Paras v Legal Services Commissioner [2004] WASC 94 | Case summary

REASONS FOR DECISION The nature of this appeal and our decision in relation to it 1 This decision deals with an appeal instituted by a solicitor against a decision made by the Respondent, who is the Legal Services Commissioner. 2 By a letter dated 6 May 2005, the Respondent issued to the Appellant a private reprimand, purportedly under s. 155(3)(a) of the now-repealed Legal Profession Act 1987 ('the LP Act'), in respect of conduct about which a complaint had previously been made against her under Part 10 of that Act. His decision to issue this reprimand is the subject of this appeal. It was based on a finding that, for reasons set out in the letter, the conduct in question would result in a finding of unsatisfactory professional conduct if the matter were to be brought before the Legal Services Division of this Tribunal. 3 The appeal was instituted on 7 June 2005, pursuant to s. 155(6) of the LP Act. Because this preceded the commencement of the Legal Profession Act 2004, the matter fell to be determined wholly under the LP Act: see Legal Profession Act 2004, Schedule 9, clause 15. The Appellant is a legal practitioner within the definition in s. 3 of the LP Act. 4 For the reasons set out below, we have concluded that the appeal must be dismissed. Introductory matters 5 Throughout the appeal proceedings, the Appellant maintained the pseudonym 'QT'. This was by virtue of the provision in s. 170(1) of the LP Act that, subject to specified exceptions, the Tribunal should direct that a hearing relating only to a question of unsatisfactory professional conduct should be held in the absence of the public. 6 A mandatory consequence of our decision to dismiss the appeal against the Respondent's decision to issue a private reprimand is however that the Tribunal must 'forthwith' make an order reprimanding the Appellant publicly. This follows from s. 171N(5) of the LP Act, the full text of which appears below. Taking account of s. 171C(3), which is also reproduced below, we consider that it is no longer appropriate to continue with measures preserving the Appellant's anonymity. 7 It is appropriate to mention here that both before the notice of appeal was filed and during the appeal proceedings the terms of ss. 171C and 171N(5) were drawn to the Appellant's attention. 8 The Appellant filed a Further Amended Notice of Appeal on 21 April 2006. An Amended Notice of Reply to Appeal, filed on 15 August 2006, set out the grounds on which the Respondent maintained that the appeal should be dismissed. 9 There has been a significant delay in the determination of this appeal. The causes for the delay include the filing by the Appellant of several interlocutory applications. The Tribunal's decisions on the more significant of these applications are set out in QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13 and QT v Legal Services Commissioner (No 2) (LSD) [2006] NSWADTAP 27. It will be necessary to refer later in this judgment to these two decisions. The matters on which the Respondent based his decision 10 As required by clause 1.2(b) and (c) of the Tribunal's Practice Note No 11 relating to external appeals, the Respondent filed copies of a number of documents under the heading 'Decision-maker's list of documents'. He prefaced the list with a statement that 'the following documents were taken into account in making the decision the subject of this appeal'. 11 The following summary of the factual matters on which the Respondent relied is derived from this material. 12 On 23 April 2003, a company called Expeditors International Pty Ltd ('Expeditors') filed in the Local Court a statement of liquidated claim in which two defendants were named. They were described as 'Anastasia Ualesi, trading as Australian Empire Imports' and 'Peti Junior Ualesi, trading as Australian Empire Imports'. Ms Anastasia Ualesi is a sister of the Appellant. 13 The statement of claim by Expeditors, who were freight forwarders, alleged that the two defendants were 'natural persons trading under the business name of Australian Empire Imports' (hereafter 'AEI'). AEI carried on business as importers. The particulars included allegations that AEI had made an 'Application for Credit Account' ('the Credit Application') to Expeditors and that this application had been executed on 19 November 2001 by the Appellant as 'managing partner of AEI'. 14 On 7 August 2003, the Appellant, describing herself as 'S Paras, Solicitor, AEI Legal' filed a notice of grounds of defence in the Local Court proceedings. It described the two defendants in the same terms as had appeared in the statement of claim. 15 On 27 February 2004, an affidavit by Mr J C Carcaillet ('the Carcaillet affidavit') was filed in the Local Court on 27 February 2004. Mr Carcaillet was a director of Expeditors. Exhibited to this affidavit was a copy of the Credit Application, showing the Appellant's signature on AEI's behalf. 16 On 22 March 2004, the Appellant swore an affidavit, which was subsequently filed in the Local Court proceedings. In paragraph 1, she described herself as the solicitor for the defendants and as having 'day to day conduct of this matter'. In the ensuing paragraphs, she made a number of statements responding to portions of the Carcaillet affidavit. Her statements included an acknowledgment of having signed the Credit Application on behalf of AEI. 17 On 5 April 2004, Mr Brennan Coleman, of Conway Leather Shaw, wrote to the Appellant, indicating that Conway Leather Shaw acted as solicitors for Expeditors in the Local Court proceedings. The letter also claimed that the contents of the Appellant's affidavit showed that in these proceedings the Appellant would be required to give evidence material to the determination of contested issues. It identified some of these issues. 18 This letter went on to draw the Appellant's attention to Rule 19 of the Solicitors Revised Professional Conduct & Practice Rules 1995 ('the Solicitors Rules'). This Rule (hereafter 'Rule 19') is headed 'Practitioner a material witness in client's case'. It states as follows:- A practitioner must not appear as an advocate and, unless there exceptional circumstances justifying the practitioner's continuing retainer by the practitioner's client, the practitioner must not act, or continue to act, in a case in which it is known, or becomes apparent, that the practitioner will be required to give evidence material to the determination of contested issues before the court. 19 The letter from Conway Leather Shaw concluded with an 'invitation' to the Appellant to file a notice of ceasing to act immediately and an indication that, if she did not do so, they had been instructed to file a notice of motion seeking orders to this effect. 20 In a letter dated 13 April 2004, sent by post and fax to Conway Leather Shaw, the Appellant set out various reasons why, in her view, she was not required to cease to act for AEI. She added that if they disagreed, she would refer the matter to the Law Society of New South Wales for guidance. 21 In a reply of the same date, sent by fax, Conway Leather Shaw indicated that they did in fact disagree with the Appellant on this matter and endorsed her suggestion it should be referred to the Law Society. They asked to be 'copied into' any correspondence between her and the Society. 22 On 15 April 2004, the Appellant wrote to Ms Virginia Shirvington, a Senior Ethics Solicitor employed by the Law Society. She sent a copy of the letter to Conway Leather Shaw. She quoted the reference to herself in the statement of claim filed by Expeditors, indicated that she had always been the solicitor on the record for AEI in the proceedings commenced by Expeditors and outlined various aspects of the Carcaillet affidavit and her own affidavit. She advised that Conway Leather Shaw, after receiving her affidavit, had requested her withdrawal from the case, citing Rule 19. She then asked for the Law Society's advice on three matters, of which two should be noted. These were (a) whether there was 'any basis' for her to withdraw from the case 'especially since the defendants will be represented at the hearing by counsel' and (b) whether Expeditors were precluded from objecting to her involvement by the fact that they sought this involvement and acquiesced in it 'until recently'. 23 On 21 April 2004, Ms Shirvington sent to the Appellant a one-page reply, headed 'Ethical Advice re Local Court proceedings Expeditors International v Australian Empire Imports'. She stated that the matter would be handled by Ms Maryanne Cousins, Ethics Solicitor, and added: This is a slightly different Rule 19 issue given your role as Managing Partner of your client and that were you to cease acting as a solicitor you would still have an involvement in the matter. It would be relevant for us to know of the precise nature of your involvement in the client's business and that of other persons. 24 In a brief letter dated 27 April 2004 to Conway Leather Shaw, the Appellant advised them that Ms Cousins would be handling the matter within the Law Society and asked them to indicate both to Ms Cousins and to herself what 'exactly' were the issues that they wished to raise in relation to Rule 19. 25 In a letter dated 10 May 2004 to the Appellant, Ms Cousins noted that the Law Society was still awaiting advice as to 'the precise nature of your involvement in the client's business and that of other persons' and said that this information 'has a bearing on whether or not you face a problem in this matter'. The letter enclosed a copy of some 'materials on' Rule 19 and added some observations on the Rule. These included statements that the operation of the Rule was 'not overcome by' either (a) 'the engagement of counsel, as the Rule states that the solicitor should neither act nor appear'; or (b) the fact that Expeditors sought the Appellant's involvement in the proceedings and acquiesced in it to date, except in the seemingly unlikely event that these factors were considered to be 'exceptional circumstances'. 26 On 4 June 2004, during a telephone call, the Appellant advised Ms Cousins that a directions hearing was to take place in the Local Court proceedings on 7 June 2004. As stated subsequently in a letter (dated 17 June 2004) from the Law Society to the Appellant, Ms Cousins 'confirmed' for her that it was 'appropriate' for her to continue to act for AEI in the proceedings, 'pending the issue of the Ethics Section's advice'. It became apparent in later correspondence that the 'Ethics Section' formed part of the Law Society's Professional Standards Department, in which Ms Cousins was located. 27 In further correspondence between 20 May and 17 June 2004, both Conway Leather Shaw and the Appellant separately sent further material relating to the Local Court proceedings to the Law Society. They also agreed that preparation for the hearing in the Local Court should await the Law Society's ruling, and with the Appellant's consent Conway Leather Shaw obtained an order from the Court standing the case over until 20 June 2004. 28 The material sent by the Appellant to the Law Society included a fax dated 17 June 2004, in which after referring to a prior telephone conversation with Ms Cousins she quoted various passages from the Carcaillet affidavit, her own affidavit and the Application for Credit Account that she had signed on behalf of AEI. The fax then said:- Therefore the evidence provided in my affidavit only confirms the allegations of the plaintiff and the details appearing above my signature in the credit application document which the plaintiff has pleaded in its statement of claim. 29 On 17 June 2004, Ms Cousins wrote a four-page letter to the Appellant (copied to Conway Leather Shaw) on the letterhead of the Professional Standards Department of the Law Society. It was headed 'Private and Confidential'. 30 In the opening paragraph, she referred to the telephone conversation with the Appellant on 4 June. The letter then stated that the 'advice' of the Ethics Section 'now follows'. It added that if the Appellant so wished and time permitted, the matter could be considered by the Ethics Committee (whose next meeting would be on 24 June) and/or could be submitted to the President for a Ruling. 31 The letter then outlined the issue on which the Appellant had sought advice and summarised the relevant facts so far as they had been disclosed in the material sent to the Law Society. In this connection, it noted that the 'full version' of the Appellant's affidavit dated 22 March 2004 was 'still awaited'. 32 After quoting from Rule 19 and referring to common law authority on the issue with which it deals, the letter expressed the opinion that the Rule's application in this case depended on two questions. These were (a) whether the Appellant would be required to give evidence that was 'material' to the determination of contested issues before the Court and (b) if yes, whether there were 'exceptional circumstances' that would permit the Appellant to continue to act. 33 On the first of these questions, the view taken in the letter from Ms Cousins was that the Appellant was giving evidence on the 'material' issue of whether the agreement between Expeditors and AEI was entered into on the terms and conditions alleged by Expeditors. In response to a submission, put by the Appellant in correspondence with the Law Society, that her evidence was 'merely corroborative' and could more properly be adduced from other sources, the letter stated:- Your submission raises a question of law which the Ethics Section is really unable to determine and which remains a matter for your assessment. If your assessment is that your evidence is not required in the proceedings, you may withdraw your affidavit with AEI's instructions and informed consent as to the implications of doing so. You would probably also need to reach agreement with the plaintiff that it will not press your affidavit nor subpoena you to give evidence (although you might still argue in those circumstances that your evidence is superfluous and hence cannot be material). While your affidavit stands, however, it is our view that, prima facie, it goes to material issues in the proceedings. 