NSW Bar Association v Harkin

Evidence before the Tribunal

1. The Tribunal received into evidence the following material relating to the substance of the allegations.

• Affidavits from officers of the applicant: the certification officer (Mr Anthony) dealing with the respondent's omissions in relation to holding current PII and a current practising certificate; the executive director of the applicant (Mr Selth), dealing with the complaints and their investigation, and the other matters of concern revealed in that process; and the director of professional conduct (Ms Pearce), dealing with statements made to her by the respondent. The executive director's affidavit annexed several volumes of relevant documents.
• Affidavits relating to cases conducted by the respondent: an affidavit from client Smeekens; and an affidavit from Mr Fitzpatrick, the solicitor for client Buckley.
• Bundle of business records from the professional indemnity insurer, Aon: containing exchanges between the insurer and the respondent in in relation to non-payment of the premium for the year commencing 1 July 2011 and his belated payment in respect of the 2012-13 year.
• Other: an affidavit from, Mr Gupta, a clerk the respondent employed in the period under notice, relating to the aspects of the respondent's conduct in preparing and lodging court process, and in relation to his correspondence under letterhead describing himself as a barrister.

1. The respondent has not filed a Reply. Nor has he filed any evidence in reply. As noted earlier, he did participate, through a lay agent, in many of the directions hearings; and he did provide by letter dated 26 August 2015 an explanation for his non-appearance at the hearing.
2. It will be seen that there were no affidavits from the second and third of the clients mentioned above, Mr Buckley and Mr Buck. The applicant did seek to obtain their attendance at the hearing by summons. Neither attended.
3. In the case of Mr Buckley, attempts at service were unsuccessful. The applicant satisfied the Tribunal that reasonable attempts at service had been made. While the summons may be 'taken to have been served' (for the purposes of rule 15(3) of the Civil and Administrative Tribunal Rules 2014),the Tribunal is satisfied that Mr Buckley was 'not available' to give evidence within the meaning of the Evidence Act 1995 (see Dictionary, cl 4).
4. On the other hand Mr Buck was served with the application and the summons to attend. He had informed the applicant that he did not wish to attend the hearing, and gave an explanation. He was 'not available' in that sense.
5. Prior to hearing, the applicant served notices under s 67 of the Evidence Act advising the respondent that it would seek to place in evidence that account given of representations made by the respondent in the original complaints of Mr Buckley and Mr Buck (Buckley, 27 May 2013; Buck, 15 January 2013). In the case of Mr Buck the notice gave as the ground for reliance on the document that he was not available (s 63). In the case of Mr Buckley the notice gave as the ground that though he was available, it would be impractical to call him (s 64). At hearing the applicant did not seek to rely on its notice as it related to Mr Buckley, as the situation was not of the kind to which s 64 applied. Instead it sought to be excused from compliance with s 67, a discretion given to the Tribunal by s 67(4), in respect of any notice under s 63 of the Evidence Act.
6. The Tribunal ruled that it was satisfied that the applicant had complied with s 67 in relation to the evidence of representations contained in Mr Buck's original complaint; and excused the applicant from compliance with s 67 in the case of Mr Buckley's original complaint, given that their intention had been clearly conveyed to the respondent in the notice to move under s.64. The original complaints were received into evidence.

Applicable Disciplinary Law in Outline

1. The respondent is an 'Australian lawyer' within the meaning of the Act, as he has been admitted to practice (definition, s 5). The holder of a practising certificate is, in addition, an 'Australian legal practitioner'. There was a period, as noted, when he did not hold a practising certificate. He remains regulated in relation any conduct as a practitioner in such a period: see s 500.
2. 'Professional misconduct' and 'Unsatisfactory professional misconduct' are defined in a non-exhaustive way, as follows: unsatisfactory professional conduct includes conduct of an Australian legal practitioner occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner (s 496). professional misconduct includes: (a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and (b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice (s 497(1)).
3. As the applicant's submissions noted, courts have explained the term 'professional misconduct' as connoting conduct which would reasonably be regarded as disgraceful or dishonourable by one's peers. The submissions cited New South Wales Bar Association v Cummins (2001) 52 NSWLR 279 (CA, Spigelman CJ, Mason P and Handley JA); [2001] NSWCA 284 at [36]-[56] and the authorities referred to therein. As the submissions do, this is commonly referred to as the common law test.
4. Professional discipline is an area today of close and detailed legislation. The test, routinely described as the 'common law' test, has its origins in the much-cited explanation given by Lopes LJ in Allinson v General Council of Medical Education [1894] 1 QB 750 at 763 as to the way a statutory expression, 'infamous conduct in a professional respect', was to be applied in disciplinary proceedings affecting medical practitioners. Lopes LJ said that this judgement should be made in accord with the views of 'professional brethren of good repute and competency' (the modern expression 'one's peers' seeks to capture the same idea). This approach has drawn the understandable criticism that a test might be applied in a way that only takes account of opinions held by one's peers, and excludes from view the opinion of the reasonably minded consumer, patient or client, and the wider community. (In Cummins there are numerous references to the interests of clients and the wider public in being able to place the highest confidence and trust in the conduct of legal practitioners.)
5. The shortcoming to which we have referred is addressed in the statutory definition of unsatisfactory professional conduct found in the Act (enacted three years after the decision in Cummins), and quoted above. The meaning given to unsatisfactory professional conduct expressly states that the standard of competence and diligence expected of a practitioner is that which a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The primary meaning of professional misconduct ((a)) builds on the concept of unsatisfactory professional conduct, and in that way picks up and incorporates the 'member of the public' standard. (For a detailed discussion of the possible tension between the common law test and the modern statutory formulations, see Edmonds, 'Misconduct of Australian Lawyers under Legislation based on the National Model - Aligning the Common Law Tests with the Statutory Regime', (2013) 39 Monash University Law Review 776.)
6. If, after hearing the complaint, the Tribunal finds that the practitioner has engaged in conduct that constitutes either 'unsatisfactory professional conduct' or 'professional misconduct', the Tribunal may make any of the disciplinary orders permitted by the Act (s 562(1)).
7. The primary orders range from: reprimand at the lower end, to sanctions which affect the right to practise such as imposition of conditions, or sanctions that involve exclusion from practice such as suspension for a period, or, more fundamentally, cancellation of the practising certificate, and finally and most significantly, removal of the practitioner's name from the local roll of practitioners (s 562(2)). There are also powers to impose fines, make orders of various kinds in relation to undertaking programs of professional education, financial administration of the practice, and referral for counselling and health assistance and the like (s 562(4)).
8. While a finding of professional misconduct is clearly more serious than a finding of unsatisfactory professional conduct, it is open to the Tribunal to impose any of the sanctions (including removal from the roll) in respect of either finding. The only sanction that makes a distinction between the two findings is that sanction of a fine. The maximum is set at $10,000 in the case of unsatisfactory professional conduct; and $75,000 in the case of professional misconduct (s 562(7)).
9. The Act provides that a number of particular types of contraventions of the law regulating legal practitioners, or contraventions of the wider law of the community (for example, tax offences), may be capable of being treated as unsatisfactory professional conduct or professional misconduct (s 498). In this case, there are a number of allegations of contravention of specific provisions of the Act and of the New South Wales Barristers' Rules.

