The Legal Practitioner v Council of the Law Society of the Australian Capital Territory [2013] ACTSC 134

ON APPEAL FROM THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL OF THE AUSTRALIAN CAPITAL TERRITORY

AND: COUNCIL OF THE LAW SOCIETY OF THE AUSTRALIAN CAPITAL TERRITORY

(iii) a recommendation that the Legal Practitioner's interstate practicing certificate be suspended for 12 months;

(iv) an order that the Legal Practitioner undertake and complete a course approved by the Law Society in ethics and another course in practice management within 12 months; and

(v) an order that the Legal Practitioner pay the costs of the Law Society.

(iii) a recommendation that the Legal Practitioner's practicing certificate be suspended for 12 months;

(iv) an order that the Legal Practitioner undertake and complete a course approved by the Law Society in ethics and another course in practice management within 12 months; and

(v) an order the Legal Practitioner pay the costs of the Law Society.

3. The costs are to be assessed on a solicitor own-client basis and, if not agreed between the Law Society and the Legal Practitioner, the costs are to be assessed by a cost specialist, namely Legalcost, and the Law Society is to be paid 90% of the costs so assessed.

4. The recommendation that the Legal Practitioner's interstate practicing certificate be suspended for 12 months is referred to the Full Court of the Supreme Court.

5. By consent, execution of these orders stayed for seven days from today.

1. The Legal Practitioner was born in December 1966 in the United Kingdom. His parents, with him and his three sisters, migrated to Australia during 1974 when he was aged seven years. He has lived in Australia since 1974. His unhappy childhood is detailed in his affidavit affirmed 22 May 2013.

2. The Legal Practitioner is a solicitor. He undertook and completed the course of study provided for by the Legal Practitioner's Admission Board. He was admitted to practice in the Australian Capital Territory on 16 July 1999. He does not now hold an Australian Capital Territory practising certificate, but he holds an interstate practising certificate.

3. I do not know when the Legal Practitioner commenced practice as a solicitor because his affidavit refers only to his practice history after he commenced practice in late 2005 as a sole practitioner.

4. As I have just said, towards the end of 2005 the Legal Practitioner commenced to practice as a sole practitioner from premises in Monaro Street, Queanbeyan. During the middle of 2006 he moved his practice to other premises in Queanbeyan, to share the premises with Mr FW, solicitor. From 1 February 2007 he and Mr FW practised as partners in the firm WPL. The firm had an office in Queanbeyan and an office in Canberra City in the Australian Capital Territory.

5. On 1 November 2008 the Legal Practitioner and Mr FW entered into partnership with Mr JO, solicitor, in the firm WPO. The Legal Practitioner and Mr FW practised from the office in Queanbeyan, and Mr JO practised from the office in Canberra City. However, during late 2009, this partnership was dissolved and the Legal Practitioner and Mr FW continued to practice as partners in the firm WPL from the office in Queanbeyan. They terminated their lease of the Canberra City office.

6. However, on 1 July 2012, the partnership between the Legal Practitioner and Mr FW was dissolved, and, since then, Mr FW has continued to practice as a sole practitioner under the firm name WPL, with the Legal Practitioner as a consultant to the firm.

7. By letter dated 9 April 2009 Ms Julie Coleman complained, first, to the Legal Services Commissioner of New South Wales and, then, to the Law Society of the Australian Capital Territory about the Legal Practitioner's failure to file the formal orders in relation to proceedings in the then Federal Magistrates Court of Australia in Canberra, in which he had acted as the independent solicitor for three children of Ms Coleman and Mr Gabriel Battika and in which he had undertaken to the court to file the formal orders.

8. By letter dated 30 April 2009 the Law Society sent Ms Coleman's letter of complaint to the Legal Practitioner, and requested his response within 14 days. The Legal Practitioner did not respond to the Law Society's letter.

9. By letter dated 21 May 2009 the Law Society noted the Legal Practitioner's failure to respond to its letter dated 30 April 2009, and requested his response by 28 May 2009. Again, the Legal Practitioner did not respond to the Law Society's letter.

10. By letter dated 4 June 2009 the Law Society noted the Legal Practitioner's failure to respond to the letters of 30 April 2009 and 21 May 2009, and requested his response by 11 June 2009.

11. By letter dated 28 April 2009 Ms Candice Bowerman complained to the Law Society of the Australian Capital Territory about the Legal Practitioner's handling of her defence to proceedings brought by Ms Bowerman's child's parental grandparents in the then Federal Magistrates Court of Australia in Canberra, seeking orders for parental responsibility, and related matters concerning Ms Bowerman's then two year old child.

12. By letter dated 11 May 2009 the Law Society sent Ms Bowerman's letter of complaint to the Legal Practitioner, and requested his response to the complaint within 14 days. The Legal Practitioner did not respond to the Law Society's letter.

13. By letter dated 4 June 2009 the Law Society noted the Legal Practitioner's failure to respond to its letter dated 11 May 2009, and requested his response by 11 June 2009. Again, the Legal Practitioner did not respond to the Law Society's letter.

