Stanoevski v Law Society of New South Wales [2004] NSWCA 32 | Case summary

REASONS FOR DECISION Majority opinion of Acting Judge A Karpin and C Bennett 1 This matter was remitted to the Appeal Panel from the Court of Appeal (Stanoevski v The Council of the Law Society of New South Wales [2005] NSWCA 428), for the Appeal Panel to determine the proper dispositive orders to be made pursuant to professional misconduct findings made by the Appeal Panel in its decision handed down on 11 August 2004 (Stanoevski v Law Society of New South Wales (No2) (LSD) [2004] NSWADTAP 35), such orders to be in accordance with the reasons of the Court of Appeal. 2 The decision of the Appeal Panel was the determination of an appeal from a decision of the Administrative Decisions Tribunal dated 17 April 2003 (Law Society of New South Wales v Stanoevski [2003] NSWADT 77). 3 On 14 August 2003 the Appeal Panel granted leave to extend the appeal to a hearing on the merits. (Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33). 4 Accordingly, in determining the appeal, in addition to considering the evidence before the Divisional Tribunal, the Appeal Panel received evidence by way of reports from Dr Bruce Westmore, forensic psychiatrist, and from Ms Anita Duffy, forensic psychologist. The latter was required for cross-examination. 5 On 20 September 2004 the Appeal Panel ordered that the name of Liljana Stanoevski be removed from the Roll of Legal Practitioners in New South Wales, and that she pay the costs of the Law Society as agreed or assessed. That order, confirmed the order made by the Divisional Tribunal in the decision handed down on 17 April 2003. 6 The initial information was filed by the Law Society of New South Wales on 26 March 2002. That information was subsequently amended. For present purposes, only those allegations still on foot are recorded below. The information alleged that the practitioner was guilty of professional misconduct on the following grounds: 1. The Appellant has been guilty of undue delay in respect of handling the matter of the estate of Florence Evelyn Marks. 2. The Appellant attempted to mislead the Law Society, in respect of the estate of Florence Evelyn Marks, when she asserted in her letters to the Society dated 29 January 1993 and 12 March 1993 that the delay was due in part to the fact that Mrs Mechtler "refused to sign the probate papers" and when an affidavit as to renunciation was sent to her, she " took some considerable time to execute the paper". 3. Dismissed 4. The Appellant forged the signatures of Stanko Buldioski and Biljana Buldioski on consent orders dated 10 September 1991. 5. The Appellant misled or endeavoured to mislead the Society, in her letters dated 22 June 1992, 20 October 1992 and 23 November 1992 when she stated that both Stanko Buldioski and his wife came to her office and executed the documents before her. 6. The legal practitioner falsely attested the signature of Stanko Buldioski and Biljana Buldioski on Consent Orders dated 10 September 1991, filed in the Family Court. 7. The Appellant falsely attested the signature of Jocelyn Rita Fowler: (a) In respect of an Affidavit purportedly signed by Jocelyn Rita Fowler in the presence of the Appellant dated 27 January 1993, which affidavit forms part of the Answer and Cross-Application dated 27 January 1993 and filed in the Family Court on 4 February 1993. (b) In respect of the Affidavit of Jocelyn Rita Fowler, purportedly sworn in the presence of the Appellant on 27 January 1993, which affidavit forms part of the Statement of Financial Circumstances filed in the family Court on 4 February 1993. (c) In respect of the Affidavit of the Jocelyn Rita Fowler, purportedly sworn in the presence of the Appellant on 13 April 1993, which affidavit forms part of the Amended Answer and Cross Application dated 14 April 1993 and filed in the Family Court on 16 April 1993. 8. The Appellant misled or endeavoured to mislead the Family Court by filing the following documents in Court knowing that the Court would rely on them as being documents that had been witnessed appropriately when that was not the case: (a) Affidavit purportedly signed and sworn by Jocelyn Rita Fowler in the presence of the Appellant dated 27 January 1993, which Affidavit forms part of the Answer and Cross-Application dated 27 January 1993 and filed in the Family Court on 4 February 1993. (b) Affidavit of Jocelyn Rita Fowler, purportedly signed and sworn in the presence of the Appellant on 27 January 1993, which Affidavit forms part of the Statement of Financial Circumstances filed in the Family Court on 4 February 1993. (c) Affidavit of Jocelyn Rita Fowler, purportedly signed and sworn in the presence of the Appellant on 13 April 1993, which Affidavit forms part of the Amended Answer and Cross Application dated 14 April 1993 and filed in the Family Court on 16 April 1993. (d) Consent Orders dated 10 September 1991 purportedly signed by Stanko Buldioski and Biljana Buldioski. 9. Abandoned. 7 The information also alleged one count of Unsatisfactory Professional Conduct, being an allegation that: The Appellant delayed in handling a lease for the Lessors in respect of part of the premises at 170 Waldron Road, Chester Hill. 8 The Law Society sought orders that the Legal Practitioner's name be removed from the Roll of solicitors and that she be ordered to pay the costs of the informant of and incidental to the proceedings. 9 The Law Society's application was heard by the Tribunal over five days in December 2002. The Tribunal handed down its decision on 17 April 2003. (Law Society of New South Wales v Stanoevski [2003] NSWADT 77). 10 The Tribunal found the first allegation, being the allegation of undue delay in handling the Estate of Florence Marks, proved, but declined to find the practitioner, guilty of professional misconduct, adjudging the matter unsatisfactory professional conduct, suitable for a reprimand. In respect of the second allegation, the Tribunal found that the appellant's correspondence with the Law Society was misleading. It also found: " in her evidence, she was, in the Tribunal's opinion, prevaricating and evasive rather than being openly truthful and frank. She demonstrated, in this respect, no real contrition for the attitude which she had adopted in her correspondence in answering the Law Society's inquiries, and she did not demonstrate any real understanding that what she had done, in that respect, was wrongful, misleading and evidently so." 11 The Tribunal found, the appellant guilty of professional misconduct in respect of this allegation. 12 The Tribunal heard evidence from Mr and Mrs Buldioski and from the Appellant. Where there was a conflict in that evidence, the Tribunal preferred the evidence of Mr and Mrs Buldioski, and the forensic document examiner, Mr Anderson. 13 In respect of the evidence of the Appellant the Tribunal found: "At best, her evidence was a reconstruction of what she thought may or should have happened. The Tribunal is unable to place any reliance upon her recollection. " 14 Taking into account the whole of the evidence before the Tribunal, it was satisfied to the requisite standard that: (a) the signatures on the disputed documents were not those of Mr and Mrs Buldioski. (b) the signatures of Mr and Mrs Buldioski on the disputed documents were placed thereon by the appellant. (c ) the Appellant, misled or endeavoured to mislead the Law Society in correspondence when she stated that both Mr and Mrs Buldioski came to her office and executed the documents before her. The appellant falsely attested the signature of Mr Buldioski on the consent orders. (d) the Appellant misled or attempted to mislead the Family Court by filing the consent orders bearing the signatures. 15 Relying upon findings (b) (c) and (d), the Tribunal found that the Appellant was guilty of professional misconduct. 16 In respect of the allegations concerning Mrs Fowler, the Tribunal found that the Appellant's evidence was prevaricating, inconsistent and evasive. It found further that (a) the signatures on the documents, purporting to be those of Mrs Fowler, were not hers; (b) the Appellant falsely attested those signatures; ( c) the Appellant misled or attempted to mislead the Family Court by filing the documents with the Court. The Tribunal held that findings (b) and (c) constituted professional misconduct. 17 The Tribunal found: "…professional misconduct, which, by any standard, was disgraceful…. that the conduct in which the appellant engaged was grave conduct was not one isolated incident but occurred on a number of occasions, and over a period of time. " [para.75] 18 The tribunal found further: "As has been found in relation to the matter of Marks and the matter of Buldioski the appellant endeavoured to mislead the Law Society when confronted with the allegations. The affidavit which she filed in these proceedings, particularly in relation to Mrs Fowler was also in the Tribunal's opinion misleading and materially so. The appellant's oral evidence to this Tribunal has in the Tribunal's opinion, been less than frank. As noted above in relation to the Marks matter, whilst some concessions were belatedly made, her oral evidence indicates that the Appellant in relation to that matter, and in relation to the other matters where adverse findings have been made has failed to show any contrition at all or any appreciation of the gravity of her conduct. By way of example only she blithely offers as an attempted explanation in the Fowler matter that perhaps the affidavits were signed and brought into her and she then (falsely) attested the document. She puts this forward without compunction or acknowledgement that that sort of conduct is totally unacceptable." [para.76]. 19 The Tribunal expressed some concern about the length of time that had elapsed between the events the subject matter of complaint and the matter coming before the Tribunal. 20 The Tribunal referred to the evidence, which it accepted, regarding the stress and personal difficulties suffered by the appellant together with the medical evidence relating to those stress factors. The Tribunal then said: "While the appellant undoubtedly was suffering from stress and depression at the time, the Tribunal did not understand either her or the counsel to put that forward as an explanation for her conduct, or as a justification for it. The Tribunal does, however, take it into account."[para. 73] 21 Finally, the Tribunal found: That the appellant is not now a fit and proper person to remain on the roll. To come to any other conclusion would involve… a real risk of harm to the public and the administration of justice in this State. [para.77] 22 The Tribunal ordered that the name of the Appellant be removed from the Roll of Legal Practitioners and that she pay the costs of the Law Society as agreed or assessed. 23 The Appellant appealed that decision to the Appeal Panel of the Administrative Decisions Tribunal, which granted leave to extend the appeal to a hearing on the merits. The Appeal Panel accepted that in the hearing before the Tribunal, the Appellant had intended the Tribunal to take into account evidence of her stress and depression as matters relevant to, and explaining or justifying her conduct. 24 The Appeal Panel, in a decision handed down on 14 August 2003 (Stanoevski v Law Society of New South Wales [2003] NSWADTAP 33) found that the Divisional Tribunal, had made an error of law in failing to appropriately take into account the subjective circumstances of the Appellant, or to make findings dealing with the submissions advanced on behalf of the appellant, to the effect that her mental state and subjective circumstances provided an explanation or justification for her conduct. The Appeal Panel found that this error of law "… could have affected the Tribunal's decision." 