XY v The Council of the Law Society of New South Wales

Supreme Court of NSW|2021-09-30|Before: Adamson J

Solicitors: Bartier Perry Lawyers (Plaintiff) The Law Society of New South Wales (Defendant) File Number(s): 2021/207126

Introduction

On 15 July 2021, The Council of the Law Society of New South Wales (the defendant) resolved to suspend the practising certificate of XY (the plaintiff) (the suspension decision) and appoint a manager to the plaintiff's legal practice (the plaintiff's firm) (the manager decision). The plaintiff was served with a notice to that effect on 19 July 2021.
By summons filed on 20 July 2021, the plaintiff seeks to have the suspension decision and the manager decision set aside and an order that the defendant be directed to reinstate the plaintiff's practising certificate. By notice of motion filed on 21 July 2021, the plaintiff seeks a stay of the suspension and manager decisions pending determination of the summons.
The Court's jurisdiction to grant a stay in these circumstances is not in issue: see Veghelyi v Council of the Law Society of New South Wales (1989) 17 NSWLR 669 (which concerned the Legal Profession Act 1987 (NSW) (the 1987 Act), a statutory predecessor of the Legal Profession Uniform Law (NSW) (the Uniform Law)). All references to legislative provisions in these reasons are, unless otherwise stated, to be read as references to the Uniform Law.

Relevant statutory provisions

Section 51(1)(a) provides that it is a statutory condition of an Australian practising certificate that the holder must notify the designated local regulatory authority (in this case, the defendant) in writing within seven days that the holder has been charged with a serious offence. Under s 82(2), the defendant may vary or suspend a practising certificate: "… (if it considers it appropriate to do so having regard to the seriousness of the offence concerned and to the public interest) on the ground that the holder has been charged with a serious offence … and - (a) the charge has not been determined …"
Section 77(1) empowers the defendant to suspend a practising certificate immediately if it is considering whether to start, continue or complete action under Part 3.5 if it believes "it is necessary in the public interest to vary or suspend the certificate immediately."
If the defendant considers that a certificate should be varied, suspended or cancelled on a ground specified under s 82, it must give the holder notice in writing and invite the practitioner to respond as to why the proposed action should not be taken: s 83. Once the defendant has given notice and the period for response has elapsed, it may, after considering the holder's response, take the proposed action or less onerous action that it considers appropriate. Pursuant to s 100(1), the holder of an Australian practising certificate may appeal to this Court against a decision by the defendant to vary, suspend or cancel a practising certificate. The appeal is a hearing on the merits and fresh or additional evidence may be given: ss 100(2) and (6). Except to the extent to which this Court may order, the lodgement of an appeal does not stay the effect of the variation, suspension or cancellation: s 100(4).
In circumstances provided for by s 326, the defendant may appoint a manager to a law practice: ss 327(2)(b) and 334.
The current provisions are to be compared with those under the Legal Profession Act 2004 (NSW) (the 2004 Act). Under the 2004 Act, practitioners who had been charged with serious offences were obliged to notify the relevant disciplinary authority within seven days (s 55 for local lawyers and s 226 for foreign lawyers). The disciplinary authority, such as the defendant, could then apply to the New South Wales Civil and Administrative Tribunal (NCAT) to vary the conditions of the accused's practising certificate (s 51 for local lawyers and s 225 for foreign lawyers).
It has always been open to a disciplinary authority to take action for unsatisfactory professional conduct or professional misconduct by a practitioner whether or not any charge in relation to that conduct has been laid or determined: Council of the New South Wales Bar Association v Einfeld [2009] NSWCA 255; (2009) 258 ALR 768 (Einfeld). In Einfeld, several counts on an indictment which charged the accused with attempting to pervert the course of justice were quashed on the basis that the alleged conduct had occurred prior to the commencement of "the course of justice": Einfeld v R (2008) 71 NSWLR 119; [2008] NSWCCA 215. The accused subsequently pleaded guilty to the remaining counts and was sentenced: R v Einfeld [2009] NSWSC 119. The NSW Bar Association relied on the conduct which had been the subject of the counts to which the practitioner had pleaded guilty, as well as the underlying conduct for the counts which had been quashed in support of its application that the practitioner's name be removed from the roll. The Court of Appeal in Einfeld held that this was an appropriate course: Einfeld at [12]-[18] (Allsop P, Giles and Hodgson JJA).

The facts

Before turning to the question whether a stay ought be granted, it is convenient to set out the facts, as they appear from the documents tendered on the stay application. The recitation of facts is not intended to amount to findings of fact as, for present purposes, none of the facts has been contested. Further, the facts relating to the charges (referred to below) are derived from the Statement of Police Facts (the Police Facts). As the police brief of evidence has not yet been served, the evidentiary basis for the Police Facts is not yet clear, although it can reasonably be inferred that statements have been obtained from Hanadi Rafraf and Hugh Macken (both referred to in further detail below) and that copies of the two certificates (one genuine, the other doctored) are in the possession of police.

