The Legal Practitioner v The Council of the Law Society of the ACT [2018] ACTCA 26

The Legal Practitioner v The Council of the Law Society of the ACT [2018] ACTCA 26 | Case summary | Zoe

In 2007 the appellant acted for two clients, referred to in the judgment of his Honour as SD and MG, in respect of the joint purchase by them of a residential property in the ACT. Settlement of this transaction took place on 9 November 2007. The appellant also acted for MG on a sale of a separate property in her name.
Although SD’s middle name was included in his description in the mortgage document, his middle name was not included in the transfer delivered to the mortgagee of MG and SD on settlement. It appears that, as a result, the transfer and security documentation could not be registered by the mortgagee with the ACT Land Titles Office. On 21 February 2008, the solicitors for the mortgagee wrote to the appellant’s firm, explaining that they were unable to register the mortgage because of the different descriptions of SD. They stated that an amended transfer incorporating SD’s middle name was required, and asked the appellant for the original contract of sale of the property.
There was controversy before ACAT as to whether the appellant received this letter of 21 February 2008. Certainly the appellant did not forward the contract of sale to the mortgagee’s solicitors in response to the letter. The mortgagee’s solicitors wrote to the appellant’s firm again on 21 April 2008, in similar terms to their earlier letter. The mortgagee’s solicitor further explained that the matter required urgent attention because MG and SD were in breach of the terms of their loan contract, and sought response from the appellant within seven days.
The appellant responded to that letter of 21 April 2008 by his own letter of 28 April 2008, but incorrectly sent the mortgagee’s solicitors a contract relating to another transaction involving the sale of another property of MG.
There was further controversy before ACAT as to whether there was contact between the appellant and the mortgagee’s solicitors between 28 April 2008 and early September 2008. The mortgagee’s solicitors alleged that they made telephone calls to the appellant during that time, which the appellant denied.
It came to the attention of MG and SD that there was a problem concerning the property when they received a rates notice on or about 7 July 2009 addressed to the previous owner. On 19 August 2008, they sent a fax to the appellant inquiring about the documentation relating to change of ownership. It appeared that the appellant was away at that time and did not receive the fax. MG and SD sent a further fax to the appellant on 25 August 2008.
On 5 September 2008, the mortgagee’s solicitor wrote to the appellant again, and requested that the correct contract be provided to them.
On 30 September 2008, SD emailed the appellant, referring to a conversation between them in which the appellant allegedly told SD that he had sent the relevant information to the Titles Office, and asked for a copy of this alleged communication. The practitioner emailed SD that he would attend to SD’s enquiry as soon as possible.
On 20 October 2008, the appellant emailed SD informing him that the appellant intended to go to his archives on 26 October 2008 to locate the file relating to the sale of the property to SD and MG. SD requested the appellant give the matter more urgency. The appellant informed SD that he had looked for the file, but was unable to locate it.
On 28 October 2008, following further communications between the appellant and SD, the appellant informed SD that the mortgagee’s solicitors were “attending to this matter” and that those solicitors had lodged the transfer of property.
On 30 October 2008, SD emailed the appellant stating that the mortgagee’s solicitors had not received the contract and that the title to the property was still not in their names. SD sent a further email to the appellant on 9 November 2008, stating that the title was still not in the names of himself and MG, and indicated that he intended to seek a refund of fees paid to the appellant.
Between 11 November 2008 and 21 November 2008, there was extensive correspondence between SD and the appellant, in which the appellant said, inter alia, that the mortgagee’s solicitors had not asked for a copy of the original contract of sale until 28 April 2008, that the original contract of sale was not necessary for the transfer of title, and that the mortgagee’s solicitors had not told him until September 2008 that he had provided them with the wrong contract of sale.
On 23 November 2008 the appellant wrote to SD, stating as follows:

The grounds of complaint ultimately considered by ACAT were as follows:
Failure to properly and promptly discharge the retainer from his clients Particulars: [The appellant] negligently: 1.1 failed to respond to the letter of 21 February 2008 from the mortgagee’s solicitors in circumstances where the matter required urgent attention 1.2 forwarded to the mortgagee’s solicitors the incorrect contract. 1.3 failed to produce the correct contract for a period of eight weeks from 5 September 2008 to 21 October 2008 in circumstances where the matter required urgent attention. 2. Engaging in misleading conduct Particulars 2.1 In a letter dated 20 November 2008 from [the appellant] to the complainants, [the appellant] deliberately or recklessly misrepresented to his client that: 2.1.1 he had not received a letter from the mortgagee’s solicitors dated 21 February 2008 in circumstances where a subsequent letter of 21 April 2008 refers to it; 2.1.2 the mortgagee’s solicitors did not provide a reason for the request which was made when the letter of 21 April 2008 clearly did 2.1.3 most of the delays in the matter were attributable to the solicitors for the mortgagee in circumstances where the respondent knew that this was not the case; and 2.2 The [appellant], by letters dated 21 November 2008 and 9 December 2008 to the complainants and his letter of 9 February 2009 to the [Law Society], deliberately or recklessly repeated the misrepresentation that most of the delays in the matter were attributable to the solicitors for the mortgagee. 3. Engaging in threatening and intimidating conduct Particulars 3.1 By his letter dated 12 December 2008 to the complainants [the appellant] engaged in conduct which was intended to intimidate his clients to dissuade them from lodging a complaint with the Law Society by threatening to contact the employer of one of the complainants.