34 On the second question, the letter from Ms Cousins reiterated her previous opinion that 'exceptional circumstances' would not arise solely from the fact that Expeditors had sought the Appellant's involvement in the proceedings and acquiesced in it to date. It went on to say that while 'exceptional circumstances' had been held to arise when a case was complex and the solicitor was asked to withdraw shortly before or during a hearing, it was not enough that the engagement of another solicitor would cause inconvenience and expense, so long as there was sufficient time for this to occur. 35 The letter then referred to the possibility of disciplinary action 'under Rule 19 and by the Court' when 'in the absence of exceptional circumstances a solicitor witness continues to act and is later called for cross examination on material issues, where this was foreseeable'. It continued as follows:- We suggest therefore that if your affidavit stands it would seem prudent for you to cease acting for AEI unless, given the imminent hearing date, it [is] impossible to retain another solicitor to act, and AEI's defence is prejudiced. 36 It then pointed out that if the Appellant had fully briefed counsel so that her only involvement at the hearing would be 'to instruct', and accordingly all that would be needed would be to engage another solicitor to 'read the file, take instructions from the client and instruct at the hearing', a court might not regard those circumstances as 'exceptional'. 37 The letter also reiterated previous advice that Rule 19 prohibited 'acting' as well as 'appearing' and was operative irrespective of how, or by whom, the matter was first raised. It concluded with an invitation to the Appellant to let the Law Society know if she wanted the matter to be further considered by the Ethics Committee of the Law Society and/or by way of a President's Ruling. 38 On 18 June 2004 the Appellant sent a fax to the Law Society requesting consideration of her position under Rule 19 by the Ethics Committee. 39 In a letter dated 21 June 2004 sent by fax to the Appellant, Conway Leather Shaw referred to faxes dated 18 and 21 July 2004 (sic) that the Appellant had sent to them and to the Appellant's fax 'of even date', and made various assertions regarding the litigation. Since, as mentioned below, Conway Leather Shaw ceased to act for Expeditors on 30 June 2004, it may be inferred that this letter was in fact sent on 21 June and that the reference to faxes being sent by the Appellant during July was erroneous. 40 In a fax dated 23 June 2004 to Conway Leather Shaw, Ms Cousins enclosed copies of her letter to the Appellant dated 17 June and the Appellant's earlier letter to her of the same date and indicated that she was putting all the correspondence before the Ethics Committee of the Law Society at its meeting on the next day. 41 In a brief letter to the Appellant dated 30 June 2004, Ms Cousins referred to the Appellant's faxes (sic) of 18 June, stated that at a meeting on 24 June the Ethics Committee had referred the matter to a Sub Committee and set out in the following terms what then occurred:- The Sub Committee has now reported and is of the view that you are a material witness in this matter and hence should cease acting. The Sub Committee also tended to the view that your withdrawing the affidavit at this stage would not alter the position, as you may still be required to give evidence. 42 This letter was headed 'Private and Confidential'. It was sent by fax to the Appellant at 10.25 a.m. on 30 June 2004. 43 On 30 June 2004, according to an account of these matters later furnished by the Appellant to the Respondent, the Appellant 'resumed her partnership' in AEI's business. 44 The Respondent's file of documents includes a copy of a two-page 'without prejudice' letter on the letterhead of AEI, which is signed by the Appellant as a solicitor, dated 30 June 2004 and addressed to Conway Leather Shaw. Near the top of the letter are the words 'By Facsimile', followed by the fax number of Conway Leather Shaw. The letter put forward various factual and legal arguments relating to the proceedings brought by Expeditors against AEI, including that the Credit Application 'did not refer to' a document entitled Terms and Conditions for Distribution Services (hereafter 'the Distribution Agreement'), 'as pleaded by the Plaintiff'. It asserted that the proceedings were an abuse of process and set out the terms of an offer of settlement. 45 Also in the file is a copy of an electronic fax transmission note. It records the transmission of a two-page letter to the fax number of Conway Leather Shaw at 10.48 a.m. on 1 July 2004. 46 On 5 July 2004, Expeditors filed in the Local Court a notice of change of solicitor, indicating that it now employed Mr Gregory Leather of Barringer Leather Lawyers ('Barringer Leather') as its solicitors 47 In a letter dated 8 July 2004 to the Appellant, signed by Mr Coleman, Barringer Leather advised her of the contents of this notice. The letter also confirmed receipt of the determination by the Sub Committee of the Law Society, stated that Barringer Leather now awaited 'receipt of your notice of ceasing to act' and asked who was now acting for AEI. In addition, it indicated that Mr Carcaillet would be filing a further affidavit addressing an 'oversight' in the Carcaillet affidavit, enclosed a copy of an amended statement of claim and rejected the offer of settlement. 48 On 7 or 8 July 2004, the amended statement of claim was filed in the Local Court. Amongst other things, the amendments deleted an earlier allegation that before the Appellant signed the Credit Agreement, Expeditors had sent the Distribution Agreement to AEI. 49 In a letter on the letterhead of AEI dated 9 July 2004, Ms Anastasia Ualesi advised Barringer Leather that the Appellant was on leave and 'would attend to the Law Society determination on her return'. The letter went on to argue that the Sub Committee's deliberations 'have been rendered obsolete by virtue of your client's desire to file an Amended Statement of Claim and Mr Carcaillet's intention to change his evidence'. It asserted that 'the catalyst for these amendments was the letter of Ms Paras dated 30 June 2004, by which your office was informed of the hopelessness of the Plaintiff's claim'. 50 On 26 August 2004, on account of Expeditors' having filed an amended statement of claim, AEI obtained leave to file further evidence in the proceedings. 51 On 17 September 2004, Ms Ualesi swore an affidavit, which was subsequently filed on AEI's behalf in the Local Court proceedings. In terms similar in many respects to those of the Appellant's affidavit of 22 March 2004, she responded to portions of the Carcaillet affidavit. In so doing, she said that the Appellant had completed the Credit Application in the capacity of an 'in-house legal adviser' and done so under her (Ms Ualesi's) instructions on behalf of AEI. 52 On 17 September 2004, according to an account of these matters later furnished by the Appellant to the Respondent, AEI 'replaced' the Appellant's affidavit of 22 March 2004 with this affidavit by Ms Ualesi. 53 A letter to the Respondent dated 21 September 2004, written on the letterhead of Barringer Leather and signed by Mr Gregory Leather, is the document that the Respondent has treated as the complaint in this matter. The letter expressed concern that the Appellant was acting in contravention of Rule 19 with respect to proceedings in the Local Court. It enclosed copies of the letters dated 17 and 30 June 2004 from the Law Society to the Appellant and expressed strong agreement with the Society's determination. It stated that the Appellant nonetheless continued to act in the proceedings and requested the Respondent's 'assistance in resolving this matter'. 54 In a letter dated 27 September 2004 to the Appellant, Barringer Leather noted that the Local Court proceedings were set down for review on the next day, that they had been instructed to seek a hearing date and that the Appellant had applied to the Federal Court for an order transferring the proceedings to that Court. The letter argued that there was no need for such an order. It concluded by contending that in continuing to act she was contravening Rule 19 and that this was bound to come to the court's attention whether or not the issue was raised by Barringer Leather. 55 A letter dated 6 October 2004 and signed by Mr Simon Arcus, a legal and policy officer employed by the Respondent, notified the Appellant that the Respondent had received a complaint regarding her conduct in continuing to act for AEI in the Local Court proceedings. The letter, which was headed 'Complaint by Mr Gregory Leather', indicated that the Respondent had not yet formed a view on the merits of the complaint. It reproduced the text of Rule 19, pointed out that where a solicitor continued to act in contravention of a Rule such conduct was capable of constituting professional misconduct or unsatisfactory professional conduct and requested her comments on the complaint, together with any supporting documentation that might assist his investigation of it. 56 In a letter dated 11 October 2004 to the Respondent, the Appellant referred to a conversation with Mr Arcus, requested a copy of the complaint and noted that 'there had been a number of supervening matters in the interim period, including a change of ownership at Australian Empire Imports and amendments to the plaintiff's claim, which may have a bearing on the Commissioner's decision'. It also pointed out that it had been the Appellant and AEI who sought the Law Society's advice after Expeditor's lawyers had initially raised the issue. 57 In a letter dated 12 October 2004 to the Respondent, the Appellant acknowledged receipt of a copy of the complaint, which had been faxed to her. She noted that it was dated 21 September 2004 and went on to state that, as foreshadowed in Barringer Leather's letter to her of 27 September 2004, they had applied for a hearing date in the Local Court. Since in that letter they had not mentioned or hinted that they had complained to the Respondent, she had agreed to a hearing on 20 and 21 January 2005. Had she known about the complaint, she would have told the court about it and 'opposed the proceedings being set down for hearing'. Since then, she had 'taken active steps to prepare the matter for hearing' and had 'made contact with a number of witnesses for the purposes of extracting statements from them'. 58 In a reply dated 14 October 2004, the Respondent advised the Appellant that the question whether she should continue to act in the proceedings should be resolved by the Court, not by the Respondent. The letter requested her further response to the complaint as soon as possible. 59 The Appellant then prepared and submitted a response. It took the form of a formal document addressed to the Respondent, which was dated 25 October 2004 and comprised 28 numbered paragraphs. In it, the Appellant outlined the nature and progress of the Local Court proceedings and the course of her correspondence with the Law Society and with the solicitors for Expeditors. She annexed copies of relevant documents. 60 The passage of principal significance (paragraph 25) in the Appellant's response was as follows:- Therefore to summarize the events in this matter: i. The plaintiff amended its statement of claim and removed all references to the Distribution Agreement which was the main evidence given by the writer and objected to by the plaintiff. ii. The writer resumed her partnership in the defendants' business on 1 July 2004. iii. The writers' previous affidavit has been replaced by the Affidavit of Anastasia Ualesi who was the partner in charge of the operations of the defendants' business at the relevant time. 61 In a letter to the Appellant dated 17 November 2004 over the signature of Mr Arcus, the Respondent expressed the provisional opinion that the Appellant had acted in contravention of Rule 19. The reasons advanced for this opinion are similar in many respects to those set out in his letter of 6 May 2005, in which he issued the private reprimand to the Appellant. The letter sought the Appellant's response, and also reproduced the terms of Rule 19 and of parts of ss. 127 and 155 of the LP Act (relevant segments of these sections are set out below). 62 Between 17 November 2004 and 6 May 2005, there was further correspondence regarding the complaint between the Appellant and the Respondent. It is sufficient here to note five aspects of this correspondence. 63 First, in a letter dated 29 November 2004 to the Respondent, the Appellant submitted that 'given the complexity of' the Local Court proceedings and of 'freight forwarding cases in general', it was 'difficult to find any legal practitioner versed in this type of law (as Assistant Commissioner Muston would confirm having run a number of Admiralty matters for Mr Leather's firm whilst she was at the Bar)'. The Appellant further submitted that she 'was advised that this constituted an exceptional circumstance under Rule 19'. 