Burden of Proof

1. As these are civil proceedings, the civil standard of proof applies. Findings are made on the balance of probabilities. In disciplinary proceedings, any adverse finding may have serious consequences for the reputation and standing of a respondent. In the present case, the primary order sought is to remove the respondent from the profession. Appropriate care must apply in making adverse findings that may have such serious consequences. The Tribunal should avoid making findings that depend on 'inexact proofs'. See generally, Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361-362 per Dixon J.

Submissions

1. The applicant filed detailed written submissions. At hearing counsel for the applicant took the Tribunal through each of the grounds and correlated them to the relevant evidence which was voluminous. The submissions dealt closely with those parts of the Grounds and particulars where findings were sought which imputed the character of the respondent, such as those which alleged that he had knowingly made false or misleading statements, or that his true state of mind was other than stated by him in explanations given for his conduct.

Findings in relation to Particulars

1. We will now set out our findings in relation to each of the grounds. We will examine first the grounds that refer to the period 1 July 2011 to 15 October 2015, and have as their basis the question of whether the respondent was entitled to practise as a barrister.

(a) Entitlement to practise; and related wrongful representations as to status as practitioner (Parts A to I of the application).

1. Applicable Law: Section 14(1) of the LP Act provides (subject to certain exceptions at s 14(2) and s 14(3) that are not relevant to this case) that 'A person must not engage in legal practice in this jurisdiction unless the person is an Australian legal practitioner'. If a person is charged with a contravention of this provision, the Tribunal must satisfy itself that the person did engage in practice as a legal practitioner in the period that he or she failed to hold a practising certificate, or alternatively, held a practising certificate but it was not valid because of failure to have PII: Feldman v Law Institute of Victoria [1998] 4 VR 324 at 352; Kekatos v Law Society of NSW [1999] NSWCA 288 at [16]. For a recent, detailed statement of the relevant law and an account of types of work that would ordinarily involve the work of a barrister in the conduct of litigation, see Council of the NSW Bar Association v Davison [2006] NSWSC 65 at [44] per Hall J; approved, Council of the Law Society of NSW v Australian Injury Helpline Ltd (2008) 71 NSWLR 715 at [61].
2. Further, s 15(1) of the LP Act provides: 'A person must not represent or advertise that the person is entitled to engage in legal practice unless the person is an Australian legal practitioner.'
3. Finally, s 403 provides that the Bar Council must not grant or renew a practising certificate to a barrister unless it is satisfied that the barrister has or will have an approved PII policy in place or the barrister is exempt from the requirement to have such insurance in place. Section 60 of the Act provides that failure to have insurance in place is a ground for the Bar Council to suspend or cancel a barrister's practising certificate. Mr Selth's evidence is that had the Council been aware at the time of the cancellation of the policy it would have taken steps to suspend or cancel the respondent's practising certificate pursuant to s 60 of the Act.
4. Consideration: As is its usual practice, the Bar Association had during April 2012 circulated practising certificate renewal applications for the forthcoming practice year. The respondent had not applied by early June, and, again, as is usual, the Bar Association sent him a reminder on 13 June 2012. The reminder informed him that he would not be entitled to practise if he did not renew his certificate. Further letters were sent to him on 2 and 16 July seeking confirmation that he did not wish to continue in practice. The certification officer's evidence refers to a call from the respondent soon after 16 July 2012 in which the respondent explained that he had been caring for his sick mother, had overlooked the notice, and he intended to lodge his application soon. In a letter to the applicant dated 31 January 2013, which forms part of the annexures to the certification officer's affidavit, he denied having received a Bar Association notice.
5. We accept the evidence of the certification officer as to the contact by the respondent. We accept the applicant's submission that we should infer from the recency of the call to the date of the Bar Association's letters that the notice were sent and received by the respondent, and do so. We accept also the accuracy of the certification officer's file note of a later communication from the respondent in early to mid-August advising that his mother's health had improved and he would be applying for a certificate. This communication took place at about the same time that he made his application for renewal of his PII. He sent his application for a practising certificate on 7 September, and included a statutory declaration dated 5 September 2012 providing an explanation as to why he should be renewed in the circumstances, and explaining his default.
6. The evidence of the applicant's officers (the certification officer and Mr Selth, the executive officer), and the insurer's business records together clearly establish that the respondent failed to ensure that he had operative PII during the period referred to. He had been in good standing as at 30 June 2011. He had obtained a practising certificate for the year commencing 1 July 2011. In accordance with usual practice, Aon had granted cover with the premium payable on 13 July 2011. It proceeded to cancel the policy for non-payment on 4 November 2011. In the period 1 July 2011 to 30 June 2012, the respondent stated to the insurer (in the belated application for cover forwarded on 15 August 2012 for the 2012-2013 practice year) that he had grossed $70,000 in fees in the previous year.
7. We are satisfied that the respondent engaged in legal practice in two periods without holding PII, i.e. 2011 to 30 June 2012 (Ground H24) and 1 July 2012 to 23 August 2012 (Ground H25).
8. There are eight other grounds relating to the period 1 July 2012 to 15 October 2012 and seek a finding that the respondent engaged in legal practice when he was not a legal practitioner within the meaning of the Act. He was affected by a double default in the period from 1 July 2011 to 23 August 2012 (where he held neither PII nor a practising certificate) and a single continuing default in the period 24 August to 15 October 2012 (where he filed to hold a practising certificate). These grounds do not require findings as to the respondent's state of mind.
9. We are satisfied that the time at which the conduct occurred was within the period of one or both of the defaults referred to, and that the nature of the work undertaken, and its characterisation as legal work, are all made out. The grounds are Ground A7 (client, Smeekens), Ground B10 (Buckley), Ground C17 (Buck), Ground D20 (Pagett), Ground E21 (Haidari), Ground F22 (Templar), and Ground G23 (Yu).
10. Similarly Part I of the application identifies written communications to Court registries in which the respondent engaged, either directly or through his clerk Mr Gupta, and which bore the description 'Barrister' or 'Barrister-at-law', all belonging to the period 6 August 2012 to 20 September 2012. The particulars set out four such representations. We are satisfied that by making these representations he represented that he was entitled to engage in legal practice contrary to s 15(1) of the LP Act. Ground I26 is established. We are not inclined to go further as sought by the application and find that he both 'represented' and 'advertised' that he was entitled to engage in legal practice. It is enough for a contravention of s 15(1) that there be a representation. While any letterhead description could be said to be a form of advertising, we think the word 'advertise' normally connotes the making of statements that seek to address a wide audience. The communications to which attention was drawn in this case were ones with courts, and it is sufficient, we think, to treat them as carrying a representation as to his practice status, which, in the circumstances, was false.

(b) Competence issues (Parts A, B and C of the application)

