Tangsilsat v Council of the Law Society of New South Wales

The Council's complaint

1. As well as being a solicitor, the appellant was a registered migration agent. Four days before she lodged her application to renew her practising certificate as a solicitor she received notice that her registration as a migration agent had been suspended. She did not disclose that fact when applying for renewal of her practising certificate.
2. On 6 March 2018, the Council filed an application for "Disciplinary Findings and Orders" in the Tribunal. It sought orders that the appellant be reprimanded, that the appellant pay a fine, that the appellant pay the Council's costs and any further or other order as the Tribunal deemed fit. The ground for the application was described as follows: "JURUWAN TANGSILSAT (the Solicitor) is guilty of professional misconduct as set out below: Making a false declaration in her application for a 2017/18 Practising Certificate in failing to disclose, pursuant to Rule 13(1) of the Legal Profession Uniform General Rules, that she had been the subject of disciplinary action in another profession or occupation."
3. The particulars of the application were as follows: "In these particulars: The Solicitor means Juruwan Tangsilsat. 1. The Solicitor was admitted on 13 February 2009. 2. The Solicitor has held a Practising Certificate in New South Wales since 13 February 2009. 3. As from 1 July 2011 the Solicitor has variously been the Principal/Sole Principal of Thai-Oz Solicitor & Migration Services. 4. The Solicitor was, from 29 May 2009 registered as a Migration Agent. 5. On 8 May 2017 the Migration Agents Registration Authority, in part, suspended the Solicitor's registration as a Migration Agent for a period of 12 months. 6. On 12 May 2017 the Solicitor electronically submitted an application for a Practising Certificate as a Solicitor in New South Wales (Application). 7. In the Application, under the heading 'Fit and Proper Person', the following question appeared: 'Is there any matter referred to in rule 13(1) of the Legal Profession Uniform General Rules 2015 which is applicable to you and which you have not previously disclosed to The Law Society? (see rule 13(1)' (Rule 13(1)) The Solicitor answered 'No' to this question. 8. Relevantly, Rule 13(1) provides: '13 Consideration of application for grant or renewal of Australian practising certificate (1) For the purposes of section 45 of the Uniform Law, in considering whether an applicant is or is not a fit and proper person to hold an Australian practising certificate, the designated local regulatory authority may have regard to any of the following matters: [(a) whether the applicant is currently of good fame and character, (b) whether the applicant is, or has been: (i) an insolvent under administration, or (ii) a director or principal of an incorporated legal practice while the legal practice is or was insolvent, or (iii) a director of a company while the company is or was insolvent, (c) whether the applicant has been convicted or found guilty of an offence in Australia or a foreign country, and if so: (i) the nature of the offence, and (ii) how long ago the offence was committed, and (iii) the applicant's age when the offence was committed, (d) whether the applicant has engaged in legal practice in Australia: (i) when not permitted to do so under a law or previous law of a State or Territory, or (ii) if admitted, in contravention of a condition to which the admission was subject, or (iii) if holding an Australian practising certificate, in contravention of a condition to which the certificate was subject or while the certificate was suspended, (e) whether the applicant has engaged in legal practice in a foreign country: (i) when not permitted to do so by or under a law of that country, or (ii) if permitted to do so, in contravention of a condition to which the permission was subject, (f) whether the applicant: (i) is currently subject to an unresolved complaint, investigation, charge or order under an Australian law relating to the legal profession or under a corresponding foreign law, or (ii) has been the subject of disciplinary action, however expressed, under an Australian law relating to the legal profession, or under a corresponding foreign law, that involved a finding adverse to the applicant,] (g) whether the applicant: (i) is the subject of current disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country, or (ii) has been the subject of disciplinary action, however expressed, in another profession or occupation in Australia or a foreign country that involved a finding adverse to the applicant, ...' 9. The Solicitor's response to the question in paragraph 6 was false, she having been the subject of an adverse determination and sanction by the Migration Agents Registration Authority on 8 May 2017."
4. In her reply to the Council's application the appellant denied being guilty of professional misconduct. She said that she made an honest mistake by not checking regulation 13 of the NSW Legal Profession Uniform General Rules prior to answering "No" in the application to renew her legal practice certificate. She admitted that her conduct fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent lawyer. She denied that it amounted to professional misconduct.
5. The appellant completed her online application to renew her practising certificate on 12 May 2017. The question to which the appellant answered "No" was: "Is there any matter referred to in rule 13(1) of the Legal Profession Uniform General Rules 2015 which is applicable to you and which you have not previously disclosed to the Law Society? (See rule 13(1))."
6. On the online version of the renewal form the words "See rule 13(1)" were hyperlinked so that when completing the form the solicitor could review the content of the rule.
7. Four days before she lodged her application to renew her practising certificate the appellant had received a letter from the Department of Immigration and Border Protection signed by a Ms Helen Sun, described as holding a position with "Professional Standards and Integrity Office of the Migration Agents Registration Authority Department of Immigration and Border Protection". In the letter enclosing her decision Ms Sun summarised her findings and decision as follows: "Findings Following consideration of the evidence before me, I am satisfied that you have engaged in conduct in breach of your obligations under clauses 2.3, 2.15, 5.2, 6.1, 6.1A, 6.3 and 9.3 of the Code of Conduct for registered migration agents ('the Code'). I am also satisfied that you are not a person of integrity, or otherwise not a fit and proper person to give immigration assistance within the meaning of paragraph 303 (1)(f) of the Migration Act 1958 ('the Act'). Decision In accordance with paragraph 303(1)(b) of the Act, I have decided to suspend your registration for a period of twelve (12) months and until certain conditions are met."
8. Ms Sun stated that it was her intention to refer the decision to the NSW Legal Services Commission as in her view, the appellant's conduct raised issues in relation to her ability to practise as a legal practitioner.
9. In her affidavit before the Tribunal, the appellant deposed that in making her renewal application under the "Fit and Proper Person" heading she clicked the hyperlink to rule 13(1) which opened a new window to rule 13(1)(a)-(f). She deposed that she clicked "No" in the answer to the question since there was no matter pursuant to r 13(1)(a)-(f) which applied to her. She did not scroll down to see the rest of the rule. She also deposed that she thought the only question was whether she was a fit and proper person. She said that she was acting under time pressure as she needed to complete the application prior to seeing her next client.
10. There was some tension between the statement in the appellant's response to the Council's application in the Tribunal that she did not check rule 13 prior to ticking her answer and her affidavit before the Tribunal in which she said that she read rule 13(1)(a)-(f), but not para (g), and answered "No" since there was no matter in paras (a)-(f) of the rule that applied to her.
11. Before the Tribunal the appellant was cross-examined on that discrepancy. In cross-examination the appellant repeated that she clicked on the hyperlink and saw the screen with paras (a)-(f) and her error was in not scrolling down.