The allegations relating to the Certificate of Damages Assessment

In about November 2014, Ms Rafraf retained the plaintiff to act on her behalf in a claim for damages for personal injuries she sustained in a motor vehicle accident. Suncorp/GIO was the compulsory third party insurer of the owner/driver of the vehicle at fault. On 5 September 2019, Ms Rafraf's claim was assessed by Mr Macken, a claims assessor appointed pursuant to the Motor Accidents Compensation Act 1999 (NSW) (the MAC Act). On 26 September 2019, Mr Macken issued a certificate pursuant to s 94(4) of the MAC Act, in which he certified his assessment of Ms Rafraf's damages at $403,560.55, from which an amount was to be deducted pursuant to s 130 of the MAC Act. Costs of $49,911.86, including GST, were also payable. Mr Macken posted the certificate to the plaintiff at the address of her firm in Bankstown.
On 14 October 2019, the plaintiff contacted Ms Rafraf to tell her that the result of the assessment was that she was entitled to the sum of $320,560.55, inclusive of costs. Later that day, Ms Rafraf went to the plaintiff's office where the plaintiff handed to her a certificate dated 10 October 2019, which appeared to have been signed by Mr Macken and which indicated that she was entitled to the sum of $320,560.55, inclusive of costs, together with a document which purported to be the statement of reasons for decision. On the basis of this certificate, Ms Rafraf signed an authority to Suncorp/GIO to release the funds to the plaintiff. On 25 October 2019, Ms Rafraf contacted the plaintiff and asked her about payment. The plaintiff told her that the payment had not yet been received.
On 1 November 2019, Centrelink contacted Ms Rafraf and told her that it needed her permission to release information to the plaintiff's firm. In the course of the conversation, Centrelink informed Ms Rafraf that she had been awarded the sum of $453,472.41 (being the sum of $403,560.55 and costs of $49,911.86). At that point Ms Rafraf noticed the discrepancy (which amounted to $132,911.86) between the certificate which the plaintiff had given her and the figure communicated by Centrelink.
Subsequently, Ms Rafraf contacted Suncorp/GIO and asked for a copy of the certificate. She was provided with a certificate dated 26 September 2019 which had been signed by Mr Macken which indicated that the amount awarded was $453,472.41. A comparison between the real certificate dated 26 September 2019 (presumed to be authentic because of its provenance) and the (allegedly false) certificate dated 10 October 2019 indicated that the real certificate had been altered to reduce the amount which Ms Rafraf was to receive. Ms Rafraf contacted Suncorp/GIO and told them of her concerns. She instructed them not to release any funds to the plaintiff or her law firm. Ms Rafraf contacted the barrister who had appeared on her behalf at the Claims Assessment and Resolution Service (CARS) assessment by Mr Macken and was informed that the fees of the barrister who had appeared on Ms Rafraf's behalf at the claims assessment had amounted to $28,325.
Ms Rafraf reported these matters to the Legal Services Commissioner (LSC) and to the NSW Police. I infer from the Police Facts that she made a statement to police. The police investigation into the circumstances of the alleged offence included an interview with Mr Macken, who said that he had played no part in the creation of the certificate dated 10 October 2019 and that the signature on the document was not his signature. He identified the certificate dated 26 September 2019 as the certificate he issued. Mr Macken also denied that he had issued the "reasons for decision" document which the plaintiff had provided to Ms Rafraf.
On 7 December 2019, Bankstown detectives attended the plaintiff's law practice and offered her the opportunity to be interviewed, which she declined. By not later than 4 January 2021, the plaintiff was served with a Court Attendance Notice which charged her with making a false document to obtain advantage or cause disadvantage contrary to s 253(b)(ii) of the Crimes Act 1900 (NSW) and using a false document to obtain advantage or cause disadvantage contrary to s 254(b)(ii) of the Crimes Act. The prosecution case, as outlined in the Police Facts, is that the plaintiff made a false document (being the certificate and reasons) and used such a document on Ms Rafraf with the intention of receiving a financial gain, and thereby causing financial loss to Ms Rafraf (the Certificate allegations).
It was common ground that offences under s 253(b)(ii) and s 254(b)(ii) of the Crimes Act are serious offences for the purposes of s 51(1)(a): see s 6. The plaintiff was, accordingly, required to notify the defendant within seven days of being charged. The plaintiff was unaware of the requirements of s 51(1)(a) and, accordingly, did not report the charges to the defendant within seven days.
On 5 January 2021, the NSW Police informed the LSC that a Court Attendance Notice which had been served on the plaintiff and that the criminal proceedings were listed for first mention on 4 February 2021.
Having been served with the Court Attendance Notice, the plaintiff retained Mr Boulten SC and Mr Licha to appear on her behalf in the criminal proceedings. At a conference on 18 January 2021, Mr Boulten informed her of s 51. Although her solicitors alleged that they sent an email to the defendant notifying it of the charges, no such email was ever received by the defendant.
On 19 January 2021, the LSC wrote to the plaintiff to inform her that he had been notified by the NSW Police of the charges laid against her. His letter concluded: "To avoid prejudicing the current criminal proceedings, it is appropriate that I suspend further dealing with the complaint until the criminal proceedings have been finalised. Please advise this office when your criminal proceedings are finalised."
It was not suggested that either the LSC's approach was an appropriate one or inhibited the defendant in taking disciplinary action against the plaintiff.