1. Part A sets out grounds relating to Ms Lisa Smeekens, a direct access client of the respondent for whom the respondent performed legal services in connection with proceedings in the District Court of New South Wales.
2. Part B sets out the grounds relating to Mr Shane Buckley, a client for whom the respondent performed legal services in connection with: (a) proceedings in the Supreme Court of New South Wales, and (b) proceedings in the Federal Magistrates Court of Australia.
3. Part C sets out the grounds relating to Mr Vivian Buck, a direct access client of the Respondent for whom the Respondent performed legal services in connection with proceedings in the Local Court at Gosford.
4. The grounds in relation to the three cases raise the following matters: breach of the costs disclosure requirement; breach of trust money receipt requirements; failure to disclose matters required by the Barristers Rules, Rule 24B, Rule 80; unsatisfactory advice as to prospects or otherwise of success in the litigation; drafting pleadings that disclosed no reasonable cause of action; unsatisfactory communication with clients, in particular failure to keep the client informed of important steps in the litigation or of his inability to appear for the client. We have already dealt with some of the grounds relating to practising without a valid practising certificate in the period 1 July 2011 to 15 October 2012 (i.e. Grounds A7, B10 and C17).
5. Many of the further allegations also have as their basis the failure to hold a practising certificate, and are concerned with particular activities in which the respondent engaged in the period 1 July 2011 to 15 October 2012.
6. Applicable Law: A law practice is obliged to disclose to a client detailed information in relation to how legal costs will be calculated, including the provision of estimates, bill payment arrangement, regularly updating and procedures for resolving disputes. Section 309 lists 12 primary categories of information that need to be addressed, and a number of these categories have sub-categories that may need to be addressed. Section 310 deals with the relationship between the first law practice and any practice it might choose to retain to assist in relation to costs. Section 311 requires costs disclosures to be made in writing before being retained or as soon as possible afterwards.
7. Barristers, in contrast to the position that once applied, may accept 'direct access' briefs from clients without the need for the client first to instruct a solicitor, and then the solicitor retain the barrister. The Barristers Rules place special obligations on barristers who deal with a client on a direct access basis, and place some restrictions on the types of work that can be done by a barrister in this way.
8. The period of relevance to this case overlaps the time when the Barristers Rules 2008 were in force (up to 7 August 2011), and the Barristers Rules 2011 took effect (as from 8 August 2011). They are in similar terms. We will set out the rule as it applied to barristers from 8 August 2011 (r 24B, 2011 Rules, replacing r 80, 2008 Rules): 24B. A barrister who proposes to accept instructions directly from a person who is not a solicitor must: (a) inform the prospective client in writing of: (i) the effect of Rules 15 and 17; (ii) the fact that circumstances may require the client to retain an instructing solicitor at short notice, and possibly during the performance of the work; (iii) any other disadvantage which the barrister believes on reasonable grounds may, as a real possibility, be suffered by the client if the client does not retain an instructing solicitor; (iv) the relative capacity of the barrister in performing barristers' work to supply the requested facilities or services to the client compared to the capacity of the barrister together with an instructing solicitor to supply them; and (v) a fair description of the advocacy experience of the barrister; and (b) obtain a written acknowledgement, signed by the prospective client, that he or she has been informed of the matters in (a) above.
9. Further there is a general rule that a person is not entitled to recover any amount in respect of fees if the fees have been received while the person is practising without a practising certificate, and if they have received fees, the fees must be refunded (s 14, esp s 14(4)).
10. Barristers are strictly prohibited from receiving trust money (s 252) 'in the course of practising as a barrister'. 'Trust money' is defined by s 243. Relevantly to this case, there is an exception from the prohibition where a barrister has a direct access client with no solicitor interposed: s 246(3) and reg 106A of the Regulations under the Act. The exception is subject to a number of requirements in relation to such matters as speedy placement of the money in a bank account kept for the purpose.
11. Smeekens: The evidence is found in detail in Ms Smeekens' affidavit, and we accept it. There is additional evidence in the affidavits of the officers of the applicant, and the affidavit of the respondent's law clerk, Mr Gupta. The following is a summary.
12. Ms Smeekens was assaulted at a service station at Long Jetty on 25 June 2011 by an unknown person. She and her father met the respondent at a hotel towards the end of July. She described the circumstances of the assault, and said she had suffered bruising to her face and legs, and whiplash to her neck and right shoulder. The respondent said he would take her case, and asked for payment in advance ($2000) and said that is all it would cost. She gave him a first instalment of $1000 a few days later. He arranged for her to attend a psychologist for the purpose of the claim. The next meeting took place at another hotel, with the respondent's clerk, Mr Gupta, also in attendance. The respondent conducted an interview that Mr Gupta recorded. The respondent advised her she had a good case, and indicated her claim was worth $20,000 to $30,000. He said he would file a claim in a few days.
