay the Applicant's costs and disbursements as agreed.
13. It will be seen that this Order addressed the s 67 claim (pain and suffering) but there is no reference to the hearing aids/medical expenses issue (s 60).

(3) Further Claim on Insurer

1. On 20 January 2014, the practitioner wrote to the insurer's solicitor as follows: We refer to the above matter and we note that the MAS certificate issued on the 23rd August 2013 by Dr Howson assessed his hearing disability at 22.6%. We enclose herewith consent orders made on the 11th June 2013 and iNi [sic] particular paragraph 3. Does your client concede that our client requires hearing aids otherwise we shall relist this matter for determination. We await your reply.
2. The insurer did not accept the claim.

(4) Relisting before WCC

1. The practitioner had the matter relisted. The WCC issued a Notice of Teleconference on 7 March 2014.
2. On 6 May 2014, a further Certificate of Determination - Consent Orders was issued. It stated: In this matter, a telephone conference was held where the parties were assisted by me, acting as Arbitrator, to come to an agreed resolution of the issues in dispute. By reason of their agreement, and in accordance with Rule 15.9(1) of the Workers Compensation Commission Rules 2011, the determination of the Commission in this matter is as follows: Consent Orders The applicant elects to discontinue the Application to Resolve the Dispute and I dispense with the need to file a Notice of Discontinuance pursuant to Rule 15.7

The September 2014 Funding Application

1. The practitioner then decided to pursue a claim for hearing aid expenses relating to the circumstances the subject of the 2011-2014 claims process. To that end he prepared the funding application to which the charges before us relate.
2. The practitioner's explanation for his conduct is common to all three Grounds. We will deal first with Ground 1.3, the completion of the form and its approval by him, but make references in the course of dealing with that Ground to Ground 1.1 (alteration of audiogram date) and Ground 1.2 (the failure of the client statement, as submitted, to refer to the prior claim for hearing loss). We will then deal separately with Grounds 1.1 and 1.2.

