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[2015] ACTCA 20
Court of Appeal (ACT)
2015-05-22
Murrell CJ, Burns and Perry JJ
Original judgment source is linked above.
Source: the ACT Courts (www.courts.act.gov.au). Converted to plain text by ZoeLaw. Not the official version.
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title: The Legal Practitioner v Council of the Law Society of the ACT
Citation: [2015] ACTCA 20
Hearing Date: 16 February 2015
Decision Date: 22 May 2015
Before: Murrell CJ, Burns and Perry JJ
Decision: The appeal is dismissed with costs.
Category: Principal Judgment
Catchwords: APPEAL AND NEW TRIAL – In general and right of appeal – appeal from Supreme Court of ACT affirming decision of Civil and Administrative Tribunal – where Tribunal made findings of unsatisfactory professional conduct and professional misconduct - where Tribunal found practitioner made false representations and acted without instructions – whether Tribunal should have had regard to possibility of mistake as to date, where sequence of events rather than precise date is material - whether “dishonesty” needed to be alleged where intermediate findings of fact – whether acting contrary to instructions resulted in harm – no error in Tribunal’s findings APPEAL AND NEW TRIAL – Excessive or inadequate penalty – whether penalty was excessive – no error in principles applied by Tribunal – where considering and rejecting practitioner’s submissions as to penalty did not amount to failure to consider alternative penalty – where penalty concerned with protection of the public and integrity of the justice system EVIDENCE – Unexplained failure to give evidence cannot assist the party declining to lead evidence – principle in Jones v Dunkel cannot be used to infer that untendered evidence would have been damaging to the party not calling the evidence – principle in Jones v Dunkel cannot convert speculation into inference
Legislation Cited: ACT Civil and Administrative Tribunal Act 2008 (ACT) s 79 Legal Profession Act 2006 (ACT) ss 397, 425(3) ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT) reg 30 Legal Profession (Solicitors) Rules 2007 (ACT) rr 1.1, 1.2, 39.1
Cases Cited: A Solicitor v Law Society (NSW) (2004) 216 CLR 253 Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 Belmost Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch. 250 Briginshaw v Briginshaw (1938) 60 CLR 336 Council of the Law Society (ACT) v The Legal Practitioner [2010] ACAT 45 Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2 Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46 Jones v Dunkel (1959) 101 CLR 298 Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 Legal Practitioner v Council of the Law Society (ACT) (2011) 257 FLR 118 Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 NSW Bar Association v Cummins (2001) 52 NSWLR 279 O’Donnell v Reichard [1975] VR 916 Schellenberg v Tunnel Holdings Pty Ltd (2000) 200 CLR 121 Smith v New South Wales Bar Association (1992) 176 CLR 256 The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (No 2) [2014] ACTSC 9 Walter v Council of Queensland Law Society Incorporated (1988) 62 ALJR 153
Parties: The Legal Practitioner (Appellant) Council of the Law Society of the ACT (Respondent)
Representation: Counsel Self-represented (Appellant) Mr N Beaumont SC with Ms T Dinh (Respondent)
Solicitors Self-represented (Appellant) Phelps Reid Lawyers (Respondent)
File Number: ACTCA 7 of 2014
Decision under appeal: Court: Supreme Court of ACT Before: Refshauge J Date of Decision: 6 February 2014 Case Title: The Legal Practitioner v Council of the Law Society of the ACT (No 2) Citation: [2014] ACTSC 9
THE COURT:
Introduction
The appellant, a legal practitioner (the Practitioner), was found guilty of unsatisfactory professional conduct and professional misconduct by the ACT Civil and Administrative Tribunal (the Tribunal): Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 2 (the ACAT Substantive Decision). The Tribunal ordered that his local practising certificate be cancelled and recommended removal of his name from the local roll: Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 46 (the ACAT Penalty Decision).
An appeal to the Supreme Court against the Tribunal’s decisions on liability and penalty was dismissed on 6 February 2014: The Legal Practitioner v Council of the Law Society of the Australian Capital Territory (No 2) [2014] ACTSC 9. The Practitioner appeals from that decision on the grounds that the primary judge ought to have found error in the Tribunal’s decisions as to liability and penalty.
For the reasons set out below, no error is apparent in the decision below and the appeal must be dismissed.
Background
Circumstances leading to the complaints
In 2007 the Practitioner practiced as an employee solicitor in two Canberra legal firms and held a restricted practising certificate.
The Practitioner encountered Ms L and Ms N for the first time on 7 May 2007 at the Magistrates Court. Ms L and Ms N are sisters.
Later that month, the Practitioner received instructions from Ms N to act for her in proceedings in the Family Court of Australia in a child custody matter. Ms N and the Practitioner commenced a personal intimate relationship although the question of whether that relationship commenced before the Practitioner was retained was the subject of dispute in the Tribunal.
In about June 2007, the Practitioner received instructions to act for Ms L in an appeal by Ms A to the Supreme Court. The appeal related to an order of the Magistrates Court refusing an application for revocation of a personal protection order made in February 2007 against Ms A in Ms L’s favour. Ms A is the mother of Ms L’s former de facto husband.
The Practitioner appeared for Ms L in this Court before Higgins CJ on 14 September 2007 on an application to inspect documents in connection with the appeal. Mr C appeared for Ms A. On that date, the appeal was allowed allegedly by consent and the protection order was set aside. The proceedings were remitted to the Magistrates Court for hearing on condition that Ms A gave an undertaking in the same terms as the protection order pending that hearing.
On 23 October 2007, the Practitioner wrote to Legal Aid advising that the firm was withdrawing from Ms N’s matter as the client had taken back the file and stating that Ms N’s matter was substantially completed. He signed the covering letter and attached an invoice for $1650 + GST from which was deducted the “client contribution” of $90. Legal Aid paid the invoice on the same day.
On 25 October 2007, the Practitioner told Ms L that he could no longer act for her as Ms N had made a complaint against him.
Ms N complained on 29 October 2007 to the Law Society of the Australian Capital Territory (the Law Society) about the Practitioner’s conduct in acting for her. A copy of that complaint was forwarded to the Practitioner on 31 October 2007 under cover of a letter from the Law Society which gave him until 14 November 2007 within which to respond.