25 In its decision handed down on 11 August 2004, the Appeal Panel said: On the whole of the evidence we are convinced that the findings of the Divisional Tribunal were correct, and we concur in them. The signatures on the disputed Consent Orders, and in particular, on the one that was finally accepted for filing in the family Court, were clearly not signed by Mr or Mrs Buldioski. The signatures were placed there by the appellant. Her attestation of the signatures was false. The three letters that she wrote to the Law Society, in which she clearly stated that the Buldioski's had signed in her presence were deliberate attempts to mislead the Law Society. She deliberately misled the Family Court by filing a document purporting to be signed by the parties when it had in fact not been signed by them, but by her. Each of those matters constituted professional misconduct. [para.86]. 26 Later, the Appeal Panel said: On the other hand, in making those findings, we have found ourselves forced to the conclusion that we could not accept her sworn evidence. For example, the evidence that the documents may have been placed in front of her already signed is contradicted by her own letters to the Law Society, by her Reply and by her affidavit. It follows from our findings that she has attempted to mislead the Tribunal by giving false evidence, in particular, by denying that she placed the signatures of the Buldioskis on the documents, and that fact must be taken into account when deciding on the proper order to be made. [para.88]. 27 In respect of the Fowler allegations the Appeal Panel said in part: It is clear from the appellant's own evidence that she was prepared to attest signatures on an affidavit when they had not been signed in her presence. Even if it were accepted that she had done so, that would have been serious misconduct in itself, and would have led to the misleading of the Family Court. We however do not believe that evidence. It is contradicted by her own Reply. We do not accept that there is any ambiguity in her affidavit, and that also contradicts it. It is clear on any view of the evidence that Mrs Fowler did not sign the affidavits. There is simply no evidence about who it was, who did sign them. [para.105]. 28 As was noted by the Appeal Panel, part of the complex of events involved the Appellant being charged in April 1993 with conspiracy to cheat and defraud. It was alleged that she had conspired with two of her employees to stage the theft of her motor vehicle in order to obtain money from the insurer. On 7 March 1997, a District Court jury found her guilty on that charge. She was sentenced to a period of nine months home detention. She appealed that decision to the New South Wales Court of Criminal Appeal, which dismissed her appeal on 24 February 1998. She applied to the High Court for leave to appeal, which was granted on 10 December 1999, and heard on 5 September 2000. On 8 February 2001, the High Court allowed the appeal, quashed the conviction, and ordered a new trial. Because she had already completed her sentence, the Director of Public Prosecutions determined that she should not be put on trial again. Thus she does not have a criminal conviction. Her previous conviction and sentence are relevant to these proceedings only insofar as they were events which caused substantial stress and had an adverse impact on the mental and emotional condition of the appellant. 29 After reviewing the evidence before the Divisional Tribunal, together with the additional evidence adduced before the Appeal Panel, being the reports of Dr Bruce Westmore, psychiatrist, and Ms Anita Duffy, psychologist, the latter being required for cross examination, the Appeal Panel confirmed the findings of professional misconduct. The Appeal Panel acknowledged that the appellant had not sought to obtain any improper financial gain by her conduct, nor had she sought to harm either her clients or anyone else. The Panel found, however, that she had engaged in deliberate conduct in filing documents in the Family Court, and thereafter misleading the Law Society concerning her conduct in relation to the matters under investigation. In arriving at its decision, the Appeal Panel took account of the Appellant's emotional stress and personal difficulties at the time the misconduct occurred. 30 The Panel stood the matter over for argument on the issue of appropriate penalty. That argument was heard on 20 September 2004. 31 The Appeal Panel delivered its decision on that day. The Panel found that the psychological condition and stresses in the personal life of the Appellant explained, substantially, the original acts of misconduct. The Panel noted that she did not obtain any personal advantage by her actions. It noted that she had not been able to practice, except for a short period, for approximately 7 years. 32 The Panel then proceeded to the deal with a submission that the Briginshaw [Briginshaw v Briginshaw (1938) 60 CLR 336] test should be applied to the determination as to the appropriate dispositive order. That submission was rejected by the Panel, which decision was upheld in the Court of Appeal. 33 The Tribunal then dealt with the argument advanced by counsel for the Appellant, that if they were to take into account findings that the Appellant gave false evidence to the Tribunal at first instance, she would be deprived of procedural fairness. The Tribunal said: In our view, the possibility of our making such findings was clearly in prospect during the hearing and in argument before us. In addition, there has been the period between our publishing our findings of fact, and the hearing of submissions about the proper order to make. 34 The Appellant's argument on this ground ultimately found favour with the Court of Appeal. 35 In giving its decision, the Appeal Panel dealt with the issue of fitness to practice as follows: The objective conduct that we have found could justify an order striking off, but does not mandate it. All the circumstances must be taken into account, and the decision to be made concerns the practitioner's fitness to practise at today's date. One of the matters that has had weight with us is that the appellant has not availed herself of the opportunity to give evidence before us about her present fitness to practise. There is evidence's from Ms Duffy, that one of the significant stresses presently operating is her inability to practise, and that her condition would be alleviated if she were allowed to be a lawyer in some way. She has acknowledged and expressed her regret with respect to the delay matters and the misleading letters in the Marks estate. However, despite the findings about the objective facts made by the Tribunal below, and the course of the hearing before us, she has adhered to her version denying the forgery of the signatures in the Buldioski matter and altering her explanation of the false attestations in the Fowler matter. There is no admission by her that she has given false evidence, and there is no evidence before us acknowledging her misconduct in that regard. The testimonials submitted also predate the findings of the Tribunal below. There has been no attempt to place before us material that takes into account those findings, or indeed, our findings, despite the period of time since those findings were published. In all the circumstances, we are convinced that the Law Society has demonstrated that the appellant is not now fit to practise. 36 The Appeal Panel ordered that the Appellant's name be removed from the Roll and that the Appellant pay the Law Society's costs. 37 The Appellant, pursuant to the provisions of s 119 Administrative Decisions Tribunal Act 1997, appealed to the Supreme Court. That section provides a right of appeal to the Supreme Court on questions of law. 38 On 6 December 2005 in the Court of Appeal, Mason P., with whom McColl JA, and Brownie AJA, agreed, delivered judgment. (Stanoevski v The Council of The Law Society of New South Wales [2005] NSWCA 428) The Court made the following orders: 1. Appeal allowed in part. 2. Set aside the orders of the Appeal Panel of the Administrative Decisions Tribunal made on 20 September 2004. 3. Remit the matter to the Appeal Panel for the question of proper orders to be made in light of the findings of professional misconduct to be decided again in accordance with the reasons of the Court of Appeal. 39 The Court of Appeal rejected the first argument advanced by counsel for the Appellant, to the effect that the Appeal Panel had demonstrated an error of law in declining to apply the Briginshaw standard in determining whether striking off was an appropriate penalty having regard to the findings of professional misconduct. 40 The second argument advanced, however, found favour with the Court of Appeal. That concerned a finding by the Appeal Panel that the Appellant gave false evidence before the Divisional Tribunal. 41 In finding in favour of the Appellant on this ground the Court said: The appellant's alternative attack stands on firmer ground. The material already summarised shows that the Appeal Panel took into account the conclusion reached in its second Decision that the appellant had given deliberately false evidence before the Divisional Tribunal. Indeed, in the third Decision itself, the Tribunal regarded adversely the failure by the appellant to admit that she had given false evidence or to acknowledge "her misconduct in that regard". [para 50]. 42 The Court pointed out that there had been no attempt by the Law Society, in the hearing before the Appeal Panel, to enlarge the grounds of professional misconduct to take into account an allegation that the Appellant had given deliberately false evidence before the Divisional Tribunal. 43 The Court pointed to the fact that the Tribunal had made no such finding, and there was "a live issue on the psychiatric evidence as to the reasons why the appellant may have been an unimpressive witness." [para 51]. 44 Further, the court held: The Law Society had a lot of material it could point to in seeking to persuade the Appeal Panel to come to the same position as the Divisional Tribunal as regards the appellant's credibility. The well-known principles concerning the advantage of the trial Judge summarised in Fox v Percy (2003) 214 CLR 118 were very much in play. The appellant faced a particularly uphill battle when she elected not to give evidence before the Appeal Panel despite its ruling, to extend the review to the merits and permit fresh evidence to be called. [para 52] There was and is ample material that could justify a strike-off order even if the deliberately false testimony is factored out. Indeed, subject to procedural fairness, I see no reason why the Law Society may not argue that the appellant's "lack of candour" as a witness before the Administrative Tribunal may be a factor going to continuing fitness to practise. But the duty of procedural fairness must be observed. Failure to have done so vitiates the strike-off order. [para 54]. … it is not appropriate for this Court to do other than remit the matter to the Appeal Panel for the question of dispositive orders to be decided again in accordance with the reasons of this Court. The Appeal Panel heard the oral evidence of Ms Duffy. There is a live issue as to what the psychiatric evidence reveals as to present fitness, as well as unresolved issues about supplementing and updating material going to that matter. I imply no view as to whether it is open to the appellant to recant as to her decision not to give evidence on any issue before the Appeal Panel, and to rely on the issues joined before the Appeal Panel, including those raised by the testimony of the two psychiatric experts. Much of their evidence was unchallenged, a comment that looks in both directions given the matters they addressed. [para 56]. 