Ndou v Council of the Law Society of New South Wales

The application and material relied on by parties

1. By his application lodged 21 October 2022 and the accompanying grounds of application, the applicant seeks administrative review, under s 314(1)(b) of the Uniform Law, of the decision by the PCC to reprimand the applicant. He was notified of the decision the subject of his application on 8 August 2022.
2. The applicant lodged his application in NCAT approximately six weeks out of time. Under s 314 of the Uniform Law, s 126 of the Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act) and r 24(3)(b) and 24(4)(b)(ii) of the Civil and Administrative Tribunal Rules 2014 (NSW), an application for review should have been made within 28 days of the day on which he was notified of the making of the administratively reviewable decision. In response to an application for an extension of time (on the basis that the delay was caused by the limited availability of his then legal representative), the Tribunal (differently constituted) made an order on 7 December 2022 extending the time by which the applicant may make an application under s 314 of the Uniform Law to 21 October 2022.
3. Documentary material relied on by the applicant is as follows: the grounds for application (as set out in his application lodged 21 October 2022); an affidavit of Lovemore Ndou sworn 2 February 2023 (Ndou Affidavit); written submissions undated and provided to the respondent on 24 April 2023; and submissions in reply dated 19 June 2023, which annex email correspondence dated 14 January 2020 to 21 January 2020 between the applicant and the Police Officer in Charge of the relevant Local Court proceedings. Both sets of the applicant's written submissions contain a mixture of evidence and submissions. To the extent that those documents contain assertions of fact, the applicant swore to the truth of the contents of the documents at the hearing of this matter.
4. The respondent relies on its written submissions dated 9 June 2023; an affidavit of Nadya Haddad affirmed 7 June 2023 (Haddad Affidavit), which annexes orders of the Family Court of Australia (Family Court) and three days of transcripts in the Local Court before Miller LCM; and an affidavit of Kelly Pahuta (the complainant) sworn 8 June 2023 (Pahuta Affidavit). The respondent also relies on a "Section 58" bundle, being documents lodged with NCAT pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (Section 58 Documents), which include correspondence between the complainant and the applicant dated 23 December 2021, the original complaint dated 22 January 2021, the applicant's response to the complaint dated 27 July 2021, the complainant's response dated 24 June 2021, the Family Court judgment of Rainaldo & Rainaldo [2020] FamCA 921 (anonymised by the Family Court), and various correspondence between the parties.
5. At the hearing, the respondent sought to tender delegation instruments (containing delegations, as relevant, from the NSW Legal Services Commissioner to the Law Society Council and from the Law Society Council to the PCC) and a contemporaneous file note of the complainant dated 25 June 2020, restricted to the relevant entry. Those documents were admitted with leave and without objection by the applicant. Subsequent to the hearing, the respondent forwarded to NCAT (and copied to the applicant) what it said was in fact the correct delegation instrument from the Law Society Council to the PCC. We received no objection from the applicant regarding this document and have treated it as if it were the delegation tendered at hearing by the Law Society Council.

Background and PCC decision

1. On 28 July 2022, the PCC resolved, pursuant to s 299 of the Uniform Law, that the applicant had engaged in unsatisfactory professional conduct: "1. The Respondent Solicitor breached a Local Court order made on 21 November 2019 by using information and/or document(s) produced in those proceedings in his client's affidavit dated 12 December 2019 and filed in the Family Court. [(Complaint One)]. 2. The Respondent Solicitor breached the Harman Principle, as outlined in Harman v Secretary of State for the Home Department [1983] 1 AC 280, by using information and/or document(s) produced in the Local Court proceedings for a collateral purpose. [(Complaint Two)]."
2. The PCC further resolved: "i. the Respondent Solicitor is reprimanded (s 299(1)(a) of the [Uniform Law]); ii. that within 6 months from notification of the Committee's determination, the Respondent Solicitor undertake and complete legal ethics training with the Professional Support Unit of the Law Society (s 299(1)(e) of the [Uniform Law])."
3. The complaints which ultimately led to the PCC's resolutions arose in the context of a family law matter in which the applicant acted for the Father and the complainant acted for the Mother. Noting the anonymisation of the parties in the Family Court judgment, we will not refer to the Mother, Father or Children in the family law proceedings by name. To preserve their anonymity in these proceedings, we made (of our own motion and without objection from the parties) a non-publication order on 29 June 2023, pursuant to s 64(1)(c) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act).
4. In July 2019, an interim Apprehended Domestic Violence Order (ADVO) was granted to the Children against the Father by the Local Court (ADVO Proceedings). Following the granting of the ADVO, the Mother filed an application in the Family Court seeking full parental responsibility (Family Law Proceedings).
5. The applicant's client caused a subpoena to be issued to the Commonwealth Department of Home Affairs in the ADVO Proceedings, seeking documents with respect to the Mother's international movements. On 21 November 2019, Keady LCM made the following orders: "1. Documents produced by Department of Home Affairs 2. Defendant to have uplift and copy access 3. Documents to be used only in these proceedings and not to be copies [sic] or disseminated beyond the defendant's solicitor."
6. On 12 December 2019, the applicant filed in the Family Law Proceedings an affidavit on behalf of the Father which described the substance of the subpoenaed documents and annexed those documents to the affidavit.
7. The ADVO Proceedings were finalised by consent in the Local Court on 2 March 2020. In the Family Law Proceedings, the Father advised the Court that he wished to discontinue on 15 April 2020 and those proceedings were finalised on 2 November 2020.
8. On 23 December 2020, the complainant sent an email to the applicant concerning the use of the subpoenaed documents in the Family Court in apparent contravention of the Local Court order, and requesting a response. By way of background, the complainant had inspected the ADVO Proceedings file in June 2020 in the course of the Family Law Proceedings.
9. On 23 December 2020, the applicant sent a reply email to the complainant which noted he would be away until 5 February 2021 and stated: "In the meantime you are more than welcome to make a complaint to the Legal Services Commissioner."
10. The complainant lodged a complaint with the NSW Legal Services Commissioner (Commissioner) on 22 January 2021. As described by the PCC in its decision of 28 July 2022, the complaints were: "… the Complainant alleges that the Respondent Solicitor used the subpoenaed documents obtained in the ADVO Proceedings (provided by the Department of Home Affairs) in the Family Law Proceedings contrary to the order of LCM Keady (complaint 1) and/or that he used the subpoenaed documents for a collateral purpose in breach of the Harman principles (complaint 2)."
11. On 25 January 2021, the Commissioner referred the complaints to the Law Society Council for assessment, investigation and determination under ss 405(2) and 406 of the Uniform Law, having provisionally recorded the complaint as a disciplinary matter. Acting under delegation from the Law Society Council, the PCC notified the applicant of the complaint on 7 July 2021 and sought written submissions from him. On 27 July 2021, the applicant provided submissions which attached various Family Court orders. On 14 June 2022, the PCC notified the applicant of its preliminary view and proposed determination, and sought further written submissions by 5 July 2022. The applicant did not provide any further submissions.
12. The PCC made its final decision on 28 July 2022 and notified the applicant of its decision on 8 August 2022. We note the gap of 11 days between determination and notification. Section 318(2) of the Uniform Law provides that notification must be provided "as soon as practicable" after the decision is made. The delay here is unexplained. However, the time period within which a person may apply for administrative (or merits) review in NCAT commences at the date of notification, so the applicant was not disadvantaged in this regard.

