Payne v Council of the Law Society of New South Wales

NCAT Occupational|2024-07-23

f NSW (1957) 97 CLR 279 Texts Cited: Not applicable Category: Principal judgment Parties: Peter Desmond Payne (Applicant) Council of the Law Society of New South Wales (Respondent) Representation: Counsel: R Mathur SC (Applicant) C Webster SC/G Marsden (Respondent)

Solicitors: Hugo Law Group (Applicant) EM McKenzie (Respondent) File Number(s): 2024/0028460 Publication restriction: Nil

Introduction

The Applicant, a solicitor, lodged an Application for Administrative Review on 23 January 2024 seeking review of the decision of the Respondent dated 15 November 2023 to: 1. cancel the Applicant's practising certificate for the practice year 30 June 2024 pursuant to ss 76(b) and 89(2)(b) of the Legal Profession Uniform Law (NSW) (the Uniform Law), 2. not allow the Applicant to apply for a grant of a practising certificate for a period of five years pursuant to s 94 of the Uniform Law.

Background Facts

The factual background leading to the decisions of the Respondent commence in October 2021. The Respondent has been a solicitor specialising in criminal law based in Cobar in the central west of New South Wales.
On 27 October 2021, a Mr Betcke had a matter listed for sentence at the Cobar Local Court. At the time he was on bail for an unrelated matter. Part of his bail conditions required Mr Betcke to reside at a particular address. Bail compliance checks revealed that Mr Betcke had not been residing at that address.
On 27 October 2021, Mr Betcke's sentence matter was mentioned at Cobar Local Court before his Honour Magistrate Shields. The Applicant was present and informed his Honour of his belief that Mr Betcke's matter had been adjourned to Dubbo for sentence on a future date. However, the Magistrate informed the Applicant that Dubbo Local Court had referred the matter back to Cobar Local Court with a marking that the matter must proceed.
The Applicant informed the court that he was unaware of the listing at the Cobar Local Court, that he had no instructions but would make efforts to locate Mr Betcke. The Applicant requested that the matter be adjourned to Nyngan Local Court on the following day (28 October 2021). The Applicant informed the Magistrate that he would "do his best to have [Mr Betcke] there" at court. His Honour agreed and adjourned Mr Betcke's matter.
On 27 October 2021 at 2:56 pm, the Applicant called Mr Betcke on a lawfully intercepted telecommunication service. During the call, the Applicant told Mr Betcke that he had become aware that he (Mr Betcke) was wanted by police and that he believed the police were using the "drug driving matter to flush you out". The Applicant told Mr Betcke that his matter had been adjourned to Nyngan Local Court for sentence on the following day and that he (the Applicant) had told the Magistrate that he would attempt to get hold of Mr Betcke to obtain instructions.
The following exchange then occurred between the Applicant and Mr Betcke: APPLICANT: So what do you want me to do, mate? Do you bloody let the thing be dealt with in your absence? BETCKE: Yeah, yeah. Yep. APPLICANT: You want me. I'll simply tell him I haven't been able to contact you. Does that fit with you? BETCKE: Um, yeah. APPLICANT: You see we are going to have to, I got no problem saying that - that I haven't been able to find you - and therefore have no instructions. "It is therefore up to you, Your Honour whether or not you sentence him on this matter in his absence. I have got no instructions". But I can see that they are setting, they are setting a trap for you. BETCKE: Yeah. APPLICANT: Its as plain as the nose of your face. BETCKE: Yeah, yeah. That's right. APPLICANT: Do you want to go to gaol tomorrow? BETCKE: Fuck no. APPLICANT: No, well fuckin' stay where you are.
On the following day, 28 October 2021, Mr Betcke's sentence matter was heard at Nyngan Local Court before his Honour Magistrate Shiels. The Applicant informed his Honour that he had been unable to make contact with Mr Betcke. The offender then sought leave to withdraw from the matter, but prior to doing so provided the court with "subjective information" he had obtained from Mr Betcke the previous afternoon. His Honour convicted Mr Betcke of the drug driving offence in his absence.
The above facts are not in dispute and have been taken from a Statement of Agreed Facts dated 7 September 2023, signed by the Applicant and by an officer of the Office of the Director of Public Prosecutions in connection with proceedings in the Local Court at Sydney by which the Applicant was charged with intending to pervert the course of justice.
On 23 September 2022, the Applicant was charged with perverting the course of justice contrary to s 319 of the Crimes Act 1900 (NSW) and on 26 September 2022 the Applicant gave written notice of his charge to the Respondent in accordance with s 51 of the Uniform Law.
By notice dated 21 December 2022, the Applicant was informed by the Respondent that the Respondent had suspended the Applicant's practising certificate for the year ending 30 June 2023. The notice stated that the suspension would not take effect until 31 January 2023 to enable "the proper arrangement of affairs of the practice, namely to arrange alternative representation for clients".
The Applicant pleaded guilty to the charge of perverting the course of justice contrary to s 319 of the Crimes Act on 11 September 2023 and was convicted and sentenced to a community corrections order for a period of 12 months pursuant to s 8 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
On 18 September 2023, the Applicant informed the Respondent of his conviction.
Thereafter, there was an exchange of correspondence between the Applicant and the Respondent, which included the provision of submissions by the Applicant to the Respondent with testimonials in support of the Applicant.
On 13 November 2023, the Respondent resolved to cancel the Applicant's practising certificate and prohibit him from applying for a practising certificate for a period of five years, that five year period being the maximum period permitted under the Uniform Law: s 94. At that time, the Respondent did not have the benefit of the Local Court's remarks on sentence dated 11 September 2023. Those remarks have been tendered by the Applicant in support of this application for administrative review.