45 The terms of that final paragraph, make it clear that the Court of Appeal, anticipated that the matter would be remitted to the Appeal Panel as it was constituted in handing down the decision on 20 September 2004. 46 When the matter returned to the Administrative Decisions Tribunal, the Appellant sought to have the original Appeal Panel disqualified from hearing the matter further on the grounds that any decision of that Panel would be tainted by the errors of law identified by the Court of Appeal. The Respondent acquiesced in that submission. A newly constituted Appeal Panel dealt with the matter remitted from the Court of Appeal. 47 Fresh evidence was taken. The Law Society, called Dr Robert Gertler, psychiatrist, and tendered his report dated 17 July 2006. Dr Gertler was cross-examined. The Appellant gave evidence, as did Ms Anita Duffy, psychologist. The matter occupied 2 days of hearing before the newly constituted Appeal Panel. 48 Thus, in arriving at its decision, the presently constituted Appeal Panel is required to take into account the evidence before the Divisional Tribunal, and the findings of the Tribunal, to the extent that its decision was either not challenged, or was upheld by the decision of the first Appeal Panel; the decision of the first Appeal Panel, insofar as it was substantially upheld by the Court of Appeal; the decision of the Court of Appeal; and, finally, the fresh evidence adduced before this Appeal Panel, and the submissions from counsel. 49 This Panel agrees with the submission of counsel for the Law Society, that in determining the dispositive orders remitted from the Court of Appeal, the Panel is at liberty to consider the evidence that has been adduced over the protracted history of these proceedings in the Administrative Decisions Tribunal. 50 The findings of professional misconduct are not in issue. The matter to be determined is whether or not the Appellant is presently a fit and proper person to hold a practising certificate. There can be little doubt that at the time of the events giving rise to these long running proceedings, the Appellant was not a fit and proper person to be permitted to practise as a solicitor. There is persuasive evidence that she was not a fit and proper person as at 2002 when the matter was before the Divisional Tribunal. That is accepted by the Panel. It is not, however, conclusive of the issue to be determined. The evidence given by the Appellant in 2002 is part of material the Panel will have to consider in determining whether or not she is presently a fit and proper person to be on the roll of legal practitioners. 51 The Court of Appeal pointed to the difficulty faced by the Appellant when she opted not to give evidence before the Appeal Panel. The Appellant chose to give evidence before the present Appeal Panel, thus giving the members the opportunity to make an assessment of her present response to the findings of fact previously made, and which are not now in dispute. It provided an opportunity to assess the extent to which the appellant is now able to make frank admissions concerning those matters which have been found proved on the evidence. 52 There is no dispute that the findings of fact made by the Divisional Tribunal are correct. That Tribunal, having heard the evidence of Mr and Mrs Buldioski, Mr Anderson, the handwriting expert, and Mrs Fowler, found that the signatures of Mrs Fowler and Mr and Mrs Buldioski were forged. The Appellant forged the signatures of Mr and Mrs Buldioski. The Appellant falsely attested the signatures of Mr and Mrs Buldioski. The Appellant falsely attested the forged signature of Mrs Fowler. She deliberately misled the Law Society about the Marks Estate, and about the Buldioskis, or, she deliberately sought to mislead the Society. 53 The essential evidence arising in that hearing, with which this Appeal Panel needs to concern itself, is the evidence of the Appellant given on the 11th and 12th December 2002. 54 Counsel for the Law Society first asked the witness about her current state of mind. She said she was not depressed, was not taking any kind of antidepressant medication, and it had been well for approximately the previous four years. Ultimately, she agreed that at least over the preceding two years there had been no psychological impediment to her giving proper consideration to the subject matter of the complaints against her. 55 It was put to her that in her evidence that day, she had, for the very first time, admitted that she had intentionally misled the Law Society in the matter of the Marks Estate. She was shown a letter which she had written to the Law Society following upon the complaint regarding her handling of the matter. In that letter, dated 29 January 1993 she said, in part: Ms Mechtler refused to sign the probate papers, and it took Ms Mechtler some considerable time to execute the paper, that is, the renunciation which was sent to her. 56 It was put to her that those statements were completely untrue. To which she responded: I don't know whether they were untrue or not. I was not used to dealing with complaints to the Law Society. I had no idea what to do. 57 When it was put to her that she was suggesting in her letter that Mrs Mechtler took a substantial time to send back the papers, she said was not sure what she was suggesting in that letter. 58 It is not in dispute that Mrs Mechtler responded to correspondence from the Appellant promptly, and that any suggestion she caused delay in the matter is untrue. 59 After further cross-examination on this issue, she was asked whether or not she admitted that the letter of 29 January 1993 contained statements which, to her knowledge at that time, were untrue. The Appellant responded: I don't know whether at the time they were known to be - whether they were known to me to be untrue. I don't think, I had - I was in any position to make any balanced response to the Society. In view of my emotional condition. And in hindsight, 10 years down the track, I think the letter clearly reflects that it wasn't the proper response to the Society at the time. I admit that. I don't think I was in any position then to make any balanced reply to the society. 60 Later, having conceded that she misled the Society, she was asked whether it might have been an inadvertent error. She said: I don't know whether it was inadvertent or not. I didn't - I didn't want to mislead the Society. I didn't want to get into any strife. I liked being a solicitor . 61 On 5 October 1994, the Appellant's solicitor wrote to the Law Society concerning the complaints regarding the Marks Estate. That letter contains an admission that the Appellant's handling of the estate amounted to unsatisfactory professional conduct. It conceded that the delay resulted from the Appellant's lack of experience in Probate matters. It enclosed a cheque representing a refund of the costs charged by the Appellant for the work in the estate matter. It also, in relation to the false explanations, previously advanced to the Law Society, contained the following explanation: Prior to instructing us Ms Stanoevski completely misconceived her responsibilities in responding to inquiries made of her by the Society. When she wrote her letters in January and March, 1993, she erroneously believed that it would be in her interests to adopt an adversarial stance with regard to the complaints made to the Society by Mr Marks, and the Society's inquiries of her arising out of such complaints. She now appreciates that she had a duty to co-operate with the Society. 62 Despite those admissions, the Appellant's solicitors in a letter to the Law Society of 2 December 1994 said: "Ms Stanoevski does not concede that in her letters to the Society she deliberately attempted to mislead. As stated to you in our letter of 5 October, 1994 (she) did not previously understand her responsibilities in responding to enquiries from the Society." 63 Thus it appears that the giving of a false account of the circumstances which lead to delay in the administration of the Marks Estate, was to be seen only as arising from the Appellant's misunderstanding of her duties as a solicitor to give a truthful response to enquiries from the Law Society. 64 On the issue of the documents purportedly signed by the Buldioskis and attested by the Appellant, she initially confirmed the statement made in her letter to the Society of 22 June 1992, in which she denied that the signatures on the documents were forged and unequivocally stated that they were signed in her presence and attested by her. After some cross-examination on this issue, she was asked if it was her position that Mr and Mrs Buldioski had signed the consent orders in front of her, to which she replied: I'm not sure whether they signed in front of me, or whether the documents were brought in signed by them ... 65 That statement cannot stand with her assertion in the 22 June 1992 letter when she says: We fail to see how we could have forged the signature of the complainant, and his wife as they both came in our office and execute the necessary documents before me. The simple fact is that Mr Buldioski is a liar who does not wish to pay his account, and well (sic) find any excuse to elude the payment of the outstanding account. 66 There followed a lengthy cross-examination of the Appellant concerning the signatures on the Buldioski documents. The appellant consistently denied that she had forged the signatures on those documents. In relation to the Consent Orders, she agreed that she had written to the Law Society, asserting unequivocally that Mr and Mrs Buldioski had signed the documents in her presence. She told the Tribunal that assertion was based upon her actual recollection, at the time she wrote the letter, of the Buldioskis signing the Consent Orders. The evidence of Mr and Mrs Buldioski, and the handwriting expert Mr Anderson, was accepted by the Divisional Tribunal, leading to a finding that the purported signatures of Mr and Mrs Buldioski were forgeries perpetrated by the Appellant. That finding has not been successfully challenged and, accordingly, stands as a matter of fact to be taken into account by this Appeal Panel. 67 In relation to the allegations concerning the forged signature of Mrs Fowler, the Appellant, in her affidavit sworn 1 August 2002 filed in the original proceedings before the Divisional Tribunal, asserted that: Mrs Fowler signed that document, and I witnessed her signature. I deny forging Mrs Fowler's signature. 68 That assertion is repeated in respect of each of the documents purportedly signed by Mrs Fowler, but which were found by the Divisional Tribunal to be forgeries. 69 There was, again, a lengthy cross-examination in relation to what precisely the Appellant intended by that statement in her affidavit and in correspondence with the Law Society. When asked if in using the words set out above, she intended to convey that she actually saw Mrs Fowler sign, she said. "No". 