Respective positions of parties

1. While the applicant does not challenge the finding of unsatisfactory professional conduct, it must be said that the applicant's submissions about Complaint Two, and specifically whether he breached the Hearne v Street (or Harman) obligation, have been somewhat inconsistent throughout these proceedings. While he said in his affidavit dated 2 February 2023 that he does not dispute that he engaged in unsatisfactory professional conduct (Ndou Affidavit at par 5) and that he admitted breach of a court order, it was not clear from his affidavit whether his admission that he engaged in unsatisfactory professional conduct was based solely on a breach of an express court order.
2. In his later written submissions (24 April; 19 June 2023) his position seemed to be that there was no breach of any Harman obligation on the basis that no such obligation applied because the contents of the subpoenaed documents in question were a "matter of public record"; or that he was effectively released from any such obligation (or would have been released from such obligation if he had applied to the Local Court for release). That said, during the later stages of the hearing, he made it clear that he admitted a breach of the Harman obligation. We will refer to his submissions relating to Complaint Two later in these reasons, including where relevant to the applicant's insight into his conduct.
3. The applicant says that a reprimand is not warranted. He completed the relevant legal ethics training (as he was required to do by the PCC's determination) on 6 December 2022, and does not challenge this requirement. He contends that the correct and preferable decision is the giving of a caution, or no protective order (other than the legal ethics training requirement).
4. The respondent contends that the correct and preferable decision is that the applicant's conduct, the subject of Complaints One and Two, amounted to unsatisfactory professional conduct such as to warrant a reprimand. The respondent no longer presses the order that the applicant complete ethics training, as he has already done so, although the respondent submits that this was the correct and preferable decision (as at 28 July 2022).

Jurisdiction and nature of NCAT's review jurisdiction

1. These proceedings are for administrative review under the ADR Act of that part of the determination of the PCC (as delegate of the Law Society Council) by which the applicant is reprimanded pursuant to s 299(1)(b) of the Uniform Law: Uniform Law, s 314; Application Act, s 126.
2. Section 299 of the Uniform Law provides for a local regulatory authority, such as the Law Society Council (acting under delegation from the Legal Services Commissioner), to determine whether a lawyer has engaged in unsatisfactory professional conduct. "Unsatisfactory professional conduct" includes "conduct of a lawyer 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 lawyer": Uniform Law, s 296. Section 299 also provides for various disciplinary orders, including a caution, reprimand, apology and a fine of up to $25,000.
3. Under s 406 of the Uniform Law and s 32 of the Application Act, the Law Society Council may delegate relevant powers and functions to, amongst others, committees including a Professional Conduct Committee of the Law Society Council. Relevant delegations are in evidence before us, and we are satisfied that the PCC (as delegate of the Law Society Council) was acting under a valid delegation in the circumstances of this matter. We are also satisfied that the Law Society Council (as delegate of the Legal Services Commissioner) was relevantly acting under a valid delegation.
4. Relevant statutory provisions and the nature of review proceedings have been summarised in several NCAT decisions, including Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85; Hall v Council of the Law Society of New South Wales [2020] NSWCATOD 96; and Hagan v Council of the Law Society of New South Wales [2022] NSWCATOD 76 at [48]. We refer below to some key principles.
5. Section 63 of the ADR Act allows NCAT to exercise all of the functions that are conferred or imposed on the original decision-maker to make the correct and preferable decision. NCAT may determine to affirm, set aside or vary the original decision, or to remit the matter for further consideration. In addition, NCAT may make any other order it considers appropriate: Uniform Law, s 314(2). NCAT may consider the material before the original decision-maker as well as any relevant new material put before it.
6. NCAT's decision takes effect on the date it is made or such later date as may be specified in its decision. If NCAT varies, or makes a decision in substitution for the decision of the original decision-maker, the Tribunal's decision is taken to be the decision of the original decision-maker and has effect on and from the date of the original decision-maker's actual decision, unless otherwise ordered: ADR Act, s 66.
7. There is no onus of proof on either party. Rather, the task is to determine the matter on the merits. NCAT is not concerned to examine whether there was challengeable error in the process or reasoning by the PCC or the Law Society Council. There is no presumption that the original decision is correct.
8. The rules of evidence do not apply to these proceedings (as there is no question of professional misconduct involved): NCAT Act, s 38(2) and Sch 5, cl 20; Uniform Law, s 301(3). NCAT is entitled to inform itself on any matter in the manner it thinks fit, subject to the rules of natural justice. A fundamental obligation is to make findings of fact based on logically probative material and NCAT may rightly have regard to the gravity of any allegations made and to the gravity of the consequences that may flow from the making of a particular finding or decision.
9. The purpose of the disciplinary action taken by the respondent (or delegate) was not to punish the practitioner but to protect the public. Consequently, in reaching the correct and preferable decision on review, NCAT should approach the matter on the same basis.
10. While the applicant seeks only to challenge the earlier categorisation of his conduct as necessitating a reprimand, nonetheless we think that it is incumbent on the Tribunal to make its own findings in relation to the conduct alleged to amount to unsatisfactory professional conduct. Those findings will be relevant to the protective orders (if any) which we may determine appropriate. Further, there is no agreed statement of facts (or similar) before the Tribunal; we note that, until the later stages of the hearing, factual matters remained in dispute in relation to Complaint Two.
11. The decision of the PCC dated 28 July 2022 was a two-stage process which involved a finding of whether the applicant engaged in unsatisfactory professional conduct on the complaints made, and if so, to decide what protective order(s) (if any) were appropriate. Here, the Tribunal stands "in the shoes" of the original decision-maker, and we think that this review involves the same two-step process.
12. There is no controversy between the parties that the relevant provisions in the Uniform Law, the Application Act and the ADR Act apply, or that the conduct in issue was conduct occurring in connection with the practice of law in New South Wales. We are satisfied that we have jurisdiction to determine the application.
13. We observe that, given there has been a determination by the PCC that the applicant engaged in unsatisfactory professional conduct and protective orders have been made, no further action may be taken by the respondent under Chapter 5 of the Uniform Law in relation to the conduct in question: Uniform Law, s 299(3). Because this Tribunal stands "in the shoes of the original decision-maker", it is restricted to a finding of unsatisfactory professional conduct. Accordingly, it is not open to us in these proceedings to make any finding of professional misconduct. That said, the powers in s 299 of the Uniform Law are broad, and s 314(2) of the Uniform Law enables NCAT to make any order it considers appropriate on review.