The Practitioner replied to the letter from the Law Society on 12 November 2007 and stated among other things that he had entered into a relationship with Ms N about one month before he commenced acting for her.
The Practitioner also wrote to Legal Aid stating that Ms N had withdrawn her instructions from him on 23 October 2007 “due to a conflict of interest issue” and recommended that legal aid be continued. The body of that correspondence was quoted in a letter to Legal Aid dated 12 November 2007 although the original letter (if it existed) does not appear to have been in evidence. He also stated in the letter that he was always acting for Ms N “on a Pro Bono basis” and that “even though the grant of Legal Aid was transferred to my firm due to Ms [N’s] insistence we had no intention of ever claiming the grant.” He further said that his firm had never collected the $90.00 client contribution. The Tribunal found however, that “there is no doubt that Ms [N] paid the $90.00 contribution fee” and paid it in cash.
In respect of the grant to Ms [N], our file shows a record of an email from yourself in the matter requesting that the s.32 list be amended to include your firm for family law matters and that the grant be transferred to you. On 21 August 2007, we sent correspondence to your firm seeking confirmation of the present position. Your [the Practitioner] replied by way of email indicating the status of the matter.
On 14 November 2007 the Practitioner replied, again asserting that it had always been his intention to act for Ms N on a pro bono basis and enclosing a personal cheque in the sum of $1,815.00 in repayment of monies paid to his employer by Legal Aid for Ms N’s matter.
Ms L made a complaint to the Law Society on 19 November 2007 that the Practitioner had terminated his retainer on 25 October 2007 without just cause and had misled her.
On 19 February 2008, Ms L made a further complaint to the Law Society that the Practitioner had acted against her instructions by informing the Supreme Court on 14 September 2007 that she was willing to have the personal protection order against Ms A lifted.
As required by s 397 of the Legal Profession Act 2006 (ACT) (the Legal Profession Act), the Law Society informed the Practitioner of each of the complaints seeking his response.
In due course, the Law Society commenced investigations into the complaints by Ms N and Ms L.
The complaints
The Council of the Law Society (the Council) applied under s 419 of the Legal Profession Act to the Legal Practitioners Disciplinary Tribunal for orders on 21 August 2008 in relation to the complaint by Ms N (LP 6/08) and on 24 February 2009 in relation to the complaints by Ms L (LP 1/09). On the abolition of the Legal Practitioners Disciplinary Tribunal on 2 February 2009, the application was deemed to be an application to the ACT Civil and Administrative Tribunal (reg 30 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT)).
Two complaints were laid. The first complaint which arose from Ms N’s complaint (LP 6/08) was that:
…the Practitioner is guilty of professional misconduct and/or unsatisfactory professional conduct in that between October 2007 and December 2007 the Practitioner engaged in conduct in breach of Rule 39.1 of the Legal Profession (Solicitors) Rules 2007 in his dealings with the Society in relation to the investigation of a complaint made to the Society by a former client, Ms [N] (the ‘Client’).
The complaint was summarised as “Failure to be open and honest in his dealings with the Society”. The two grounds, described as particulars, of the first complaint were as follows:
The Practitioner represented to the Society that a personal relationship existed with the Client prior to his retainer by the Client as her solicitor in circumstances where a personal, and later sexual, relationship did not develop until after the solicitor/client relationship and by so doing sought to diminish the perception of undue influence which the personal relationship may have had upon the solicitor/client relationship. 2. The Practitioner represented to the Society that he understood he was acting in a pro bono capacity for the Client in circumstances where he was aware that the matter was legally aided. (emphasis added)
The second complaint (LP 1/09), which arose from the complaints by Ms L, was that:
… the Respondent has breached either all or one or more of Rules 1.1, 1.2 and 39.1 of the Legal Profession (Solicitors) Rules 2007 in the course of acting for Ms [L] between June and October 2007 and his subsequent dealings with the Law Society in relation to the investigation of the complaint made to the Society by Ms [L]. The Society further contends that such breach or breaches amount to professional misconduct or, unsatisfactory professional conduct, justifying an order by the Tribunal.
Ground 1 Failure to treat his client fairly and in good faith and to act honestly, fairly and with competence and diligence in the service of his client. Particulars: 1.1 The Respondent acted without instructions and, contrary to Ms [L]’s standing instructions in consenting to the restraining order obtained by Ms [L] in the Magistrates Court being set aside by the Supreme Court in substitution for an undertaking. Ground 2 Failure to be open and frank in his dealings with the Society. Particulars: 2.1 The Respondent represented to the Society that Ms [L] was present at all times in court during the hearing of the appeal by Chief Justice Higgins and gave him specific instructions to consent to the orders which were made in circumstances where Ms [L] was not present and gave no such instructions. Ground 3 Improper attempt to interfere with potential witness Particulars: 3.1 On or about 2 April 2009, at a time when [Mr C] had, to the knowledge of the Respondent, provided to the Law Society a statement concerning the matters the subject of Ground 1 of this Complaint, and was proceeding to prepare and swear an affidavit to be used in these proceedings in relation to Ground 1, the Respondent improperly attempted to intimidate, pressure or dissuade [Mr C] from giving his evidence in these proceedings, or from adhering to the evidence appearing in his statement by: (a) telephoning [Mr C]; (b) advising [Mr C] that he had obtained a statement from [Mr C’s] client, [Ms A], in which she accused [Mr C] of appearing in Court on 14 September 2007 without instructions; and (c) advising [Mr C] that he was considering lodging the statement with the Law Society and that he, the Respondent, wanted to pre-warn [Mr C] about his conduct because the matter would come out eventually at the hearing.
1.1 A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner. 1.2 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness. … 39.1 Subject only to his or her duty to the client, a practitioner should be open and frank in his or her dealings with the Law Society.
The decision by the Tribunal
The complaints were heard and determined together. The applicant was legally represented before the Tribunal. However, he chose not to give affidavit evidence or to submit himself to cross-examination despite having sworn and filed affidavits. Nor, aside from the evidence led from the Practitioner’s three colleagues, Mr F, Mr R and Mr J, and from Ms A, were any of the affidavits of the remaining witnesses read by him and none of them were called.
