Legal Services Commissioner v Livers

NCAT Occupational|2018-02-19

Note: The Tribunal Panel was reconstituted, under the Civil and Administrative Tribunal Act 2013, No.2 (NSW), section 52, by order of the President dated 30 April 2018. The Hon Acting District Court Judge Kevin O'Connor, Deputy President was replaced by The Hon Acting District Court Judge John O'Meally, Principal Member.

The application and the two-stage hearing

An application was brought by the Legal Services Commissioner ("the Commissioner") alleging that a solicitor of some 42 years' standing, Mr Peter James Livers ("the Practitioner"), was guilty of professional misconduct. As a result of hearings conducted on 15 March 2017 and 19 April 2017 ("the Stage One proceedings"), he was found guilty of professional misconduct on three of the grounds in that application. The Tribunal, at [143] of its Reasons for Decision, indicated that the professional misconduct was of "the serious degree reflected in our findings."
A further hearing ("the Stage Two proceedings") was conducted on 19 February 2018 in order to determine which of the disciplinary orders available under section 562 of the Legal Profession Act 2004 ("the LP Act") should be made.
Having conducted the Stage Two proceedings and considered written submissions from each party we have decided to order that the Practitioner's name be removed from the roll of lawyers pursuant to s562(2) (a) of the LP Act and that he pay the Commissioner's costs of, and incidental to, the filing and hearing of the application. These are our reasons for that decision.

The Practitioner's conduct

The Practitioner's conduct in question related to one transaction, being an application prepared by him on behalf of a client, Mr Souaid, for the grant of legal aid funding in respect of a proposed workers compensation claim for the provision of hearing aids for industrial deafness. The application was dated 19 September 2014 and was addressed to the authority responsible for deciding such funding applications, the Workers Compensation Independent Review Office ("WIRO"). WIRO approved the application on 24 September 2014.The grant covered the professional costs of preparing the proposed claim and of a medical report from an approved audiologist, Dr Stylis.
In the course of the proceedings the application for legal funding was referred to variously as "the WIRO application" and "the ILARS application". By way of explanation, ILARS is the acronym for the body which manages the fund from which legal aid payments are made. It is the Independent Legal Assistance and Review Service of the Workers Compensation Commission. WIRO processes the applications for legal funding and decides them. The reasons for decision from the first hearing ("the Stage One Reasons") referred to the application for legal funding as "the funding application" and the same term will be used in these reasons.
On 9 March 2015 WIRO complained to the Commissioner about the Practitioner's conduct, alleging that he had misled WIRO in his answers to questions in the funding application and had attached documents which had been falsified as to their true date, being a client statement and an audiogram. In particular, WIRO alleged that the Practitioner had failed to advise it of a prior claim for industrial deafness made by Mr Souaid in July 2012 (when he was represented by the Practitioner) and the resolution of that claim by way of consent orders made by the Workers Compensation Commission in November 2013.

The three Grounds of alleged misconduct

The disciplinary application has one ground which is subdivided into three allegations. For convenience of reference we will follow the pattern adopted in the Stage One Reasons and refer to the allegations separately as Grounds 1.1, 1.2 and 1.3.

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'.

It was alleged that an audiogram had been undertaken in March 2012 and had been submitted to the insurer in respect of a prior claim at that time, but had been reused and submitted in support of the funding application, the stated year 2012 having been altered in handwriting to read 2014. There were no other amendments to the document.

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,

The Commissioner asserted that the Practitioner knew his client's statement 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.
It was alleged that the Practitioner had also reused the client statement which he submitted to the insurer and the Workers Compensation Commission in support of the 2012 claim. He had consistently admitted that he deliberately altered paragraph 7 of the original client 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."
The Practitioner also admitted that he had added a fresh paragraph 9 to the statement.
The Practitioner did not dispute that there was an initiating claim to the insurer dated 22 March 2012 which included a claim for hearing aids, but he asserted that a subsequent application made on 4 July 2012, after that claim was rejected in early July 2012, did not cover hearing aids. He acknowledged that he applied to relist the matter with the Workers Compensation Commission in February 2014 for the purpose of obtaining a medical expenses order covering hearing aids. That application was withdrawn in May 2014

Ground 1.3: Preparing and/or attempting to mislead WIRO to obtain a grant of funding by preparing and/or relying on an application for legal aid funding dated 19 September 2014, which contained material omissions and/or false assertions.

This Ground puts in issue the contents generally of the funding application as well as the contents of the two supporting documents.
Particulars 15 to 18 in the Application set out the Commissioner's case in support of Ground 1.3 in the following terms: 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.