Did the applicant engage in unsatisfactory professional conduct?

1. In respect of Complaints One and Two, we refer below to relevant legal principles, make findings where required, and set out our reasoning in relation to whether the applicant engaged in unsatisfactory professional conduct.

Legal principles

1. As earlier noted, "unsatisfactory professional conduct" includes conduct of a lawyer, 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 lawyer": Uniform Law, s 296. Section 298 expands upon the definition of unsatisfactory professional conduct (as well as professional misconduct) by identifying several further categories of specific conduct that are capable of constituting unsatisfactory professional conduct (or professional misconduct). Those categories include contraventions of the Uniform Law or the Legal Profession Uniform General Rules 2015 (NSW), which relevantly include the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015 (NSW) (Conduct Rules).
2. Breach of the Conduct Rules is capable of constituting unsatisfactory professional conduct (see r 2). Rule 3 of the Conduct Rules state that a practitioner's fundamental duty is to the court and the administration of justice. Rule 5 relevantly provides that a solicitor must not engage in conduct which is likely to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the legal profession into disrepute. Rules 3 and 5 appear under the heading "Fundamental duties of solicitors" in the Conduct Rules.

Breach of court orders

1. Non-compliance with a court order is a serious matter that goes to the heart of the administration of justice. As indicated by the Victorian Supreme Court in Legal Services Board v Forster (No 3) [2012] VSC 640 (in the context of contempt proceedings), compliance with court orders is an absolute obligation on legal practitioners. Emerton J stated at [15]-[16]: "15. You are a member of the legal profession of long standing. You well knew the importance of complying with the Order and the seriousness of breaching it. ... In my view, legal practitioners should be held to a higher standard when it comes to compliance with Court orders and the preservation of the due administration of justice than ordinary members of the public. Legal practitioners are bound to uphold the rule of law, which is an essential element in any civilised and properly functioning community. 16. … As Harper J said in R v Garde-Wilson [[2005] VSC 452 at [8]], the community must be able to look to legal practitioners to shoulder responsibility for the maintenance of the rule of law to a greater extent that persons who do not make their livelihood from the law." (footnotes omitted)
2. Absent some extenuating circumstance, a solicitor's duty to the court and the administration of justice must include compliance with court orders. Any conduct of a solicitor which is inconsistent with that duty would, on its face, be prejudicial to, or diminish the public confidence in, the administration of justice or bring the legal profession into disrepute: see, e.g. Conduct Rules, rr 3 and 5.
3. Regardless of whether the conduct in question amounts to contempt of court, the conduct may still amount to a breach of professional discipline: see, e.g., di Suvero v Bar Association (LSD) [2001] NSWADTAP 9. In that case, the former NSW Administrative Decisions Tribunal (ADT) rejected a submission by the legal practitioner in question that where contempt proceedings could be employed to deal with misconduct by the practitioner, to bring any other form of proceedings would be to expose the practitioner to double jeopardy. As the ADT stated at [34]: "… Contempt powers and disciplinary proceedings each have a role to play in the administration of justice. In our view it is quite possible and appropriate that conduct found to be in contempt could in turn give rise to disciplinary proceedings that might be lead to disciplinary penalties being imposed. … We agree with the Tribunal that conduct that does not amount to contempt may still amount to a breach of professional discipline. We agree with the submission of the Bar Council made at hearing that this view is consistent with the High Court's approach in Clyne v NSW Bar Association (1960) 104 CLR 186."
4. In the professional discipline context, there are published cases where the legal practitioner in question has been found guilty of professional misconduct or unsatisfactory professional conduct in circumstances involving breach of a court order. In Victorian Legal Services Commissioner v Harriss (Legal Practice) (Corrected) [2020] VCAT 689, a family law solicitor who unintentionally breached a court order and subpoena conditions conceded that his conduct amounted to professional misconduct. The Victorian Civil and Administrative Tribunal (VCAT) agreed and found him guilty of professional misconduct.
5. In Law Society of NSW v Hocking [2017] NSWCATOD 19, this Tribunal (differently constituted) found that a sole principal solicitor's failure to ensure that his practice promptly complied with a court order "amounted, at the least, to unsatisfactory professional conduct": at [81]. It was stated at [82]: "A legal practitioner has an overriding duty to the Court, one aspect of which is strict observance of any orders directed to the practitioner (in this instance in his capacity as sole principal of the law practice the subject of the court order): see generally, Rondel v Worsley [1969] 1 AC 191 at 227 per Lord Reid. …"