14. By letter dated 18 June 2009 the Law Society noted the Legal Practitioner's failure to respond to the letters of 11 May 2009 and 4 June 2009, and requested his response by 25 June 2009.

THE LEGAL PRACTITIONER'S RESPONSE TO THE LAW SOCIETY'S REQUESTS

15. By facsimile letter dated 25 June 2009 the Legal Practitioner answered the Law Society's letters dated 4 June 2009 for the Coleman complaint, and 18 June 2009 for the Bowerman complaint, writing:

I have prepared responses to the abovementioned matters and expect to receive advice from counsel shortly, as to their contents. I will then forward my responses to the Law Society.

However, the Legal Practitioner did not write again to the Law Society.

16. By applications numbered 04/2009, the Bowerman complaint, and 05/2009, the Coleman complaint, dated 21 August 2009, under s 419 of the Legal Profession Act 2006 (ACT), filed in the Civil and Administrative Tribunal of the Australian Capital Territory, the Law Society contended that the Legal Practitioner was guilty of professional misconduct and/or unsatisfactory professional conduct in relation to his dealings with the complaints and with the Law Society, and it sought the making of one or more of the orders under s 425 of the Legal Profession Act.

17. The hearing commenced before the Tribunal on 27 July 2010, and concluded on 28 July 2010. The hearing was conducted on the affidavits filed in the Tribunal by the Law Society and in the absence of the Legal Practitioner.

18. The hearing was conducted by the Tribunal on 6 August 2010. As in the Bowerman complaint, the hearing was conducted on the affidavits filed in the Tribunal by the Law Society, and in the absence of the Legal Practitioner.

THE TRIBUNAL'S DECISION IN RELATION TO THE BOWERMAN COMPLAINT (04/2009)

19. On 15 September 2010 the Tribunal published its reasons for decision in relation to the Bowerman complaint. The Tribunal found the Legal Practitioner guilty of breaching rules 1.1, 1.2, 1.5, and 39.2 of the Legal Profession (Solicitors) Rules 2007 (ACT) under the Legal Profession Act, and guilty of conducting himself in such a manner that he brought the legal profession into disrepute, and it declared that he was guilty of professional misconduct arising from some findings, and unsatisfactory professional conduct arising from other findings. The Tribunal stood over the proceedings to a date to be fixed for submissions as to penalty and costs.

THE TRIBUNAL'S DECISION IN RELATION TO THE COLEMAN COMPLAINT (05/2009)

20. On 30 September 2010 the Tribunal published its reasons for decision in relation to the Coleman complaint. The Tribunal found the Legal Practitioner guilty of breaching rules 30 and 39.2 of the Legal Profession (Solicitors) Rules under the Legal Profession Act, and guilty of conducting himself in such a manner that he brought the legal profession into disrepute, and it declared that he was guilty of unsatisfactory professional conduct. Again, the Tribunal stood over the proceedings to a date to be fixed for submission as to penalty and costs.

21. On 4 November 2010 both proceedings were listed before the Tribunal for submissions as to penalties and costs. As had happened on 15 September 2010 and again on 30 September 2010, the hearing was conducted by the Tribunal in the absence of the Legal Practitioner.

THE POWERS OF THE AUSTRALIAN CAPITAL TERRITORY CIVIL AND ADMINISTRATIVE TRIBUNAL AS TO AN APPLICATION BY THE LAW SOCIETY IN RELATION TO AN AUSTRALIAN LEGAL PRACTITIONER

22. The powers of the Australian Capital Territory Civil and Administrative Tribunal as to an application by the Law Society in relation to an Australian Legal Practitioner, are set out in section 425 of the Legal Profession Act, and are as follows:

(1) If, after the ACAT has finished considering an application under this part in relation to an Australian legal practitioner, the ACAT is satisfied that the practitioner is guilty of unsatisfactory professional conduct or professional misconduct, the ACAT may -

(a) make 1 or more of the orders mentioned in subsections (3) to (5); or

(2) The ACAT may find an Australian legal practitioner guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct.

(3) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from the local roll;

(b) an order that the practitioner's local practising certificate be suspended for a stated period or cancelled;

(c) an order that a local practising certificate not be granted to the practitioner before the end of a stated period;

(i) stated conditions be imposed on the practitioner's practising certificate granted or to be granted under this Act; and

(ii) the conditions be imposed for a stated period; and

(iii) states the time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed;

(e) an order publicly reprimanding the practitioner or, if there are special circumstances, privately reprimanding the practitioner.

(4) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order recommending that the name of the practitioner be removed from an interstate roll;

(b) an order recommending that the practitioner's interstate practising certificate be suspended for a stated period or cancelled;

(c) an order recommending that an interstate practising certificate not be granted to the practitioner before the end of a stated period;

(i) that stated conditions be imposed on the practitioner's interstate practising certificate; and

(ii) that the conditions be imposed for a stated period; and

(iii) a stated time (if any) after which the practitioner may apply to the ACAT for the conditions to be amended or removed.