The Evidence in these Proceedings

The Applicant tendered: 1. A folder of documents (lodged on 30 April 2024 and marked Exhibit A). This folder consists of an affidavit of the Applicant dated 11 September 2023, a transcript of the proceedings on sentence in the Local Court on 11 September 2023, the sentencing remarks of Magistrate Manea made in the Local Court at Sydney on 11 September 2023 and a considerable number of references (approximately 24). 2. A letter from Geoffrey Langford, solicitor, to Helen Christensen of Hugo Law Group dated 21 July 2024 (Exhibit B). 3. Certificate of Completion by the Applicant of a seminar on professional ethics on 22 July 2024 (Exhibit C). 4. Certificate of Completion by the Applicant of a seminar on ethical decision-making for lawyers completed on 22 July 2024 (Exhibit D).
There was no objection to any of the tendered material and there was no application made for cross-examination.
The Respondent lodged a bundle of documents pursuant to s 58 of the Administrative Decisions Review Act 1997 (NSW) (ADR Act) (marked Exhibit 1).

Applicant's Evidence

It is relevant to record some aspects of the evidence contained in the Applicant's affidavit of 11 September 2023. When the affidavit was sworn, the Applicant was 71 years of age and a resident of Cobar. He and his wife have been married for 46 years, they have three grown up children and seven grandchildren. At the time of the offence leading to the charge of perverting the course of justice the Applicant had been in practice in his own firm practising in the Cobar, Bourke, Brewarrina, Nyngan and occasionally Dubbo areas. He has lived in Cobar since he was 10 years old.
After completing his Higher School Certificate in 1969, the Applicant worked as an articled clerk for a law firm. His father died unexpectedly in November 1969, having taken over the licence of a hotel in Cobar two years earlier. The Applicant's mother took over the operation of the hotel but ran into financial difficulty and, as a consequence, in 1972, he gave up his articled clerkship to assist his mother at the hotel. He then spent the next 35 years in Cobar as a hotelier. The hotel was sold in 1989 and the Applicant then bought another hotel in Cobar in partnership with a friend.
The affidavit goes into some detail concerning the Applicant's activities in the Cobar community, particularly with respect to sporting organisations.
From approximately 2007, the Applicant commenced studying to become a legal practitioner and in September 2012 he was awarded the degree of Bachelor of Laws from the University of New England. He was admitted as a lawyer of the Supreme Court of New South Wales on 15 February 2013. His studies and subsequent work period with an Armidale solicitor required him to live away from his family and reside in Armidale. He returned to Cobar in November 2014. From then until late 2017, he worked as a legal practitioner for Geoffrey Langford. He opened his own practice in early 2018.
The affidavit states that by September 2022 the Applicant employed one solicitor, one paralegal, one full time law clerk and one part-time law clerk/ administration assistant.
The affidavit then deals with the death on 16 October 2021 of a "local young man Ethan Black who was killed in a motor vehicle accident". The vehicle had been driven by another young local man. The Applicant states in his affidavit that he is "good friends with Mr Black's parents and the driver's grandparents". The Applicant states in the affidavit that he was "inundated with requests from the other boys who were present" when the accident occurred asking for legal advice. The Applicant states that this was a "very stressful time for me, not only because I felt I needed to dedicate time to everyone who needed my help, but also because it was an emotional time for the whole community".
The affidavit then deals with the Applicant's relationship with Mr Betcke, including aspects of his background. The background included evidence concerning mental health issues suffered by Mr Betcke.
The affidavit states that prior to the court mention in Cobar Local Court on 27 October 2021, the Applicant had no reason to talk to Mr Betcke because all his matters had been sent to Dubbo Local Court for hearing with the Aboriginal Legal Service to represent him. However, one of the charges being faced by Mr Betcke had been sent back to Cobar Local Court for sentence.
The Applicant stated in his affidavit that whilst he does not seek to excuse his actions, he wishes to explain why he said what he said and that his "singular thought" was Mr Betcke's mental state. He did not want Mr Betcke to go to gaol given his mental state.
In the affidavit, the Applicant acknowledges that his duty to the court and the administration of justice was and is paramount and prevails to the extent of any inconsistency with any other duty. He acknowledges he made the wrong decision and made a "serious error of judgment and sought to protect the well being of someone I knew too well".
The affidavit states that in early 2023 the Applicant sold his legal practice.