The Tribunal's findings and orders in the Stage One proceedings

At the Stage One hearing the Tribunal found Ground 1.1 proven. It made the substantial finding that 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 funding. The Tribunal made the following pertinent supporting findings. 1. The first finding requires a little explanation. As noted in the Stage One Reasons commencing at [110], 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". In his Reply the Practitioner had attributed the change in the appearance of "2" (so as to indicate the year 2012) to "4" (so as to indicate the year 2014) by way of the 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. The Practitioner's secretary swore an affidavit dated 2 November 2016 which was received into evidence but she did not attend the Stage One hearing or make herself available for cross examination, so it was indicated that the Tribunal would exercise some care in dealing with the contents of her affidavit. However the secretary deposed 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 and that she had no particular recollection of what occurred in relation to this application. The Tribunal found, at [116] of the Stage One Reasons, that 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. 2. At [117] of the Stage One Reasons the Tribunal found that it could not be accepted that misstatements which appeared in the funding application might have been due to an error on the secretary's part or that she had engaged in any copying process at all with respect to the supporting documents. 3. The third finding also requires a little explanation. As noted by the Tribunal at [119] of the Stage One Reasons, the amendments to the funding application 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. A new claim would, necessarily, be seen and considered by the insurer. At that point, the insurer would review the circumstances surrounding the settled claim. The Tribunal found that a person as highly experienced in this jurisdiction, as the Practitioner activity was, would have recognised that possibility and recognised the need to give the statement a more contemporary date. 4. The fourth finding also requires a little background. Part D of the funding application is headed "Supporting documents". There are two typed entries, one for "Dr Stylis' Audiogram" and the other for "Statement of Zouhair Souaid". Both are followed by the typescript entry "01/03/2014." It was uncontested that these were inserted by the Practitioner's secretary. It was found, at [120] of the Stage One Reasons, that it was highly likely that the secretary recorded at this point the dates as they appeared in the documents given to her by the Practitioner, that she simply copied in the dates which the documents bore when they were placed on top of the file she was called upon to deal with to complete the transaction and that that explanation is consistent with her description in paragraph 8 of her affidavit. 5. The Tribunal refused to accept the Practitioner's alternative explanation, which was made during the Commissioner's investigation and repeated in the Practitioner's Reply, to the effect 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(See [121] of the Stage One Reasons). It was noted that the Practitioner did not furnish any independent or expert evidence which might provide persuasive support for such a possibility and the suggestion did not seem to be actively pursued at the Stage One hearing. 6. Despite the Practitioner's strenuous denials, the Tribunal inferred that: 1. he altered the date on the audiogram to read "1/3/14"; and 2. he altered the date of the client's statement (even though that was not specifically pleaded as part of Ground 1.2) 1. The Tribunal noted at [122] that making the changes in (a) and (b) above also avoided any debate as to what was meant by the request in the claim form that a "recent" audiogram be provided.
Ground 1.2 was also found proven and the following pertinent findings in relation to that Ground were made. 1. The Practitioner's statement at the hearing, noted at [128] of the Reasons, that it would have been more accurate to have inserted the word "successful" before the word "claim" in the first line of the funding application was a statement made knowing it to be false. (See also [129]. In particular the Tribunal found that the amendment to paragraph 7 of the funding application hid the history of the matter entirely from view. 2. The Tribunal refused to accept the Practitioner's evidence that he decided to make the funding application solely on the basis of a genuine misunderstanding of the relevant law and that he believed that such a claim remained open under the amendment to the relevant legislation and was not foreclosed by the prior history of the matter.
Ground 1.3 was also found proven, in that the Practitioner prepared and relied on an application for funding which contained material omissions that the result was that he misled WIRO in obtaining the grant of funding: see [103] of the Stage One Reasons
In addition, as set out at [104] of those Reasons, the Tribunal was satisfied that the following statements and omissions particularised in Particular 15, were made by the Practitioner with knowledge of their falsity, or if the Tribunal was wrong in that regard, they were made with reckless carelessness as to their truth. The phrase was stated at one point in the Stage One Reasons as "careless recklessness". The current Panel accepts that as a minor error of expression. The statements and omissions referred to are those extracted at [14] above as 15.1, 15.3, 15.4, 15.5, 15.6, 15.7, 15.8, 15.9, 15.10, 15.11, 15.12 and 15.14. No adverse finding was made in relation to 15.2 or 15.13.
Significantly, the Tribunal stated at [107] of the Reasons that in making each of these findings it had kept in mind the gravity of those findings for the practitioner as an experienced practitioner of more than 40 years' standing in the profession and the principles which were referred to in the Reasons in relation to the drawing of inferences.
On the basis of all these findings the Tribunal concluded in the following terms: "[143] We find the practitioner guilty of professional misconduct, in the serious degree reflected in our findings. [144] In our view, each of our findings justifies separately a finding of professional misconduct."