(5) The ACAT may make the following orders in relation to the Australian legal practitioner:

(a) an order that the practitioner pay a fine of a stated amount of not more than the amount mentioned in section 427;

(b) an order that the practitioner undertake and complete a stated course of further legal education;

(c) an order that the practitioner undertake a stated period of practice under stated supervision;

(d) an order that the practitioner do or not do something in relation to the practice of law;

(e) an order that the practitioner cease to accept instructions as a public notary in relation to notarial services;

(f) an order that the practitioner's practice be managed for a stated period in a stated way or subject to stated conditions;

(g) an order that the practitioner's practice be subject to periodic inspection by a stated person for a stated period;

(h) an order that the practitioner seek advice in relation to the management of the practitioner's practice from a stated person;

(i) an order that the practitioner not apply for a local practising certificate before the end of a stated period.

As can be seen, section 425(3)(a) to (e) specifies the order that the Tribunal may make in respect of a local legal practitioner, section 425(3)(e) and (4)(a) to (d) specify the orders that the Tribunal may make in respect to an interstate legal practitioner, and section 425(5)(a) to (i) specify the orders that the Tribunal may make in respect of both a local and an interstate legal practitioner.

23. On 8 April 2011 the Tribunal published its reasons for decision as to penalties and costs in relation to each complaint.

24. As to the Bowerman complaint (04/2009), the Tribunal ordered that:

(1) The Legal Practitioner be publicly reprimanded;

(2) The Legal Practitioner pay a fine of $7,500; and

(3) The Legal Practitioner pay the costs of the Law Society.

and it recommended that the Legal Practitioner's name be removed from the roll of practitioners.

25. As to the Coleman complaint (05/2009), the Tribunal ordered that:

(1) The Legal Practitioner be publicly reprimanded;

(2) The Legal Practitioner pay a fine of $2,500; and

(3) The Legal Practitioner pay the costs of the Law Society.

and it recommended that the Legal Practitioner's name be removed from the roll of practitioners.

26. On 5 May 2011 the Legal Practitioner filed an appeal in the Tribunal to appeal from its decisions of 15 and 30 September 2010 and 8 April 2011, and applied to have the appeal removed into the Supreme Court.

27. On 10 June 2011 the Tribunal's appeals president ordered, pursuant to section 83(2) of the Australian Capital Territory Civil and Administrative Tribunal Act 2008 (ACT), that the Legal Practitioner's appeal be removed into the Supreme Court.

28. On, apparently, 26 October 2011 Refshauge J ordered that the Legal Practitioner's appeal, removed from the Tribunal to the Supreme Court, proceed in the Supreme Court as a review under section 82(b) of the ACT Civil and Administrative Tribunal Act, that is, as a rehearing (see Legal Practitioner v Council of the Law Society of the ACT [2011] ACTSC 207, 23 December 2011, also [2011] 257 FLR 118), and that both the Legal Practitioner and the Law Society file such evidence upon which each relied by affidavit. Without wishing to disagree with Refshauge J, I wonder whether he meant a hearing of a new application under section 82(a) rather than a review under section 82(b), but, whatever he meant, the appeal has proceeded before me as a new application on new evidence.

29. On 11 February 2013 the Legal Practitioner's appeal came on for hearing before me. The Legal Practitioner appeared without legal representation. Mr N Beaumont, of counsel, appeared for the Law Society. I heard evidence from Mr Robert Reis, the Professional Standards Director of the Law Society, and Ms Julie Dobinson, a family law specialist solicitor, who had prepared a report in relation to the Legal Practitioner's conduct of the Bowerman proceedings, after which I stood over the hearing to 12 February 2013.

30. On 12 February 2013 I resumed the hearing and Ms Dobinson returned to the witness box for the Legal Practitioner to continue his cross examination of her. However, during his cross examination of Ms Dobinson, the Legal Practitioner applied for an adjournment of the hearing, in order that he might brief counsel to appear for him. After hearing from Mr Beaumont, whose client, the Law Society, opposed an adjournment, as it had its witnesses available to give evidence, I granted the Legal Practitioner's application and stood over the hearing to 15 February 2013.

31. Accordingly, on 15 February 2013 I resumed the hearing. On this occasion Mr R Thomas, of counsel, appeared for the Legal Practitioner. I fixed 18 March 2013 for the further hearing of the appeal. However, on 18 March 2013 the hearing was stood over to 20 March 2013, then on 20 March 2013 to 21 March 2013, then on 21 March 2013 to 22 March 2013, and then on 22 March 2013 to 27 March 2013.

32. On 27 March 2013 I resumed the hearing. On this occasion, the Legal Practitioner consented to my making the following orders:

1. CONFIRM the findings made 15 September 2010 by the ACT Civil and Administrative Tribunal in Proceedings LP 04/09 that the practitioner is guilty of professional misconduct in relation to a complaint made by Ms Candice Bowerman because he:

(1) failed to comply with Rules 1.1 and 1.2 of the Legal Profession (Solicitors) Rules 2007 (ACT) ('the Rules') in that he failed:

iii. to obtain relevant evidence to support his client's case;

iv. to correspond with, or negotiate with his client's opponent's solicitors; and

v. to communicate with his client concerning his preparation of her case;

(2) failed to comply with Rule 1.5 of the Rules in that he terminated his retainer without just cause and without giving reasonable notice to his client; and

(3) conducted himself in such a manner that he brought the legal profession into disrepute.