It is relevant to record some of the remarks made by her Honour Magistrate Manea when sentencing the Applicant on 11 September 2023. The aspects of her Honour's remarks which we consider relevant to the Applicant's application are as follows: 1. Her Honour referred to the charge against the Applicant, namely "Doing an act intending to pervert the course of justice" and referred to the conversation forming the basis for the charge. Her Honour stated that the Applicant had told his client (Mr Betcke) not to appear at court and then advised the court that he had not spoken to his client. Her Honour went on to describe the offending as falling "at the lower end of objective seriousness". Her Honour stated that that view was based on the fact that the conduct was "absent of other features that would make it a more serious example of this type of offence". Nevertheless, her Honour described the offence as serious. 2. Her Honour described the conduct as being based upon a "spontaneous decision" to "act in what he [the Applicant] thought was the interests of his client. And it appears that that limited planning and unsophisticated act is, in my view, what takes it to the lower end". 3. Her Honour described the Applicant as a "very active and well regarded member of his community for a very long time". Her Honour outlined the career path of the Applicant commencing with undertaking articles in the 1970s. Her Honour also described the Applicant as having a "hard-working ethic" and "commitment to helping those that were economically and socially disadvantaged". 4. Her Honour noted that the Applicant had no "particular personal motivation to commit the offence" and "nothing to gain". 5. Her Honour noted that it is "not insignificant that as a result of this offending he [the Applicant] has lost his ability to be a lawyer and also have a practice. This is significant in the circumstances of his age and also his reputation." 6. Her Honour stated that a conviction was warranted given the requirements to impose an adequate punishment, send a message of deterrence and the need to denounce the Applicant's conduct. 7. Her Honour described the prospects of rehabilitation as being very good. She described the Applicant as a person who "will continue to contribute significantly to his community". 8. In the result, Her Honour imposed a 12 month community corrections order on the Applicant.
At the hearing before us we expressed the view that the magistrate may have imposed a lighter sentence upon the Applicant on the basis that the Applicant will not be able to practice the law again. However, counsel for the Applicant drew our attention to the transcript of the proceedings before the magistrate at the Local Court. It is clear from the transcript that the Applicant's counsel made it clear to her Honour that the Applicant had been suspended and "whether he remains suspended is a matter to be seen". Counsel stated that the plea of guilty imposes a large barrier on the ability to practice again but hopefully "its not an insurmountable barrier". In short, we are satisfied that the magistrate was aware of the possibility that the Applicant would seek to gain permission to practice again.
It is relevant to record some of the statements made in the references which have been tendered in these proceedings in support of the Applicant. Some of the references were originally tendered in the Local Court proceedings in which the Applicant pleaded guilty and other references were addressed to the Respondent. A number of the references come from solicitors or barristers and a considerable number come from lay persons. All speak of the Applicant in very favourable terms mentioning his honesty, integrity, work ethic and compassion. The references are replete with comments concerning the Applicant's willingness to assist clients often for little or no charge. Many of the references state that the referees are aware of the charge to which the Applicant has pleaded guilty and describe the Applicant's conduct as out of character. One referee states that the Applicant "momentarily lost sight of his obligations". Another describes Applicant's conduct as a "single, standalone occasion". Another describes the Applicant's conduct as "an aberration and has never happened before, or will ever happen again" in the opinion of that referee. Another referee's comment is that the Applicant "will not fall in his duty as a solicitor again". All speak of the Applicant's remorse.
One of the referees, Geoffrey Langford, solicitor of Cobar, is also the author of a letter dated 21 July 2024 which was tendered in these proceedings and marked Exhibit B. In that letter Mr Langford states that that the Applicant had been employed by him for three years and that, notwithstanding the seriousness of the allegations and the finding of the Local Court, Mr Langford believes that the Applicant is a person "worthy of the honourable position of a solicitor in in the State of NSW". Mr Langford states that if the Applicant were to be granted a restricted practising certificate, he would be available to supervise him, provided he practised in the Cobar area.