Evidence at the Stage 2 Hearing

The Commissioner sought to rely on two affidavits sworn by the Commissioner himself, Mr John McKenzie, on 11 September 2017 and 12 February 2018. These were admitted without objection.
The Practitioner sought to rely on two affidavits as to his character, the first made by Mr James Jordan, Solicitor sworn on 6 December 2017 and the second made by Mr Kim Morrisey, Barrister, sworn on 17 January 2018. These were admitted without objection.
Counsel for the Practitioner, Mr Clive Evatt called for the production of "the original audiogram report received by WIRO". Following submissions by both parties we decided to disallow this call on the basis that: 1. the original audiogram had not been provided to WIRO and would appear to have been in the possession or custody of the Practitioner; and 2. even if otherwise valid and justified, such a call should have been made at the Stage One proceedings and the Tribunal was now functus officio in relation to findings of fact concerning the audiogram; (that is, the Tribunal had completed the fact-finding process and our related duties of fact-finding in relation to that document at the Stage One hearing).
Mr Evatt also sought and was granted leave to give direct evidence as to the Practitioner's character. He provided that evidence in chief and was briefly cross examined on it.

Removal from the roll

The Commissioner's case as set out in written submissions received on 13 December 2017 and supplementary written submissions received on 13 February 2018 and as presented at the Second Stage hearing was that, on the basis of established legal principles, which are described in more detail below at [27], the conduct of the Practitioner was such as to justify the removal of his name from the roll and that that was the proper order to make in the circumstances.

Costs order

It was also contended on behalf of the Commissioner that this was an appropriate matter in which there should be a costs order under Clause 23 (1) of Schedule 5 to the CAT Act made against the Practitioner. The scheme of Clause 23 (1) is that the Tribunal must make orders requiring an Australian legal practitioner whom it has found to have engaged in professional misconduct to pay costs (including costs of the Commissioner) unless the Tribunal is satisfied that exceptional circumstances exist. Mr Matalini for the Commissioner contended that no exceptional circumstances exist here.

Removal from the roll: specific grounds

Mr Matalini contended on behalf of the Commissioner that the operation of established principles of law justified the Practitioner's removal from the roll. In summary, his contentions in support of that conclusion were as follows. 1. It is clearly established that the onus of proof in matters of this sort can conveniently be regarded as being of a "two-stage" nature. The initial onus is on the claimant, here the Commissioner, to show that his opponent, here the Practitioner, is not a fit and proper person and that is a civil onus: Re Evatt; Ex parte NSW Bar Association (1967) 67 SR (NSW) 236. The standard of proof referred to in Briginshaw v Briginshaw (1938) 60 CLR 336 at 362 must be applied. However, on the authority of Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93, whilst the legal onus of proof rests with an applicant to show that the respondent is not a fit person to remain on the roll, once findings adverse to the respondent have been made on that issue, the evidentiary onus shifts to the respondent because "a presumption of continuity" would then arise such that a court or tribunal would be justified in concluding that the applicant remained unfit to practice unless he or she could produce evidence that gave reason for believing that the situation had changed: in particular see the judgment of Campbell JA in Stanoevski, at [63] to [65]. 2. On the basis of the established authorities including Stanoevski and the authorities cited in it, the correct standard to apply in assessing whether a practitioner is permanently unfit is whether he or she is unfit to practice for the indefinite future. The proven professional misconduct engaged in by the Practitioner is sufficient to warrant the "presumption of continuity" that he is unfit to practice for the indefinite future. 3. The removal of the Practitioner's name from the roll is also justified on the basis that these proceedings are primarily concerned with the public interest and are entirely protective rather than punitive: Council of the New South Wales Bar Association v Nash (No 2) [2013] NSW ADT 64 at [10]; and New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184. 4. A significant aspect of the protective jurisdiction of the Tribunal is deterrence and the Practitioner's conduct deserves strong sanction on this ground. 5. A survey of the whole of the relevant course of conduct reveals that the Practitioner is of such a character that he is unfit to remain on the roll. 6. The Commissioner also contended that we should give very limited weight to the character evidence provided by the Practitioner, first because of the weight of authority, including Hilton v Legal Profession Admission Board [2016] NSWSC 1617 at [94], draws attention to the limitations on the utility of such evidence generally and secondly because, in the Commissioner's contention, the specific character evidence should be given limited weight only. 7. The Commissioner also contended that we should take note of the Practitioner's prior substantiated conduct, particularly the fact that there was a finding of the Law Society that he misled the complainant to the Law Society by making false claims. However we understood the Commissioner to accept that this conduct occurred more than 16 years ago and that the Commissioner consequently did not place significant weight on the conduct itself.