The appellant appeared in person before ACAT, while the Law Society was represented by Counsel.
ACAT made a number of findings which reflected adversely on the appellant’s credibility. In particular, ACAT:

In relation to grounds of appeal (a)-(i), his Honour said:
For completeness, I will address each ground of appeal individually. (a) Error by finding that the practitioner had acted negligently by failing to respond to the 18 February 2008 letter. 126. There is, I believe, an error in this ground of appeal in that it refers to a letter of 18 February 2008. I assume that what the letter the practitioner intended to refer to was that of 21 February 2008. 127. For the reasons I have given at [88] – [93] above, this ground must fail. (b) Error by finding that the practitioner had acted negligently in forwarding the incorrect contract. 128. For the reasons I have given at [96] – [99] this ground must fail. (c) Error by finding that the practitioner had acted negligently in failing to produce the correct contract for a period of eight weeks from 5 September 2008 to 31 October 2008 in circumstances where the matter required urgent attention. 129. For the reasons I have given at [102] – [104] above, this ground must fail. (d) Error by finding that the practitioner both deliberately and recklessly misled his clients in the letter of 20 November 2008. 130. For the reasons I have given at [109] – [111] above, this ground must fail. (e) Error by finding that the practitioner allegedly reckless misleading of his clients in his letter dated 20 November 2008 amounted to professional misconduct. 131. For the reasons I have given at [109] – [111] above, this ground must fail. (f) Error by not finding that the mortgagee’s solicitors contributed to the delay. 132. In one sense, any delay occasioned by the mortgagee’s solicitors was irrelevant to the function performed by the ACAT. The ACAT was concerned with the practitioner’s conduct in the circumstances that existed at the time. It is very clear that the ACAT was aware of the initial delay between settlement and the mortgagee’s solicitor’s letter of 21 February 2008 and no criticism was levelled at the practitioner about that delay. The ACAT was also aware of the fact that there was a delay between the practitioner forwarding the wrong contract on or about 28 April 2008 at the mortgagee’s solicitors writing to the practitioner to this effect on 5 September 2008. There was evidence, which the practitioner disputed, that telephone calls were made to his firm by the mortgagee’s solicitors during this period, but no finding was made by the ACAT on that issue. The practitioner cannot, however, be absolved of all responsibility for the delay between 28 April and 5 September 2008 as it was his failure to forward the correct contract in the first place that ultimately led to that delay. 133. This ground of appeal must fail. (g) Error by finding that the practitioner had threatened and intimidated his clients in his letter dated 12 December 2008. 134. For the reasons I have given at [117] – [124] above, this ground must fail. (h) Error by finding that the practitioner’s clients suffered economic loss. 135. There is no merit to this ground of appeal. It is beyond argument that the practitioner’s clients suffered some loss as a result of the practitioner’s conduct. The practitioner himself recognised this in his correspondence with his clients. At the very least, they suffered loss by having to pay interest on overdue rates accounts. (i) Error by failing to properly consider the unsolicited offer of compensation made by the practitioner. 136. The ACAT made particular reference to the practitioner’s offer in its reasons regarding penalty on 31 August 2012 at [36]. It was required to do no more. This ground of appeal must fail. Grounds of appeal in this Court
The grounds of appeal before the Court of Appeal were those taken to have been filed in accordance with the orders of Justice Mossop on 12 July 2017. It is helpful to set them out in full:

…[the Court] fell into error by making the following findings and orders: Ground 1 – the finding of unsatisfactory professional conduct 1) Wrongfully held that the Tribunal does not need to substantiate the finding of negligence as a tortious liability. 2) Wrongfully held that the breach of s 386 of the Legal Profession Act 2006 (ACT) amounts to a finding of negligence on the appellant’s part; a finding that the Tribunal did not make Particular 1.2 3) By agreeing with the Tribunal, the Court failed to acknowledge that the appellant provided a positive explanation that the Purchase file had been erroneously stored in a different box. Conclusion – Ground 1 4) The Court erroneously agreed with the Tribunal that the cumulative effect of the mere lapses/innocent mistakes on the part of the appellant did not constitute mere negligence; but, they amount to unsatisfactory professional conduct. Ground 2 – Engaging in misleading conduct – Particulars 2.1.1 and 2.1.2 5) The Court failed to find that in Ground 2.1.1, the Tribunal erred in convicting the appellant for an offence that he did not commit. (i) Failed to hold that the 20 November 2008 letter did not mention the 21 February 2008 letter. 