The Tribunal's findings

1. Section 297(1) and (2) of the Uniform Law provides: "297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes - (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters."
2. The Tribunal concluded that having regard to the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, it could not be comfortably satisfied that the appellant knowingly avoided looking at rule 13(1)(g) and said that there was no suggestion that she was aware of the provisions of rule 13(1)(g) and ignored them (at [22]). It also observed that the appellant had not provided any satisfactory explanation or excuse for having failed to look at the remainder of the rule and, although she said she was in a hurry to prepare for a forthcoming appointment with a client, there was no suggestion that she did not have time to complete the application prior to the closing date (at [22]).
3. The Tribunal concluded that the appellant completed her application carelessly (at [24]), but also that she did not consider the matters that motivated the delegate of the Migration Agents Registration Authority ("MARA") to suspend her registration (at [24]). The Tribunal noted that the appellant rejected the findings made against her by MARA but said that she did not demonstrate any insight into the significance of the fact that those findings had been made against her (at [24]). The findings made against her were summarised in the Tribunal's reasons at [6] as follows: "6 The decision of the Professional Standards and Integrity Section of the Office of MARA to suspend the registration of the respondent as a migration agent dated 8 May 2017 was in evidence before us. The Delegate found: (1) that the respondent had demonstrated 'disregard of her professional responsibilities' as a migration agent; (2) that the respondent was 'not a person of integrity, nor a fit and proper person to provide immigration assistance'; (3) the respondent had engaged in repeated breaches of the Migration Agents Code of Conduct prescribed under Sch 2 of Reg 8 of the Migration Agents Regulations 1998 (Cth); and (4) the respondent had been 'unwilling to rectify' her conduct, had 'not explained to the Authority how the conduct occurred nor demonstrated an understanding of how her conduct may be a breach of her obligations', and had 'failed to properly respond to this complaint' and had not cooperated during the investigation."
4. The Tribunal was careful to say that it was the fact that adverse findings had been made in those terms that was significant. Contrary to the submission of the appellant, the Tribunal did not find that the findings made by MARA's delegate were true. At the hearing before the Tribunal, the solicitor representing the Council had said that MARA's reasons were not evidence of the truth of the facts asserted and this submission was evidently accepted by the Tribunal. The Tribunal said (at [9]): "We must emphasise that we have summarised the matters which concerned MARA in determining to suspend the respondent's registration as a migration agent for the purpose only of identifying matters which must have been in the respondent's mind at the time that she completed the application for renewal of her practising certificate. It is arguable that some of those matters might possibly be relevant to a consideration of the respondent's fitness to practice as a legal practitioner. However, they do not form part of any of the allegations of misconduct made by the applicant in these proceedings and we do not take them into account in any way as forming the basis of any determination concerning the fitness to practice of the respondent. Their consideration is limited, as we have said, in the sense that the respondent must have been aware four days after the date of this decision that findings had been made concerning her fitness to practice as a migration agent. We emphasise also that we do not take into account the findings of the Delegate as proof of the underlying matters to which they refer, but as proof only that such findings were made and of the decision to suspend her registration."
5. The crux of the Tribunal's reasons for finding that the appellant was guilty of professional misconduct is in the following paragraphs: "25 The respondent must clearly have had the decision to suspend her registration as a migration agent in her mind when she completed the online application for renewal of the registration as a legal practitioner. The decision had been made four days previously, and she had determined to appeal that decision two days previously. The respondent said that she had applied for renewal of her registration as a legal practitioner for many years and was familiar with the information which she had to provide. We do not accept that she could not reasonably have known that the fact of suspension of her registration as a migration agent and the reasons therefore were not relevant to any consideration by the applicant as to whether she was a fit and proper person to have her registration as a legal practitioner renewed. If her failure to disclose these significant matters was the result of blind ignorance, or reckless indifference, this would be indicative of conduct which would indicate that the respondent was not a fit and proper person to be a legal practitioner. In either case the respondent has failed to disclose matters which we find are of significance, not only because they are specifically referred to in the relevant Rule, but because as a matter of general principle they are clearly relevant to an assessment by a regulatory authority of her fitness to have her practising certificate renewed. ... 30 ... [W]e conclude that the respondent: (1) did not have an appreciation of her obligation of candour in relation to any improper conduct and; (2) did not fulfil her obligation of candour and thereby demonstrated a want of understanding of the high degree of trust which must repose in a person who asserts that she is a fit and proper person to practise the profession of solicitor; (3) did not understand the significance of the deficiencies revealed by the reasons of the Delegate for the suspension of her registration as a migration agent and thereby demonstrated a lack of insight into her serious misconduct as found and a lack of understanding of her duty to make full and accurate disclosure to the applicant; (4) was recklessly indifferent to the adequacy of her disclosure. ... 32 In the same way a consideration of whether the conduct of the respondent constitutes professional misconduct will be a matter of impression involving the exercise of a value judgment. The definition in s 297 of the Uniform Law refers to a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. We regard the failure of the respondent to have complied with the fundamental obligations of disclosure in all the circumstances as we have described them, as constituting a substantial failure to both reach and maintain the standard of competence and diligence which we have identified in determining that the respondent is guilty of unsatisfactory professional conduct. Furthermore, the conduct of the respondent as we have described it may be seen as reflecting unfitness to practice law. Whether or not the respondent accepted the findings of the Delegate, and whether or not she intended to institute an appeal to have those finding[s] set aside, their significance is such that there can be no excuse for having failed to disclose them. It beggars belief that even though the respondent failed to understand that they are matters which went to the heart of her fitness to practice law and needed to be disclosed in any event. They are prima facie matters of significance in the context of fitness to practice as a legal practitioner and should have been regarded as such by the respondent if she had possessed the appropriate insight. These failings constitute professional misconduct. We find accordingly that the respondent is guilty of professional misconduct."
6. The Tribunal's finding at 30 that the appellant did not understand "the significance of the deficiencies revealed by the reasons of the Delegate for the suspension of her registration as a migration agent and thereby demonstrated a lack of insight into her serious misconduct as found" was not a finding that the appellant had conducted herself in the ways described in the reasons of the delegate that led to the delegate's conclusions quoted by the Tribunal as set out at [27] above. Fairly read, para 30 asserts that the appellant did not understand the significance of the fact that the MARA delegate had made findings in the terms in which she did.
7. The charge against the appellant in the Council's application to the Tribunal was that she failed to disclose that she had been the subject of disciplinary action in another profession or occupation by not disclosing the fact that she had been suspended as a migration agent for a period of 12 months. It was not a ground of the Council's application that she had failed to disclose the delegate's reasons for the suspension and the delegate's conclusions summarised at [6] of the Tribunal's reasons quoted at [27] above.
8. The Tribunal did not find that the appellant was required to disclose more than her suspension as a migration agent. It relied on the fact that adverse findings had been made that might be seen as reflecting an unfitness to practise law as demonstrating that she should have had the insight to appreciate the importance of her duty of candour and the need to make disclosure. The Tribunal's finding that she was guilty of professional misconduct was essentially based upon its finding that the appellant was not only careless but was recklessly indifferent to the need to make disclosure of matters that might be regarded by the Law Society as reflecting her fitness to practise law and this was so irrespective of the fact (as was accepted) that the appellant had not scrolled down the screen to see that r 13(1) required disclosure of disciplinary action against her in another occupation.