2. CONFIRM the finding made 15 September 2010 by the ACT Civil and Administrative Tribunal in proceedings LP 04/09 that the practitioner failed to comply with Rule 39.2 of the Rules in that he failed to respond to the letters of the Law Society dated 11 May 2009, 4 June 2009 and 18 June 2009 requiring that he provide a full and accurate account of his conduct in relation to his client's complaint AND DECLARE that the consequence of that finding is that the practitioner is guilty of professional misconduct.

3. CONFIRM the findings made on 30 September 2010 by the ACT Civicil and Administrative Tribunal in proceedings LP 05/09 that the practitioner is guilty of unsatisfactory professional conduct in relation to a complaint made by Ms Julie Coleman because he:

(1) failed to comply with Rule 30 of the Rules in that he failed to engross and to file the formal order of the Federal Magistrates Court in compliance with his undertaking to the Court to do so; and

(2) conducted himself in such a manner that he brought the legal procession into disrepute.

4. CONFIRM the find made on 30 September 2010 by the ACT Civil and Administrative Tribunal in proceedings LP 05/09 that the practitioner failed to comply with Rule 39.2 of the Rules in that he failed to respond to the letters of the Law Society dated 30 April 2009, 21 May 2009 and 4 June 2009 requiring him to provide a full and accurate account of his conduct in relation to his client's complaint AND DECLARE that the consequence of that finding is that the practitioner is guilty of professional misconduct.

5. SET ASIDE the orders made 8 April 2011 by the ACT Civil and Administrative Tribunal in proceedings LP 04/09 (the Bowerman complaint), except the order that the practitioner pay the costs of the proceedings incurred by the Law Society, such costs to be agreed or, if not agreed, assessed on a solicitor/client basis.

6. SET ASIDE the orders made 8 April 2011 by the ACT Civil and Administrative Tribunal in proceedings LP 05/09 (the Coleman complaint), except the order that the practitioner pay the costs of the proceedings incurred by the Law Society, such costs to be agreed or, if not agreed, assessed on a solicitor/client basis.

After making these orders, I stood over the hearing to 24 May 2013 for evidence and/or submissions as to penalties. I note that on 22 May 2013 the Legal Practitioner filed in the court's registry his affidavit affirmed 22 May 2013, an affidavit of Mr Matthew Fitzgerald, solicitor, sworn 22 May 2013 and a report dated 4 April 2013 of Mr Leigh Nomchong, psychologist.

33. Then, on 24 May 2013 I resumed the hearing. On this occasion Mr Thomas, with whom Ms T Warwick, of counsel, had been briefed to appear for the Legal Practitioner, attended court to tell me that their instructions had been withdrawn by the Legal Practitioner. After Mr Thomas and Ms Warwick withdrew, I heard evidence from the Legal Practitioner. He was cross examined extensively by Mr Beaumont on his affidavit. Although I really do not need to assess the Legal Practitioner's credibility or reliability, I think that I should say that I was not at all impressed by the Legal Practitioner as a witness. It was clear to me, by his prevarication when and in answering questions, that the Legal Practitioner was doing his utmost to minimise his responsibility for his failures in relation to his handling of the Bowerman and Coleman cases, and, in relation to the Bowerman case, to blame, in part, "the firm" (see paragraphs 77, 80 and 81 of his affidavit). Then, in order to allow the Legal Practitioner to prepare such submissions as to penalties that he wished to make, I stood over the hearing to 29 May 2013.

34. Accordingly, on 29 May 2013 I resumed the hearing. On this occasion Mr T Crispin, of counsel, appeared for the Legal Practitioner. After hearing submissions from Mr Beaumont and Mr Crispin, I reserved my judgment to a date to be fixed.

35. Before I consider appropriate penalties, I point out that the subject disciplinary proceedings is not the only disciplinary proceedings in which the Legal Practitioner has been involved. I think it appropriate that I refer to the earlier disciplinary proceedings taken by the Law Society against the Legal Practitioner. So far as I am aware, the earlier disciplinary proceedings are these:

(1) A complaint by the Law Society during August 2003 (the date is not revealed by the judgment), in respect of which the Full Court of the Supreme Court allowed an appeal by the Legal Practitioner, and set aside the findings and orders of the then Professional Conduct Board (see DP v The Law Society of the ACT [2004] ACTSC 130).

(2) A complaint by the Law Society during 2004 or 2005 (the date is not revealed by the judgment), in respect of which the Full Court of the Supreme Court found the Legal Practitioner to be guilty of unsatisfactory professional conduct in two respects (see In the Matter of DP v The Legal Practitioners Act [2005] ACTSC 78).

(3) Two complaints, LP08 of 2007 and LP02 of 2008, by the Law Society, in respect of which the Tribunal found the Legal Practitioner to be guilty of unsatisfactory professional conduct (see Law Society of the ACT v The Legal Practitioner P [2009] ACAT 4 and [2010] ACTA 47). An appeal by the Legal Practitioner from the Tribunal to the appeal division of the Tribunal was dismissed on 24 February 2011, and the Tribunal's findings and orders were confirmed (see case Law Society of the ACT v The Legal Practitioner (unreported, Australian Capital Territory Civil and Administrative tribunal, 24 February 2011);No AA33 of 2010).