6) The Court erred in holding that just because it found the appellant guilty on Ground 1, it can also find the appellant guilty on Ground 2 (2.1.1 and 2.1.2) 7) The Court failed to find that the Tribunal made a wrongful assumption that the appellant’s omission of the 21 February 2008 letter in his 20 November 2008 letter was a deliberate misrepresentation on his part. 8) The Court erred in holding it was not necessary for the Tribunal to give reasons as to why the appellant was exonerated from Grounds 2.1.3 and 2.2 (i) The Court failed to find that as the Tribunal believed the appellant in Grounds 2.1.3 and 2.2, it should have believed the appellant in Grounds 2.1.1 and 2.1.2 9) Due to the language used (in paragraph 111 of the judgment), the Court seemed to have overruled the Tribunal’s finding of professional misconduct and found the appellant guilty of unsatisfactory professional conduct; it still erred in not acquitting the appellant totally from the two charges, with costs awarded to him. 10) The Court erred in not finding that the Tribunal erred in convicting the appellant not for the actual charge in Ground in [sic] 2.1.1; but for an entirely different charge (i) In Ground 2.1.1, the appellant’s alleged misrepresentation relates to his misstatement that ‘I did not receive the 21 February 2008 letter’, but, per paragraphs [92](b) and [94](c) of the Tribunal’s Reasons for Decision, the Tribunal found him guilty of ‘deliberate misrepresentations’, for making a different statement. 11) The Court failed to find that in convicting the appellant, the Tribunal wrongly used the words ‘deliberately’ and ‘recklessly’; they were not included in the Application, but only in the Tribunal’s findings. (i) The findings made under ‘deliberately’ for Ground 2.1.1 and ‘recklessly’ for Ground 2.1.2 could not have led to the same finding of professional misconduct; the two words have meanings of poles apart. Ground 3 – Engaging in threatening and intimidating conduct 12) The Court wrongfully agreed with the Tribunal’s wrongful finding that the appellant’s evidence that he wrote the letter to ‘teach his clients a lesson’ that ‘double-dipping’ is wrong, is not true. 13) The Court failed to find that the Respondent’s Application against the appellant alleged an ‘intention’ by the appellant to intimidate the client, but, the Tribunal found that the appellant had ‘intimidated’ the former client. 14) The Court erroneously held that the Tribunal was correct in finding the appellant guilty in engaging in conduct with the intention of intimidating the clients, but, the Tribunal’s finding against the appellant was threatening and intimidating the clients. 15) The Court failed to hold that the Tribunal’s belief that the appellant’s conduct amounted to ‘threatening’ because it caused the client embarrassment; and that the actual meaning of threatening conduct is quite different. 16) The Court erroneously held that the Tribunal did not make a finding that the appellant making an offer of compensation to the clients was improper, when the Tribunal did so. 17) The Court failed to find that the in [sic] the appellant’s affidavit he provided a number of genuine reasons that warranted him to write the 12 December 2008 letter (ab 365- 367); but, the Tribunal failed to consider them. 18) The Court was wrong in affirming the Tribunal’s finding that the appellant’s letter was of threatening and intimidatory nature, when there was nothing like that in it. 19) The Court erroneously held that the Tribunal took into account of the clients’ 9 November 2008 letter to the Respondent, but, the Tribunal in its Decision articulated that the appellant knew about the client’s intended complaint only on 20 November 2009. 20) The Court agreed with the Tribunal’s erroneous belief that the appellant had the intention to intimidate the clients. (i) What the appellant stated was that he did not have the actual intention to write to the employer, he was only considering whether or not he should write – to find out the truth. 21) The Court failed to find that although the client claimed $2,892.31 as compensation from the appellant they suffered a zero loss. 22) The Court failed to find that the Tribunal failed to acknowledge that the appellant as a legal practitioner was entitled to make enquiries that he legitimately had and that the appellant had the freedom to write. 23) The Court erred in holding that the Tribunal was correct in finding the appellant guilty of professional misconduct in relation to Ground 3. 24) The Court failed to acknowledge that the Tribunal imposed a very harsh sentence on the appellant. (i) It failed to give regard to the numerous excellent references that had been issued for the appellant and the appellant’s written and verbal submissions including his written submissions as to Penalty and Costs dated 6 August 2012, especially in pages 5-8 under para 19 Overall Sanctions, and again in pages 10-12 (these have not been considered) 25) The Court ought to have held that the Tribunal should have reduced the costs order made against the appellant, and given him a discount in sentencing: (i) As Grounds 2.1.3 and 2.2 were dismissed by the Tribunal (about 40% of the time was spent on prosecuting those two Grounds). (ii) Owing to the appellant’s exceptional good deed of presenting to the Tribunal the 28 April 2008 letter, which was ‘incriminating evidence’ against him, as soon as he found it (on 1 May 2010). 26) The Court failed to give regard to the fact that the appellant did satisfy the Tijong and Fox v Percy tests.

The judgment the subject of appeal to this Court was itself the outcome of appeals from ACAT to the Supreme Court in the original jurisdiction of the Supreme Court. Recently, in another case involving a legal practitioner challenging adverse orders of ACAT and the Supreme Court under the Act, the Court of Appeal in Legal Practitioner v Council of the Law Society of the ACT [2017] ACTCA 6 observed:
As a general statement, the Court observes that where an appeal is in essence an appeal from an appeal (in this case an appeal from the decision of Refshauge J who heard an appeal from a decision of ACAT) the appellant is confined to identifying error in the decision in the court below, and is not permitted to mount a fresh attack on the decision of the original tribunal (ACAT). This is not to say of course that errors in the court below dealing with the earlier decision cannot be the subject of complaint. The errors however must be errors of the court below and not be the subject of a renewed assault on the decision of the original court or tribunal.