Applicant's Submissions

In the following paragraphs we summarise the written submissions relied upon by the Applicant as well as the oral submissions made at the hearing.
The Applicant's submissions note that the Respondent resolved to cancel the Applicant's practising certificate and prohibited him from applying for a practising certificate for a period of five years, that five year period being the maximum period permitted under the Uniform Law: s 94. That is to say, the Respondent imposed the most extreme sanction upon the Applicant within its statutory powers. The submissions make the point that a five year cancellation imposed upon a solicitor, aged 71, is a far more serious sanction than a five year cancellation imposed upon a solicitor of youthful age. It will likely preclude the Applicant from practising again.
The submissions draw attention to the objectives of the Uniform Law as recorded in s 3. These objectives include the objective of ensuring lawyers are competent and that they maintain high ethical and professional standards and include the objectives of enhancing the protection of clients of law practices and the protection of the public generally.
The Applicant's submissions draw attention to the judgment of the High Court in Ziems v The Prothonotary of the Supreme Court of NSW (1957) 97 CLR 279. There, the High Court stated that the fact of conviction and sentence does not necessarily lead to the conclusion that the person is unfit to practice. Rather, it is necessary to "examine the whole position with meticulous care" (at page 288).
The judgment of the High Court in Ziems was cited with approval in A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 253. There, the Court referred, with approval, to the statements made by Kitto J in Ziems to the effect that there are many kinds of conduct deserving of disapproval and many kinds of convictions of breaches of the law which do not spell unfitness for the bar and to draw the dividing line (between those which do not spell unfitness and those which do) is by no means always an easy task.
The Applicant's submissions acknowledge that although the fact of a conviction and sentence is not necessarily sufficient to disqualify a person from the legal profession, the defects of character revealed by the criminal conduct and the disgrace flowing from conviction may be incompatible with practice. Fitness to practice requires an appreciation of the high degree of trust that the court, of necessity, reposes in legal practitioners and of their general and ongoing obligation of candour to the court in which they desire to serve as an "agent of justice": In re Davis (1947) 75 CLR 409. It is the task of the Tribunal to consider whether the conduct is of such a personally disgraceful character that the lawyer should not remain a member of an honourable profession: Re Wear [1893] 2 QB 439.
An order for removal from the roll is not punitive, but intended to be protective: Law Society of New South Wales v Bannister (1993) 4 LPDR 24. The object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct and an element in deterrence is an assurance to the public that lapses in the conduct of legal practitioners will not be lightly put aside but will be appropriately dealt with: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408.
The Applicant also submitted that the fact that the Applicant had pleaded guilty should be counted in his favour relying upon New South Wales Bar Association v Maddocks (unreported, NSWCA, 23 August 1988).
The question for consideration is present fitness, not fitness at the time of the crime: Prothonotary v DL Castillo [2001] NSWCA 75 at [71].
The Applicant's submissions state that her Honour's remarks on sentencing the Applicant are not dispositive but remain highly relevant to the Applicant's application before this Tribunal. The community corrections order to which he was sentenced reflects the fact that the offence was deemed to be of a lower objective seriousness and did not want any form of imprisonment. It reflects the fact that the conduct of the Applicant was a single and temporary absence of judgment that occurred in extenuating circumstances. It was not calculated to harm or derive a benefit and was a most unsophisticated act of dishonesty.
Counsel for the Appellant submitted that this case is unique in that the Applicant's motive in giving the advice he gave to Mr Betcke was not motivated by self-interest, but rather by concern for the well-being of his client. Generally other cases of this kind involved self-interest and/or greed. This case is exceptional.
The Applicant's counsel also submitted that we should accept the Applicant's affidavit where he states that following the death of Mr Black he went through a very stressful time. Counsel submitted that the stress experienced by the Applicant interfered with his sound decision-making. Counsel further submitted that we should have regard to the fact that the Applicant's offence was not accompanied by any detailed planning. It is true that there was a limited period to reconsider (between his conversation with Mr Betcke and his submissions to the court the following day) but this was during the period he was very stressed.
It is our task to determine whether the Applicant is presently unfit. Fitness is to be decided at the time of the hearing (Ziems, p 268).