36. In DP v The Law Society of the ACT [2004] ACTSC 130, the Full Court (Crispin, Gray and Connolly JJ), although finding the Legal Practitioner not guilty of breaching the then equivalent of rule 39.2 of the Legal Practitioners Rules, because the Legal Practitioner was given an opportunity to respond to a question from the Law Society, rather than being requested to respond to a question from the Law Society, commented upon the failure of a solicitor to respond to a request from the Law Society in relation to a complaint made by a former client against the solicitor, saying that:

No feeling of grievance, however heartfelt, entitles a solicitor to refuse to comply with a requirement properly made by the Law Society, pursuant to a rule, or to impose conditions for such compliance, or to otherwise deal with the Law Society in a manner that is not frank and open.

It may be hoped that the events that we have described might bring home to [the Legal Practitioner] the need to deal with the Law Society on a more temperate and co operative basis.

Unfortunately, the Legal Practitioner did not heed the comment of the Full Court, or take its expression of hope to heart.

37. In The Matter of DP v The Legal Practitioners Act [2005] ACTSC 78, 1 August 2005, in which the Legal Practitioner admitted being guilty of unsatisfactory professional conduct in two ways, the first being his rudeness and discourtesy towards and lack of respect of the Law Society and, second, his failure to respond to a request of the Law Society for a response to a complaint from a former client, Higgins CJ, with whom Gray and Ryan JJ agreed, said, as to the Legal Practitioner's failure to respond to a request from the Law Society, that:

The second is his refusal to comply with the Law Society's direction, as it became, to respond to a complaint. The Law Society must, and indeed should, if it finds a complaint to have apparent substance, seek an explanation from the solicitor concerned. And if the Law Society lacks the power to do that, then the system will not work satisfactorily for the protection of clients generally. So it must be emphasised that the society has that power. It's entitled to exercise it. And the exercise of that power is further entitled to respect and compliance with it by members of the legal profession to whom it is directed.

and, as to the Legal Practitioner's belief that the Law Society was biased against him, something also expressed in the earlier proceedings, that:

I would say also that, in respect of the proceedings, there is certainly no objective indications that I can discern that the Law Society was motivated by any malice towards [the Legal Practitioner], or any ill will or other bias towards him. I acknowledge that [the Legal Practitioner] may have a different view, but in my opinion, that view is not one which is objectively based or justified.

I think that it is fair to say that, notwithstanding what was said by the Chief Justice, and notwithstanding the passage of time, the Legal Practitioner still holds the belief that the Law Society is biased against him.

38. In Law Society of the Australian Capital Territory v Legal Practitioner P [2009] ACAT 4, the Law Society alleged that the Legal Practitioner was guilty of unsatisfactory professional conduct because he had failed to respond to the Law Society's request for a response to complaints by three former clients, in breach of rule 39.2 of the Legal Profession (Solicitors) Rules.

39. On 11 March 2009 the Legal Practitioner appeared without legal representation before the ACT Civil and Administrative Tribunal (Ms L. Crebbin, General President, and Mr A. Van Arkel and Mr R.E. Watch, ordinary members), on the hearing of the Law Society's applications. He made two applications: the first, in broad terms, that Ms Crebbin, Mr Van Arkel, and Mr Watch not sit on the Tribunal, and the second, that the Tribunal did not have jurisdiction to hear the Law Society's applications. On the Tribunal rejecting both applications, the Tribunal noted that:

[The Legal Practitioner] left the hearing, despite the president of the Tribunal telling him that his presence was required. He said that the Tribunal was wasting his time. On being told that he would have an opportunity to answer the Law Society's case through oral evidence, he said that he doubted the Tribunal would give him a proper and fair opportunity, and he left the hearing room.

It is clear, I think, bearing in mind that the Legal Practitioner did not appear before the Tribunal on the hearing before it of the Bowerman and Coleman complaints, that the Legal Practitioner regards the Tribunal with the same rudeness and discourtesy and lack of respect in which he regards the Law Society.

40. On 3 April 2009 the Tribunal published its reasons for its decision that the Legal Practitioner had breached rule 39.2 of the Legal Profession (Solicitors) Rules and, therefore, was guilty of unsatisfactory professional conduct. In its reasons, the Tribunal referred to the statement of Smart J in the Law Society of New South Wales v Veghelyi (unreported, Supreme Court of NSW Common Law Division, 6 September 1989), that:

It is important that solicitors respond promptly to the society when it asks for a reply in response to complaints which have been made. It will be an unusual and complex case where a delay of more than 14 days is acceptable. And often, the reply should be delivered within a shorter period, such as seven to 10 days. Replies to the Law Society in respect of complaints warrant a high priority. Such replies should be full and complete, and deal directly with the complaints made.