Commissioner's Supplementary submissions

By his supplementary written submissions which were received on 13 February 2018 the Commissioner responded to some of the contentions made in the Practitioner's submissions. In summary the Commissioner's main contentions were as follows. 1. It was submitted that although the Practitioner had indicated in the opening remarks in his written submissions that he accepted the Tribunal's findings in the Stage One Proceedings, in fact he did not accept them. Several paragraphs of the Practitioner's written submissions demonstrated his inability to accept the Tribunal's factual findings. The Commissioner submitted that the Stage Two proceedings constituted a penalty hearing and that the Tribunal was functus officio with respect to the factual findings that the Practitioner appeared to dispute. The Commissioner submitted that we should ignore the relevant sections of the Practitioner's submissions, namely paragraphs [2] to [17] inclusive. 2. However the Commissioner contended that we should give weight to the following matters (some of which were addressed in paragraphs [2] to [17] of the Practitioner's submissions): 1. the Practitioner continued to implicate at least one of his two secretaries in his pursuit of an innocent explanation for the alteration of the date on the audiogram; 2. the Practitioner continued to propose a variety of explanations and excuses for the alteration of that date on the audiogram, including that it could have been due to error or inadvertence by his secretary, it "could be innocent", it should have been obvious to anyone reading the audiogram, it should have been identified by WIRO's computer system, that the alteration was "amateur", in that the person making the alteration did not alter other parts of the audiogram which reflected the true date; 3. although this was not raised in the Stage One Proceedings, the Practitioner now asserted that only a forensic examination could determine whether or not the date had been altered to read "2014" rather than "2012". In the Commissioner's contention, that was not the issue in dispute. The issue was rather how the alteration occurred. 1. The Commissioner contended that the Tribunal should give little weight to the character evidence submitted on behalf of the Practitioner. 2. The Commissioner also contended that the Tribunal should give little weight to the evidence that the Practitioner had been nominated to receive a Law Society award for his pro bono work. In the Commissioner's contention a single nomination for an award does not undermine the application of the legal principles applicable to the removal of the Practitioner's name from the roll. 3. The Commissioner contended that the Practitioner had not made any genuine expression of remorse, contrition or insight. We understood the Commissioner to contend that the contents of paragraph [23] of the written submissions made on the Practitioner's behalf should not be accepted as being a genuine statement by him of any remorse, contrition or insight. That paragraph was in the following terms: "Mr Livers has been a practitioner from many years and has expressed his repentance and regret for his gross carelessness and recklessness and failure to supervise his staff and the documents they have prepared. Mr Livers apologises to the Tribunal and the LSC and says he has learned his lesson and undertake still be no further questionable conduct." 1. The Commissioner asked that in considering the genuineness of any expression of remorse or contrition, including that in the paragraphs cited above, the Tribunal take into account that: 1. the Practitioner continues to appear to be blaming his proven misconduct on his staff and the "documents they have prepared", whereas in the Stage One Proceedings it was found that the Practitioner himself altered the date on the audiogram and amended the client statement, knowing the amendment to be false. 2. the Practitioner's persistent directing of blame towards the documents allegedly prepared by his staff appeared to avoid or ignore some of our most serious findings, particularly those noted in the Stage One Reasons at [123], [132] and [140] in respect of Ground 1.1; [129] and [132] to [135 in respect of Ground 1.2 and [103], [104] and [142] in respect of Ground 1.3. 3. The Practitioner appeared to be attempting to reduce the Tribunal's serious findings of deliberate dishonesty to a lesser finding; 4. in any case, any expression of any repentance regret or apology is significantly outweighed by the Practitioner's apparently continuing denial of the Tribunal's findings in respect of Ground 1.1; and 5. generally the Tribunal should not accept that the Practitioner's contention in his written submissions that he has "learned his lesson and undertakes there will be no further questionable conduct", in circumstances where he continues to dispute the Tribunal's findings in the Stage One Proceedings.