Consideration of Ground 1.3

1. To reiterate, Ground 1.3 is: Ground 1. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: 1.3 Preparing and/or relying on an application for an ILARS Grant dated 19 September 2014, which contained material omissions and/or false assertions.
2. Admitted Inaccuracies: The practitioner acknowledged the following inaccuracies in the form and supporting documentation submitted: (1) Question under the heading Eligibility at the beginning of the form: Answering 'No' to the as to whether there had been any claim made prior to 19 June 2012. He now admitted that the answer should have been 'Yes' and referred to the insurer made on 22 March 2012. (2) Identity of Claimant's Employer (Question A3): He admitted that the form failed to identify correctly the client's employer. The form stated ''North Sydney TAFE'. It was evident from the WCC record of the proceedings in 2012 that his actual employer was a private contracting service that had done work for North Sydney TAFE. (3) Identity of Insurer (Question A4). The form failed to identify the insurer (4) Whether dispute with Insurer. The form answered 'No' to Question B1 (c) 'Is there a dispute with the Insurer' and to Question B1(d) 'Has the dispute been notified to the insurer?' and to Question B1(e) 'Have proceedings been filed in the WCC?'. (5) Details of the Matter. The answer given to Item C1 of the form [Describe the details of your matter and the legal action you wish to take] at point (a) was to undertake a 'Preliminary Investigation'. The form described the legal action he wanted to take at Item C1 (b) as 'We want to apply for hearing aids only'. The Commissioner alleges that the practitioner failed to disclose the prior history on this issue. The answer did not indicate the past receipt of s 66 and s 67 compensation. (6) History of Prior Hearing Loss Claims. The form answered Question C3(g) (which asked whether this was a 'hearing loss claim'), with 'Yes' and then answered 'None' to the further request (C3(g)(i)): '(ii) please provide details of any prior claims for industrial deafness?'. (7) Recent Audiogram. The next request (item C3(g)(iii)) was '(iii) Please attach the following documents'. The form referred to two types of documents. One was for: 'A recent audiogram from a qualified audiologist providing calculations of the worker's binaural hearing loss after making any relevant deduction for presbycusis.' This box was marked, and it attached the Stylis audiogram of 1 March 2012, with the date altered to 1 March 2014. The practitioner has consistently denied altering the date in that way. (8) Whether Hearing Loss Claim. At Item C6 [Medical Treatment, Home modifications, Domestic Assistance] Question (e) is: 'Is this a hearing loss claim?' The form answered 'Yes'. In relation to the details of the claim, it referred to the attached Client Statement. The application attached the Client Statement of 1 March 2012 in an altered form. Paragraphs 1 to 6 were unaltered. But paragraph 7 now read (new handwritten text underlined): 7. I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test. Paragraph 8 as drafted in 2012 remained unamended, and read: 8. I say I have no history of ear problems or infections or family incidences of deafness. I have never been the subjected to inordinate noise in hobbies or exposure to any gunfire. Paragraph 9 was an entirely new paragraph, all in handwriting and read: 9. I have not been fitted with hearings [sic] before. The practitioner has consistently admitted that he made the alterations to paragraph 7 and added paragraph 9. (9) Details of Prior Claims for Industrial Deafness. The form answered 'Not Applicable' to the request at Item 5C(ii) 'Please provide details of any prior claims for industrial deafness'. (10) Final certification. At the end of the document there is a Part E headed Consent and Declaration. He signed the following Certification: I certify that the contents of this documentation are true and correct and I am not aware of any other relevant material subject to this application for an ILARS grant.
3. He disputes the Commissioner's general assertion (Particular 15) that The Respondent knew [each of the above omissions or statements] was false, or the Respondent was recklessly careless as to whether or not the statements were false, in a material particular.