The disciplinary action taken by the defendant against the plaintiff arising from the Certificate allegations

The defendant wrote to the plaintiff on 2 February 2021 to inform her that it had come to learn of the charges against her. The defendant enquired whether she had notified it of the charges, as required by s 51, and, if not, why not. The defendant asked the plaintiff to provide the Court Attendance Notice, the Police Facts and any bail conditions which had been imposed. It also asked her to "provide any further details of the offence and the facts and circumstances surrounding the offence" and to keep the defendant advised as to the status of the proceedings. The defendant also invited the plaintiff to provide submissions and any supporting documentation as to why it ought not consider taking further action to vary, suspend or cancel her practising certificate pursuant to s 82.
On 9 February 2021, Covington LCM made a non-publication order which prohibited the disclosure of the name of the plaintiff in connection with the criminal proceedings by all media anywhere in the Commonwealth until the determination of the proceedings.
The plaintiff's solicitors responded by letter dated 18 February 2021. They alleged that they were instructed that the plaintiff had sent an email to the defendant on 18 January 2021, which attached the Court Attendance Notice and Police Facts. However, as referred to above, no such email was received. They contended that the plaintiff ought be permitted to continue to practise without restriction and relied on the following: "2.2 There is a presumption of innocence. There is a suggestion that these allegations stem from a costs dispute. 2.3 She is a fit and proper person. 2.4 She intends on entering a plea of not guilty and defend[ing] the allegations. … 2.6 This is her livelihood and how she intends to continue to pay her legal fees that will be incurred in her case, as well as meet her other living expenses and responsibilities. 2.7 She has no criminal record. 2.8 She is the sole principal and director of [the plaintiff's firm], is well respected by her clients and is responsible for running her firm. Her clients rely heavily on her. She employs two other solicitors and a legal secretary who assist with the running of the firm. …"
On 18 March 2021, the defendant resolved as follows: "… having formed the view that the practising certificate of [the plaintiff], should be suspended pursuant to [s 82] for the year ending 30 June 2021, give notice to the [plaintiff] requesting submissions as to why the proposed action should not be taken pursuant to [s 83]."
On 26 March 2021, the defendant issued a notice under s 83 informing the plaintiff of its resolution on 18 March 2021. The notice referred to the charges; the plaintiff's failure to notify the defendant of the charges within seven days, as required by s 51; the Police Facts (which were summarised in the notice); and the plaintiff's response in her solicitors' letter of 18 February 2021. The notice set out the relevant statutory provisions, including ss 82 and 83 and referred to authorities on "the public interest" in this context, including Re Davis (1947) 75 CLR 409; [1947] HCA 53 and New South Wales Bar Association v Stevens [2003] NSWCA 95 (Stevens) at [108]-[110] and [139] (Spigelman CJ, Meagher and Sheller JJA agreeing).
The notice also said: "23. The [plaintiff] has been charged with offences including making and using false documents to obtain financial advantage or cause disadvantage. These charges are serious offences as defined in the Uniform Law and prima facie, they conflict with the paramount duty of a solicitor to the court and the administration of justice. The seriousness of the charges is also borne out by the fact that the allegations are said to have occurred in the course of the [plaintiff]'s practice as a solicitor and contrary to a client of the [plaintiff]. 24. A solicitor's duty to the court and the administration of justice is paramount and prevails to the extent of any inconsistency with any other duty (Rule 3 of the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015). The judiciary, other practitioners, clients and the public must have confidence that officers of the court will uphold this paramount duty. 25. However, any person charged with a criminal offence, including a solicitor, is entitled to the presumption of innocence as well as the privilege against self-incrimination (which extends to being under no obligation to 'telegraph' their defence .... Therefore, any action taken against the [plaintiff's] practising certificate must be considered subject to these principles. 26. The allegations against the [plaintiff] are, at this stage, only supported by the facts alleged in the Police Facts Sheet which Council has considered and the [the plaintiff] has indicated that she intends to plead not guilty, defend the charges and is entitled to the presumption of innocence until proven otherwise. It is acknowledged that the Police Facts are not pleadings, nor are they sworn evidence. They are assertions, and the evidence relied upon by the police to support the charges will not be known until the police serve a brief of evidence containing witness statements. 27. Ultimately, some of the matters asserted may not be established in subsequent criminal proceedings. However, they formed part of the police case and the allegations are of such seriousness they are relevant to any consideration of the [plaintiff's] right to practice. 28. Whilst accepting that the presumption of innocence generally means that a solicitor is entitled to continue practising until any charges are finalised, [the defendant] is of the view that such presumption of innocence must be weighed in this case against the nature of and the seriousness of the charges, the fact the alleged criminal activities occurred during the course of legal practice, the evidence prima facie appears to identify serious conduct, the risk to the public that other clients may have been similarly affected and the extent to which the charges undermines confidence in the [plaintiff], and the profession more broadly. … 31. On balance, [the defendant] has formed an initial view that it is appropriate having regard to the seriousness of the offence and the public interest that the [plaintiff's] practising certificate ought to be suspended while the criminal charges are resolved, and resolves to issue a notice under [s 83] requesting submissions from the [plaintiff] as to why the proposed action should not be taken. The suspension would operate for the balance of the practising certificate year. …" [Emphasis in original.]
The defendant invited the plaintiff to provide submissions by 4pm on 9 April 2021 as to why her practising certificate ought not be suspended.