On 1 February 2010, Tribunal delivered its decision upholding the complaints alleged by the Council.
(a) First, it accepted that the two particulars to the charge in relation to Ms N which constituted the first complaint (LP 6/08) were made out and found that the underlying conduct amounted to unsatisfactory professional conduct (at [137])
(i) As to the first particular, the Tribunal found at [112] of its reasons that the Practitioner had misled the Law Society by claiming that he had commenced his relationship with Ms N in April 2007 before she had retained him to act for her, and not in July 2007 after the retainer had commenced. (ii) As to the second particular, the Tribunal found at [126] that the Practitioner further misled the Law Society by representing to it that he understood that he was acting for Ms N in a pro bono capacity, when he knew that the matter was legally aided.
(b) Secondly, the Tribunal found that grounds 1, 2 and 3 of the second complaint relating to Ms L (LP 1/09) were made out and that the conduct warranted a finding of professional misconduct. Specifically it found that:
(i) as to ground one, the Practitioner acted without, and contrary to, the instructions of Ms L in consenting to the setting aside of the personal protection order (at [199-200]);
(ii) as to ground two, the Practitioner misled the Law Society and represented to it that Ms L was present in court and gave instructions as to the setting aside of the protection order, when in truth she was not present and did not give any such instructions (at [199-200]); and
(iii) as to ground three, the Practitioner had improperly attempted to interfere with a potential witness, Mr C. In particular, the Tribunal found that, as charged, the Practitioner called Mr C who had been the Practitioner’s opponent at the hearing where the Practitioner had alleged that Ms L was present, and attempted to intimidate, pressure or dissuade Mr C (at [208]).
In so finding, the Tribunal accepted the credit of the witnesses called by the Council and found that evidence to be corroborated by contemporaneous documents.
An appeal against Tribunal’s findings under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act) was struck out on 31 March 2010 on the ground that it was incompetent. On 27 May 2010, an application by the Practitioner to re-open was also refused: Council of the Law Society (ACT) v The Legal Practitioner [2010] ACAT 45.
At the conclusion of the hearing on penalty on 27 May 2010, the Tribunal ordered that the Practitioner’s local practising certificate be cancelled pursuant to s 425(3)(b) and recommended that his name be removed from the local roll pursuant to s 425(3)(a) of the Legal Profession Act: the ACAT Penalty Decision.
On 13 August 2010, the Tribunal ordered that the Practitioner pay the Council’s costs on a party-party basis. That order was stayed.
The appeal to the Court below
The Practitioner appealed the Tribunal’s decisions under s 79 of the ACAT Act. The appeal was removed to the Supreme Court by consent on 13 September 2010. On 23 December 2011, the primary judge ordered that “[t]he appeal be heard as a review as under s 82(b) of the ACT Civil and Administrative Tribunal Act 2008 (ACT), that is as a rehearing, subject to r 5052 of the Court Procedures Rules 2006 (ACT)”, and that it be heard by a single judge: Legal Practitioner v Council of the Law Society (ACT) (2011) 257 FLR 118 and reasons below at [50]-[51].
The notice of appeal identified fourteen alleged errors of law and also contended that the evidence provides “a too fragile a base to sustain the Tribunal’s findings of fact which are against the weight of evidence.” The Practitioner also sought to rely on further evidence.
The primary judge dismissed the appeal against the Tribunal’s decisions with costs and ordered that the proceedings be remitted to the Tribunal so that its orders could be given effect.
The Issues on Appeal
The notice of appeal initially raised nineteen grounds of appeal against the primary judge’s decision dismissing the appeal against the substantive complaints and against the penalty on the ground that it was excessive. As will become apparent, the grounds of appeal were vague, largely incomprehensible and frequently bore little or no correlation to the grounds of appeal raised before the primary judge.
At the start of the hearing of the appeal, the Practitioner confirmed that he abandoned appeal grounds 10, 11, 13, 14 and 15. Nonetheless, the Practitioner put oral submissions on ground 10 which has therefore been considered. The Practitioner also stated that he wished to maintain appeal grounds 7, 9 and 12 even though those grounds were not addressed in writing (the so-called “submissions” in support of the grounds comprised merely quotations from the judgment below). Those grounds allege that:
The Court erred and exceeded its authority in making comments that the submissions by the Practitioner were ‘absurd and bizarre’, ‘barefaced lie’, dismissive of, and discourteous to, this Court. … 9. The Court erred in not considering the fact that the Order obtained in the Magistrates Court at all times had to be remitted back to that Court. … 12. The Court erred in making criticisms of the self represented parties submissions confusing the Appellant with the advocate.
Nonetheless, no oral submissions were made which were in fact referable to grounds 7 and 12, although the Practitioner conceded that he did not allege bias against the primary judge. That being so, grounds 7 and 12 do not give rise to any comprehensible ground of appeal.
Finally, while various assertions were made in the Practitioner’s submissions outside the scope of the grounds of appeal, these largely related to inferences that the Practitioner asked the Court to draw on the ground that they could not be ruled out because of his failure to give evidence. These submissions effectively assume that the Practitioner should be in a better position because he declined to give evidence, than he might have been in if he had given evidence. However, it is a novel and bold proposition that an unexplained failure to give evidence should assist the party declining to give evidence, and such a failure manifestly cannot fill gaps in the evidence: (see at [55]-[56] below). Nor in any event, was any application made to amend the grounds of appeal. Consideration
Challenges to the finding that the Practitioner had misrepresented that his personal relationship with Ms N occurred before his retainer (appeal grounds 1, 2, 3 & 6; 1st complaint, ground 1)
The Tribunal’s findings
The Practitioner challenges by grounds 1, 2, 3 and 6, the Tribunal’s findings on the first complaint (LP 6/08) that the Practitioner had falsely represented to the Law Society that his personal relationship with Ms N predated his retainer, so as to diminish the perception of undue influence. The representations found to be false were made in the Practitioner’s reply on 12 November 2007 to the Law Society’s invitation to respond to Ms N’s written complaint made on 29 October 2007 and in his letter to the Law Society on 12 December 2007.