4. Similarly, he denies Particular 18 going to the same area: The statements in the Application set out in particular 15 were false and/or misleading.
5. He admits carelessness but not reckless carelessness or dishonesty.
6. He has consistently denied that he was actively involved in the itemised completion of the form itself. His version of events is that he left the file out for his secretary in the usual way. She filled in the form using the file. As we have noted earlier, from the outset of the Commissioner's investigation and during these proceedings, he blamed many of the errors that appeared in the form on his secretary, Ms Anthony. We deal more fully with this suggestion in our consideration of Grounds 1.1 and 1.2.
7. He admits that he was careless in not carefully checking the form as completed before submitting it to WIRO. He conceded that he had been 'negligent in signing the application without reviewing the correctness and accuracy' of 12 of the 14 statements made in the application (P15.12 and P15.13 is not listed), and the accuracy of the two supporting documents (the audiogram and the client statement). He also conceded that he had been negligent in the same way in relation to the audiogram attached to the application, and not seeing that it had possibly been re-dated.

Explanation for Conduct

1. The practitioner has consistently asserted that the funding application was endorsed by him and sent, innocent of any intention to make a false or misleading statement, whether by commission or omission.
2. At hearing, he pressed his view that the final orders of the WCC made in November 2013, and confirmed in May 2014, did not preclude the making of a belated claim for hearing aid expenses. He said that he had formed the opinion that it was legally permissible to re-agitate the hearing aids claim despite the insurer's opinion that s 59A, inserted into the Act in 2012, barred compensation for medical and related treatment received more than 12 months after a claim for compensation was first made in respect of the injury (unless the worker was in receipt of weekly benefits). For claims made before 1 October 2012, where the worker was not in receipt of weekly benefits, the 12-month period commenced on 1 January 2013 (Schedule 8, Part 1, Clause 5 of the Workers Compensation Regulation 2010).
3. He argued that he had a reasonable belief that the September 2014 claim was not one of a kind that was precluded by this provision based on some early arbitrator decisions interpreting the new provision. He argued in his evidence that by reason of his interpretation he had a 'proper basis' for 13 of the 14 statements that were put in issue by Particular 15 as omissions and misleading statements in the form. He did not include Particular 15.13 in that list. Particulars 12 and 13 refer to the audiogram attached to the application. We deal with that issue below in our consideration of Ground 1.1.
4. While he acknowledged that there had been a claim for hearing aids to the insurer in the correspondence of March 2012, he denied that there was 'ever' a claim for hearing aids in the July 2012 application to the WCC. He relied in coming to that conclusion on the fact that the way the formal application was filled in did not include any text in relevant terms, either as an application for 'medical expenses' or more specifically as an application for 'hearing aids'.
5. He ultimately conceded that the client statement as he had redrafted it at paragraph 7 was wrong to say there had been no prior claim for hearing aids, even his assertion that it did not form part of the WCC proceedings was accepted.
6. It is clear that the statement, as redrafted, hid from view the March 2012 claim on insurer. He acknowledged that omission. Under cross-examination he conceded that the adjective 'successful' should have been inserted ahead of the work claim, to read: 'I say I did not make a successful claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test.
7. He was questioned as to the why the hearing aids issue had not been actively pursued and resolved in the hearings before the WCC in 2013. His attention was drawn to the clause in the arbitrator's determination of June 2013 reserving the issue to the quantum stage of the proceedings. He asserted that the matter had not been revisited prior to the making of the final determination in November 2013.