64 Secondly, in a letter dated 6 December 2004 to the Respondent, the Appellant submitted that Rule 19 could not apply to her because she was 'the partner of the business dealing with the legal issues' and she did not have 'any involvement in the day to day running of the business (such as deliveries, invoicing, ordering etc)' except to the extent that they involved legal issues and were referred to her for action or advice. 65 Thirdly, in the same letter the Appellant argued, citing authority in the case law, that in defending any claim of improper conduct on her part, the advice given by the Law Society was of benefit to her since she was 'not advised to withdraw from the matter pending the investigation but contra'. 66 Fourthly, in submissions to the Respondent in a letter dated 4 February 2005, the Appellant requested, on the basis of various identified aspects of the case, that the Commissioner dismiss the complaint, either under s. 155 (4) of the LP Act or in the exercise of his discretion under s. 155(3)(b). 67 Fifth and finally, in a letter dated 27 April 2005 to the Respondent, the Appellant stated that she had been a partner in AEI since 1999, though between 1 July 2003 and 30 June 2004 she was 'a non-participating member of the partnership'. It appears that a reason for her return to 'active' partnership on 1 July 2004 was that Ms Ualesi, her sister and fellow-partner, was ill. The Respondent's decision 68 As previously indicated, the Respondent's decision that the Appellant should be privately reprimanded on the ground that she had been guilty of unsatisfactory professional conduct was set out in a letter from him to the Appellant dated 6 May 2005. 69 From now on, we will refer to this letter as the Respondent's 'determination'. Omitting formal parts and adding paragraph numbers in order to facilitate references to the text, it was in the following terms:- Complaint by Mr Gregory Leather. 1) I refer to the above complaint and to your correspondence with my office in this matter. 2) I have reviewed the evidence on file and have considered your submissions, and supporting material. 3) In my view you had a professional obligation to be cognisant of Rule 19 of the Solicitors' Rules at the time you became aware that Expeditors International Pty Ltd initiated proceedings. At all times you were a partner in the business conducted by the defendants and from the time you lodged your affidavit of 22 March 2004 it was abundantly clear that you were a material witness in the dispute. 4) Even if you were not cognisant of Rule 19, it was drawn to your attention by Mr Coleman of Conway Leather Shaw on 5 April 2004. 5) Further, you sought and obtained formal advice from the Ethics Section of the Law Society which advised, in its letter of 17 June 2004, that you should withdraw your affidavit if you were to continue to act in the matter. 6) You then asked for the matter to be referred to the Ethics Committee of the Law Society. That Committee's unequivocal ruling that you were a material witness and should cease acting was communicated to you by facsimile on 30 June 2004, together with the Committee's view you should cease to act even if your affidavit were withdrawn. 7) Nevertheless, you did not withdraw the affidavit until 17 September 2004 and you continued to act as solicitor for the defendants, notwithstanding the advice of the Ethics Committee of the Law Society. 8) You have advanced an argument that you cannot have breached Rule 19 because "the threshold requirement of client has not been satisfied." From your letter to this office of 4 February 2005 it appears that this submission is based on the fact that you are a partner, with Mr and Ms Ualesi, in the business known as "Australian Empire Imports". You appear to be asserting that you should be identified as one and same as the defendants, and thereby be regarded as being in a position similar to that of a self represented litigant or a company appearing by its officer. 9) Australian Empire Imports is a business name (which I note has been removed from the NSW Register of Business Names). It is not, and has never been, the defendant in these proceedings. The defendants are natural persons, Mr and Ms Ualesi, and you were the solicitor on the record for those defendants. The existence of a business relationship between the three of you in addition to the relationship of solicitor and client is not of itself sufficient to oust the operation of Rule 19. 10) In my view you have not had proper cognisance of Rule 19, and you have not had proper cognisance of the guidance provided to you by both the Ethics Section of the Law Society and its Ethics Sub-Committee. 11) I am satisfied that your failure to withdraw your affidavit and your failure to cease to act for the defendants after filing your affidavit in these circumstances would result in a finding of unsatisfactory professional conduct if the matter were to be brought before the Legal Services Division of the Administrative Decisions Tribunal. 12) In such circumstances, s. 155(3)(a) of the Legal Profession Act 1987 provides that I may reprimand a practitioner. Consent of the practitioner to the reprimand is no longer required pursuant to amendments to the Act which became operative on 15 August 2004. 13) I have determined to issue to you a reprimand in relation to the conduct outlined above. As you are aware, the reprimand is private and publication of this fact is made only to the complainant and the Law Society. It remains permanently on your record. 14) You may appeal to the Tribunal against my decision pursuant to section 155(6) of the Act. Relevant legislation 70 The relevant provisions of s. 155 of the LP Act, in the form that it took on 6 May 2005, were as follows:- 155 Decision after investigation of complaint (1) After a Council or the Commissioner has completed an investigation into a complaint against a legal practitioner, the complaint is to be dealt with in accordance with this section. (2) The Council or the Commissioner must institute proceedings in the Tribunal with respect to the complaint against the legal practitioner if satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct or professional misconduct. (3) However, if the Council or the Commissioner is satisfied that there is a reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of unsatisfactory professional conduct (but not professional misconduct), the Council or the Commissioner may instead: (a) reprimand the legal practitioner, or (b) dismiss the complaint if satisfied that the legal practitioner is generally competent and diligent and that no other material complaints have been made against the legal practitioner. (4) The Council or the Commissioner is to dismiss the complaint against the legal practitioner if satisfied that there is no reasonable likelihood that the legal practitioner will be found guilty by the Tribunal of either unsatisfactory professional conduct or professional misconduct. (6) If a Council or the Commissioner decides to reprimand a legal practitioner under this section and the practitioner does not consent to the reprimand, the practitioner may appeal to the Tribunal against the decision. Section 171N applies to an appeal under this section. 71 Until the commencement, on 15 August 2004, of the Legal Profession Amendment Act 2004 ('the amending Act'), the Commissioner's power to issue a reprimand under s. 155(3) of the LP Act could not be exercised without the consent of the legal practitioner concerned. Clause 6 of Schedule 1 of the amending Act removed this restriction. Clause 102 of Schedule 8 of the LP Act, which was inserted by the amending Act, provided that s 155, as so amended, extended to conduct occurring before the commencement of the amending Act - that is, to conduct occurring before 15 August 2004. 72 Three provisions of the LP Act regarding complaints should be noted. Section 135(1) stated that a complaint was to be made to the Legal Services Commissioner, unless it was made by the Commissioner or the Council of the Bar Association or the Law Society. Section 136(1) required a complaint to be in writing. Section 136(2) required that a complaint should identify the complainant and the relevant legal practitioner and should 'describe the alleged conduct of the legal practitioner the subject of the complaint'. 73 In s. 127(2) of the LP Act, unsatisfactory professional conduct was defined in the following terms: - (2) For the purposes of this Part: unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) 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 legal practitioner. 74 Subsections (1) and (4) of s. 57D stated: - (1) Barristers rules are binding on barristers, solicitors rules are binding on solicitors and joint rules are binding on both barristers and solicitors. (4) Failure to comply with any such rules does not of itself amount to a breach of this Act. However, failure to comply is capable of being professional misconduct or unsatisfactory professional conduct. 75 Section 171J(1) of the LP Act required the Legal Services Commissioner to 'cause the decision with respect to a complaint, together with the reasons for the decision, to be notified in writing to the complainant and to the legal practitioner against whom the complaint was made'. 76 Section 171N(2) provided that an appeal under s. 155(6) was an external appeal within the meaning of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). Section 171N(4) stated that the Tribunal, in determining the appeal, could affirm or quash the decision to reprimand. In the latter event, it could either remit the matter back to the relevant Council or the Commissioner, or could dismiss the complaint concerned. In subsection (5), s. 171N further provided as follows: - (5) If the Tribunal affirms the decision to reprimand the legal practitioner, the Tribunal must forthwith make an order publicly reprimanding the legal practitioner, whether or not the reprimand appealed against has already been administered. 77 Section 171C(3) stated: - (3) If the Tribunal makes an order publicly reprimanding a legal practitioner, the Tribunal is to publish the order and a statement of its reasons for making the order. 78 Within the ADT Act, the provision of relevance relating to external appeals is s 118B(1), which states: - (1) An external appeal may be made: (a) as of right, on any question of law, or (b) by leave of the Appeal Panel hearing the appeal, on any other grounds. The conduct of the appeal 79 The Further Amended Notice of Appeal set out thirteen grounds of appeal under the following ten headings: errors of law - jurisdictional error; failure to take into account relevant considerations; failure to exercise discretion; abuse of power; findings not open on the evidence; policy considerations; bias; conflict of interest; and 'private reprimand'. Under this last heading, the Appellant claimed that the Respondent had erred in fact and in law by issuing a reprimand to her that was 'private'. 80 At various stages before the appeal was heard, the Appellant, who appeared in person throughout, indicated that she wished to allege not only errors of law by the Respondent but also to seek leave from us, pursuant to s 118B(1)(b) of the ADT Act, to raise 'other grounds'. 81 On 17 August 2006, the first day of the hearing of the appeal, the Appellant completed her address to us on the errors of law that she claimed to have been made by the Respondent. These had been outlined in her Further Amended Notice of Appeal and in accompanying written submissions. To a limited extent, she relied on some evidentiary material annexed to a statement that she had filed before the hearing. It comprised some correspondence between her and the Respondent following his determination of 6 May 2005. Although this statement was not formally admitted into evidence, the Respondent raised no objection to her reliance on this material. 82 The hearing was adjourned to 4 October 2006. On 25 September 2006, the Appellant was directed to file and serve by 29 September her submissions in support of her foreshadowed application for leave to appeal 'on other grounds'. By a letter dated 29 September to the Registry, however, she indicated that she wished to discontinue this application. 83 Her discontinuance of this application removed any need for intervention by the Attorney General to defend the appeal in lieu of the Respondent. The reasons why this possibility had arisen are set out in paragraphs [10] - [62] of the second of the two interlocutory decisions in these proceedings (QT v Legal Services Commissioner (No 2) (LSD) [2006] NSWADTAP 27). 84 At the adjourned hearing on 4 October 2006, the Appellant was unable to attend due to illness. We directed that the Respondent, who had already filed an outline of submissions, should file supplementary written submissions and that the Appellant should then have the opportunity to file written submissions in reply. 85 A transcript of the hearings on 17 August and 4 October 2006 was sent to the parties. On 1 November 2006, the Appellant requested, in a letter to the Registrar, that we should determine the issue raised in her final ground of appeal - namely, whether the Respondent had power under s. 155(3)(a) of the LP Act to issue a private reprimand to a legal practitioner - as a preliminary jurisdictional matter. She argued (a) that this approach would enable the parties to 'seek remedies from' our decision on this question, including filing an appeal with leave to the Court of Appeal and (b) if we did not adopt it we might 'disadvantage the parties in subsequent proceedings'. She referred to some recent authority relating to the interpretation of s. 155. She indicated in her letter that she was agreeable to us deciding this procedural question 'on the papers'. 