In her complaint, Ms N had alleged that she first met the Practitioner in April 2007 when attending court with her sister and that she had asked the Practitioner to represent her subsequently in her custody dispute, with the Practitioner commencing to act on her behalf on transfer of the legal aid grant in late May 2007. She further alleged that she and the Practitioner began a personal relationship in approximately July 2007 when the Practitioner invited her out for drinks to celebrate when she filed for divorce. She alleged that a sexual relationship developed soon afterwards which continued for the next two to three months.
However, in his reply to the Law Society on 12 November 2007, the Practitioner stated that:
…Ms [N] and myself entered into a personal relationship approximately one month before her family law case was transferred to me. During this time I was seeing Ms [N] approximately two or three times a week and during that time she often talked about her family law case and expressed her dissatisfaction with the lawyer that was handling the matter. Ms [N] kept pressing me to take the matter over and I reluctantly agreed. … I would also like to emphasise that our relationship commenced before my firm took the matter over and once I realised that it is [sic] was inappropriate for me to act I told Ms [N] that the matter would have to be transferred. (emphasis added)
The Practitioner reiterated his claim that he was in a relationship with Ms N before being retained by her in a letter from him to the Law Society dated 12 December 2007. In that letter, the Practitioner said that he met Ms N and her sister outside the Magistrates Court in April 2007 and that a personal relationship “quickly developed soon after that meeting”. At the Tribunal hearing, the Practitioner also led evidence from three other practitioners who said that they had seen the Practitioner and Ms N together “in” (or “in or about”) April 2007. Two of those witnesses also said that they saw the Practitioner and Ms N together at that time as boyfriend and girlfriend.
The Tribunal found at [112] that the Practitioner was untruthful with the Law Society when he asserted on both occasions that a personal relationship pre-dated the retainer and that “[t]here is therefore no answer from the Practitioner to the charge that he falsely represented as much to the applicant Society for the purpose of minimising the seriousness of his conduct.” In so finding, the Tribunal was mindful of the seriousness of the charge and the severity of the potential sanctions, and therefore proceeded on the basis that the evidence must be carefully weighed: at [103]. That approach reflects the common sense principle in Briginshaw v Briginshaw (1938) 60 CLR 336 that the seriousness of an allegation made, and the gravity of the consequences flowing if the allegation is made out, bear upon whether the allegation is established to the reasonable satisfaction of the decision-maker. However, while the Tribunal found that the evidence of Ms N and Ms L “was consistent, credible and relevantly unchallenged in cross-examination” (at [104]), it had serious concerns about the reliability of the evidence of two of the three other practitioners called, and found that the evidence of the third practitioner had little or no weight: at [104]. Ultimately the Tribunal preferred the testimony of Ms N and Ms L, finding at [106]-[107] that:
… when one adds to the unshaken and credible testimony of Client N and [L] (in this respect), the undisputed objective facts: that Client N met the Practitioner at court while an aspect of Client [L]’s matter was being dealt with; that she consulted him a few days later on 9 May 2007; and that on 21 May 2007 the Practitioner’s firm took over her Legal Aid matter; together with the incontrovertible and unanswerable objective evidence of the mobile telephone records which support Client N’s version of events, the Tribunal finds that there are no deficiencies in the evidence in this respect. The Tribunal is comfortably satisfied that the Society has proved this charge without the need to draw inferences. However, the Tribunal regards the failure of the Practitioner to, not only read his own affidavits filed in these proceedings, but not to read the affidavits of other witnesses, not call them and not subject himself to cross-examination seriously, worthy of criticism and inviting the drawing of a negative inference. The Tribunal would more readily draw the negative inference given the practitioner’s obligation of frankness, candour and assistance which he owes the Tribunal.
The evidence led by the Practitioner from the three other practitioners
The Practitioner did not challenge the evidence led by the Council that the date on which he first met Ms N was in fact 7 May 2007, and not April, it having been ascertained subsequently that this was the date on which Ms L’s protection-order matter was listed before the Magistrates Court. Moreover, the Practitioner accepted the correctness of the Tribunal’s finding at [59] that the first meeting occurred on 7 May 2007 in his oral submissions on the hearing of the appeal. It follows, as the Council contended, that the evidence of the three practitioners could not have been correct. The Practitioner’s concession is inconsistent with appeal ground 1 which must therefore be dismissed.
Furthermore, no issue can be taken with the Tribunal’s finding that it preferred the “unshaken and credible testimony of Client N and Client L” together with the objective facts, including the telephone records, as against the evidence given by the three practitioners: at [106]. Weaknesses in the evidence of the three practitioners identified by the Tribunal included that: their evidence was not objective (being friends of the Practitioner); they were purporting to give evidence about an inconsequential event occurring some two years before they were asked to recall it; none of the practitioners could point to any objective matter or event in their statements or affidavits explaining how they could recall the date of such an inconsequential event; they only volunteered an objective event in cross-examination but each such event was arbitrary and unrelated to the meeting; and two of the three practitioners effectively acknowledged that they could be mistaken, while the third practitioner’s refusal to acknowledge the possibility of error pointed to unreliability: at [84]-[91]; see also at [92]-[102] and [104]-[105].
It follows that we agree with the primary judge that no error is evident in the Tribunal’s treatment of the evidence of the three practitioners.
The alleged failure to have regard to the possibility that the Practitioner was confused or mistaken as to the date of the first meeting
Given the errors as to dates by all parties in my submission there is a clear alternate finding that I did not intentionally mislead anyone [sic] I like Ms N initially and like the three practitioners may have been confused as to the date and I and the three practitioners perhaps were wrong with our [sic] markers whilst Ms L was found by the court to be correct.
The Tribunal’s reliance upon telephone records
The Practitioner also complains that the Court erred in finding that the objective evidence provided by the telephone records were sufficient to justify finding that he had misrepresented that his personal relationship with Ms N occurred before his retainer.