13. There was no further contact with her for some time, despite her making a number of phone calls. Eventually he called her and asked her for the second instalment of $1000. They met at a hotel on or about 2 February 2012. He told her that he had not got on with her case, because he hadn't received the second instalment, but he would now go ahead. He told her she had a high chance of winning, and when she did they could talk about his cut.
14. There is no evidence that he gave her the required costs disclosure statements or the special notice required by the Barristers Rules in relation to direct access clients.
15. She then heard nothing more about the case despite several phone calls. There was some correspondence from Mr Gupta about matters such as a court filing fees waiver application, but nothing about the progress of the case. She first learnt that proceedings had been commenced in the District Court when she received a letter of demand from the Registrar on 14 June 2013 for payment of filing fees of $591.00. She then discovered that her case had been commenced by filing of a statement of claim on 24 August 2012. She also learnt that the defendant had applied for summary dismissal. The application was granted by the District Court (Judge Levy) on 16 November 2012, with an order that she pay the defendant's costs. Mr Gupta has sworn that he filed the statement of claim at the direction of the respondent.
16. Consideration: We are satisfied that the statement of claim was filed at the direction of the respondent; that there had been an application for waiver of filing fees, but a decision in relation to waiver was not made immediately, and was postponed; that on 18 September 2012 the defendant had filed a defence and notice of motion seeking an order for summary dismissal; and that the application was heard and the order sought made on 16 November 2012.
17. We will now deal with the grounds.
18. In relation to the costs disclosure requirements, we find proven Ground A1 (failure to provide a disclosure of costs in breach of s 309, in the time required by s 311), and Ground A2 (that he received trust money in the sum of $2000 in breach of s 252 of the Act).
19. Ms Smeekens was a direct access client. There is no evidence that the respondent took the steps required by r 24B of the Barristers Rules 2011 or its predecessor in similar terms, r 80 of the 2008 Rules. We find proven Ground A3 (that he failed to make disclosure of the matters required by the Barristers Rules).
20. We find that the respondent failed to inform Ms Smeekens of the occurrence of steps critical to her interests - the filing of the statement of claim, the summary dismissal application and its outcome. In that regard we find, as alleged by the applicant, that the respondent consistently failed to maintain the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian barrister (Ground A6).
21. Grounds A4 and A5 deal with the substance of the advice given by the respondent, and the adequacy of the statement of claim in relation to the assault. As the assailant was unknown, the statement of claim named as the defendant the proprietor of the service station, which included a convenience store. The plaintiff had, according to the particulars, gone there with her sister and her partner, to buy goods. She had diverted to the service station's bathroom, and the assault occurred there. The claim included allegations that she did not receive timely assistance from staff with her injuries, and she eventually went later that night to the Gosford Hospital for treatment.
22. The claim was made under the law of tort and the law of contract. The tort claim asserted that the defendant had been negligent in failing to uphold its duty of care towards customers, and referred to matters such as the need to have safe and secure premises, and the need to have staff who were reasonably able to attend promptly to an assault. The contract claim was founded on a purchase of the goods, but the details of that transaction were not set out. It asserted that the contract for the purchase of goods at the service station included an implied term of confidence and trust, which had been breached. In the alternative, it argued that the defendant owed the plaintiff a duty of care pursuant to the contract. There were also claims alleging breach of s 52 of the Federal Trade Practices Act, and breach of statutory duty not to engage in unconscionable conduct (s 51AB Trade Practices Act). The latter provision had been repealed in 2010.
23. The claim in tort faced great difficulty. As submitted, the claim in tort sought to impose on the defendant liability for a remote risk. As explained by his Honour Judge Levy in his decision granting the summary dismissal application (judgment, 16 November 2012) the cause of action as pleaded was novel, and faced insurmountable difficulties having regard to the general law, and additional requirements contained in the Civil Liability Act. These difficulties would, we consider, have been well understood by a competent lawyer. In addition there was no foundation provided for the contract claim, i.e. a transaction that had occurred ahead of the assault. Even if such a foundation could have been supplied, the implication of a term of the kind suggested faced similar difficulties to those that surrounded the tort claim.
24. We are satisfied that the respondent gave advice to Ms Smeekens that was wrong as to the reasonableness of the prospects of success of her claim (Ground A4) and that by drafting and filing a statement of claim, affected by that difficulty, he engaged in conduct in connection with the practice of law that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian barrister (Ground A5).
25. We have already dealt with Ground A7.