86 In a letter dated 7 November 2006 to the Registrar, the Respondent stated that he opposed this course of action. He referred us to the Tribunal's decision in QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13. The Tribunal here rejected an application by the Appellant that this same question of law should be treated as a preliminary matter and referred to the Supreme Court for the Court's opinion, under s 118D of the ADT Act. It stated at [64] that the question could quite appropriately be argued and determined at the full hearing of the appeal. 87 We see no reason to depart from the approach suggested in the earlier decision. We are not prepared to take the course of action requested by the Appellant in her letter of 1 November 2006. 88 The Appellant raised no other objection to the directions given at the hearing of 4 October 2006. The final submissions in the case, which were the Appellant's submissions in reply, were filed and served on 13 December 2006. 89 We will now discuss the competing submissions regarding the thirteen errors of law alleged by the Appellant in her Further Amended Notice of Appeal. It is convenient to deal with them under the ten headings set out in the Notice, although we did not find the headings themselves to be particularly helpful. 90 We will deal with all these alleged errors of law even though (a) the Appellant's written and oral submissions did not address some of them and (b) it has been difficult for us at times, in preparing these reasons, to discern the relationship between them and the content of the submissions. 91 We will then consider a further ground of some significance, which the Appellant first raised in her initial submissions and developed further in her oral submissions and her submissions in reply. This was to the effect that Respondent's determination failed to furnish adequate reasons for his findings against her. Errors of law - jurisdictional error 92 Under this heading, the Appellant claimed that the Respondent had erred in law in five respects, as follows. 93 1. Treating the 'correspondence' from Mr Leather as a complaint. The Appellant claimed that the complaint by Mr Leather should have set out the factual allegations that he was making, together with sufficient particulars to enable her to understand the nature of the case being brought against her. She relied on the judgment of Hunt J in Etherton v Public Service Board [1983] 3 NSWLR 297, in which his Honour held that an officer charged under a provision in public service legislation referring to negligence, carelessness, inefficiency or incompetence is entitled to particulars of the specific acts or omissions being relied on to establish the charge. 94 We agree, however, with the response to this ground in the Amended Notice of Reply to Appeal. These were, in essence, that Mr Leather's letter dated 21 September 2004 to the Respondent, considered in conjunction with the annexed copies of the Law Society's letters of 17 and 30 June 2004 to the Appellant, had all the features that ss. 135 and 136 of the LP Act (see [72] above) stipulate for a complaint. The complaint was made to the Legal Services Commissioner, it was in writing, it identified the complainant and the legal practitioner concerned, and it sufficiently described the alleged conduct of the practitioner. The Etherton case dealt with an entirely different legislative provision and does not, in our opinion, bear upon the question of what constitutes a valid complaint under the LP Act. 95 For these reasons, we reject this first ground of the appeal. 96 2. Holding that the Appellant's position as a partner in AEI was insufficient to oust the operation of Rule 19. With regard to this ground, the principal matters of fact relied upon by the Appellant were these. First, in the statement of claim issued in the Local Court by Expeditors, the name of each of the two defendants (Anastasia Ualesi and Peti Junior Ualesi) was followed by the words 'trading as Australian Empire Imports'. Secondly, there was an allegation in the statement of claim that the defendants were 'natural persons trading under the business name of Australian Empire Imports'. Thirdly, the statement of claim also described the Appellant herself as a 'managing partner' of Australian Empire Imports. Fourthly, at all material times she and the two defendants comprised the partners in this firm, though as outlined above (see [67]) the nature and degree of her participation in the activities of the firm fluctuated. 97 The Appellant submitted that as a result of these aspects of the case the claim brought by Expeditors was, in essence, a claim against 'the partnership', of which she was a member, in respect of liabilities incurred by it in the course of its business activities. It followed that there was no retainer of her by the two defendants and that her relationship to them was not a practitioner-client relationship falling within the scope of Rule 19. Instead, to quote from her written submissions, she was 'for all intents and purposes …the client along with the other partners named in the proceedings'. 98 With reference to these submissions, the Appellant drew our attention to a number of American cases dealing with the jurisdiction of courts to restrain legal practitioners from acting in proceedings in situations akin to those covered by Rule 19. We indicated that, due in particular to well-recognised differences between litigation in the United States and in this country, we could not treat these authorities as any more than persuasive. 99 We derive some assistance, however, from a passage in the judgment of the Supreme Judicial Court of Massachusetts in Borman v Borman 393 NE 2d 847 (1979), as it usefully formulates the principle which the Appellant sought to invoke. With reference to an applicable disciplinary rule called DR 5-102, which is broadly comparable to Rule 19, the Court said this at 856:- To apply DR 5-102 when the testifying advocate is a litigant in the action miscomprehends the thrust of the rule. DR 5-102 regulates lawyers who would serve as counsel and witness for a party litigant. It does not address the situation in which the lawyer is the party litigant… As a party litigant, moreover, a lawyer could represent himself if he so chose… Implicit in the right of self-representation is the right of representation by retained counsel of one's choosing. A party litigant does not lose this right merely because he is a lawyer and therefore subject to DR 5-102. 100 Mr Beaumont, who appeared for the Respondent, sought to refute this argument by putting forward the following two propositions. First, a partnership is not a separate legal identity. This, it may be said, is an indisputable proposition of law. Secondly, even if the liability of partners for a debt is to be regarded as joint only, not joint and several, both common law principles (see eg Woodgate v Davis (2002) 55 NSWLR 222 at [12]) and statutory provisions regulating Local Court proceedings in 2004 (i.e., the Local Courts (Civil Claims) Act 1970 , s. 20 and the Local Courts (Civil Claims) Rules 1988 , Part 6, r. 5) made it clear that where two or more persons were subject to a joint liability, a plaintiff could sue and obtain judgment against some only of them. 101 It followed, Mr Beaumont said, that in her affidavit of 22 March 2004 (and indeed in other documents relating to the Local Court proceedings), the Appellant's description of herself as 'the solicitor for the Defendants' was entirely accurate. She could not properly claim that she was herself a defendant in the proceedings. The relationship between her and the two defendants was therefore a solicitor-client relationship falling within the scope of Rule 19. 102 In resolving this issue, we must undoubtedly take account of the fact that, to put it at its lowest, the Appellant had a direct and material interest in the outcome of the proceedings instituted by Expeditors against AEI. According to both the common law principles and the statutory provisions on which Mr Beaumont relied, a partner who has been sued successfully could recover contribution from his/her fellow-partners. Under the Local Court rule, a partner (assuming that his/her liability was joint only) could apply to have the proceedings stayed in order that the other partners could be joined as defendants. 103 The fact remains, however, that throughout the period when the Appellant remained on the record as the solicitor for the two defendants, they were her professional clients for the purposes of the proceedings and she was not (to use the terminology of Borman v Borman) a 'party litigant' alongside them. In our judgment, even though she was also their partner, these elements of the situation established her relationship to them as that of solicitor-client, within the scope of Rule 19. 104 We accordingly reject the second ground of appeal. 105 3. Holding that proceedings could have been commenced against the business name Australian Empire Imports in the Local Court. The Appellant did not elaborate on this ground, in either her written or her oral submissions. 106 In our judgment, it must be rejected. As was pointed out in the Amended Notice of Reply, the Respondent's determination (this is set out above at [69]) did not include any such holding. What he said on the topic (in para 9) was as follows: 'Australian Empire Imports is a business name… It is not, and has never been, the defendant in these proceedings. The defendants are natural persons, Mr and Ms Ualesi…' These observations do not include, either expressly or by implication, the proposition that the Appellant attributed to him. 107 4. Holding that the 'Private and Confidential Advice of the Law Society' dated 30 June 2004 constituted a 'professional ruling'. The Appellant did not elaborate on this ground, in either her written or her oral submissions. We assume that the significant element in this ground of appeal was a claim that the Respondent erred in law by according higher status or greater weight to the letter than was appropriate 108 As pointed out, however, in the Amended Notice of Reply and in Mr Beaumont's submissions, the Respondent's determination did not characterise the Law Society's letter of 30 June 2004 as a 'professional ruling'. Although it stated initially, in para 6, that the letter contained an 'unequivocal ruling' by the Society's Ethics Committee, it described the letter as an 'advice' (in para 7) and its function as that of providing 'guidance' to the Appellant (see para 10). The Respondent's determination showed in para 10 that in reaching his conclusions he took account of the Appellant's failure to take 'proper cognisance' of not only this 'guidance' from the Law Society but also, as a separate matter, of her obligation to comply with Rule 19. 109 For these reasons, this ground of appeal must be rejected. 110 5. Failing to hold that the Law Society's 'Private and Confidential Advice' that the Appellant 'could continue to act pending an investigation by the Law Society' constituted 'a complete defence to any disciplinary proceedings' against her. During the hearing, the Appellant referred in this connection to her telephone conversation with Ms Cousins on 4 June 2004 (see [26] above), in which Ms Cousins 'confirmed' that it was 'appropriate' for her to continue to act for AEI in the Local Court proceedings, 'pending the issue of the Ethics Section's advice'. The Appellant submitted further that Ms Cousins' letter of 17 June (see [29 - 37] above) also gave her permission to continue to act, which lasted until she received the Society's letter of 30 June, notifying her of the ruling by the Ethics Sub Committee (see [41] above]). 111 The Appellant argued that when these matters were taken into consideration, it became apparent that the Respondent, in his determination, had failed to take account of both instances of permission to act being communicated to her by the Law Society. He accordingly erred in concluding that the Appellant acted improperly during the period from 22 March 2004 (the date when she swore her affidavit) to 17 September 2004 (the date when she withdrew the affidavit). According to her argument (with which Mr Beaumont expressed his agreement), the fact that he had treated her breach of Rule 19 as continuing unbroken throughout this period was apparent from para 11 of his determination. In this paragraph, he expressly based his finding of unsatisfactory professional conduct on 'your failure to withdraw your affidavit and your failure to cease to act for the defendants after filing your affidavit in these circumstances'. 112 In support of this submission, the Appellant cited a passage in the judgment of Hutley JA in Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 757. She pointed out that in her letter of 6 December 2004 to the Respondent she had drawn his attention to this passage. In it, his Honour observed as follows:- The true significance of the rulings of the Law Society in relation to professional misconduct was pointed out by Lord Reid in Brown v Inland Revenue Commissioners [1965] AC 244 at p 258, where the solicitor had acted in conformity with the ruling of the council of the Law Society of Scotland, a ruling which the House of Lords considered was inconsistent with the law. His Lordship said: "This opinion… negatives any possible suggestion of professional malpractice by the appellant or any other solicitor who has acted in accordance with it." In other words, a positive, but erroneous, advice from the Law Society may constitute a defence to a charge of malpractice. 