APPEAL AND NEW TRIAL - In General and Right of Appeal - Legal Practitioner - Appeal against ACAT's finding of professional misconduct - Telephone records are corroborating evidence - Evidence sufficient to justify the finding that the client had given "standing instructions" to the Practitioner - Permission from Law Society for Practitioner to speak with another practitioner does not grant authority for the Practitioner to intimidate the other practitioner or act with impropriety - Conversation amounted to threats - Appeal dismissed

APPEAL AND NEW TRIAL - Excessive or Inadequate Penalty - Whether removal from the Roll is a harsh and excessive penalty for a solicitor on a restricted practising certificate - Conduct of the Practitioner cannot be compartmentalised - Practitioner cannot be trusted by clients, the public or the profession - Removal from Roll required

EVIDENCE - Generally - Disciplinary proceedings - Burden of Proof - Civil burden of proof to apply to the proceedings

EVIDENCE - Matters relating to proof - Witnesses who are also lawyers are not to be afforded any greater of status or credibility than other witnesses - ACAT is entitled to decide the reliability of witnesses

EVIDENCE - Civil and Administrative Tribunal entitled to draw Jones v Dunkel inference from Practitioner not giving evidence in proceedings against him

PROFESSIONS AND TRADES - Lawyers - Disciplinary proceedings - Duties of participation by lawyer

ACT Civil and Administrative Tribunal Act 2008 (ACT), ss 56, 79, 81, 82, 83, 387

ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), s 30

Domestic Violence and Protection Orders Act 2001 (ACT)

Evidence Act 1995 (Cth), s 128

Human Rights Act 2004 (ACT)

Legal Aid Act 1977 (ACT), s 32

Legal Profession Act 2006 (ACT), ss 27, 397, 419, 425(3)(a), 433(1)

Legal Profession (Solicitor) Rules 2007 (ACT), r 1.1, 1.2, 39.1

A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253

Adler v Australian Securities and Investments Commission [2009] FCA 619; (2003) 179 FCR 1

Allinson v General Council of Medical Education & Registration [1894] 1 QB 750

Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347

Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR 395

Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209

Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604

Bannister v See [1982] FCA 82; (1982) 42 ALR 78

Big River Timbers Pty Ltd v Stewart (1999) 9 BPR 16,605

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Canberra Data Centres Pty Ltd v Vibe Construction Pty Ltd (2009) 4 ACTLR 114

Coe v NSW Bar Association [2000] NSWCA 13

Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2009] ACAT 2

Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 45

Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 46

Council for the New South Wales Bar Association v Slowgrove [2009] NSWADT 150

Derry v Peek [1889] UKHL 1; (1889) 14 App Cas 337

Ex parte Attorney-General (Cth); Re A Barrister and Solicitor (1972) 20 FLR 234

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

In re Weare; in re The Solicitor's Act 1988 [1893] 2 QB 439

Johns v Law Society of New South Wales [1982] 2 NSWLR 1

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Lampard v West [1926] SAStRp 26; [1926] SASR 293

Law Society of NSW v Green [2008] NSW ADT 149

Law Society of New South Wales v Weaver [1977] 1 NSWLR 67

Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118

Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42

McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42

New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279

New South Wales Bar Association v Kalaf (Unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 11 October 1988)

New South Wales Bar Association v Meakes [2006] NSWCA 340

Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451

O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204

Pencious and Pencious [2012] Fam CA 74

Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201

Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470

R v Mayne (1975) 11 SASR 583

R v Solicitors' Disciplinary Tribunal [1988] VicRp 72; [1988] VR 757

Re O'Neil (deceased) [1972] VicRp 35; [1972] VR 327

Re Veron; Ex parte Law Society of NSW [1966] 1 NSWR 511

Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517

Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256

Southern Law Society v Westbrook [1910] HCA 31; (1910) 10 CLR 609

Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287

Stirling v Legal Services Commissioner [2013] VSCA 374

Theodorelos v Nexus Projects Pt6y Ltd [2009] ACTSC 149

Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281

Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471

Walter v Council of the Queensland Law Society [1988] HCA 8; (1986) 77 ALR 228

Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73

Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279

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

2. The proceedings be remitted to the ACT Civil and Administrative Tribunal to give effect to its orders.

3. The Legal Practitioner pay the costs of the Council of the Law Society of the ACT.

1. These reasons for judgment are divided into the following sections:

The investigation and proceedings [14]

(c) The hearing and decision [22]

Factual basis of the first complaint [55]

Factual basis of the second complaint [81]

Affidavits relied on by the Legal Practitioner [133]

(i) Cross-examination of Ms N [145]

(ii) Cross-examination of Ms L [159]

(iii) Cross-examination of Mr F [160]

(iv) Cross-examination of Mr R [163]

(v) Cross-examination of Mr J [167]

The reasons for decision on the complaints [264]

The findings of the ACAT on penalty [338]

(a) First orally argued ground of appeal [358]

(b) Second orally argued ground of appeal [396]

(c) Third orally argued ground of appeal [405]

(d) Fourth orally argued ground of appeal [419]

(e) Fifth orally argued ground of appeal [441]

(f) Sixth orally argued ground of appeal [457]

(g) Seventh orally argued ground of appeal [473]

(h) Eighth orally argued ground of appeal [482]

(i) Ninth orally argued ground of appeal [490]

(j) Tenth orally argued ground of appeal [495]

(k) Eleventh orally argued ground of appeal [507]

(a) Mr J's responsibility to Ms L [527]

(b) The situation with Mr A [533]

(c) The setting up of Ms A [541]

(e) Grounds 5, 6, 7 and 8 [556]

2. In 2007, the Legal Practitioner, the appellant in these proceedings, was practising as an employed solicitor with two Canberra legal firms. He held a restricted practising certificate.

3. In about May 2007, the Legal Practitioner received instructions from Ms N to act for her in proceedings in the Family Court of Australia in respect of child custody. Ms N and the Legal Practitioner commenced a personal intimate relationship in circumstances that were disputed.

4. Subsequently, on or about 29 October 2007, Ms N complained to the Law Society of the Australian Capital Territory (the Law Society) about the conduct of the Legal Practitioner in acting for her in the proceedings. The Law Society commenced an investigation into the complaint.

5. In about June 2007, the Legal Practitioner received instructions to act for a client, Ms L, the sister of Ms N, in an appeal to this Court commenced by Ms A, from an order of the Canberra Magistrates Court refusing an application to revoke a personal protection order made on 26 February 2007 in favour of Ms L and against Ms A.

6. The Legal Practitioner appeared before this Court on 14 September 2007. On that day, the appeal was allowed by consent, the order of the Magistrates Court set aside and the proceedings remitted to the Magistrates Court for hearing on condition that Ms A gave an undertaking until that hearing in the same terms as the protection order.

7. Ms L complained to the Law Society on 19 November 2007 about the conduct of the case by the Legal Practitioner. The Law Society then commenced an investigation into that complaint also.

8. As a result of those investigations, the Council of the Law Society (the Council), the respondent in these proceedings, applied under s 419 of the Legal Profession Act 2006 (ACT) to the Legal Practitioners Disciplinary Tribunal (the Tribunal) on 21 August 2008 for an order in relation to the complaint against the Legal Practitioner by Ms N (LP 6/08).

9. On 24 February 2009, the Council applied, also under s 419 of the Legal Profession Act, but by then it was to the ACT Civil and Administrative Tribunal (the ACAT), for an order in relation to the complaint against the Legal Practitioner by Ms L (LP 1/09).

10. On 2 February 2009, the Legal Practitioners Disciplinary Tribunal was abolished and, under s 30 of the ACT Civil and Administrative Tribunal (Transitional Provisions) Regulation 2009 (ACT), any application made to that Tribunal, where it had not begun hearing the application, were deemed to be an application to the ACAT.

11. As a result, the ACAT heard both applications. On application LP 6/08, it found that the Legal Practitioner was guilty of unsatisfactory professional conduct. On application LP 1/09, it found he was guilty of professional misconduct.

12. A hearing to determine the appropriate penalty was then conducted by the ACAT and, on 4 August 2010, the ACAT ordered that the Legal Practitioner's local practising certificate be cancelled and recommended that his name be removed from the local roll kept under s 425(3)(a) of the Legal Profession Act.

13. The Legal Practitioner has appealed against all the decisions made by the ACAT in the proceedings involving both LP 6/08 and LP 1/09. It is that appeal with which these reasons are concerned.

14. As noted above (at [4] and [6]), letters of complaint were sent by Ms N and Ms L to the Law Society. As required under s 397 of the Legal Profession Act, the Law Society informed the Legal Practitioner of the complaints and sought his response to them. There ensued a considerable amount of correspondence, copies of which were in the appeal papers.

15. As also noted (at [8]-[9]), the Council then applied to the relevant tribunals for orders in relation to the complaints.

16. There were two applications. I shall, for the purposes of these reasons, refer to them as the first complaint (LP 6/08) and the second complaint (LP 1/09). Each had a number of aspects which, though in the first complaint were called particulars, I shall call grounds.

The Society complains 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').

18. The complaint was summarised as "Failure to be open and honest in his dealings with the Society".

19. The two grounds, described as particulars, of this first complaint were as follows:

1. 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.

The Society contends 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.

21. The three grounds of the complaint were as follows:

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 [Ms A's lawyer, 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] 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.

22. The two applications were heard together by the ACAT. The Legal Practitioner filed affidavits made by himself but ultimately did not read them and did not give oral evidence or submit himself to cross-examination. He did read affidavits made by other deponents, who were cross-examined.

23. The hearing commenced on 28 September 2009 and continued until 2 October 2009. Written submissions were made by both parties and oral submissions were made on 12 November 2009.

24. On 1 February 2010, the ACAT made the findings to which I have referred above (at [11]. See Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2009] ACAT 2.

25. The Legal Practitioner sought to appeal against those findings under s 79 of the ACT Civil and Administrative Tribunal Act 2008 (ACT) (the ACAT Act). The Appeal President struck out the appeal on 31 March 2010 because it was incompetent.

26. The ACAT then listed the matter for a further hearing it had foreshadowed on 27 May 2010.

27. Prior to the further hearing, it apparently became clear that the Legal Practitioner wished to re-open the earlier hearing. That appears to have been announced at a directions hearing held by the ACAT on 21 May 2010 and directions were made about the filing of written submissions about it. Oral submissions were also made on 27 May 2010. On that day, the ACAT dismissed the application to re-open the earlier hearing . It published its reasons on 4 August 2010: Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 45.

28. It then proceeded on 27 May 2010 with the hearing to determine the orders to be made in relation to penalty or sanction and, on 27 May 2010, ordered that the Legal Practitioner's local practising certificate be cancelled forthwith and recommended that the name of the Legal Practitioner be removed from the local roll of practitioners maintained by the Supreme Court. See Council of the Law Society of the Australian Capital Territory v Legal Practitioner [2010] ACAT 46.

29. On 13 August 2010, the ACAT ordered that the Legal Practitioner pay the Council's costs of all hearings, including interlocutory hearings, on a party-party basis as agreed or assessed.

30. On 31 August 2010, the Legal Practitioner appealed against the various findings of the ACAT.

31. Under s 79 of the ACAT Act, an appeal is made from a decision of the ACAT on an original application within the ACAT to the ACAT constituted under s 81 of the ACAT Act by ACAT members allocated by the Appeal President to review the decision. That is called the "appeal tribunal".

32. Under s 83 of the ACAT Act, however, the parties may jointly apply to have the appeal removed to this Court. I have discussed that procedure in Appellants v Council of the Law Society of the ACT (2011) 252 FLR 209. I follow the approach I there took.

33. On his appeal form, the Legal Practitioner indicated that he wished the appeal to be referred directly to this Court. The Council agreed and, on 13 September 2010, the ACAT ordered that the appeal be removed to this Court. It also stayed the costs order made on 13 August 2010.

34. The proceedings came before me on 20 October 2011 to decide how the matter should proceed. The Legal Practitioner sought that the proceedings be heard de novo. The Council submitted that it should be a rehearing.

35. The Council submitted that the proceedings should be heard by a Full Court.

36. On 23 December 2011, I held that the hearing proceed as a rehearing and that it be heard by a single judge: Legal Practitioner v Council of the Law Society of the ACT (2011) 257 FLR 118.

37. The hearing was conducted on 9 May 2012 and occupied one day. I reserved my decision.

38. The Legal Practitioner appealed on questions of law and fact.

39. As to questions of law, the Legal Practitioner raised the following in the Notice of Appeal:

1. The Tribunal erred as a matter of law in holding that a Jones v Dunkel inference may be drawn to the full extent even in civil penalty proceedings.
2. The Tribunal erred as a matter of law in holding that it was bound by the line of authority relied upon by the respondent, for example, Re Vernon; Ex parte Law Society of NSW ([1966] 1 NSWLR 511), NSW Bar Association v Meakes ([2006] NSWCA 340), Law Society of NSW v Green ([2008] NSW ADT 149). [I pause to note that the first mentioned case does not appear to exist; I assume that the Legal Practitioner intended to refer to Re Veron; Ex parte Law Society of NSW [1966] 1 NSWR 511.]
3. The Tribunal erred as a matter of law in holding that in order to be satisfied that the appellant had not been open and frank with the respondent it was required to be "comfortably satisfied" that its findings on the charges were "just and correct".
4. The Tribunal erred as a matter of law in assessing the evidence of the three solicitors who gave evidence for the appellant at hearing by conflating the issue of the weight of that evidence into the issue of its reliability.
5. The Tribunal erred as a matter of law in holding that negative inferences could be drawn from the appellant's failure to give evidence.
6. The Tribunal erred as a matter of law in finding that there is an expectation that legal practitioners will enter the witness box to provide some explanation for their conduct.
7. The Tribunal erred as a matter of law in finding that the inference to be drawn from the facts is that the appellant's evidence would not have assisted his case and that this inference is more readily drawn from his failure to give evidence.
8. The Tribunal erred as a matter of law in proceeding upon the basis that a solicitor owes a duty of candour and frankness in his or her dealings with his or her professional body and that that duty applied to the proceedings before the Tribunal and that the appellant's failure to give evidence in the hearing and to subject himself to cross examination justified the Tribunal in making adverse findings.
9. The Tribunal erred as a matter of law in finding that the test to be applied in respect of an allegation of professional misconduct was whether the misconduct could be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable.
10. The Tribunal erred as a matter of law in finding that the misconduct found in respect of the [Ms L] allegations (LP 1 of 2009) amounted to a professional misconduct.
11. The Tribunal erred as a matter of law in having regard to irrelevant matters.
12. The Tribunal erred as a matter of law in not having regard to a number of relevant matters. (Letter to the Society with regards to contacting [Mr C] and the letter to [Ms L] of 14/09/07).
13. The Tribunal erred as a matter of law in not allowing the appellant to re open his case.
14. The Tribunal erred as a matter of law in awarding costs in these matters to the applicant.

40. As to questions of fact, the Legal Practitioner raised the following in the Notice of Appeal:

The evidence adduced at hearing provides a too fragile a base to sustain the Tribunal's findings of fact which are against the weight of evidence.

41. The Legal Practitioner sought to rely on further evidence on the appeal. He also set out in the Notice of Appeal the following reasons said to justify the appeal:

The Tribunal erred as a matter of law in its application of the relevant legal principles and it's finding of fact and its order should be set aside. The Tribunal erred as a matter of law in refusing the application to re open the case. And or alternatively the penalty imposed was harsh and excessive given the Appellant was the holder of a Restricted practising Certificate at the time of the conduct and had only been practising under supervision for a period of 1 month (LP 6 of 2008). Further the appellant has had no other findings recorded against him an d should have been considered as a first offender none of the above were taken into consideration.

42. When, as here, the "internal appeal" under s 79 of the ACAT Act from the ACAT to appeal tribunal is referred to the Court, it exercises the jurisdiction of the appeal tribunal of the ACAT.

43. That jurisdiction is, under s 82 of the ACAT Act, to be exercised by hearing the appeal either "as a new application" or "as a review of all or part of the original decision".

44. As noted above (at [36]), I held that the matter should not proceed as a new application. I termed the alternative, described as "a review", to the rehearing.

45. I have described the nature of a rehearing in Theodorelos v Nexus Projects Pt6y Ltd [2009] ACTSC 149 at [78].

46. There is, so far as I can ascertain, no authority on the nature of the review that is to be undertaken if the ACAT does not deal with the matter as a new application.

47. In Bannister v See [1982] FCA 82; (1982) 42 ALR 78 at 81, Toohey J said "[t]he term 'review' is not one of precision". That may easily be accepted. In Australian Telecommunications Commission v Colpitts [1986] FCA 257; (1986) 12 FCR 395 at 404, Toohey J, with whom Fisher J agreed, held that the court must find the meaning of "review" in the legislation itself. There, the fact that the Act expressly provided for reference of a matter as an appeal to other bodies established under the Act meant that the instant reference for a review had to mean something different and so held it did not mean an appeal.

48. Here, however, the section itself refers to "an appeal" by one of the two methods referred to earlier.

49. It seems clear to me that the first alternative is what is traditionally known as a hearing de novo. See Turnbull v New South Wales Medical Board [1976] 2 NSWLR 281 at 297.

50. Given that approach, it seems to me that the other alternative must be an appeal by way of rehearing.

51. Without further argument on the issue, I am satisfied that this is how I should approach the task. I will do so.

52. In his written submissions, and at the actual hearing of the appeal, the Legal Practitioner did not address each of the grounds of appeal in a direct or clear manner, but I will, when dealing with the arguments he made, endeavour to relate them to the grounds of appeal.

53. The Council's first complaint (LP 6/08) was that, between October and December 2007, the Legal Practitioner engaged in conduct which breached r 39.1 of the Legal Profession (Solicitor) Rules 2007 (ACT) (the Solicitors Rules) in his dealings with the Law Society in relation to its investigation of the complaint of Ms N. The grounds are set out above at [19].

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.

Factual basis of the first complaint

55. Ms N said that she met the Legal Practitioner outside the Magistrates Court when she came to support her sister, Ms L, in proceedings involving Ms L, who had been granted a personal protection order and was at the Court to respond to an application by the respondent, Ms A, to have it revoked. The evidence of Ms N originally was that this happened in April 2007, but the only time that the case involving Ms L was relevantly before the court was on 7 May 2007. Ms N made a supplementary affidavit in which she acknowledged that this must have been the date on which the meeting occurred.

56. Ms N said that the Legal Practitioner had handed her his business card and they spoke about her Family Court matter. A few days later she attended his office to ask him to represent her in the proceedings in the Family Court in which she was seeking custody of her two young children.

57. She said that she spoke to the Legal Practitioner on a number of occasions over the following weeks and that he appeared knowledgeable about the proceedings. He then agreed to take over the matter from her former solicitor. The matter was legally aided and a transfer of the grant of legal aid effected on 21 May 2007. A letter from Legal Aid (ACT) (Legal Aid) of that date reported the transfer the grant of aid to the firm for which the Legal Practitioner worked. Later, as noted below, the Legal Practitioner also took over the proceedings involving Ms L, and Ms N attended his office with Ms L for their first meeting.

58. Ms N said that, by this time, she and the Legal Practitioner were having telephone contact about once or twice a week when they would discuss her matter and her sister's matter. The contact developed into a personal relationship with the Legal Practitioner, who discussed his own custody issues with his children.

59. In July 2007, Ms N instituted proceedings for divorce and Ms N said that she, Ms L and the Legal Practitioner arranged to have drinks to celebrate that event. Ms L could not ultimately attend and so Ms N and the Legal Practitioner had dinner together. Ms N said that they embraced and kissed. Ms N said that in the weeks ahead, the relationship between the two developed and became a sexual relationship in August 2007. It continued, she said, on that basis throughout September, when Ms N stayed at the home of the Legal Practitioner and was introduced to a number of people as the "girlfriend" of the Legal Practitioner.

60. Ms N, however, became suspicious of the Legal Practitioner and retained the services of a private investigator to follow him. Those investigations showed him to be at times in the region of Yarralumla.

61. Ms N obtained the name of his former partner and discovered from the telephone directory her address in Yarralumla and her telephone number. She telephoned the Legal Practitioner's former partner and had two conversations with her, during which Ms N was told that the Legal Practitioner "lives with me at Yarralumla where he stays during the week".

62. On 23 October 2007, Ms N attended the office of the Legal Practitioner and she says he told her, "I am unable to continue the personal relationship as it would affect [my] custody arrangements", despite having earlier assured her that he would still represent her. She says she left with her file. She said that the Legal Practitioner refused to discuss their relationship with her.

63. Ms N then made a complaint to the Law Society by letter, which was received by the Law Society on 31 October 2007. It appears that, on that day, a copy of her letter was sent to the Legal Practitioner with a request for comment.

64. On 12 November 2007, the Legal Practitioner responded. He said that he entered into a personal relationship with Ms N about a month before her family law matter file was transferred to him. He said that Ms N often called him about her case as she was seeing him "approximately two or three times a week" and she expressed dissatisfaction with her then lawyer and pressed him to take over the case.