The Practitioner's submissions

The Practitioner made written submissions on penalty which were received on 9 February 2018 and oral submissions were made by Mr Evatt on his behalf at the hearing.
The written submissions open with the following statement: "The Respondent accepts as he must the Tribunal's findings and recognises that an appropriate penalty will be imposed."
However, much of the opening section of the written submissions cavil at the findings in the Stage One Proceedings, particularly the findings that the Practitioner altered the date of the audiogram and in so doing falsified the document with the result that he misled or attempted to mislead WIRO in order to obtain a grant funding (Stage One Reasons at [121]-[123]).
Unfortunately, Mr Evatt, appearing for the Practitioner, adopted the same approach. He contended that his questioning of the findings really was intended to go to the seriousness of the offence, but unfortunately, there can be no doubt that in his oral submissions amounted to cavilling at the findings of the Tribunal. On any reasonable assessment this cavilling affects and substantially reduces any persuasive force of at least paragraphs 3, 4, 5, 7, 8, 9, 11, 12 (second sentence), 14, 15, 16 and 17 of the Practitioner's written submissions in reply. That represents well over one half of the document. It appears beyond question that in conducting and determining the Stage Two proceedings this Tribunal is functus officio with respect to each of the findings of fact made as a result of the Stage One proceedings.
The central contentions in the Practitioner's written submissions, other than those referred to in the previous paragraph, were as follows: 1. The Commissioner should have called a handwriting or document expert to throw light on the apparent alteration of the audiogram or how it might have occurred. However, we cannot see how there was any obligation on the Commissioner to introduce any such evidence. 2. Any penalty being considered should be ameliorated by the fact that there were other indications in the audiogram of its actual date; for example the date of birth of the client, Mr Souaid. 3. The Tribunal should take into effect that although adverse findings have been made against the Practitioner and they call for punishment, they do not justify the ultimate penalty of striking off. 4. The Tribunal should give substantial weight to the character evidence from the two opponents of affidavits being legal practitioners. Mr Evatt told us (from the Bar table) that he had had briefs from the Practitioner for 20 years and that "his honesty is unquestionable". As noted at [24] above, by consent Mr Evatt was then sworn and gave brief direct evidence as to the character of the Practitioner. 5. The Tribunal should give substantial consideration to the fact that throughout his career the Practitioner has been engaged in pro bono work through the Law Society's Pro Bono Scheme .It should take into account the fact that the Practitioner has done work for the disadvantaged without fee or the hope of a fee. 6. The Tribunal should give due weight to the Practitioner' expressed repentance and regret, in the terms cited at 28 above.

The onus of proof

We accept that the law as to the onus of proof in matters of this kind is as laid down by Young CJ in Eq in Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320, and by the Court in Re-Evatt; Ex Parte NSW Bar Association (1967) 67 SR (NSW) 236 and as further explained by Campbell JA (with whom Hodgson JA and Handley AJA agreed) in Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93.
The initial onus is on the Commissioner to demonstrate that the Practitioner is not a fit and proper person to be allowed to continue in practice.
As explained by Campbell JA in Stanoevski, once this initial onus has been discharged by the applicant in such proceedings, then the evidential onus shifts to the respondent to establish that the situation has changed: that he or she is currently fit to remain in practice. As His Honour said: "[64]… (The applicant) had the onus of proving a negative proposition, namely that (the respondent) was not a fit person to remain on the roll. The evidence it adduced of the various acts of professional misconduct… were enough to establish that (the applicant) was then unfit. A presumption of continuity would then arise, such that a court or tribunal would be justified in concluding that (the applicant) was still unfit, unless (the applicant) could produce evidence that gave reason for believing that the situation had changed. That is a totally conventional application of a shifting evidential onus… [65]… The subject matter to which the presumption of continuity is applied in the present case is the character of a person. It is not at all uncommon for aspects of the character of a person to persist over decades, frequently for someone's entire life. In my view, a tribunal of fact would be justified in using the extremely serious acts of professional misconduct (in which it had been established the applicant had engaged for three years) as a basis for inferring that she was then unfit to practice and that it was likely, notwithstanding that 15 years have passed, that she was still unfit to practice unless (she) could produce evidence that gave reason for believing the situation had changed."

The standard of proof: the Briginshaw standard

The standard of proof at both stages is the civil standard but it must be subject to the standard recommended in Briginshaw v Briginshaw and Another [1938] 60 CLR 336. In that matter Dixon J (as he then was) noted first, at 361 that: "The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality."
His Honour then discussed the dichotomy between the criminal and civil standard of proof and noted that at common law no third standard of persuasion had been definitely developed. He went on to expound what has become known as the "Briginshaw standard": "Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. 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 our considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal."
In Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and others (1992) ALR 449 at 450, the plurality of the High Court, led by Mason CJ, approved the Briginshaw standard, but noted that: "(T)he strength of the evidence necessary to establish a fact or facts on the balance of probabilites 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 or strict proof is necessary 'where so serious a matter as fraud is to be found' (Rejfek v McElroy (1965) 112 CLR, at 521). 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."