In this regard, the Tribunal found at [61] that:
The telephone records produced on subpoena reveal that both Client N and the Practitioner were regularly using their mobile telephones throughout April 2007, without having made a single call to each other. They reveal that Client N did not make a telephone call to the Practitioner’s mobile telephone until 21 May 2007, the day that her matter was transferred to the Practitioner and thereafter in May she made 5 calls to him. The records reveal that, during April 2007 the Practitioner made no calls at all in April 2007 to Client N’s mobile telephone and, during May 2007 he made a total of 6 calls to Client N’s mobile telephone.
The Practitioner produced no evidence at all to explain to the Tribunal how it was that, if, as the Practitioner asserted, he and Client N were indeed in a personal relationship from early or mid April and that the records reveal that they were both using their mobile telephones regularly, their mobile telephone records in fact revealed that not one call was made to each other in April 2007 whereas, in August 2007 they each made up to 70 calls in one month when their relationship was flourishing.
The significant escalation in mobile phone calls between them, particularly in July when Ms N gave evidence that their intimate relationship commenced, is detailed at [77]-[83] of the Tribunal’s reasons.
Not surprisingly, in our view, the Tribunal therefore found at [76] that:
[t]he objective evidence provided by the mobile telephone records provides support for Ms [N]’s version of events and, in particular, when the personal relationship between them [i.e. Ms [N] and the Practitioner] might, more probably than not, have commenced.
At the hearing below, the Practitioner was also critical of the evidence of the phone records and the Tribunal’s reliance upon them, given that Ms N’s landline phone records, amongst others, were not produced by the Council to the Tribunal. In particular, he sought to rely upon the fact that Ms N’s mobile telephone records did not show a call from her to the Practitioner until 22 May 2007 despite her evidence that she telephoned him to make an appointment to discuss the case shortly after 7 May 2007 (reasons below at [410]). The Practitioner submitted that an inference should be drawn that there was another call from a phone used by Ms N in early May and that, as Ms N’s landline phone records had not been produced, an inference should be drawn against the Council. In support of his submission, the Practitioner relied upon Jones v Dunkel (1959) 101 CLR 298 (Jones v Dunkel).
Nonetheless, the primary judge held in rejecting that submission at [412]-[413] that:
He appeared, however, to fall into the trap that his counsel pointed to at the hearing, namely that the inference that could be drawn was in fact damaging to the party not calling the evidence. That is not what the principle states. Further, the inferences that can be drawn do not fill in gaps in the evidence. As a result, the Legal Practitioner made what can only be described as an unfounded and extravagant claim that the phone records were “incomplete” and “[lack] any weight”. (emphasis added)
…where a party without explanation fails to call as a witness a person whom he might reasonably be expected to call, if that person’s evidence would be favourable to him, then, although the jury may not treat as evidence what they may as a matter of speculation think that that person would have said if he had been called as a witness, nevertheless it is open to the jury to infer that that person’s evidence would not have helped that party’s case; if the jury draw that inference, then they may properly take it into account against the party in question for two purposes, namely: (a) in deciding whether to accept any particular evidence, which has in fact been given, either for or against that party, and which relates to a matter with respect to which the person not called as a witness could have spoken; and (b) in deciding whether to draw inferences of fact, which are open to them upon evidence which has been given, again in relation to matters with respect to which the person not called as a witness could have spoken. (emphasis in the original)
Equally and for the same reasons, the Practitioner’s “submission” that alleged criminal associates of Ms N and Ms L may have had access to multiple mobile telephones amounts to bare speculation which cannot remedy any deficiency in the evidence.
Ground 3 of the notice of appeal therefore must be dismissed.
The Tribunal’s finding that the Practitioner misrepresented to the Law Society that he was acting pro bono for Ms N (appeal ground 6; 1st complaint, ground 2)
While the ground of appeal lacks any particulars, it appears from the Practitioner’s written submissions that the appeal ground relates to ground 2 of the first complaint, namely, that the Practitioner had misled the Law Society by representing to it that he understood that he was acting for Ms N in a pro bono capacity when, in truth, he knew that the matter was legally funded.
The Practitioner submitted that the Court (by which we understand the reference to be to the Tribunal) ought not to have found an intention to mislead because an alternative finding was available, namely, “that I made a mistake that as soon as Legal Aid pointed it out to me I repaid the sum in full.” He also relied in support of that submission on the contention that no-one would have falsely represented that they were acting pro bono, on the one hand, while sending copies of the Legal Aid correspondence to the Law Society, on the other hand. Equally he submitted that “no one unless they were under a mistaken impression would write to Legal Aid saying that they acted pro bono for a client when they had already sent them an account.”
However, the Practitioner properly conceded in his submissions that “[a]s I gave no evidence in this matter it was clearly open to the Court to make the finding”. Yet, inconsistently with this, as the Council points out, “he continues to baldly to assert that: ‘there is an alternative finding available that I made a mistake than as soon as Legal Aid pointed it out to me I repaid the sum in full’.”
The Tribunal found at [113] that the Practitioner represented that he was acting pro bono for Ms N in circumstances where he was aware that the matter was legally aided. Specifically, it found at [114] that: “[t]here is no doubt that the representation was made and that it was false; so much is conceded by the practitioner.” The Tribunal did not accept that the false representations were made because he felt embarrassed about what had occurred, being the sexual relationship with a client, and were intended to make him feel better rather than mislead anyone as to a material fact: at [114]. Rather, the Tribunal found that the representations were made to the Law Society to minimise the seriousness of his personal relationship with Ms N: at [122].
Given the implicit concession by the Practitioner (through his counsel) that he knew that the representation was false in submitting before the Tribunal that it was reasonable to infer from a letter to the Law Society that the Practitioner was embarrassed by what had occurred and the allegations made, the Council submits here with some force that the Practitioner should not be permitted to raise the ground of appeal.