There is a public interest in ensuring the integrity of the disciplinary process of professionals. The integrity of the process can only be maintained if practitioners respond when required to do so, so that the regulatory body may properly and thoroughly consider complaints it receives. If that were not the case, regulatory powers would not be fully effective. That is so whether or not, in a particular case, the complainant was adversely affected by the matters complained of, or sustained some loss or damage. Section 585 of the Legal Profession Act 2006 is clear, that a breach of rules can constitute unsatisfactory professional conduct, per se. There is no further requirement that the substance of any complaint be made out.

41. As I have said already, the Legal Practitioner appealed from the Tribunal's findings and penalties to the Tribunal's appeal division, and, on 24 February 2011, the appeal was dismissed and the Tribunal's findings and penalties were confirmed.

THE POWERS OF THE SUPREME COURT AS TO AN APPEAL-REMOVED FROM THE TRIBUNAL INTO THE SUPREME COURT

42. In the Legal Practitioner v The Council of the Law Society of the ACT [2011] ACTSC 207, Refshauge J said that:

In my view, section 83 simply requires that, once the proceedings were removed, the Supreme Court exercised the jurisdiction of the ACAT.

In respect of section 83, however, what is removed is the appeal. It was not an appeal to this court under provision such as sections 84 or 86 of the Australian Capital Territory Civil and Administrative Tribunal Act. It was simply the replacement of one body, the appeal tribunal of the ACAT, with another body, this court, to decide the appeal.

It seems to me that section 83 of the Australian Capital Territory Civil and Administrative Tribunal Act operates as a statutory power to cause this court to exercise the jurisdiction of the Appeal Tribunal of the ACAT. The right of the party to have fair consideration of the statutory-provided alternative method of hearing the appeal under section 82 of the Australian Capital Territory Civil and Administrative Tribunal Act, should not be denied by the removal.

43. Thus, I have the powers that the Tribunal had under section 425 of the Legal Profession Act, (see paragraph 22 above) in the present proceedings:

44. I am to impose penalties upon the Legal Practitioner for his being guilty of:

(1) Professional misconduct by failing to comply with rules 1.1, 1.2 and 1.5 of the Legal Profession Solicitors Rules, and in bringing the legal profession into disrepute in relation to the Bowerman complaint.

(2) Professional misconduct by failing to comply with rule 30 of the Legal Profession Solicitors Rules, and in bringing the legal profession into disrepute in relation to the Coleman complaint; and,

(3) Professional misconduct in failing to comply with rule 39.2 of the Legal Profession Solicitors Rules in relation to both the Bowerman and Coleman complaints.

45. The primary objectives of the statutory disciplinary system are these:

To allow the regulation of the legal profession in accordance with the interests of the administration of justice and to protect the public rather than to punish the practitioner.

46. Section 6 of the Legal Profession Act states the purposes of the Act to be:

(a) To provide for the regulation of legal practice in the ACT in the interests of the administration of justice, and for the protection of consumers of the services of the legal profession and the public, generally.

(b) To facilitate the regulation of legal practice on a national basis across state and Territory borders.

47. Section 384 of the Legal Profession Act states the objectives of that part of the Act specifically concerned with discipline and complaints, to be:

(a) To provide a nationally consistent scheme for the discipline of the legal profession in the ACT in the interests of the administration of justice and for the protection of consumers of the services of the legal profession and the public generally.

(b) To promote and enforce the professional standards, competence, and honesty of the legal profession.

(c) To provide a means of redress for complaints about lawyers.

(d) To enable people who are not lawyers, to participate in complaints and disciplinary processes involving lawyers.

As to the purpose of disciplinary proceedings, the State Administrative Tribunal of Western Australia said in Legal Profession Complaints Committee v Skerritt [2012] WASAT 221 that:

It is well recognised that the function and purpose of professional disciplinary proceedings against legal practitioners is the protection of the public, the maintenance of proper standards of the legal profession and the protection of the reputation of the legal profession rather than punishment of the practitioner" (see re: Maraj, a Legal Practitioner [1995] 15 WAR 12 at 24 and 25 Malcolm CJ, with whom Kennedy and Frankyn JJ agreed).

48. The factors that are relevant to the determination of an appropriate penalty for an act of profession misconduct include, inter alia, the nature of and the circumstances surrounding the act which constitutes misconduct; the level of understanding shown by the practitioner of the nature of his or her conduct; the attitude of the practitioner, especially whether he or she had demonstrated any regret or remorse for the conduct; the likelihood of a future recurrence of similar conduct, and any previous adverse findings in relation to the practitioners professional conduct. These factors are to be considered in the context of the purposes of disciplinary proceedings. Any penalty should aim to uphold the administration of justice, and, so far as possible, protect the public from the risk of future acts of professional misconduct.

49. As to where, within the range of acts of professional misconduct, the Legal Practitioner's acts fall, Mr Crispin submitted that they fell towards the lower end of the range, particularly as to the failure to comply with rule 39.2 of the Legal Profession Solicitors Rules. Although he did not say this in these words, Mr Beaumont submitted that the Legal Practitioner's acts of professional misconduct were serious acts, particularly, his failure to respond to repeated requests from the Law Society, which should result in either a recommendation for suspension of his interstate practicing certificate, or for cancellation of that certificate.