The meaning of "permanently unfit to practice"

As was stated by Young CJ in Equity in Prothonotary of the Supreme Court of NSW v P (as cited at [34] above), an order whereby a practitioner's name is struck off the roll should only be made when the probability is that the solicitor is permanently unfit to practice.
In New South Wales Bar Association v Cummins [2001] NSWCA 284 at [24], Spigleman CJ confirmed the principle which had been adopted by McHugh JA in the unreported decision of Prothonotary of the Supreme Court of NSW v Richard (Unreported, Court of Appeal NSW, 31 July 1987), to the following effect: "An order for the involuntary removal of the name of a practitioner from the roll of solicitors is made only because the probability is that the solicitor is permanently unfit to practise. Unless the Court is persuaded that the probability exists, the proper order to make will usually be one of suspension or fine instead of removal."
In Stanoevski v The Council of the Law Society of New South Wales [2008] NSWCA 93 at [53] and [54], Campbell JA explained the term "permanently unfit". He noted that Counsel in the matter had accepted that a requirement to establish "permanent unfitness to practice" did not mean that it was necessary for the applicant to prove that in no circumstances whatever would the solicitor be fit to practice and that the word. It was clear that "permanent" could not have that shade of meaning. Campbell JA said, at [54]: "Rather, in my view, it has the shade of meaning of being likely to be unfit to practice for the indefinite future… If the Tribunal or Appeal Panel is of the view that a person is presently unfit to practice, but after a particular period of time will be once again fit to practice, then suspension for that period of time is the appropriate order… Removal from the roll is appropriate only when a legal practitioner is under fit to practice and suspension for a particular period is not appropriate." (Emphasis added)
However, doubts have been expressed about the utility of adopting an overly formulaic approach to this question. For example, in Dupal v The Law Society of New South Wales [1990] NSWCA 56, in a short (but not dissenting) judgment, Priestley JA said (at 58): "I do not find it necessary for deciding the appeal to consider the precise way in which the appellant's conduct should be characterised as a matter of legal labelling. It is sufficient, as I see the appeal, to say that the appellant's actions as a solicitor…were dishonest and indefensible to a degree requiring that his name be struck off the roll..."

Our findings

The Practitioner has been found guilty of professional misconduct. His conduct constituted a grave and substantial failure to meet the standards of honesty, probity and fair dealing expected of a member of this profession.
In particular, without intending this to be an inclusive list of the findings in the Stage One proceedings: 1. the Practitioner was found to have deliberately altered the date of the audiogram, and his client's statement and thereby to have falsified the document :Ground 1.1; see [15] (opening paragraph) and 15 above; 2. he was found to have misled or attempted to mislead WIRO in order to obtain a grant funding: Ground 1.1; see [15] (opening paragraph) above; 3. the Tribunal refused to accept the Practitioner's strenuous denials of his involvement in the alteration of the audiogram: Ground 1.1; see 15 above; 4. it was found that his statement to the effect that it would have been more accurate to have inserted the word "successful" before the word "claim" in the first line of the funding application was a false statement, made knowing it to be false: Ground 1.2; see [16] (1) above; 5. the Tribunal refused to accept the Practitioner's evidence that he decided to make the funding application solely on the basis of the genuine misunderstanding of the relevant law: Ground 1.2; see [16] (2) above; 6. the Tribunal found that he had prepared and relied on the funding application which contained material omissions and had thereby misled WIRO in obtaining the grant of funding: Ground 1.3; see [17] above; and 7. it found that many of the statements and omissions extracted at [14] were, at the least, made with reckless carelessness as to their truth or in the alternative were made by the Practitioner with knowledge that they were false.
Although the Practitioner continued to deny any involvement in the alteration of the audiogram and Counsel representing him attempted to challenge the relevant findings which we had made in the Stage One proceedings in this regard, we are clearly functus officio with respect to each of the findings of fact made as a result of the Stage One proceedings and we are entitled to and do rely upon them in making our findings in these Stage Two proceedings.
In determining the appropriate penalty we have given consideration to the following other important principles and matters.