Nonetheless, while the ground of appeal before the primary judge was difficult to understand and at times appeared to have been directed more towards penalty, the primary judge considered and rejected the Practitioner’s assertion that his misrepresentation was innocuous because he had simply forgotten about the legal aid grant and was sure he was acting pro bono. The primary judge found that the nature of that challenge was critical because it was underpinned by knowledge that the matter was legally aided (at [398]). As his Honour continued at [399]-[402] in finding that the ground could not be sustained:
That must have been so for the following facts were proved and not seriously contested: 1. The Legal Practitioner spoke to Legal Aid on 17 May 2007 about the transfer of the proceedings to him and was informed of the impediment that his employer’s firm was not listed as a provider for family law matters under s 32 of the Legal Aid Act 1977 (ACT). 2. The Legal Practitioner raised that issue with his employer, who then sought to have the firm included in Legal Aid’s list. His employer was then included in the list and the transfer approved. 3. Legal Aid then wrote to the Legal Practitioner’s employer confirming the transfer. That letter was on the file when Ms N collected it after terminating the retainer. 4. Ms N asserted that she had paid the required contribution of $90. 5. The Legal Practitioner personally signed a letter to Legal Aid dated 23 October 2007 advising of his withdrawal from the matter and sending an account. That account deducted the client contribution of $90. In the circumstances, especially where no evidence has been given by the Legal Practitioner, the inference is irresistible that, at all relevant times, the Legal Practitioner knew that the fees for the services he was providing would be paid by Legal Aid. Indeed, it is difficult to conceive of what the Legal Practitioner could say in the face of this largely documentary evidence.
No error is disclosed by his Honour’s reasons and no comprehensible error was identified by the Practitioner. Indeed, the primary judge referred at [402] to the fact that the Practitioner acknowledged that there was “no defence” to the ground of complaint, but seemed to wish to approbate by saying that he was confused and under a misapprehension.
Finally, the Practitioner’s written submissions also rely upon various factual assertions as to the nature of his practice and his state of belief. However, those factual assertions must be disregarded, the Practitioner having led no evidence on those matters before the Tribunal and there being no application for further evidence to be led on the appeal.
Challenge to findings that correspondence was a concoction and representations were a “barefaced lie” (appeal grounds 4, 5, 8 & 10; 2nd complaint, grounds 1 & 2)
The issues
By grounds 4, 5, 8 and 10 of the notice of appeal, the Practitioner contended that: 4. The Court erred in not finding that the Respondent had a duty to expressly identify and specifically charge the practitioner with any offence alleged. 5. The Court erred in making findings on factual matters that were not specifically charged or expressly identified in the charges. … 8. The Court erred in its findings of the meaning used by the practitioner of ‘We won’. 10. The Court erred in its findings that a document was an obvious concoction and showed a consciousness of guilt.
While the grounds are vague and fail to identify any specific error, it is apparent from the Practitioner’s submissions that the grounds relate to two findings:
(a) the finding by the Tribunal that a letter purportedly dated 14 September 2007 from the Practitioner to Ms L was concocted; and
(b) the finding by the primary judge that a representation in the letter from the Practitioner to the Law Society dated 29 January 2008 was a “barefaced lie”.
Both findings were made in the context of considering grounds 1 and 2 of the second complaint, i.e., that the Practitioner acted without and contrary to Ms L’s instructions in consenting to the setting aside of the protection order in the hearing before Higgins CJ on 14 September 2007, and misled the Law Society in representing to the Law Society that Ms L was present in Court and gave those instructions: at [199]-[202].
In both cases, the ground of challenge appears to be that the complaints with which the Practitioner was charged, and of which the Tribunal was seized, did not include any allegations of dishonesty corresponding to these findings. As a consequence, the Practitioner contends that he has been denied procedural fairness.
The challenge to the finding that the letter contained a “barefaced lie”
I have fought a bitterly contested matter in the Supreme Court against two senior solicitors… and a partner from that firm. I have won all the matters in the Supreme Court and ensured that [Ms L]’s DVO was maintained for her safety… At all times the Supreme Court matters were handled well and I won every point against some very senior practitioners.
The Tribunal found at [157] that “the Practitioner’s account of what transpired is a complete misrepresentation of what in fact transpired.” In his reasons, after agreeing with the Tribunal that the statement was a complete misrepresentation of what in fact had occurred, the primary judge found at [176] that “I would go further and say that it was a barefaced lie.” Similarly the primary judge referred at [224] to Ms L’s evidence that the Practitioner had told her boastfully after the proceedings on 14 September 2007 that “[w]e won, we won”. His Honour pointed out that this was consistent with the language used by the Practitioner in his letter dated 29 January 2008, “even if an entirely inaccurate account of what happened.”
The finding by the Tribunal that the Practitioner’s account was a misrepresentation was no more than an intermediate evidentiary step in the process of coming to a decision on the second complaint. A challenge is made neither to that finding, nor to the primary judge’s agreement with it. That being so, the ground of appeal must fail. Even if the primary judge had erred in indicating that he would have made a stronger finding of a “lie”, that would still as matter of logic leave undisturbed his Honour’s finding simply upholding the finding of the Tribunal.
Nor were any submissions put in support of the ground that the Court erred in the manner in which it interpreted the reference to “winning” the application on 14 September 2007. In any event, the ground of appeal misses the point. In no sense can consenting without instructions to the provision of an undertaking in lieu of the protection order be described as a “win”, especially where the Tribunal made the unchallenged finding that the benefit of the protection order was extremely important to Ms L and she was plainly afraid of the person to whom the protection order was directed: at [143].
The finding that the letter was concocted
Secondly, and again in the course of considering whether the first and second grounds of the second complaint were made out, the Tribunal referred to the letter dated 22 March 2009 to the Law Society in response to the complaint by Ms L advising that he had located a number of copy letters in an associated file that were misfiled. These were said to include a letter dated 14 September 2007, being the date of the hearing before Higgins CJ, which was enclosed. Notwithstanding the Practitioner’s submission to the contrary on the appeal, it was not put to Ms L in cross-examination that she had received the letter (Tribunal at [176]). Counsel for the Council invited the Practitioner to point to the passage in the evidence where it was put and he failed to do so in reply.
In the letter dated 14 September 2007, the Practitioner stated among other things that he confirmed her instructions to agree to the undertakings in lieu of the prior DVO and thanked her for her attendance at Court that day. The Tribunal observed at [175] that the timing and substance of the letter are “curious” and the letter read as “self-serving”. Not surprisingly in our view, the Tribunal found at [198] that the letter dated 14 September 2007 “was, in the Tribunal’s view obviously a concoction. The concocting of the letter and the forwarding of it to the Society was, the Tribunal finds, accepting Mr Beaumont’s submission in this respect, evidence of consciousness of guilt.”