Hearne v Street (or Harman) obligation

1. In Hearne v Street (2008) 235 CLR 125; [2008] HCA 36, the High Court approved the principle set out in Harman v Secretary of State for the Home Department [1983] 1 AC 280 where the House of Lords said that there was an "implied undertaking" to the court, imposed at common law, that documents produced in the course of discovery cannot be used for a purpose other than the proceedings to which they were produced. However, in Hearne v Street at [96], the majority (Hayne, Heydon and Crennan JJ) preferred the language of "obligation", defining it to be: "Where one party to litigation is compelled, either by reason of a rule of court, or by reason of a specific order of the court, or otherwise, to disclose documents or information, the party obtaining the disclosure cannot, without the leave of the court, use it for any purpose other than that for which it was given unless it is received into evidence. The types of material disclosed to which this principle applies include documents inspected after discovery, answers to interrogatories, documents produced on subpoena ...". (footnotes omitted)
2. Whilst commonly referred to as an "implied undertaking" (or a Harman undertaking), the majority in Hearne v Street held that it is properly to be understood, as "an obligation of law arising from circumstances in which the material was generated and received": at [102]. It is an obligation of substantive law, which was formularised in another way to mean "that the party obtaining discovery is 'taken to undertake to the court that the documents obtained on discovery will not be used for any purpose other than the action in which they are produced'" (at [105], citing Mobil Oil Australia Ltd v Guina Developments Pty Ltd [1996] 2 VR 34 at 38; original emphasis). The majority further commented: "The fact that the role of the word 'undertaking' is merely to indicate the way in which an 'obligation' which is 'imposed by law' as a 'condition' of discovery binds the disclosee highlights the substantive nature of the obligation. There is nothing voluntary about the 'undertaking'."
3. As to purported ignorance of the principle, the majority stated (at [112]): "There is no support in the authorities for the idea that knowledge of anything more than the origins of the material in legal proceedings need be established. In particular, there is no support for the idea that knowledge of the 'implied undertaking' and its consequences should be proved, for that would be to require proof of knowledge of the law, and generally ignorance of the law does not prevent liability arising."
4. The nature of the obligation, being to the court and imposed as a matter of law, justifies the treatment of breach of the obligation as contempt of court: at [106], citing Bourns Inc v Rayhchem Corp [1999] 1 All ER 908 at 915 [16].
5. In Khoury v Kirwan (No 4) [2021] VSC 333 at [106], Dixon J of the Victorian Supreme Court stated: "I noted at the outset that it is not in dispute that the Harman undertaking was breached, and that a breach constitutes contempt of court. … There is a public interest in the enforcement of a Harman undertaking to maintain the integrity of the administration of justice. That is so even though a Harman undertaking serves a private interest in protecting the privacy of persons who are compelled to produce confidential documents by court process."
6. The Full Court of the Federal Court of Australia in Treasury Wine Estates Limited v Maurice Blackburn Pty Ltd (2020) 282 FCR 95; [2020] FCAFC 226 provided a comprehensive analysis of the state of law on the Hearne v Street obligation and concluded that the obligation ceases once the document is received into evidence.
7. A party may seek leave to be released from the obligation where "special circumstances" exist. In an often-cited judgment in Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217; [1992] FCA 720, Wilcox J referred to the authorities and stated at [26]: "For 'special circumstances' to exist it is enough that there is a special feature of the case which affords a reason for modifying or releasing the undertaking and is not usually present. The matter then becomes one of the proper exercise of the Court's discretion, many factors being relevant. It is neither possible nor desirable to propound an exhaustive list of those factors. But plainly they include the nature of the document, the circumstances under which it came into existence, the attitude of the author of the document and any prejudice the author may sustain, whether the document pre-existed litigation or was created for that purpose and therefore expected to enter the public domain, the nature of the information in the document (in particular whether it contains personal data or commercially sensitive information), the circumstances in which the document came into the hands of the applicant for leave and, perhaps most important of all, the likely contribution of the document to achieving justice in the second proceeding."
8. In Evans v Citibank Ltd [2000] NSWSC 1017, the NSW Supreme Court made clear that the principles about how documents obtained for purposes of litigation may be handled, as set out in Harman v Secretary of State for the Home Department [1983] 1 AC 280 and Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217, form part of the law and rules of court. Hamilton J stated at [2], [4]: "2. The case is illustrative of the care and concentration needed to be applied by legal representatives, often working under the heaviest pressures, to the rules whereby there is an implied undertaking by parties that documents they receive for the purposes of litigation only are not to be used except for the purposes of that litigation. Legal representatives need also at all times to bear in mind that these documents include affidavits which have been filed, or witness statements, that have come into their possession in circumstances where those documents have not become public documents or been read or tendered in Court. … 4. … I am acutely aware how easy it is for such matters to slip the mind under pressure despite their importance. I should add that [the solicitor] was unaware that the rule applied to unread affidavits. It is unfortunate that that had not come to his attention and it is most important that all members of both professions who engage in litigation should be aware of this rule. …"
9. In that case, the Supreme Court heard an application by a solicitor and barrister for purging a contempt resulting from breach of the Harman obligation. The contempt was in the handing to the representatives of the NSW Crime Commission certain affidavits filed in proceedings on behalf of particular defendants but not read in Court (while the Crime Commission could potentially have obtained the same documents by compulsory process, it had not done so). The barrister in question acknowledged that it would have been possible to apply for leave to be released from the undertaking, but the contempt was still required to be purged. The judge accepted that seeking of a release from the Court had not occurred to the barrister or solicitor because they had not realised they were in breach of the rules based on Harman and Springfield Nominees. The Court ultimately made orders which included that the barrister and solicitor in question be discharged for punishment for breach of the implied undertaking.