113 Our first observation regarding this line of argument by the Appellant is that, even if the telephone conversation of 4 June 2004 between the Appellant and Ms Cousins and/or the Law Society's letter of 17 June 2004 provided some sort of defence for the Appellant in disciplinary proceedings, it could not have been a 'complete' defence. At most, these two communications from the Law Society provided only temporary authorisation for her to continue to act for AEI. Any such authorisation was withdrawn by the Law Society's letter of 30 June 2004, if not earlier. 114 At first sight, the relevant statement by Ms Cousins on 4 June 2004 would appear to have given grounds for the Appellant to invoke the principle stated in Law Society of New South Wales v Moulton. But Mr Beaumont argued that Ms Cousins made this statement in reliance on misleading information contained in the Appellant's letter of 15 April 2004 to the Law Society (as to which, see [22] above) and that for this reason the Appellant could not invoke it at all in her defence. 115 In the letter of 15 April, the Appellant described herself as 'the solicitor on the record for Australian Empire Imports which is a Defendant and Cross-Claimant in the matter of Expeditors International v Australian Empire Imports'. Mr Beaumont submitted that this description of the parties to the proceedings was incorrect because (a) the defendants were in fact Mr and Ms Ualesi and (b) it implied that AEI was or at least might be a company, not a business name. Furthermore, although the letter mentioned the Appellant's earlier role as 'managing partner' of AEI, it did not indicate that at the time of writing she was one of the partners in this firm. 116 Mr Beaumont submitted further that a passage in the Law Society's letter of 17 June 2004, which was signed by Ms Cousins, showed that Ms Cousins had in fact been misled by the Appellant in material respects. This passage appeared at the beginning of a summary of the relevant facts:- You are employed by AEI as in house legal counsel. You have advised that you presently have no other role in the running of the company. (Any such other role might have a bearing on the application of Rule 19 to your situation). 117 Although in the Appellant's letter of 15 April 2004 reference was in fact made to the status of Ms Ualesi as 'the first defendant', we agree with Mr Beaumont that Ms Cousins, when preparing the letter of 17 June, was apparently under the impression that AEI, a company, was the only defendant. She clearly did not know that the Appellant retained an interest, as a partner, in AEI. She explicitly stated that the nature of any interest held by the Appellant in AEI, other than as 'in house counsel', was a material consideration. There is no reason to believe that Ms Cousins understood the situation any differently when she spoke to the Appellant on 4 June. 118 We agree with Mr Beaumont that by virtue of these misapprehensions by Ms Cousins, for which the Appellant bears a significant degree of responsibility, any temporary authorisation to continue acting that Ms Cousins gave on behalf of the Law Society could not furnish a 'defence' for the Appellant along the lines set out in Law Society of New South Wales v Moulton. 119 The fact, however, that she did receive temporary permission to continue to act in the telephone conversation of 4 June is of relevance and should, we think, have been taken into account in the Respondent's determination. Her situation between 4 and 17 June 2004 was that she believed that it was in order for her to continue as solicitor for AEI. There is no evidence to show that she deliberately misled Ms Cousins. There is evidence to show, however, that she did not exercise sufficient care to ensure that the Law Society received accurate information on all matters relevant to the formulation of the advice that she was seeking. Her continued breach of Rule 19 (despite her believing that, at least for the time being, she was 'in the clear') was accordingly the consequence of a lack of due care on her part. 120 To this limited extent, the Respondent erred in failing to take account, at least explicitly, of a relevant consideration: namely, that on the face of it the Appellant was given permission by the Law Society to continue to act for AEI over a period of about two weeks. But there is little difference, in terms of the culpability of a solicitor, between acting in breach of Rule 19 for such a short period without any authorisation from a body such as the Law Society and acting in breach of this Rule in reliance on authorisation which, due to the practitioner's own lack of care, is based on incorrect information. For this reason, we do not think that the Respondent's error is such as to warrant disturbing the conclusions that he reached. 121 The approach that we have just outlined does not apply to the situation of the Appellant once she received the letter of 17 June 2004. We agree with Mr Beaumont that this letter did not, despite her claims to the contrary, provide her with any sort of authorisation to continue to act for AEI. It suggested that if she both (a) arrived at an 'assessment' that her evidence was 'not required in the proceedings' and (b) withdrew her affidavit pursuant to instructions from AEI, this might be permissible for her. It canvassed the possibility that 'exceptional circumstances' might be present on account of the practical difficulties that would arise if she ceased to act, but in no way indicated that the circumstances were in fact 'exceptional'. Its primary conclusion was that unless and until the Appellant's affidavit was withdrawn, the Appellant was likely to be in breach of Rule 19 if she continued to act. 122 For these reasons, we reject the fifth ground set out in the Further Amended Notice of Appeal. Failure to take into account relevant considerations 123 Under this heading, the Further Amended Notice of Appeal set out Ground 6, which was that the Respondent 'erred in law and in fact by failing to take into account relevant considerations' in determining to reprimand the Appellant. This allegation was particularised in seven subparagraphs, (a) to (g). 124 Mr Beaumont argued that, since the Appellant had not sought leave to appeal on grounds other than questions of law, she could not in his appeal rely on alleged errors of fact by the Respondent. 125 We agree. In now considering the seven subparagraphs that constitute the particulars to Ground 6, we will concern ourselves only with the issue of whether any errors of law can be discerned in the Respondent's determination. 126 6(a). Failure to take into account the existence of exceptional circumstances between the Appellant and the other partners of AEI as provided for in Rule 19. In written and oral submissions, the Appellant claimed, as we understand her, that the following five aspects of the case constituted 'exceptional circumstances' under Rule 19 and were therefore relevant to the Respondent's decision, but had not been taken into account by him: (i) that the proceedings in the Local Court related to the business activities of AEI (of which she was a partner), not to activities extraneous to this partnership; (ii) that she became an active partner in AEI on 1 July 2004, due to Ms Ualesi's illness; (iii) that accordingly even if she had ceased to act for AEI she would still have had an involvement in the Local Court proceedings; (iv) that these proceedings involved complex issues of law; (v) that Expeditors amended its statement of claim on 7 July 2004, in a manner which removed from the litigation the contested issue of whether the defendants were bound by the terms of the Distribution Agreement (see [48] above). 127 The alleged failures by the Respondent to take account of two of these matters - specifically (i) and (v) - were separately mentioned in later subparagraphs of Ground 6. 128 In this context, the Appellant also drew our attention to three Australian cases: Yamaji v Westpac Banking Corporation (1993) 42 FCR 431, Executive Homes Pty Ltd v First Haven Pty Ltd [1999] VSC 261 and Scallan v Scallan [2001] NSWSC 1078. The relevant aspects of these cases can be summarised as follows. Each of them involved applications for an order restraining a solicitor from continuing to act for a party on the ground that the solicitor would or might be a material witness. In each of them, the application was dismissed, on the ground that in the particular circumstances there were no grounds for believing that a sufficient conflict of interest and duty to warrant intervention of this nature would arise. 129 The Appellant sought to rely on these decisions for the proposition that in determining whether Rule 19 was applicable or whether 'exceptional circumstances' were present, the Respondent should have considered, but did not consider, whether a conflict of interest and duty of this nature had arisen in her case. 130 We consider however that for the following reasons (most of which were put to us by Mr Beaumont), the Appellant did not make good her submission with regard to any of the five aspects of the case that she identified in this context. 131 As to (i), the Respondent did take into account the nature of the Appellant's interest in the Local Court proceedings (i.e., as a partner of the two defendants, who were being sued in connection with partnership activities). This is apparent from paras 3, 8 and 9 of his determination. For reasons that we will shortly explain, we think that he was correct in declining to treat this interest as constituting 'exceptional circumstances'. 132 As to (ii) and (iii), we do not consider these matters to be relevant, so long as the Respondent gave due weight to the salient features of the Appellant's interest in the Local Court proceedings. The Appellant's position did not materially change on account of her becoming an active partner on 1 July 2004 and thereby maintaining an 'involvement' in the proceedings even if she ceased to be the solicitor for AEI. For reasons outlined in the preceding paragraph, we consider that the Respondent did take proper account of what we would regard as the salient features of the Appellant's interest in the Local Court proceedings. 133 As to (iv), we do not see why the fact that these proceedings gave rise to complex issues of law was in any way a relevant factor for the Respondent to consider. What mattered was that, as the Respondent said in para 3 of his determination, there were questions of fact on which the Appellant's affidavit provided material evidence. 134 As to (v), we agree with a submission by Mr Beaumont that Expeditors' amendment to its statement of claim on 7 July 2004 did not have the significance attributed to it by the Appellant in her formal response dated 25 October 2004 and her submissions to us. The amendment removed an allegation by Expeditors that on account of the execution of the Credit Agreement by the Appellant, as managing partner, AEI was bound by a term contained in the Distribution Agreement. The Appellant, in her affidavit, had denied that AEI was aware of the terms of the Distribution Agreement. In the amended statement of claim, Expeditors substituted an allegation that the relevant term was to be found in its 'Trading Terms and Conditions'. The affidavit dated 17 September 2004 by Ms Ualesi, which AEI filed in substitution for that of the Appellant, contained an allegation that the Appellant was aware of certain conditions of trade as set out in the Credit Application, but that AEI had not received the 'Trading Terms and Conditions'. It follows that the question of what terms and conditions stipulated by Expeditors were known to AEI at the time when the Appellant signed the Credit Agreement remained in dispute after the amendment of Expeditors' statement of claim on 7 July 2004. Until 17 September 2004, when the Appellant withdrew her affidavit, she remained a material witness on this question. The amendment to the statement of claim was for these reasons not a matter of relevance to which the Respondent should expressly have had regard. 135 We turn now to the three Australian cases to which the Appellant drew our attention. In our opinion, they do not support the proposition which she sought to extract from them, namely that the question whether Rule 19 is applicable to a solicitor or 'exceptional circumstances' exist is determined by reference to whether the solicitor is confronted by a significant conflict of interest and duty. 136 Our reason for forming this opinion is that in each of the three cases the court expressly distinguished the question that it had to decide - namely, whether to restrain a solicitor for one of the parties in the case from continuing to act - from the question whether the solicitor might be in breach of Rule 19 or a similar rule of professional conduct. The relevant passages in the three judgments are as follows: Yamaji v Westpac Banking Corporation (1993) 42 FCR 431 at [6 - 7]; Executive Homes Pty Ltd v First Haven Pty Ltd [1999] VSC 261 at [10] and [14]; and Scallan v Scallan [2001] NSWSC 1078 at [5 - 10]. In each of them, as we pointed out to the Appellant at the hearing, the court expressed some concern that the solicitor might indeed have been in breach of his professional responsibilities. 