65. The Legal Practitioner said that "[d]ifficulties developed in [their] relationship" and he told her he did not want to act for her any longer. He said Ms N then rang the mother of his two children and "commenced to harass" her. He also said that he realised it was "inappropriate" for him to continue to act for Ms N and the matter was transferred to another solicitor.

66. He also wrote to Legal Aid on 12 November 2007. In that letter he noted the transfer of its grant of aid for Ms N to another firm and continued

As discussed I was always acting for Ms [N] on a Pro Bono basis and 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.

As such the grant made to my firm will not and has not been claimed and the full grant as initially transferred to us is available to the new practitioner to complete Ms [N]'s matter for her. I further confirm that we never intended nor have we ever collected the $90.00 client contribution, as such the new solicitor will need to collect it from Ms [N].

67. This letter prompted two responses from Legal Aid. It sent a strong letter of rebuke to the Legal Practitioner's employer, stating that his comments about acting pro bono were "misleading and evasive" as he had at all times "held himself out to the Legal Aid Office as acting in these matters pursuant to a grant of legal assistance". It then referred to reports the Legal Practitioner made to Legal Aid which, of course, would have breached client confidentiality had Legal Aid not been funding the representation. It also referred to an invoice from the firm for which the Legal Practitioner worked and which invoice had been paid by Legal Aid.

68. The Legal Practitioner responded to Legal Aid's letter and he apologised for his "incorrect" letter stating that it had "always been my intention to act for Ms N on a Pro Bono basis."

69. Ms N was sent a copy of the Legal Practitioner's letter of response to the Law Society; she replied to the Law Society, setting out in some detail her answer to his letter. She rejected many of his claims. She confirmed that his personal relationship between them commenced in July 2007 and that this was after she had become his client in May 2007.

70. She also referred to a telephone call that she had received from Legal Aid in which a solicitor from that office informed her, obviously from the Legal Practitioner's letter, that the Legal Practitioner had represented her on a pro bono basis. She forwarded to the Law Society a copy of the letter she had received from Legal Aid dated 21 May 2007 transferring the grant of aid to him. She also stated that she paid the required $90 contribution to the Legal Practitioner.

71. A copy of her letter was sent to the Legal Practitioner on 28 November 2007.

72. The Legal Practitioner wrote to the Law Society on 12 December 2007. He traversed a number of the claims and responses made by Ms N in her letter.

73. He referred to the celebratory drinks in connection with her divorce, but said

I further state that Ms [N]'s recollection is incorrect in that in her letter of 31/10/07 paragraph 4 she did not file for divorce in July 2007 we did in fact have celebratory drinks but this was after her divorce was completed and it was in October 2007.

I deny that my firm ever received the $90.00 contribution from her and I can confirm that no receipt was issued by this office nor was a cheque ever received from Ms [N]. At all times I was under the impression that I was acting Pro Bono for Ms [N] in her matter. To this end even though I had no obligation to do so I repaid ACT Legal Aid out of my personal funds so that my firm, Ms N and ACT Legal Aid were not out of pocket for my error of judgement.

75. It is difficult to accept that Legal Aid would have made a payment to a firm without receiving an account, and it is difficult to accept that an account could be prepared and sent without the knowledge of the solicitor who performed the relevant work. Indeed, that is what happened. On 23 October 2007, the Legal Practitioner wrote to Legal Aid in the following terms:

I refer to your letter of 21 May 2007.

We withdrew from this matter today as the client took back her file. The matter is substantially completed.

Accordingly I attach our tax invoice of even date. Thank you for referring Ms N to our firm.

76. He signed the letter which related to the attached account, that charged Legal Aid $1650 plus GST of $165 from which was deducted a "client contribution" of $90. It is difficult, if not impossible to accept that the Legal Practitioner had no knowledge of this.

77. The Council's second complaint (LP 1/09) was that the Legal Practitioner breached all, or one or more, of Rule 1.1, 1.2 and 39.1 of the Solicitors Rules 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 by Ms L.

78. Rules 1.1 and 1.2 of the Solicitors Rules are as follows:

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 the manner and attend to the work required with reasonable promptness.

79. Rule 39.1 is set out above (at [54]).

80. The Grounds and Particulars of the second complaint have been set out above (at [21]).

81. In her letter of complaint dated 19 November 2007, Ms L said that she met the Legal Practitioner on 7 May 2007 while she was attending a hearing of proceedings at the Magistrates Court in which she was involved. She was present with her sister, Ms N, and this meeting is referred to above (at [55]-[56]).

82. Ms L stated she had been granted, ex parte, a personal protection order under the Domestic Violence and Protection Orders Act 2001 (ACT) against Ms A on 26 February 2007 but Ms A had applied to revoke the order. The application to revoke the order was heard on 7 May 2007. It appears that the application for revocation was not successful.

83. On 28 May 2007, Ms A appealed to the Supreme Court seeking that the original order made on 26 February 2007 be set aside. The Notice of Appeal was filed by solicitors for Ms A.

84. Ms L said that she had not been legally represented, but when the Notice of Appeal was served on her and, as she was required to appear in court, her sister, Ms N, mentioned the matter to the Legal Practitioner, who "offered to review [her] case". He suggested she apply for Legal Aid, which she did, but her application was declined twice. The Legal Practitioner offered to act for her pro bono until Legal Aid was granted.

85. Ms L said, in her oral evidence, that the Legal Practitioner represented her five times in court. She said that, in October 2007, the matter returned to the Magistrates Court. The Legal Practitioner urged her to re-apply for legal aid funding and she did. It was initially declined but again subsequently granted.

86. The hearing in the Magistrates Court was listed for 28 October 2007, but on 25 October 2007, the Legal Practitioner informed Ms L that he could no longer represent her as Ms N had made a complaint to the Law Society about him.

87. The Legal Practitioner then offered to obtain alternative legal representative for Ms L and to seek an adjournment of the proceedings. The proceedings were adjourned to 26 November 2007, but it appears that he made no effort to obtain alternative legal representation for Ms L. Later, Legal Aid effected a transfer of the matter to a new solicitor.

88. This is the context of the complaint. The complaint itself, however, arose because of the conduct by the Legal Practitioner of the appeal in this Court.

89. On 19 February 2008, Ms L followed up her complaint with the Law Society. She wrote by email that the basis of her complaint was that the Legal Practitioner had advised her "that [she] would not have legal representation only two days prior to [the] hearing on 29 October, 2007". She continued, however

[The Legal Practitioner] maintains he has represented me vigorously and on a pro bono basis, when he in fact went against my instructions and had the restraining lifted without my knowledge. He did so as he felt it was a waste of time, while acknowledging it was always my instructions to keep it in place. I discovered the order had been lifted at my next hearing on 22 January 2008. I successfully applied to the Magistrate's Court to keep the restraining order in place previously, as I feel unsafe without it ...

90. This refers to a hearing of the appeal proceedings on 14 September 2007, when the Legal Practitioner appeared before the Chief Justice in this Court.

91. It appears that the appellant, Ms A, wanted some documents produced and sought an order for their production by Application in Proceedings. This was made in the appeal proceedings in this Court, the Application being returnable on that day. The documents she sought were prima facie inadmissible by virtue of s 163 of the Children and Young People Act 1999 (ACT). At the hearing on 14 September 2007, Ms A's solicitor outlined the position to the court.

92. When asked to make submissions, the Legal Practitioner stated that there was evidence by Ms L of a report which, by s 163(2), would make at least one document admissible, but then continued and made the following submissions:

[THE LEGAL PRACTITIONER]: Your Honour, in our submission, this matter - we've attempted at all times to settle this matter and have it reverted back to the Magistrates Court, at all times. We understand the decision was made on an ex parte basis.

HIS HONOUR: Correct.

[THE LEGAL PRACTITIONER]: We've been to ---

HIS HONOUR: It would be open to set aside the ex parte decision.

[THE LEGAL PRACTITIONER]: That's right, your Honour. We've been to our friends on a number of occasions and asked for the matter to be reverted back to the Magistrates Court which is the reason we're here. We feel we're wasting a lot of court time ---

93. After some further discussion, the following exchange took place:

[THE LEGAL PRACTITIONER]: No, your Honour, we were going to consent once the order had been set aside.

HIS HONOUR: Right.

[THE LEGAL PRACTITIONER]: And have it remitted back, but on the understanding that the protection contained in the order would stand until the matter was reheard.

HIS HONOUR: How could that be done?

[THE LEGAL PRACTITIONER]: I'm not sure, your Honour, that's what we were negotiating with our friend.

HIS HONOUR: I suppose it could be done by way of an undertaking.

[THE LEGAL PRACTITIONER]: Yes, your Honour.

HIS HONOUR: Without admission, of course, and so on and so forth.

[THE LEGAL PRACTITIONER]: Yes, your Honour. The only concern, your Honour, is from our client, the respondent, is the fact that she's had the order granted by Burns, it's been ---

HIS HONOUR: By Magistrates Burns.

[THE LEGAL PRACTITIONER]: Yes, from Magistrates Burns, since 26 February.

HIS HONOUR: Yes.

[THE LEGAL PRACTITIONER]: The order's in place, the order is working. Of course she needs the order, she's in fear and she doesn't want to be in a situation whether it's overturned here ---

...

HIS HONOUR: All right. Well, what you're saying, correct me if I'm wrong, is that you're prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to what? Do you have a list of things that you want the appellant to undertake not to do?

[THE LEGAL PRACTITIONER]: Exactly what's contained in the original order, your Honour.

HIS HONOUR: All right. So to undertake not to behave in an offensive manner towards the applicant. Is that correct?

[THE LEGAL PRACTITIONER]: Yes, your Honour.

HIS HONOUR: Or a harassing manner. Not to be on the premises at Calwell, not to be within 100 metres of the applicant for the order.

[THE LEGAL PRACTITIONER]: That's correct, your Honour.

HIS HONOUR: Not to contact except at court or except through a solicitor. Well, what's there basically, that's what you're asking me.

[THE LEGAL PRACTITIONER]: Exactly, your Honour. Just after exactly those conditions your Honour.

HIS HONOUR: By way of an undertaking.

[THE LEGAL PRACTTIONER]: By way of an undertaking and then we'll just have to remit it back to the Magistrates Court.

HIS HONOUR: For a determination as to whether an order should be made afresh?

[THE LEGAL PRACTITIONER]: Exactly, your Honour, on the evidence ---

HIS HONOUR: Whatever evidence might be given by either or both parties.

94. At 11:12 am, the Chief Justice adjourned the proceedings so that Mr C could obtain instructions on that proposal. The proceedings resumed at 11:36 am, and Mr C advised the court that Ms A would only give the required undertaking if Ms L gave a similar undertaking. After some discussion, however, that requirement was not pressed and his Honour allowed the appeal by consent, set aside the existing order and remitted the proceedings to the Magistrates Court for hearing and determination according to law. His Honour noted the undertaking of Ms A by her counsel in the same terms as those of the protection order that had been set aside. His Honour reserved the question of costs and granted each party liberty to apply in respect to costs.

95. I note that the Legal Practitioner had, on 29 January 2008, written to the Law Society and made reference to these proceedings.

In regard to the complaints I can only express my disappointment with the situation. I have acted pro bono for Ms [L] in the Supreme Court and the Magistrates Court. I have fought a bitterly contested matter in the Supreme Court against two senior solicitors from Elrington Boardman Allport 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, then spent time in the Magistrates Court for her supported her, application for Legal Aid and chased up Legal Aid for her.

...

At all times Ms [L] only ever wanted the order that she had in place to stay in place. I achieved this via the Supreme Court action and by the adjournments in the Magistrates Court. At no time was she disadvantaged by any of my actions. In fact she has had the benefit of the order ever since I came into the matter at no cost at all. For her to say that she has been distressed is false. For her to create false statements is unbelievably disappointing.

97. It seems to me that his statements do not accurately represent what happened in this Court; contrary to having "won" in this Court, the appeal against the order that Ms L had obtained in the Magistrates Court and which had survived an application for revocation was upheld and the order set aside. It seems to me it was not correct to say "Ms [L]'s DVO was maintained for her safety", especially as the Legal Practitioner knew that it had been set aside, albeit replaced by an undertaking.

98. In any event, when Ms L's email of 19 February 2008 was forwarded to the Legal Practitioner, he responded to the Law Society by letter dated 4 March 2008. He wrote:

I deny ever acting against Ms [L]'s instructions. She has been present at all time (with the exception of the hearing on 29/10/07 when she was ill). The restraining order was never lifted. Ms [L] was present in the Supreme Court when His Honour Chief Justice Higgins at 9.30 am in Courtroom 1 carefully explained to myself and [Ms A's solicitor] on Friday 14/09/07 that there were undertakings in place that had to be agreed upon by both parties which in fact meant that the restraining order was still in place and would stay in place until the matter was fully decided by the lower court. His Honour explained at length to myself and [Ms A's solicitor] that the orders had to stay in place and if [Ms A's solicitor] did not agree to that course of action that he would make those orders. [Ms A's solicitor] then had a short adjournment and rang his client who was not present in court and eventually agreed to this course of action. His Honour explained to Ms [L] from the bench what this meant she was present at all times.

99. He wrote again on 1 April 2008. Strangely, given the comments he had made about the orders, he wrote:

It is impossible for court orders or interim orders with regard to Domestic Violence orders to be in place after an appeal in the Supreme Court.

100. He then repeated and added to what he had written about Ms L's presence. He wrote:

[Ms L] was present at all times in the Supreme Court on 14/09/07 was consulted with by myself and gave instructions repeatedly and during the short adjournment between 11.12am and 11.36am.

At all times Ms [L] was present during the hearing and gave clear instructions to me. I am happy to obtain an affidavit from [Mr C] to this effect. Ms [L] repeatedly interrupted conversations between [Mr C] and myself and was standing next to me in all of my conversations with [Mr C].

101. On 4 May 2008, Ms L advised the Law Society that the protection order had not been re-made in the Magistrates Court after the appeal and added that she considered that the Legal Practitioner's action "of removing the order (against my insistence)" made it difficult, if not impossible, to have the order re-made.

102. The Legal Practitioner responded again on 7 May 2008 and repeated his assertion that Ms L had been present in court when the orders on the appeal were made.

103. On 30 June 2008, the Complaints Committee of the Law Society dismissed Ms L's complaint. The Law Society wrote to her, setting out the reasons. In relation to the complaint of misleading the Legal Practitioner's client, Ms L, the Law Society wrote

In response to the complaint [the Legal Practitioner] produced a transcript of the proceedings before Higgins CJ on 14 September 2007 when the undertakings were agreed. You were present at these proceedings. On page 13 of the transcript Higgins CJ made it clear that what was being agreed to was that you would consent to the appeal being upheld, the order being set aside, and the application for the order being remitted back to the Magistrates Court on the undertaking of Ms [A] not to do those things contained in the original order ie not to behave in an offensive manner towards the you.

...

The Committee was not convinced that you were not aware that it was agreed that an undertaking replace the order. The Committee accepted that you may have been unclear about how the undertaking was meant to operate. However, having been present in court when these matters were discussed, you had the opportunity to object to the approach taken by your solicitor and instruct him not to agree to the substitution. There is no evidence that this occurred.

In the circumstances the Committee was of the view that this ground of complaint was not made out.

104. As a result of receiving this letter, Ms L contacted the Law Society and told them that she was not present at the hearing on 14 September 2007. She confirmed that by email on 2 July 2008.

105. The Law Society wrote to the Legal Practitioner on 9 July 2008 advising him of this further information and he responded with some vehemence, suggesting that both he and Ms L should provide statutory declarations showing where they were on 14 September 2007 and that would allow "the individual who is misleading the Society to be charged with making a false declaration".

106. The Law Society responded and noted that the Legal Practitioner had been "prepared to have [Mr C] provide the Society with an affidavit". It suggested that he arrange to do so.

107. On 11 July 2008, the Legal Practitioner advised the Law Society that he had contacted Mr C and reported that the solicitor "had no independent recollection of seeing Ms [L] at court on that day". The Legal Practitioner repeated, however, that Ms L was at court. He pointed out, in a later letter, dated 5 August 2008, that no assertion had been made that Ms L was not at court despite his continued assertion.

108. On 23 March 2009, Ms L's new lawyer signed a statement in which he stated that Ms L had told him on 22 January 2008 that "she was in the Supreme Court with [the Legal Practitioner] on 14/09/07 during the proceedings before the Chief Justice".

109. On 2 April 2009, during the investigation of the complaint by the Law Society, the Legal Practitioner telephoned Mr C and told him that he had a statement from Ms A that he "could lodge with the Law Society at any time" and that it suggested Ms A's lawyer had acted without instructions. This was the subject of the third ground of the complaint.

110. It is desirable to summarise the evidence given before the ACAT at the hearing of these complaints.

111. As would be expected, an affidavit of the Professional Standards Director of the Law Society, Robert Reis, made 20 February 2009, was filed. In it he deposed to the admission of the Legal Practitioner, the issuing to him of a practising certificate and his employment status. He deposed further to the decision of the Council to refer the complaint to the Tribunal. He then annexed to his affidavit the relevant correspondence.

112. In particular, annexed to the affidavit was the original letter of complaint by Ms N to the Law Society of about 30 October 2007 and the response of the Legal Practitioner of 12 November 2007. It was in this letter that the Legal Practitioner first stated that he and Ms N had entered into a personal relationship "approximately one month before her family law case was transferred" to him.

113. Also annexed was the letter of the Legal Practitioner to Legal Aid, dated 14 November 2007, in which he stated that "[i]t was and always has been my intention to act for Ms [N] on a Pro Bono basis" and with which he sent the cheque reimbursing Legal Aid for the costs paid by it to the firm by which he was employed.

114. Ms N's letter of 27 November 2007 to the Law Society denying that the personal relationship developed before she became a client of the Legal Practitioner was also annexed.

115. The further response of the Legal Practitioner dated 12 December 2007 was annexed in which he stated that Ms N was incorrect and repeating that he had met her, and her sister, Ms L, outside court 3 of the Magistrates Court in April 2007 and "a personal relationship quickly developed soon after that meeting". He asserted that Ms N and Ms L attended his office on 9 May 2007 to have Ms N's family law matter discussed.

116. In this letter, the Legal Practitioner states "At all times I was under the impression that I was acting Pro Bono for Ms [N] in her matter". This is a curious assertion given that he asserted, both in this letter as well as a later letter (see below at [117]), that he became Ms N's solicitor upon the transfer to his firm of the grant of legal aid.

117. A letter from the Legal Practitioner, dated 15 September 2008, to the Law Society was also annexed. In it, he suggests that Ms N became his client upon the transfer of the grant of legal aid to him on 21 May 2007. I do not accept that this is so. He had discussions with Ms N on 9 May 2007. It can only be concluded that, as a result of those conversations, Ms N sought to have the grant of legal aid transferred to the Legal Practitioner who was, therefore, held out as her solicitor. Ms N wrote to Legal Aid on 14 May 2007 seeking to have the grant of aid transferred to the Legal Practitioner. She wrote again on 17 May 2007, after the transfer had been declined, seeking that her application be reconsidered. In that letter, she referred to some investigation and the preparation of a family report. She continued: "[the Legal Practitioner] has this organised that [Dr Bruce Walter] that would do the family report for us".

118. While that is not directly relevant, since the precise date upon which the solicitor/client relationship was established is not critical, the Legal Practitioner said the personal relationship was established by about late April, and Ms N said in about July. It is relevant, however, that the Legal Practitioner referred to telephone calls made between the two, suggesting that these were indicative of a personal relationship rather than a professional one. Only one call between the two, shown in the records provided to the ACAT, pre-dated 21 May 2007 and, in any event, that call was on 9 May 2007, when it is agreed that Ms N saw the Legal Practitioner on a professional basis; the rest of the records show that the calls between them were all made after 21 May 2007; the record of these calls, of course, is neutral as to whether they were personal or professional.

119. A letter of particulars from the Law Society's lawyers was also annexed. There is some relevance to the particulars in this appeal, so I set them out in full as follows:

1. By the Practitioner's letters to the Society dated 12 November 2007 and 12 December 2007, the Practitioner represented that he was involved in a personal relationship with the Client prior to the commencement of the solicitor/client relationship on 9 May 2007 when the Client attended the Practitioner's office to discuss her family law matter (your letter of 12 December 2007) and prior to the transfer of the legal aid grant on 21 May 2007 in circumstances were a personal relationship and more relevantly, a sexual relationship did not develop until early August 2007.
2. The intended effect of this representation by the Practitioner, namely, that the personal/sexual relationship pre-dated the solicitor/client relationship was to avoid an allegation of inappropriate conduct which may have been made if the reverse was the case.
3. In the result, the Practitioner failed to be open and frank in his dealings with the Law Society.

1. By his letter dated 12 December 2007, the Practitioner represented that he was under the impression that he was acting in a pro bono basis for the Client in circumstances where he was aware that the matter was legally aided by virtue of the transfer of the legal aid grant by letter from Legal Aid dated 21 May 2007 and by payment of his firm's account by the Office.
2. The Practitioner refunded the legal aid fees after the complaint to the Society by the Client.