Findings

1. We earlier set out background facts, which were uncontroversial, and we make those findings.
2. We think it necessary to make further factual findings in relation to the complaints, particularly Complaint Two, and specifically whether the subpoenaed documents were received into evidence in the ADVO Proceedings before the applicant filed the Father's affidavit in the Family Court on 11 December 2019.
3. The applicant initially gave evidence that the subpoenaed documents had been "referred to, read and tendered in the Local Court prior to having them annexed to my client's affidavit which was sworn on 11 December 2019" (Submissions at par 1). The applicant also gave evidence that the Mother had been "extensively cross-examined in the Local Court about these travel records which were subsequently tendered into evidence" (Submissions at par 4). In his Submissions in Reply (at par 4) and annexing email correspondence with the police (Officer in Charge of the ADVO Proceedings), the applicant further said that the Mother attended and gave evidence in the Local Court proceedings "on the next court date" after 21 January 2020, which, on the evidence before us, was 2 March 2020. The applicant also relied on an order of the Family Court dated 8 October 2019 for his assertion that the subpoenaed documents were before the Family Court at the time the affidavit was filed.
4. Against that position, from a review of transcripts of the Local Court before Miller LCM dated 26 September, 25 November and 27 November 2019, the respondent says there is no evidence that the subpoenaed documents were referred to, read or tendered in the ADVO Proceedings, and no evidence that the Mother was cross-examined in those proceedings on those dates. Further, by order dated 11 October 2019 the Family Court suspended the earlier order (of 8 October 2019) in relation to its request for the ADVO Proceedings file. The subpoenaed documents were not before the Family Court at the time the Father's affidavit was filed in the Family Court on 12 December 2019.
5. Later in the hearing, the applicant resiled from his earlier assertion that he had cross-examined the Mother on the contents of the subpoenaed documents on 2 March 2020, or at an earlier time, in the ADVO Proceedings. He indicated to the Tribunal that he could not recall whether he cross-examined the Mother. Accordingly, we do not take him to maintain his position that he cross-examined the Mother in the ADVO Proceedings on 2 March 2020, or at any stage prior to that date. He conceded that he had not checked his file and could not point to evidence such as files notes or transcripts to support his earlier assertion about having cross-examined the Mother about the contents of the subpoenaed documents. We also do not take him to press his earlier submissions that the subpoenaed documents had been read, tendered or otherwise described in the ADVO Proceedings. The applicant conceded, in the later stages of the hearing, that he was in breach of the Harman obligation, and likely remained in breach of that obligation.
6. The following timeline is drawn from the evidence (including transcript of the ADVO Proceedings) before the Tribunal: 1. On 26 September 2019, the first day of the ADVO Proceedings was part-heard in the Local Court by Miller LCM. The Mother did not give evidence. 2. On 8 October 2019, Registrar Bartlett of the Family Court made an order requesting the ADVO Proceedings file. That order was suspended, on 11 October 2019, by Registrar Crawford of the Family Court until the conclusion of the ADVO Proceedings. Later (and after finalisation of the ADVO Proceedings), Registrar Crawford made an order on 6 March 2020 requesting that the ADVO Proceedings file be brought to the Family Court, to be received by 18 March 2020. 3. In the ADVO Proceedings, documents relating to the Mother's travel movements were produced under subpoena on or about 18 November 2019, with the return of subpoena date in the Local Court listed for 21 November 2019. On that day, Keady LCM made the relevant uplift and access orders on the condition that the documents were only to be used in the ADVO Proceedings. Documents on the ADVO Proceedings court file indicate that the applicant was present at court when Keady LCM made those orders, and the applicant confirmed at the hearing in this matter that he was so present. 4. On 25 November 2019, the second day of the ADVO Proceedings was part-heard by Miller LCM. The Mother did not give evidence and the subpoenaed documents were not tendered, referenced or described. 5. On 27 November 2019, the third day of the ADVO Proceedings was part-heard by Miller LCM. The Mother did not give evidence and the subpoenaed documents were not tendered, referenced or described. Those proceedings were adjourned to 2 March 2020. 6. On 12 December 2019, the applicant filed the Father's affidavit in the Family Court referring to and annexing the subpoenaed documents. 7. Over the period 14 January 2020 to 21 January 2020, the applicant corresponded via email with the Officer in Charge of the ADVO Proceedings. The Officer indicated that the prosecution case was closed and they would not be calling the Mother as a witness, and if the applicant (as the Father's solicitor) wished to call the Mother to give evidence in those proceedings, it would be for the applicant to arrange. 8. On 2 March 2020, the ADVO Proceedings were finalised by consent. There is no transcript of the Local Court proceedings of that date in evidence before the Tribunal. There is no evidence before us that the Mother was subpoenaed to give evidence in the ADVO Proceedings or agreed to give evidence in the Local Court on that day.
7. Apparent from the timeline and evidence before us, it is clear that (and to the extent required, we make such findings): 1. The Family Court did not have the ADVO Proceedings file before it at the date the affidavit (referring to or annexing the subpoenaed documents) was filed in the Family Court on 12 December 2019. 2. The subpoenaed documents had not been tendered (or otherwise referenced or described) in the ADVO Proceedings at the date the affidavit was filed in the Family Court on 12 December 2019. 3. The Mother had not been cross-examined in the ADVO Proceedings about the substance of the subpoenaed documents at the date the affidavit was filed in the Family Court. The Mother had not given any oral evidence in the ADVO Proceedings at that date. She was not cross-examined on the subpoenaed documents at any stage prior to 12 December 2019. 4. We are not persuaded that the applicant cross-examined the Mother about the contents of the subpoenaed documents in the ADVO Proceedings on 2 March 2020. There is no corroborating evidence before the Tribunal to support his sworn evidence that he cross-examined the Mother on the contents of the subpoenaed documents on 2 March 2020, such as transcript or files notes. As noted, at a late stage of the hearing, he conceded that he could not remember whether he had cross-examined the Mother on that date (or at all). 5. There is no probative evidence that the subpoenaed documents were tendered, referenced or described in the Local Court on 2 March 2020.

Consideration - Complaint One

1. Solicitors have a paramount duty to the court and the administration of justice, and must not engage in conduct which is likely to be prejudicial to, or diminish the public confidence in, the administration of justice or bring the legal profession into disrepute (see, e.g., Conduct Rules, rr 3 and 5).
2. The applicant admits Complaint One and that his conduct the subject of the complaint amounted to unsatisfactory professional conduct; he accepts that legal practitioners should be held to a higher standard regarding compliance with court orders and the maintenance of the administration of justice. The applicant emphasises that breaching Keady LCM's order was an oversight and says it did not amount to contempt of court.
3. The respondent submits that non-compliance with a court order is a serious matter that goes to the heart of the administration of justice. The respondent relies on Legal Services Board v Forster (No 3) [2012] VSC 640 and indicates that being aware of, and complying with court orders, is an absolute obligation on legal practitioners. Whether or not the conduct in question amounts to a contempt of court, the conduct may still amount to breach of professional discipline. The respondent submits that the applicant's conduct is, "at the very least an example of unsatisfactory professional conduct" (Submissions in Response, at par 64).
4. The respondent contends that the explanation that the applicant "inadvertently missed" the order is entirely unsatisfactory and inconsistent with the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and so amounts to unsatisfactory professional conduct.
5. It is not in dispute that the applicant breached the order of Keady LCM (made on 21 November 2019) by filing an affidavit on behalf of the Father in Family Court Proceedings on 12 December 2019 which annexed subpoenaed documents obtained through compulsory process in the Local Court ADVO Proceedings. We agree with the respondent that being cognisant of, and complying with court orders, is of the ultimate importance for any legal practitioner. The applicant admits that his conduct amounted to a contravention of the order of the Local Court.
6. We accept that the breach was unintentional in that the applicant overlooked the order. Nonetheless, we consider that the conduct falls well short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer and amounts (at the very least) to unsatisfactory professional conduct.