Further allegations arising from conduct in April 2021

Before the plaintiff responded to the defendant's notice referred to above, she engaged in further conduct, which was ultimately relied on by the defendant to support its suspension of the plaintiff's practising certificate. It is convenient to refer to the allegations and evidence relating to this further conduct in the chronological sequence in which it occurred.
On 9 April 2021, the plaintiff sent a text message with her details to Ben Bourke, the Director of Legal Pay, a financial institution which provides litigation funding to legal practitioners. Mr Bourke provided an application form to the plaintiff. In an email sent at 9.56am on 12 April 2021, Mr Bourke set out the information Legal Pay would need when receiving a request for funding disbursements (which include filing fees, payments to medical practitioners and other service providers). He said: "There is no strict rule with this, we basically just want a short summary of the case so that we know what we're lending the money for. E.g. if you're asking $500 for a filing fee, we probably don't need to know too much about the prospects of the case. On the other hand, if it was $10,000 for a forensic accountant's report, we would probably want to know that it's liability admitted, serious injuries etc."
Also, on 12 April 2021, the plaintiff signed and returned to Mr Bourke the application form and contract, as she confirmed by text message to him. In a further email sent that day, the plaintiff said: "I do have quite a number of funding requests I'll start sending through."
At 9.53am on 13 April 2021, Mr Bourke responded to the plaintiff: "No worries. Our general rule is that requests are processed within 1 business day but, in reality, it's often much quicker than that."
At 4.47pm on 13 April 2021, the plaintiff sent an email with an attached invoice to Louise Buchanan of Legal Pay. In the covering email, the plaintiff identified the name of the matter (which was said to be a claim by client, BO, against NRMA Insurance in respect of which liability was admitted and the quantum was said to be $3.5m). The plaintiff nominated an account, xxx243 (the 243 account), which she represented (contrary to the fact) to be a trust account, into which the amount of the invoice was to be paid. The invoice, dated 1 July 2020, purported to be from Catherine Sharp of Expert Witness Nurse Consultants Australia and specified the bank details of the service provider. Rose Ahmad was specified as the contact at the plaintiff's firm. The amount of the invoice was $8,800, including GST of $800. The services provided were said to be "Reading notes, teleconference and writing report".
At 6.46pm on 13 April 2021, Ms Buchanan forwarded the email to Mr Bourke to inform him that she had received the plaintiff's first request. At 8.36pm on 13 April 2021, the plaintiff sent a text message to Mr Bourke informing him that she had sent through the first invoice that day and that she would send "the rest" the following day.
At 5.11pm on 14 April 2021, the plaintiff sent a further four invoices to Ms Buchanan, each of which related to a claim by another client, AN, for damages for personal injury. In the covering email, the plaintiff informed Ms Buchanan that liability had been admitted and the quantum of the claim was $1.3m. Each of the invoices indicated the bank account into which the invoiced amount was to be paid. Once again, the plaintiff provided details of the 243 account and requested that the funds be paid into that account. The details of the four invoices were as follows: Date of invoice Service provider Amount (incl GST) 11 March 2021 Dr Robert Gertler $5,280 30 March 2021 Dr Michael C. St. J. Prior $4,730 31 March 2021 Grinter & Associates Pty Ltd $3,080 1 April 2021 Matthew M. Giblin $3,520