Grounds of appeal

1. The appellant represented herself before the Tribunal and on appeal. Her grounds of appeal were as follows: "1 Jurisdiction error - The Tribunal fails to take into account a matter that the Act explicitly requires the decision-maker to take into account. 2 Jurisdiction error - The Tribunal fails to take relevant considerations into account in the exercise of a power. 3 Jurisdiction error - The Tribunal takes an irrelevant consideration into account in the exercise of a power. 4 Jurisdiction error - The Tribunal exercise of a personal discretionary power at the direction or behest of another person. 5 Jurisdiction error - There was no evidence to justify the making of the decision. 6 Jurisdiction error - The Tribunal's decision was contrary to law. 7 Jurisdiction error - The Tribunal exercise a discretionary power in a way which can be characterised as legally unreasonable. Reasons given in the decision are illogical, biased, unreasonable, irrational and contradictory to each other. 8 Jurisdiction error - The Tribunal fails to accord procedural fairness by acting in a manner giving rise to a reasonable apprehension of bias. 9 Jurisdiction error - The Tribunal fails to accord procedural fairness by failing to afford a party personally affected by a decision a reasonable opportunity to deal with adverse material where procedural fairness is required."
2. Grounds 8 and 9 assert that the members of the Tribunal acted in a manner that gave rise to a reasonable apprehension of bias and that she was not afforded procedural fairness because she was not given a reasonable opportunity to deal with adverse material where procedural fairness required it.
3. Although the grounds of apprehended bias and procedural fairness may overlap, they are distinct concepts. They should be decided before the other grounds because establishment of those grounds would strike at the validity of the hearing before the Tribunal and result in an order for a rehearing (Concrete Pty Ltd v Parramatta Design and Developments Pty Ltd (2006) 229 CLR 577; [2006] HCA 55 at [2], [117]; Royal Guardian Mortgage Management Pty Ltd v Nguyen [2016] NSWCA 88; (2016) 332 ALR 128 at [9]; Toth v Director of Public Prosecutions (NSW) [2017] NSWCA 344 at [59]-[61]).