(1) The public interest and the protective nature of our jurisdiction

We have been guided firstly by the principles summarised by Beazley JA (as she then was) in Law Society of NSW v Walsh [1997] NSWCA 185 at 43 as to whether a solicitor's name should be removed from the roll. They were to the following effect as applicable to the current proceedings: 1. The Tribunal's power is discretionary; 2. subject to considerations which would compel the Tribunal to impose a lesser penalty, the protective nature of the jurisdiction calls for the removal of a practitioner's name from the roll when he or she has been found not to be of good fame and character; 3. the subjective considerations which might compel a different course are ones which themselves are relevant to and enhance the essential nature of the Tribunal's jurisdiction, which is the protection of the public. An example is where the legal practitioner has reported the subject conduct to the relevant regulatory body (whether that be the Law Society, the Bar Association or the Commissioner),, the relevance of that mitigating conduct being that it encourages other practitioners who may be guilty of misconduct to report it promptly.
There is clear legal authority to the effect that proceedings such as these are not punitive (see for example New South Wales Bar Association v Evatt (1968) 117 CLR 177 at 183-184 and Council of the Law Society of New South Wales v Kim [2017] NSWCA 292 at [4]. We accept that it follows that upon finding any practitioner permanently unfit for practice, any subjective impact of removal from the roll, including any hardship to that practitioner, is outweighed by the public interest: Ziems v Prothonotary of the Supreme Court of New South Wales [1957] 97 CLR 279.
The Commissioner in his submissions relied upon the case of Hilton v Legal Profession Admission Board [2016] NSWSC 1617 at [114] as an illustration of the application of the need for the Tribunal's orders to be protective. It was noted in that case that an aspect of the protective function is to ensure the continued effective functioning of the administration of justice. As the Court said: "A solicitor should be able to place reliance upon the word of another and to accept his undertaking that he will do what he promises… He should be able to issue and that, for example, a document bearing the solicitor's signature as witness was executed in the solicitor's presence and that an affidavit made by a solicitor is properly made. If such assumptions cannot be made in the ordinary course of dealing between solicitors and each is required in prudence to check the truth of what the other has suggested, the administration of justice would be seriously impeded."
We adopt that passage as being of significant relevant to the present case.
At [21] of his initial submissions the Commissioner posed the following specific questions for our consideration. 1. Could another solicitor or barrister, or a government agency or a Court or a client or any other member of the public confidently accept the date on a document submitted by the Practitioner, knowing that he has previously altered the date on a medical report (the audiogram) and then denied several times doing so including on oath? 2. Could any person or entity accept the Practitioner's certification in relation to any issue, knowing that he made a false certification to WIRO in the terms referred to at [98] of the Stage One reasons? 3. Could information in a formal application submitted by the Practitioner be accepted on its face, without independent corroboration or verification, knowing that the relevant WIRO application contained falsities?
Those questions are relevant and most pertinent. On the basis of our assessment of the evidence and our previous findings, we cannot with confidence answer any of them in the affirmative.

(2) The element of deterrence

The element of deterrence is related to that of public interest. The remarks of Mahoney JA in Law Society of NSW v Foreman [1994] NSWCA at 440, as adopted recently by this Tribunal in Law Society of New South Wales v Mattila (No 2) [2018] NSWSCATOD 91 at [39] are pertinent. "In the relevant sense the protection of the public is in my opinion not confined to the protection of the public against further default by the solicitor in question. It extends also to the protection of the public against similar defaults by other solicitors and has, in this sense, the purpose of publicly marking the seriousness of what the instant solicitor has done."
We adopt those remarks. It must follow that the marking out of the Practitioner's conduct is a most important element in determining his penalty.

(3)The Practitioner's remorse, contrition and insight

The Practitioner did not give evidence in the Stage Two proceedings. He did not proffer any indication of remorse or contrition directly, but did so briefly through his Counsel's concluding oral submissions and also in the concluding paragraph of Counsel's written submissions on penalty filed on 9 February 2018. The submissions relevant to remorse, contrition and insight consisted of the following: "Mr Livers has been a practitioner for many years and has expressed his repentance and regret for his gross carelessness and recklessness and failure to supervise his staff and the documents they have prepared. Mr Livers apologises to the Tribunal and the (Commissioner) and says he has learned his lesson and undertakes there will be no further questionable conduct."
Whilst the Tribunal makes no finding as to any lack of genuineness in that statement, we find that in all the circumstances it is incomplete and unsatisfactory as an indication of remorse, contrition or insight, because: 1. this brief statement, prepared by Counsel, does not apologise or express regret directly in respect of the central findings in the Stage I proceedings, namely that the Practitioner engaged in misleading and deceptive conduct and deliberately altered an important claim document (the audiogram) in pursuit of the funding claim. In that respect the statement reinforces the contention that the Practitioner lacks insight into what he has done; 2. the statement is indicative of the Practitioner's continuing reliance on asserted actions or omissions by his staff members; 3. it also appears to give recognition (and to express any regret or contrition) only in respect of a narrow scope of the Practitioner's conduct; namely his failure to supervise staff and their preparation of documents, as opposed to the more serious matters involving his direct personal culpability on which our express findings were made in the Stage One proceedings;
These factors, in combination and each of them individually, diminish the value of the apology tendered and the undertaking that there will be no further "questionable conduct". They seem to reveal a serious shortfall in the Practitioner's acceptance of what has occurred and the extent of his insight as to his conduct; indeed lack of insight into what constitutes "questionable conduct".
For those reasons the Tribunal gives little weight to the statement.
These conclusions are not ameliorated by Mr Evatt's remarks and explanations in his address in reply at the hearing. His remarks regarding contrition and insight were quite limited. Although Mr Evatt indicated that the Practitioner had learnt a lesson, he did not expand on that in any way which persuaded us that the Practitioner's contrition or insight into his conduct was any more complete than as reflected in our conclusions above.