120. The Legal Practitioner sought, by letterdated 1 December 2008, to controvert these allegations and, inter alia, sought agreement that he met Ms N outside the Magistrates Court in early April 2007. By letter dated 2 December 2008, the Law Society's lawyers stated that:

1.1 The Society's case is that you first met Ms [N] in the Canberra Magistrates Court when she accompanied her sister, Ms [L] who had matters before the Court. The meeting took place in April 2007 although the Society is not at this stage aware of the precise date.

1.2 The Society further contends that a solicitor/client relationship was established on 9 May 2007 when Ms [N] consulted you in your office.

1.3 At that point, although there may have been obvious prior personal contact between you and Ms [N], that conduct did not constitute the establishment of a personal relationship in the context in which the complaint was made to the Society i.e. it was not a personal/intimate/sexual relationship. It is a relationship of this nature which Ms [N] in her complaint to the Society alleges impacted upon your capacity to act as her solicitor.

121. There was further correspondence in which the Legal Practitioner continued to assert that the complaints lacked substance and were misconceived and factually incorrect. It is not necessary to refer to that correspondence further.

122. Three affidavits of Ms N were filed, made on 12 February 2009, 17 June 2009 and 22 September 2009.

123. In her first affidavit, Ms N set out her contact with the Legal Practitioner when she attended at the Magistrates Court to support her sister, Ms L, in her proceedings concerning the personal protection order. She deposed that she phoned him a few days later and made an appointment to see him. She said that she spoke to the Legal Practitioner on a number of occasions in the following weeks and that he made helpful comments about her family law proceedings. She said he agreed to take over the proceedings.

124. She deposed that she was told by an officer of Legal Aid that there had been discussions with the Legal Practitioner before the grant of aid was transferred to his firm.

125. She further deposed that towards the end of June 2007 the Legal Practitioner began to act for her sister in her legal proceedings also.

126. She described that her relationship with the Legal Practitioner developed and that he, her sister and she planned to celebrate the institution of her divorce proceedings in early July. Her sister could not come, but she and the Legal Practitioner went out for dinner and he told her he wanted a relationship and suggested that to her. That evening, she and the Legal Practitioner kissed and embraced. She further deposed that the relationship developed and became a sexual relationship two weeks later, when they had sex in his office.

127. She then deposed to the deterioration of the relationship and its termination, her complaint to the Law Society and some other matters not presently material.

128. In her first supplementary affidavit, Ms N deposed that she had identified her first meeting with the Legal Practitioner in her earlier affidavit as being in April because this was when she understood her sister had been in court and that she accompanied her. She now understood that this occasion was on 7 May 2007 and said that this was when she was in court; she was not in court on any other occasion for these purposes.

129. Her third affidavit responded to evidence in affidavits filed by the Legal Practitioner and I will deal with it in that context.

130. There were, however, two matters to which she deposed, which it is appropriate to note here. She deposed to having paid $90 to the Legal Practitioner, being the legal aid contribution. I note that, in the account sent by the Legal Practitioner to Legal Aid, this amount is shown as having been deducted from the amount sought from Legal Aid in the account. She also identified the date of the dinner with the Legal Practitioner by virtue of the application she had made for divorce, a copy of the application for which was annexed and showed it to have been lodged on 3 July 2007.

131. Ms L made three affidavits. Although they principally related to the second complaint, the first one did address one issue relevant to this complaint. In her first affidavit of 6 April 2009, Ms L deposed that she first met the Legal Practitioner on or about 7 May 2007, at the Magistrates Court.

132. The Council also tendered a large number of relevant documents in a Tender Bundle that was marked as an exhibit. I refer to the documents where relevant.

133. It was not clear from the Appeal Papers nor from the transcript of the proceedings, which affidavits were read by the Legal Practitioner. I have assumed that where an affidavit appears in the Appeal Papers, and the deponent was cross-examined, it was read. Certainly I can assume that where an affidavit was not reproduced in the Appeal Papers and the deponent was not cross-examined, it was not read, even if some reference was made to it, as there were, in argument at some points, references to affidavit material of the Legal Practitioner.

134. The Legal Practitioner read four affidavits, relating to this complaint. The first affidavit was filed by Mr J, also a legal practitioner, and had annexed a statement dated 6 March 2009. The statement was to the effect that he met the Legal Practitioner with Ms N as they were leaving work. His best recollection was that it was in early April 2007. The Legal Practitioner introduced Ms N to Mr J as they were going to the Uni Pub.

135. Ms N in her answering affidavit deposed that she did not meet Mr J in April 2007 but in mid to late July 2007. She deposed that it was at about 6:00 pm on the relevant day.

136. The next affidavit was made by Mr F, also a legal practitioner, to which was also annexed a statement dated 4 March 2009 and which he deposed was true. In the statement, Mr F said that he had asked the Legal Practitioner to act for one of his clients in February 2007; the client was Ms N's son. He said that, in early April 2007, the Legal Practitioner introduced him to Ms N as his "new girlfriend". He said the meeting took place before the Legal Practitioner went overseas for a holiday at the end of April 2007. He deposed that he saw Ms N with the Legal Practitioner on a number of subsequent occasions.

137. Ms N in her answering affidavit said that she had no recollection of being introduced to Mr F in early April 2007, and never by the Legal Practitioner as "his new girlfriend". She deposed that she was introduced to Mr F in a local cafe where the Legal Practitioner had taken her to lunch; Mr F was already there dining with two women.

138. The third affidavit was made by Mr R, also a legal practitioner, who also annexed a statement, dated 11 March 2009 to his affidavit. He deposed that the statement was true. In the statement, he said that the Legal Practitioner introduced Ms N to him in or about April 2007 "as his girlfriend". He said there was very little conversation, only simple pleasantries were exchanged. He saw Ms N with the Legal Practitioner on other occasions in or about April 2007 and on one occasion saw them holding hands.

139. In her answering affidavit, Ms N agreed that she had been introduced to Mr R as the Legal Practitioner's girlfriend, but in July 2007 and not April 2007.

140. Included in the Appeal Papers is an affidavit, relevant to both complaints, made by Mr A, the partner of Ms L, and who was the son of Ms A.

141. The status of this affidavit is entirely unclear as there was, so far as I could see, no reference to it in the transcript of the proceedings before the ACAT, especially not to it being read. The deponent was not cross-examined.

142. It seems highly unlikely that the evidence was admitted by the ACAT without cross-examination, given what the deponent said.

143. There was no reference to this evidence in the reasons of the ACAT, suggesting that the affidavit was not actually before the ACAT. Further confirmation is that, after the deponents to the affidavits, who were cross-examined, had concluded their evidence, the Legal Practitioner's counsel announced the closure of his case without reference to this affidavit. I will ignore the affidavit.

144. Each of the deponents to the various affidavits, apart from Mr Reis, was subject to cross-examination.

145. Ms N was cross-examined quite extensively, but it is not necessary to summarise all aspects of the cross-examination. Ms N was questioned, in detail, about the court proceedings on the day she attended at the Magistrates Court, but it was clear that she did not have a good understanding of the court processes in which her sister was involved and that she did not take much interest; she was there purely as a support for her sister.

146. She was aware, however, that her sister had no lawyer until the Supreme Court proceedings.

147. Ms N re-iterated that she first met the Legal Practitioner in the precincts of the Magistrates Court when she was supporting her sister, Ms L, who was there in connection with her sister's personal protection order proceedings. She was asked about her sister's children, and agreed that they had been involved in court proceedings relating to criminal offences but denied that she had ever been to court to support them or with her sister in that connection.

148. A letter from the Registrar of the Magistrates Court, included in the Council's Tender Bundle, showed that the proceedings in which Ms L sought a personal protection order against Ms A which Ms A sought to revoke were in court on the following dates: 26 February 2007, 14 March 2007, 26 April 2007 (for a return of subpoena) and 7 May 2007. It was noted that, on 14 March 2007, Ms A appeared but Ms L (who may have been in the precincts of the court) did not. There were no other proceedings in April 2007, and the Legal Practitioner did not suggest that the proceedings on 14 March 2007 were relevant.

149. Ms N denied that, after she had first met the Legal Practitioner at court, she went back to his office or met him later that day.

150. Ms N was asked about the discussions at court and said that she had explained to the Legal Practitioner in great detail the circumstances of her litigation and about her concerns about the case. She said that he told her, "There's numerous things you can do ... But I have to look at the file". She was then asked about her meeting with the Legal Practitioner at his office and agreed that he "was giving [her] advice as to what [her present lawyer] should be doing in [her] case". She agreed he was giving her "hints in relation to what [she] should be asking [her present lawyer] to do." She agreed that she spoke to her current lawyer as a result, telling him to do what the Legal Practitioner had suggested, but that he did not do those things and eventually she withdrew her instructions to him. She told her lawyer at this point in time that he was no longer retained some days before the file was formally transferred to the Legal Practitioner.

151. She said that, prior to that, the Legal Practitioner had already taken instructions from her as to what she wanted to do in the proceedings.

152. Ms N denied discussing the evidence she gave before the ACAT with her sister and denied seeing her sister's affidavits. She also denied having seen the phone records which were tendered in the proceedings.

153. Ms N was asked about some of the phones to which she had access. She denied using her husband's mobile phone. She agreed that she did call the Legal Practitioner from her work. It was a little unclear about whether that meant that she used work phones or used her own mobile phone, but while she was at work, though on all the evidence it would appear it meant on the work phone. She denied using her son's mobile phone. She also said that it was rare for her to text the Legal Practitioner or he to her. She did not know if he had a landline.

154. She denied having been in a relationship with the Legal Practitioner when he had gone overseas, which the evidence showed occurred between 25 April and 1 May 2007.

155. Ms N was asked about the evidence of the three lawyers who had said in their affidavits that they had met her and the Legal Practitioner when he introduced her as his girlfriend. She was able to describe each of the lawyers accurately. She maintained that she had not met them until July 2007.

156. In the case of Mr R, she was a little less certain but maintained that it was not in April 2007. The evidence was:

Do you remember Mr [R]? --- Yes.

You were introduced to him as [the Legal Practitioner's] girlfriend? --- M'mm.

But you say it was around July 2007? --- Yes.

And when you say around July, might it have been slightly before the start of the month of July? --- Might have been.

How much longer before July might it have been? --- I'm not sure.

Might it have been in June, the first week of June? --- Might have been.

Might it have been in late May? --- No.

Are you sure about that? --- Yes. I think it was July because it was after I filed my divorce, which is early in July. So it would have been probably the middle of July.

Are you now able to say the middle of July? --- I think so. It was about two weeks after my - I filed my divorce, so I'd say, yes, about the middle of July.

157. Ms N denied using medications that might have affected her memory after 1999. She also denied using any phones, other than her mobile phone, during 2007.

158. Ms N was not challenged about the fact that her first meeting with the Legal Practitioner had occurred when she was at the Magistrates Court supporting her sister, Ms L.

159. Ms L was cross-examined extensively. While some of it touched tangentially on the attendance at court on 7 May 2007, there was no challenge of any kind to her evidence about that. It was also accepted that Ms L did not appear in the Magistrates Court on 26 April 2007. In any event, the Legal Practitioner could not have been at the Magistrates Court on that day as he was then overseas as noted above (at [154]).

160. Mr F was cross-examined. He agreed that he was asked by the Legal Practitioner, who was a good friend, to prepare the statement attached to his affidavit but did not know at the time the purpose for which it was to be used. He denied that he had been asked to recall whether he met Ms N in April 2007. He agreed that the statement was requested in February 2009. He said that it was not possible that he was mistaken about his first meeting with Ms N being in April 2007, though he made no note of the meeting. He denied that the meeting was a "passing" occurrence; he said it was a lot more formal because it was connected with his client, Ms L's son. It was, he said, related to the handing over of that client to the Legal Practitioner, when the client had to face breach action in the Supreme Court.

161. Notwithstanding that, he said that he had dates from his file and his diary which were accurate, showing when he handed the client over to the Legal Practitioner and that this was the day he met Ms N. In the light of this, it was at least curious that, in his statement, he did not give the actual date, which he said he was able to pinpoint with accuracy, merely stating that it was "early April". It is also curious that, in his statement, he added that he was "sure it was prior to [the Legal Practitioner's] departure for an overseas holiday at the end of April 2007" when his diary would have given him the precise date. He did not produce the diary nor his file.

162. He confirmed again that the meeting occurred before the Legal Practitioner went overseas.

163. Mr R was also cross-examined. He agreed that, in the course of his practice in criminal law, he had become "friendly with" the Legal Practitioner. He agreed that he was asked by the Legal Practitioner to confirm the facts set out in his Statement and that he knew that the purpose was for some Tribunal proceedings taken by the Law Society relating to the Legal Practitioner's dealings with Ms N. He was asked to prepare the statement shortly before 11 March 2009.

164. He agreed that the first meeting he had with Ms N and the Legal Practitioner was, for the most part, entirely unremarkable. He said that his assertion that it was in April 2007 was a "considered" assertion; he had carefully chosen his words which stated "in or about April 2007". He said that he thought he was sure that the meeting was precisely in April, but for the sake of being cautious he said he had used the words he had. He agreed that he was fallible, and that he could not be certain about the precise date, but he could exclude the possibility that it occurred in July. He explained that he was selling a property in Brisbane and he received confirmation that the sale was to proceed on the day on which the meeting occurred. He had checked in his diary as to the date in which he received that confirmation. He kept a file note of the confirmation.

165. I pause to note that this seems an odd comment, for that would lead to him being able to give an exact date for the meeting, rather than his reference, in the statement to "in or about April 2007". He did not produce the file note or his diary. He did not give an exact date for the meeting. He did not explain either any particular connection between the two events which allowed him to date one by the date of the other.

166. He agreed, however, that he had not put that reason for identifying the date in his statement nor that he had consulted his diary. When asked why not, he simply said "I decided not to".

167. Mr J was also cross-examined. He agreed that he could not remember the exact date of his first meeting with Ms N and the Legal Practitioner, but said that it was before his birthday on 1 May. That birthday was "a significant event". He agreed that the meeting, however, was not significant, but he did remember it. He agreed that he could be wrong about the date.

168. Extensive telephone records were produced. They showed that between 1 March 2007 and 31 October 2007 the Legal Practitioner made the following calls on his mobile phone to Ms N on her mobile phone:

May 2007 The first call on 9 May 2007. There were five other calls after that.

October 2007 There were fourteen calls, the last being on 11 October 2007.

169. Between 7 April and 7 October 2007, Ms N made the following calls on her mobile phone to the Legal Practitioner on his mobile phone:

April 2007 There were no calls

May 2007 There were five calls, the first on 21 May 2007

June 2007 There were eight calls

July 2007 There were sixteen calls

August 2007 There were seventy-three calls

September 2007 There were fifty-eight calls

October 2007 There was one call.

170. The records showed that both used their mobile phones regularly during these periods.

171. In addition to the affidavits of Mr Reis, the Professional Standards Director of the Law Society, the Council filed and read affidavits of Ms N, of Mr C, and of Mr Michael Phelps, Solicitor for the Law Society.

172. Mr Reis made two affidavits dated 6 March 2009 and 24 April 2009. The first affidavit set out the professional status of the Legal Practitioner as noted above (at [111]), and annexed relevant correspondence between the Law Society and Ms L and the Legal Practitioner and the Law Society. The relevant content of the correspondence has been extracted above (at [81]-[87], [95]-[103]).

173. The second affidavit annexed the transcript of the proceedings in this Court on 14 September 2007 and further correspondence between the Legal Practitioner and the Law Society. The substance of the correspondence has been extracted elsewhere in these reasons (at [104]-[108]).

174. The transcript does not record, as asserted by the Legal Practitioner in correspondence, that the learned Chief Justice spoke to Ms L to explain what had happened. It does, however, record the Legal Practitioner expressly saying "we were going to consent to the [personal protection] order being set aside". It also records the following:

HIS HONOUR: All right. Well, what you're saying, correct me if I'm wrong, is that you're prepared to consent to the appeal being upheld, the order being set aside and the application for the order being remitted back to the Magistrates Court on the undertaking of the appellant to - what? Do you have a list of things that you want the appellant to undertake not to do.

[THE LEGAL PRACTITIONER]: Exactly what's contained in the original order, your Honour.

HIS HONOUR: All right. So to undertake not to behave in an offensive manner towards the applicant. Is that correct?

[THE LEGAL PRACTITIONER]: Yes, your Honour, correct.

HIS HONOUR: Or a harassing manner. Not to be on the premises at Calwell which are mentioned, not to be within 100 metres of the applicant for the order.

[THE LEGAL PRACTITIONER]: That's correct, your Honour.

HIS HONOUR: Not to contact except at court or except through a solicitor - well, what's there, basically, that's what you're asking me.

[THE LEGAL PRACTITIONER]: Exactly, your Honour. Just after exactly those conditions, your Honour.

HIS HONOUR: By way of an undertaking.

[THE LEGAL PRACTITIONER]: By way of an undertaking and then we'll just have to remit it back to the Magistrates Court.

HIS HONOUR: For a determination as to whether an order should be made afresh?

[THE LEGAL PRACTITIONER]: Exactly, your Honour, on the evidence ---

...

[THE LEGAL PRACTITIONER]: My instructions are, from my client, your Honour, that there's no need for mutuality in the orders because, again, this hasn't been raised until this point, your Honour. This is the first I've heard about any interaction between the clients, your Honour.

175. It is relevant to note that the Legal Practitioner's description of these proceedings to the Law Society, in his letter of 29 January 2008, was as follows:

I have fought a bitterly contested matter in the Supreme Court against two senior solicitors from Elrington Boardman Allport 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.

176. It was, as the ACAT noted, a complete misrepresentation of what in fact has occurred. I would go further and say that it was a barefaced lie. I also note that it can be discerned from the letterhead of Ms A's lawyers, that neither of the solicitors who acted for her were partners.

177. Ms L made three affidavits on 6 April 2007, 17 June 2009 and 22 September 2009 which were read.

178. In her first affidavit, Ms L gave a brief history of the proceedings in connection with the personal protection order under the Domestic Violence and Protection Orders Act for which she applied and which was issued. She referred to meeting the Legal Practitioner on or about 7 May 2007.

179. She deposed to being required to appear in this Court, apparently in response to the appeal commenced by Ms A. She had not been legally represented and deposed that Ms N spoke to the Legal Practitioner, who offered to assist. He appeared, she deposed, on approximately four occasions.

180. She deposed to a strange conversation she had with the Legal Practitioner as a result of which she decided not to attend in court when the matter was next before this Court on 14 September 2007. She deposed that she had a conversation with him on that day in which he said, "You do not have to be there". Telephone records annexed to her second affidavit showed a telephone call from her landline to the Legal Practitioner's mobile phone at 9:46 am on that day for eighteen seconds.

181. She deposed that she did not attend the Court, that she was at home minding her two young children.

182. She deposed that, after the hearing, she had contact with the Legal Practitioner, who told her

We won. The matter will go back to the Magistrates Court and I will let you know as the date gets closer.

The first sentence was also a lie on the part of the Legal Practitioner.

183. She deposed that she assumed that the protection orders remained in place and gave no further thought to the matter, nor had contact with the Legal Practitioner until 25 October 2007, when he contacted her and said

I can no longer represent you because of a conflict with your sister having lodged a complaint against me with the Society. However, I can mention the matter for you on 28 October 2007 until you engage another lawyer as the other side are simply requiring an adjournment.

184. She deposed that the Legal Practitioner did not advise her of the actual details of the proceedings on 14 September 2007. In particular, she deposed that she did not find out that the restraining order had been set aside until she was at a hearing in the Magistrates Court on 22 January 2008.

185. She deposed that she was not in court on 14 September 2007 and the Legal Practitioner did not seek her instructions to agree to the personal protection order being set aside and replaced by an undertaking. She further deposed that she had never met Mr C and did not sit in the front row of the court in any court proceedings.

186. In her second affidavit, she annexed the relevant telephone records which showed telephone calls to the Legal Practitioner on 14 September 2007 at 9.46 am (see above (at [186]) and at 1:35 pm, for eight minutes and four seconds.

187. She also deposed to a conversation with Ms N, who urged her to go to court.

188. Her third affidavit responded to the content of affidavits filed on behalf of the Legal Practitioner and will be referred to in that connection.

189. Mr C, the lawyer for Ms A, made three affidavits on 19 April 2009, 18 June 2009 and 23 September 2009. In the first affidavit, he set out the background to his practice, and the circumstances under which he came to appear in the Supreme Court on 14 September 2007.

190. He deposed that his client was not in court on that day and that the Legal Practitioner arrived late and unaccompanied. He deposed that there were only two people in court. Although he had not met Ms L, he deposed that "it appeared to me that [the Legal Practitioner] was not accompanied by his client". He added that there was not anyone sitting in the front row closest to the entrance where a client would normally sit. This was clearly in direct response to the assertion in an email from the Legal Practitioner to the Law Society in which he had stated:

The matter was heard in Courtroom 1 before Higgins CJ and [Ms L] sat in the front row on the first seat in that row closest to the entrance. She was unaccompanied and discussed the matter with me during the recess between 11.12am and 11.36am.