Apprehended bias

1. The appellant's submissions did not give any particulars of her complaint of apprehended bias of one or more of the members of the Tribunal. (The Tribunal was constituted by three members, Principal Member Marks who chaired the Tribunal, Deputy President Schyvens, and General Member Hayes.)
2. Shortly after the commencement of the hearing in the Tribunal there was the following exchange between Principal Member Marks and the solicitor appearing for the Council, a Mr Pierotti: "PRINCIPAL MEMBER MARKS: ... Mr Pierotti this is something that we want to direct to you, we have read the application and the material in anticipation of it becoming evidence and it is now in evidence and the grounds and particulars of the complaint seem to be confined to the failure of the respondent to declare the fact that she had been subject of disciplinary action as a migration agent. PIEROTTI: Correct. PRINCIPAL MEMBER MARKS: Is that the start and finish of it? PIEROTTI: It is. PRINCIPAL MEMBER MARKS: Included within your material is a copy of the decision by which the respondent was suspended as a migration agent. PIEROTTI: Correct. PRINCIPAL MEMBER MARKS: Have you read that? PIEROTTI: No. PRINCIPAL MEMBER MARKS: You have not read it? PIEROTTI: If I have I can't remember its facts. I may have skimmed it because it was not relevant to these proceedings. PRINCIPAL MEMBER MARKS: Why? PIEROTTI: Because the allegation, and with all due respect you are restricted to the allegation, was that the respondent had not disclosed the fact of the occurrence of the order, not the contents and indeed the Evidence Act would prohibit me to rely upon that document as truth of the facts in the document. ... PRINCIPAL MEMBER MARKS: Now here we have a finding of a competent tribunal of a whole range of misconduct on the part of this respondent. RESPONDENT: Your Honour may I correct-- PRINCIPAL MEMBER MARKS: You will get a chance in a minute. RESPONDENT: Okay yes. PRINCIPAL MEMBER MARKS: Which led to the suspension. You haven't familiarised yourself-- PIEROTTI: If I have I've forgotten the facts. PRINCIPAL MEMBER MARKS: Well we invite you to have a quick look at the decision now. Arguably they are matters which might impact upon the fitness to practice of this respondent. I'm not saying they are. But it occurs to us that these might be matters which should properly be a concern of the Law Society of New South Wales charged with the responsibility of regulating or charged in part with responsibility of regulating the legal profession and if they are indicative of matters which might affect a solicitor's fitness to practice, then arguably they should be before us. ... PIEROTTI: May I say this your Honour? Hypothetically I read the judgment and I form precisely the same view that this tribunal has formed. PRINCIPAL MEMBER MARKS: We don't have an informed view we have some preliminary observations. PIEROTTI: Concerns. PRINCIPAL MEMBER MARKS: Yes. PIEROTTI: Let's just say concerns or observations. The only allegation that is before this tribunal today because of the resolution or the making of the complaint does not go to that conduct. It may be of--"
3. Mr Pierotti then made a submission to the effect that the reasons for decision of the delegate of MARA would not be admissible to prove the facts that the delegate found and it would be inappropriate for him to make any submissions on the merits or otherwise of the conduct underlying suspension. He submitted: "PIEROTTI: ... I would have to respectfully say to this tribunal 'You should absolutely take your mind away from the conduct that led to the order'. And since the evidence is now before you and we don't know what the result of that was, there was an appeal by the respondent against those findings. PRINCIPAL MEMBER MARKS: Which we understand from the material filed was not proceeded with, it was withdrawn. PIEROTTI: Well for whatever reason, so there are a lot of other issues that may or may not arise. The point that I am putting to you is this. That once II step past the allegation in the application, I fall into the Smith dilemma and with respect, so does this tribunal because--"
4. Mr Pierotti referred to Smith v New South Wales Bar Association (1992) 176 CLR 256; [1992] HCA 36. The exchange continued: "PRINCIPAL MEMBER MARKS: I am not asking you to look at the merits of the judgment in today's proceedings. We are concerned that there are other matters which might adversely impact upon the fitness to practice law of this respondent. Is the Law Society, charged with the responsibility in part of the regulation of the legal profession, going to be interested in that and if not, why not? PIEROTTI: The short - there are three aspects to your Honour's question. The first part is yes, the Law Society looks at anything that concerns possible conduct issues involving a practitioner. To respond to your presiding members' second and third, that is are they looking and if so what are you doing, is with respect getting into the Smith situation because it taints your mind. My friend would be entitled to-- PRINCIPAL MEMBER MARKS: If you look at s 140 of the Legal Profession Uniform Law Application Act. The tribunal may vary disciplinary action--"
5. Section 140 of the Legal Profession Uniform Law Application Act 2014 (NSW) ("the Application Act") provides: "(1) The Tribunal may vary a disciplinary application, on the application of the person who made the disciplinary application or on its own motion, so as to ... include additional allegations, if satisfied that it is reasonable to do so having regard to all the circumstances. ... (3) The inclusion of an additional allegation is not precluded on any or all of the following grounds: (a) the additional allegation has not been the subject of a complaint, (b) the additional allegation has not been the subject of an investigation, ..."