Counsel for the Applicant submitted that the offending conduct should be understood in its proper context in which there were extenuating circumstances that indicate, despite the seriousness of the conduct, the Applicant was and remains a fit and proper person despite the proven offending.
Counsel for the Applicant took us to the judgment of the Court of Appeal in New South Wales Bar Association v Cummins [2001] NSWCA 284. That judgment makes clear the seriousness of the offence committed by the Applicant. On page 284, Spigelman CJ said: 19 Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. 20 There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
In Cummins, the Chief Justice cited with approval a portion of the judgment of Kirby P in New South Wales Bar Association v Maddocks (NSWCA, 23 August 1988, unreported)in which his Honour, Kirby P said that "normally removal is taken to imply a judgment that a person is forever, or at least indefinitely, disqualified from practising. If this is not the conclusion which the court has reached, it should stop short of removal." In Cummins, the Chief Justice referred to a long period (38 years) in which Mr Cummins had failed to lodge tax returns and concluded that Mr Cummins was permanently unfit to practice.
Counsel for the Applicant also took us to the decision of the Court of Appeal in Law Society of New South Wales v Foreman [1994] NSWCA 69; 34 NSWLR 408. In that judgment the Court of Appeal, by majority, ordered that the solicitor's name be removed from the roll. Kirby P in dissent favoured a suspension. Kirby P said that a relevant consideration in determining whether the solicitor should be removed from the role or suspended was redemption and rehabilitation. His Honour said that the community has an interest in encouraging the rehabilitation of those who lapse and to hold out to them the hope that, by diligent and honourable efforts over a period, their past may be forgiven and they may be restored to the good opinion of their family, friends, colleagues and society (page 419). Counsel for the Applicant submitted that, given the Applicant's age, the period of five years during which his practising certificate is suspended gives the Applicant no hope of redemption.
Further, counsel for the Applicant relied upon a passage in the Court of Appeal judgment in New South Wales NSW Bar Association v Meakes [2006] NSWCA 340. At [113] Basten JA said that: Whilst the court or tribunal making an order in disciplinary proceedings must "have squarely in mind the protective purpose of the order, public interest. That is not to say that the adverse (punitive) effect on the practitioner should be ignored; clearly no order should be made which has more serious consequences for the practitioner than is reasonably necessary in execution of the protective purpose.
Next, counsel for the Applicant referred to to the judgment of the Court of Appeal judgment in New South Wales Bar Association v Hamman [1999] NSWCA 404. In the judgment of Mason P, his Honour considered whether the appropriate order was a strike-off or a suspension. At [100] his Honour indicated his concurrence with remarks made by King CJ in Re a Practitioner (1984) 36 SASR 590 at 593 where the Chief Justice said: The proper use of suspension is, in my opinion, for those cases in which a legal practitioner has fallen below the high standards to be expected of such a practitioner, but not in such a way as to indicate that he lacks the qualities of character and trustworthiness which are the necessary attributes of a person entrusted with the responsibilities of a legal practitioner.
Counsel for the Applicant submitted that if the Applicant does not have a fundamental flaw in his character, then the appropriate order should be that of suspension. The need for deterrence would be met as he has already been suspended for approximately 18 months.
Counsel submitted that the evidence demonstrates that the Applicant accepts that his conduct goes to the heart of the administration of justice and that because it involved dishonesty to the court and occurred in the course of legal practice, his conduct has added gravity. Nevertheless, counsel submitted that there are compelling reasons for the Tribunal to vary the sanctions in the manner proposed by the Applicant. It is submitted that we should take into account the sentencing remarks of the magistrate and the statements made by the approximately 24 referees who attest to the Applicant's honesty, integrity and decades of service to the community. We should also have regard to the extenuating circumstances in which the conduct occurred. Further, we should have regard to the Applicant's long history of personal and professional life which attest to his fitness and character.
The Applicant submitted that the appropriate orders in substitution for those imposed by the Respondent are as follows: 1. That the Applicant is a fit and proper person to hold a practising certificate. 2. That the Applicant's practising certificate be suspended for a period of 12 months. 3. That after the conclusion of the suspension, the Applicant practice under the following conditions: 1. to practice under the supervision and/or mentorship of a legal practitioner(s) approved by the Respondent; 2. not to practice as a sole practitioner; 3. to undertake education, courses, and attendance at presentations and/or conferences focused on legal ethics within the first six months of resuming practice.