191. Mr C also deposed that he had no recollection of the Chief Justice addressing Ms L, nor that there was anyone standing next to the Legal Practitioner when, later, outside court during the adjournment, he had conversations with him, nor of her interrupting those conversations.

192. Mr C deposed that, during the adjournment, granted so he could obtain instructions from Ms A, he observed the Legal Practitioner walking up and down in the foyer area, unaccompanied, and at no time using his mobile phone.

193. His second affidavit annexed the file notes of a conversation to which I will refer below (at [195]) and an email to Mr Reis about that conversation.

194. The third affidavit deposed to the telephone conversation on 2 April 2009 between Mr C and the Legal Practitioner to which he referred in the second affidavit.

195. He deposed that the Legal Practitioner said in the communication:

... I have permission from the Law Society to speak to you. I hope you understand that I do not mean to be intimidating or coercing, but simply wanted you to be aware of your client [Ms A]'s complaint against you. It's that you appeared in Court without instructions. I have obtained a statement from your client [Ms A] in which she accuses you of appearing in court without instructions. Reading the transcript I've got, it's right. It will come out at the hearing; I thought I should let you know. I am considering lodging the statement with the Law Society. I thought I should let you know. This conversation is on the basis of respect for a fellow practitioner. It has nothing to do with the matter against me. But you may need to be aware of the complaint made by your client against you.

196. When asked to clarify what he was trying to say, the Legal Practitioner said

... I am not saying anything except to alert you to the fact that your client has given me a statement against you which will come out at the hearing. I of course can lodge the statement with the Law Society any time I like.

197. Mr C deposed that he stated to the Legal Practitioner that, if Ms A had a complaint, she should lodge it with the Law Society and asked why the Legal Practitioner was telling him about it. He deposed that the conversation continued:

Legal Practitioner: ... I simply wanted to pre-warn you as a fellow practitioner.

Mr C: ... In the context of me having received a letter from the Law Society's solicitor today, asking me to sign an Affidavit for this matter, I have to take this call as your attempt to silence or coerce me. I think this is very serious, [the Legal Practitioner]. I feel that I have to report this conversation to the Law Society.

Legal Practitioner: You can do what you want, but I made it clear to start with that I did not mean to coerce you and I have permission from the Law Society to speak with you.

Mr C: Yes, I have to take it as your attempt to tamper with a witness for an upcoming trial. I think it is a very serious matter ...

Legal Practitioner: You do whatever you think necessary. Ok, Bye.

198. Mr C deposed that he later telephoned the Legal Practitioner and expressed his concern that the telephone conversation had been a threat to him, which the Legal Practitioner denied. He said he would not report the conversation to the Law Society, "although [he] would very much like to do that ... simply because [he didn't] want to get [the Legal Practitioner] into more trouble".

199. Nevertheless, after consultation with a senior fellow practitioner, he did report the conversation to the Law Society.

200. Mr C also responded to a statement of Ms A to which I will refer in response to her evidence.

201. The affidavit of Mr Phelps, lawyer to the Law Society, related to the subpoenas to obtain relevant telephone records.

202. Included in the Council's Tender Bundle was a letter of 22 March 2009 from the Legal Practitioner to Mr Phelps, stating that he had found misfiled a copy of a letter to Ms L reporting on the proceedings in the Supreme Court on 14 September 2007 and attaching a copy.

203. Because of its significance, it is appropriate to reproduce relevant parts of the letter to Ms L in full:

I confirm your instructions given to me at court today to agree to [Ms A's] undertakings in lieu of the prior DVO.

As you are aware from the comments made by His Honour today the matter has been referred back to the Magistrate's court for a final decision. His Honour made orders that [Ms A] undertakes to comply with the terms of the previous orders.

I thank you for your attendance at court today and apologise for the length of the matter but as you are aware [Ms A's lawyer] was new to the matter and the requirement for him to have to ring his client delayed the matter further.

As explained to you today [Ms A] has agreed to an undertaking not to breach the terms and conditions of the previous DVO. The undertaking as previously explained to you is not the same as the DVO it is one step back from a DVO in that if she breaches the undertaking it gives us a firm platform to obtain a new DVO.

In closing I thank you for passing on the items from [Ms N] today at court and I will get back to you about the other matters we discussed today. I do not think at this stage that it is appropriate that my office handle these for [Ms N].

I await your advice.

204. There is no reference by the Legal Practitioner to this letter or its existence prior to 22 March 2009, even though the Legal Practitioner did refer to other correspondence by which he asserted Ms L knew of the proceedings and the result of them. Instead, he repeated, on a number of occasions, that she was aware of the orders made but said it was by virtue of correspondence from the firm of lawyers for Ms A. He also asserted, on 5 August 2008, that he had disclosed all material he had on the matter, without reference to this letter.

205. It was also never suggested to Ms L in cross-examination that she had ever received the letter.

206. The Legal Practitioner read an affidavit from Ms A made on 12 May 2009, to which was annexed a statement dated 21 March 2009, which she deposed was true, and an affidavit of Mr J made on 12 May 2009, to which was annexed a statement dated 23 March 2009, which he deposed as true.

207. In the statement, Ms A referred to the telephone call made by Mr C from the Supreme Court on 14 September 2007, during the adjournment he had sought to get instructions from her. The statement continued:

I was surprised by the call as he was not my usual solicitor.

He told me that [Ms L] was in court with her solicitor and that she wanted me to enter undertakings while the matter was sent back to the Magistrate's Court. I could clearly hear [Ms L's] voice which I clearly recognised in the background whilst I was having this conversation with him.

[Her lawyer] told me on at least 3 separate occasions whilst we were having this conversation that [Ms L] was at court at that time with her solicitor.

I instructed him not to consent to the undertakings unless they were mutual.

208. In his third affidavit, Mr C said that, in respect of Ms A's statement that she was surprised by his contact of her, he had actually spoken to her on the previous day, 13 September 2007, and he annexed a diary note of that call, showing that he told her that her usual solicitor was on leave and he was acting for her in that absence. He deposed that he had explained what the hearing was about and told her that he would probably call her on 14 September 2007.

209. As to the balance of the statement, he deposed that Ms L was not "in the background" while he was talking to Ms A; she was not in court at all, and he was never introduced to her. He denied telling Ms A that Ms L was there.

210. In her third affidavit, Ms L confirmed that she was not present in court on 14 September 2007 and, had not, to her knowledge, even met Mr C.

211. Mr J, in his statement annexed to his affidavit, stated that he was instructed by Ms L, for whom he acted in the proceedings in the Magistrates Court, after remission of the protection order proceedings there by the Supreme Court, to write to the Law Society. The letter, dated 26 March 2008, and included the Council's Tender Bundle, was relevantly in the following terms:

On 22 January 2008 Mr [J] from our office, appeared with our client [Ms L] in her Domestic Violence Application against [Ms A].

...

What came to light was that there were no current court orders, interim or otherwise, when it was appealed from the Supreme Court.

Our client reacted with surprise and informed Mr [J] that when [the Legal Practitioner] had carriage of the matter, and the appeal was heard before Chief Justice Higgins on 14 September 2007. He informed her that there was [sic] interim orders in place when the matter was adjourned back to the Magistrates Court. Ms [L] advised Mr [J] that she had been advised by [the Legal Practitioner] that there were interim orders in place and he never informed her that the orders were undertakings that were consented to by both parties. She further instructed Mr [J] that she gave no instructions to [the Legal Practitioner] to consent to the Supreme Court Order.

212. This is supported, to some extent, by the transcript of the proceedings in Court on 22 January 2008, also included in the Council's Tender Bundle, where Mr J, representing Ms L, asserts to the learned Magistrate that there are interim orders in place. When the learned Magistrate tells him that there are not, there are only undertakings, Mr J repeated

My instructions from my client are that the interim orders are in place.

213. The learned Magistrate then reads out the terms of the Order made by Higgins CJ and Mr J accepted that this showed the order had been set aside.

I am now aware that there is an issue with whether Ms [L] actually attended the Supreme Court on 14/09/07 or not.

Ms [L] told me on 22/01/08 that she was in the Supreme Court with [the Legal Practitioner] on 14/09/07 during the proceedings before Chief Justice Higgins.

215. Ms L denied, in her third affidavit, that she had ever told Mr J, on 22 January 2008, or at any other time, that she was in court on 14 September 2007 where, she repeated, she was not. Mr J was not cross-examined on this issue to suggest she was wrong.

216. Ms L, Mr C and Mr A gave oral evidence and were cross-examined.

217. Ms L gave some short additional oral evidence in chief. She identified a phone call on 14 September 2007 shown in the records of her home landline phone as having been made that day at 9.58am for a duration of thirty-four minutes and fourteen seconds. She said that it was made to a friend of hers whom she had known for seven and a half years.

218. Another call was made at 10:33am for forty-nine seconds. She thought that this was her sister's son's phone number. She identified a number of other calls in the afternoon.

219. Ms L was then cross-examined at great length. I have read the cross-examination carefully. It traversed widely over the proceedings in the Magistrates Court, including what then occurred after remission by this Court. It did not seem to me that much of it was relevant to the issues that the ACAT had to decide.

220. She said she did not, as at 14 September 2007, have a mobile phone connected.

221. She was asked about the circumstances under which she had been granted a final personal protection order against Ms A. She agreed that she knew that, when the final order was made in the Magistrates Court, Ms A did not appear because she was appearing in the Family Court. She said she did not tell the court that, as she did not consider it was her responsibility to do so, particularly as Ms A was legally represented, though her lawyer was not in court.

222. She was questioned, in detail, about her dealings with Legal Aid, but that did not seem to feature in the complaints or in the submissions by either party.

223. She was also questioned about her knowledge of the risk to her of a costs order in the Supreme Court appeal proceedings and whether she had had any reasonable prospects of success in the appeal, but she seemed reasonably unaware of these issues.

224. She stated that the Legal Practitioner had told her, after the Supreme Court proceedings, that her "order's in place" when she spoke to him on 14 September 2007. She said that he told her, boastfully "We won, we won". This is, of course, consistent with the language used by the Legal Practitioner in his correspondence with the Law Society referred to above (at [96]), even if an entirely inaccurate account of what happened.

225. She said that the Legal Practitioner had earlier advised her to have the protection order set aside, and then allow herself to be attacked by Ms A, which would allow criminal proceedings to be initiated. She agreed that the Legal Practitioner warned her about the amount the proceedings would cost her, suggesting up to $20,000. She agreed that he had discussed with her remitting the proceedings back to the Magistrates Court. She was adamant that she had wanted the protection order to remain in effect. She said she was never told that she would lose the appeal.

226. Ms L also said that the Legal Practitioner had told her, when she asked him, that she did not have to go to court on 14 September 2007.

227. She said that she was not consulted by Ms N about Ms N's complaint to the Law Society, but thought she had seen it. She, however, had made her own complaint. She also said that she showed Ms N her second affidavit. She said that, so far as the protection order proceedings in the Magistrates Court were concerned, Ms N only accompanied her on one occasion, namely 7 May 2007.

228. She said that she was aware of discussions between the Legal Practitioner and Ms A's lawyers, including him asking them to produce an explanation as to why Ms A did not attend the hearing when the interim protection order was made final. She was clear, however, that she would never agree to "dropping" the protection order.

229. She was shown a letter from the Legal Practitioner to Ms A's lawyers, Mr C's firm, in which he wrote

I confirm our understanding that if the transcript confirms your client's assertion that [Ms A's lawyer] demanded that the appellant be available all day in the Family court for further cross-examination (even though her evidence had been completed), such that the appellant could not leave the precincts of the Family court on 26 February 2007' and that there is some evidence as to why as she was represented that her lawyer could not attend the Magistrates Court on 26 February 2007 that we will consent to your client's application. We also confirm that if the transcript does not disclose this and there was no reason for her lawyer was not present at the court on 26 February 2007 that your client will discontinue their appeal.

230. She said that she did not agree to the Legal Practitioner sending the letter. She said

... after receiving those letters did you have further conversations with [the Legal Practitioner] about pursuing the agreement that is acknowledged in those letters? --- Yes, I didn't agree with him sending that. He'd already sent it to them and then sent - told me what he had sent to them and I disagreed with it.

All right? --- Because I thought she had two weeks in advance to go and have legal representation and make application to the Magistrates Court to delay the - the hearing or - with the orders and he just went ahead and did what he wanted and then told me this is what he's put out. What choice do I have then once he's done that?

Now, you were saying therefore ---? --- I didn't agree with ---.

Have you finished? --- I'll leave it.

Okay. You agreed just a moment ago that you received copies of those two letters? --- Yes, I did. Yes.

Didn't they make clear that if evidence was produced then you were going to have to consider your position? --- I did see those letters but I didn't agree to it, and I didn't consent to [the Legal Practitioner] to send that to them.

Well, in relation to these two letters you received them? --- Yes, after the fact.

Did you say to [the Legal Practitioner] at any time 'I do not want you to pursue the agreement that you have referred to in that letter'? --- No, I did not because I didn't realise I had a choice or to turn that back after he'd sent that to the opposition. I don't feel - I didn't feel I was in a losing position that I'd have to have a statement like that put down. That was all his choice.

231. She agreed that, after receiving a copy of this letter, she had conversations with the Legal Practitioner, but she said that she did not appreciate that she may be liable for Ms A's costs. She repeated

He wanted me to drop the case and let her hit me, then charge - then charge her. That's why he said those things to me ... he also said on a phone conversation he wouldn't do it unless he was going out with my sister, otherwise he wouldn't be bothered.

232. She also said that the Legal Practitioner made sexual overtures to her and when she indicated that she was not interested, he indicated he would not be bothering with Ms L's matter if it were not for the fact that he was "going out" with her sister.

233. In relation to costs, Ms L said she did not notice in Ms A's Notice of Appeal that costs would be sought.

234. As to the appearance on 14 September 2007, Ms L agreed that the Legal Practitioner had discussed it with her. She denied that he said it was in her interests to have the proceedings returned to the Magistrates Court, but she said he had told her that "by law it had to go back to the Magistrates Court". She said she wanted "to finish it there at Supreme Court".

235. As to the proceedings in the Magistrates Court, after remission by this Court, Ms L said she told her lawyer, who was then Mr J, that she did not discuss the giving of any undertaking but that she told him that under no circumstances was he to agree to the vacation of the order. She also denied the suggestion that she said to Mr J, on 22 January 2008, about the proceedings in this Court, "I was there and I know what happened and ... the magistrate, has just got it wrong". There was no evidence from Mr J that she said those words.

236. It was put directly to Ms L that she was at the Supreme Court on 14 September 2007. She denied it. She pointed out that the phone records showed she was at home talking to her friends.

237. Mr C was then cross-examined. He said he had met the Legal Practitioner at a legal practice management course organised by the Law Society, where they had some social interaction, but was unsure as to whether this was the first time he had met the Legal Practitioner.

238. He explained that Ms A's matter was the responsibility of one of his fellow senior associates, who was on leave at the time, so he had been required to act. Mr C explained that he telephoned Ms A on 13 September 2007 to explain the situation to her.

239. The proceedings on 14 September 2007 were originally to obtain documents from the Department of Family Services over which privilege had been claimed. He had explained to Ms A that the judge may decide to resolve the whole appeal. There had been communication between the solicitors for the parties, with an offer to resolve the proceedings by consent.

240. He explained that he went to court and sat in court until the matter was called. The Legal Practitioner was not present until later. When the matter was called, it had to be stood down to await the arrival of the Legal Practitioner. He recalled that there were some people sitting in the back of the court. There were no women present in court at the time the appeal was heard.

241. Mr C said that, when the matter was stood down, he went out of the court into the foyer. He said that he then saw the Legal Practitioner walk into court and he briefly spoke to him. They both sat at the bar table and there was some banter.

242. When the proceedings were adjourned so that Mr C could get instructions, he described the Legal Practitioner as walking about the court precincts while he telephoned Ms A to get instructions. The Legal Practitioner was just pacing up and down. He was in the line of sight of Mr C, but not for the whole time. The Legal Practitioner, he said, was not close by. At the end of his telephone conversation with Ms A he told the Legal Practitioner that she wanted mutual undertakings to be given by both Ms A and Ms L. They then both returned to court. He denied that there was further discussion.

243. Mr C said that after the end of the proceedings he just went back to the office; he had no further proceedings in Court that day.

244. He was asked some questions about when he was first asked to remember these proceedings and stated that it was shortly before making his statement, which was on 16 December 2008.

245. Mr C was also asked a large number of questions about the instructions Ms A gave him which was that she wanted mutual undertakings to be given, but this does not seem directly relevant to these proceedings, and I will not summarise this evidence.

246. He was also asked about the circumstances under which he was contacted by the Law Society in connection with the complaint against the Legal Practitioner. Again, the detail is not relevant, and the evidence does not need to be summarised.

247. Mr C was also asked about the contact he had with the Legal Practitioner after the appearance in this Court on 14 September 2007. He said that some time before he spoke to Mr Reis from the Law Society, he had had a brief conversation with the Legal Practitioner. He was vague about the content of the conversation - "I think he was chasing up an order or something about an appearance of that particular appearance [sic] and the actual order that was taken out" - and could not recall whether he was asked to remember whether there was anyone with the Legal Practitioner when they appeared in this Court. He said he was asked questions about what happened on the day but he could not recall the details.

248. He later described "the chat" he had with the Legal Practitioner about what happened, and said

It was about - when I remembered - I appeared in court before Chief Justice on that day and I said, 'Yes, of course I did remember that because we were late' and asked me did you remember - 'recall whether I had my client with me?' and I said, 'I don't know but I didn't see you coming in with anybody at all'. Yes along those lines.

249. He said that there were no more than three people in the public gallery at the time. He recalled a particular lawyer and "two or three" other people there. He did not recall any female in the court; that was his clear recollection.

250. Mr C was challenged because he failed to mention, in either the statement that he gave to the Law Society or in his affidavit, that a junior from the firm was with him at the time.

251. He categorically denied that Ms L was with the Legal Practitioner when they returned to court.

252. He was also asked questions about the telephone conversation he had with the Legal Practitioner on 2 April 2009. He was clearly puzzled as to why the Legal Practitioner had spoken to him. He denied taking offence at the call, but he confirmed that he regarded the Legal Practitioner as being threatening, especially his tone of voice. What was threatening, he said, was the Legal Practitioner in effect saying that he had a statement he "could lodge with the Law Society at any time".

253. He acknowledged that there was, he said, nothing threatening about the second conversation when he called the Legal Practitioner back.

254. It was not suggested to Mr C that the conversation had not occurred. There were some oblique references to its terms, but they were, as stated by him, basically not challenged.

255. Ms A gave some short evidence in chief that she knew Ms L because Ms L and her son had been in a relationship since about Christmas 2001. It was, she said, "a fairly chequered sort of relationship", from which there were two children. She said that they had an "on and off relationship" that apparently continued at the time she gave her evidence.

256. She was cross-examined. She gave some confusing evidence. She first said that she had been referred to Mr C's firm by Legal Aid, but then said Mr C was not her "usual" lawyer. She agreed that his call was not "out of the blue", for he had called her the day before or a couple of days before to say that he was representing her. She said, however, that she did not take that into account when making her written statement, because she had forgotten it.

257. It became clear that Ms A was not surprised when Mr C rang her from court, at least not on the grounds that he was not her usual lawyer; she conceded that he had told her a day or so beforehand that he would be appearing, a fact that she had forgotten at the time of making her statement. While she acknowledged that the statement was wrong, she refused to acknowledge that this meant she had given false evidence.

258. She was also asked about Mr C telling her that Ms L was present at court. In her evidence she said he did so on one occasion, but in her statement she said he had told her that on three occasions. She, then gave quite different evidence suggesting, contrary to her statement, that he had told her in three different telephone calls. She agreed that her evidence had been wrong.

259. She said that the Legal Practitioner had drafted the statement she had signed, though she said "he put it down as it was". She said that he had called in at her home to do so.

260. Ms A denied that the Legal Practitioner had told her, or that she otherwise knew, that the substance of the complaint for which the statement was required was that Ms L had stated that she was not in court when the proceedings were heard in the Supreme Court.

261. She agreed that she had a lot of animosity towards Ms L. She also agreed that she had made the statement to help the Legal Practitioner; when he had called her, she told him that if she could "assist in any way [she] would help".

262. The Legal Practitioner did not give evidence and no affidavits made by him were read.

263. Written submissions were made by both parties and counsel addressed the ACAT. It reserved its decision.

264. In Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2009] ACAT 2, the ACAT found that the complaints were made out and that the Legal Practitioner had, in respect of the first complaint, been guilty of unsatisfactory professional conduct and, in respect of the second complaint, been guilty of professional misconduct.