70 The following cross-examination ensued: Wales: how could you witness someone's signature, and didn't see them sign? Witness: it's possible Wales: It is possible. How do you do that? Witness: if the document had been bought in signed, and I witnessed the client's signature, she would have probably been outside in the reception. Or I had clients with me. I don't know the circumstances. I can't recall. 71 When questioned further, the Appellant asserted that Mrs Fowler did sign the document. When asked how she knew that, she said that the document was "held out to me to be her signature that she had signed." When asked by whom, she said that it was one of the secretaries, but she could not recall which one. A scenario was suggested by counsel - that Mrs Fowler had attended her office, where a secretary forged Mrs Fowler's signature, which was then put in front of the Appellant to witness. She responded. "It's possible". 72 In summary, it is evident that the Appellant was prepared, in December 2002, giving evidence before the Divisional Tribunal, to dispute: that she had forged the signatures of Mr and Mrs Buldioski; that she had falsely attested those signatures; that she had tendered those documents in the Family Court, thereby misleading the Family Court; that she had falsely attested the signature of Mrs Fowler, and tendered those documents in the Family Court, thereby misleading that court; she disputed also that it was her intention to mislead the Law Society in correspondence concerning the Marks Estate. 73 There is substantial evidence to support the findings arrived at by the Divisional Tribunal to the extent that those findings have been upheld by the first Appeal Panel and by the Court of Appeal. There was ample evidence to support the Panel's decision to strike the Appellant's name from the roll of legal practitioners. 74 This Appeal Panel, having reviewed the evidence available to the Divisional Tribunal and to the first Appeal Panel, is satisfied that at the time of the events constituting the findings of misconduct; at the time of the hearing before the Divisional Tribunal; and at the time of the hearing before the first Appeal Panel, the Appellant was not a fit and proper person to hold a practising certificate; she was clearly guilty of professional misconduct, and having regard to the obligation of the Tribunal to protect the interests of the public, the only appropriate order was an order that her name be removed from the roll of legal practitioners. Those were the appropriate orders giving due weight to the substantial subjective matters advanced on behalf of the Appellant. 75 The Appellant's decision not to give evidence before the first Appeal Panel, left that Panel with only the Appellant's evidence before the Divisional Tribunal, which required to be assessed having regard to fresh medical and character evidence. This Appeal Panel is satisfied that a review of the evidence then available, would lead inevitably to an order striking the Appellant from the roll. 76 That was the position. The question now, is whether or not the Appellant is a fit and proper person to hold a practising certificate, determining that issue in compliance with the reasons of the Court of Appeal, and taking in account the fresh evidence adduced before the presently constituted Appeal Panel. 77 The substantive findings of fact made by the first Appeal Panel were not successfully challenged in the Court of Appeal. The matter was remitted to the Appeal Panel of the Administrative Decisions Tribunal "for the question of dispositive orders to be decided again, in accordance with the reasons of this Court." 78 It is important to bear in mind the ultimate findings of the Court of Appeal on this issue: 50 The appellant's alternative attack stands on firmer ground. The material already summarised shows that the Appeal Panel took into account the conclusion reached in its second Decision that the appellant had given deliberately false evidence before the Tribunal at first instance. Indeed, in the third Decision itself, the Tribunal regarded adversely the failure by the appellant to admit that she had given false evidence or to acknowledge "her misconduct in that regard". 51 The transcript from the first instance hearing shows that the appellant's credibility was strongly challenged in cross-examination and submissions. That challenge was maintained before the Appeal Panel where submissions that the appellant had not been frank in her testimony were repeated. But what did not occur before the Appeal Panel was any enlargement of the grounds of professional misconduct charged or any submission that put into the ring before the Appeal Panel the question whether the appellant had given deliberately false evidence before the Tribunal (cf Smith v New South Wales Bar Association (1992) 176 CLR 256, Barwick v Council of the Law Society of New South Wales [2004] NSWCA 32, (2004) Aust Torts Rep ¶81-370 at [109]). The divisional Tribunal had made no such finding and there was a live issue on the psychiatric evidence as to the reasons why the appellant may have been an unimpressive witness. 52 The Law Society had a lot of material it could point to in seeking to persuade the Appeal Panel to come to the same position as the Tribunal at first instance as regards the appellant's credibility. The well-known principles concerning the advantage of the trial judge summarised in Fox v Percy (2003) 214 CLR 118 were very much in play. The appellant faced a particularly uphill battle when she elected not to give evidence before the Appeal Panel despite its ruling to extend the review to the merits and permit fresh evidence to be called. 53 As indicated, the Grounds of the Information were never amended. We were taken to passages in the submissions before the Appeal Panel. They do not support the submission that the proceedings before the Appeal Panel were treated as a hearing de novo in the sense that the Law Society had to establish its case afresh (see eg Black 367, 413-4). Nor do they show that the parties ran the review on the merits as if a charge of false swearing were before the Appeal Panel, either generally (or as one would have expected) in identified particulars. 54 There was and is ample material that could justify a strike-off order even if the deliberately false testimony is factored out. Indeed, subject to procedural fairness, I see no reason why the Law Society may not argue that the appellant's "lack of candour" as a witness before the Administrative Tribunal may be a factor going to continuing fitness to practise. But the duty of procedural fairness must be observed. Failure to have done so vitiates the strike off order (Stead v State Government Insurance Commission (1986) 161 CLR 141 at 145-6). The Medical Evidence 79 In fresh evidence before the newly constituted Appeal Panel, the Law Society tendered the report of Dr Robert Gertler dated 17 July 2006, together with the letter of instructions from the Law Society of 7 June 2006, and Dr Gertler gave evidence. Whilst much of that evidence was directed to whether or not the Appellant deliberately misled the Law Society in the letters she wrote asserting that she saw the Buldioskis sign the documents, it must be remembered that, leaving aside the finding by the Divisional Tribunal, there has been a finding by the Appeal Panel that the Appellant deliberately misled the Law Society. That finding was upheld in the Court of Appeal. 80 When Dr Gertler interviewed the Appellant on 12 July 2006, she denied she was depressed and Dr Gertler observed no signs of clinical depression. Dr Gertler's report said in part: With regards to the Buldioski matter, Mrs Stanoevski, informed me that following the miscarriage some months after her marriage, she continued working. She did not mention at this interview, that she had been depressed at that time, rather that she was extremely busy in her practice. Moreover, she was able to describe certain aspects of her contact with Mr Buldioski, e.g. the signing of documents in her office; it is unlikely that Mrs Stanoevski could have had no recollection of forging the Buldioski signatures yet recall other aspects of that contact. … it is unlikely that when Mrs Staneovski wrote the letter to the Law Society on 22 June 1992, denying that she had forged the signatures of Mr and Mrs Buldioski, that she had no recollection of having forged those signatures some nine months previously. Again, if she could recall her contact with Mr and Mrs Buldioski at the time, then it is highly unlikely that she would have selectively failed to recollect forging the signatures. 81 In evidence, Dr Gertler substantially adhered to that opinion, saying: It's unlikely that she, in my opinion, that she would have forgotten all of those incidents, incidences, particularly as time progressed, and, presumably, she got over the effects of the miscarriage, whatever they were. 82 Under cross-examination, a scenario was put to Dr Gertler that the Tribunal may permit the respondent to practice, upon certain conditions, including that she be an employed solicitor, and if in his view, the personality trait she had exhibited in which she "tended to avoid facing unpleasant emotions by utilising denial and distraction", could be monitored by her employer. In Dr Gertler's view, it would, "depend very much on the extent of the work, the work pressure that she was under basically." 83 Later, Dr Gertler said: "I think it just stands to reason that she should avoid being in situations where she is stressed, because there's always the risk that she could again become depressed, and that might affect the level of functioning. It might not … if she were to go back to work in a supervised situation and then the amount of work she was given was somehow controlled, then they would certainly minimise the risk of anything happening again." He agreed, however, that there was always a risk of the respondent regressing. 84 Five reports prepared by Ms Anita Duffy, forensic psychologist were put in evidence, and Ms Duffy gave evidence. She said that if the Appellant denied that she was depressed in December 2002, that would evidence both denial and lack of insight, as in her opinion, the Appellant was depressed at that time. She believed that when she last saw the Appellant in May 2006, she was not depressed. She said that the Appellant has a character trait, which is marked by a reluctance to admit fault or wrongdoing on her part. This is not a component of her depressive state. Ms Duffy agreed that the actions taken by the Appellant in the various complaints before the Divisional Tribunal were reflections of her character trait and her inability to admit she had made an error. Ms. Duffy saw that as a continuing character trait. 85 Ms Duffy was, however, of the opinion that provided the Appellant was employed in a structured, supervised, and not stressful legal position, she would, in effect, be able to manage. The regime, she suggested would require very close supervision, as she put "so that there isn't that room for error and overwhelming her with too much work and checking up all the way." 86 The Appellant gave evidence. She was asked about her mental state in the period October to November 2002. She said it was good. She was not depressed. She confirmed that in her view, in the four years prior to December 2002 she didn't suffer any psychological impediment. She was then taken at some length through evidence relating to the Buldioski matter. Initially, she said in relation to those allegations: I don't believe that I would have done that, but I've got no recollection. I accept the evidence before the Tribunal. 