This observation is equally applicable to this appeal before the Court and we respectfully adopt it.
Not surprisingly, the Law Society was again represented by Counsel in this appeal. However unlike before his Honour where the appellant appeared in person, this Court had the benefit of legal argument presented by Counsel on the appellant’s behalf.
All grounds of appeal were pressed. Extensive written submissions were prepared and filed by the appellant personally, and written submissions were filed by the respondent. As a threshold issue, however, we note three issues in this appeal that are of concern.
First, in his written submissions the appellant did not address the grounds of appeal before this Court. Rather (as was apparently the case before his Honour) he has – again – addressed the grounds of the application before ACAT. While we understand the appellant’s case insofar as he alleges errors made by ACAT, it would have been useful, and appropriate, for the appellant to address his grounds of appeal before this Court (and, in particular, why his Honour erred). As it is, the correlation between the grounds of appeal and the appellant’s written submissions is not obvious. Indeed, the grounds of appeal are drafted like additional submissions to the Court.
Second, many of the grounds of appeal do little more than cavil with the findings of the primary Judge (and, to the extent that his Honour accepted the findings of ACAT – which was almost entirely – the findings of ACAT). The Court has, on numerous occasions, sought to remind practitioners of the shallowness of technique in attempting to persuade appellate Courts of error by a scatter-gun attack on each finding of the primary Judge (or tribunal). Such notices of appeal are not only improperly drafted but betray a laziness of approach. As a general proposition, we consider it very unlikely that the primary Judge could have made in excess of thirty errors in his decision, as alleged by the appellant in the notice of appeal.
Third, and in any event, by cavilling with the factual findings of the trial Judge in this appeal the appellant immediately faces the limitations on the powers of appellate Courts to interfere with primary factual findings, identified in such cases as Fox v Percy [2003] HCA 22; 214 CLR 118 at [25] et seq. More recently French CJ, Bell, Keane, Nettle and Gordon JJ in Robinson Helicopter Company Inc v McDermott [2016] HCA 22; (2016) 331 ALR 550 explained:
The fact that the judge and the majority of the Court of Appeal came to different conclusions is in itself unremarkable. A court of appeal conducting an appeal by way of rehearing is bound to conduct a “real review” of the evidence given at first instance and of the judge’s reasons for judgment to determine whether the judge has erred in fact or law. If the court of appeal concludes that the judge has erred in fact, it is required to make its own findings of fact and to formulate its own reasoning based on those findings. But a court of appeal should not interfere with a judge’s findings of fact unless they are demonstrated to be wrong by “incontrovertible facts or uncontested testimony”, or they are “glaringly improbable” or “contrary to compelling inferences”. In this case, they were not. The judge’s findings of fact accorded to the weight of lay and expert evidence and to the range of permissible inferences. The majority of the Court of Appeal should not have overturned them. (Emphasis added.)
The hurdle the appellant faces, as set by Fox v Percy and reiterated in Robinson Helicopter Company, is not low.
Helpfully, at the hearing of the appeal Mr O’Keefe for the appellant focused on issues – and related grounds of appeal – which he described as “critical” (transcript page 10 line 41). These issues can be summarised as follows:

Section 393 provides that a complaint may be made in respect of conduct to which Chapter 4 of the Act applies. Key definitions in this Chapter are set out in s 383, and refer to “unsatisfactory professional conduct” (which is defined in s 386) and the more serious “professional misconduct” (s 387).
Importantly, s 389 of the Act provides that certain conduct is capable of being either unsatisfactory professional conduct or professional conduct. Section 389 provides:
Conduct capable of being unsatisfactory professional conduct or professional misconduct Without limiting section 386 or section 387, the following conduct can be unsatisfactory professional conduct or professional misconduct: (a) conduct consisting of a contravention of this Act; Note This Act is defined in the dictionary. (b) charging of excessive legal costs in connection with the practice of law; (c) conduct in relation to which there is a conviction for— (i) a serious offence; or (ii) a tax offence; or (iii) an offence involving dishonesty; (d) conduct of an Australian legal practitioner as or in becoming an insolvent under administration; (e) conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act; (f) conduct of an Australian legal practitioner in failing to comply with an order of the ACAT made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay all or part of a fine imposed under this Act or a corresponding law); (g) conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law. Note Various provisions of this Act identify particular conduct as conduct that can be unsatisfactory professional conduct or professional misconduct (see eg s 138 (1) (Obligations of legal practitioner partner relating to misconduct— multidisciplinary partnerships))
“Unsatisfactory professional conduct” includes conduct defined by s 386. Similarly, “professional misconduct” includes conduct defined by s 387. Sections 386 and 387 are as follows:
What is unsatisfactory professional conduct? In this Act: Unsatisfactory professional conduct includes conduct of an Australian legal practitioner happening in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. Note See also s 389 (Conduct capable of being unsatisfactory professional conduct or professional misconduct). 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. Note See also s 389. …
“Suitability matters” to which s 387(2) refers are set out in s 11 of the Act and include such matters as insolvency, conviction of offences, removal of the practitioner’s name from the local or other rolls, and a catchall provision relating to whether the person is currently unable to satisfactorily carry out the inherent requirements of practice.