Assessment

1. In our view, the requirements of the WIRO form were clear, and full answers were required. It is no answer to argue that the failure to refer to the previous claims history was permissible because no claim for hearing aids had formed part of the WCC determination process. It is plain that the claim that underlay the WCC process, and was a pre-condition to entry into that process - the claim on the insurer, had included a claim for hearing aid expenses.
2. In our view, the practitioner repeatedly gave answers at hearing that were evasive in relation to his failure to advise WIRO of the true history of the matter. Even if it was the case that an expenses claim could be pursued outside the new 12 months bar apparently set by s 59A, that did not justify a complete failure to refer to the prior claims history in the funding application.
3. We found his explanations entirely unsatisfactory.
4. In our view, it is unlikely that an experienced practitioner in the jurisdiction, as the practitioner is and was, would have overlooked the need to finalise the expenses component of a medical expenses element (hearing aids) of a claim of the present kind as part of the overall settlement of a claim. This was a case where the injury had stabilised and the assessing specialist had made a specific recommendation for the provision of hearing aids. In our view, the reference to the issue in the arbitrator's interim determination of June 2013 reflects that approach.
5. In our view, the more likely explanation for what unfolded in September 2014 is that the practitioner mistakenly failed to deal with the issue as part of the terms of the final orders made by consent in November 2013, and then moved to reopen the matter. He first attempted to do this by the claim on the insurer in January 2014, and the subsequent lodgement of a reopening application with the WCC in February 2014, subsequently discontinued by consent in May 2014. That should have been an end to the matter. Instead he then decided, whether out of embarrassment or for more self-interested reasons, to reagitate the matter, and to that end proceeded to make a funding application to WIRO. It was clearly in his interests to conceal the prior history, if he was to succeed in that application.
6. It was improper, we consider, of the practitioner to recycle the client statement of 2012 and the audiogram of 2012 in the way he did. Moreover, we are satisfied that the amendment made to the client statement, which he acknowledges he drafted and made, was designed to hide from view the prior claims history. We do not accept that that was not his intention at the time he drafted the statement. The amendment was a precise one that, in our view, reflected a consciousness on the part of the practitioner to seek to hide from view the earlier hearing aid claims history, both in relation to the insurer and the WCC.
7. This consciousness of the significance of non-disclosure of the prior history is seen also in the omissions and inaccuracies found in the application form itself. Many of the standard questions in the form were cast in broad terms. They asked both specifically about hearing loss claims and more generally about industrial deafness claims. There can be no doubt that the 2012 claim was an industrial deafness claim. Yet it was not disclosed. In our view, he gave no credible response to the failures to answer correctly the questions at items C3(g)(ii) and (iii) of the form.
8. The practitioner repeated his view that the funding application related to a 'new injury' as compared to the 2012 application. The new injury was the injury that required attention through the provision of hearing aids not the general injury, 'industrial deafness', which he said had been the subject of the 2012 application.
9. In our view, this explanation was spurious, and reflects badly on a practitioner of great experience. It was an attempt, like the reading of the law as amended, to introduce legalistic explanations for the making of an application that was, on any reasonable view, based on the same work circumstances as the prior claim. The provision of hearing aids is the consequence of an injury claim, it is not the 'injury' to which the claim relates as the practitioner strangely suggested.
10. A competent, fair-minded practitioner would have recognised that the fact that a previous application of a similar kind had been made on behalf of the client arising out of the same set of circumstances would be a material matter for WIRO.
11. In explanation of his failure to include greater detail in the answers in relation to the prior claim and its outcome, he said (ts. 40: 15-19, 15 March 2017): If the WIRO application gave you more space to make submissions, then ... my answers to the application would be more clearer and certain. [sic]
12. This answer was specious. The form was in evidence. It is well designed, and has adequate boxes for additional text. In any event, practitioners are accustomed to supplying additional information as part of the process of filling in standard forms, and do so in a variety of ways, most commonly by annexures.
13. We are satisfied that he intentionally suppressed information about the nature and scope of the prior claim of a kind that any competent practitioner would have recognised as relevant to the decision to be made by the funding authority, WIRO. Had he a genuine belief that the prior claim and its outcome did not foreclose the possibility of a new hearing aids claim, he should have informed WIRO of that.
14. Moreover, his application for funding was not, on its face, in any event confined to the issue of hearing aids, in the way he claimed in his evidence,
15. Part E of the form is headed Consent and Declaration and the applicant practitioner is required to sign the form at the foot of Part E. There are three requirements. Each was marked 'yes' by the practitioner. It is not necessary for this purpose to set out item 1, the Client Consent requirement or item 3, the Client and Solicitor Consent (to the role of WIRO in the proceedings if assistance is given). Item 2 was as follows: 2. If your application is for whole person impairment please answer the following question: Based upon your client's current instructions and your experience, do you believe there is a reasonable prospect of your client exceeding the Whole Person Impairment threshold of 11% pursuant to section 66(1) of the Workers Compensation Act 1987 (as amended) or 15% in respect of psychological injuries.
16. In our view, the answer of 'Yes' could only have been reasonably understood as indicating an intention on his part to pursue a new Whole Person Impairment claim on behalf of his client. In our view, this answer provides further support for our conclusion that his explanation that all he was trying to achieve in acting in the way he did was to have addressed hearing aids component of his client's losses was a contrived one.
17. Item 4 in the form requires the given of practitioner's certification. It appears immediately above the signature clause. 4. Certification I certify that the contents of this documentation are true and correct and I am not aware of any other relevant material subject to this application for an ILARS grant.
18. According to the practitioner's evidence, the client's original reason for coming to him was simply to get a payment to enable him to get hearing aids. While the practitioner procured, what appears on its face to have been a good outcome for his client on the s 66 and s 67 heads of compensation, the final orders did not have a component for hearing aids.
19. Counsel for the practitioner gave much emphasis in her submissions to the absence of any motive on the part of the practitioner to do what he did. It is not essential that we identify a motive to reach the conclusion we have.
20. There were two possible motives. One is a sense of professional embarrassment he may have had over not addressing the hearing aids issue in the final consent orders, compounded by an amendment in the law aimed at barring old medical expenses claims of the present kind. This may explain the attempt to revisit the issue. Secondly, a grant of legal assistance is of financial benefit to a practitioner. The practitioner's evidence was that his office made 250-300 funding applications a year. Funding of this kind provided a significant income stream for a practice that we understood to be a small practice.
21. Nonetheless, we make no finding as to motive.