87 She was asked a number of questions about her acceptance of the evidence before the Divisional Tribunal, from which it transpired that initially she did not accept the evidence of Mr and Mrs Buldioski, nor, indeed, of the handwriting expert. She wanted to hear the actual findings of the Tribunal. 88 She was asked: So you say that despite the evidence of Mr Buldioski, and Mrs Buldioski and the forensic document examiner, Mr Anderson for the Society, coupled with the fact that you had declined to put forward any evidence from Mr Westbrook (the handwriting expert retained by the appellant), that those matters did not lead you to the view that you must be mistaken in your assertion that the signatures were genuine? Answer: I believed them to be genuine. I found the Buldioskis to be not quite frank… 89 Following some further questions, she said: I accept the evidence that they gave in this Tribunal. Question: What does that mean? Answer: It means exactly what I said. Question: Does it mean that you accept that the signatures were not genuine? Answer: No, I accept that they came along and gave evidence that they didn't sign. 90 After a lengthy cross-examination on this topic which covers several pages of transcript in somewhat similar terms, the following exchange took place: Question: You say, do you, that as at today's date you accept that what the Buldioskis asserted was correct, namely, they didn't sign the disputed documents, and that you did? Answer: I accept that they say that they didn't sign them, but I don't accept that I forged it. I've got no recollection of that or the events that happened at that time. Question: So you say, do you to this Appeal Panel that you don't accept that as a matter of fact, you forged those disputed Buldioski signatures? Answer: I accept the expert evidence that it's possible that I may have done it, but I don't believe, myself, that I did that. I don't know what happened at that time. If I had been rational and worked properly at that time something like that wouldn't have happened. 91 The Appellant was then asked a number of questions about the Fowler matter. She was asked about her evidence before the Divisional Tribunal to the effect that a possible explanation for the Fowler attestation was that the document had been brought to her by one of her secretaries, already signed, and she had then placed her signature on the document as a purported attestation. She was asked: Question: Indeed, if you had such a recollection in August 2002 you would have, rather than denying the allegation in the information, admitted it, wouldn't you ? Answer: I'm not sure what I would have done at that time. Question: The ground of complaint was that you had falsely witnessed Mrs Fowler's signature. Answer: I believe, that was the complaint. Question: If in August 2002 you recalled a secretary bringing it to you already signed, you would have said, Yes, I admit the complaint, and this is what happened. Wouldn't you? Answer: It's possible. Question: Possible. Can we take it then that you had no such recollection in August 2002? Answer: I don't know whether I did or didn't at that time. 92 Finally, in response to questions from the Tribunal, the Appellant agreed that she had initially denied that she forged the signatures of the Buldioskis. She was asked if she accepted that they were forged to which she said she accepted the evidence. She was asked further, if she accepted that it was she who forged the signatures, to which she replied: I don't believe I did that, but I accept the evidence. 93 The extracted evidence is a small sample of the lengthy cross-examination (by which no criticism of counsel is intended), which left the Tribunal with the strong impression that the Appellant had the greatest difficulty conceding that she had forged the signatures of Mr and Mrs Buldioski and thereafter, falsely attested those signatures; similarly, that the signature of Mrs Fowler was a forgery, and that she had falsely attested that forged document. 94 The Appeal Panel is disturbed by the Appellant's lack of candour. She appears incapable of making consistent frank admissions as to her conduct in relation to these events. In the face of unequivocal evidence from the handwriting expert, and the findings of both the Divisional Tribunal and the first Appeal Panel, the Appellant continues to assert that she accepts, the expert evidence that "it's possible that I may have done it, but I don't believe myself, that I did that." 95 Her persistent inability to concede, without equivocation, that she forged the Buldioskis' signatures and falsely attested both those signatures and the signature of Mrs Fowler, is not conducive to persuading the Appeal Panel that she has come to terms with her past misconduct, and now has adequate insight into her own behaviour. 96 This Appeal Panel had the opportunity to observe the Appellant in the witness box and to make an assessment of her capacity for candour. It was not a reassuring experience. 97 There was a distinct contrast between her apparent acceptance of the facts of her misconduct contained in her affidavit evidence, compared with her oral evidence. Her manner in the witness box, bespoke profound reluctance to candidly admit the incontrovertible findings made against her. 98 In her affidavit filed 8 June 2006, the appellant says: "… I accept them, because I agree that the evidence adduced against me, principally in the Divisional Tribunal, supported the complaints." [para.49] However, she says that she cannot say whether she committed the acts the subject matter of the complaints, or did them wilfully. She acknowledges that the evidence led against her supported the findings, but maintains that her recollection of the events is significantly obscured by events in her personal and professional life. She says further: "Having accepted that the complaints against me were properly made out, I must accept that on the balance of probabilities they occurred." [para.53] 99 This Appeal Panel accepts that her emotional and psychiatric condition at the time of her original misconduct played a substantial part in her wrongdoing. Similarly, her subjective circumstances and depressive illness contributed to her unimpressive evidence before the Divisional Tribunal. None of those factors excuse any inadequacies in her evidence before this Appeal Panel. 100 The Tribunal is left with a deep sense of disquiet as to the ability of the Appellant to acknowledge her wrongdoing in any meaningful way. That view militates against a finding of insight and self knowledge facilitating genuine contrition, which is essential if this Appeal Panel is to arrive at a finding that the Appellant is currently a person of good character, and, as such, a person suitable to hold a practising certificate. An assessment of the evidence she gave before the Appeal Panel, indicates a lack of insight, a lack of ability to admit wrongdoing, a lack of any genuine appreciation of the failures in her conduct, and, ultimately, a lack of contrition. 101 Her continuing assertion that she was not suffering depression in the years up to and including 2002, contrary to the assessment of Ms Duffy, suggests lack of insight and self knowledge about her own mental processes. She appears not to recognise the effects on her functioning of the depression that Ms Duffy believes she was suffering, and to which Ms Duffy ascribes her less than impressive evidence before the Divisional Tribunal. 102 As was frankly conceded by counsel for the Appellant, her evidence before the Divisional Tribunal was unimpressive. It raised serious issues about her credibility. The Divisional Tribunal preferred the evidence of other witnesses where there was conflict between the evidence given by the Appellant and those witnesses. The findings of the Divisional Tribunal reflect that fact. The Divisional Tribunal did not make a finding that the Appellant gave deliberately false evidence. The Appeal Panel fell into error, when it made a finding to that effect, there having been no enlargement of the grounds of professional misconduct against the Appellant. That remains the position. 103 It is appropriate to review the Appellant's personal history, and her medical history, in order to put both her past evidence and conduct, and the evidence she gave before this Appeal Panel, in proper light. 104 The Appellant was born in Macedonia in 1955, she arrived in Australia as a four-year-old child. At age 7, she was diagnosed with an under active thyroid for which medication was prescribed. She was admitted to practise in 1981 and thereafter had her own legal practice conducted from offices at Yagoona and Rockdale. 105 The Appellant married in 1991, and in August of that year suffered a miscarriage. She fell pregnant again in October of that year and in July 1992 gave birth to her first child. She returned to work a month later. In November 1992, she fell pregnant again, that child miscarried in February 1993. Her second child was born in June 1994. 106 The Appellant received instructions from Mr Marks to act in his mother's estate in May 1991. In September of that year, he wrote complaining about delay in the matter. In September 1991 the Buldioski matter commenced. By October, the appellant was again pregnant and thereafter events in the various matters unfold: the Buldioskis matters occurred between September 1991 and June 1992 at which point Mr Buldioski made a complaint to the Law Society. 107 In August 1992, a month after the birth of her first child, the Appellant returned to work. In October, she wrote to the Law Society, denying the complaint from the Buldioskis. In November, when again pregnant, the Appellant wrote to the Law Society, asserting that the various orders had been executed by Mr and Mrs Buldioski, in her office in her presence. 108 In December 1992, the Law Society wrote to the Appellant in relation to the delay in the Marks estate. In March 1993 the Law Society again wrote to the Appellant expressing concern about delay in replying to the complaint concerning the Marks estate. This letter is approximately 1 month after the Appellant suffered her second miscarriage. On 12 March 1993, the Appellant wrote to the Law Society, providing an explanation for the delay, which effectively, she blamed upon Mrs Metchler. There was no delay by Mrs Metchler in the matter. 109 In April 1993, the Appellant was charged by police with conspiracy to cheat and defraud. In the same month, the matters giving rise to complaints regarding Mrs Fowler commenced. In June 1993 an investigator was appointed to the appellant's practice. 110 In April 1994, following a committal hearing, the Appellant was committed to stand trial on charges of conspiracy to cheat and fraud. In May and June, the investigator, submitted his reports. In June, the Appellant gave birth to her second child and ceased to practise. 111 In early 1997 the Appellant stood trial on the charge of conspiracy to cheat and defraud. She was found guilty, and in June 1997 was sentenced to nine months home detention. She appealed the decision. The appeal was dismissed by the Court of Criminal Appeal in February 1998. In December 1999, she was granted Special Leave to appeal to the High Court. That appeal was heard in September 2000, and on 8 February 2001, the High Court gave judgment quashing her conviction and remitting the matter for retrial. (Staneovski v The Queen (2001) HCA 4). The Appellant had served her sentence, accordingly, the Director of Public Prosecutions did not seek retrial. Thus, the Appellant does not have a criminal conviction. 