Consideration - Complaint Two

1. Throughout these proceedings the position taken by the applicant concerning breach of the Hearne v Street (or Harman) obligation has been either inconsistent or unclear. In written submissions filed and served prior to the hearing, he contended that he did not breach any Harman obligation (see Submissions in Reply, at par 5(i)). However, the position he ultimately took at the hearing of this matter was that he did breach the Harman obligation, that in all likelihood he remained in breach of the obligation, and that his conduct amounted to unsatisfactory professional conduct.
2. In his written submissions dated 19 June 2023, he contended that the Harman obligation did not apply because the contents and substance of the subpoenaed documents had become a matter of public record through the ADVO proceedings. He relied on Treasury Wine Estates Limited v Maurice Blackburn Pty Limited (2020) 282 FCR 95; [2020] FCAFC 226 for the principle that, once documents are read in court (or otherwise made publicly available), parties to proceedings are released from the implied obligation (or undertaking) because any confidentiality or privacy that may attach has been destroyed.
3. The respondent contends that the applicant's submissions are almost exclusively based on assertions unsupported by evidence and should be rejected. The subpoenaed documents were not before the Family Court at the time the Father's affidavit was filed in the Family Court on 12 December 2019. From a review of transcripts of the Local Court dated 26 September, 25 November and 27 November 2019, there is no evidence that the subpoenaed documents were referred to, read or tendered in the ADVO Proceedings, and no evidence that the Mother was cross-examined in those proceedings on those dates. Further, by order dated 11 October 2019 the Family Court suspended the earlier order (of 8 October 2019) in relation to the request of the ADVO Proceedings file.
4. The respondent submits that a breach of the Harman undertaking is serious and may amount to contempt, relying on Hearne v Street (2008) 235 CLR 125 at [103] and Khoury v Kirwan (No 4) [2021] VSC 333. The respondent points to the "public interest in the enforcement of a Harman undertaking to maintain the integrity of the administration of justice": Khoury at [106]. It should have been clear to the applicant, even if he was unaware of the Harman undertaking - which he ought to have been aware of - Keady LCM's order in itself should have alerted him to the seriousness of using the subpoenaed documents in other proceedings - that documents produced under compulsion must not, without leave, be used for a collateral purpose.
5. In our view, the applicant breached the Hearne v Street (or Harman) obligation owed to the Local Court by filing an affidavit on behalf of the Father in the Family Court Proceedings on 12 December 2019 which annexed subpoenaed documents obtained through compulsory process in the ADVO Proceedings. The subpoenaed documents were produced by the Department of Home Affairs, under compulsion, to the Local Court for use in the ADVO Proceedings.
6. Cautiously, Keady LCM made orders to a similar effect and further restricted uplift and access orders solely to the applicant as the Father's solicitor. The need to ensure that the subpoenaed documents not be used for an ulterior or collateral purpose should have been apparent to the applicant. As an experienced advocate in criminal and family law proceedings, aware of his duties to the Court, it is surprising that he would claim ignorance of the obligation. In any event, this is insufficient to avoid liability: Hearne v Street at [112].
7. Above, we made findings of fact that the subpoenaed documents were not tendered, discussed, or the subject of cross-examination in the ADVO Proceedings at the time the Father's affidavit was filed in the Family Court on 12 December 2019. The Family Court did not have the ADVO Proceedings file before it at the time the Father's affidavit was filed. The subpoenaed documents were not admitted into evidence and so the Harman obligation continued to apply: Hearne v Street at [96]. Thus, the proposition from Treasury Wine Estates relied on by the applicant does not assist his case - the obligation had not ceased prior to the filing of the Father's affidavit by reason of the subpoenaed documents, or their contents, having been read in court or otherwise having entered "the public domain" as asserted by the applicant in his written submissions.
8. As at the date he filed the Father's affidavit in the Family Court, the Hearne v Street obligation had not ceased to apply, for example because the Mother had been cross-examined about the contents of the subpoenaed documents. The applicant did not seek leave from the Local Court to be released from the obligation, nor was such leave given. We should add that we cannot see any later circumstances, that is, after 12 December 2019, by which the Hearne v Street obligation ceased to apply.
9. The applicant submitted that, had he been aware of the Harman undertaking, he would have made an application to be released from the undertaking and "in all probability" such an order would have been made. He says that there were easily demonstrable special circumstances warranting a release from the implied undertaking as there was a legitimate forensic purpose for the use of the subpoenaed documents, that is, for use in defending the Family Law Proceedings. We agree with the respondent's submission that the applicant has misapprehended the test for release from the Harman undertaking by considering whether there was a "legitimate forensic purpose" - the test is whether special circumstances exist for modifying or releasing from the implied undertaking: Crest Homes Plc v Marks [1987] 1 AC 829 at 860; Springfield Nominees Pty Ltd v Bridgelands Securities Ltd (1992) 38 FCR 217 at 225.
10. The applicant pointed to the following "special circumstances": the subpoenaed documents ultimately did not form part of the Family Court's file; and because the Family Law Proceedings went to an undefended hearing, the material was not before the Court and so technically was not used for a collateral purpose. We reject the applicant's submission that the subpoenaed documents were not used for a collateral purpose. The Father's affidavit was filed and served on the parties to the Family Law Proceedings. Subsequent circumstances which meant the affidavit was not tendered in the Family Law Proceedings do not excuse the applicant's actions.
11. We think there is force in the respondent's submissions regarding the nature of the subpoenaed documents and the proceedings in which they were produced. The highly sensitive nature of apprehended domestic violence proceedings, and of the Mother's international travel movements, are factors that speak strongly against the use of the subpoenaed documents for a collateral purpose. The Mother was not afforded an opportunity to give evidence as to any prejudice she would face were the documents to be used in the Family Law Proceedings, or the opportunity to consent to their collateral use. While we are not in a position to determine any contribution the subpoenaed documents would have made in the Family Law Proceedings, it is by no means obvious that there were special circumstances which may have warranted a release from the Hearne v Street (or Harman) obligation. In any event, the applicant took no steps in the Local Court to seek release from the obligation.
12. We are satisfied that the applicant's conduct, at the very least, amounted to unsatisfactory professional conduct, having fallen short of the standard of competence and diligence that is expected of a reasonably competent lawyer. This is particularly so, given that he is an experienced advocate. Complaint Two is established.

Appropriate protective or disciplinary orders

1. In light of our decision to affirm the PCC's findings of unsatisfactory professional conduct, we must consider the correct and preferable protective or disciplinary orders to be made with respect to that conduct.