26. Buckley: Grounds B8 to B13 relate to the respondent's conduct in relation to his handling of two cases where Mr Buckley was the plaintiff. The conduct put in issue all relates to the period after 1 July 2012, when, as explained, the respondent had practised without current PII (to 24 August 2012) and without a current practising certificate (to 16 October 2012). We have already dealt with Ground B10.
27. Applicable Law. Law similar to that recounted in relation to the case of Smeekens applies. A barrister must not practise without current PII and a current practising certificate (subject to certain qualifications, none of which are relevant to this case). Further there are obligations in relation to costs disclosure statements, the rendering of receipts, and the drawing of pleadings which disclose a reasonably arguable cause of action.
28. Consideration: We will start with a summary, and then turn to the grounds. The applicant's material, and the applicant's submission contain greater detail.
29. The cases were commenced in the Federal Magistrates Court and the Supreme Court. The respondent's solicitor in both proceedings was Mr John Fitzpatrick. As noted earlier one of the affidavits is from Mr Fitzpatrick.
30. Mr Buckley arranged directly for the respondent to appear for him in both proceedings, instructed by Mr Fitzpatrick.
31. In the case of the Federal Magistrates Court proceedings, the respondent appeared on his behalf at an interlocutory hearing on 17 August 2012.
32. In relation to the Supreme Court case, Mr Buckley contacted him around 8 July 2012 asking the respondent to represent him. The respondent met Mr Buckley at a hotel on 18 July 2012, and agreed to appear. He asked him for a 'cash advance' of $10,000, and Mr Buckley agreed. There was no provision of a costs disclosure statement, then or at any later time, and similarly there was no such disclosure to the solicitors.
33. The respondent appeared at an interlocutory hearing in the Supreme Court on 27 July 2012. Mr Buckley paid him $6000 on or about 5 August 2012, and a further $3000 on or about 10 August 2012 both payments being made when they met at a social club. He did not issue any receipts. He prepared an amended statement of claim in the period 27 July 2012 to 10 August 2012, and his clerk, Mr Gupta, filed the claim on 17 August 2012.
34. It will be seen that the conduct has a number of similarities to his conduct in the Smeekens case.
35. The respondent appeared at an interlocutory hearing in the Supreme Court on 31 August 2012. Counsel for the defendant raised the question of the respondent's entitlement to appear as counsel. After an adjournment the respondent acknowledged that he did not have a current practising certificate. As a result, he advised Mr Buckley later that day that he could no longer appear for him.
36. It followed that he had not been entitled to take payments from clients, and that he was obliged to refund them. Subsequently, Mr Buckley made several attempts to recover the $9,000 to no avail.
37. We will now deal with the grounds.
38. We find that in the period 8 July 2012 to 31 August 2012 the respondent represented to Mr Buckley that he was engaged in legal practice, contrary to s 15 of the LP Act (Ground B8). These representations were as follows: his communication on or about 8 July 2012 that he was available to appear in the Supreme Court proceedings; his acceptance of the brief to appear, on or about 18 July 2012; his appearance on 27 July 2012; the two acceptances of payments around 5 and 10 August 2012; his appearance in the Federal Magistrates Court on 17 August 2012; and his announcement of his appearance in the Supreme Court on 31 August 2012.
39. Similarly, Ground B9 is established, in that he failed to make a costs disclosure within the time required by s 311 of the Act or at all, either to Mr Buckley (s 309) or the solicitor in the Supreme Court matter (s 310). We have dealt already with Ground B10. Similarly, in breach of s 14(4) of the LP Act the respondent received from Mr Buckley the two sums mentioned on the dates mentioned when not entitled to engage in legal practice, and we find Ground B11 established. The receipt of each of these sums constituted the receipt of trust money, and he received them in breach of s 252 of the Act. Grounds B12 and B13 are established.
40. Buck: Mr Buck was a client in the period 18 June 2012 to 6 August 2012. The applicable law is as recounted earlier in relation to Smeekens and Buckley.
41. Consideration: The evidence is that Mr Buck asked the respondent to represent him in proceedings in the Local Court at Gosford relating to traffic infringement notices. The dealings between Mr Buck and the respondent had a number of similarities to those seen in the cases of Smeekens and Buckley. There was a telephone conversation initiated by the client (some time in June 2012) in which his availability was discussed. He agreed to take the work. There was a discussion as to fees. Payments were made (around 18 June 2012). There was no costs disclosure statement provided. There was no disclosure of the matters set out in r 24B of the Barristers Rules 2011. No receipts were given. There was an appearance as counsel on an interlocutory application (17 August 2012). The proceedings were adjourned to 5 October 2012. On 4 October 2012 the respondent informed the client that he was unable to appear. Despite frequent requests by Mr Buck, the respondent has not refunded the payments.
42. We find that the respondent breached s 309 of the Act in not providing a costs disclosure statement within the period required by s 311 (Ground C14), and that he failed to disclose to Mr Buck the matters required by r 24B of the Act (Ground C15). We find that in breach of s 14(4) of the Act, he has received payments from Mr Buck when not entitled to do so (Ground C16) and that he received trust money in breach of s 252 of the Act (Ground C18). We have already dealt with Ground C17.