6. In considering whether or not it is reasonable to vary a disciplinary application, the Tribunal is to have regard to whether varying the application will affect the fairness of the proceedings (s 140(2)).
7. The Tribunal, through Principal Member Marks, sought information as to who made the decision as to the framing of the charge of misconduct. The Tribunal was informed that that decision was made by the Council's delegate, Ms Foord. The Tribunal asked whether Ms Foord could be available to explain her decision as to how the charge was framed. Principal Member Marks said: "PRINCIPAL MEMBER MARKS: After having heard from her we can either, if we are so minded having regard to what the respondent says, ask the Law Society to reconsider the situation or we can reformulate the matter ourselves, expressing with deep regret that the Law Society has failed to fully look at all of the circumstances which pertain to this respondent in formulating the matter before us."
8. Principal Member Marks then addressed the appellant in relation to this issue. He said: "The other thing that is of concern is that your registration as a migration agent was suspended for a number of reasons which are clearly set out in the determination to suspend you. Some of those reasons might suggest that you did not pay proper attention and give proper regard to the circumstances of your client and furthermore, you didn't keep a proper file and furthermore you had a different attitude because you were giving advice pro bono. Pro bono advice still required the application of the skills of the professional person whether you are being paid for it or not. The law expects you to provide the same standard of professional care and to do all the things that you would otherwise do if you were being paid. So it is possible that these matters should be taken into account as part of what is known overall about you, to find out whether you are a fit and proper person to continue to be allowed to practice law as a solicitor. I am not saying there is any concluded view but there are concerns that these matters might be relevant or might become relevant in these proceedings. They are not presently raised in the proceedings and it would be very unfair to change the proceedings so that they were raised in them without giving you a chance to reply."
9. In response the appellant submitted that MARA was on a witch hunt against her (apparently because she acted for Buddhist refugees). She attempted to give the Tribunal an explanation of the alleged conduct on which the delegate of MARA made findings adverse to her. She submitted that the complainant had returned to Thailand and that his English was very poor and suggested that the complaint was really brought by another lawyer who wanted her business.
10. Ms Foord appeared before the Tribunal and explained why the complaint was confined to a failure to disclose suspension as a migration agent and did not cover the substantive conduct on which the complaint to MARA was based and on which adverse findings were made. She said that one of the reasons was that the decision of the delegate was the subject of an appeal (to the Administrative Appeals Tribunal) and it was the Council's view that it was inappropriate to take action until the appeal process had been exhausted as a matter of fairness to the practitioner. The appellant had advised the Tribunal that she was not proceeding with the appeal and when Ms Foord was asked about that her response was to say that the Law Society would review the evidence, but it could not rely on just the finding of the delegate of MARA.
11. The Tribunal was satisfied with this explanation and did not on its own motion amend the disciplinary application. In the course of the debate Deputy President Schyvens said that what was at issue was the question of efficiency and fairness to the appellant as to whether all potential complaints should be heard at the one time.
12. The Tribunal accepted that if the disciplinary application were to be amended the respondent would be entitled to an adjournment. The appellant opposed an adjournment. The Tribunal concluded: "PRINCIPAL MEMBER MARKS: ... This is a complex matter. On the one hand, the existing application has to be dealt with expeditiously. On the other hand, there might arguably be other matters which should properly be addressed. Given the circumstances, our current [inclination] is to now proceed with this matter, as it's currently constituted, by reason of the current application. But this will not preclude, hopefully, the Law Society from pursuing the other matters."
13. The only basis upon which an hypothetical reasonable lay observer arguably might apprehend that the Tribunal might not bring an impartial mind to bear on the issues before it is that the Tribunal at one point appeared to urge the Council to widen the grounds of complaint against the appellant and, when, after debate, it concluded that the complaint should not be widened, it said that "[t]his will not preclude, hopefully, the Law Society from pursuing the other matters."
14. The width or narrowness of the complaint was a matter the Tribunal was entitled to raise having regard to its power under s 140 of the Application Act to vary the disciplinary application on its own motion. There would be obvious merit in all potential grounds of a disciplinary application being dealt with in one hearing. A reasonable and fair-minded lay observer could not have apprehended that members of the Tribunal might not deal with the complaint impartially because the Tribunal queried why the complaint was limited in the way described. The final statement by Principal Member Marks might have been better expressed, but it could not reasonably be understood as conveying that he wanted the Law Society to bring a further complaint, rather than investigating whether a further complaint should be brought. Nor did the appellant submit otherwise.
15. This ground of appeal is not made good.