137 In the second and third of these passages, the court quoted from the judgment of Campbell CJ in Chapman v Rogers, ex parte Chapman [1984] 1 Qd R 542 at 545. In the relevant passage (to which the Appellant referred in her submissions), his Honour explained that the purpose of rules such as Rule 19 was 'to avoid any suggestion of real or apparent conflict between the duty to the court and the obligation to the client'. He said also that the participation of a solicitor for one of the parties as a material witness might however be 'unavoidable in some cases such as those involving complex commercial issues'. 138 In this connection, we would refer also to one of the two interlocutory decisions in the present proceedings. In that decision (QT v Legal Services Commissioner (No 2) (LSD) [2006] NSWADTAP 27 at [75 - 81]), the Tribunal, constituted by the Presiding Member of the present Panel, applied the principle that the criteria for determining whether a solicitor-witness should be restrained from continuing to act differ materially from those to be applied in deciding whether Rule 19 has been contravened. 139 We have read the discussion of Rule 19, and of the associated topic of orders restraining solicitors from continuing to act in proceedings on the ground that they will or may be a material witness, that appears in Riley, Solicitors Manual at paras [21,025 - 21.040]. For the purposes of the present investigation of what the Respondent should have taken into account in deciding whether 'exceptional circumstances' existed, we have found the discussion in Riley to be useful in drawing our attention to two matters. 140 First, in the passage on 'exceptional circumstances' (para 21,040.10), the only example suggested (citing Chapman v Rogers) is where the withdrawal of a solicitor in conformity with the Rule would jeopardise or cause undue prejudice to the client's interest on account of substantial difficulty in finding a replacement. This was, as outlined above, the situation described in the Law Society's letter of 17 June 2004 to the Appellant. 141 Secondly, in the discussion of orders restraining solicitors, it is suggested that the grounds for making such an order will be stronger where the solicitor has a personal interest in the outcome of the proceedings. The reason advanced in the authorities (see eg Bowen v Stott [2004] WASC 94 at [53]) is that a solicitor with such an interest might be thought by an independent observer to be likely to adjust his or her testimony so as to try to procure an outcome favourable to that interest. As pointed out earlier, the principles to be applied in this context are not the same as those underlying Rule 19. But they are analogous. We would treat these authorities as indicating that, contrary to the Appellant's submissions, the presence of this factor is not an 'exceptional circumstance' justifying departure from the course of action required by Rule 19. It may instead strengthen the arguments for saying that compliance with the Rule is essential. 142 For all these reasons, the Appellant has failed, in our judgment, to show that the Respondent erred through failing to take into account matters which would or might constitute 'exceptional circumstances' under Rule 19. 143 6(b). Failure to take into account Local Court rules which prohibit the commencement of proceedings against business names. The Appellant did not elaborate on this matter in her written or oral submissions. 144 This ground must be rejected, for the reasons outlined above in our rejection of Ground 3. 145 6(c). Failure to take into account the fact that the defendants in the Local Court proceedings were sued in the capacity of partners carrying on business as AEI. This criticism of the Respondent's determination also did not receive specific attention in the Appellant's submissions. 146 For reasons outlined above at [106], the Respondent did in our opinion take this matter into account, in conjunction with the consideration that the Appellant was also a partner of AEI. We reject this ground. 147 6(d). Failure to take into account the fact that the parties were ordered to withdraw all evidence from the Local Court proceedings, including the Appellant's evidence. The Appellant did not provide details of any order by the Local Court requiring the withdrawal of all the evidence, nor did she otherwise elaborate on this ground. 148 As was pointed out in the Amended Notice of Reply, the documents on which the Respondent based his determination did not refer to any such order in the Local Court. The determination itself (see para 7) did take account of the fact that the Appellant in fact withdrew her affidavit on 17 September 2004 and it treated her breach of Rule 19 as coming to an end when she took this step (see para 11). 149 There is for these reasons no basis for upholding this ground. 150 6(e). Failure to take into account the amendment of Expeditors' pleadings by the complainant (Mr Leather) on 7 July 2004. For reasons explained above at [134], this amendment to Expeditor's statement of claim was not a matter of relevance to which the Respondent should expressly have had regard. The fact that the amendment was (it would seem) an aspect of the complainant's discharge of his professional duties to Expeditors is likewise irrelevant. We reject this ground. 151 6(f). Failure to take into account the fact that the Law Society's advices dated 17 and 30 June 2004 predated the amendment of Expeditors' pleadings by the complainant. Our observations in the preceding paragraph provide sufficient reasons for us to reject this ground. 152 6(g). Failure to take into account the fact that the complainant opposed the joining of the Appellant as a party to the Local Court proceedings. The Appellant did not elaborate on this matter in her written or oral submissions. 153 As was pointed out in the Amended Notice of Reply, the documents on which the Respondent based his determination did not refer to any such stance being adopted by the complainant. Furthermore evidence to this effect, if it had been put before the Respondent, would not have been relevant to his determination. 154 This ground is accordingly rejected. Failure to exercise discretion 155 7. Error in the exercise of discretion. Under this heading in the Further Amended Notice of Appeal, the Appellant put forward a single ground. This was that the Respondent erred in law in the exercise of his discretion, in that he 'failed to exercise any discretion at all'. Under the subheading 'particulars', she referred solely to a letter from him to her dated 24 May 2005. 156 This letter was written in answer to a letter, bearing the same date, that she wrote to him requesting that he reconsider his determination. In making this request, she relied on the matters that subsequently comprised Grounds 6(b), (c) and (g) in the Further Amended Notice of Appeal. 157 The Respondent's letter of reply stated that he had considered these matters, but that since he was not persuaded that they altered the position he was not prepared to withdraw the private reprimand that he had issued to her in his determination. 158 Neither the written nor the oral submissions of the Appellant indicated how this letter provided evidence of a failure by the Respondent 'to exercise any discretion at all'. We agree with the proposition, contained in the Amended Notice of Reply, that the Respondent's refusal to reopen his determination, as conveyed to the Appellant in his letter of 24 May 2005, involved no error of law. 159 The Appellant also submitted orally that the Respondent did not give adequate consideration to the existence of his discretionary power to dismiss the complaint for the reasons set out in s. 155(3)(b) of the LP Act (the text of this provision is at [70] above), as opposed to issuing a reprimand under s. 155(3)(a). In this particular context, she said, he did not exercise any discretion at all because he did not 'weigh up' these two provisions. 160 We agree with Mr Beaumont's submission, however, that the parties' correspondence between November 2004 and February 2005 (see [61 - 66] above) shows clearly that the Respondent took account of the existence of this discretionary power. He expressly requested the Appellant to make submissions with regard to it. She did so, in her letter of 4 February 2005. There is no evidentiary basis for her contention that he did not consider the possible exercise of this power. It is not enough for her to point to the fact that he chose not to exercise it. 161 We accordingly reject Ground 7 of the appeal. Abuse of power 162 8. Abuse of power, improper exercise of power and denial of procedural fairness. The single ground put forward under this heading was that the Respondent 'improperly exercised the power conferred by section 155(3) of the Legal Profession Act by exercising it in a way which constituted an abuse of power and a denial of procedural fairness'. 163 Under the subheading 'particulars', two matters were alleged. We will deal with them separately. 164 Particulars (a): Refusal by the Respondent to provide the Appellant with details of the evidence, submissions and materials on which he relied in making his determination. In the Further Amended Notice of Appeal, the material of relevance here was identified as the two letters dated 24 May 2005 passing between the Appellant and the Respondent and a further two letters between the parties dated 5 July 2005. 165 We have already described the letters of 24 May 2005. In her letter of 5 July 2005, the Appellant, after referring to a forthcoming directions hearing in the present proceedings, made a number of specific requests for further and better particulars of the Respondent's determination. In summary form, these requests were for (a) the date and the text of Mr Leather's complaint; (b) a copy of the Ethics Committee's ruling dated 30 June 2004; (c) a precise statement of the period or periods in which the Appellant was alleged to have acted in breach of Rule 19; and (d) various specified dates of correspondence, items of evidence, submissions, 'supporting material', references to case law or legislative authority and matters and circumstances relied on by the Respondent, all relating in different ways to his determination. 166 In his reply dated 5 July 25, the Respondent enclosed a copy of his Notice of Reply to the Appeal (in its original form), indicated that he would supply further and better particulars of this document, if so requested, and stated that since he had already provided a full explanation of his reasons, it was not appropriate for him to comment on or particularise them further. The letter then responded to the specific requests by enclosing a copy of Mr Leather's complaint, with annexures, but maintaining that otherwise the requests were for material already available to the Appellant or related to matters which would be dealt with in the evidence or submissions put before the Tribunal. 167 Particulars (b): Failure by the Respondent to reverse his determination even though the Appellant advised him that his reasons 'were in conflict with the relevant Court Rules'. In the absence of any elaboration of this matter in the Appellant's submissions, we assume that it refers to the error alleged in Ground 6 (b) and claims, as Ground 7 did, that the Respondent should have recognised this error when the Appellant mentioned it in her letter of 24 May 2005. 168 In oral submissions, the Appellant appeared to argue that the Commissioner had not applied the appropriate standard of proof in making his determination and that this also constituted 'abuse of power'. She did not refer to any evidence supporting this submission. 169 She also argued that in his letters to her requesting her response to his provisional view of her conduct, he did not give her an adequate opportunity to put forward reasons why he should dismiss the complaint, either under s. 155(4) of the LP Act or in the exercise of his discretion under s. 155(3)(b). 170 Neither through relying on the Respondent's denial of a number of her requests in correspondence following his determination, nor through alleging (without supporting evidence) that he had recourse to an inappropriate standard of proof, does the Appellant come close to establishing an abuse of power or an improper exercise of power by the Respondent in the making of his determination. We have no difficulty in concluding that the Appellant has totally failed to substantiate these serious claims against the Respondent. 171 As to the claim of denial of procedural fairness, we agree with the Respondent's arguments as follows: (a) that such a claim cannot be made out on the basis of refusal to answer requests made after the relevant determination has been made; and (b) that the Appellant's letter to the Respondent dated 4 February 2005 showed clearly that she had been granted, and had availed herself of, an opportunity to advance reasons why he should dismiss the complaint against her under s. 155(4) or in the exercise of his discretion under s.155(3)(b). 