As it was Legal Pay's usual practice to pay the service providers directly, it did so on this occasion, notwithstanding the plaintiff's instruction to pay the funds into the 243 account. Ms Buchanan sent an email to Dr Gertler's practice which attached a remittance advice recording that the amount of $5,280 had been paid and a copy of the invoice which the plaintiff had provided to Legal Pay in that amount.
At 9.16am on 15 April 2021, the plaintiff sent an email to Ms Buchanan, which was copied to Mr Bourke, in which she said: "The invoices for [AN] should have been paid directly to us. I've spoken to Ben can you please rectify."
Ms Buchanan responded by email to the plaintiff sent at 10.24am on 15 April 2021 as follows: "Profuse apologies … I'm so used to the way it's normally done that I just pumped the first two invoices out early this morning on auto-pilot! I will request a refund from doctors Giblin and Gertler and let you know when the money has then been transferred from our account to yours. In the meantime, I will pay the other two into your account shortly."
At 10.26am on 15 April 2021, the plaintiff sent a text message to Mr Bourke as follows: "Hi Ben will this be rectified today?"
Mr Bourke responded by text at 10.27am: "Yes, check your inbox, Louise just replied [emoji] she'll be paying you shortly and then we'll just chase up the doctors for a refund."
At 10.52am on 15 April 2021, Ms Buchanan sent an email to the plaintiff, which was copied to Mr Bourke, to which she attached a remittance advice "for payment to your trust account" for the monies for the invoices to Dr Prior and Mrs Grinter. The remittance advices recorded that Legal Pay had transferred into the 243 account the sum of $3,080 (for the Grinter & Associates Pty Ltd invoice) and $4,730 (for Dr Prior's invoice).
At 11.06am on 15 April 2021, Ms Buchanan sent an email to Dr Gertler as follows: "Dear accounts, I am so sorry to be a pain but I have to request refund of the payment made to your account this morning, as per your attached invoice and our remittance advice (also attached). Our company normally pays doctors' invoices directly but, in this case, the law firm involved wants us to pay them and then they'll pay you. Seems like unnecessary doubling up to me but I have to do this the way the client wishes. Our account details are as shown on the remittance advice. Could you please let me know when the transfer has been made?" [Emphasis in original.]
On 15 April 2021, Ms Buchanan sent a similar email a few minutes later to Dr Giblin, having also paid $3,520 into the account shown on his invoice that morning.
At 2.09pm Dr Gertler rang Legal Pay and left a message for Ms Buchanan, asking her to return his call. It appears from a subsequent email sent by Ms Buchanan to Mr Bourke at 11.11am on 27 May 2021, that when Dr Gertler received Ms Buchanan's email, he called her and queried the invoice which did not correspond to the one he had issued.
Later that day, at 4.52pm, "Diane" of the Blackwattle Clinic (where Dr Prior practised) sent an email to Ms Buchanan which attached two invoices, each apparently issued by Dr Prior. One was in the sum of $4,730 (as referred to in the table above) and the other was in the sum of $1,826, both inclusive of GST. The invoice number, 74123, was the same in each, as was the claim number and the identity of the claimant, AN. However, in the invoice for $1,826, the date of assessment was said to be 27 August 2020 and in the invoice for $4,730 the date of assessment was said to be 1 March 2021. In her covering email, Dianne said: "Today one invoice - tomorrow the world."
I infer from the email referred to below that, as a result of Dianne's communication, Legal Pay made enquiries of the doctors and other service providers regarding each of the invoices which the plaintiff had submitted for payment.
At 5.48pm on 15 April 2021, Mr Bourke wrote to the plaintiff in the following terms: "Of the 5x invoices you have submitted for funding thus far (attached for ease of reference) in your emails to us of 13 April and 14 April 2021 respectively, all but one of them has turned out to be a falsified record. Dates and amounts owing on doctors' invoices have been amended without their consent, as the doctors involved have confirmed for us this afternoon. To say they - and we - are unimpressed would be a colossal understatement. Incidentally, the 1 of 5 which did not have a falsified amount owing was nevertheless already paid. In other words, you were requesting funding for an invoice which was not outstanding. We have transferred 3x amounts into your trust account which you purported was money to be applied to said doctors' invoices. In reality, those invoices had already been paid and/or the invoices themselves were falsified. We have been labouring under false and misleading representations which has caused us to pay monies into your trust account which are clearly not for the stated purpose and are contrary to what is contemplated in our contract. The transactions I refer to are the following that were paid into your trust account: 1.$8,800 on 14 April 2021; 2.$3,080 on 15 April 2021; and 3.$4,730 on 15 April 2021. I require you to reverse those transactions immediately. You may transfer the funds back into our business transaction account using the following details [PROVIDED]." [Emphasis in original.]
The screenshots of Mr Bourke's phone which have been tendered by the defendant indicated that from 5.51pm on 15 April 2021, the plaintiff tried to call Mr Bourke several times. He did not answer and she did not leave a message. He referred in the email of 16 April 2021 at 10.21am extracted below to her having called him 17 times.
At 5.55pm on 15 April 2021, the plaintiff responded by email as follows: "They were not falsified as these were the invoices we had on file. To make such an allegation is unfounded. We will refund as soon as possible as a matter of good faith."
In the meantime, at 6.01pm on 15 April 2021, Ms Buchanan forwarded the two invoices (which apparently related to services provided by Dr Prior) to Mr Bourke by email which said: "FYI. The real invoice vs. the fake one I paid to [the plaintiff's] account today!"
At 6.03pm, the plaintiff emailed Mr Bourke as follows: "Refund has just been completed. Kindly confirm when you have received the funds."