Procedural fairness

1. The appellant submitted that she had been denied procedural fairness in that the Tribunal did not provide her with the opportunity to deal with the adverse findings of the MARA delegate. She submitted that the Tribunal made its decision that her conduct constituted professional misconduct based upon the delegate's finding that she was not a person of integrity, or otherwise not a fit and proper person, without providing her the opportunity to list the matter in an appropriate court and to challenge the correctness of the delegate's finding. She cited what was said by Deane J in Smith v New South Wales Bar Association where Deane J said (at 274-275): "In the particular circumstances of this case, procedural fairness required that the Court of Appeal not make an order for disbarment which was partly based on a finding that the evidence which it rejected was deliberately false without relisting the matter and extending to the appellant an appropriate opportunity of being heard in relation to the justification and implications of such a finding."
2. The appellant misunderstood the use the Tribunal made of the delegate's findings as to her not being a person of integrity or a fit and proper person to practise as a migration agent. As explained above, the Tribunal did not assume the correctness of those findings. Rather, it said that the fact that such findings had been made should have alerted the appellant to the need to disclose her suspension, even though she did not realise that there was anything in r 13(1) that specifically required her to disclose that matter.
3. The question remains whether the appellant was afforded the opportunity to address the way the Tribunal ultimately used the delegate's findings. Neither the particulars of the charge, nor the Council's written submissions provided before the hearing in the Tribunal, referred to the delegate's reasons. The position taken by Mr Pierotti who appeared for the Council in the hearing before the Tribunal was that those reasons were not relevant and that the Tribunal was restricted to the allegation that the appellant had not disclosed the fact of her suspension (paras [37] and [38] above).
4. After the Tribunal had accepted that the matter should proceed on the complaint as filed and had apparently accepted that the reasons of the delegate of MARA were not evidence of the facts asserted in the delegate's reasons, Mr Pierotti made no further submissions in relation to the use, if any, to which the delegate's reasons could be put. That is to say, he did not resile from his initial position that the delegate's reasons were not relevant.
5. In Ms Foord's affidavit that was read before the Tribunal, she set out the reasons given by the Professional Conduct Committee for its resolution of 14 September 2017 that it was of the opinion that the alleged conduct of the appellant might amount to professional misconduct and that proceedings should be initiated in the Tribunal pursuant to s 300(1)(b) of the Uniform Law. The reasons included declarations made by the appellant in her application for renewal of her practising certificate as follows: "a. 'I declare that the contents of this application are true and correct. I wish to apply for renewal of an Australian practising certificate and have my name continue in the register of local practising certificates in New South Wales.' b. 'I declare that I am not aware of any finding, conduct or event which would disentitle me, without disclosure, to be admitted to a Supreme Court Roll or effect [sic] my fitness to hold a practising certificate (other than that which is disclosed herewith or previously disclosed'."
6. The reasons of the Committee continued: "In fact, the solicitor had been the subject of an adverse finding in disciplinary proceedings by the Migration Agents Registration Authority on 8 May 2017, some four days before she applied to renew her practising certificate, which resulted in her suspension as a migration agent."
7. The appellant cross-examined Ms Foord as to whether the Law Society was alleging that she had made a false declaration in the second declaration quoted at [55] above. Objection was taken to the question. After some debate the Tribunal sought to clarify the issue as follows: "PRINCIPAL MEMBER MARKS: Well the finding is obviously the MARA finding that you should be suspended and the reasons why, isn't that clear? Q. There is no other finding is that right, Ms Foord? A. Not that I'm aware of. PRINCIPAL MEMBER MARKS: Thank you. Next point."
8. Although not entirely clear, it would appear that at this point in the hearing all parties were proceeding on the basis that the relevant "finding" on which the Council relied was the finding that the appellant should be suspended. That left open the question whether the Tribunal might for itself consider that the reasons for that finding were material to the Tribunal's task. Later in the hearing in the course of the appellant's submissions Principal Member Marks told the appellant: "We're not worried about what MARA did, other than the fact that it suspended you."
9. Had matters rested there the appellant might have been justified in complaining that she was not put on notice as to how the Tribunal might use the adverse findings of the MARA delegate, without taking those findings to have been correct. But matters did not rest there. Towards the end of the appellant's submissions Deputy President Schyvens did articulate the use to which he considered the reasons and findings of the MARA delegate could be put. He said: "DEPUTY PRESIDENT SCHYVENS: So that question to me seems very clear. It's Fit and Proper Person. Yes, admittedly, it goes to r 13 subs 1, which we've heard a lot about today about what you did or didn't scroll on, but it's clear that that does ask under the heading of Fit and Proper Person, if there's any matter under the rules which you have not previously disclosed, and you answered no. RESPONDENT: Yes. DEPUTY PRESIDENT SCHYVENS: When the reality was in the very days leading up to completion of this you had been made aware of a finding against you. Forget about the substance because we're not dealing with the substance. RESPONDENT: Okay. DEPUTY PRESIDENT SCHYVENS: But you agree that you'd been found not to be a fit and proper person by another body. RESPONDENT: Yes, that's correct, but I'm-- DEPUTY PRESIDENT SCHYVENS: But that's the finding? RESPONDENT: Yes, but that's the finding not the tribunal but the MARA with the authority of the government. DEPUTY PRESIDENT SCHYVENS: But there was a finding by a body. RESPONDENT: Yes, right. DEPUTY PRESIDENT SCHYVENS: Which, correct me if I'm wrong, you then appealed a day or two before you completed this form? RESPONDENT: Yes, that's correct, because I don't think that the MARA decision is correct, so that's why I'm appeal. DEPUTY PRESIDENT SCHYVENS: But it's clear that you were aware that a body, whether you believed in it or not in its jurisdiction or its finding, a body had found you to be not a fit and proper person. ... DEPUTY PRESIDENT SCHYVENS: I'll just say it one last time. I'm just trying to assist you-- RESPONDENT: Yes. DEPUTY PRESIDENT SCHYVENS: --in bringing clarity to the issue of how you see this is not a serious or significant matter. Any person who is privileged enough to seek admission to the profession must disclose just about anything that's ever happened in their history, whether it be a traffic violation, a minor misdemeanour. They need to, if you like, air their soul so that the profession, which has to be held up in high repute by the public, gets an opportunity to determine whether a person is to practise. Surely then the obligation upon somebody who has been given that ability to practise must also be held to the same standard. It is significant to disclose, whether you believe the act was significant or not, the fact was that a body had found you explicitly not - not on a traffic offence, not on an unrelated offence but actually squarely on the definition of not a fit and proper person."
10. The appellant did make submissions in response to the issue thus raised, albeit that they did not address the concern expressed by Deputy President Schyvens and later by the Tribunal. In essence, the appellant submitted that the decision of the delegate of MARA was wrong, that it was discriminatory because she appeared on a lot of refugee applications and "MARA is basically is other side", and although her appeal from the decision had been withdrawn, she proposed to challenge the decision in court (presumably by way of an application for judicial review).
11. Accordingly, the appellant was afforded a fair opportunity to address the use to which the Tribunal ultimately put the conclusions expressed by the delegate of MARA. Grounds 8 and 9 of the notice of appeal are not made good.