(c) Candour and Co-operation Issues (Parts J and K)

1. These Parts all relate to the respondent's dealings with the applicant in relation to its advice to him, its investigation (Part J) and his response to notices to formal notices issued by it (Part K). The evidence is found in the affidavits of the officers of the applicant.
2. The conduct put in issue by Part K all relates to representations he made to the applicant in relation to his failure to have a practising certificate for the year commencing 1 July 2012. Grounds J27-J30 concern statements he made in his statutory declaration, giving an explanation for his non-renewal of his practising certificate, dated 5 September 2012. It had as its immediate antecedent his withdrawal from proceedings in the Supreme Court on 31 August 2012 when, as noted earlier, the Court had drawn to its attention by counsel for the defendant that his appearance as counsel may not be in order. Grounds J31 concerns a statement made in a further statement of 5 October 2012. Ground J32 was not pressed.
3. The conduct put in issue by Part K all relates to failures to respond to notices to produce documents and other written information. Ground K33 was not pressed. The notices were all given under s 660 of the LP Act. Non-compliance is a criminal offence, punishable by a fine to a maximum of 50 penalty units.
4. Applicable Law. High standards of integrity are expected of a lawyer. In particular, the lawyer must deal with bodies charged with the oversight and regulation of the standards of the profession in a candid and co-operative way. No matter how distasteful, disclosure should be frank and complete. Similarly, co-operation should be prompt and unqualified. These principles have been enunciated in many leading cases. See, for example, Law Society of NSW v Foreman (1994) 34 NSWLR 408 at 412C, Cummins (previously cited), Frugtniet v Board of Examiners (No 1) [2002] VSC 140 at [11] per Pagone J (there in the context of applicants for admission); and Frugtniet v Board of Examiners (No 2) [2005] VSC 332 at [27-[28] per Gillard J.
5. While some of the statements to which we have referred concern the relationship between a practitioner and a statutory body or between the practitioner and the courts, we agree with the applicant's submission that the same standards apply to the relationship between a practitioner and bodies charged with the investigation of complaints from members of the public, such as the applicant in this case or independent agencies such as the Legal Services Commissioner.
6. As submitted, lack of candour or dishonesty in that context may reveal underlying qualities of character that are incompatible with the standards and behaviour required of a member of the legal profession: see further, Council of the NSW Bar Association v Franklin (No 2) [2014] NSWCA 428 at [34].
7. The expectation that practitioners will observe these standards in their dealings with the regulatory authorities is reinforced by s 674 of the Act (hindering or misleading an investigator an offence) and, more so, by s 676 of the Act, which expressly declares that it is an obligation of an Australian lawyer 'not [to] mislead an investigator or a Council in the exercise of …any power or function under this Chapter'.
8. The applicant's submissions and the particulars invite the Tribunal to make a number of findings adverse to the credit of the respondent in relation to statements made in the communications to the certification officer and in the renewal form and statutory declaration.
9. The respondent's statutory declaration dated 5 September 2012 was provided in support of his late application for renewal of his practising certificate. As noted earlier, it was restored effective 16 October 2012.
10. As a result of its investigation of the various complaints, the applicant now challenges the following statements in that declaration: (a) that he made a false or misleading statement in asserting that he believed during the period from 1 July 2012 until 17 August 2012 that he had a local practising certificate and/or was entitled to practise as a barrister because he believed that an application for a practising certificate that he had completed and provided to his mother in early May 2012 would have been sent by her and processed by the applicant. (Ground J27) (b) that he made a false or misleading statement in that he believed during the period from 21 August 2012 until 27 August 2012 (or alternatively 31 August 2012) that he had a local practising certificate and/or was entitled to practise as a barrister because he believed that an application for a practising certificate that he had completed and provided to his clerk on 21 August 2012 had been sent to the Applicant (Ground J28) (c) that statements he made as to his having appeared on four occasions in July 2012 and August 2012 were erroneous in one respect, as to the date of the fourth matter, and repeated in the statutory declaration of 5 October 2012 (Ground J29) , (d) related statements as to non-issuance of invoices were incomplete and misleading, in that they carried the inference of non-receipt of payments, and repeated in the statutory declaration of 5 October (Ground J30).
11. Consideration: In relation to Ground J27, we accept the applicant's submission that a reasonable practitioner would have understood that, as no practising certificate had issued in due course at the usual time, between mid-May and mid-June, it was not open to assume that he or she was entitled to engage in practice after 1 July 2012.