50. I accept that the Legal Practitioner's acts of professional misconduct by failing to comply with rules 1.1, 1.2, and 1.5 of the Legal Profession Solicitors Rules in relation to the Bowerman complaint, and by failing to comply with rule 30 of the Rules in relation to the Coleman complaint, fall towards the bottom of the range of acts of professional misconduct committed by a solicitor. However, that does not mean that the acts were not serious acts of professional misconduct, only that, when compared with other acts of professional misconduct, they fall towards the bottom of the relevant range.

51. However, I do not accept that his acts of professional misconduct by failing to comply with rule 39.2 of the Legal Profession Solicitors Rules fall towards the bottom of the range of acts of professional misconduct committed by a solicitor. The plain and simple fact is that the Legal Practitioner, in a highly contemptuous way, has repeatedly ignored his obligations as a solicitor towards the Law Society. He was made aware of this responsibility, if he was unaware of it earlier, on 17 December 2004 by the remarks of the Full Court of the Supreme Court (see paragraph 36, above), on 1 August 2005 by the further remarks of the Full Court of the Supreme Court (see paragraph 37, above), and on 3 April 2009 by the Tribunal (see paragraph 40, above), these dates preceding the Law Society's letter of 30 April 2009 concerning the Coleman complaint (see paragraph 8, above) and its letter dated 11 May 2009 concerning the Bowerman complaint (see paragraph 12, above). I see these acts of professional misconduct as revealing such a flaw in the Legal Practitioner as to cast serious doubt upon his fitness to practice as a solicitor.

52. In his affidavit, the Legal Practitioner recites an unhappy childhood and upbringing (paragraphs 9 to 31), a relatively happy education (paragraphs 3 to six and 34), a successful practice as a solicitor (paragraphs 39 to 60), notwithstanding being subject to disciplinary proceedings instituted by the Law Society (paragraphs 35 and 37), and, after admitting his failures in handling the Bowerman case (paragraphs 73 to 78, 80 and 81) and the Coleman case (paragraphs 84, 85, 87 and 88) and his failures in responding to the Law Society's requests in relation to the Bowerman and Coleman complaints (paragraphs 83 to 89), he gives an excuse, or at least an explanation, for his failures to respond to requests from the Law Society in relation to the Bowerman and Coleman complaints, that being that he had "developed an overwhelming fear of the Law Society" (paragraph 64) and that, because of that fear, he experienced a "blockage", and was unable to write to the Law Society (paragraphs 83 and 89). I think it both curious and interesting to note that the first disciplinary proceedings taken by the Law Society against the Legal Practitioner included an allegation of his failure to respond to the Law Society's complaint (see paragraph 36 above) and I wonder how he had developed his fear of the Law Society before the first disciplinary proceedings were taken against him.

53. In order to understand his "blockages", the Legal Practitioner was referred to Mr L Nomchong, a psychologist. He consulted Mr Nomchong on 28 March 2013 and again on 3 April 2013. Mr Nomchong's report following the consultations is dated 4 April 2013. The report was sent to Mr Fitzgerald, of the firm Fitzgerald Naylor Lawyers, who seems to have referred the Legal Practitioner to Mr Nomchong. I assume that Mr Fitzgerald received the report within a few days after 4 April 2013. I note that the report was filed in the court's registry on 22 May 2013 together with the Legal Practitioner's affidavit and Mr Fitzgerald's affidavit, just two days before the resumption of the hearing on 24 May 2013.

54. Mr Nomchong concluded, based upon what he was told by the Legal Practitioner, that the Legal Practitioner had developed post traumatic stress disorder due to the psychological and physical abuse of both his parents, and also an adjustment disorder due to the various complaints and actions by the Law Society. However, although he considered that:

The Legal Practitioner's childhood has adversely affected his ability to respond to complaints to the Law Society and to progress his client's matters to the best of his ability...(to their) benefit.

The Legal Practitioner has demonstrated an ability to function while still suffering the conditions of PTSD, and more recently, adjustment disorder.

Although the inconsistency between the first statement and the later statement is obvious, I do not see any need to resolve this inconsistency.

55. I do not see any valid reason to reject Mr Nomchong's opinion. I accept that the Legal Practitioner suffers from PTSD and an adjustment disorder. However, I do not accept that PTSD caused the Legal Practitioner to fail in his responsibility towards Ms Bowerman or Mr Coleman, or to breach his undertaking to the court in the Coleman case, or to fail to respond to the Law Society's first complaint. I accept that he developed an adjustment disorder following disciplinary proceedings taken against him by the Law Society, notwithstanding that, other than the first proceedings, those proceedings were found to be justified, but I am concerned because the development of his disorder casts further doubt upon his fitness to practice as a solicitor.

56. I doubt that the Legal Practitioner fully understands or appreciates the seriousness of his failings in the Bowerman and Coleman cases. As it happened, fortunately, his failings did not cause damage to either Ms Bowerman or Ms Coleman, as another solicitor took over and successfully completed Ms Bowerman's case, and another solicitor filed the formal orders in the Coleman case. However, his failings in the Bowerman case could have caused a much different result, and his failings in the Coleman complaint amounted to a breach of his undertaking to the court. Also I doubt that he understands and appreciates the seriousness of his failings to respond to requests from the Law Society, which has a duty and responsibility to ensure that a solicitor acts with integrity and in the best interests of his or her client.