Again the finding by the Tribunal was an intermediate finding made in the process of reaching the conclusion at [199]-[200] that the second complaint which involved elements of dishonesty was established. The Practitioner had sent the letter of 14 September 2007 to the Law Society under cover of another letter purportedly explaining its late discovery, and it was entirely proper for the Tribunal to address that evidence. Ultimately, the Tribunal was simply giving reasons as to why it was unable to give the letter any weight. Its process of reasoning is unexceptional. In those circumstances, there was no need for the allegation to be the subject of a specific complaint by the Law Society.
It follows that the decisions on which the Practitioner sought to rely are distinguishable. Thus in Walter v Council of Queensland Law Society Incorporated (1988) 62 ALJR 153, the High Court held that the Full Court of the Supreme Court of Queensland had erred in upholding an appeal against penalty for professional misconduct on the basis that the disciplinary committee must have found the solicitor guilty of dishonesty in finding the charge established when no element of dishonesty had been expressly pleaded. Rather the gravamen of the complaint against the solicitor was of procedural impropriety and incompetent management of lending transactions only. Nor does the decision in Legal Services Commissioner v Madden (No 2) [2009] 1 Qd R 149 take the matter any further. The Queensland Court of Appeal at [56]-[58] simply declined to construe allegations against the solicitor of incompetence and dilatoriness on specified occasions as comprehending dishonesty when dishonesty was neither referred to in the charges nor necessarily conveyed by them. These reflect the broader principle that, where fraud is an element of the cause of action, it must be distinctly and clearly pleaded: see e.g. Krakowski v Eurolynx Properties Limited (1995) 183 CLR 563 at 573 (Brennan, Deane, Gaudron and McHugh JJ); Banque Commerciale SA, En Liquidation v Akhil Holdings Limited (1990) 169 CLR 279 at 285-286 (Mason CJ and Gaudron J) and 295 (Dawson J); Belmost Finance Corporation Ltd v Williams Furniture Ltd [1979] Ch. 250 at 268 (Buckley LJ). By contrast, in the present case the findings where it is said that dishonesty ought to have been the subject of specific allegations in the complaint were not elements of the alleged misconduct but intermediate findings made in the process of determining whether the elements of the “pleaded” complaints, which did allege dishonesty, were made out.
Alleged failure to consider that the protection order had to be remitted to the Magistrate’s Court in any event (appeal ground 9; 2nd complaint, ground 1)
By ground 9 of the notice of appeal, the Practitioner contended that:
The Court erred in not considering the fact that the Order obtained in the Magistrates Court at all times had to be remitted back to that Court.
The Practitioner submitted on the basis of appeal ground 9 that his failure to follow instructions resulted in no harm – a submission that seems to be more relevant to penalty than to the substance of the complaint.
In any event, there is no possible error on the part of the Tribunal in not finding that the failure to follow instructions did not result in harm. The relevant complaint was that the Practitioner had acted without and contrary to instructions in agreeing to the setting aside of the personal protection order by consent. The issue therefore was whether Ms L was in Court on 14 September 2007 instructing the Practitioner, as the Practitioner asserted, or whether she was at home looking after her children. After a comprehensive consideration of the background and evidence at [141]-[198], the Tribunal found that Ms L was not present in court and the Practitioner acted without instructions, and contrary to Ms L’s standing instructions, in consenting to the protection orders being set aside in substitution for an undertaking (at [199]).
Nor can it be said that no harm was done by the making of the consent orders and provision of an undertaking in lieu of the protection orders.
First, in addition to the fact of acting contrary to standing instructions, it cannot be said that it was inevitable that the protection order would be remitted to the Magistrate’s Court at all times. As the Tribunal held at [144], the hearing before Higgins CJ on 14 September 2007 was not the hearing of the appeal from the protection order but an application for inspection of certain documents. It follows that it was not inevitable that the protection orders would be set aside on that day. Furthermore, an earlier attempt in the Magistrates Court to set aside the orders had been unsuccessful, suggesting that it was by no means apparent that the appeal would succeed.
Secondly, the Tribunal found at [189] that:
(a) the protection orders were very important to Ms L because she was afraid of Ms A – a fear which the Tribunal considered understandable after observing Ms A’s demeanour in giving her evidence and cross-examination; and
(b) Ms L was adamant that she did not want to lose the protection of those orders.
Penalty grounds
Those grounds directed to penalty were set out at [16]-[19] of the notice of appeal, namely:
The Court erred in its findings on penalty and exceeded its powers by its finding that ‘Removal from Roll required’. 17. The Court erred in its finding on Penalty by not taking into account a number of issues relevant to the Appellant. Length of practice, experience, mental state, competency, confusion and misapprehension etc. 18. The Court erred in its finding on penalty by not treating the penalty on the three separate lots of matters as individual penalties. 19. The Court erred in not considering any alternate penalty.
In support of his appeal on penalty, the Practitioner submitted that, in 2007, he was on a restricted practising certificate and was an inexperienced Legal Practitioner who was very busy. He also submitted that, apart from the matter of Mr C which comprised ground 3 of the second complaint, the other matters could be explained as “sloppy or they could also be explained as mistake”. Given these factors, the Practitioner submitted that the penalty was too severe.
The appeal against penalty must be dismissed.
The grounds of appeal misconceive the role of the Supreme Court. It was the function of the Tribunal to determine penalty while the Supreme Court’s function was to determine whether the Tribunal erred in that decision.
Nor in any event do the reasons of the Tribunal in the ACAT Penalty Decision reveal error.
First, no issue is taken with the statement of principles adopted by the Tribunal. As the High Court explained in A Solicitor v Law Society (NSW) (2004) 216 CLR 253 at 264 [12] (in the passage quoted by the Tribunal at [9] of the ACAT Penalty Decision):
As Griffith CJ pointed out in Southern Law Society v Westbrook [(1910) 10 CLR 609 at 612], the question that arises when the power of the Supreme Court is invoked in a case such as the present is not one of punishment, but ‘whether the court is justified in holding out [the solicitor in question] as a fit and proper person to be entrusted with the duties and responsibilities of a solicitor’.