Identifying conduct of a practitioner as “professional misconduct” is not limited to assessment of that conduct in terms of s 387, in circumstances where s 387 does not define “professional misconduct” exhaustively. At common law it means conduct which would “reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency” (Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 761, applied in many Australia in cases including Prothonotary of the Supreme Court of NSW v Costello [1984] 3 NSWLR 201 at 203; Fidock v Legal Profession Complaints Committee [2013] WASCA 108 at [35]- [36]; Clough v Queensland Law Society Inc [2000] QCA 254 at [87]). The inherent jurisdiction and powers of the Supreme Court of the Australian Capital Territory to control and discipline legal practitioners in circumstances where the conduct of practitioners violates or substantially falls short of the standard of professional conduct observed or approved by members of the profession of good repute and competency was recognised in Ex parte Attorney-General for the Commonwealth; Re a Barrister and Solicitor (1972) 20 FLR 234 at 242-243, 245 and Chamberlain v The Law Society of the Australian Capital Territory (1992) 43 FCR 148 at 153. It is preserved by s 462 of the Act: Law Society of the ACT v Stubbs [2017] ACTSCFC 3 at [29]. (There is no question here, however, that orders of the primary Judge were not referable to this inherent jurisdiction).
The specific rules the Law Society alleged the appellant contravened were rr 1.1, 1.2 and 36.1 of the Rules which provided:
Acceptance of Retainer – (Instructions to Act or Provide a Legal Service) 1.1 A practitioner should treat his or her client fairly and in good faith, giving due regard to the client’s position of dependence upon the practitioner, his or her special training and experience and the high degree of trust which a client is entitled to place in a practitioner. 1.2 A practitioner must act honestly, fairly, and with competence and diligence in the service of a client, and should accept instructions, and a retainer to act for a client, only when the practitioner can reasonably expect to serve the client in that manner and attend to the work required with reasonable promptness. … 36. Conduct of Practice 36.1 A practitioner should ensure that his or her practice is efficiently and properly administered and should take all reasonable and practicable steps to ensure that professional engagements are fulfilled or that early notice is given if they cannot be fulfilled.
In considering the issue raised by the appellant it is necessary to have regard to the decisions of ACAT and his Honour.
ACAT at [36]-[39] referred to the respective definitions of unsatisfactory professional conduct and professional misconduct, and ss 386 and 387. At [48] it noted the Law Society’s claim of professional misconduct in respect of grounds 2 and 3 before ACAT. ACAT observed:
In relation to Ground 2, they suggested that particulars 2.1.1 and 2.1.2 should be considered together, and particulars 2.1.3 and 2.2 considered together. It suggested that when considered together, whether the respondent’s conduct was found to have been reckless or deliberate, the conduct was very serious and should be treated as professional misconduct. 51. In relation to Ground 3, the applicant submits that at the time that he wrote the letter of 12 December 2012, the respondent had no intention of writing to [SD]’s employer and that he told an untruth in order to convince or coerce the complainants to avoid a complaint to the Law Society. 52. At paragraph 82 of the submissions, the applicant submits as follows: To make such a threat to complainants in order to deter them from making a complaint to the Law Society is very serious. It threatens the integrity of the complaints process, brings the profession into disrepute, and is certainly professional misconduct.
ACAT found that particulars 2.1.3 and 2.2 were not made out. It found otherwise in relation to particulars 2.1.1 and 2.1.2, which provided:
Engaging in misleading conduct 2.1 In a letter dated 20 November 2008 from [the appellant] to the complainants, [the appellant] deliberately or recklessly misrepresented to his client that: 2.1. He had not received a letter from the mortgagee’s solicitors dated 21 February 2008 in circumstances where a subsequent letter of 21 April 2008 refers to it; 2.1.2 The mortgagee’s solicitors did not provide a reason for the request which was made when the letter of 21 April 2008 clearly did
Dealing with ground 2 before it, at [94] ACAT observed:
The Tribunal’s findings in relation to the letter of 21 February 2008 are set out in paragraph 65. Against the background of those findings, the first and second representations must be regarded as incorrect and as involving, by necessary inference, misrepresentations concerning the letter of 21 February 2008. Given the Tribunal’s findings, they must be taken to be deliberate misrepresentations. 95. It is clear that it is the letter of 21 April 2008 that the respondent is referring to in his letter of 20 November 2008. The letter of 21 April 2008 contains, on its face, a reason for requesting the contract. It is alleged by the applicant that the respondent’s incorrect assertion that he was given no reason for the request, was either deliberate or reckless. It is a very obvious error for the respondent to have made. The content of the letter of 20 November 2008 and what is known of surrounding events supports the inference that the mis-description was not just careless, but was made with an absence of any care as to the accuracy of the statement. 96. Indeed, in his letter to the complainants of 21 November 2008, the respondent indicated that he had no record of receiving, or recollection of seeing, the letter of 21 April 2012. There was no basis then for him to make any assertion on 20 November about whether he had been given a reason for the request for the contract. On his own case, he had not read the latter and could not recall it. It is open to infer that his assertion was something that was simply made up at the time. At the very least, it was a reckless misrepresentation. 97. The Tribunal finds that particulars 2.1.1 and 2.1.2 are made out.