172 Ground 8 is accordingly rejected. Findings not open on the evidence 173 9. Making findings that were not open to the Respondent 'on the evidence or the material'. The particulars relating to this ground specified three conclusions of the Respondent: (a) that the Appellant did not have proper cognisance of Rule 19 or of the guidance offered by the Ethics Section and the Ethics Sub Committee of the Law Society; (b) that there was a reasonable likelihood that the Appellant would be found guilty of unsatisfactory professional conduct by the Tribunal; and (c) that a breach of Rule 19 could amount to unsatisfactory professional conduct as defined by the LP Act. 174 The written submissions of the Appellant included an assertion that the reasons set out in the Respondent's determination were 'plagued by errors as to the facts and law'. But none of her submissions was explicitly linked with this ground of appeal. We therefore assume that in putting forward this ground she sought to rely on the various specific errors of law raised in other parts of her Amended Notice of Appeal, except for those referring to her correspondence with the Respondent after he had made his determination. 175 The Respondent's initial response to this ground of appeal, as stated in the Amended Notice of Reply and in written submissions, was that it alleged errors of fact only and therefore could not be maintained since no leave to rely on such errors in the appeal had been granted by us. 176 To the extent that two of the three conclusions particularised ((a) and (b)) were based on findings of fact made by the Respondent, the Appellant's assertion that he erred in law could only be sustained if she established that there was no evidentiary basis for them. This follows from the discussion of the distinction between errors of law and errors of fact in a case cited by the Appellant, Azzopardi v Tasman UEB Industries Ltd (1985) 4 NSWLR 139 at 156-157 and in Skiwing Pty Ltd v Trust Company of Australia (trading as Stockland Property Management) [2006] NSWCA 276 at [52 - 57]. But the Appellant offered no submissions specifically directed to proving this proposition. In the absence of the appropriate grant of leave by us, she is not in a position to argue the lesser proposition that the Respondent simply erred in arriving at some or all of his factual findings. 177 So far as these two conclusions were based on legal rulings, the Appellant put forward no reasons, other than those that we have already considered and rejected, for believing that they were incorrect in law. 178 The remaining conclusion particularised ((c)) is purely an issue of law. As enunciated in s 57D(4) of the LP Act (quoted above at [74]), it is clearly correct. An illustration is provided in a decision of the Legal Services Tribunal to which the Appellant herself referred in her oral submissions. This is the decision in Santo Scarfone [1997] NSWLST 24. 179 For these reasons, we reject Ground 9 of the appeal. Policy considerations 180 10. Deciding to reprimand the Appellant 'in accordance with a rule or policy' without regard to her submissions or 'the facts of the case'. In connection with this ground, the only argument raised by the Appellant in her submissions was that the Respondent did not give adequate consideration to the existence of his discretionary power to dismiss the complaint for the reasons set out in s. 155(3)(b) of the LP Act, as opposed to issuing a reprimand under s. 155(3)(a). She maintained that what he did was simply to apply some sort of 'rule' or 'policy' precluding his exercise of this power. 181 We have already rejected a submission in similar terms in dealing with Ground 7. We accordingly reject Ground 10 also. Bias 182 11. Being, or appearing to be, biased. The particulars for this ground of appeal specified three matters: (a) a failure to undertake 'any independent investigation' into the matters raised by the complainant and/or the Appellant; (b) a failure to give consideration to the evidence and submissions presented by the Appellant; and (c) applying the Law Society's advice without regard to the facts of the matter. 183 In her initial submissions, the Appellant supplemented paragraph (a) of the particulars by pointing out that the complainant had not annexed to his complaint a copy of the Law Society's letter of 30 June 2004, but the Respondent did not then ask the Law Society for a copy. It was only when the Appellant wrote to him on 25 October 2004, annexing a copy, that he first saw this letter. It followed, the Appellant contended, that the Respondent had accepted 'without question or query' the complainant's allegation that the Law Society's decision was adverse to her. He had not tried to satisfy himself independently as to the contents of the letter or to corroborate the assertion of the complainant. 184 In these submissions, the Appellant also raised two further matters which she claimed to demonstrate bias on his part. These were (i) that in his letter to her of 17 November 2004 he had alleged that she was presenting information to him 'selectively' and (ii) that the Respondent had dismissed, without 'investigation or appreciation' of the document or the facts, a complaint against Mr Leather which she described as 'identical' to the complaint in this case. 185 Finally, in her submissions in reply, the Appellant maintained that the Respondent, through his counsel, had demonstrated bias by contending, in opposing Ground 5 of the appeal, that the Appellant had given misleading information to the Law Society in her letter of 15 April 2004. The contentions put by Mr Beaumont in this context are outlined above at [114 - 118]. The Appellant's response to them was to the following effect: (i) that this was an 'opportunistic' contention that was 'not supported by any evidence'; (ii) that the Respondent was 'obliged in terms of natural justice to adduce evidence in support of the Law Society's state of mind in support of this submission'; (iii) that if he held this view he 'had a duty to inform the Appellant and seek her submissions in relation to it'; (iv) that his failure to do so was 'highly prejudicial' to her; and (v) that it was 'demonstrative of bias' on his part and of 'his readiness to draw negative inferences' against her. 186 We will now state our conclusions regarding these allegations of bias made by the Appellant. 187 In the first place, none of the three matters outlined in the particulars to this Ground (and, in the case of paragraph (a), supplemented in argument) is at all sufficient to establish bias, actual or apparent. 188 With regard specifically to paragraph (a), the correspondence between the parties immediately following the making of the complaint on 21 September 2004 shows that, as soon as the Appellant obtained a copy of the complaint, she pointed out to the Respondent (in her letter of 12 October) that the complainant had omitted to provide a copy of the Law Society's letter of 30 June. She said that she would herself provide one to the Respondent. She did do with her letter of 25 October. These facts fall well short of establishing that any failure by the Respondent to conduct an 'independent investigation' of the complainant's version of the relevant contents of this letter was motivated by actual bias, or gave an appearance of bias. 189 There is no evidentiary support for the claims made in paragraphs (b) or (c) of the particulars. In seeking to make good a claim of bias, it is insufficient for the Appellant merely to assert that the Respondent's determination was incorrect or that it appeared simply to restate the conclusion reached by the Law Society. 190 As to the claim of bias allegedly manifested in the Respondent's letter of 17 November 2004, we agree with a submission by Mr Beaumont that this is dispelled on reading the whole of the relevant passage. With emphasis as added in his submission, this passage was as follows:- I note also with concern there is no copy provided to this office of the initial letter to the Law Society requesting ethical guidance. I am concerned this gives the appearance of the information provided to this office being done so selectively, although I am prepared to accept this was not the intention . 191 As to the Appellant's claim that the Respondent evinced bias against the Appellant through dismissing an allegedly 'identical' complaint against Mr Leather without proper investigation, our view is that it could not conceivably be upheld (and arguably should have not been advanced) in the absence of any evidence to support it. 192 Finally, we reject the Appellant's argument that the Respondent displayed bias through contending that she misled the Law Society in her letter of 15 April 2004 requesting ethical advice. Our reasons for so concluding are as follows. 193 First, we do not accept the Appellant's proposition that the Respondent failed to adduce evidence in support of this contention. What Mr Beaumont did in his submissions was to draw our attention to a relevant passage in the Law Society's letter of 17 June 2004 to the Appellant and to invite us to infer from that passage that the Society was in fact misled on three relevant matters: namely, the legal status of AEI, the identity of the defendants in the Local Court proceedings and the full scope of the Appellant's links with AEI. This passage constituted evidence which it was open to us to accept as sufficient to warrant such an inference, or to reject as inadequate for this purpose. 194 Secondly, we do not accept the Appellant's claim that the Respondent inflicted prejudice on her, or displayed bias, through failing to 'seek her submissions' in relation to this matter. As was apparent to the Respondent, it was fully open to the Appellant, in her submissions in reply, to seek to persuade us that we should not draw the inference suggested by Mr Beaumont. There was no need for the Respondent to take any further steps by way of 'seeking her submissions'. 195 For these reasons, we reject Ground 11. Conflict of interest 196 12. Acting in circumstances that gave rise to a conflict of interest and duty. The matters raised by the Appellant here concerned the role of Ms Lynda Muston, an Assistant Commissioner employed by the Respondent, in the investigation of the complaint and as the Respondent's solicitor in these proceedings. They were put before the Tribunal in an application made by the Appellant for an order restraining Ms Muston from further acting in the proceedings. That application was dismissed in a judgment which sets out the relevant facts and the reasons for dismissal (QT v Legal Services Commissioner (No 2) (LSD) [2006] NSWADTAP 27 at [63 - 86]). 197 In her written and oral submissions following the dismissal of this application, the Appellant has not raised again the issue of Ms Muston's role in the proceedings. In his submissions, Mr Beaumont inferred that Ground 12 was no longer pressed by the Appellant. 198 Whether or not Ground 12 is still pressed, we are satisfied, on the basis of the considerations set out in the Tribunal's judgment, that no case of conflict of interest and duty can be made out against the Respondent on this basis. We would refer in particular to paragraphs [71] and [72] of the judgment. 199 We accordingly reject Ground 12. Private reprimand 200 13. Purporting to issue a private reprimand under s. 155(3)(a) of the LP Act. The Appellant's argument under this ground is that s. 155(3)(a) conferred power on the Respondent to issue 'public' reprimands only, and that therefore his determination, which expressly described the reprimand to her as private, was made in excess of his powers. 201 Like its predecessor, this ground has been canvassed in a previous judgment in these proceedings. In QT v Legal Services Commissioner (LSD) [2006] NSWADTAP 13, the Tribunal, constituted by the Presiding Member of the present Panel, dismissed an application by the Appellant for referral of a question of law to the Supreme Court pursuant to s 118D(1) of the ADT Act. The question to which her application related, as formulated in paragraph [4] of the judgment, was 'whether, as a matter of law, the Respondent had power under s 155(3)(a) of the LP Act to issue a private reprimand'. 202 For a number of reasons, which are summarised in the judgment at [47 - 52], the Tribunal decided that the question should not be referred to the Supreme Court. In setting out those reasons, it rejected [at 52] a submission by Mr Beaumont that the question was not 'seriously arguable'. The judgment then went on (at [57 - 63]) to outline what the Tribunal described as its 'provisional' opinion on the question. It refrained from delivering a final decision on the question because, for reasons explained at [53 - 56], it considered that it was not properly constituted to do so. 203 The Tribunal's 'provisional' conclusion was that the power conferred on the Respondent by s 155(3)(a) included both private and public reprimands. It indicated that this conclusion seemed preferable to an alternative interpretation suggested by Mr Beaumont, which was that the intent of the provision was to authorise private reprimands only. Evidently, either of these conclusions is sufficient to rebut the claim advanced by the Appellant in Ground 13 of the appeal. 204 At [64], the Tribunal stated as follows:- 64… For reasons that I have explained, I am not in this decision making a ruling on the Appellant's argument regarding the scope of the Respondent's power of reprimand. It is fully open to her to pursue this argument further at the hearing of her appeal by a full Appeal Panel. The opinion that I have outlined is provisional only and my fellow-members will, as far as I know, be considering the question for the first time. A transcript of the submissions put to me on 21 February 2006 is being prepared, in order to shorten the time that would be needed for any further submissions on this question by the parties. 