Finding in respect of Ground 1.3

1. We find proven Ground 1.3, in that he prepared and relied on an application for an ILARS grant which contained material omissions. The result was that he misled WIRO in obtaining the grant of funding.
2. In addition, we are satisfied that the following statements and omissions particularised in Particular 15 were made by him with knowledge of their falsity, or, if we are wrong in that regard, with careless recklessness as to their truth: those referred to at points 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, and 14. The findings in respect of point 12 and 13 follow from the findings we make below in relation to Ground 1.1. The finding in relation to point 14 follows from the finding made in respect of Ground 1.2.
3. We have not made any advers findings in relation to point 13.
4. We have not made an adverse finding in relation to point 2. The nomination of the employer as North Sydney TAFE may have occurred through reliance on recollection that was mistaken. The claimant had, as we understand the evidence, spent a significant time working there, though the position was that he was employed by a private contractor. On the other hand, the record of the previous claim shows the employer correctly.
5. In making these findings, we have kept in mind the gravity of them for the practitioner, an experienced practitioner of more than 40 years' standing in the profession, and the principles to which we referred above in relation to the drawing of inferences.

Grounds 1.1 and 1.2

1. To reiterate the Grounds are: Ground 1.1. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: Altering the date on an audiogram dated 1 March 2012 to read 1 March 2014. Ground 1.2. Misleading and/or attempting to mislead WIRO to obtain a grant of funding by: Drafting and relying on his client's statement dated 1 March 2014, which he knew was false, or he was recklessly careless as to whether or not the statement was false, in a material particular namely that his client did not make a claim earlier for hearing aids.
2. We note that a finding that the practitioner altered the date is only sought in relation to the audiogram, though a similar alteration appears in the client statement, and is the subject of particulars alleging knowing alteration or reckless carelessness. He denies that he altered either date.

Consideration of Ground 1.1

1. The practitioner stated that he did not instruct any staff member to alter the audiogram, and was unable to explain how it came to bear a date which appeared to be '1.3.14'.
2. In his Reply, he had attributed the change in the appearance of '2' to '4' by way of a downstroke to a streak that might have been created in the course of the 2012 audiogram being photocopied by his secretary for attachment to the 2014 application.
3. While Ms Anthony did not make herself available to be cross-examined, her affidavit sworn 2 November 2016 was received into evidence. Clearly, we must exercise some care in dealing with its contents.
4. She deposed that she had no direct recollection of this particular application. She described the template process she used to fill in WIRO applications. In evidence, the practitioner said his firm made about 250-300 WIRO applications a year.
5. Ms Anthony deposed, for example, that the Eligibility Question 3 - 'Has the worker made a claim prior to 19 June 2012 relating to the injury the subject of this application' - was always answered 'No' as no worker had ever made a prior claim. If she had inserted the answer 'No' in Mr Souaid's application that would be in accord with usual practice, as instructed by the practitioner.
6. Ms Anthony deposed in her affidavit that the only reason that she would make a photocopy of a client's statement or audiogram prior to completing the funding application was if the originals were not good for scanning. She had no specific recollection relating to what occurred in relation to this application.
7. In our view, the likelihood that an experienced legal secretary working in a template environment would interfere with the contents of particular attachments is so remote as to be implausible.
8. Furthermore, we do not accept that misstatements that appeared in the application might have been due to error on Ms Anthony's part or that she had engaged in any copying process with respect to the supporting documents.
9. The practitioner stated that he personally had no reason to alter the date as he was satisfied from his construction of the new law that such a claim could be made, and, based on past practice, it was acceptable to rely on an old audiogram.
10. The amendments promoted the idea that the hearing aids issue remained outstanding, and unresolved, and was open to be pursued. The amendments had as their context the recent history of the case. The new claim would, necessarily be seen and considered by the insurer. At that point, the insurer would review the circumstances surrounding the settled claim. A person highly experienced in this jurisdiction, as the practitioner was, would have recognised that possibility. Such a practitioner, would we think, have recognised a need to give the statement a more contemporary date.
11. Part D of the application form is headed 'Supporting documents'. There are two typed entries, one for 'Dr Stylis' Audiogram', the other for 'Statement of Zouhair Souaid'. Both are followed by the typescript entry, '01/03/2014'. These were inserted by Ms Anthony. It is highly likely, we consider, that she recorded at this point the dates as they appeared in the documents given to her by the practitioner. It is most likely that she simply copied in the dates that they bore when placed on top of the file she was called on to deal with to complete the application. This fits in with her description in paragraph 8 of her affidavit.
12. We do not accept the alternative explanation the practitioner posited in his submissions during the investigation to the applicant, and in the Amended Reply. He suggested that the downstroke that appears in the base line of the number '2' to make it look like a '4' might have resulted from a paper stain in the photocopying process. He did not furnish any independent evidence which might persuasively support such a possibility. The suggestion was not actively pursued at hearing.
13. Despite the practitioner's strenuous denials, we infer that he altered the date of the audiogram in the same way to read '1/3/14'. While it is not pleaded as part of the charge laid by Ground 1.2, we infer that he also altered the date of the client statement. By synchronising the two dates, the likelihood that any suspicion might be raised in the minds of WIRO officers over the history of the claim was minimised. Making those date changes also avoided a debate in relation to what was meant by the form's request for a 'recent' audiogram.

Finding in relation to Ground 1.1

1. Ground 1.1 is proven. By altering the date of the audiogram, the practitioner falsified the document, with the result that he misled or attempted to mislead WIRO in order to obtain a grant of funding.