ACAT found that particular 2.1.3 and ground 2.2 were not substantiated. It generally observed:
The application in this matter does not include any general allegation of unsatisfactory professional conduct or professional misconduct. There is no allegation that the respondent’s conduct generally was such that he failed to act in a way that accords with a reasonable standard of competence or diligence. The application is narrowly focussed on particulars that relate to specific matters. It is not open to the Tribunal to go beyond the grounds and particulars relied on by the applicant to make findings against the respondent in respect of matters that were not raised in the application. While section 421 of the LP Act does allow the Tribunal the power to amend an application on its own motion, that is not a power that is easy to exercise before the evidence is heard and submissions made.
Summarising its findings in relation to ground 2, ACAT said:
Particulars 2.1.1 and 2.1.2 are established and Ground 2 supported, notwithstanding that the applicant has not discharged its onus in relation to particulars 2.1.3 and 2.2. 116. The conduct of the respondent contravenes rules 1.1 and 1.2. Findings that the respondent has made both deliberate and reckless misrepresentations to his clients have been made. The applicant submits that this should lead the Tribunal to characterise the conduct as professional misconduct. This is not conduct that is about the standard of the practitioner’s work, his diligence or his competence, but about his candour when dealing with his clients. The Tribunal accepts, following the authorities referred to in Riley Solicitors Manual [35,040.5] that this is appropriately characterised as professional misconduct.
It is helpful to note at this point that, set out in full, [35,040.5] of G dal Pont Solicitors Manual (Lexis Nexis, 2017) to which ACAT referred was as follows:

[35,040] False or misleading statements to persons who rely on them [35,040.5] False or misleading statements to client or other lawyers The making of knowingly or recklessly false statements, whether written or oral, by a lawyer to third parties, such as other lawyers or even to a client, is prima facie evidence of misconduct. This is because a lawyer’s candour in dealings with his or her own client is essential to building and maintaining a trusting relationship, and likewise lawyers rely heavily on the ability to trust one anothers’ word (see [28,005]). Findings of misconduct, for example, were made in Mellifont v Queensland Law Society Inc,[[1981] Qd R 17 at 29 per Andrews J] where the solicitor sought to deceive his clients, another solicitor and the Minister for Justice in order to cover his own misconduct, and in Re Wheeler [[1992] 2 Qd R 690] involving a solicitor who knowingly made a false statement to another solicitor on inquiry as to the whereabouts of money paid to the first solicitor by the latter’s client. In the former case the solicitor was struck off, and in the latter the solicitor was suspended for three years. Similarly, in Law Society of New South Wales v MacKenzie [[2003] NSWADT 92] the Administrative Decisions Tribunal included among its findings of professional misconduct a finding in respect of a false statement made by the respondent solicitor to another solicitor. The solicitor had stated, in a letter to the solicitor acting for the plaintiff in local court proceedings, that she had entered a defence when she had not. The tribunal said that the evidence established that the statement was false and “[i]t was clearly calculated to mislead”, declaring that: The proposition that, knowingly, and in some cases negligently, to mislead another legal practitioner with respect to a matter significantly relevant to professional business is serious professional misconduct needs no judicial authority. Such conduct undermines one of the foundations of trust that the community has to be able to place in legal practitioners, namely, that what one practitioner says to another in the furtherance of practice can be accepted without question as having been made both truthfully and carefully. The tribunal added that the duty it had described was analogous to a lawyer’s duty to avoid misleading a court (see [22,025]), and the duty to adhere to an undertaking given to another lawyer in the course of practice: see [28,030]. This led the tribunal to order the solicitor’s name to be removed from the roll. (Footnotes omitted.)

Returning now to the issue raised by the appellant that, in finding that the appellant had engaged in professional misconduct, neither ACAT nor his Honour turned their minds to the tests in s 387 of the Act and we make the following observations.
First, as we have already observed, s 387(1)(a) and (b) does not set out an exhaustive definition of professional misconduct for the purposes of the Act. Section 387(1) clearly states that “professional misconduct” includes the conduct described in subss (a) and (b). To that extent we reject the appellant’s submission that ACAT and his Honour could only find that his conduct was “professional misconduct” if it fell within the parameters of s 387(1)(a) and (b).
Second, ACAT found that conduct of the appellant contravened rr 1.1, 1.2 and 36.1 of the Rules. Rules 1.1, 1.2 and 36.1 impose requirements on practitioners to treat clients fairly and in good faith (1.1), to act honestly and with competence and diligence (1.2) and to ensure that the practice is efficiently and promptly administered (36.1). By operation of s 104(1) of the Legislation Act 2001 (ACT) a reference (either generally or specifically) to a law, includes a reference to the statutory instruments made or in force under the law. It follows that in contravening Rules which were made pursuant to the Act, the appellant had contravened the Act. In contravening the Act his conduct could have been either unsatisfactory professional conduct or professional misconduct in light of s 389 of the Act. Indeed the appellant conceded that contravention of rr 1.1 and 1.2 could constitute unsatisfactory professional conduct within the meaning of s 386 (transcript page 12 lines 17-21, 39).