57. I think that it is difficult to see whether the Legal Practitioner has any regrets or is remorseful for his conduct in the Bowerman and Coleman cases, or for his attitude as to his responsibility as a solicitor towards the Law Society. It is one thing to say, as he does in his affidavit, that he admits his failures towards his clients and towards the Law Society but it is quite another thing to say that he regrets or is remorseful for those failures. I cannot see any expression of regret or remorse in his affidavit. I did not hear any expression of regret or remorse in his evidence.

58. Deterrence is an important factor to be taken into account in determining a penalty to be imposed upon someone who has done something which is unlawful, or amounts to misconduct. Personal deterrence of the wrongdoer, and general deterrence of others, are related objects. Personal deterrence of a solicitor who has been found guilty of an act of professional misconduct from doing the act again is as important as general deterrence of other solicitors from doing the same act. This was explained by Giles AJA in Law Society of New South Wales v Foreman (1994) 34 NSWR 408 at 471 in this way:

But the object of protection of the public also includes deterring the legal practitioner in question from repeating the misconduct and deterring others who might be tempted to fall short of the high standards required of them. And the public and professional colleagues who practice in the same interest must be able to repose confidence in legal practitioners, so, an element of deterrence is an assurance to the public that serious lapses in the conduct of legal practitioners will not be passed over or lightly put aside, but will be appropriately dealt with.

59. I consider both personal and general deterrence to be important. The Legal Practitioner's attitude to his past disciplinary proceedings means that he must be reminded of his obligations as a solicitor to his clients and to the Law Society, and he must be warned that repeated failures will not be tolerated by the court. Notwithstanding that I accept that he has PTSD and an adjustment disorder, I do not accept that the Legal Practitioner is a "poor vehicle for general deterrence," as submitted by Mr Crispin. I consider that the penalties that I will impose upon the Legal Practitioner should stand as a warning to other solicitors of the consequences of failing in one's responsibility to one's client and to the Law Society.

60. Another factor that I see to be important is that the Coleman complaint was first brought to the attention of the Legal Practitioner by the Law Society's letter dated 30 April 2009, and the Bowerman complaint was first brought to the attention of the Legal Practitioner by the Law Society's letter dated 11 May 2009, so that more than four years have passed since the complaints were brought to the attention of the Legal Practitioner, and, so far as I am aware, no one since then has complained to the Law Society about the Legal Practitioner's handling of any case. In saying this, I appreciate the hearing of the appeal has taken more time than an appeal would have been expected to take because the Legal Practitioner had not taken part in the hearings before the Tribunal, and he applied to Refshauge J for the appeal to be a new hearing on fresh evidence rather than a review on the evidence before the Tribunal. I take into account what Mr Fitzgerald states in his affidavit as to his observations of the Legal Practitioner's contact with clients, and his conduct with other legal practitioners and in court.

61. Mr Crispin has drawn my attention to a number of decisions in disciplinary proceedings against a solicitor. Other than the statements of principle, I do not obtain much help as to appropriate penalties from the decisions. Obviously, each decision rests on the facts in its case. In some of the cases, the offence amounted to professional misconduct. In some other cases, the offence amounted to unsatisfactory professional conduct which is an offence of less seriousness than the offence of professional misconduct. It is impossible to compare the Legal Practitioner with the solicitors in those cases.

62. In my view, in order to maintain proper standards in the legal profession, to protect the public in their dealings with members of the legal profession, and to protect the reputation of the legal profession, the following penalties are appropriate:

(iii) a recommendation that the Legal Practitioner's interstate practicing certificate be suspended for 12 months;

(iv) an order that the Legal Practitioner undertake and complete a course approved by the Law Society in ethics and another course in practice management within 12 months; and

(v) an order that the Legal Practitioner pay the costs of the Law Society.

(iii) a recommendation that the Legal Practitioner's practicing certificate be suspended for 12 months;

(iv) an order that the Legal Practitioner undertake and complete a course approved by the Law Society in ethics and another course in practice management within 12 months; and

(v) an order that the Legal Practitioner pay the costs of the Law Society.

As to costs, I consider that the Law Society should not be out of pocket, so to speak, in bringing these disciplinary proceedings against the Legal Practitioner who had failed, if not refused, to heed the comments of the Full Court of the Supreme Court on 17 December 2004 (see paragraph 36), and again on 1 August 2005 (see paragraph 37), and, therefore, the costs should be assessed on a solicitor/own-client basis and, if not agreed between the Law Society and the Legal Practitioner, the costs are to be assessed by a cost specialist, namely Legalcost, and the Law Society is to be paid 90% of the costs so assessed

63. I refer my recommendation that the Legal Practitioner's interstate practicing certificate be suspended for 12 months to the Full Court, pursuant to s 11(2) of the Supreme Court Act 1933 (ACT).

64. By consent, I stay execution of these orders for seven days from today.

I certify that the preceding sixty four (64) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Acting Justice Nield.

Solicitor for the appellant: Wilson Phillips Lawyers