At 6.05pm, the plaintiff sent Mr Bourke a text to inform him that she had just "processed the refunds." Shortly afterwards, she sent a further text as follows: "It's unfortunate that you would jump to conclusions. These are the invoices I have on file if you want to make unfounded allegations that's in your court."
Having been alerted to the issue, Ms Buchanan sent an email at 7.20pm to Mrs Grinter regarding her invoice in the following terms: "Could you please check the attached invoice from your office and confirm whether the appointment date, invoice issued date and amount owing are correct? I received a request from [the plaintiff's firm] for funding of this invoice directly into their bank account (not yours), which isn't standard procedure, so I just need to confirm whether the details are correct."
Mrs Grinter replied at 9.41pm that evening and said: "Can I ring you tomorrow as this seems very suspicious."
At 9.26am on 16 April 2021, Dianne from the Blackwattle Clinic sent an email to Ms Buchanan with the subject, "Falsified invoices from [the plaintiff's firm]" as follows: "What a dishonest person! Actually accusing me me [sic] of being dishonest and sending an invoice for services NOT done. I would like to see the original email from me with the March date and $ value. Keep me in the loop so I can let doctor know, he was speechless."
At 10.21am on 16 April 2021, Mr Bourke wrote to the plaintiff as follows: "The doctors called us directly to advise us that the invoices are falsified and the real ones had already been paid. I'm going to work on the assumption that the doctors didn't falsify their own invoices so that we would pay money into your trust account, that would be patently absurd. Your indignation is the only thing that is unfounded, give it a rest. Absolutely disgraceful. In any event, I confirm we have received the funds plus a $200 overpayment which will be sent back to your account today. I note that I received no fewer than 17 missed calls after hours yesterday. Kindly cease attempting to contact me as we have nothing further to discuss. Obviously, our contact is terminated." [Emphasis in original.]
Later that day, at 2.40pm on 16 April 2021, Dianne sent another email to Ms Buchanan as follows: "I have made one of the other doctors aware - he thinks we should report her to the police!!! I just can't understand how she thought she would get away with it."
At 4.59pm on 16 April 2021, Dr Gertler sent an email to Ms Buchanan as follows: "Thanks for the additional information [that Legal Pay intended to report the plaintiff to the Law Society]. Please tell Mr Bourke that I plan to report what happened to the police as well as the Law Society. Am happy to help him in whatever way he thinks might be necessary."
On 20 April 2021 at 9.50am, Debbie, who also worked at the Blackwattle Clinic (where Dr Prior practised), sent an email to Ms Buchanan with the subject heading "Falsified invoices from [the plaintiff's firm]" which attached the invoice in the sum of $1,826 which Dianne had sent to Ms Buchanan on 15 April 2021. The email said: "I've just caught myself up with the all the shenanigans, Dianne will be back in the office tomorrow if you need anything further. However I have attached below the correct and only invoice we have on file for this claimant."
In a subsequent email to Mr Bourke on 27 May 2021, Ms Buchanan forwarded Dr Prior's invoice to Mr Bourke and explained: "This was forwarded to me by Dr. Prior's secretary after she called me to query the fake invoice, so there's no email trail. Her comment with the attachment is in reference to [the plaintiff] having a con-artist career." [Emphasis in original.]
Also on 20 April 2021, Allison from Dr Gertler's practice sent an email to Ms Buchanan which attached the original tax invoice for the consultation with AN. The original invoice was for a consultation on 19 November 2020 in an amount of $1,980 (to be compared with the one in the amount of $5,280, which the plaintiff had submitted to Legal Pay for payment).
On 23 April 2021, the plaintiff's solicitors wrote to AN, informing her of the charges against the plaintiff and the non-publication order and asking her to treat the matter as strictly confidential. They asked her for a reference about the plaintiff to be forwarded to the defendant, which she provided on 27 April 2021. The reference included the following: "I do not believe for one millisecond that [the plaintiff] would ever commit any crime, let alone forge or fabricate a document. [The plaintiff] is one of the most honest and upstanding citizens and professionals in the community. The community and Australia is lucky to have her. Ms. Rafraf is also known to me. I've witnessed over the years how much assistance [the plaintiff] has provided Ms. Rafraf. From what I know, [the plaintiff] worked for over four years on Ms Rafraf's case and achieved an excellent result for her. I do not believe for one millisecond [the plaintiff] would do anything wrong towards any individual let alone someone she considered a friend. I am very surprised that Ms Rafraf would make such allegations. If anyone is more committed to the legal profession its [the plaintiff]. Her dedication is remarkable, she will go days where she does not sleep until the wee hours of the morning to ensure she has perfected a letter of advice or found a solution to her client's legal problem. She is highly intelligent and I can see her one day possibly becoming a judge. She was born to be a lawyer … [The plaintiff] has a very high and positive standing in the community … I can assure the [defendant] they would be doing the community a disservice by suspending her licence … In her legal practice her clients speak very highly of her and praise her for her dedication and commitment to their matters. She currently finalized my CTP Matter and I could not praise her enough with how she handled my matter with care and attention. She explained every step to me clearly, concisely and in plain English. I have referred other clients to her who have CTP Matters and they have always come back to me with positive feedback about [the plaintiff]. … [The plaintiff] is the most ethical solicitor and human being I have ever met. She would never step out of line and has always done things by the book and goes above and beyond the ethical standards imposed on a legal practitioner. I do not believe for one minute she fabricated any documents, if anyone should be on trial it should be Ms. Rafraf. …"