265. The ACAT, in its reasons, set out the complaints (at [2]-[4], [5A]-[7] in its reasons) and the relevant provisions of the Solicitors Rules (at [8], with a brief discussion of them (at [9]-[10]).

266. The ACAT accepted that the standard of proof in such proceedings was the civil standard, that the matter must be determined on the balance of probabilities, though with the approach set out by the High Court in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 350, 368, namely that the evidence must be weighed, according to the gravity of the facts to be proved, to the extent that the Tribunal has to have a "comfortable satisfaction" that the finding is just and correct. It also noted that the jurisdiction of the ACAT in respect of discipline of legal practitioners is protective and not punitive. These are correct findings.

267. As the Legal Practitioner had not given evidence, with no explanation being given as to why that happened, the ACAT considered the impact on it of the principles established by the High Court in Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298.

268. In its decision, the ACAT set out (at [16]-[34]) the competing submissions but accepted those of Mr N Beaumont, counsel for the Council.

269. Thus, the ACAT set out the convenient summary of the principles from the judgment of Menzies J (at 312) as follows

In my opinion a proper direction in the circumstances should have made three things clear:

(i) that the absence of the defendant Hegedus as a witness cannot be used to make up any deficiency of evidence;

(ii) that evidence which might have been contradicted by the defendant can be accepted the more readily if the defendant fails to give evidence;

(iii) that where an inference is open from facts proved by direct evidence and the question is whether it should be drawn, the circumstance that the defendant disputing it might have proved the contrary had he chosen to give evidence is properly to be taken into account as a circumstance in favour of drawing the inference.

1. the evidence in relation to each complaint was so strong that the ACAT did not need to rely on the Jones v Dunkel inference;

2. nevertheless, that inference may arise from the failure of a party to call a witness whose evidence would be relevant to an issue requiring a response where the witness is "in the camp" of that party;

3. the inference becomes stronger the closer the witness is to the party and is at its strongest where the witness is the party;

4. the inference was particularly relevant in legal profession disciplinary proceedings where a lawyer has an obligation of frankness, candour and assistance to the ACAT;

5. the failure of the Legal Practitioner was both irregular and invited inferences that

(a) his evidence would not have assisted his case, so that evidence he may have contradicted may the more readily be accepted; and

(b) where an inference is open on the facts from direct evidence, it may more readily be drawn.

6. these inferences may be drawn even in civil penalty proceedings.

271. Reliance was placed on a number of decisions of the New South Wales courts for these submissions by which the ACAT considered it was bound.

272. The ACAT then addressed the complaints. In relation to the first ground of the first complaint, namely that the Legal Practitioner had wrongly represented to the Law Society about when the personal relationship with Ms N started, the ACAT set out the substance of the complaint and the response by the Legal Practitioner.

273. It referred to the objection taken by the Legal Practitioner's counsel that the complaint could not be made out, since the Legal Practitioner had not asserted that he was in a sexual relationship with Ms N prior to the start of the professional relationship as, he submitted, had been particularised by the Council. The ACAT considered that the objection had about it an "air of complete unreality", that the Legal Practitioner must have understood the terms of the complaint to have meant "an intimate personal (sexual) relationship" at the very least sufficient to have prepared the evidence on his behalf as he had done.

274. The ACAT then set out a summary of the evidence of Ms N and Ms L, largely as set out earlier in these reasons. It found Ms N's evidence, subject to comprehensive cross-examination, to be "consistent and credible and ... not seriously challenged". It was corroborated by the phone records, not produced until well into the hearing, thus meaning that Ms N did not have them to assist her in the preparation of her evidence.

275. The ACAT was satisfied that the date of Ms N's first meeting with the Legal Practitioner was 7 May 2007, evidence that was found by the ACAT to be unchallenged. The assertion of the Legal Practitioner that it occurred "approximately one month before he took over her family law matter" was inconsistent with the other evidence. It was also corroborated by other evidence not challenged.

... after the dinner on the evening of on or about 3 July 2007 where the [Legal] Practitioner proposed a relationship and which ended in them kissing and embracing, [Ms] N assumed that they were now in a 'relationship' and that the [Legal] Practitioner was her 'boyfriend' and that is why some two weeks later following another dinner she went back to his office and engaged in sex with him. Upon a careful analysis of her evidence, [Ms] N was not at all unclear about when the relationship between them had developed into the boyfriend/girlfriend relationship. It started at the celebratory dinner when the [Legal] Practitioner declared his desire to have a relationship with her and she responded to his declaration by engaging in kissing and embracing. (footnotes omitted)

277. The ACAT rejected challenges to the evidentiary value of the phone records, the challenges having been based on the failure to produce the records of the Legal Practitioner's landline and Ms N's work phone. Reliance was also placed, by the Legal Practitioner's counsel, on the absence of records from Ms N's home landline and numbers associated with her son's telephone services. He also referred to the absence of text message records.

278. The ACAT noted that Ms N's evidence was that text messaging was rare and brief. It noted that the Legal Practitioner did not use his landline. Ms N denied, in cross-examination, that she used her son's telephone. There was no contradicting evidence for these matters. Having regard to Ms N's employment as a personal carer in an aged care facility, it was doubtful that records of her employer's phone would reveal much.

279. Perhaps of some significance, it noted that the Legal Practitioner could have sought the relevant records if he considered they would contradict the other evidence and, in any event, the patterns of the telephone contact made it unlikely that Ms N and the Legal Practitioner would, on 9 May 2007, for no apparent reason, alter their mode of communication from landline to landline on the one hand to mobile to mobile on the other.

280. The ACAT was satisfied that the evidence of the three practitioners should be treated with caution (in two cases) or was of little or no weight (in the third case) and that there were weaknesses in their evidence. It is not necessary here to summarise further the detailed analysis of the evidence of each of them.

281. In summary, the ACAT acknowledged the seriousness of the complaint and the need to evaluate the evidence very carefully. It preferred the evidence of Ms N and Ms L to that of Mr F, Mr R or Mr J. It also accepted that the evidence of Ms N and Ms L did not disclose deficiencies.

282. It further found the failure of the Legal Practitioner to read his own affidavits or those of some other witnesses, and not subject himself to cross-examination, worthy of criticism and inviting the drawing of a negative inference. It referred to the following comment by Meagher JA in Coe v NSW Bar Association [2000] NSWCA 13 at [21]

In the circumstances where a prima facie [case] against a legal practitioner has been presented and where the practitioner wishes the Tribunal to accept an explanation as to how the conduct came about it is inappropriate and irregular for the legal practitioner to attempt to do so through submission from the bar table. If he wishes the Tribunal to accept some explanation as to how the conduct came to take place then in our view he has an obligation to meet the situation by explanation on oath.

283. The failure of the Legal Practitioner to give evidence enabled the ACAT, it held, more readily to draw the inference that the evidence he could give would not have assisted his case.

284. As a result, the ACAT concluded that the first ground of the first complaint was upheld.

285. In relation to the second ground of the first complaint, namely that the Legal Practitioner represented that he was acting pro bono for Ms N when the legal services he was providing were legally aided, the ACAT set out the substance of the complaint.

286. It noted that the Legal Practitioner conceded that the representation had been made and was false, but that he had made it because he felt embarrassed by his having a sexual relationship with Ms N and that the representation was not designed to mislead, but to make him feel better. The ACAT did not accept that explanation.

287. The ACAT found that Ms N had paid the $90 legal aid contribution in cash and that the Legal Practitioner, at all times, well knew that the provision of his services would be reimbursed by Legal Aid.

288. The ACAT noted the contact between Legal Aid and the Legal Practitioner over the matter, and concluded that it was not reasonable to find that the Legal Practitioner had forgotten that the matter was legally aided when he represented to the Law Society that he was acting pro bono.

289. The ACAT found the second ground of the first complaint proven.

290. The ACAT then considered the character of the conduct of the first complaint. The Council submitted that it constituted professional misconduct. The ACAT declined so to find.

291. It considered that it was necessary to focus first on the conduct that the misrepresentations sought to minimise. The first was an affair with Ms N, but it held that Ms N had not suffered any detriment as a result of the affair nor that the conduct of her case had thereby suffered in any way.

292. It compared this underlying behaviour with other cases, as follows:

Examples of underlying behaviour, which in combination with the breach of the obligation to be open and frank in dealings with the professional associations, have been found to amount to professional misconduct include sending threatening and abusive letters to clients, filing defamatory pleadings, appropriating trust moneys, gross overcharging, criminal offences, and perjury or attempting to pervert the course of justice. However dishonest the [Legal] Practitioner may have been in lying about the nature of his relationship with [Ms] N such conduct ought not to be equated with the serious transgressions referred to in the general law and would not justify a finding that the practitioner is not a fit and proper person to engage in legal practice pursuant to s 387 of the Legal Profession Act 2006 (ACT). (footnotes omitted)

293. The ACAT then considered that the conduct could amount to unsatisfactory professional conduct and, in the light of a concession to that effect by the Legal Practitioner's counsel, so found.

294. The ACAT then considered the second complaint concerning his appearance in this Court for Ms L. There were three grounds, the first two of which could be and were considered together. These were that he had acted against Ms L's instructions in the Supreme Court appearance, and that he had wrongly represented to the Law Society that Ms L was in court on that day.

295. The nature of these grounds of complaint and the evidence, as summarised above, was set out in detail by the ACAT. I do not need to repeat any of it.

296. It was noted by the ACAT that the Legal Practitioner did not lead any evidence and did not contradict Ms L's evidence. It further noted that Ms L was not shaken in cross-examination. It relied on the telephone calls she had made, evidence of which was before it, as well as the call from the Legal Practitioner to Ms L's landline minutes after the conclusion of the appearance, to show she could not have been in the court on the day the matter was heard in the Supreme Court.

297. The ACAT rejected the submission that Ms L could not be accepted as a witness of truth and that her evidence should not be accepted without corroboration. The ACAT found that her evidence was corroborated by the telephone records.

298. On the other hand, the ACAT held that the evidence of Ms A could not be accepted and that it was of no weight at all.

299. As to Mr C, the ACAT found him to be an impressive and reliable witness of truth.

300. The ACAT also referred to the letter purportedly sent to Ms L on 14 September 2007 referred to above (at [202]). It held that it was "obviously a concoction" and showed a consciousness of guilt. It appears so from its terms, but the circumstances of its production to the Law Society confirmed that.

301. While accepting that these two grounds of the second complaint involved very serious allegations, the ACAT nevertheless found them proved.

302. As to the character of the matters, the ACAT applied the test of whether the actions would be reasonably regarded by solicitors of good repute and competency as disgraceful or dishonourable (the test set out in Re Veron; Ex parte The Law Society of New South Wales at 516) and found that the answer must inevitably be yes, characterising the conduct as professional misconduct.

303. As to the third ground of the second complaint, namely that the Legal Practitioner had improperly attempted to interfere with a potential witness, being Mr C, the ACAT set out the substance of the allegation and the evidence.

304. The ACAT accepted the evidence of Mr C without qualification and that the evidence overwhelmingly established thesecond complaint.

305. The ACAT characterised the conduct as professional misconduct.

306. Another matter was also dealt with by the ACAT. Mr Phelps had deposed that he was served with an affidavit on 7 September 2009 in which the Legal Practitioner deposed that he had had a telephone conversation with Mr Phelps about whether or not it was proper for the Legal Practitioner to speak to Mr C. The affidavit also stated that the Legal Practitioner had instructed his lawyers to require Mr Phelps to be available for cross-examination.

307. Mr Phelps denied that any such conversation had taken place and that there was no corroboration of it in the phone records of the Legal Practitioner, though there was a record of the call to Mr C.

308. The Legal Practitioner offered no explanation for having sworn in an affidavit something that was manifestly false for the obvious purpose of trying to have Mr Phelps removed from the proceedings shortly before they were to be heard. The ACAT was persuaded that this conduct demonstrated a consciousness of guilt and a proclivity to disrupt the proper course of justice by improper means.

309. Accordingly, the proceedings were listed for consideration of sanction. The date of 27 May 2010 was set for that purpose.

310. On 19 May 2010, the ACAT was advised that the Legal Practitioner proposed to apply for the proceedings to be re-opened. The matter was listed for oral argument on 27 May 2010.

311. Written submissions were filed by the Legal Practitioner and the Council and oral submissions made by counsel for each party.

312. There was no formal application document; I do not say that there should have been, though it is always helpful if a document is prepared which sets out with particularity the terms of the order or direction that is to be sought. The Legal Practitioner's counsel stated that the application was

simply an application to lead one piece of evidence in the form of an affidavit which [had] been filed with the Tribunal, of which the Society has clear knowledge and copy [sic].

313. An affidavit, filed for the application, dealt, it was said, with one discrete aspect of the evidence, namely when the relationship between Ms N and the Legal Practitioner started, though its contents actually ranged far more widely than just that issue.

314. The Legal Practitioner accepted and conceded that he had made a deliberate decision not to read any affidavit made by him or give oral evidence at the original hearing. It was asserted that this was not to be characterised as "a conscious decision because of an error of law or of a tactical decision". His counsel later conceded that the decision appeared to be "probably tactical".

315. The affidavit in question was read in the application but limited to setting out the evidence that would be led if the application to re-open were allowed. It did canvass other issues; indeed, it was described as dealing with issues "which had been the subject of extensive evidence before the Tribunal": Council of the Law Society of the Australian Capital Territory v The Legal Practitioner [2010] ACAT 45 at [7]. The ACAT said that "[f]or the most part they consisted of mere assertions or denials of the findings of fact made by this Tribunal". The ACAT also described the evidence as "unhelpful". Indeed, at one point, the evidence "appeared to cavil with a concession made by the [Legal] Practitioner at the hearing".

316. The application was said to be grounded in fairness and justice, both a common law and in statute, including the Human Rights Act 2004 (ACT), though the application of the latter Act was not developed in the submissions by counsel for the Legal Practitioner. It was conceded that none of the evidence sought to be adduced was fresh in the sense of having been discovered after the hearing had concluded.

317. The Council put a number of submissions which may be briefly summarised as follows:

1. The delay in making the application was considerable, unexplained and likely to disrupt the hearing on penalty. The ACAT expressly accepted this submission.

2. The evidence did not go to penalty but amounted to a complete re-opening of the case for the Legal Practitioner on liability.

3. The decision of the Legal Practitioner not to give evidence at the hearing was a deliberate one which the High Court had made clear will ordinarily be decisively against the grant of leave. The ACAT held that there was no "hard and fast rule" to that effect; in this case that fact should tell decisively against the application.

4. It was not demonstrated that the application was brought in good faith. See Aon Risk Services Australia Pty Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 at 215; [103]. The ACAT accepted the "compelling inference" that "this unexplained application" was brought "to stave off the penalty hearing for as long as possible".

5. The proposed additional evidence had no probative value; it was no more than a bald assertion and was not fresh. The ACAT accepted that characterisation of the evidence.

6. There was prejudice to the Council, in particular as it had "telegraphed in detail in closing address all of the detailed points which a cross-examiner would not want to telegraph". There was also prejudice to the public interest for the finding that the Legal Practitioner had been guilty of professional misconduct should not remain without penalty. Finally, there was prejudice to the business of the ACAT and other litigants by the disruption of the ordinary business of the ACAT.

7. The ACAT should not be unmindful of the precedent that a grant of leave to re-open would set.

318. There was no evidence to explain the delay in making the application or the basis for any change of mind about the deliberate forensic decision of the Legal Practitioner not to give evidence at the hearing. It was submitted for the Legal Practitioner that he did not have to explain the delay, but only that he had to show that the evidence materially affected, or could indirectly affect, the decision of the ACAT or whether it was in the interests of justice that it be received. The ACAT rejected that submission. It relied on the articulation of the relevant principle by Clarke JA, with whom Mahoney and Meagher JJA agreed, in Urban Transport Authority of NSW v Nweiser (1992) 28 NSWLR 471 at 478:

The principle which should guide the court in determining whether to grant an application for leave to re-open is whether the interests of justice are better served by allowing or rejecting the application as the case may be.

319. The ACAT also noted that the High Court had held in Smith v New South Wales Bar Association [1992] HCA 36; (1992) 176 CLR 256 at 266 that, on such an application, where the basis is new or additional evidence, it is relevant to inquire why the evidence was not called at the hearing and that a deliberate decision not to call that evidence "ordinarily ... will tell decisively against the application".

320. The ACAT rejected the submission that refusal of the application would deny the Legal Practitioner the opportunity (confusingly called a "right") to present evidence, for, as it noted, the Legal Practitioner had that opportunity to give evidence and deliberately chose not to take it up. It also rejected the contention that the Legal Practitioner had a right to have leave to re-open granted, relying on Aon Risk Services (Australia) Pty Ltd v Australian National University at 212-3; [96].

321. The ACAT further rejected the materiality of the evidence, finding that "as a matter of fact, that evidence could not have materially affected the Tribunal's decision".

322. The Council also submitted that the only power to grant leave to re-open was in s 56 of the ACAT Act and this required the ACAT to find "extraordinary circumstances" before granting the application.

The Tribunal finds, after having considered all of the factors set out in Smith's case and the authorities cited therein relating to the exercise of its discretion to permit the Legal Practitioner to re-open his case, that his application must fail. It should be emphasized that the particular circumstances of this case are so clear that the Tribunal does not find it necessary to deal with the subsidiary argument put by Mr Beaumont relating to section 56 of the ACAT Act.

324. The ACAT then proceeded to deal with the question of the penalty to be imposed consequent upon its finding as to liability.

325. No evidence was called by the Council, though "comprehensive" submissions were said to have been made by both parties, by written and oral submissions. To describe the written submissions made by the Legal Practitioner as included in the Appeal Papers as "comprehensive" is generous in the extreme. It did appear, however, that further written submissions on penalty were provided by counsel for the Legal Practitioner but, despite the signed certificate as to the correctness of the Appeal Papers, no such submissions were included in them.

326. Certain paragraphs of the affidavit of the Legal Practitioner, the subject of the application for leave to re-open, were read. It was also admitted that the Legal Practitioner did not accept the findings of the ACAT on the question of whether he had been guilty of unprofessional conduct and professional misconduct.

327. The admitted evidence showed that the Legal Practitioner was 57 years old in 2010. He had six children, three of whom were under the age of ten and were financially dependent upon him. He married in 1972 and separated from, or divorced, his first wife in 1998. The family moved from Sydney to a rural property near Goulburn in 1980 where he now lives with his current partner.

328. He deposed, rather inconsistently, that four children then lived with him and his partner and that those children were dependent upon him. He met his current partner in 2002. They separated in 2007 but apparently resumed their relationship by the date of the affidavit.

329. The Legal Practitioner deposed that he received the degree of Bachelor of Economics from the Australian National University in 1997.

330. He deposed that "2001 till 2006 were spent as a self-represented litigant in the Family Law Court seeking access to my son who was born in 1999".

331. He further deposed that he received the degree of Bachelor of Laws in 2005 from the Australian National University and then attended the Legal Workshop at that University. He received that University's degree of Master of Laws (Legal Practice) with merit in 2005.

332. On 10 November 2006, his name was entered on the Roll of Practitioners (s 27 of the Legal Profession Act) (the Roll) for the Australian Capital Territory and he received a restricted practising certificate from the Law Society which he held at the date of his affidavit.

333. The Legal Practitioner deposed that he then commenced working with a local sole practitioner, though space restrictions meant he could not be co-located with his employer. The firm moved, in 2007, to new rooms; it was implied that he "then" co-located with his employer. He deposed that he then commenced "legal and especially court work ... predominantly Criminal Law".

334. The Legal Practitioner further deposed that he wanted to practice criminal law and follow proper professional standards in future. He also deposed that his personal life in 2007 was "in disarray" but that he had taken "a number of steps" to avoid repetition of what then occurred.

335. He wanted to continue to practice and deposed that he would accept any punishment save for having his name struck off the Roll. He offered to practice criminal law, "the job that I love", under supervision for five years.

336. He deposed that he understood that his behaviour was "unacceptable" but that his personal and professional circumstances had changed.

337. He was cross-examined. In that cross-examination, he maintained that he did not accept the findings that had been made by the ACAT and he did not, therefore, apologise for inappropriate behaviour in which he did not accept that he had engaged.

338. The ACAT, in its reasons for imposing the relevant penalties (See Council of the Law Society of the Australian Capital Territory [2009] ACAT 46), first noted the appropriate test, relying on what the High Court had said in A Solicitor v Law Society (NSW) [2004] HCA 1; (2004) 216 CLR 253 at 264; [12]. The ACAT, at [10], formulated the test, quoting In re Weare; in re The Solicitor's Act 1988 [1893] 2 QB 439 at 448, as

is the 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'.

339. It then turned to each complaint. So far as the first complaint was concerned it noted that it had made a finding of unprofessional conduct but that the conduct involved dishonesty and demonstrated a lack of integrity. It referred to the importance of honesty and integrity in legal practice as pointed out by Spigelman CJ in New South Wales Bar Association v Cummins [2001] NSWCA 284; (2001) 52 NSWLR 279 at 284.