Respondent's Submissions

The Respondent's position is that the decision made by the Respondent should be affirmed on this review. The Respondent submitted that, even taking into account the sentencing remarks of her Honour Manea LCM (which were not available at the time of the decisions under review) the Respondent's decisions were correct and preferable having regard to the serious offence for which the Applicant was convicted (involving deliberate dishonesty in the practice of law).
The Respondent submitted that the questions for the Tribunal in reviewing the Respondent's resolutions are: 1. Firstly, whether the Applicant is a fit and proper person to hold a practising certificate, taking into account the serious offence for which he has been convicted and the statement and supporting material going to why, despite his conviction, the Applicant remains a fit and proper person to hold a practising certificate. 2. Secondly, the appropriate orders to be made with respect to the Applicants practising certificate, taking into account the serious offence for which he has been convicted. Pursuant to s 89(2)(b) of the Uniform Law, the Applicant's practising certificate may be varied, suspended, cancelled or refused to be renewed.
The Respondent's submissions point out that the factual background recorded at [3] to [7] of the Reasons for Decision issued by the Respondent on 15 November 2023 are presumed to be correct by operation of s 100(7)(b) of the Uniform Law.
The Respondent submitted that the question of whether a practitioner is a fit and proper person to hold a practising certificate is different to the question of whether a practitioner's name ought to be removed from the roll. As Spigelman CJ explained in New South Wales Bar Association v Murphy [2002] NSWCA 138; 55 NSWLR 23, the latter is based on "probable permanent unfitness" [61].
The Respondent submitted that central to the question of whether a practitioner is a fit and proper person to hold a practising certificate are considerations of the practitioner's honesty and integrity. In Cummins, Spigelman CJ said that the legal profession has long required the "highest standards of integrity": see [19]. The Chief Justice also said that the "judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people": see [20].
The Respondent submitted that the resolutions passed by the Respondent are the correct and preferable actions under s 89 of the Uniform Law having regard to the serious offence for which the Applicant was convicted which was fundamentally associated with the practice of his profession.
The Respondent's submissions refer to the sentencing remarks of Magistrate Manea and the Respondent submitted that her Honour made two findings that do not accord with the findings made by the Respondent in its reasons. Her Honour found that the offence fell at the lower end of objective seriousness and involved limited planning. In contrast, the Respondent found that the offending was objectively serious, particularly given that it was calculated to deceive and occurred in the course of practice. The Respondent submitted that her Honour's finding that the Applicant's conduct involved "limited planning" influenced her view that the conduct was at the lower end of objective seriousness. The Respondent takes a contrary view on the question of whether the Applicant's conduct involved limited planning.
With respect to the issue of whether the conduct involved limited planning, the Respondent concluded, in contrast to the conclusion of the learned Magistrate, that, while the offence may have been unsophisticated, an assertion that the offending was not planned nor calculated was at odds with the admitted facts. The Statement of Agreed Facts provides that the Applicant spoke to Mr Betcke on the afternoon of 27 October 2021 and then on the following day lied to the presiding Magistrate. The Respondent submitted that it was the Applicant who planned and then executed the conduct and that the Applicant had ample time and opportunity to reconsider his proposed course of action.
The Respondent's submissions refer to the Applicant's submission that the learned Magistrate's findings are consistent with the offending being an aberration (supported by the 24 references relied upon). In response, the Respondent submitted that, rather than being a temporary lapse of judgment, the conduct was specifically calculated to deceive the court. The conduct should be seen against the Applicant's overriding and paramount duty to the court and to the administration of justice.
The Respondent's submissions also referred to the fact that the Applicant's offending conduct is a matter of public record which reflects poorly on and impacts upon the reputation of the profession. As the Court of Appeal explained in Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 at [49], "The protective jurisdiction is concerned with more than protection of clients and other members of the profession; it is also concerned with protection of the reputation of the profession and the maintenance of public confidence in it".
The Respondent's submissions refer to the submissions of the Applicant to the effect that the offending occurred in extenuating circumstances. The Respondent's submissions refer to the decision in Legal Professional Complaints Committee v Rayney (No 2) [2018] WASAT 5 in which a legal practitioner swore a false affidavit and gave false evidence. There was evidence that the practitioner had suffered traumatic and distressing events and was under great stress. The Tribunal said that those matters do not justify or excuse the practitioner's conduct in knowingly giving false evidence intending to mislead the court. Similarly, in Legal Services Board v McGrath (No 2) (2010) 29 VR 235; [2010] VSC 332, Warren CJ gave judgment with respect to a practitioner with convictions for child pornography offences. Her Honour stated that the practitioner's conduct cannot be excused by any temporary mental condition.
The Respondent submitted that the above cases have application to the present matter. The circumstances in which the offending took place do not excuse the Applicant's conduct which was consciously and deliberately criminal and is incompatible with the honesty and candour required by members of the legal profession.
The Respondent's submissions refer to the Applicant's submissions concerning the contention that the Applicant's conduct was made on compassionate grounds. The Respondent submitted that that fact does not mitigate or minimise the offending conduct and that no concern for his client's interest could override the duty owed by the Applicant to the court and to the administration of justice. Further, there was ample time for the Applicant to reflect, rethink and correct the false position proposed to be put to the court.
The Respondent submitted that the public will not be sufficiently protected or other members of the profession sufficiently deterred from misconduct if the Applicant is allowed to maintain his practising certificate. His conduct reflects poorly on the legal profession and its reputation and warrants a finding that the Applicant is not presently a fit and proper person to hold a practising certificate. The only available conclusion regarding the Applicant's conduct is that he is not presently fit to hold a practising certificate.
The Respondent submitted that notwithstanding the Applicant's prior good character and the circumstances in which the offence occurred, the offending is such that the correct and preferable decisions were those made by the Respondent because the protection of the public outweighs other factors having regard to the serious offence for which the Applicant was convicted.
The Respondent submitted that the Applicant's written submissions do not adequately explain how the Applicant's proposed orders will serve the protective purposes of disciplinary proceedings in light of the Applicant's proposal that his practising certificate be suspended for 12 months which is patently inappropriate in light of the conduct considered as a whole and in circumstances where there is no evidence to support a conclusion that the Applicant would become fit to practice after 12 months. In response to the Applicant's proposal that he be permitted to practice under conditions involving supervision and to undertake education courses, the Respondent submitted that the conditions could not adequately serve the protective purpose of disciplinary proceedings in light of the gravity of the Applicant's conduct and conviction.
In short, the Respondent submitted that the Tribunal ought to affirm the decisions of the Respondent as recorded in the Respondent's decision of 13 November 2023