The question, which the court and this Tribunal in such cases must pose for itself is this: bearing in mind the circumstances of the case before it, is a Tribunal justified in holding out the legal practitioner in question as a fit and proper person to be entrusted with the important duties and grave responsibilities which belong to a solicitor?
Honesty and integrity are important in many spheres of conduct. However, in some spheres significant public interests are involved in the conduct of particular persons and the state regulates and restricts those who are entitled to engage in those activities and acquire the privileges associated with a particular status. The legal profession has long required the highest standards of integrity. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.
Secondly, the Tribunal manifestly did not fail to consider any alternative penalty, as contended in appeal ground 19. Rather, as to the findings of unprofessional conduct in the first complaint LP 6/08, the Tribunal at [16] of the ACAT Penalty Decision considered but rejected the Practitioner’s submission that the appropriate penalty was a restriction on his right to apply for an unrestricted certificate for a period of five years as manifestly inadequate and inappropriate, given the gravity of the conduct. In this regard, the Tribunal found at [12] that, while not amounting to professional misconduct, the Practitioner’s conduct was nonetheless very serious, involving dishonesty and demonstrating a lack of integrity. In this regard, we agree with the submissions for the Council that the findings of dishonesty are such that relative inexperience is no answer to them.
Again, in considering the penalty for the conduct on the second complaint LP 1/09, the Tribunal at [21] considered but rejected the Practitioner’s submission for a fine and various restrictions as appropriate sanctions in the circumstances. Rather, the Tribunal considered that its findings disclose “fundamental flaws in the Practitioner’s character namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the Society, his clients and the administration of justice”: at [22]. In his submissions, the Practitioner did not back away from the attempt to dissuade, deter or intimidate Mr C from giving or adhering to his evidence before the Tribunal in proceedings against the Practitioner, as the gravest of the findings against him. However, his submission that the Court have regard to the fact that the witness “was a friend of mine, we did courses together and what I said to him was inappropriate” does nothing to lessen the gravity of his conduct and does not address the fundamental purpose of the penalty being concerned with the protection of the public and the integrity of the justice system. Indeed, the submissions continue to demonstrate the lack of insight into the serious nature of his conduct which greatly concerned the Tribunal in reaching its decision on penalty: at [23].
Thirdly, in citing a failure by the Tribunal to take into account mental state, competency, confusion and misapprehension, appeal ground 17 appears to assume the correctness of the submission that the Tribunal ought to have had regard to the possibility that the Practitioner was confused about such matters as the date on which he first met Ms N. However, the gaps in the evidence occasioned by the Practitioner’s decision not to give evidence can no more benefit him on penalty than they could in a consideration of the substantive allegations against him.
Fourthly, as to appeal ground 18, the Tribunal accepted the Council’s submission that the conduct constituting the first complaint could not be compartmentalised, particularly given that the facts and circumstances relating to both particulars of the complaint are so closely interrelated. The Tribunal also considered that even in isolation, but especially when viewed with the third ground, the professional misconduct which is the subject of the first and second grounds of the second complaint “demonstrates comfortably that the Practitioner cannot be trusted by his clients or the public; by his professional association; by the Courts or Tribunals before whom he appears; by his fellow practitioners; and that the presence on the roll of someone who cannot be trusted even at this most basic level by his own peers, the Society, the Courts or clients is contrary to the interests of the administration of justice as well as the public interest”: at [18] of the ACAT Penalty Decision. Given the purposes of the penalty being the protection of the public and the interrelationship between the grounds of the first complaint and between the grounds of the second complaint, no error can lie in our view in the approach adopted by the Tribunal.
Conclusion and Orders
I certify that the preceding one hundred [100] numbered paragraphs are a true copy of the Reasons for Judgment of the Court
Associate:
Date: 22 May 2015
The Legal Practitioner
Council of the Law Society of the ACT [2015] ACTCA 20
(2004) 216 CLR 253
(1990) 169 CLR 279
(1938) 60 CLR 336
(1959) 101 CLR 298
(1995) 183 CLR 563
(2011) 257 FLR 118
(2001) 52 NSWLR 279
(2000) 200 CLR 121
(1992) 176 CLR 256
(1988) 62 ALJR 153
Legal Aid responded by letter dated 13 November 2007 to the partner at the Practitioner’s firm which had been retained to act for Ms N. In the letter, Legal Aid stated that it found the Practitioner’s comments about acting in the matter pro bono to be misleading and evasive, and that at all times the Practitioner had held himself out to Legal Aid as acting in the matter pursuant to a grant of legal assistance. In the letter, Legal Aid also said that:
Nor do we consider that there is any merit otherwise in the suggestion of a breach of procedural fairness. The issue of concoction of the letter of 14 September 2007 was plainly “live” in the proceedings before the Tribunal. The Tribunal was confronted with a letter from the Practitioner to Ms L which bore the date of the hearing and purported to confirm the Practitioner’s claim that he had acted on instructions and that Ms L had been present in court. There were no “shades of grey”; the letter was either what it purported to be and was discovered by the Practitioner in the manner he stated, or it was a fabrication. This was not a case where the distinction drawn in Smith v New South Wales Bar Association (1992) 176 CLR 256 at 268 and 271 between merely rejecting a person’s evidence on the one hand, and making a positive finding of dishonesty on the other hand, is helpful. Notwithstanding the nature of the evidence, however, it was the Practitioner’s choice not to give evidence and thereby to deprive himself of the opportunity to explain the letter and the circumstances in which it allegedly came to light. Moreover, while the Council in final addresses before the Tribunal submitted that the letter was a “concoction”, and that the concocting and forwarding to the Law Society was a lie showing consciousness of guilt, no objection was raised to that submission by the Practitioner and no application was made to re-open his case.
Finally, for the reasons already given, the submission that the Tribunal ought to have found that the failure to comply with instructions which constituted the first particular of the second complaint, did not cause harm must be rejected: see at [80]-[86] above.