Third, conduct which would otherwise be “unsatisfactory professional conduct” is elevated by subs (a) to professional misconduct where it involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence. Although the language of ACAT in its decision was not directly referable to subs (a), it found that the appellant’s conduct was deliberate, reckless, and constituted professional misconduct. It also specifically adverted to authorities in the Solicitor’s Manual where Courts had found that practitioners had engaged in professional misconduct where they had made misleading statements to clients and other practitioners.
It is clear that ACAT considered the appellant’s conduct serious, and to that extent elevated from the level of “unsatisfactory professional conduct” to “professional misconduct”. We are satisfied that the findings of ACAT were consistent with a conclusion that the appellant’s conduct demonstrated a substantial failure to maintain a reasonable standard of competence and diligence, as contemplated by s 387(1)(a). That ACAT did not specifically refer to s 387(1)(a) is not critical. We note the general approach which Courts at the highest level have ruled should be taken in examining decisions of administrative tribunals. It is necessary to recognise the reality that the reasons of an administrative decision-maker are meant to inform, and not to be scrutinised upon over-zealous judicial review by seeking to discern whether some inadequacy may be gleaned from the way in which the reasons are expressed: Brennan CJ, Toohey, McHugh and Gummow JJ in Minister for Immigration & Ethnic Affairs v Wu Shan Liang [1996] HCA 6; (1996) 185 CLR 259 at 272, see also for example Plaintiff M64/2015 v Minister for Immigration and Border Protection [2015] HCA 64 at [59], Sleiman v Murray [2010] ACTCA 2 at [32].
Fourth, although ACAT did not specifically refer to s 387(1)(a) and (b) in finding that the appellant’s conduct constituted “professional misconduct”, as we have already noted the definition of “professional misconduct” in s 387 is not exhaustive. ACAT concluded that the appellant’s conduct constituted “professional misconduct” in circumstances where he had made deliberate and reckless misrepresentations to his clients and other practitioners, and had threatened his clients. ACAT found that the appellant’s actions were serious, and constituted professional misconduct. In so doing, ACAT had regard to several authorities on point in the Solicitor’s Manual, namely Mellifont v Queensland Law Society Inc [1981] Qd R 17 (Mellifont) at 29, Re Wheeler [1992] 2 Qd R 690 (Wheeler) and Law Society of New South Wales v MacKenzie [2003] NSWADT 92 (MacKenzie). In the context of findings of professional misconduct, Andrews J said In Mellifont at 29 that

The common law test set out in Allinson, namely the concept of “professional misconduct” as being that which would reasonably be regarded as disgraceful and dishonourable by professional brethren of good repute and competency, is not excluded by s 387 of the Act. It is open to ACAT to make findings of professional misconduct notwithstanding that the conduct may not fall within the parameters of s 387(1)(a) and (b), if ACAT is satisfied that the conduct of the practitioner would reasonably be regarded as disgraceful and dishonourable by lawyers of good repute and competency. Indeed, to the extent that ACAT was satisfied that the appellant had deliberately sought to threaten or intimidate his clients it would be curious if such conduct could not fall within the definition of “professional misconduct” (see, by analogy, the decision of the Court of Appeal of Queensland in Jensen v Legal Services Commissioner [2017] QCA 189 at [148]).
Fifth, to the extent that the appellant complains about the findings of the primary Judge, it is reasonable to have regard to the manner in which the proceedings were conducted at first instance. It does not appear that, before his Honour, the appellant raised the alleged failure of ACAT to specifically advert to the terms of s 387(1)(a) and (b) as a basis of impugning ACAT’s findings of professional misconduct. As we have already observed, the notice of appeal from the decision of ACAT went through multiple iterations before his Honour heard argument.
Further, before his Honour the appellant primarily confined his submissions to cavilling with factual findings of ACAT, and disputing his legal relationship with the clients at particular times. In this respect it is not surprising that his Honour did not address the more fundamental issue whether ACAT – and his Honour – were required to assess the appellant’s conduct for the purposes of s 387 by reference to the terms of subss (a) and (b).
Finally, in the primary decision his Honour examined – and accepted – the reasoning and findings of ACAT. As a general proposition, to the extent that his Honour agreed he was entitled to do so. We are satisfied that his Honour, to the extent that he was able in the difficult circumstances of this case and in light of the manner in which it was conducted before him by the appellant, gave proper consideration to the facts of the case and the arguments before the Court, and made his own findings accordingly.
We do not consider this issue, as presented by the appellant, substantiated.

The appellant claimed that his Honour erred in finding that “the Tribunal did not need to substantiate the finding of negligence as a tortious liability.” In written submissions the appellant submitted that he did not owe a duty of care to his former clients after settlement, when the mortgagee’s solicitor “took over that responsibility”.