Consideration of Ground 1.2

1. The practitioner was closely cross-examined on the issue of whether there had been any previous claim for hearing aid expenses.
2. As we have noted in our consideration of Ground 1.3, at hearing he initially denied that a hearing aids application formed any part of the 2012 claim. This was clearly not the case. His letter of 22 March 2012 to the insurer stated: [w]e hereby claim under ss 66 & 67 of the Act for 11% for industrial deafness whole person impairment being In [sic] the sum of $13750 & $10,000 and the cost of the manufacture and fitting of hearing aids under sc. 60 expenses.
3. He conceded the point when his attention was drawn to this letter.
4. As noted above, he had altered his client statement of 1 March 2012 in the following ways: 7. I say I did not make a claim earlier for hearing aids as I was not aware I had industrial deafness until a fiend [sic] of mine introduced me to Peter Livers who arranged a hearing test.
5. As we also noted in connection with Ground 1.3, he stated at hearing that it would have been more accurate to have inserted the word 'successful' before the word 'claim' in the first line.
6. In our view, he made that statement knowing it to be false. He had a significant past involvement in the matter over a long period of time. He was, we consider, well aware of a claims history and that it had included a hearing aids issue. If formed part of the initiating claim to the insurer, was raised by the arbitrator in the compensation proceedings, and he sought to revisit it after final orders were issued that did not cover the point, orders made by consent. His amendment to paragraph 7 hid that history entirely from view.
7. We do not accept his evidence that he decided to make the application solely on the basis of a genuine misunderstanding of the relevant law and felt such a claim remained open under the amendment, and was not foreclosed by the prior history of the matter.

Finding in relation to Ground 1.2

1. We find Ground 1.2 proven.

Further Observations

1. The practitioner's conduct in altering the audiogram and amending the client statement in a misleading way point to a course of conduct that was deliberate. We are satisfied that he actually appreciated the risk that what he said was untrue at the time he amended the statement. This was more than a case of reckless indifference or reckless carelessness, serious as conduct of that degree is.
2. In our view, he had a subjective intention to make an inaccurate, false statement when he amended paragraph 7 in the way he did.
3. If we are wrong in that regard, we are satisfied that at the least his conduct in not turning his mind to what was said there in light of his prior association with the client's injury claims, and amount to reckless carelessness in the sense explained in the leading cases.
4. An honourable member of the profession would, we consider, have drawn to the attention of WIRO the fact of the prior claims history and the considerations that had influenced him or her to press a claim for medical expenses (hearing aids) in circumstances where final orders had, at the least, been entered in relation to permanent impairment compensation and pain and suffering.

Characterisation

1. 'Professional misconduct' has the following meaning under the LPA: 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.
2. Section 496 defines 'unsatisfactory professional conduct', non-exhaustively, as follows: 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.
3. It will be seen that the meaning given to 'professional misconduct' is inclusive. It is accepted that the Parliament intended therefore to preserve the common law meaning of professional misconduct, i.e. conduct that would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency: Allinson v General Medical Council [1894] 1 QB 750 at 768 per Lopes LJ (accepted in Hoile v Medical Board of South Australia [1960] HCA 30; (1960) 104 CLR 157). The LP Act also contains a number of provisions that deem specified conduct to be professional misconduct or unsatisfactory professional conduct. None of those provisions are raised in this case.
4. As explained at the beginning of these reasons, the practitioner contested the making of any adverse finding in relation to Grounds 1.1 and 1.2, and admitted negligence amounting to professional misconduct in respect of Ground 1.3.
5. We have found Ground 1.1 proven. It follows from the nature of the finding that we consider that he engaged in an intentional act of deliberate dishonesty in making that alteration.
6. In the case of Ground 1.2 we have found that he amended his client's statement knowing the amendment to be false in that it suggested there had been no prior hearing aid claim.
7. We have also found proven Ground 1.3 tin hat he misled WIRO by preparing and relying on a funding application which contained material omissions and assertions some of which were false, and that was known to him.

Disciplinary Finding

1. We find the practitioner guilty of professional misconduct, in the serious degree reflected in our findings.
2. In our view, each of our findings justifies separately a finding of professional misconduct. Orders
3. The Tribunal finds the respondent guilty of professional misconduct.
4. Directions are to be given for the filing of submissions and fixing of a hearing in relation to the appropriate disciplinary order.
5. The matter is listed for Directions on 6 September 2017 at 10:00am.

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: 03 August 2017