205 As envisaged here, the transcript of the submissions made on 21 February 2006 was indeed prepared and was made available to the members of the present Panel. At the hearing of the appeal and in the submissions prepared both before and after the hearing, this question of the Respondent's power under s 155(3)(a) was not raised. But in her letter of 1 November 2006 to the Registrar requesting that the question be determined 'as a preliminary jurisdictional matter' (see [85] above), the Appellant made some short supplementary submissions on the matter and referred to two cases ( New South Wales Bar Association v LI [2005] NSWADT 15 and New South Wales Bar Association v LI (No 2) [2006] NSWADT 263) that had not been cited at the earlier hearing. 206 We have given consideration to this material: that is, to the transcript of the submissions made to the Tribunal when this question was first raised in these proceedings; the authorities cited in those submissions; the provisional opinion, with supporting reasons, contained in the Tribunal's earlier judgment; and the supplementary submissions and additional authorities put before us by the Appellant in her letter of 1 November 2006. 207 Having done so, the decision of the present Panel is that the Tribunal's provisional conclusion was correct in law. We accordingly reject Ground 13, which is the last of the grounds set out in the Further Amended Notice of Appeal. Failure to furnish adequate reasons 208 As indicated above, the Appellant's written and oral submissions advanced a ground of appeal that did not form part of the Further Amended Notice of Appeal. This was that the Respondent's determination of 6 May 2005 (the full text of which is reproduced above at [69]) did not contain adequate reasons for his conclusions that she had contravened Rule 19, that this contravention constituted unsatisfactory professional conduct and that she should therefore be privately reprimanded. 209 Mr Beaumont acknowledged that under s. 171J(1) of the LP Act, the Respondent was obliged to provide the Appellant with reasons for these conclusions relating to the complaint. The applicability of the subsection to every type of decision made under s. 155 was confirmed by Priestley JA in the Court of Appeal in Murray v Legal Services Commissioner (1999) 46 NSWLR 224 at 249 [95 - 96]. 210 The dispute between the parties to the appeal was accordingly as to the nature of the reasons that the Respondent was obliged to provide and as to whether the reasons that he gave in his determination were sufficient to meet his obligations. 211 In Murray at 249 [96], Sheller JA described the decision-making process under s. 155 of the LP Act as being of a 'quasi-judicial nature'. This is a useful starting-point in considering the nature of the reasons required to be supplied to a practitioner under s. 171J(1). But neither Murray nor any of the other authorities that we have traced in which this subsection has been discussed (notably Carson v Legal Services Commissioner [2000] NSWSC 64) provides specific guidance on this issue in cases where the decision made under s. 155 was to reprimand the practitioner under subsection (3)(a) following a finding of unsatisfactory professional conduct. Those authorities relate instead to decisions under s. 155(2) that proceedings alleging professional misconduct and/or unsatisfactory professional conduct should be instituted in the Tribunal. 212 This distinction is important because a decision under s. 155(3)(a) of the now-repealed LP Act, unlike a decision under s. 155(2), represented a final disposal of the complaint against the practitioner. It incorporated an adverse disciplinary finding and a disciplinary sanction. In contrast to a decision under s. 155(2), it could only be challenged by the practitioner through the institution of an appeal, such as the present appeal. That appeal, brought under ss.171N of the LP Act and s. 118B(1) of the ADT Act, is an appeal as of right in relation to questions of law and is subject to leave from the Appeal Panel in so far as 'other grounds' are advanced. 213 On these grounds, we agree with a submission by the Appellant that the duty of the Respondent under s. 171J(1) was to provide reasons that were sufficient to ensure that, if dissatisfied with his determination, she had 'a real and not largely illusory right of appeal'. This phrase appears in the judgment of Priestley JA in Attorney-General of New South Wales v Kennedy Miller Television Ltd (1998) 43 NSWLR 729 at 735. In this case, which the Appellant cited to us, the Court of Appeal held that because the decisions of costs assessor appointed under the LP Act could be challenged on appeal to the Supreme Court they were subject to an implied statutory duty to provide reasons for their determinations. 214 In Frumar v The Owners of Strata Plan 36957 [2006] NSWCA 278, a case also cited to us by the Appellant, the judgment of Giles JA contains some further observations upon the scope of the statutory duty to give reasons imposed by s. 208KG of the LP Act upon a panel reviewing a costs assessment. At [43], his Honour indicated that the extent of this duty was 'informed by the general law concerning the duty of judicial officers to give reasons', but that 'the different nature of their task' must be taken into account. He also noted that the extent of a judicial officer's duty 'depends on the circumstances'. At [44], he quoted the phrase regarding rights of appeal that Priestley JA had used, pointing out that where, as in the present case, the right of appeal related not only to questions of law but also (subject to a grant of leave) to questions of fact, this was a material consideration. 215 With regard to the duty of judicial officers to give reasons, the Appellant cited the judgment of Meagher JA in Beale v Government Insurance Office of New South Wales (1997) 48 NSWLR 430. Having referred at 441-443 to the policy considerations underlying this duty imposed on a judge and indicated that 'reasons need not necessarily be lengthy or elaborate', his Honour set out at 443-444 what he regarded as 'three fundamental elements of a statement of reasons, which it is useful to consider'. He stated that a judge should (a) 'refer to relevant evidence', though not necessarily in detail; (b) set out 'any material findings of fact and any conclusions or ultimate findings of fact reached', indicating particularly where and for what reasons one 'set of evidence' has been 'accepted over a conflicting set of significant evidence'; and (c) provide 'reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found'. 216 There are numerous other authorities on the scope and nature of the duty of judges to give reasons. We do not consider it necessary, however, to discuss them here. 217 On this question of the nature of the reasons that the Respondent was required to give under s. 171J(1), the only authority cited by Mr Beaumont was a passage in the judgment of Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration and Ethnic Affairs v Wu Shan Liang (1996) 185 CLR 259. At 282, with specific reference to decisions by delegates of the Minister for Immigration and Ethnic Affairs rejecting applications for refugee status, their Honours observed that 'the reasons of an administrative decision-maker are meant to inform and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed'. Further comments to the same effect are to be found in the judgment of Kirby J at 291-292. 218 We do not gain much assistance from these observations, as they appear to us to be directed to a different question - namely, the approach to be adopted in determining whether an administrative decision-maker has erred in law - and they explicitly relate to administrative decision-makers generally, not those exercising quasi-judicial functions. 219 On the basis that the Respondent's duty to provide reasons under s. 171J(1) was akin to that of a judge, as outlined by Meagher JA in Beale, the first issue that we must consider is whether his determination sufficiently referred to the 'relevant evidence'. What he initially identified in this connection, in paras 1 and 2, was the complaint, the Appellant's 'correspondence' with this office, the 'evidence on file' and, arguably, the 'supporting material' accompanying her submissions. In the ensuing paragraphs, he referred to specific components of this evidence, such as the Appellant's affidavit of 22 March 2004, the letter to her from Conway Leather Shaw dated 5 April 2004, the two letters to her from the Law Society and her letter to him dated 4 February 2005 (which contained among other things a description of her relationship to AEI). 220 At first sight, this description of the relevant evidence might seem to have been both unduly vague (in using phrases such as 'the evidence on file') and incomplete (in so far as a significant quantity of documentary material was not mentioned). But we consider that it was adequate to meet the criteria that we have outlined. 221 Our primary reason for this conclusion is that the factual matters which the Respondent took into account in making his determination were, on the whole, undisputed (since much of the evidence emanated from the Appellant herself) and were relatively simple. They were to this effect: that the Appellant was the solicitor on the record for the two defendants in the Local Court proceedings; that she was not herself a defendant; that the cause of action arose from the business activities of AEI, in which she was a partner with the two defendants; that she had filed an affidavit, which remained on the Court file for a period of some six months; that during this period she was advised, first by Conway Leather Shaw and then on two occasions by the Law Society, that her continuation as solicitor for AEI was or might be in contravention of Rule 19; and that she nonetheless continued to act as solicitor, at least until the withdrawal of her affidavit. 222 The specific items of evidence identified in the Respondent's determination did not cover all of these key ingredients of the case against her. But the matters not covered were in fact established by statements that she herself made in her correspondence with the Respondent. By way of example, the withdrawal of her affidavit on 17 September 2004 formed part of the detailed response to the complaint that she sent to the Respondent on 25 October 2004. 223 The second requirement suggested by Meagher JA in Beale is that a judge's reasons should include 'any material findings of fact and any conclusions or ultimate findings of fact reached'. The 'material findings' in this case were those that we have just outlined. They are all contained within a passage (paras 3 to 9) of the determination. 224 Third and finally, Meagher JA suggested that a judgment should provide 'reasons for making the relevant findings of fact (and conclusions) and reasons in applying the law to the facts found'. 225 We would regard the first component of this requirement as having been substantially if not wholly satisfied by the determination's references to Rule 19. The reason why these findings were made was, as indicated in para 10, that they provided the basis for the conclusions that the Appellant had (a) contravened Rule 19 and (b) continued to do so in opposition to advice from the Law Society. 226 As to the second component, our opinion is that the Respondent, in paras 11-13, did not explain all the relevant steps. He did not explain what in his opinion might constitute 'exceptional circumstances' under Rule 19. He did not refer to s. 57D(4) of the LP Act, which established the link between his finding of a contravention of this Rule and his decision that this contravention constituted unsatisfactory professional conduct. He did not outline his reasons for deciding to reprimand her under s. 155(3)(a) rather than to dismiss the complaint under s. 155(3)(b). But in his correspondence with the Appellant he did reproduce these three provisions of the LP Act or state fully their effect, and he invited her submissions in relation to them. 227 Having regard to our conclusion that he sufficiently covered all other relevant matters in his determination, we do not think that these omissions had the effect of leaving her in doubt as to the reasons why he made a finding of unsatisfactory professional conduct and issued a private reprimand. These omissions were not serious enough to render her rights of appeal 'illusory'. 228 We accordingly reject this final ground of appeal. Our orders 229 For the foregoing reasons, we dismiss the appeal. 230 As stipulated by s. 171N(5) of the Legal Profession Act 1987 as a consequence of the dismissal of the appeal, we publicly reprimand the Appellant. 231 Since the parties foreshadowed that after our decision was published they would wish to be heard on the matter of costs, we direct as follows:- (a) Any application for costs in relation to these proceedings, together with supporting submissions, must be filed and served within 28 days of the date of these reasons. The matters addressed in the submissions should include (i) the identity of the provisions of the Legal Profession Act 1987 on which the application is based and (ii) the question whether s. 88 of the Administrative Decisions Tribunal Act 1997 should be regarded as applicable. (b) Within a further 28 days, the opposing party is to file and serve submissions in reply. (c) The matter of costs is to be resolved 'on the papers', under s. 76 of the Administrative Decisions Tribunal Act 1997, unless either party applies, giving reasons, for a hearing to take place.

Paras v Legal Services Commissioner

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