Consideration

The Applicant seeks review of the resolutions made by the Respondent pursuant to s 100 of the Uniform Law. That section provides: 100 Right of appeal or review about Australian practising certificates (1) An applicant for or the holder of an Australian practising certificate may, in accordance with applicable jurisdictional legislation, appeal to the designated tribunal against, or seek a review by that tribunal of, any of the following decisions of the designated local regulatory authority under this Chapter-- (a) a decision to refuse to grant or renew the Australian practising certificate; (b) a decision to vary, suspend or cancel the Australian practising certificate or, without limitation, to impose a condition on the Australian practising certificate; (c) a decision that a person is not entitled to apply for an Australian practising certificate for a specified period (see section 94). (2) An appeal or review under this section may be made to review the merits of the decision concerned. (3) The designated tribunal may make any order it considers appropriate on an appeal or review under this section, including any of the following orders-- (a) an order directing the designated local regulatory authority to grant, or to refuse to grant, an application for an Australian practising certificate; (b) an order directing the designated local regulatory authority to suspend for a specified period or cancel an Australian practising certificate, or to reinstate an Australian practising certificate that has been suspended or cancelled; (c) an order that an applicant or holder is not entitled to apply for the grant of an Australian practising certificate for a specified period not exceeding 5 years; (d) an order directing the designated local regulatory authority to vary an Australian practising certificate in the manner specified by the designated tribunal. (4) Except to the extent (if any) that may be ordered by the designated tribunal, the lodging of an appeal or application for review under this section does not stay the effect of the refusal, variation, suspension or cancellation concerned. (5) The designated tribunal may not order the imposition of conditions on an Australian practising certificate without first taking submissions from the designated local regulatory authority. (6) In proceedings on an appeal or review under this section, fresh evidence, or evidence in addition to or in substitution for matters considered by the designated local regulatory authority, may be given. (7) In proceedings on an appeal or review under this section in which the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue-- (a) the onus of establishing that a person is a fit and proper person to hold an Australian practising certificate is on the person asserting that fact; and (b) it is to be presumed in the absence of evidence to the contrary that any statement of facts in the reasons of the designated local regulatory authority for the decision concerned is a correct statement of the facts in the matter; and (c) a document that appears to be a document issued for the purposes of or in connection with any application, proceedings or other matter arising under the Bankruptcy Act is admissible in the proceedings and is evidence of the matters stated in the document. (8) The designated local regulatory authority is to give effect to any order of the designated tribunal under this section. Note: Jurisdictional legislation may provide a right of appeal against or a right of review of the designated tribunal's decision
As the Respondent's written submission stated, s 100 sets out some relevant principles which apply to the application for review. They include: 1. The review may extend to the merits of the decision: s 100(2). 2. The Tribunal may make any order it considers appropriate on a review: s 100 (3). 3. Fresh evidence, or evidence in addition to the matters considered by the Respondent, may be given: s 100 (6). 4. In proceedings, such as this, where the question of whether a person is a fit and proper person to hold an Australian practising certificate is at issue, the onus of establishing that fact rests with the Applicant and it is presumed in the absence of evidence to the contrary that any statement of facts in the reasons for the decision is correct: ss 100 (7)(a) and (b).
The task of the Tribunal is to decide what is the correct and preferable decision having regard to the material before it, including relevant factual material: s 63(1) of the ADR Act. Further, fact finding is to the civil standard, namely on the balance of probabilities. However, in view of the seriousness of the allegations the Tribunal should apply the principles in Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336 to its fact finding.
The background facts giving rise to the Respondent's resolutions are not in dispute. They are recorded earlier in this decision from [3]. Unsurprisingly, the Applicant's conduct led to the Applicant being charged with perverting the course of justice contrary to s 319 of the Crimes Act 1900 (NSW). As recorded earlier, the Applicant pleaded guilty to the charge and was convicted and sentenced to a community corrections order for a period of 12 months commencing 11 September 2023.
Again, unsurprisingly, the Respondent, on being informed of the Applicant's conduct (which came about as a result of a notice given by the Applicant to the Respondent), suspended the Applicant's practising certificate for the year ending 30 June 2023, such suspension taking effect from 31 January 2023.
We have described the consequences of the Applicant's conduct as unsurprising in the above paragraphs to reflect the fact that that conduct clearly and obviously breached fundamental obligations of a legal practitioner, both generally and in particular to the court. The relevant obligations of practitioners and the standards expected of them are not in dispute in these proceedings. They are explained in the judgment of the Spigelman CJ in the Cummins case referred to earlier in this decision.
The more difficult issue which arises for our determination is whether the Respondent is a fit and proper person to have a practising certificate. We have decided that the Respondent is a fit and proper person (albeit with conditions to which we refer subsequently) for the reasons that follow.