12. Whatever the truth of the account given, involving assistance from his mother, the making of this statement as to his real belief was misleading. We accept that submission that we should infer that the respondent would have understood the position to have been that he was not entitled to practise after 1 July 2012 in the absence of a practising certificate. Ground J27 is established.
13. For the same reasons, we accept the applicant's submission in relation to his statement as to his belief in the relation to the period from 21 August 2012 to 27 August 2012. (It will be recalled that he had applied for renewal of PII on or about 15 August 2012, and it had been restored as from 24 August 2012.)
14. At hearing, we were taken to the evidence of the certification officer (Mr Anthony) in relation to explanations given by the respondent as to his non-renewal of his practising certificate. Mr Anthony's evidence referred to a conversation that took place between them, after the respondent called him by telephone shortly after the second reminder had been sent (letter, 16 July 2012). We agree with the applicant that the letter is consistent with the respondent having received the reminder letter, even though he subsequently denied receiving the reminder letters in a letter to the applicant dated 31 January 2013. We do not accept the respondent's statement in the explanations he gave to the applicant that he first knew that he did not hold a current practising certificate when he was informed of the problem by his clerk on 17 August 2012. He was aware by 15 August 2012 that he did not have PII, and made an application for cover (granted the next week). He could not, therefore, have reasonably thought that he was entitled to practise, and moreover, he knew by this time, we consider, that it had not been renewed, and the applicant was seeking an explanation. We are satisfied that he knew that in the period 1 July 2012 to 17 August 2012 he did not have a certificate, and engaged in practice with that knowledge.
15. In the case of the statements to which Grounds J29 and J30 refer, we accept that they were erroneous. The respondent gave details (such as dates, times and matters) where he had appeared as counsel in the period between 1 July 2012 and the date of the statutory declaration. The list was accurate as to the first three matters listed. The list was inaccurate as to the fourth occasion (the Buckley Supreme Court appearance before Garling J). The issue is the date. The respondent gave 27 August 2012, the true date was 31 August 2012. In the context of the case as a whole this is a relatively minor matter, and we note that the applicant simply seeks a finding that it was 'erroneous'. Ground J29 is established.
16. After referring to the four appearances, the respondent continued by saying: 'I have not issued invoices for any of these matters'. The statement carried an inference that there had been no accounts rendered, or payments requested in these matters. The truth was that he had received payments in relation to three of the four appearances (the two for Mr Buckley, and the one for Mr Buck). Grounds J31 refer to a subsequent statement of a similar kind. In the statutory declaration of 5 October 2012, the respondent said: "I have not and will not at any time take monies for the days upon which I appeared without a practising certificate." We agree with the applicant's submission that this statement was false in that he had received the payments to which we have previously referred from Mr Buckley (total $9000) and the payment from Mr Buck ($600). Ground J31 is established. Ground J32 was not pressed. Ground K33 was not pressed.
17. Ground K34 relates to a notice issued under s 660 in the Buck matter, date of issue 26 April 2013, date for compliance, 13 May 2013. Ground K35 relates to a further notice in this matter, date of issue 27 May 2013, date for compliance, 19 June 2013. Ground K36 relates to a notice in the Buckley FMC matter (complainant Mr Balog, solicitor), date of issue 5 June 2013, date for compliance 24 June 2013. Ground K37 relates to a notice in the Buckley matters (complainant, Mr Buckley), date of issue 1 July 2013, date of compliance, 19 July 2013. Ground K38 relates to a further notice in that matter, date of issue, 2 August 2103, date of compliance, 26 August 2013. Ground K39 refers to a further notice in that matter, date of issue 20 August 2013, date of compliance 20 September 2013.
18. We are satisfied from the evidence of the officers that the respondent failed to respond at all, without reasonable excuse, to the notices the subject of Grounds K35 to K39.
19. In relation to the notice the subject of Ground K34 the respondent did supply a statutory declaration dated 14 May 2013. The evidence includes the full notice. The applicant accepts, and we agree, that the declaration did in part respond to the notice, but that it failed to respond other significant matters that formed part of the notice (paragraphs A1(b), (c), (e) and (f); A2; A3; and A4).
20. In the case of the notices the subject of Grounds K35 and K36, there were repeated attempts to remind the respondent to reply to them. They are summarised at paragraphs 143 and following of the applicant's submissions. We will not set them out in detail here. The Ground K35 notice was the subject of two reminders; the Ground K36 notice, two reminders. The Ground K36 notice was the subject of further 'correspondence'.
21. The applicant relies on these repeated failures to reply as further evidence in support of a finding of professional misconduct.
22. Grounds K34, K35, K36, K37, K38 and K39 are established.