This issue was addressed by his Honour at [90] as follows:
The practitioner complained that the ACAT did not set out “how it found negligence – a duty existed, it was breached, standard of care, causation and damage; it failed to do this crucial task”. If the proceedings in the ACAT had alleged that the practitioner had committed the tort of negligence, then his complaint may have had some merit. The allegation of negligence in the particulars to the grounds alleged in the Law Society’s Application for Disciplinary Action is not an allegation that the practitioner is tortiously liable to the Law Society, or his clients, in negligence. The term, instead, conveniently, picks up and describes the requirement found in the Legal Profession Act 2006 (ACT) that the practitioner’s conduct the subject of the proceedings be measured against a “standard of competence and diligence that a member of the public is entitled to expect of a competent Australian legal practitioner”: s 386. 91. The use of the word “negligently” in a particular also conveniently distinguished the allegation from that where it is alleged that the conduct is a deliberate and intentional breach of professional standards, such as misappropriation of trust monies. It described a mental state on the part of the practitioner less egregious than a deliberate and intentional breach, and based upon a lack of reasonable care and attention measured against the standard to be expected of a competent Australian legal practitioner. 92. In any event, the practitioner himself accepted that he had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position vis a vis the mortgagee. There can be no real argument that, if the practitioner was aware of the problem with registration set out in the mortgagee’s solicitor’s letter of 21 February 2008, then this failure to act until 28 April 2008 was a breach of his duty to his clients, and was conduct that fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. The question, therefore, which the ACAT had to resolve, was whether the practitioner had received and read the letter of 21 February 2008. The ACAT determined this issue by a conventional process, but, unfortunately, not in the practitioner’s favour.
In our view, his Honour has stated both the relevant facts and legal principles correctly. ACAT did not base its findings on tortious liability as claimed by the appellant. However in any event, as his Honour correctly identified, the appellant had an ongoing duty to his clients to ensure that the title to the property was registered in their names, and to protect their position. That duty did not end at settlement as the appellant appeared to believe.
The appellant has identified no error in his Honour’s reasoning.
Ground 1 has no merit.

We understand from submissions of Mr O’Keefe at the hearing at the appellant sought to press ground 3 (12)-(26) in the context of his articulation of the second issue, which we have already addressed and rejected. For completeness, however, we make the following observations.
Ground 3 (12) contains several double negatives and is difficult to follow. Some light is cast on it by the appellant’s submissions. The appellant appears to cavil, in detail, with the factual finding of the primary Judge, who in turn agreed with factual finding of ACAT that the appellant threatened and intimidated his former clients by his letter of 12 December 2008. We are not persuaded that these findings were rebutted by incontrovertible facts or uncontested testimony, or they were glaringly improbable or contrary to compelling inferences (as explained in Fox v Percy). Certainly in his submissions the appellant has not pointed to any such facts or testimony, or inconsistencies in his Honour’s judgment which indicate error. This ground of appeal lacks merit.
In substance, grounds 3 (13), (14), (15), (17), (18), (20), (22) and (23) are reiterations of ground 3 (12), and similarly lack merit.
In ground 3 (16) the appellant appeared to repeat an argument which was before his Honour, and to which his Honour referred at [113]. The appellant has not identified where in the primary decision his Honour “erroneously held that the Tribunal did not make a finding that the appellant making an offer of compensation to the clients was improper, when the Tribunal did so.” Examination of ACAT’s decision does not reveal ACAT finding alleged by the appellant in ground 3 (16) – at most ACAT noted that the timing of the letters making unsolicited offers of compensation invited the inference that it was the mention of complaint to the Law Society which changed the respondent’s approach (at [131] of the ACAT decision). Finally, it is difficult to identify why this argument is relevant to the decision of ACAT or the appellant’s application to set that decision aside.
Ground 3 (19) is, with respect, vague and meaningless.
In ground 3 (21) the appellant claimed that his clients suffered “zero loss”, and submitted that this was conceded by one of the clients under cross-examination. His Honour at [135] found that the clients suffered loss as a result of the appellant’s conduct (including payment of interest on overdue rates accounts), and that the appellant recognised this in his correspondence with the clients. The appellant has not pointed to any glaring improbabilities in his Honour’s judgment, and further has not indicated where in cross examination the client accepted the absence of loss. This ground of appeal lacks merit.
In grounds 3 (24) and (25) the appellant cavils with the approach of ACAT to the assessment of penalty. Issues canvassed in these grounds of appeal were not raised before his Honour. The appellant can point to no error in the decision of his Honour so far as concerns these grounds of appeal.
In ground 3 (26) the appellant claims that “the Court failed to give regard to the fact that the appellant did satisfy the Tijong and Fox v Percy tests”. It is difficult to know what this ground of appeal means. Unfortunately the appellant’s written submissions do not offer assistance in such understanding. His Honour referred to Fox v Percy to explain the nature of the appellate process before the Court and the approach he proposed to take to overturning findings of fact by ACAT. We do not understand that the appellant cavils with this explanation. Beyond that, however, this ground of appeal is vague to the point of meaningless, and lacks merit. Conclusion
In our view, the appeal has no merit and should be dismissed with costs.

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