340. As submitted by counsel for the Council, the ACAT found that the conduct of the Legal Practitioner could not be "compartmentalised"; the events shared a common thread, conduct lacking in honesty and integrity.

341. Counsel for the Legal Practitioner submitted that the appropriate penalty was a restriction on the right of the Legal Practitioner to apply for an unrestricted practising certificate for five years; the ACAT regarded this as being "manifestly inadequate and inappropriate".

342. So far as the first two grounds of the second complaint were concerned, the ACAT accepted the submission of the Council's counsel that, even in isolation, but especially when viewed with the third ground, they demonstrated that the Legal Practitioner "cannot be trusted by his clients or the public; by his professional association; the Courts or Tribunals before whom he appears". The presence on the Roll of a person who cannot so be trusted is, the ACAT found, "contrary to the interests of the administration of justice as well as the public interest".

343. On ground three of the second complaint, the ACAT found this to be the "gravest of all findings made against the [Legal] Practitioner" and rejected his counsel's submission that it was, "at the lower end of the scale of professional misconduct".

344. Counsel for the Legal Practitioner submitted that regulation by supervision of the Legal Practitioner for a significant period of time, a fine, a restriction on the Legal Practitioner's ability to obtain an unrestricted practising certificate and restricting the type of legal work he could do was the appropriate penalty. The ACAT found this also manifestly inadequate and inappropriate.

345. The ACAT found that its findings had disclosed fundamental flaws with the Legal Practitioner's character, "namely, dishonesty, disloyalty and a manifold contempt for his ethical duties to the [Law] Society, his clients and the administration of justice". It found no evidence that these flaws had changed since being identified, a major basis for that being the evidence he had given which showed he had no insight into the serious nature of his conduct.

346. Counsel for the Legal Practitioner relied on Council for the New South Wales Bar Association v Slowgrove [2009] NSWADT 150, in which it was acknowledged (at [26]) that a finding of professional misconduct does not automatically lead to an order of removal of the name of a practitioner from the Roll. The Tribunal, in that case, continued, however,

... where that finding involves, as here, a finding in effect that the misconduct proven demonstrates unfitness to practise, and where, as here, there is a strong basis for considering that that defect is still operative, it is a course that must be considered ...

347. In that case, however, the Tribunal ordered that the practitioner's name be removed from the Roll. Counsel for the Council submitted that where there has been a finding of unfitness, there is a firm basis for the making of such an order. He also submitted that, when there was such a finding, then a fortiori the Legal Practitioner was unfit to hold a practising certificate and his practising certificate should be cancelled.

Having regard to all of the charges, all of which have been proved, together with the finding, the Tribunal is comfortably satisfied that the appropriate penalty is to order that the Legal Practitioner's practising certificate be cancelled forthwith and recommends that the Legal Practitioner's name be removed from the roll of practitioners in the ACT.

350. On 13 August 2010, the ACAT ordered that the Legal Practitioner pay the Council its costs of all hearings and interlocutory hearing for both matters on a party-party basis, such costs to be agreed or assessed.

351. No reasons were reproduced in the Appeal Papers for this order. I note, however, that s 433(1) of the Legal Profession Act provides

If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.

352. It is difficult to see any exceptional circumstances in this case.

353. The grounds of the appeal have been set out above (at [39]). They were not directly addressed in the written or oral submissions nor in any sense in the order in which they were pleaded by the Legal Practitioner. It is convenient, however, to deal with them initially in the order in which they were actually argued.

354. Due to the number of grounds, it is convenient to consider them seriatim as argued and make the findings on each, or each group as argued, rather than explaining and describing them and the making findings thereafter.

355. It was not always easy to marry the written and oral submissions of the Legal Practitioner to the pleaded grounds of appeal but cross-references will be made to them as set out in these reasons as best as can be ascertained.

356. It is appropriate to consider first the oral submissions of the Legal Practitioner.

357. Where the written submissions also deal with the issue, what is contained in both the oral and written submissions will, of course, be considered.

(a) First orally argued ground of appeal (apparently within pleaded grounds 3 and 11 and part of the factual ground)

358. The first matter argued was an assertion by the Legal Practitioner that the first ground of the first complaint could not be supported by the evidence.

359. In brief, his point was that his reference in the two letters (as referred to above at [112] and [115]) to a "personal relationship" was an accurate statement of the facts, even on the case brought by the Council.

360. He submitted that the meeting at the Magistrates Court, the date of which was in dispute, but which nevertheless was prior to the date on which he became Ms N's solicitor, was the start of the "personal relationship".

361. He submitted that his use of the term "personal relationship" did not necessarily - and in this context did not at the time - include a sexual relationship, as particularised by the Council, though he agreed that this developed later.

362. He also relied on the submissions made by his counsel at the hearing, namely that, for the complaint to be made out, the alleged motive had also to be proved, namely the intended effect of the representation, which was that he "sought to diminish the perception of undue influence which the personal relationship may have had on the solicitor/client relationship".

363. His counsel had submitted that this was "incapable of proof" as it involved proof of a decision by the Law Society which established principle meant it would be unlikely ever to have made. This was because there was no rule that proscribed sexual relationships between solicitors and their clients.

364. Thus, it was submitted, it would be difficult to see how the Legal Practitioner could have acted in contemplation of a decision of the Law Society that, if it acted in accordance with the law, it was never going to make.

365. There are, however, two strands to this ground. The first is the factual question of when the "personal relationship" commenced; if prior to the commencement of a professional relationship, then the charge cannot be made out. The second is whether the purpose for the representation to the Law Society is made out.

366. As to the first issue, the Legal Practitioner submitted that the particulars provided by the Council made it clear that it was asserting that the reference to a personal relationship was a reference to a sexual relationship, but that was not the meaning he was giving to the term in his correspondence with the Law Society or the Council's lawyers. There was, he submitted, a temporal difference between when the personal relationship started and when the sexual relationship started.

367. In the first place, that interpretation of the particulars cannot be sustained. In the first letter of particulars dated 27 November 2008, the reference by the Council's lawyer was to "the personal/sexual relationship". In the next letter "by way of further clarification" the Council's lawyers referred to a "personal/intimate/sexual relationship".

368. The Legal Practitioner submitted that natural justice, which must be afforded him (Law Society of New South Wales v Weaver [1977] 1 NSWLR 67 at 74), required that the exact nature of the allegations be clearly identified. So much may be accepted. It has been so held in both New South Wales and Victoria. See Johns v Law Society of New South Wales [1982] 2 NSWLR 1 at 6 and R v Solicitors' Disciplinary Tribunal [1988] VicRp 72; [1988] VR 757 at 768-70. Both decisions were cited with approval and followed in O'Reilly v Law Society of New South Wales (1988) 24 NSWLR 204 at 224-5.

369. The Legal Practitioner also referred to Walsh v Law Society of New South Wales [1999] HCA 33; (1999) 198 CLR 73 in this context, but that decision turned almost entirely on the specific statutory provisions there in force, different from the current ones, and I find it of no particular assistance.

370. The Legal Practitioner also referred to the following statement of Deane J, who agreed on the outcome with the other members of the court but wrote his own judgment, in Smith v New South Wales Bar Association at 270

Disciplinary proceedings against a legal practitioner are primarily directed towards the protection of the public and not the punishment of the legal practitioner. Nonetheless, a court or other tribunal entertaining such proceedings is bound to observe the requirements of procedural fairness before making or acting upon any finding of misconduct. Two of those requirements in such proceedings are relevant for present purposes. The first is that the allegations against the particular practitioner must be specifically identified. The second is that the practitioner must be afforded an appropriate opportunity of being heard in relation to them. (footnotes omitted).

371. His Honour referred to the earlier cited and other authorities.

372. The question then is whether the charges had been adequately particularised.

373. While the use of "/" is apt to lead to ambiguity and should, therefore, be avoided, particularly where precision is required (see Canberra Data Centres Pty Ltd v Vibe Construction Pty Ltd (2009) 4 ACTLR 114 at 130-1; [85]), there can be no real doubt that in this case the use of the term "personal/sexual" was to mean "personal or sexual or both".

374. As Mason P said in Big River Timbers Pty Ltd v Stewart (1999) 9 BPR 16,605 at 16,608

The drafting device of offering two alternatives separated by a '/' is not uncommon. Sometimes the two linked concepts are true alternatives, as with 'NAME/S' in the opening part of the guarantee. At other times a broader choice is offered, as with 'goods and/or services', also found in the guarantee. The purist may decry the use of such an expression, but the meaning is clear, namely 'goods or services or both of them'.

375. It seems to me that the Council was clearly referring to a relationship that was of a closeness that would be regarded as more than just an acquaintance or even friendship, but of a degree of intimacy or commitment that may lead to but did not necessarily immediately include or constitute a sexual, or de facto, relationship. Indeed, the Legal Practitioner used, in the appeal, the word "friend", thereby making a distinction between that relationship and, for example, a casual acquaintanceship.

376. To characterise, as the Legal Practitioner sought, it seems, to do, a personal relationship as having been established when two strangers first meet, even when they later enter into a sexual relationship is, in my view, to misuse language.

377. In any event, the Legal Practitioner, in the evidence he led, had no illusion about this.

378. His witnesses referred to matters such as the Legal Practitioner and Ms N "holding hands" or Ms N being described as the Legal Practitioner's "girlfriend". There was no mistaking the meaning of the relationship as more than strangers who had become acquainted and met a number of times.

379. While, at the hearing of the appeal, the Legal Practitioner attempted initially to maintain the position that "personal relationship" meant no more than that he and Mrs N had met and continued to have contact, he ultimately acknowledged that this construction was not maintainable. Indeed, he conceded that the initial meetings were, if anything, the commencement of what first became a professional relationship. He ultimately accepted that, just because Ms N had not terminated the retainer of her other solicitor, this did not prevent him from having a professional, solicitor-client relationship with her. That must be correct and, if necessary, I would so find.

380. That this was the first meeting - and, therefore, the point from which a later relationship developed - may be unarguable. It is, of course, difficult to say when a casual acquaintanceship becomes a different kind of relationship, such as a friendship, a professional relationship or a personal relationship, but that does not mean there is no difference in the timing. This is when the Legal Practitioner first met Ms N, but this is not the start of a particular kind of relationship.

381. Indeed, given that, without disagreement between the parties, it was accepted that at the first meeting the Legal Practitioner and Ms N spoke of her Family Court proceedings and the Legal Practitioner gave her his business card, it seems that, if this was the start of any relationship, it was the start of their professional relationship. Indeed, the Legal Practitioner agreed at the appeal that at their first meeting, he was not in a personal relationship with Ms N.

382. Later in the appeal, however, the Legal Practitioner made it clear, in what he submitted to me, that he was referring to an intimate personal relationship. He said that what he was asserting was a personal relationship of such an intimate kind, that is he was "seeing" Ms N "two or three times a week" in April 2007.

383. While this was somewhat different from the semantic argument he earlier offered, it made the position clearer, for the real question was that of the evidence: what did the evidence show as to when the relationship began.

384. As to when the personal relationship commenced, the evidence has been set out above. The ACAT found it began in July 2007, well after the Legal Practitioner became Ms N's lawyer in 21 May 2007. This was when, on the evidence that the ACAT accepted, they for the first time embraced and kissed. The Legal Practitioner agreed at the appeal hearing that he was not in a personal relationship with Ms N at 21 May 2009. I shall deal with other challenges to this finding below.

385. Thus, if the dates as found by the ACAT are correct, the Legal Practitioner did clearly misrepresent the position in his letters to the Law Society.

386. The Legal Practitioner was at pains to point out that he had not asserted that the sexual relationship had commenced before the professional relationship. That may be accepted. So far as this meant that any such allegation was not proved, that is correct, but it did not seem to me that this negated the complaint to any relevant degree. The complaint encompassed a personal relationship, in the sense in which it was used by Ms N in her complaint and that clearly did not mean simply a first contact and casual acquaintance.

387. The Legal Practitioner, however, went on to assert at the appeal that the words "in circumstances where a personal, and later a sexual, relationship did not develop until after the solicitor-client relationship" had to be part of the representation proved by the Council at the hearing before the ACAT and that this was never represented by him.

388. It seems to me that the Legal Practitioner was trying to make a similar point to that which had been made by his counsel, namely that the purpose of the representation, namely "to diminish the perception of undue influence" had also to be proved. The Legal Practitioner seemed to go further, however, and suggested that this motive itself had to be represented. If that is so, it must clearly be rejected.

389. The submissions on this point were very confusing and, after reading the transcript of the appeal a number of times and referring to my contemporaneous notes, I am no clearer than the construction I have put on them above. That construction, however, provides no basis for upholding the appeal.

390. As I said at the hearing of the appeal, I found the submissions incomprehensible and described them as "absurd" and "bizarre".

391. As to the other strand, the position seems to me equally as clear. In her letter of complaint, forwarded to the Legal Practitioner for a response, Ms N wrote

... I asked [the Legal Practitioner] to represent me on my custody dispute matter. Once my legal aid grant was transferred to [the Legal Practitioner] he began acting on my behalf in late May 2007.

In approximately July 2007 [the Legal Practitioner] and I began a personal relationship. This came about as [the Legal Practitioner] invited me out for celebratory drinks when I filed for divorce. During the next 3 months [the Legal Practitioner] and I became increasingly close and engaged in a sexual relationship as well as I what I assumed was a committed personal relationship.

...

It seems that our personal relationship was affecting our professional relationship and he could no longer adequately represent me if he was not willing to even speak to me.

392. It was to this letter that the Legal Practitioner responded, and in the second paragraph of that letter (indeed, the first substantive paragraph), he first made the claim that he and Ms N "entered into a personal relationship approximately one month before her family law case was transferred to [him]".

393. It is unarguable that this assertion was in response to the allegation of Ms N that the personal relationship was affecting the professional relationship.

394. As the Legal Practitioner gave no evidence, there was nothing to contradict that evidence and, subject to what is said below about Jones v Dunkel, the ACAT was entitled to draw the inference more confidently that the Legal Practitioner was attempting to diminish the prejudice to the legal services he was providing by undue influence from the personal relationship between him and Ms N.

(b) Second orally argued ground of appeal (apparently part of the factual ground)

396. The Legal Practitioner next raised the issue of the second ground of the first complaint. The evidence has been set out above.

397. The Legal Practitioner's complaint at the appeal was difficult to understand. At one point he suggested that it really was addressed at penalty for, he said, "[i]t comes back to my mens rea at the time", which he submitted was innocuous because he had simply forgotten about legal aid and was sure he was acting pro bono.

398. That factor, however, is critical to the ground of complaint itself for it was specified that he knew the matter was legally aided.

399. 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.

400. 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.

401. Indeed, it is difficult to conceive of what the Legal Practitioner could say in the face of this largely documentary evidence.

402. While the Legal Practitioner acknowledged that there was "no defence" to the ground of complaint, he seemed to wish to approbate by saying he was, at the time, confused and under a misapprehension. If, however, that was found, as the ACAT did not so find, it would provide a complete defence to the ground of complaint, when he asserts there is no defence.

403. The only thing that this suggests is that the Legal Practitioner does not understand the nature of the ground of the complaint.

(c) Third orally argued ground of appeal (apparently part of the factual ground)

405. The Legal Practitioner was critical of the evidence of the phone records and the use that the ACAT made of them.

406. His submissions were discursive and not conveniently articulated. Doing the best I can, they seem to be along the following lines.

407. The Legal Practitioner made the following statement in his written submissions:

Only a fraction of the telephone records that the parties had access and used were put into evidence by the Respondent. The findings based on the telephone records are unsafe and are not supported by any other evidence than that given by [Ms] L and [Ms] N.

408. He later pointed to, in particular, the absence of the following records:

incomplete telco records no practitioners land line, [Ms N's] work phones her home landline, and numbers associated with her sons telephone services and no text messages or [Ms L's] phone records.

409. This, the Legal Practitioner seemed to be submitting, was significant because there were admitted calls made which did not appear on the tendered phone records and there were telephone numbers admitted to be used by Ms N, the records of which were not subpoenaed.

410. In her affidavit, Ms N deposed that shortly after her first meeting at court with the Legal Practitioner (ultimately found to be on 7 May 2007), she "phoned him to make an appointment to discuss my case". That appointment, the evidence showed, was on 9 May 2007. There was no telephone call to the Legal Practitioner shown in the records of Ms N's mobile phone until 22 May 2007. The inference relied upon by the Legal Practitioner was that there must have been a call from another phone used by Ms N in early May the records of which were not produced to the ACAT.

411. Thus, the Legal Practitioner submitted that, as the landline phone records of Ms N had not been produced by the Council, an inference should be drawn against the Council. He referred to Jones v Dunkel as authority for doing so.

412. 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.

413. 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".

414. It appears that the inference that the Legal Practitioner seems to be suggesting that the ACAT should have drawn is that, as it did not have the complete records, it could not find that the phone records was "objective evidence" which provided "support the [Ms N's] version of events and, in particular, when the personal relationship between them might, more probably than not, have commenced".

415. I cannot accept that approach, however, for the material before the ACAT was sufficient as a basis for its findings for the following reasons:

1. Ms N was clearly using her mobile phone regularly throughout April, the records show, and yet there was not a single telephone call from it to that of the Legal Practitioner in that month. Given her use, it is so highly unlikely, if she and the Legal Practitioner were in the alleged personal relationship, that she would never have telephoned him from her mobile phone during this period if, as the records show that, she was regularly (many times each day) using it, the absence of other records cannot be a secure basis to reject the Council's contention that the personal relationship did not commence until, as Ms N deposed, July 2007.

2. Conversely the records of the mobile phone of the Legal Practitioner show no telephone calls in April 2007 either to the landline of Ms N or to her mobile phone. Indeed, there were no calls to Ms N's landline from the Legal Practitioner's mobile phone from August to October 2007 when the personal relationship was admitted by all parties. This, again, is powerful evidence that supports the inference drawn by the ACAT. The Legal Practitioner could have pointed to other telephone numbers on his call records that came from Ms N, such as her work number, but did not do so.

3. The Legal Practitioner had the details of Ms N's landline telephone (and other relevant telephone services) provided by the Council's lawyers at the request of the Legal Practitioner who told the ACAT at a directions hearing on 29 October 2008 that he proposed to subpoena the records. No such subpoena was apparently issued and there was no explanation for its absence. Indeed, at the hearing of the appeal, the Legal Practitioner appeared to tell me that he did not have the telephone number of Ms N's landline - at least I stated that and he did not deny that this was his position. That was shown to be incorrect, as set out above.

4. No explanation was offered in evidence or submissions for the startling change in telephone pattern between April and July 2007 when there were no calls recorded between Ms N's mobile phone and the Legal Practitioner's mobile phone in April 2007, and six from the Legal Practitioner to Ms N in May 2007 and ten in June 2007 with five from Ms N to the Legal Practitioner in May 2007 and eight in June 2007 but in July 2007 there were twenty-three and in August seventy-one from the Legal Practitioner to Ms N and from Ms N to the Legal Practitioner, sixteen in July 2007 and seventy-three in August 2007. The change in call pattern is stark, supportive of the inference drawn by the ACAT and which was otherwise unexplained.

5. In a letter dated 19 November 2008, the Legal Practitioner expressly stated that he advised the Law Society lawyers "formally" that he intended "to subpoena all of the telephone records for the three persons". This repeats and emphasises the statement he made to the ACAT directions hearing on 29 October 2008. In the light of his failure to do this, in the face of these express statements, the ACAT would have been entitled to draw an inference, under the Jones v Dunkel principle, that the second would not have assisted his case.

416. Further, in the written submissions of the Legal Practitioner, he submitted that he did not have the records from which these calculations were made. That is, as with many of the submissions made by the Legal Practitioner, only partly true. In the first place, he had the information and the means to gain that information. Secondly, these records were produced at the hearing, which occupied five days, so there was plenty of time for them to be perused. Thirdly, a large part of this material consisted of records of his own mobile phone to which he must have had access or could obtain it easily. Finally, the evidence adduced raised a very strong inference, even without the other records, and this required an answer which the Legal Practitioner did not give, save to say that other records may have shown something else. What, however, they may have shown in the light of the tendered evidence, was never articulated.

417. There is, to my mind, no doubt that, in the circumstances, the evidence adduced by the Council was, prima facie, evidence in the sense used by Richards AJ in Lampard v West [1926] SAStRp 26; [1926] SASR 293 at 310 and, on appeal, at 311, namely evidence which is sufficient to found a finding in favour of the proponent of that evidence unless credible contrary evidence is given. That, of course, does not shift the burden of proof, but does require the opponent to show either that the evidence does not reach this level by submission or cross-examination, or to produce contrary evidence that undermines the prima facie evidence. Merely to submit that there were other records does not do this when that does not explain why the inevitable inferences drawn from the tendered evidence should not be drawn.

