© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[2011] ACAT 57
ACT Civil and Administrative Tribunal
2011-08-23
Original judgment source is linked above.
The findings about the characterisation of the respondent's conduct are as follows:
97. The Tribunal finds that particular 3.2 is made out. The Respondent's conduct in relation to the altered letter was both misleading and deceptive and a breach of rule 39.1.
98. The Tribunal is comfortably satisfied that the Respondent's conduct should be characterised as being at the higher end of unsatisfactory professional conduct. It falls short of the standard of diligence that a member of the public is entitled to expect of a reasonably competent practitioner. The element of deception of both the client and the Law Society adds to the seriousness of the conduct.
99. The Tribunal acknowledges that the Respondent admitted that he had altered the letter but, the credit that should be given to him for that, is somewhat countered by the fact that his admission came once the alteration was obvious and was put to him by the applicant. It could not be described as a voluntary disclosure.
100. The Tribunal considered whether the deceit was so significant that it should be characterised as disgraceful conduct justifying a finding that the Respondent is not a fit and proper person to practice law. That is the most serious finding that should be reserved for the most serious of conduct. While there was deceit, and the Respondent's apparent failure to recognise it is worryingly deficient, we are not satisfied that the deceit was of such a nature and perpetrated at such a level that it is a finding that could be made.
My general opinion - dedicated to obtaining legal redress for clients. Dogged in seeking it. You put up with some very difficult clients over months and sometimes years. ...I have not known you to miss a court deadline, or fail to appear in court, or fail to brief counsel in time...Like many lawyers in private practice, you work long hours to get the work done.
...although they may be perceived by the offender to be punitive, they play a role in protecting the community, including the community of legal practitioners.
A monetary fine would normally be regarded as a penalty or punishment. Indeed, in years past a fine was one of the few alternatives to a sentence of imprisonment...If a fine operates to deter an offender from offending again, or to deter a like-minded person not to offend for fear of being fined, it may fairly be looked at, not as punitive, but for the protection of the public and therefore as being consistent with the purpose of the jurisdiction of the Tribunal. Indeed, this must be the case, otherwise there could be no justification for ... including a power to fine.
The same reasoning may be applied to a public reprimand...A public reprimand may operate as a warning to the offender and also to others who may be contemplating similar wrongful conduct.
6 March 2009 which was different from the original application lodged on 5 August 2008. At the commencement of the hearing, the applicant indicated that it would not pursue ground 3.3(c) of the application. The history of the application is set out in greater detail at paragraphs 11 to 17 of the reasons for decision of 7 October 2010.
ground 3.3(c) and the grounds that had been dropped when the application was amended as "bogus charges". He sought compensation through a costs order for having to face the bogus charges. He said that he believed that people associated with the applicant had personal animosity towards him and that they were determined to inhibit him from continuing to practise. He described the applicant as using the proceedings to "test the waters" and acting in the hope that if they threw enough stones at him, some of them might hit. He also noted that the applicant had not succeeded in respect of the allegations concerning the reconstructed account and that, on his calculation, more than 90% of the original application was dropped or was unsuccessful. 7. Mr Beaumont submitted that the applicant had acted appropriately and in accordance with its regulatory responsibilities. Neither the abandonment of ground 3.3(c), nor the fact that the Tribunal did not make a finding against the practitioner as to ground 3.3(a) and (b), are special circumstances that justify the making of a costs order in favour of the applicant. 8. Riley's Solicitors Manual at [34,175] details a number of cases in which the existence of special or exceptional circumstances has been considered. Riley's refers to a decision of the Queensland Legal Practice Tribunal in Legal Services Commissioner v O'Connor (No 2) [2006] LPT 2. We have been unable to locate a copy of the decision and so, rely on the description given of it in Riley's. The Tribunal in that matter is reported to have found exceptional circumstances where the charge that the respondent ultimately had to meet at the hearing was different both in its terms, in the particulars of the charge, and the gravity of the offence, from the charge set out in the application that commenced the proceeding. The practitioner was ordered to pay only two thirds of the Commissioner's costs. Some similarities may exist between that case and this. 9. In the matter of Law Society of NSW v Oliveri [2007] NSWADT 246, the Administrative Decisions Tribunal (ADT) made no order for costs following a finding that a practitioner was guilty of unsatisfactory professional conduct. The Tribunal in that matter said that it did not regard the matter as serious and that it could have been resolved had the complainant accepted a reasonable offer from the practitioner to resolve their dispute (which concerned the payment of a sum of money). The circumstances of that case are quite different from this one. This does involve a serious matter and it is not a matter that could have been appropriately resolved by any offer made by the respondent before the hearing. 10. In NSW Bar Association v Howen (No 2) [2008] NSWADT 27 the ADT made an order that some of the respondent barrister's costs be paid from the NSW Public Purpose Fund where the case brought against him was dismissed. Costs were awarded in relation to grounds that the Tribunal found clearly lacked merit. The members of the Tribunal said:
We view the present case as one in which there are indeed special circumstances which 'warrant' the making of a partial costs order. While one important component of the case brought by the Bar Association against the Barrister could not be regarded as clearly lacking in merit...our conclusion regarding the remaining components-including the particularised allegations that the Association withdrew after two days of hearing-was that they lacked merit. This should have been realised by the Association before it resolved to institute proceedings. In consequence, the Association brought a distinctly more substantial case against the Barrister than was at all justifiable... this constitutes 'special circumstances' within the meaning of section 566(3) of the LP Act.
FULL REPORT ( ) CASE NOTE ( ) UNREPORTED DECISION ( )
[1] Jackson v Sterling Industries Ltd (1986) 12 FCR 267 per Bowen CJ at 272 per
[3] See the discussion of this and the list of authorities in Riley's Solicitors Manual at [33,010] to [33,025]
[4] Law Society of the ACT and The Legal Practitioner [2010] ACAT 47 at 21
[5] see the discussion and authorities detailed in Riley's at [33,070.10]
[6] See for example the discussions of the value of character references in Re Bridgman [1934] St Qd R 1, Re Nelson (1991) 106 ACTR 1 at 24 per Higgins and Foster J, Re Grosse [1996] ACTSC 5, Law Society of NSW v Foreman (No 2) 1994 34 NSWLR 408 at 444
[7] NSW Bar Association v Sahade (No 3) [2006] NSWADT 39, Law Society of NSW v Cornwell (No 2) [2006] NSWADT 308 at 72, Council of the Law Society of NSW v Treanor [2009] NSWADT 115 at 17, NSW Bar Association v Hart [2006] NSWADT 97 at 111
List of cases: Autodesk Inc
Dyason
THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY & THE LEGAL PRACTITIONER (Occupational Discipline) [2011] ACAT 51
List of cases: Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300
Law Society of the ACT and The Legal Practitioner [2010] ACAT 47
Law Society of NSW v Cornwell (No 2) [2006] NSWADT 308
Law Society of NSW v Oliveri [2007] NSWADT 246
NSW Bar Association v Hart [2006] NSWADT 97
NSW Bar Association v Howen (No 2) [2008] NSWADT 27
NSW Bar Association v Sahade (No 3) [2006] NSWADT 39
Re Grosse [1996] ACTSC 5
The Law Society of the ACT v The Legal Practitioner (application to re-open) [2010] ACAT 45
The Law Society of the Australian Capital Territory and the Legal Practitioner [2010] ACAT 69
The Council of the ACT Law Society and the Legal Practitioner [2010] ACAT 73
(1993) 176 CLR 300
(1986) 12 FCR 267