Ground 1

1. Ground 1 of the notice of appeal is cryptic. It appeared from the appellant's written submissions that she contends that in order for a finding of professional misconduct to be made the Tribunal is required to be satisfied that both paragraphs (a) and (b) of s 297(1) of the Uniform Law are satisfied. She also apparently contends that the Tribunal did not find that both paragraphs were satisfied.
2. Neither submission should be accepted.
3. Section 297 of the Uniform Law is extracted above at [25].
4. "Unsatisfactory professional conduct" is described in s 296 as follows: "296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer."
5. The appellant's construction of s 297(1), if correct, would mean that there could never be a case in which conduct of a lawyer occurring otherwise than in connection with the practice of law could justify a finding of professional misconduct. That is because on the appellant's construction of the section paragraph (a) as well as paragraph (b) of subsection 279(1) would have to be satisfied before a finding of professional misconduct could be made. Paragraph (a) refers to unsatisfactory professional conduct. Section 296 defines unsatisfactory professional conduct (albeit inclusively) as conduct of a lawyer occurring in connection with the practice of law. As Basten and Meagher JJA said in Council of the Law Society of New South Wales v Parente [2019] NSWCA 33 (at [8]) the distinction between conduct in the exercise of the lawyer's profession and personal misconduct remains relevant to the first limb of the definition of "professional misconduct" in s 297(1)(a). If paragraphs (a) and (b) of s 297(1) must be read conjunctively then personal misconduct not occurring in connection with the practice of law could not be professional misconduct, notwithstanding the clear intention of s 297(1)(b) that such conduct may amount to professional misconduct if it would justify a finding that the lawyer is not a fit and proper person to engage in legal practice.
6. It is not clear why the conjunctive "and" rather than the disjunctive "or" is used in s 297(1). The same word had been used in s 497(1) of the Legal Profession Act 2004 (NSW). This involved a departure from the previous definition of professional misconduct in s 127(1) of the Legal Profession Act 1987 (NSW) where the disjunctive "or" was used. But it is important that the definition is inclusive. The section provides that professional misconduct includes unsatisfactory professional conduct of the kind described in para (a) and includes conduct described in para (b).
7. The appellant cited no authority in support of the construction she propounded and I am aware of none. Many cases proceed on the basis that it is sufficient to establish professional misconduct that either paragraph of s 297(1) is satisfied.
8. In any event, the Tribunal's finding (at [32] quoted at [29] above) amount to findings that both paras (a) and (b) of s 297(1) were satisfied. The appellant had admitted unsatisfactory professional conduct. The Tribunal found that the appellant's failure to disclose that she had been the subject of disciplinary action as a migration agent was a substantial failure to reach a reasonable standard of competence and diligence. It found that her conduct constituted a substantial failure to maintain a reasonable standard of competence and diligence, albeit without specifically identifying what conduct amounted to failure to maintain such a standard. It may be inferred that the Tribunal considered that the appellant had a continuing lack of awareness of or disregard to the obligations of candour in applying for renewal of her practising certificate.
9. The Tribunal also found that the appellant's conduct "... may be seen as reflecting unfitness to practise law". When read with the findings that follow, this was evidently a finding that her conduct was such as to justify a finding that she is not a fit and proper person to engage in legal practice.

Ground 2

1. Ground 2 did not identify any error on the part of the Tribunal. It contended that the Tribunal failed to take irrelevant considerations into account. Clearly enough "irrelevant" was meant to be "relevant". The ground did not identify in what respects the Tribunal failed to take relevant considerations into account.
2. In her submissions the appellant contended that the Tribunal had found that she acted dishonestly by intentionally choosing to restrain herself from scrolling down to see the whole of r 13 and with her suspension in mind intentionally chose not to disclose her suspension for fear of its effect on the renewal of her legal practice certificate. She contended that the Tribunal did not apply the principles in Briginshaw v Briginshaw and could not have been comfortably satisfied that she acted dishonestly.
3. The Tribunal was well aware of the principles in Briginshaw v Briginshaw and referred to them (at [21] and [22]). Contrary to the appellant's submission, the Tribunal applied the principles in Briginshaw v Briginshaw at [22] in deciding that it was not comfortably satisfied that the appellant knowingly avoided looking at r 13(1)(g). In the same paragraph the Tribunal said that there could be no suggestion that the appellant was aware of the provisions of the sub-rule and ignored them.
4. The Tribunal did not find that the appellant knew that the fact of suspension of her registration and the reasons for the suspension were relevant to consideration by the Law Society whether she was a fit and proper person to hold a practising certificate. Rather, the Tribunal found (at [25]) that "we do not accept that she could not reasonably have known that the fact of suspension ... and the reasons therefore were not relevant ..." (emphasis added). The Tribunal did not find that the appellant acted dishonestly. It found that she acted with reckless indifference to the adequacy of her disclosure. As the Council submitted on appeal, the Tribunal's findings could be characterised as being that the appellant acted with reckless carelessness.
5. This ground of appeal should also be rejected.