(4) The Practitioner's character and his service to the profession

Much was made of fact that the Practitioner is provided pro bono assistance to clients over a considerable period and that he was one of four nominees for the Law Society President's Award in 2017. His nomination ultimately was not successful.
The Tribunal took into account the two character affidavits provided by Mr Kim Morrisey, barrister, and Mr James Jordan, solicitor. Mr Morrisey asserted that the Practitioner had helped "thousands" of people including those who otherwise would have been left without redress but did not indicate the extent of the Practitioner's pro bono work any more precisely than that. Mr Jordan does not touch on this aspect.
Both deponents indicated that in their experience the Practitioner has conducted himself honestly and reliably.
The Tribunal accepts the genuineness of this character evidence but must assess it in light of the limitations on such evidence, particularly those noted in Hilton v Legal Profession Admission Board, cited at [50] above. In that matter, at [94] Beech-Jones J confirmed that the limits of character evidence such as this need to be identified. He accepted that the deponents in the matter before him were good judges of character when they knew the practitioner, yet each of their assessments of his character proved to be completely mistaken. In His Honour's observation: "This simply reflects the truism that the very nature of serious transgressions committed by legal practitioners is that they are committed by persons who appear trustworthy and honest. Many of the ethical rules applying to legal practitioners can only be enforced by that practitioner's own conscience… Testimonial evidence cannot advance too far the analysis of how (a practitioner) will act when confronted with a conflict between compliance with rules of ethics and advancing a client's cause."
The Tribunal intends no disrespect to either of the character witnesses in this case by concluding that only limited weight can be given to their evidence in light of the limitations demonstrated by Beech-Jones J and the fact that the findings in the Stage One proceedings show that their assessments of the Practitioner's character were mistaken.
The Practitioner was an experienced legal practitioner with a substantial reputation in his fields of expertise. But, as was observed in relation to the highly experienced and high profile practitioner in Law Society of New South Wales v Mattila (No 2), cited at [54] above (at [46] (2) of that decision), it is an inescapable conclusion that the Practitioner's professional experience and expertise were such that he could appreciate and in our view must at all relevant times have appreciated the grossly improper nature of his actions (particularly in relation to the alteration of the audiogram and the client statement) and the fact that they involved a breach of fundamental rules governing professional practice which would be regarded as disgraceful and dishonourable by his professional colleagues of good repute and competency.
We have concluded that the Practitioner's experience and service to the profession do not ameliorate the seriousness of his conduct and do not persuade us that he is not likely to be unfit to practice for the indefinite future.

(5)The Practitioner's prior conduct

The affidavit of the Commissioner, Mr John Mackenzie, made on 11 September 2017 set out the Practitioner's prior substantiated conduct. It appears that he was reprimanded for misleading a complainant and the Law Society. However the Commissioner accepts that this conduct occurred more than 16 years ago and does not place any significant weight on the conduct itself. Nor do we.

Conclusion as to the Practitioner's right to practice

On the basis of the findings in the Stage One proceedings as summarised at [37], the Tribunal's findings generally and our conclusions on other matters and principles at [40] to [50] above, the Tribunal finds that: 1. the Practitioner is not of good fame and character; 2. the Commissioner has satisfied his onus of demonstrating to our satisfaction that the Practitioner is not a fit and proper person to be allowed to continue in practice; 3. the Practitioner has not satisfied his onus of establishing to our satisfaction that the situation has changed; that is, that he is currently fit to remain in practice; and 4. he is likely to be unfit to practice for the indefinite future and therefore is permanently unfit to practice, on the basis of the tests discussed above and particular those applied in Stanoevski as noted at [34].
It must follow that his name must be removed from the roll.

Consideration: Costs

The Commissioner seeks his costs pursuant to Clause 23 (1) of Schedule 5 to the CAT Act. That provision requires that, despite section 60 of the Act which deals generally with costs, we must make orders requiring an Australian legal practitioner whom we have found guilty of professional misconduct to pay costs including costs of the Commissioner, unless we are satisfied that exceptional circumstances exist. We understood Mr Evatt to oppose a costs order but he did not address the issue of whether there are exceptional circumstances. The Commissioner in his submissions at [56] contended that there is no evidence of any circumstances that could properly be described as exceptional and which would otherwise warrant a departure from the usual order. We agree that this is the case. It must follow that a costs order will be made against the Practitioner.

Orders

For these reasons the Tribunal orders as follows: 1. The Respondent's name is to be removed from the Roll of lawyers, pursuant to s 562 (a) of the Legal Profession Act, 2004. 2. The Respondent is to pay the Applicant's costs of and incidental to the filing and hearing of the Application, pursuant to Sched 5, cl 23(1) of the Civil and Administrative Tribunal Act (No.2), 2013.

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: 07 September 2018

At a glance

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Judgment (27 paragraphs)

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Cases Cited (9)