112 It is apparent from this chronology that the Appellant experienced a number of turbulent years during which both her right to practise as a solicitor, and her personal freedom, were at risk. In addition, over these years, she experienced the grief of two miscarriages, albeit she also experienced the joy of two live births. 113 Whilst the criminal matter was proceeding, there were also matters relating to the Law Society's investigation of her conduct as a solicitor. 114 In September 2001 the Appellant obtained employment as a legal clerk. In December of that year, she was granted a conditional practising certificate. 115 In March 2002 the information seeking the removal of the Appellant from the roll of legal practitioners, was filed in the Administrative Decisions Tribunal. That matter was heard in December 2002, and on 17 April 2003, the Divisional Tribunal ordered that the Appellant be struck off. 116 The Appellant's appeal was heard by the Appeal Panel in July 2003. On 14 August 2003, the Appeal Panel upheld her appeal and ordered a rehearing. That rehearing occurred in January and March 2004. On 20 September 2004, the Appeal Panel made an order striking the Appellant off the roll of legal practitioners. 117 In January 2005 the appellant filed an appeal in the New South Wales Court of Appeal. On 6 December 2005 that appeal was upheld, in part, and the matter remitted to the Appeal Panel for dispositive orders on the question of penalty. 118 The appellant's evidence is that over the early period of these events, she had a troubled marital history, although by 1999 the marriage had improved and is now satisfactory. 119 In her affidavit filed in these proceedings on 8 June 2006, the appellant states: "I cannot say with any conviction, whether: I committed the acts which were the subject of the complaints; I did them and wilfully." 120 The Appellant says further that she now accepts that her denial to the Law Society, her legal representatives and the Divisional Tribunal of the events giving rise to the complaints was the "result of confusion, uncertainty and disbelief that I would do such things." she says further that she accepts, "on the balance of probabilities" that those events occurred; that she accepts responsibility for those acts and regrets any inconvenience or loss suffered by her former clients. It is unfortunate, that in giving oral evidence, the Appellant was not able to be as frank and forthright in her admissions of responsibility as set out in her affidavit evidence. 121 There are several affidavits of character evidence to support the Appellant's application. One is from her brother, who attests to her improved relationship with her husband and her improved happiness. He asserts his belief that she is a person of good fame and character able to discharge the functions of a solicitor. The second character affidavit is from her solicitor, Gregory Alexander Walsh. Mr Walsh has maintained a close professional and personal relationship with the Appellant for some years. He employed her for 12 months in 2003, and visited her home on various occasions where he has been able to observe her interaction with her husband and children. He notes that in the preceding 12 to 18 months there has been a significant improvement in her demeanour and presentation. Mr Walsh is of the view that despite the problems of the past, the Appellant is currently a person of good fame and character suitable to discharge the duties of a solicitor of the Supreme Court in New South Wales. The remaining affidavits attest to her good fame and character although they refer to knowledge in 2003 only and not to recent contact with the appellant. 122 The Tribunal has considered the supporting material from other practitioners. That is important material, and significant in arriving at an estimation of the Appellant's good fame and character, and her capacity to appropriately perform her professional duties. The Tribunal accepts that those referees honestly hold the opinions expressed. 123 There are a substantial number of medical reports: from Anita Duffy, clinical psychologist, in April 1997, June and November 2003, October 2005, and May 2006. In addition, Ms Duffy gave evidence before the Appeal Panel. The Appeal Panel has had regard to the entirety of Ms Duffy's evidence. 124 Dr Bruce Westmore, forensic psychiatrist, has provided reports of 27 June 2003, 1 July 2003, 20 October 2005, and 12 May 2006. Dr Philip Boyce provide a report dated 13 May 1997. 125 One difficulty encountered by each of these expert witnesses, was that none of them had the opportunity to assess the Appellant at the time she engaged in the conduct giving rise to these complaints before the Appeal Panel. 126 In her report of 16 May 2006, Ms Duffy says: "When Liljana filed her reply and affidavit in 2002 and later appeared before the Administrative Appeals Tribunal she denied forging the signatures, but was unsure whether the documents were signed in front of her or whether they were brought in already signed. At our session on 19th June 2003, Lilijana told me that she had no recollection of the circumstances at all, and indeed had been in some considerable emotional turmoil at the time, as it coincided with a miscarriage in August 1991, and furthermore, in 1993 was under stress and possibly suffering Post Natal Depression following the birth of her first child and a second miscarriage. Thus, her memory would have been poor at the time she completed her statement and appeared at the tribunal hearing in 2002. " It is envisaged that she would have been suffering depression at the time she completed her Affidavit and appeared at the Tribunal hearing in 2002 such that her responses were affected by her mental state. Her inability to recall relevant details that occurred in 1993 and 1991, would still have been the same in 2002. It is unlikely that she would ever be able to recall these past events in any clarity, because of the emotional problems, including depression and stress that she experienced in the early 1990s." 127 In her evidence before the Divisional Tribunal in 2002, the Appellant gave evidence about the depressive illness she had suffered in earlier years. She said she was not depressed at that time (2002) and had not been depressed for the previous four years. By contrast, in her report of June 2003, Ms. Duffy assessed the Appellant as deeply depressed. She said: "she has a great investment in appearing calm, and in control, rather than revealing her emotional difficulties to others. This facet of her personality has already been commented on in my previous report of 1997. Lilijana's identity is closely bound up with not disclosing her problems to others or revealing her emotions." 128 In her evidence before this Appeal Panel on 29 August 2006, Ms Duffy, identified the Appellant's character traits as a reluctance to admit fault or wrongdoing. She said that was not a component of the Appellant's depressed state. She referred to the fact that the Appellant had been speaking to her and other counsellors. She thought such consultation would assist in the future coping with her work, provided the Appellant was "supervised very closely so that there isn't room for error and overwhelming her with too much work and checking up all the way…" 129 Ms Duffy attributed these facets of the Appellant's personality to possibly contributing to the finding of the Divisional Tribunal that the Appellant lacked contrition or appreciation of the gravity of her conduct. 130 Dr Westmore, in his report of 27 June 2003 says: "At the time her problems with the family Law Court occurred she had I understand from her history recently had a miscarriage. After that event, she reports suffering a depression of her mood state. She suffered a similar mood state disturbance preceding the events, where she was charged in relation to a motor vehicle. The relationship between her depression and these events is unclear, but it is something that the tribunal might consider in its deliberations." 131 In October 2005 Dr Westmore noted that the Appellant's depressive illness had resolved. He saw no psychiatric reasons why she should not work as a legal practitioner. That opinion was confirmed in his report of May 2006 where he also noted that her thyroid disease had now been fully treated. 132 Elsewhere in the same report Dr Westmore comments that it is "difficult making a psychiatric diagnosis in a retrospective fashion, although the history does indicate that this woman has had a long history of depression." 133 Dr Boyce's report was prepared in anticipation of sentencing for the criminal matter previously referred to. He notes her history of depression and in part says. "It is noteworthy that her depression was characterised by indecisiveness and confusion, which may explain why she cannot clearly recall the events of the early 1993." 134 In summary, the medical evidence suggests that the Appellant has character traits, which, apart from her depressive problems, have impacted on her professional functioning. The totality of the evidence points to a level of fragility, which, were the Appeal Panel minded to restore the Appellant to the Roll, would require working conditions for the Appellant, not merely usual conditions of a practising certificate, but, more importantly, conditions of her work as a solicitor which would require constant supervision, a lack of stress in both her personal and professional life, and circumstances which would require constant oversighting and vigilance in monitoring her in the practice of law. Those requirements, standing by themselves, should not be viewed as inhibiting a possible return to practise. Undoubtedly it would prove challenging to formulate appropriate safeguards, and ensure adequate supervision, but that is not an insurmountable difficulty. 135 Making every allowance for the Appellant's character traits combined with the effects of depression, and having regard to the medical evidence, the Appeal Panel is unable to accept her assertions that she now has no recollection of any part of these events. Over an extended period she wrote to the Law Society denying any wrongdoing, and giving a coherent, albeit false account of what had occurred in each matter. She filed affidavits and gave evidence in support of the versions of events she had maintained, again, over an extended period. 136 The medical evidence does not support a finding that the Appellant from 1991 up to and including 2002 would have no recollection of these events. This Appeal Panel accepts the findings of the Divisional Tribunal concerning the Appellant's evidence before the Tribunal. 137 Forgery and false attestation are most serious matters. The Appellant denied and continues to deny any recollection of those gross breaches of her duties as a legal practitioner, which were exacerbated, firstly, by misleading the Family Court on several occasions, and secondly by misleading the Law Society when responding to complaints in all three matters. Accepting the Appellant's emotional and depressive state caused her initial actions, and that she was still suffering from depression when she gave evidence in 2002, the Appeal Panel is unable to accept that it follows as credible that she was subsequently, without recalling any aspect of her misconduct, able consistently to give misleading exculpatory accounts of her conduct, and to cast the blame upon others. That may be the result of reconstruction and a refusal to accept the facts of her own initial wrongdoing. 