Assessment of Conduct

1. It is a grave matter for a lawyer to practise without PII. The respondent was in this situation for the whole of the practice year 2011-2012. He did hold a practising certificate during that year, but it had no validity because of the absence of PII. Accordingly he practised for the whole of that year when not entitled to do so. The position was exacerbated in the first part of the 2012-2013 practice year. As at 1 July 2012 he had neither PII nor a practising certificate. He rectified the situation as it related to PII, as from 24 August 2012. He rectified the situation as it related to the practising certificate as from 16 October 2012. As previously noted, he has now ceased to practise, and did not renew his practising certificate after it expired on 30 June 2013.
2. Practice for an extended period without a valid certificate, and in circumstances where no reasonably tenable exception or excuse applies, clearly, in our view, amounts to professional misconduct. It places the community at risk in a very serious way, so far as the absence of cover is concerned. It places at risk public confidence in the standards of the legal profession, in that it undermines reliance on the assurances that people who hold themselves out as entitled to practise law have the qualifications and current certifications that allow them to do that. It treats with disrespect the confidence that courts and other participants in the justice system place in those who hold themselves out as lawyers entitled to practise before them.
3. In this case the respondent has not offered any real explanation for his omissions in this respect. The material we do have before us points to a practitioner who had by 2011 had a small, disorganised practice, with client contacts occurring in social venues such as clubs and hotels, and advance payments in cash being negotiated and left undocumented. There was, as we have noted, a medical report and a psychiatrist's report placed before the Tribunal at the directions stage, but it was not formally received into evidence at hearing, and is untested. Those reports pointed to underlying personal, family and health circumstances that may give some explanation for the conduct. As explained, we are satisfied that he knew he did not have a practising certificate in the period during July and August 2012, and continued to practise. Misconduct of this kind may give rise to a finding of professional misconduct and removal from the roll (see, for example, Prothonotary of the Supreme Court of NSW v McCaffery [2004] NSWCA 470).
4. The evidence clearly establishes critical failures to observe the rules relating to barristers. Barristers are strictly regulated in relation to the taking of direct access briefs. The respondent failed to observe the requirements relevant to the direct access clients the subject of these proceedings (Smeekens, Buck). Similarly, he failed to observe the requirements in relation to costs disclosure, and in relation to the receiving of payments for services, the trust money rules that apply, and the giving of receipts. Finally he has not refunded the payments to the clients, when obliged to do so. These are major breaches of the standards to be expected of a lawyer, and especially a barrister who must bring a special level of care to any direct access relationship, given that usually a barrister is not required to deal with some of these issues when a solicitor, as is usual, is interposed between the barrister and the lay client.
5. In at least two of the cases, there were grave failures to keep the client properly informed as to the progress of the matter. Ms Smeekens was particularly badly treated. She was led to believe she could make a common law civil claim for damages in respect of the assault, and had a realistic chance of success. The opposite was the case. Any cause of action was problematic, and there was no realistic likelihood of success, a position exacerbated by the lack of precision of the pleadings drawn by the respondent. She was not told that the proceedings had been commenced, and not told that they had been summarily dismissed, with an order for costs made against her. She only found out these things out after receiving a notice of demand for filing fees from the Court some months later, and after making her own inquires. She was left with a substantial debt. In the case of Buckley and Buck, they made payments on account of fees which have not been refunded. Buckley had two proceedings, and was subject to considerable delay, inconvenience and costs because of the respondent's conduct.
6. The respondent's lack of candour in his communications with the applicant may have some explanation in his medical condition and personal circumstances. But we have, for the reasons explained, no reliable evidence in that regard. Clearly, in combination, the failures to which the Grounds at Part K of the application refer, justify a finding of professional misconduct, as do the repeated failures to respond to notices and other reminders the subject of the findings at Part J of the application.

Disciplinary Orders

1. There is a previous instance of the respondent practising without a certificate. In July 2007 he had practised without renewing the certificate. The applicant referred the matter to its professional conduct committee. After corresponding with the respondent about the matter, the committee recommended and the applicant accepted that no further action be taken, but that his conduct would be taken consideration in the event that he engaged in legal practice without certification in the future. We agree with the applicant's submission that this experience should have heightened the respondent's concern to ensure currency of his certificate and currency of related requirements such as the holding of PII.
2. Present fitness to practise is the ultimate issue in disciplinary proceedings where serious misconduct has been proven: A Solicitor v Council of the Law Society of NSW (2004) 216 CLR 253; [2004] HCA 1 at [21]: '(F)itness is to be decided at the time of the hearing'. An applicant may demonstrate that the practitioner had in the past engaged in conduct which supported the conclusion that the practitioner was unfit to practise at that time, but the practitioner may be able to show from his or her subsequent history of conduct that he or she is no longer unfit at the time the Tribunal comes to deal with their case. This is not a case of that kind.
3. We have made a finding of professional misconduct that traverses a number of grave breaches of professional standards. Those breaches are recent. They include findings that go the respondent's character and integrity. We refer, in particular, to our findings in relation to the making of false and misleading statements to the applicant, and his state of knowledge in the period 1 July 2012 to 17 August 2012 as to his lack of a practising certificate.
4. As Spigelman CJ observed in Cummins (cited above) at [19]-[20]: 19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. 20 There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
5. There is no material before us from the practitioner or others that might lead us to consider a conclusion other than that misconduct demonstrates that the practitioner is not presently fit to practise. He is not a fit and proper person to remain on the roll of practitioners.

Order 1. Under s 562 of the Legal Profession Act 2004, the Tribunal orders that the name of the respondent be removed from the local roll. 2. The Tribunal orders the respondent to pay the applicant's costs. 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: 13 October 2015