The plaintiff's response to the s 83 notice dated 26 March 2021 from the defendant

On 28 April 2021, the plaintiff, through her solicitors, provided a response to the s 83 notice issued by the defendant on 26 March 2021, which included the reference from AN. The plaintiff's solicitors relied on the following: 1. the alleged lack of similar complaints or allegations despite the plaintiff's length of practice (9 years and 6 years as principal); 2. the lack of evidence of guilt and the plaintiff's entitlement to the presumption of innocence; 3. the circumstance that the complaint was not made until December 2019 and was alleged to have been prompted by the plaintiff's request that Ms Rafraf pay the outstanding legal fees; and the charges were not laid until early January 2021; 4. expected delay in the criminal proceedings, given the prosecutor's failure to serve the brief by 8 April 2021 in accordance with the Local Court's directions and a further expected delay; 5. the improbability of an experienced practitioner engaging in such conduct given the risk of its being revealed upon direct contact from Centrelink; 6. the difficulties of assessing the risk to the public in these circumstances; 7. the plaintiff's preparedness to undertake risk management training; 8. the referees who speak of her good character and professionalism, including from her employee, Mr A (a pseudonym); and 9. the view taken by the LSC as reflected in his letter of 19 January 2021 (extracted above).
The response also contained the following paragraph: "There is no suggestion or allegation in any document or by any person (and no evidence) that at any time before or since September/October 2019 (date of the alleged conduct) that [the plaintiff] has or may have engaged in conduct similar to that alleged by Ms Rafraf."
The plaintiff submitted that, although the charges were serious, there was no evidence to support them and that the objective probabilities (absence of similar complaint and risk of detection) made it unlikely to have occurred. She submitted that it was not in the public interest that her practising certificate be suspended because there were no similar complaints and the public would not know of the criminal proceedings because of the non-publication order and that therefore the reputation of the profession would not be adversely affected. She also contended that suspension of her practising certificate would affect her clients, her employees, the viability of her firm and her ability to support herself as well as her brother and her aging parents, who depend on her for financial support. She identified particular matters of which she retained carriage, which were listed and described variously as "complex equity", "complex family law" and "complex equity and trust" matters. She asserted that her employed staff did not have the expertise to take over carriage of these matters.
The plaintiff also submitted that Ms Rafraf had been a friend and that she had "let her guard down" in terms of record-keeping on that matter. She undertook not to act for friends or relatives in future. The plaintiff set out various conditions of practice which could be imposed by the defendant instead of cancelling or suspending her practising certificate: such as further continuous professional development and the requirement to submit to the defendant copies of certificates issued with respect to compulsory third party claims.
The plaintiff's response also attached her curriculum vitae, which recorded that she worked as a claims consultant for Allianz Insurance Limited from 2010 to 2013; as an employee of another law firm from January to November 2014; and as principal of her own firm from January 2015.
According to Mr Windsor SC, who appeared on behalf of the plaintiff before me, the plaintiff intends to defend the charges, which are listed for hearing before the Bankstown Local Court on 15 August 2022. I understand from the listing that no election has been made to proceed on indictment.