It is clear from the evidence put forward by the Applicant (and which was not contested by the Respondent) that the Applicant can justifiably point to a lifetime of service to his family, his community and to clients. Ignoring the events of 27 and 28 October 2021, all of the evidence concerning the Applicant reflects favourably on him as a person who puts the interests of others ahead of his personal interests.
As a young man, the Applicant gave up the prospects of a legal career to assist his mother in the operation of a hotel. The evidence is that, in the subsequent decades, he continued as a hotelier and was heavily involved in community activities. The number of referees willing to speak in his favour (knowing of the circumstances requiring their references) speaks favourably of the esteem in which the Applicant is held in his local community.
The force of the testimonials is that the Applicant's conduct on 27th and 28th October 2021 was out of character. The Applicant's counsel invited us to consider that conduct as an aberration. Although the conduct was clearly inconsistent with the conduct of a person who is fit and proper to be a legal practitioner, there are aspects of the circumstances in which the conduct occurred which we consider to have impaired the Applicant's judgment, meaning that we regard the conduct in question as "one off" aberrative behaviour. These aspects include the fact that the Applicant's conduct was not motivated by any sense of greed or other selfish interest. The evidence is that the Applicant had a genuine concern for the welfare of his client, which would be put in jeopardy were the client to be arrested the following day. That aspect is, of course, not an excuse for the Applicant's conduct.
Another factor is that the Applicant was under stress and affected by the recent death of the son of close friends. The Applicant also had an association with the driver of the vehicle in which the deceased person was travelling. A further aspect, which we consider relevant to our determination, is that we consider the Applicant's conduct to be a temporary lapse of judgment occurring over a relatively short timeframe. The Applicant was not aware of the need to speak to Mr Betcke until the morning of 27 October. He spoke to him in the afternoon in a conversation in which he told Mr Betcke he would lie to the Magistrate the following morning. Although there was ample time overnight to reflect on the wisdom of that plan, nevertheless, we accept the force of the submissions made on his behalf to the effect that he was experiencing a very stressful time.
The remarks that we have made concerning the fact that the Applicant was, at the relevant time, under a high level of stress are not intended to downplay the seriousness of his conduct which was entirely and fundamentally inconsistent with his obligations as a legal practitioner. Rather, the relevance of our remarks is that these factors satisfy us that the Applicant's conduct was an aberration and out of character. In short, we agree with the submission of the Applicant's counsel that the Applicant's conduct was a single and temporary absence or lapse of judgment occurring in extenuating circumstances.
Further, we are satisfied by what the Applicant has deposed to in his affidavit (Exhibit A) that he understands that his duty to the court and to the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty. He acknowledges that he made a serious error of judgment and his remorse is clear. He acknowledges the damaging impact his conduct has had on his work colleagues, his staff, his family, citizens of Cobar and, of course, his conduct has also damaged the legal profession and the administration of justice. Finally, by his conduct, the Applicant has damaged himself both mentally and financially.
All of these matters lead us to be confident that the Applicant will not offend again, that he will maintain the appropriately high standards expected of him as a legal practitioner and that, given his age, it would be appropriate to allow him some time to demonstrate that he is capable of conducting himself as a legal practitioner without further blemish.
Having examined the whole position with meticulous care (as required by the High Court in Ziems), we are satisfied that the conduct of the Applicant, whilst deserving unqualified denunciation, does not spell unfitness to resume legal practice. Our view is consistent with the approach of Mason P in Hamman.
Accordingly, we conclude that the Applicant is a fit and proper person to hold a practising certificate.
Nevertheless, despite the finding in the above paragraph, we are of the view that the reputation of the profession, and the protection of the public point to the necessity to impose conditions upon the Applicant's practising certificate in the form of those conditions proposed by the Applicant himself. We do not think that the Applicant should have a practising certificate until the conclusion of the 12 month community corrections order has been fully served. Further we think that the courses that the Applicant must undertake must not be insubstantial. We think they should involve a commitment of time of not less than ten hours.
We are of the view that the proposed orders coupled with publication of these reasons (which disclose how the Applicant's conduct has impacted upon him) operate as a sufficient deterrent to other practitioners.
The proposed orders constitute what we think is the correct and preferable decision in determining the application lodged by the Applicant, and the proposed orders have the effect of setting aside the resolutions of the Respondent.
Accordingly, we make the following declaration and orders: 1. That the Applicant is a fit and proper person to hold a practising certificate. 2. The Applicant's practising certificate continue to be suspended until such time as the community corrections order has been fully served. 3. That, after the conclusion of the suspension of the Applicant's practising certificate, the Applicant be issued with a practising certificate under the following conditions: 1. to practice under the supervision and as an employee of a legal practitioner approved by the Respondent; 2. not to practice as a sole practitioner; 3. to undertake education, courses and attendance at presentations and/or conferences focused on legal ethics within the first six months of resuming practice, such undertakings to require his attendance for at least a total of 10 hours.

I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 09 August 2024

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Judgment (10 paragraphs)

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Cases Cited (16)