Grounds 3, 4 and 7

1. The appellant's contention that the Tribunal took an irrelevant consideration into account was based upon her submission that the Tribunal "... itself has incorporated MARA's decision to suspend my migration license [sic] as the factor to determine that I am guilty of professional [mis]conduct".
2. This ground can be considered with ground 4 (Tribunal exercising its power at the direction or behest of another person) and ground 7 (exercising its power in a way which can be characterised as "legally unreasonable"). The appellant relied upon the same matters for each of the grounds. She submitted that the Tribunal had used the findings of the delegate of MARA incorrectly as establishing the truth of the matters the delegate found. For the reasons I have earlier given that submission misconceived the Tribunal's approach. The Tribunal expressly did not act on the basis that the findings of the delegate should be accepted as true.

Grounds 5 and 6

1. The appellant did not provide submissions expressly directed to ground 5 (that there was no evidence to justify the Tribunal's decision) or ground 6 (that the decision was contrary to law). Those grounds might be taken to cover the question of whether the Tribunal's findings justified the finding of professional misconduct.
2. In summary, the Tribunal's findings do not include a finding of knowing or deliberate concealment of her suspension as a registered migration agent, but do include findings that the appellant was recklessly indifferent to the adequacy of her disclosure, that she lacked an understanding of the high degree of trust which must repose in a person who asserts that she is a fit and proper person to practise the profession of a solicitor, and that she lacked understanding of her duty to make full and accurate disclosure to the Law Society.
3. Those findings justify the finding of professional misconduct.
4. An applicant for admission, or in this case for the renewal of a practising certificate, has a duty of candour. The content of that duty extends to a requirement that an applicant disclose material facts in their application for renewal. Deliberate or wilful concealment is professional misconduct (A Solicitor v Council of the Law Society of New South Wales (2004) 216 CLR 252; [2004] HCA 1 at [30]; Prothonotary v Comeskey [2018] NSWCA 18 at [57]-[63]).
5. The same conduct, even if not deliberate, may still support a conclusion that an applicant is not a fit and proper person to engage in legal practice if the conduct reveals a lack of appreciation of the content and importance of the applicant's duty of candour (Prothonotary of the Supreme Court of New South Wales v Montenegro [2015] NSWCA 409 at [74]-[76]).
6. Re Hodgekiss [1962] SR (NSW) 340 was concerned with whether there had been a "wilful failure" by a legal practitioner to comply with ss 41 and 42 of the Legal Practitioners Act (1898) (NSW). Hardie J there quoted the following passage from In Re Vickery [1931] 1 Ch 572, where Viscount Maugham said (at 583): "… a person is not guilty of wilful neglect or default unless he is conscious that, in doing the act which is complained of or in omitting to do the act which it is said he ought to have done, he is committing a breach of his duty, or is recklessly careless whether it is a breach of his duty or not."
7. Hardie J concluded: "I am of the opinion that the section deals with personal breaches of the statutory provisions in question on occasions when the solicitor knew or believed that he was committing such breaches or was recklessly careless in that regard." (See also Re Mayes and the Legal Practitioners Act [1974] 1 NSWLR 19.)
8. The distinction that is here being drawn is between conduct that is wilful or deliberate, or recklessly careless on the one hand, and conduct that is merely negligent or careless on the other.
9. Recklessness in this context refers to the making of disclosure while having no real belief as to the truth or completeness or adequacy of what is disclosed (Prothonotary of the Supreme Court of New South Wales v Montenegro at [4], [25] per Meagher and Leeming JJA, Emmett AJA).
10. In the present case, the Tribunal made an express finding that the appellant was recklessly careless as to the adequacy of her disclosure and her compliance with her duty of candour. That is tantamount to having no real belief as to the adequacy of the disclosure. On the law that applied in Re Hodgekiss, the Applicant's conduct would have been 'wilful' and would have amounted to professional misconduct.
11. In The Council Of The Law Society Of New South Wales v Graham [2005] NSWCA 127, Mason P, with whom Handley JA and Pearlman AJA agreed, referring to s 127 of the Legal Profession Act 1987 (NSW) said (at [41]): "Wilfulness is not the touchstone of misconduct of either variety. Unlike s 43 of the Legal Practitioners Act 1898 that was considered in Re Hodgekiss especially at 352 and 353, and unlike ss 61(8) and 62(4) of the current Act, "wilful" is not part of the statutory definitions of misconduct of either variety. Nor is it a necessary element of the common law concept of professional misconduct. This is not to suggest that a wilful or contumelious breach of a clear obligation is incapable of being a strong pointer to that level of unfitness to practise that would engage the notion of professional misconduct."
12. Although wilfulness is no longer an element in the definition of professional misconduct under the Uniform Law, here the appellant's reckless carelessness would have amounted to a wilful breach of her duty of candour. Such a contravention, in and of itself, amounts to unsatisfactory professional conduct involving a substantial failure to reach a reasonable standard of competence and diligence (s 297(1)(a)). As the Tribunal observed, it also points to the appellant's disregard for the content and importance of her duty of candour, which in turn justifies a finding of unfitness to practise in satisfaction of s 297(1)(b).

Conclusion and orders

1. For these reasons the appeal should be dismissed. The order staying proceedings in the Tribunal should be discharged.
2. I propose the following orders: 1. Appeal dismissed. 2. Discharge the order made on 22 October 2018 that further proceedings between the appellant and respondent in the NSW Civil and Administrative Tribunal be stayed. 3. Appellant pay the respondent's costs.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 19 June 2019