418. The challenge to the findings of the ACAT in this regard cannot be sustained.

(d) Fourth orally argued ground of appeal (apparently grounds 4 and then part of the factual ground)

419. The Legal Practitioner was obviously concerned that the evidence of the three lawyers who gave evidence on his behalf was not accepted without reservation. There was a degree of naivety in his arguments.

420. His first point was that the evidence of all three was treated as, effectively, unreliable, though in each case for different reasons. The evidence of Mr F and Mr R was held by the ACAT to be required to "be treated with caution". The evidence of Mr J was regarded as having little or no weight.

421. The reasons given for rejecting the evidence of Mr F was twofold: his demeanour as a witness, and the refusal by him to concede matters which were obvious and reasonable. For example, he refused to concede that the incident where he met Ms N with the Legal Practitioner could have occurred later in April, rather than early April, even though that was consistent with the claims made by the Legal Practitioner, namely that it was a month before 21 May 2007. Later, in fact, he was forced to make the concession.

422. I should also note that he claimed he knew the date from his file and his diary, which, he said, showed it was accurate. Curiously, however, he did not give a precise date which one would think would be obvious if the dating of the event came from a diary or a file note. He produced neither his file nor his diary. Further, he did not include in his statement the reason why he remembered the date. There are legitimate reasons for concern about his evidence.

423. As to Mr R, his dating of the meetings with the Legal Practitioner and Ms N was not precise. He used the words "in or about April 2007" which he chose he said "carefully" and the decision to use them was "considered". He accepted that his memory was as fallible as anyone else's memory.

424. Thus, he acknowledged he could be wrong, though he excluded the possibility of the event occurring in July.

425. Again, he failed to include in his statement the basis for determining the date, which was again based on a diary entry relating to him receiving confirmation of the sale of a building in Brisbane proceeding. Again, one would expect a date based on a diary to be precise and at least more precise than in this case. He did not produce his diary. He explicitly declined to explain why he did not make reference to this fact in his statement.

426. Again, there are good reasons why the ACAT should treat this evidence with caution.

427. In his evidence, Mr J resiled from a key paragraph (though in relation to the second complaint) in his statement. He, too, volunteered a significant date by which he calculated his meeting with the Legal Practitioner and Ms N but failed to include it in his statement. He also accepted, however, that he could be wrong.

428. These are good reasons why the ACAT should treat the evidence as of little weight.

429. The Legal Practitioner seized on the following paragraph from the reasons for decision of the ACAT:

1. Fifthly, and unsurprisingly, two of the three practitioners properly acknowledged that they could be mistaken. The third practitioner, Mr [F], refused to acknowledge the possibility of error and this points to unreliability.

430. He suggested that this meant that evidence was unreliable if the witness conceded they may be wrong but also if the witness refused to concede error. He submitted that this meant it was impossible to be credible. That is, of course, too simplistic an approach. The precise circumstances in which these stances were taken was a critical factor in the assessment of the evidence and its evidential value. Indeed, as is clear from the opening words of the paragraph I have quoted, there were four other matters earlier identified by the ACAT which were relevant to the assessment of the evidence; this was merely the fifth one.

431. Truly stated, there was not, as suggested by the Legal Practitioner, any inconsistency in the way in which the ACAT assessed the evidence. Though having not seen and heard the witnesses give evidence, I would have approached their evidence in the same way.

432. The second part of the Legal Practitioner's challenge, though not so clearly articulated, appeared to be that, as lawyers, with ethical obligations and as officers of this Court, their evidence was not accorded a particular status and credibility.

433. Though lawyers, they were, however, mere witnesses in the proceedings. I am reminded of the approach in a criminal trial to the evidence of an accused person. As Bray CJ said in R v Mayne (1975) 11 SASR 583 at 588, an accused's "evidence was to be considered in exactly the same way as that of other witnesses".

434. To borrow a phrase from Cronin J in Pencious and Pencious [2012] Fam CA 74 at [50]

In respect of the lawyers as witnesses, rank, experience, seniority or class of lawyer, carries no weight but truthfulness does.

435. The final point, not strictly relevant to the appeal, seemed to be that the ACAT somehow treated the three lawyers inappropriately. He suggested that it made findings of dishonesty with "no opportunity [for them] to defend their conduct".

436. There is no basis for this assertion and it is irrelevant to the appeal. The basis appeared to be a comparison with the formulation used by the State Administrative Tribunal of Western Australia in a proceeding for a complaint against a lawyer when it rejected evidence of a practitioner who had appeared as a witness.

437. In Legal Practitioners Complaints Committee v Trowell [2009] WASAT 42 at [143] the Tribunal, in dismissing the evidence of another legal practitioner, Mr Davies, said

1. The inference we draw from Mr Davies constantly taking refuge in his allegedly weak memory, and from the content of his evidence and the manner of giving it, is that because of his relationship with the practitioner and a sense of loyalty toward him he was concerned not to provide answers which he believed might assist the case of the LPCC. Again, we make no findings which impugn his honesty as such.

438. Whether the ACAT should have made a comment along the lines of the sentence last quoted is entirely a matter for it. The findings it made were as to reliability and there was no reference to honesty or, more importantly, dishonesty. The ACAT made no finding that any or all of the lawyers were dishonest.

439. It is, of course, clear that there is a significant difference between the rejection of a person's evidence, including as unreliable, and a finding that he or she deliberately lied. See, for example, Smith v New South Wales Bar Association at 268.

(e) Fifth orally argued ground of appeal (apparently part of the factual ground)

441. The Legal Practitioner challenged the reliance of the ACAT on the evidence of Ms L whom, he submitted, was a witness on whom no reliance could be placed.

442. Associated with this was a submission that the Council should have called a number of other witnesses, such as the friend of Ms L with whom she claimed she was having a telephone conversation from her home on the morning of 14 September 2007, when the Legal Practitioner asserted she was in court with him.

443. His complaints about Ms L included that she had given false evidence to the ACAT. That is correct. She initially stated that she had not seen her partner, Mr A, in recent times or communicated with him in any way in recent times. Later, having been granted a Certificate under s 128 of the Evidence Act 1995 (Cth), she was asked some questions in re-examination and stated that she had, in fact, spoken with Mr A fifteen or twenty times in a five month period in 2009, the year in which she was giving evidence. She also said that she had spoken to him on the phone the day before she had given evidence and the day before that.

444. The Legal Practitioner also submitted that she had lied to the ACAT in connection with the proceedings in the Magistrates Court, when the proceedings were remitted there by this Court on 14 September 2007.

Now, on 26 November 2007 did you go to a Registrar's conference with Mr [J] accompanying you? --- No. No.

Well, was it the case that the hearing had in fact been set for that day and the normal procedure is that prior to a hearing taking place the parties will meet downstairs in the building in front of the Registrar and confirm their intention in relation to what's to happen that day? --- Yes, that was over the phone because we only had like three days prior to the hearing and Simon asked me would I agree to an undertaking order, well - well it was at that stage. And I said 'No, I want it to go ahead. I want these orders in place'. I did not know at that stage that I had no orders in place. So we didn't have a conference because there wasn't enough time. I had no representation till three days before a hearing, and he had to try and cram time in for me, and what Simon intended on doing was going to court and asking for adjournment so we could have more time for preparation. So no conference then took place.

Did you appear with Mr [J]? --- Only on two occasions, yes.

Well, I'm asking you did you go to the Magistrates Court and attend upon the Registrar on the morning of 26 November 2077? --- No.

I show you this letter? --- No, I didn't go in no room. They spoke outside. I've never been into any room to discuss anything.

So you did go to court with Mr [J]? --- Yes.

Right, well why did you say you didn't? --- No, I've been. I've said - I said I went to court with Mr [J] on two occasions. One was to adjourn the hearing, another one's for the hearing date. I didn't go to have no - no conference. He did something by phone and he may have spoken to Mr - is it [Dai Lee]? Or - yes [Dai Lee]. But I've never sat in a conference room with [Dai Lee] and [Mr J] to discuss anything. We didn't have time, it was only a few days prior to a hearing.

Did you go to a Registrar's conference on 26 November and speak to the Registrar possibly in the precincts of the court about what was going to happen ---? --- There's ---

--- to a hearing that was listed for that day? --- There's a possibility we stood outside, but no one was actually sitting down and I didn't actually get to speak to [Dai Lee] myself.

Well, Mr [Dai Lee] wasn't sure your solicitor, was he? --- I know, but if you - if you were referring to a conference, all of us sitting down to make negotiations then I assumed that we'd all be there. But no, that didn't happen.

446. I do not consider, in the light of the form of the questions asked, that this amounted to any lie or even dissembling by Ms L. Given the fact that she did not enter the conference room, her denial to a question with two allegations, one of which did not happen, cannot be said to be a lie.

447. There was no challenge to this. For example, Mr J gave evidence but was not asked any questions about these events. Further, it was not put to Ms L that she had in fact gone into the conference room with Mr J where the Registrar was.

448. Ms L had denied that she knew that the personal protection order had been discharged and that Ms A had given an undertaking to the Supreme Court in the same terms as the order.

449. It appears that the bench sheet from the Magistrates Court for 26 November 2007 shows "Supreme Court undertakings to continue" until the adjournment date of 21 January 2008. That bench sheet is signed for the applicant, who was Ms L, but it was, she stated, not her signature. She denied having a conversation with Mr J about the undertakings, and Mr J was not asked about it.

450. The Legal Practitioner relied on the letter he said he sent to Ms L on 14 September 2007 but which was not produced until 22 March 2009. It referred to the undertakings that Ms A had given to the Supreme Court. As noted, that letter was never put to Ms L. She stated in her third affidavit that she never received it and that the contents of it were incorrect.

451. The letter was apparently annexed to an affidavit of Mr A which was not read. See my comments above (at [140]-[143]). The Legal Practitioner was aware that a decision was made by his counsel not to read it. No real explanation was given as to why it was not read.

452. The Legal Practitioner then sought to call evidence and have Mr A subpoenaed. In the light of the circumstances, I refused the application.

453. The Council included the letter in its Tender Bundle, however, and it was, therefore, before the ACAT. The Council invited the ACAT to find that it was a concoction, which it ultimately did. This meant that there was no other evidence to suggest that Ms L was aware that the personal protection order she had obtained againstMs A had been discharged by this Court and replaced by an undertaking in the same terms.

454. Despite the attack on Ms L's credibility as a witness, the ACAT found that she was not shaken in cross-examination on the issue of whether she was present in this Court on 14 September 2007.

455. In any event, her evidence was corroborated. There were telephone calls that she made from her landline which were inconsistent with her being at the Supreme Court on 14 September 2007. Further, the Legal Practitioner rang Ms L's landline one minute after the end of the proceedings, too short a time for her to have been able to get home. There was also the evidence of Mr C which was clear, within the entirely proper qualifications he placed on his evidence, that Ms L was not at the Supreme Court on that day. All this was ample corroboration of the evidence of Ms L, and a sure base on which to rely on that part of the evidence, notwithstanding the lie she told to the ACAT.

456. There is no error in the reasoning of the ACAT in finding that Ms L was not at the Supreme Court on 14 September 2007.

(f) Sixth orally argued ground of appeal (arguably part of the factual ground)

457. The Legal Practitioner next submitted that there were no standing instructions from Ms L to maintain the personal protection order. This was part of the first ground of the second complaint.

458. He first submitted that Ms L had received a copy of the order of this Court from Mr C's firm. There was, however, no evidence that this had occurred. Ms L was not asked about it in her evidence.

459. No letter was produced to the ACAT sending the order of this Court to Ms L. Mr C was not asked about it, or to produce it, even though it was apparent that he had the firm's file with him at the ACAT hearing.

460. It would, in any event, be odd for a lawyer to send a sealed copy of a court order to the client of another lawyer unless by prior arrangement.

461. The Legal Practitioner referred to a letter he had sent to Mr C's firm on 9 August 2007 in which he made suggestions about Ms A discontinuing her appeal and paying costs. A copy of the letter was apparently sent to Ms L.

462. The Legal Practitioner submitted that it showed that Ms L "didn't have standing instructions" and was aware "on ... 9 August, that the matter was going back to the Magistrates Court".

463. The letter, however, refers to an apparent agreement that, under certain circumstances, Ms L would consent to the appeal by Ms A being upheld. It, however, rejects that those circumstances exist and offers to seek reduced costs if Ms A discontinues her appeal.

464. The "agreement" in the letter of 9 August 2007 repeated what had been said in a letter from the Legal Practitioner to Mr C's firm dated 25 July 2007. A copy of that letter was also sent to Ms L but it appeared as if the actual letter to the lawyers was sent without instructions.

465. Ms L acknowledged that the Legal Practitioner had discussed the matter with her. She evidently did not understand the matter clearly, saying that the Legal Practitioner had told her "it had to go back [to the Magistrates Court] because the law was full of ex parte law or something to that effect".

466. She also acknowledged that there were discussions between the lawyers for the parties. She said, however, that, while she had seen these two letters, she had not seen all of the correspondence including one item where the Legal Practitioner referred to "some arrangement of dropping my restraining order and putting an undertaking" and she added "which I would never ever agree to".

Because when I had a restraining order in 2002 she still tried to attack me in the courtroom at eight months' pregnant and her son Isaac had to physically hold her back. I know what this woman's capable of doing.

So under no circumstances would you agree to your protection order being removed? --- No, because I've got little children there that she's doing it in front of. My 4 year old still remembers her carrying on at the shops. That's why I rang Welfare and said this is what's - I said she's getting this 3 year old to even continue swearing at me. My children were frightened, and she was four, and I thought next time this woman's going to hit me in front of her. What am I going to do? I have physical injuries. I wouldn't be able to defend myself. I wanted this woman completely away from me.

468. She said that she did not agree with the Legal Practitioner sending the letter of agreement to Ms A's lawyer's firm but said

I didn't agree with him sending that. He'd already sent it to them and then sent - told me what he had sent to them and I disagreed with it.

469. She said she did not tell the Legal Practitioner not to pursue the agreement "because I didn't realise I had a choice or to turn back after he's sent that to the opposition".

470. Her evidence was that the Legal Practitioner "wanted [her] to drop the case and let [Ms A] hit [her], then charge - charge her". She refused to approach the matter in that way; she said "[the Legal Practitioner] felt that [Ms A] should hit me and then let her be charged, and I didn't want to be hit. That's why I wanted to keep my order in place". She repeated that a number of times.

471. The ACAT also found, after hearing from Ms A in the witness box, that Ms L's fear of Ms A was understandable.

472. There was plenty of evidence to justify the finding of the ACAT that there were "standing instructions" from Ms L that she wanted the personal protection order to remain in place. This ground of appeal is not made out.

(g) Seventh argued ground of appeal (possibly ground 11)

473. The Legal Practitioner submitted that the ACAT could not find, as he submitted it did, that he was dishonest as this was not charged.

474. I have referred above (at [245]) to the fundamental flaws that the ACAT found its findings disclosed. These included "dishonesty".

475. The Legal Practitioner submitted that the charges did not allege dishonesty. He referred to Walter v Council of the Queensland Law Society [1988] HCA 8; (1986) 77 ALR 228 where the High Court set aside an order of the Queensland Court of Appeal which had struck the appellant's name off the roll of solicitors in that State on the basis that the findings of the misconduct did not amount to dishonesty. The High Court found that they amounted to "procedural irregularity and incompetent management".

476. That decision does not assist the Legal Practitioner. The complaints here amounted to misrepresentations or representations that were false. That could well found a finding of dishonesty.

477. That is not necessarily sufficient in itself, for an innocent or negligent misrepresentation may not involve dishonesty.

478. The principle is an ancient one. In Derry v Peek [1889] UKHL 1; (1889) 14 App Cas 337 at 374, Lord Herschell said

Fraud is proved when it is shewn that a false representation has been made (1) knowingly, or (2) without belief in its truth, (3) recklessly, careless whether it be true or false. Although I have treated the second and third as distinct cases, I think the third is but an instance of the second, for one who makes a statement under such circumstances can have no real belief in the truth of what he states. To prevent a false statement being fraudulent, there must, I think always be an honest belief in its truth. And this probably covers the whole ground, for one who knowingly alleges that which is false, has obviously no such honest belief.

479. That fraud always involves an element of dishonesty or moral turpitude is clear from the decision of the High Court in Bahr v Nicolay (No 2) [1988] HCA 16; (1988) 164 CLR 604.

480. Here the grounds show the relevant elements for fraudulent misrepresentation. In the first ground of the first complaint, the representation of when the personal relationship with Ms N commenced in relation to their professional relationship is a matter which, if false, the Legal Practitioner must have known. In the second ground, the falsity is express in the formulation of the ground. In the first ground of the second complaint express reference is made refer to a failure to act honestly. In the second ground to the second complaint there can be no doubt that if, as he did, the Legal Practitioner represented that Ms L was present in court when she was not, he can only have made that misrepresentation knowingly and, therefore, dishonestly.

481. There is no basis for the challenge made in this ground of appeal.

482. The Legal Practitioner submitted in his written submissions that the standard of proof required in the proceedings is the civil standard of proof. That is clearly correct.

483. The proceedings are undoubtedly civil proceedings (McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42 at 59) and the standard is, therefore, the civil standard of the balance or probabilities: Ex parte Attorney-General (Cth); Re A Barrister and Solicitor (1972) 20 FLR 234 at 246. As Dixon J pointed out in Briginshaw v Briginshaw at 361, 362, there are only two standards of proof under Australian law, the civil standard based on the balance of probabilities and the criminal based upon satisfaction beyond reasonable doubt.

484. The High Court has pointed out in Rejfek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521

the standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof is no mere matters of words: it is a matter of critical substance.

485. Thus, the submission by the Legal Practitioner, that the degree of satisfaction is akin to that required in criminal proceedings cannot be accepted.

486. Nevertheless, the approach in Briginshaw v Briginshaw, that the standard must have regard to the gravity of the facts to be proved, is well-known and should be followed. There have been a variety of formulations of the approach: "high degree of satisfaction - O'Reilly v Law Society of New South Wales at 208 per Kirby P; "comfortably and confidently satisfied" - Re Hodgekiss (1959) 62 SR(NSW) 340 at 356 per Hardie J; "very sure" - Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279 at 296 per Fullagar J; "reasonable satisfaction" - Briginshaw v Briginshaw at 350 per Rich J, at 362 per Dixon J. The latter formulation "reasonable satisfaction" has been widely endorsed.

487. The ACAT used the term "comfortable satisfaction" which came from the judgment of Rich J in Briginshaw v Briginshaw at 350. It does not seem to me, however, to express a lower or inappropriate standard. Indeed, the ACAT went on to add

The evidence must be weighed according to the gravity of the facts to be proved, to the extent that a conclusion is reached about those facts with a feeling of comfortable satisfaction that it is just and correct.

488. I do not consider that the ACAT erred. The test it applied was appropriate to the circumstances and, the approach was correct.

(i) Ninth orally argued ground (apparently ground 11)

490. The Legal Practitioner next submitted that the ACAT took into account what he described as "a large number of uncharged acts".

(1) A conversation alleged in an unread affidavit of the Legal Practitioner to have been made to the Council's lawyer, Mr Phelps, which never occurred. It was deposed to in an affidavit of Mr Phelps which was read on 28 September 2009 with no apparent objection on behalf of the Legal Practitioner. Subpoenaed phone records showed that no such call was made from the mobile phone of the Legal Practitioner as alleged. The purpose of the allegation was clearly to have the Council's lawyer removed from the hearing shortly before it commenced and this was never controverted.

(2) Threats made by the Legal Practitioner to the Law Society made in documents included in the Tender Bundle which was tendered by consent. These were

(a) in a letter from the Legal Practitioner to the Council's lawyer that, unless the complaint by Ms N "is dropped I will commence action against the Society for costs and damages"; and

(b) in the same letter an implied threat to commence proceedings against the Council's lawyer for "costs and damages".

(3) A conversation with the Legal Practitioner deposed to by Ms L that, unless Ms N stopped her complaint, the Legal Practitioner would disclose "hidden files" that "could land [Ms L's nephew] in jail if they come to light". No objection was taken to that paragraph in the affidavit. Ms L adhered directly to the conversation when cross-examined.

492. Apart from the fact that all this material was admitted by consent or without objection, it was clearly relevant to the issue of the character of the Legal Practitioner. It was all material to which he was given an opportunity to respond, to challenge, which in some cases he did, or to controvert by other evidence. To a very large extent, it went effectively unanswered.

493. These matters were very relevant to penalty. The Council also sought to rely on them as a consciousness of guilt on the part of the Legal Practitioner. The ACAT did not make formal findings about that aspect of them.

(j) Tenth orally argued ground of appeal (apparently part of the factual ground)

495. The Legal Practitioner submitted that he could not have been found guilty of the third ground of the second complaint, that he threatened Mr C.

496. He pointed out, in the first place, that, by the time of the telephone conversations, made on 2 April 2009, Mr C had already made his statement, dated 16 December 2008. He also pointed out that the Law Society already knew of the issues.