138 Even in her "exculpatory" evidence, the Appellant appears not to have appreciated the fact of false attestation involved in purportedly witnessing signatures where, on her evidence, she had not seen the document signed, but had relied upon advice that her client had signed the document. 139 It is not for this Appeal Panel to make a determination as to why the Appellant was apparently lacking in candour in the witness box. A simple assertion that she had no recollection of forging or falsely attesting the signatures would, on the medical evidence, be an acceptable explanation. An assertion that she had no recollection of her subsequent actions would be less readily accepted, because the medical evidence does not support that proposition. But the most troubling aspect of her evidence is her apparent inability to demonstrate any current personal conviction that she actually did those acts that constitute her misconduct, and which have been proved established long since. Her position is expressed in the assertion "it's possible that I may have done it, but I don't believe myself, that I did that." 140 That statement is only explicable in circumstances that, against the weight of all the evidence, and having had years to consider that evidence, particularly in recent years when the medical evidence is that she is suffering no psychological or physical illness that might be detrimental to her mental processes, she cannot bring herself to concede in a frank and forthright manner, that she did that which has been found proved against her. 141 In Fraser v The Council of the Law Society of New South Wales [BC 9201695] the New South Wales Court of Appeal overturned a decision of the Legal Profession Disciplinary Tribunal, which had found the Appellant guilty of professional misconduct and ordered that his name be removed from the roll of solicitors. 142 The solicitor, without having given the necessary advice to the mortgagors, or, indeed, having any contact with them, falsely signed a certificate of explanation required in connection with the execution of a mortgage, after being assured on the telephone that the mortgagor had been advised by a senior former member of the profession. When challenged by the solicitor for the mortgagee, the solicitor gave a misleading response. 143 The Court of Appeal noted that the matters in support of removing the solicitor from the roll were: knowingly and falsely signing a certificate that he knew would be relied upon; misleading another solicitor; failing to perceive the gravity of his behaviour until the proceedings in the Court of Appeal; the finding by his peers that he had engaged in disgraceful and dishonourable conduct, such that he should be removed from the roll. 144 The countervailing considerations were found to be: No evidence of other disgraceful or dishonourable conduct; a momentary lapse, not involving a course of conduct over an extended time; an isolated incident although a serious misjudgement; no personal benefit; no profit or financial gain; admissions of wrongdoing both before the Tribunal and the Court of Appeal after initial prevarication. 145 It was noted that the solicitor had expressed contrition and had come to "… a full realization of the gravity of his misconduct, of its seriousness for legal purposes and of its offence to professional standards and to moral principle." 146 Handley JA said: "… the Tribunal acted correctly on the material before it in striking the appellant from the Rolls. A solicitor who commits fraud without knowing that he has done so is in my opinion not a fit and proper person to remain on the Roll. That situation has now changed. I believe that this Court would now be justified in concluding that this appellant will never again give a false certificate." 147 This Appeal Panel cannot be comfortably satisfied that the Appellant in truth acknowledges to herself, let alone to this Tribunal, that she acted wrongly and unprofessionally. 148 We make that assessment accepting that due to her mental state at the relevant time, the Appellant has either no recollection of her initial misconduct, or a recollection coloured by reconstruction. But her current inability or refusal, as a lawyer, to assess the overwhelming evidence, upon which consistent findings have been made against her, is incomprehensible. 149 The Appellant did not engage in her misconduct for the purposes of financial gain (apart from the usual costs associated with acting for her clients). She sought, however, to cover up errors arising from her misconduct or ignorance as a legal practitioner. In the absence of evidence from the Appellant capable of reassuring the Appeal Panel that in a similar situation the Appellant would act differently, the Appeal Panel could not be satisfied that it has discharged its duty to the public. 150 In Barwick v Council of The Law Society of New South Wales [2004] NSWCA 32, Pip JA (with whom Tobias JA and Stein AJA agreed), in dismissing the solicitor's appeal against an order striking his name from the roll, took into account, inter alia, the following: that the Appellant had preferred his own interests to those of his clients; he was guilty of delay, neglect and incompetence; he misled his client; he made representations to the Law Society that were misleading and attempted thereby to mislead the Law Society, and that he gave evidence that was at best half truths, and had failed to make full and frank disclosure. 151 This Appellant was guilty of neglect, delay and incompetence in handling the matters giving rise to the complaints against her. She sought to cover that up by engaging in forgery and false attestation. In failing to recognise and deal with the initial problem, and her conduct thereafter, in seeking to lay the blame on others, and attempting to mislead the Law Society, she preferred her own interests to those of her clients. 152 "Professional misconduct is indicative of lack of integrity and bad character. It cannot be assumed that a change of character warranting continuation in practice has occurred 'merely because some years have gone by and it is not proved that anything of a discreditable kind has occurred': Ex p. Tibialis; re the Medical Practitioners Act (1966) 67 SR (NSW) 448 at 461. In determining whether a practitioner should be permitted to continue to practise after an offence of professional misconduct it is plain that such factors as the gravity and frequency of the conduct giving rise to the finding are relevant. …Also relevant is the nature of the practitioner's conduct…since the conduct in issue. "It is also relevant to have regard to admissions of guilt, expressions of remorse, and contrition and candour." Law Society of New South Wales v Young (No 3) (LSD) [2001] NSWADTAP 38. 153 These are all matters to be taken into account by the Appeal Panel in making an assessment of her current integrity and good character, in order to determine whether or not she is now a fit and proper person to be on the roll. 154 In summary, the Appeal Panel finds itself in no different position to that assessment made by the Divisional Tribunal as set out in para. 10 hereof. The Appellant has shown no real understanding of her own misconduct, nor has she shown genuine contrition, and her evidence before this Appeal Panel does not lead to a finding that she was openly frank and candid. 155 The Appellant failed to perceive the gravity of her conduct in evidence before the Divisional Tribunal; she gave no evidence before the first Appeal Panel, although the appeal had been extended to the merits; she gave evidence before this Appeal Panel, which has not persuaded us that she currently perceives the gravity of her conduct, and the necessity to be unwaveringly candid about that conduct. Nor does she appear capable of a realistic assessment of her mental condition. 156 Unlike Fraser, the appellant's conduct was not an isolated incident. In relation to each matter she engaged in extensive denials of her conduct, and, effectively, sought to shift the blame to other, blameless people whether her clients or, an unidentified secretary. 157 Having regard to previous findings and the decision of the Court of Appeal, the evidence given by the Appellant was a crucial factor in determining the proper dispositive orders. 158 An order removing the name of a practitioner from the Roll of legal practitioners is a last resort. Before making such an order, the Tribunal should consider whether any deficiencies in the practitioner's capacity might be met by the imposition of appropriate conditions designed to ensure the protection of the public and the interests of justice. The Appeal Panel has considered that option, but finds it must be rejected. The deficiencies identified by the Appeal Panel cannot be overcome by conditions of practise, however stringent they might be. 159 The Appeal Panel, having reviewed the totality of the evidence, and, in particular, the evidence given by the Appellant before this Appeal Panel, is unable to be satisfied that she is a person of integrity and good character, capable of discharging her professional duties to the required standard. Accordingly, the Tribunal cannot be satisfied that she no longer presents a risk to the public in the performance of her professional responsibilities 160 The Appeal Panel cannot be comfortably satisfied that she is now, or ever will be, a fit and proper person to remain upon the Roll of legal practitioners. 161 The Law Society has discharged the onus upon it to demonstrate that the Appellant is permanently unfit to practice. That is an onus to be discharged pursuant to the standard set down in Briginshaw v Briginshaw (1938) 60 CLR 336. 162 The attitude adopted by the Appellant in the course of her evidence before this Appeal Panel was not conducive to a finding that, on the balance of probabilities, she had candidly come to terms with her wrongdoing; recognized the enormity of her conduct, and could, accordingly, undertake never to engage in similar conduct. She appeared to the Appeal Panel to have insufficient insight to recognize and frankly acknowledge her gross professional misconduct. Accordingly, it is not possible for the Appeal Panel to be satisfied that faced with a situation requiring her to make frank admission of error, oversight or ignorance, she is capable of the necessary candour. Thus, there continues, in the opinion of the Appeal Panel, an unacceptable risk to the public. 163 A review of the whole of the evidence in each of the proceedings since the inception of the original information, has led the Tribunal to the view that whilst the Appellant's views may have improved, she has demonstrated, in the proceedings before this Appeal Panel, that she is not a fit and proper person. Nor, having regard to that history, is the Tribunal able to form the view that she will ever be a fit and proper person. Thus, any penalty other than her removal from the Roll is totally inappropriate. 164 The Appeal Panel recognises that it is unfortunate that a person who is a qualified lawyer and has some experience in the field, should not be able to return to the practice of law on the Roll of Legal Practitioners. It is not, however, the role of the Appeal Panel to provide her with a practising certificate in order to assist her general wellbeing, but to protect the public. 