Legal principles

1. NCAT has power under the s 314(2) of the Uniform Law to make any protective order that it considers appropriate. That jurisdiction is protective, not punitive, and is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the legal profession which will continue its good reputation, and so protect not only the future of the profession, but also protect clients from harm.
2. In determining the appropriate protective orders to make, it is open to NCAT to take into account a range of factors that emerge from the material before it. The principal (but not exhaustive) considerations relevant to that decision include: the gravity of the misconduct; the deterrent effect of any protective order on the further conduct of the practitioner and on the conduct of other practitioners; and the enhancement of confidence in the public in the integrity of the profession.
3. In deciding on the appropriate protective orders following a finding of unsatisfactory professional conduct, NCAT may also take into account any failure by the practitioner "to understand the error of his [or her] ways" and whether the practitioner is appropriately regretful of the conduct (see, for example, Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [78], [81]-[82]).

Evidence and Submissions

1. In his sworn affidavit, the applicant said he took full responsibility for his breach of the Local Court orders and assured the Tribunal that there would be no repetition of such conduct (Ndou Affidavit at par 5). At the hearing, the applicant showed contrition. He said the public nature of the reprimand has adversely affected his business and that he has lost clients, made worse by the publication of a press article about him which mentioned the reprimand.
2. The applicant completed legal ethics training on 6 December 2022 in compliance with the PCC's determination. He submits that this demonstrates that he does follow orders. He contends his breach of the court order in question was an oversight, rather than wilful disobedience, and referred to his service as a reserve (Infantry) in the Australian Defence Force - where he is often required to observe orders - as demonstrative of his willingness to obey orders. The applicant says that he was not aware of the Hearne v Street (or Harman) obligation and that he was under time pressure to prepare the Father's evidence in the Family Law Proceeding.
3. Regarding breach of the Hearne v Street (or Harman) obligation, the applicant argues that his actions can be distinguished from other case law examples of breaches of the obligation where the documents in question were disseminated to third parties including journalists. He submits that his conduct does not "manifest such deliberate dereliction of my professional duty to the court and to my opponents as to deserve the designation 'serious contempt'" (Submissions at par 8). The applicant also asks the Tribunal to consider the nature and consequences of his breach of the Hearne v Street obligation, including that there was no prejudice to the Mother, the affidavit in question was not disseminated beyond the parties to the ADVO and Family Law Proceedings, and was ultimately not used in the Family Law Proceeding. The applicant also relies on the fact that the affidavit never went into evidence because the Father withdrew from the proceedings in question.
4. Regarding his responses to the complainant's initial email dated 23 December 2021 and the PCC investigation, the applicant gave sworn evidence of personal circumstances which went to the dismissive nature of his responses. The applicant says that around that time he had lost a number of family members overseas to COVID-19, which affected his mental health and meant he was not in a position to provide an appropriate response. He asks that we do not rely on his responses as demonstrating a lack of insight into his conduct.
5. The applicant notes that this is the first time he has been the subject of a complaint and assures the Tribunal that there will be no repetition of the conduct. He accepts responsibility for his actions. The applicant also refutes the respondent's assertion that he lacks insight into his conduct.
6. In written submissions filed prior to the hearing, he said that had the issue been brought to his attention at the time (with apparent reference to the complainant, the Mother's legal representative), he would have taken immediate steps to obtain instructions to withdraw the affidavit and annexure in the Family Law proceedings. However, during the hearing of this matter, the applicant emphasised that he took full responsibility for his actions and that he did not seek to apportion any blame to the complainant.
7. The applicant says that he is "otherwise a very experienced Advocate and is conscious of his duty to the Court" (Grounds for Application at par 6) and that he appears "in various Courts almost on a daily basis. I am very much aware of an advocates' [sic] duty to a Court" (Ndou Affidavit at par 6).
8. The respondent says in written submissions that the applicant lacks insight into his conduct, demonstrated by: (1) his pointing to delay on the part of the complainant in drawing attention to his breach; and (2) in the way that he has sought to defend his conduct with respect to the Harman obligation.
9. In relation to the first point, the respondent submits that the complainant had no opportunity to object to the Father's affidavit annexing the subpoenaed documents because it was never tendered into evidence. In any event, the applicant has misconceived an obligation on legal practitioners to ensure their colleagues do not breach their professional obligations - this should also be considered by the Tribunal in determining the appropriate protective orders.
10. In relation to the second point, the applicant in these tribunal proceedings has made assertions without supporting evidence, including that the contents of the subpoenaed documents were in the "public domain" such that the Harman obligation did not apply; or that he was "released" from any Harman obligation, or that he would have been released from that obligation "in all probability" had he approached the Local Court.
11. As to the appropriate protective orders, the respondent submits that the conduct of the applicant, being a failure to adhere to a court order and to comply with the common law undertaking to that effect, is sufficiently serious to attract public censure. This is so not only because it falls short of professional standards and brings into question the integrity of the administration of justice, but also because it operates as deterrence for other legal practitioners.
12. The respondent submits that a reprimand - a significant penalty - is commensurate with the seriousness of the applicant's conduct. Further, his lack of insight in seeking to defend his conduct regarding the Harman obligation reinforces the appropriateness of a reprimand. While at the hearing the respondent did not wish to be heard on the question of whether a more significant protective outcome should be applied by the Tribunal, the respondent indicated its position that a more serious outcome for the practitioner, such as a reprimand together with a fine, would be open to the Tribunal, and "arguably appropriate". The applicant submitted that the imposition of a fine would be harsh.

Consideration

1. In the professional discipline context, there are several published decisions concerning breach of court orders by legal practitioners. For example, in Law Society of NSW v Hocking [2017] NSWCATOD 19, this Tribunal (differently constituted) found that a sole principal solicitor's failure to ensure that his practice promptly complied with a Court order "amounted, at the least, to unsatisfactory professional conduct": at [81]. The Supreme Court had made an order for the legal practice to pay a sum to another party forthwith; that party sent the orders to the legal practice and the legal practice did not comply until some 20 months later (it is not apparent from the Tribunal's reasons for decision whether the non-compliance was deliberate or inadvertent). In light of the numerous and significant other findings against the solicitor in Hocking, the Tribunal did not articulate what it felt the appropriate protective or disciplinary order would be for the above conduct alone.
2. In Victorian Legal Services Commissioner v Harriss (Legal Practice) (Corrected) [2020] VCAT 689, the solicitor in question unintentionally breached a court order and subpoena conditions. VCAT found him guilty of professional misconduct, reprimanded him, ordered him to pay a fine of $5,000 and to pay the Commissioner's costs. VCAT noted that, in addition to the orders made by it, the practitioner had already "paid a high price for his conduct" (at [40]), including standing down from partnership, significant financial loss and a three-year disciplinary process.