497. The Legal Practitioner spent some time in submissions contending that Mr C had also acted contrary to his client's instructions, the charge that he, the Legal Practitioner, was facing. He complained that Mr C had not been proceeded against by the Law Society.

498. He submitted - though it was dangerously close to giving evidence in the appeal - that he merely wanted to give Mr C, his friend, a "heads up". Exactly what that meant in the circumstances was unclear; he had already mentioned the matter to the Law Society before the telephone call. The Legal Practitioner also accepted that he had, in fact, given the Law Society very precise information as to where Mr C had acted inconsistently with his instructions.

499. Although no evidence was given by the Legal Practitioner, he did return to the Law Society a copy of the email that Mr C had sent to it setting out the conversation between the two and he crossed out words he said he did not say. That redacted version appears in the Tender Bundle.

500. The problem with the submissions of the Legal Practitioner is that, even in its redacted form, the record shows that the conversation was threatening. In the first place, the statement of Ms A is a central part of the Legal Practitioner's case, yet he said to Mr C "this matter has nothing to do with the Law Society investigations against me". That is a clear lie and the Legal Practitioner must have known, as he conceded to me on the appeal, that it was inevitable that the statement of Ms A was going to be tendered and, therefore, available to the Law Society.

501. The redacted version was, however, not accepted, for it was not supported by any evidence of the Legal Practitioner. The unredacted version was supported by the diary note of Mr C, contemporaneously made, and by his oral evidence, subject to cross-examination.

502. In that context, the statement, "I am considering to [sic] lodging the statement with [the] Law Society", which was part of the conversation, can only be seen as a threat.

503. In his written and oral submissions, the Legal Practitioner placed strong emphasis on the fact that he had written to the Council's lawyer to seek the Law Society's consent to him speaking to Mr C. It is not clear that such consent was necessary, as, indeed, in his letter the Legal Practitioner pointed out that "there is no property in a witness".

504. Nevertheless, the lawyer for the Council replied advising that the Law Society "has no concerns" about the Legal Practitioner contacting Ms A's lawyer and his firm.

505. The Legal Practitioner seemed to suggest that this latter letter somehow protected his conversation. There is no basis for any suggestion that this correspondence gave the Legal Practitioner authority to attempt to intimidate Mr C or absolved him of any impropriety in the conversation.

(k) Eleventh orally argued ground of appeal (arguably ground 10)

507. The Legal Practitioner referred to Council of the New South Wales Bar Association v Slowgrove. The only relevance of that decision, however, is the following paragraph

1. A finding of professional misconduct does not, of course, automatically lead to an order for removal of a Respondent's name from the Roll: Prothonotary of the Supreme Court of New South Wales v McCaffery [2004] NSWCA 470. However, where that finding involves, as here, a finding in effect that the misconduct proven demonstrates unfitness to practise, and where, as here, there is a strong basis for considering that that defect is still operative, it is a course that must be considered ...

508. What is there said may be so, but it does not really advance the position. In that decision, an order was made to strike the name of Mr Slowgrove off the Roll.

509. The Legal Practitioner made no substantive oral submissions, so it was not easy to identify the point he wished to make.

510. In his "Reasons justifying appeal", the Legal Practitioner, included the following:

And or alternatively the penalty imposed was harsh and excessive given the Appellant was the holder of a Restricted Practising Certificate at the time of the conduct and had only been practising under supervision for a period of 1 month (LP 6 of 2008). Further the Appellant has had no other findings recorded against him and should have been considered as a first offender none of the above were taken into consideration.

511. On the assumption that this is a discrete ground of appeal, relevant to the rather coy and opaque reference to Council of the New South Wales Bar Association v Slowgrove, I shall address this issue.

512. He addressed the issue in his written submissions. In respect of the first complaint, he noted that the finding of the ACAT "would not justify a finding that [the Legal Practitioner] is not a fit and proper person to engage in legal practice" and, on this ground alone, a recommendation, as made by the ACAT, that his name be removed from the Roll.

513. In respect of the third ground of the second complaint, he noted that the evidence of Mr C was that he did not feel threatened. He submitted that there was no threat "with regards to any severe personal consequences", though that is hardly to be sustained when the threat is to complain to one's professional body, which has the power to take proceedings that can result in the loss of one's livelihood and reputation.

514. The other submissions made by the Legal Practitioner, however, were inconsistent with the findings of the ACAT - such as "there was no suggestion to [sic] inappropriately influence [Mr C]", though I accept that such suggestion was implicit rather than express. He also submitted that "the conversation was not expressed in inappropriate terms" yet he conceded on the hearing of the appeal that he had made a "bad use of words".

515. Indeed, one of the troubling features of the hearing of the appeal is how little insight the Legal Practitioner showed as to the errors he had made. As Mr N Beaumont, Counsel for the Council pointed out, the Legal Practitioner at the hearing continued to deny that he had intimidated Mr C and could not, and did not, apologise for doing so.

516. The Council referred to the test posed by the High Court in A Solicitor v Law Society (NSW) at 264; [12]

As Griffith CJ pointed out in Southern Law Society v Westbrook [1910] HCA 31; (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 important duties and responsibilities of a solicitor'.

517. It further referred to what Spigelman CJ said in New South Wales Bar Association v Cummins at 284; [19]-[20]

1. Honesty and integrity are important in many spheres and 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.
2. There are four interrelated interests involved. Clients must feel secure in confiding their secrets and entrusting their most personal affairs to lawyers. Fellow practitioners must be able to depend implicitly on the word and the behaviour of their colleagues. The judiciary must have confidence in those who appear before the courts. The public must have confidence in the legal profession by reason of the central role the profession plays in the administration of justice. Many aspects of the administration of justice depend on the trust by the judiciary and/or the public in the performance of professional obligations by professional people.

518. Here, the Legal Practitioner has, by the finding of the ACAT, forfeited the right by virtue of the third ground of the second complaint, to be held out as a legal practitioner. It had found

For an officer of the Court to attempt to dissuade, deter or intimidate a witness from giving or adhering to their evidence. In any proceedings, but especially disciplinary proceedings about that very solicitor, is conduct which of itself would justify a finding that a person is not fit and proper to remain on the roll. It is certainly professional misconduct.

519. If the conduct during the investigation is added, then the conclusion is clear.

520. So far as the first and second grounds were concerned, however, they also showed, even though characterised as unprofessional conduct, that the Legal Practitioner could not be trusted by his clients or the public, his professional association, the Courts or Tribunals before whom he appears or his fellow practitioners.

521. That requires removal from the Roll. In the event that this was not appropriate, it was certainly necessary for the Legal Practitioner's practising certificate to be cancelled.

522. The penalty decision of the ACAT was well open to it. There is nothing of substance in this ground of appeal.

523. The written submissions of the Legal Practitioner did address other grounds of appeal though they were not the subject of oral submissions.

524. Nevertheless, for the reasons referred to by Pullin JA in Southern Properties (WA) Pty Ltd v Executive Director of the Department of Conservation and Land Management [2012] WASCA 79; (2012) 42 WAR 287 at 348; [324], I must, at least briefly, address them.

525. Regrettably, a number of the written submissions were not cross-referenced to the grounds of appeal and it was difficult to see what error they were directed to addressing or asserting.

526. I will not refer to any written grounds already addressed above.

(a) Mr J's responsibility to Ms L (arguable part of the factual ground)

527. The argument here was, as noted by the Council's counsel, difficult to follow. It seemed to suggest that Mr J breached the instructions of Ms L. It is difficult to see how that could be proved, but, more significantly, it was entirely irrelevant.

528. The issue seemed to be the submission of the Legal Practitioner that, by 26 November 2007, Ms L was aware that the personal protection order was no longer in place. Even if that is so, that is largely irrelevant.

529. The Legal Practitioner is simply placing a different interpretation on the facts from that placed on them by the ACAT. He does not, however, as would be expected from a lawyer competently conducting an appeal, make any submissions, much less argument, as to why the interpretation placed on the material by the ACAT was not open to it.

530. For example, he submits that Mr J was not surprised when told on 22 January 2008 that there is no order but undertakings in place. Having read the transcript of that hearing, I came to the opposite conclusion. Even if that interpretation of the Legal Practitioner is, contrary to my impression, to be preferred, he has not explained why the conclusion the ACAT reached, consistent with that which I also reached, was not open and was an appellable error.

531. The Legal Practitioner seemed also to be challenging Ms L's veracity or credibility. The issues he raises, however, do not seem to me to require such a finding, but even if they did, that did not undermine the finding in relation to the first grounds of the second complaint, for there was reliable corroboration in addition to Ms L's evidence, as I have noted earlier.

532. So far as this is a ground of appeal, this cannot be upheld.

(b) The situation with Mr A (apparently part of the factual ground and question of law 12)

533. The Legal Practitioner makes much of the evidence that Mr A, son of Ms A and sometime partner of Ms L, may have given.

534. The Legal Practitioner asserts that Mr A "was a key witness for [the Legal Practitioner]". If that is so, it is odd that he was never called by the Legal Practitioner.

535. Counsel for the Legal Practitioner did initially tell the ACAT that Mr A, as well, it may be noted, as the Legal Practitioner, would be called. In fact, neither were called and no explanation was given to the ACAT as to why that was the case.

536. The Legal Practitioner then speculated that Ms L had contacted Mr A and caused him to disappear. There was no evidence to support such speculation; certainly there was evidence of contact, but none to suggest collusion between Ms L and Mr A. Given that Mr A's affidavit was unhelpful to, and in parts inconsistent with Ms L's case, collusion seems unlikely.

537. The Legal Practitioner then made a number of unsubstantiated assertions about the nature of the contact between Ms L and Mr A.

538. The Legal Practitioner submitted that he could not read Mr A's affidavit "as he [i.e. Mr A] has been interfered with by Ms [L] and cannot attend court". There is not a shred of evidence to support the allegation which, in any event, is not supported by the law. While ordinarily an affidavit may not be read unless the deponent is available for cross-examination, a court or tribunal can waive such a requirement. See Re O'Neil (deceased) [1972] VicRp 35; [1972] VR 327 at 333. Of course, the weight attributable to such an affidavit on which the deponent has not been cross-examined is thereby much diminished.

539. It was not appropriate for the Legal Practitioner to make unfounded allegations of improperly interfering with a witness against Ms L without the soundest of bases for doing so. Insofar as I may take account of the conduct of the Legal Practitioner on the hearing of the appeal, this confirms the correctness of the decision on penalty of the ACAT.

540. There is nothing in these submissions to show any error in the findings of the ACAT, or show any support for the appeal.

(c) The setting up of Ms A (arguably part of the factual ground)

541. The Legal Practitioner then made the also extraordinary submission that Ms A had been "set up". It seemed to rely on evidence not before the ACAT, but speculation by the Legal Practitioner as to the actions of various people whose relationships were merely asserted.

542. How this was admissible as relevant or credible was never explained. It certainly had no relevance to the appeal.

543. The Legal Practitioner also submitted that Ms A's evidence should not have been disregarded by the ACAT. He asserted, without any argument or any explained basis, that she was "a witness of truth".

544. The only basis on which the findings of the ACAT that her evidence could not be accepted could be overturned on appeal would be if that conclusion was glaringly improbable or contrary to compelling inferences as explained in Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 128; [28]- [29]. Not only was that not the position here, but the Legal Practitioner's counsel himself conceded that Ms A's evidence could not be accepted.

545. Again, the Legal Practitioner chose to make allegations of impropriety. He suggested that another lawyer in the firm of Mr C had, due to a "personal involvement in the matter had to cease acting", without a shred of evidence to support it.

546. The Legal Practitioner included in his submissions, information about matters in the Family Court that were irrelevant and highly inappropriate. It descended into recounting mere allegations of impropriety. He also asserted that Ms L failed to advise the court when she gained her final personal protection order in the absence of Ms A when, he asserted without any apparent basis that "she knew ... she ... had a duty to advise the court" where Ms A was. There was no evidence to show Ms L had or knew of any such duty.

547. Again, the making of such allegations in the course of the appeal only reinforces my view of the appropriateness of the penalty recommended by the ACAT.

548. It was not entirely clear what the Legal Practitioner's submission was as to those issues.

549. The Legal Practitioner asserted that the ACAT was in error in accepting that Mr J was under the erroneous impression that, as at 22 January 2008, the personal protection order of Ms L was still in place.

550. The challenge was on the basis that Mr J had signed the order of 26 November 2007 made by the Registrar of the Magistrates Court on which was noted the continuation of the undertaking Ms A had given to the Supreme Court.

551. This is, however, inconsistent with the clear inference to be drawn from Mr J's appearance on 22 January 2008 which is, in my view, only consistent with Mr J not knowing that there was an undertaking now in place instead of the personal protection order. There was no evidence from Mr J to the contrary even though he was cross-examined, but not on this issue.

552. The Legal Practitioner also again addressed the "standing instructions" issue, submitting that because the personal protection order was made ex parte "standing instructions", namely "to keep [the personal protection order] in place" could not be implemented. It is by no means clear that this is necessarily so, but clients are entitled to give instructions that it may be very difficult or even extremely unlikely to be able to implement. A lawyer's duty is to explain the problems but then to comply with the instructions to the maximum extent possible, consistent with the law and a lawyer's ethical obligations.

553. The Legal Practitioner addressed concerns Ms L had about the difficulty she had in having the personal protection order re-made because of the actions of the Legal Practitioner. He submitted that the result was inevitable. It is not at all clear that this was so. This, however, was irrelevant to the appeal. The breach is constituted by non-compliance with instructions not by any injury suffered by the client or not.

554. There is no material that could form the basis for any suggestion other than that the ACAT was aware of the true position.

556. The gravamen of the Legal Practitioner's submissions are almost impossible to discern; they are not articulated in a sensible or coherent way.

557. The Legal Practitioner accepted that the appropriate standard of proof is the civil standard of proof subject to the moderation to be applied following Briginshaw v Briginshaw. I have dealt with this above (at [266], [482]-[487]).

558. The ACAT made no error in its application of these principles.

559. The question of the consequences of the Legal Practitioner not giving evidence is also raised by these grounds. No submissions were made by the Legal Practitioner. It is, therefore, inappropriate that I make final findings.

560. I do note, however, that there is a long line of authority that holds, quite apart from the operation of the principles in Jones v Dunkel, that there is an obligation of a legal practitioner against whom a charge of professional misconduct (or unprofessional conduct) is shown to be found prima facie to meet the situation by denial or explanation on oath. See Re Veron; Ex parte Law Society of New South Wales at 141-2; Coe v New South Wales Bar Association at [21]; New South Wales Bar Association v Meakes [2006] NSWCA 340 at [70]- [78]. There is some question as to whether this is correct as a general proposition, expressed by Hodgson JA with whom Beazley and McColl JJA agreed in Council of the New South Wales Bar Association v Power [2008] NSWCA 135; (2008) 71 NSWLR 451 at 467; [26], though the Court there accepted that it was correct in those cases. That it may not be universally applicable, though applicable in some cases, is also to be drawn from Stirling v Legal Services Commissioner [2013] VSCA 374 at [117]- [119].

561. It seems to me to be well applicable here but I do not need to make any final finding.

562. The Legal Practitioner has provided no basis for upholding these grounds of appeal.

563. The submissions of the Legal Practitioner were, to say the least, difficult to follow.

564. They seemed to be a mixture of observation and assertion, directed particularly to the three stated grounds.

565. The submissions of the Council helpfully identified three issues. I shall briefly deal with each.

566. The first is the repeated assertion that the Council should have called certain witnesses, namely the woman friend of Ms L, to whom she was talking on the phone early on 14 September 2007, and Mr A.

567. The Council is not a prosecution agency in the strict sense. It may have some similar duties, but it appears from Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 347 at 407-9; [153]-[155], in which the distinction made to the effect in Adler v Australian Securities and Investments Commission [2009] FCA 619; (2003) 179 FCR 1 at 150-1; [678] was apparently approved, that its duties are different and should not be equated with those of a prosecutor.

568. I am not persuaded that there was a duty in the Council to call such witnesses.

569. The second was that the ACAT should have relied on an inference entitled by the principles in Jones v Dunkel to be drawn because of the failure of the Council to call these witnesses. Given that counsel for the Legal Practitioner expressly announced an intention to call Mr A and did not do so, it seems difficult to see how adverse inferences could be drawn against either party.

570. As to Ms L's friend, it seems to me that the Council could have called her, but the other evidence was so strong that any inference that might be drawn would be so weak that it would not undermine the ultimate finding by the ACAT. In any event, I do not consider that the ACAT erred in not drawing such an inference.

571. The third seems to be that no inference, entitled to be drawn by the principles in Jones v Dunkel, should be drawn against the Legal Practitioner because no prima facie case had been made out.

572. The Legal Practitioner referred to New South Wales Bar Association v Kalaf (Unreported, NSWCA, Kirby P, Samuels and Mahoney JJA, 11 October 1988), in which the court was not prepared to hold that a telephone conversation with Mr Kalaf, on which he based his defence of the disciplinary complaints, had been made or not when the solicitor to whom Mr Kalaf said it had been made was not called.

573. This, however, is an entirely different case and the issues quite different. As Mahoney JA explained.

But, where the issue is whether a party who has given evidence on oath has lied, where his evidence is not inherently unacceptable, and where a witness who could confirm or deny his evidence is not before the court and could have been, the court must consider carefully whether, in the relevant sense, it is satisfied that the deponent gave false evidence.

575. It also seems to me that the premise is not made out, for there was not merely a prima facie case, but a strong case made out against the Legal Practitioner.

576. The Legal Practitioner has provided no basis for upholding any of these grounds of appeal.

577. These grounds address the question of the test to be applied in determining whether the complaints involving Ms L and Ms A's lawyer amounted to professional misconduct.

578. The submissions were odd because, even though they were made by him, the submissions themselves answered these questions against the Legal Practitioner. For example, as to ground 9, the Legal Practitioner's submissions included the following:

The common law concept of 'professional misconduct' is relatively well settled. It derives ultimately from Allinson v General Council of Medical Education & Registration [1894] 1 QB 750. It has been applied to both barristers and solicitors. In its application to barristers it is formulated in the following terms: (as explained by Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203): professional misconduct on the part of a barrister consists in behaviour on the part of the barrister which would reasonably be regarded as disgraceful and dishonourable by his or her professional brethren of good repute and competency.

Although the 'Allinson' formulation is not intended to be exhaustive (a fact noted in Costello at 207), and it does not directly address lesser forms of misconduct (now possibly caught by the statutory definition of 'unsatisfactory professional conduct'), it tends to inform the approach of both the Supreme Court and Legal Services Tribunal to concepts of misconduct generally.

579. This was, of course, the formulation applied by the ACAT. That it could do so is clear from the statutory definition of "professional misconduct" set out in s 387 of the Legal Profession Act as follows

387 What is professional misconduct

(1) In this Act:

professional misconduct includes -

(a) unsatisfactory professional conduct of an Australian legal practitioner, if the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and

(b) conduct of an Australian legal practitioner whether happening in connection with the practice of law or happening otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the suitability matters that would be considered if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate.

580. As can be seen, the definition is an inclusive one; the common law is not excluded.

581. The submissions appeared to suggest that the ACAT could not find that the Legal Practitioner had lied and so the conduct was not so serious as to meet this test.

582. I do not need to rehearse the facts and evidence. The most serious matter was the threat to Mr C. There was no doubt, and indeed it appeared to be conceded by the Legal Practitioner's counsel at the sanction phase of the hearing before the ACAT, that to threaten a witness with a view to affecting his or her evidence in proceedings is professional misconduct.

583. I respectfully agree with the submissions of the Council that the Legal Practitioner was lucky to have been found only guilty of unprofessional conduct in his deliberate misrepresentations to the Law Society. They were, in any event, serious.

584. I have set out above (at [342]) the breaches of trust that these and the first and second grounds of the second complaint constituted.

585. There is no merit in these grounds of appeal.

586. The whole of the Legal Practitioner's submission on this ground was "Reliance is made on the Case of Smith". That was unhelpful, but was dismissive of, and discourteous to, this Court.

587. I have read carefully the reasons of the ACAT for refusing leave to re-open. They are cogent and, so far as I can discern, disclose no error. These are consistent with the approach of the High Court in Smith v New South Wales Bar Association.

589. Again the Legal Practitioner's submissions were undeveloped, dismissive and discourteous. They were in total "Reliance will be on the ACAT cases where all or part of the charges were not proven". No reference was made to specific cases and no particulars were given of what part of the complaints were not proven, if that is what was intended.

590. Section 433(1) of the Legal Profession Act provides

If the ACAT finds an Australian legal practitioner guilty of unsatisfactory professional conduct or professional misconduct, the ACAT must order the practitioner to pay costs (including costs of the relevant council and the complainant), unless the ACAT is satisfied that exceptional circumstances exist.

591. There were no exceptional circumstances here. The decision of the ACAT on costs was correct.

592. There is no merit in this ground of the appeal.

594. The proceedings should be remitted to the ACAT so that the orders the subject of the appeal can be effected.

I certify that the preceding five hundred and ninety-four (594) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Refshauge.