165 Where a practitioner seeks to be restored to the Roll, it is a fundamental requirement that the applicant acknowledges, without reservation, the conduct, which led to findings of misconduct, and consequential findings that the applicant was not a fit and proper person to remain on the Roll of Legal Practitioners. The appellant is resisting removal from the Roll. Nonetheless, given the lengthy history of this matter; the time that has elapsed since the decision of the Divisional Tribunal, and the reasons given in the three decisions which have already been delivered in the course of that history, the Appellant could be in no doubt that any evidence she gave, should be open and frank. Regrettably, this Appeal Panel found her lacking in candour, and reluctant to frankly and openly acknowledge her misconduct. Even if, the most she could say, was that on the totality of the evidence, she recognized there could be no doubt about what she had done, she could not, unfortunately, bring herself to unequivocally make that admission. Her view is encapsulated in her statement: "I don't believe I did that, but I accept the evidence." 166 The Appellant's conduct was not engaged in for profit in the ordinary sense. She had little or nothing to gain of a pecuniary nature. Indeed, after receiving legal advice, she apologised in the Marks matter, and refunded the costs she had been paid. The genesis of her conduct appears to be a profound reluctance to be seen to have made a mistake. It is not for this Appeal Panel to make a finding concerning the reasons why she continues unable to make the necessary concessions in relation to her misconduct. 167 Having regard to the totality of the evidence, but, particularly having regard to the evidence given by the Appellant before this Appeal Panel, we have arrived at the decision that the Appellant is not a fit and proper person to hold a practising certificate and that the order of this Tribunal should be that her name be removed from the Roll of Legal Practitioners. 168 The Tribunal orders that the name of Lilijana Stanoevski be removed from the Roll of Legal Practitioners and that she pay the costs of the Law Society as agreed or assessed. Minority opinion of Judicial Member Molloy 169 I accept the recitation of facts above and in general the approach that should be taken by the Appeal Panel in paragraphs [49]-[51] but in my opinion the majority have attempted to import some form of logicality into the evidence of the Appellant when, in my respectful opinion, that approach is not warranted in the particular and peculiar circumstances of this case. 170 At the hearing the Law Society focused, understandably, on the Appellant's past conduct that brought her before the Tribunal. 171 There is absolutely no doubt in my mind that the Appellant, at the time of the events that initially brought her before the Tribunal, and subsequently and until recently, suffered from depression. That depression was severe. Severe depression can result in actions being taken by the afflicted person which are often unexplainable logically by that person, often by them impossible to justify and difficult, if not impossible, by them to identify as having been done by that same person, let alone done deliberately. 172 The Law Society and the majority have, in my opinion, focused too much upon the inability of this Appellant to address the events that brought her initially before the Tribunal. The majority formed the opinion that the Appellant's approach was "lacking in candor" and that her statement (at [94]) "it's possible I may have done it, but I don't believe myself that I did that" should somehow be held against her. 173 Depression (sometimes called "The Black Dog") is a terrible thing. It affects people in all sorts of different ways. It affects people at the prime of their political or commercial careers, it affects both fathers and mothers in the syndrome "post-natal depression"; if affects people in all walks and all stages of life; it may be mild or severe; it may be short or long-lasting; it is often quite illogical in that there is no logical basis for its onset nor many of the activities of the sufferer, such that to analyse depression, in some objective fashion, in my opinion is not helpful. 174 A primary example is post-natal depression - one would think that the birth of a child would bring joy to both parents - see [105] and [112] above. However, and illogically, in many cases that event does not bring instant joy but rather a form of depression, sometimes severe. The logicality of that defies rational assessment but it is an accepted psychological/psychiatric state that can in most cases be treated (if required). To try and explain it logically or to try and explain the afflicted person's actions during that depressive state may well be a task that is beyond the afflicted person. As in this case now before this Appeal Panel one might be often left with the answer: "Did I do that?", or: "I would not have done that". 175 The duty of the Appeal Panel is to assess the position at the time of the hearing before it to determine whether or not the Appellant ought to hold a Practicing Certificate and, if so, whether conditions should be imposed. There is no doubt that the duty of this Tribunal is to the public. But I have a strong view that a legal practitioner should not be deprived of his/her entitlement to practice except in circumstances where that right to practice would conflict with the right of the public to proper legal representation. The time for considering that question is now, not when the events in question took place and not at the time of some previous hearing. In my view the evidence of the called experts (Dr Gertler (at [83]) for the Law Society and in particular Ms Duffy (at [85]) for the Appellant) points clearly to the view that this Appellant should be allowed to practice but subject to appropriate conditions. Indeed, it is significant that Ms Duffy came to that very clear conclusion [128] and was not cross-examined on this conclusion. Indeed, in my opinion the expert and lay evidence for the Appellant as to fitness to practice with appropriate conditions/restrictions was unchallenged. 176 Once one accepts that the Appellant's answers to questions put to her in 2006 are understandable answers having regard to her prior history of depression, and I accept that they were understandable answers, then one is left with the unchallenged evidence of the experts and the lay witnesses to the effect that the Appellant should be permitted to practice subject to appropriate conditions. 177 Finally, there are two observations that I would seek to make: (1) The comment of the majority in [160] is, in my respectful opinion, inappropriate, not supported by the evidence and, with respect, appears to be in excess of jurisdiction. (2) The majority have referred to the decision of Fraser v The Council of the Law Society of New South Wales ([141] ff) and Barwick v The Council of the Law Society of New South Wales ([150] ff). In my view the references to Fraser and Barwick are not helpful because there was no evidence at all in either that the respective Appellants suffered from any sort of depressive state. What they did was deliberate and it was only when Fraser went to the Court of Appeal that he came to "…. a full realisation of the gravity of his misconduct, of its seriousness for legal purposes and of its offence to professional misconduct standards and to moral principle". To try and equate Fraser and Barwick with the dreadful situation suffered by this Appellant at the relevant times is in my respectful opinion quite inappropriate and does not assist in an understanding of this Appellant's very sad psychological/psychiatric circumstances from which, in my opinion from the evidence, she has now recovered to a degree such that I would be comfortable to allowing her to practice but subject to appropriate conditions/restrictions. 178 The majority are of the opinion that the Appellant's name should be removed from the Roll and that she be ordered to pay the costs of the Law Society. In my opinion and in all the circumstances there should be no order for costs and that a Practicing Certificate be issued to her subject to appropriate restrictions/conditions. 179 If we are looking for perfection, some sort of legal practitioner who is blameless and whose blameless future is assured, we shall not find it here or elsewhere. The practitioner is, in my opinion, with the imposition of appropriate conditions/restrictions (see [134]), a person capable of returning to her chosen profession - there are always risks - that is a very human condition - but those risks can be minimised with appropriate controls formulated, I suggest, by thinking outside the square. I would suggest the imposition of the following conditions/ restrictions: a) The Appellant be permitted to practice as an employed solicitor only. b) That she not engage in any type of litigious matters. c) That she submit herself to psychiatric/psychological assessment once every six months for the next five years, the consulted psychiatrist/psychologist to provide a copy of the assessment reports direct to the Law Society. d) The Appellant to provide any employer with the following documents: (i) a copy of the decision of the Divisional Tribunal; (ii) a copy of the decision of the Appeal Panel; (iii) a copy of the decision of the Court of Appeal; (iv) a copy of the decision of this Appeal Panel; (v) a separate sheet of paper setting out the conditions/restrictions imposed by this Appeal Panel. e) The employer to provide a certification in writing direct to the Law Society that the employer has been provided with all of that material, has read and understood that material and for his/her part will comply with the conditions/ restrictions imposed by this Appeal Panel. f) The Appellant not to be employed in a position that would require her to work for more than five (5) hours per day during a five (5) day working week nor to be employed in circumstances that would impose upon her stress. g) Her employer to undertake to the Law Society that he/she will properly supervise the solicitor during the term of her employment and consistent with the views expressed by the Divisional Tribunal, the Appeal Panel, the Court of Appeal and this Appeal Panel with a view to avoiding the occurrence of any circumstances that may put the solicitor into a position of risk of the type(s) of which she has been found guilty of professional mis-conduct. 180 In my opinion the Appellant should be permitted to return to her chosen profession. The conditions/restrictions that I have endeavoured to formulate above may well be the subject of debate, addition, subtraction or re-formulation. I would not make a costs order against this practitioner simply on the basis that in my opinion she would have succeeded on the question of "penalty" and has probably suffered enough and ought to be given a chance to "get on with her life". 181 If this sounds like a plea for an understanding of the personal effects of depression and a plea for rehabilitation, perhaps it is. This Appellant has been through a most terrible time but somehow, and with considerable fortitude, has struggled to dig herself out of it and become a useful member of her chosen profession. The unchallenged evidence of both experts clearly supports the view that she has. To hold her former depressive state against her does neither her, the legal profession nor the public any service and deprives this practitioner of a rewarding livelihood when, by judicious lateral thinking, this Tribunal can, on the evidence (both expert and lay), construct conditions/restrictions that would allow her to practice and at the same time operate to protect the public.

Stanoevski v Law Society of New South Wales

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Judgment (12 paragraphs)

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Cases Cited (5)

Cited By (27)