Reprimand

1. A reprimand reflects the seriousness of the impugned conduct and the Tribunal's disapprobation of such conduct: Council of the Law Society of New South Wales v Judah [2022] NSWCATOD 89 at [368]. As the Tribunal (differently constituted) commented in Youssef v NSW Legal Services Commissioner [2020] NSWCATOD 85 at [82]: "… A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other legal practitioners; and further, upholds and reinforces the standards of the profession. We are conscious that an order of this kind is given wide publicity through the internet and should be regarded as a significant penalty."
2. We accept that the breach of Keady LCM's order occurred through oversight, and that the applicant was unaware of, or misunderstood, his obligations to the court based on common law obligations as described by the High Court in Hearne v Street. Nonetheless, we do not consider that a mere caution is sufficient - this would not reflect the seriousness of the applicant's conduct in breaching his fundamental obligations to the court in ensuring compliance with court orders and with Hearne v Street obligations. We consider that, at minimum, it is appropriate to reprimand the applicant.

Imposition of fine

1. However, the question arises whether a reprimand is an adequate recognition of the applicant's conduct concerning the breach of an express court order and of the Hearne v Street obligation, or whether one or more additional protective orders should be imposed. At the hearing, we raised with the parties that the circumstances of this case could potentially result in a more serious outcome for the applicant (for instance, a fine and reprimand) than that which had been originally determined. Certainly, we consider the applicant's conduct fell significantly short of what was expected of him.
2. We think there is a need for protective orders which express this Tribunal's view of the seriousness of the conduct in question. While we accept that the applicant was unaware of the underlying principle, the High Court in Hearne v Street made clear the seriousness of the Harman obligation. The obligation is an undertaking to the court, and goes to the maintenance of the integrity of the administration of justice: Khoury v Kirwan (No 4) [2021] VSC 333 at [106]. As an experienced litigant, the applicant ought to have been aware of the Hearne v Street obligation. Moreover, the express order of Keady LCM should have alerted him to the seriousness of using the subpoenaed documents in other proceedings - that documents produced under compulsion must not, without leave, be used for a collateral purpose.
3. There is a need for deterrence, both specific and general, in this case. While the applicant emphasises that there will be no repetition of the conduct, the manner in which he has argued his case before this Tribunal in relation to the Hearne v Street obligation has shown a lack of insight into the nature of the obligation, the seriousness of any breach (even where unintentional and resulting from ignorance of the principle), and the need to take prompt action to seek to address or ameliorate the breach once the issue came to his attention. We think there remains a need for specific deterrence in this case.
4. It is also important that the protective orders made by this Tribunal reflect the need for general deterrence - the imposition of a fine, in addition to a reprimand, should serve to deter other practitioners from similar conduct, as well as to enhance public confidence in the integrity of the profession.
5. Legal representatives need at all times to bear in mind that documents obtained through compulsory process in court proceedings are not to be used except for the purposes of those proceedings. Members of the legal profession who engage in litigation should be aware of the rules set out in Hearne v Street and other relevant case law.
6. This is the first complaint in relation to this legal practitioner. He has acknowledged his oversight and expressed contrition. However, weighing all of the issues, we are not satisfied that the original outcome is appropriate, and we think a fine should be imposed in addition to a reprimand. We acknowledge that the earlier decision to reprimand the applicant, coupled with subsequent media publicity, has adversely affected the applicant's law practice and we think that the imposition of a fine in a relatively modest amount is sufficient. We have decided to impose a fine in the amount of $2,000, payable within 60 days of this decision.
7. In determining the appropriate protective orders, we bear in mind that the applicant undertook a legal ethics course, in December 2022, in compliance with the PCC's determination. It is to be hoped that the applicant's completion of the legal ethics course reinforces the need to be mindful of his professional obligations, including his obligation to be frank in his dealings with regulatory bodies and this Tribunal. Had the applicant not yet completed legal ethics training, we would have found it necessary for him to do so and made orders to that effect.

Confidentiality

1. Section 64(1)(c) of the NCAT Act enables the Tribunal, if it considers it desirable to do so by reason of the confidential nature of the evidence or for any other reason, of its own motion, or on the application of a party, to prohibit or restrict the publication of evidence given before NCAT.
2. We raised the issue of the making of a non-publication order under s 64(1)(c) of the NCAT Act at the hearing, and no objection was raised by either party. On 29 June 2023, we made an order which prohibits the publication of evidence given in the proceedings, and documents lodged with the Tribunal, which identify the client of the applicant (referred to as the Father in these reasons for decision) or any member or former member of the Father's family.
3. In Council of the Law Society of New South Wales v Diaz [2021] NSWCATOD 9, the Tribunal (differently constituted) considered relevant factors for making an order prohibiting publication of the names of the respondent lawyer's clients. The Tribunal there stated at [4]-[5]: "4. In its decision in Council of the Law Society of New South Wales v CZD [2017] NSWCATOD 31 the Tribunal outlined the analytical process which the Tribunal might adopt in considering such an application. Essentially, this is to weigh the principle of open justice, from which the proposed order is a clear departure, against the benefits to be had from the order. 5. Here the order only concerns the names of the Respondent's clients whose affairs were involved in the alleged breaches. Their identities are not, in the present case, at all relevant to the nature of the alleged breaches or the circumstances in which they are alleged to have incurred. Moreover, since the order requested does not restrict publication of the name of the Respondent or details of his conduct, the exemplary lessons to be drawn from the public identification of solicitors against whom the Tribunal makes findings and of their conduct will not be compromised if in the event the Tribunal finds against the Respondent."
4. We agree with the extract reproduced from that earlier Tribunal decision (see also Hagan v Council of the Law Society of New South Wales [2022] NSWCATOD 76 at [100]). We think that similar considerations apply in the current circumstances.

Costs

1. Section 60 of the NCAT Act applies in the present proceedings such that each party is to bear their own costs, unless special circumstances warranting a costs order are established. The parties advised that there were to be no applications for costs. We make no order as to costs.

Orders

1. The decision dated 28 July 2022 is varied as follows: 1. Lovemore Ndou is reprimanded pursuant to s 299(1)(b) of the Legal Profession Uniform Law (NSW); and 2. Lovemore Ndou is to pay a fine of $2,000 pursuant to s 299(1)(f) of the Legal Profession Uniform Law (NSW), such fine to be paid within 60 days of the Tribunal's decision.

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: 26 July 2023