The complaint in relation to the invoices

On 24 April 2021, the LSC received a complaint from Mr Bourke on his own behalf and also on behalf of Mrs Grinter, Dr Gertler and Dr Prior (the Invoices complaint).

The s 83 notice issued by the defendant on 20 May 2021

On 20 May 2021, the defendant resolved that it was considering suspending the plaintiff's practising certificate pursuant to s 82(1)(c) for the year ending 30 June 2021 and invited submissions from the plaintiff as to why the proposed suspension should not occur. It notified the plaintiff of the Invoices complaint and set out the narrative, which I have set out above. The s 83 notice made reference to the following under the heading, "Consideration": the seriousness of the alleged conduct and the fact that the complaint related to five separate invoices, which comprised "multiple discrete acts and a continuing course of conduct"; the strong evidence of the plaintiff's personal involvement as she negotiated the arrangement directly with Mr Bourke; and the circumstance that the conduct was revealed only by an administrative error by Legal Pay.
The notice also said: "57. The alleged conduct in the complaint involves the [plaintiff] acting dishonestly (and fraudulently). On one view of the allegations, it can be said that the clients of the [plaintiff] and her firm were used by the [plaintiff] as the necessary tools to dishonestly deceive another party to obtain monies that the [plaintiff] would not have otherwise been able to obtain. Another way of putting it, but for the dishonest and fraudulent conduct, the monies (and benefit) would not have been paid (or received). … 61. Ultimately, some of the matters asserted may not be established in any investigation &/or proceedings. However, Council is of the view that given the nature of and the seriousness of the allegations, that the alleged conduct appears to have occurred during the course of legal practice, and that there is strong evidence to support the complaint, that the [plaintiff] should be suspended whilst the complaint is being dealt with under Chapter 5 of the Uniform Law. There is a very real risk to the public and other clients if the [plaintiff] is allowed to continue to practice while the matter is investigated. The allegations undermine confidence in the [plaintiff], the public interest and the profession more broadly."
The defendant invited the plaintiff to respond to the notice by 4 June 2021. On 25 May 2021, the plaintiff's solicitors asked the defendant to provide the material and particulars of matters referred to in the s 83 notice issued on 21 May 2021. The defendant provided the particulars and material on 10 June 2021.

The plaintiff's response to the s 83 notice dated 21 May 2021

On 18 June 2021, the plaintiff's solicitors responded to the notice. They informed the defendant that they assumed that there would be a criminal investigation and that the plaintiff might be charged with further criminal offences as a consequence of the recent allegations relating to invoices. They said: "In circumstances where criminal charges are anticipated [the plaintiff] is not required to disclose the detail of her defence to the alleged conduct so as not to prejudice her position in any criminal proceedings."
The plaintiff's solicitors contended that the "underlying evidence" of the invoice complaints was "inherently weak" and noted the absence of statements from the service providers. They relied on the detriment to the plaintiff, her employees and clients as a reason why the plaintiff's practising certificate ought not be suspended and contended that any risk to the public could be adequately ameliorated by the imposition of conditions on her practising certificate. They said that over the six years during which the plaintiff has been a sole principal, she has had conduct and/or supervision of 340 files, approximately 135 of which have been personal injury matters. They acknowledged that the plaintiff had provided an incorrect bank account number when she had retained Legal Pay (since the 243 account was not a trust account) and maintained that the plaintiff, notwithstanding her conduct with respect to the invoices, appreciated that "all relevant monies should be received into trust and cannot be disbursed without the client's authority." On this basis, they disputed that the plaintiff stood to gain personally from the payments made by Legal Pay. They repeated submissions regarding the plaintiff's financial commitments to the practice, the landlord, her employees and her dependants; her professional responsibilities to her clients; and the lack of expertise in the firm to take over the files for which she had carriage or was otherwise responsible.

The defendant's letter to the plaintiff's solicitors dated 21 June 2021 and the plaintiff's response

On 21 June 2021, the defendant wrote to the plaintiff's solicitors and sought her response to the apparent inconsistency between, on the one hand, the various statements she had made in her submissions dated 28 April 2021 (referred to above) to the effect that the Certificate allegations, if proved, amounted to an isolated event and that no allegation of similar conduct had ever been made against her; and, on the other, the fact that she was aware of the allegations which formed the substance of the Invoices complaint when she instructed her solicitors to make the submissions dated 28 April 2021. The defendant sought the plaintiff's response by 23 June 2021.
On 25 June 2021, the plaintiff's solicitors responded by asserting, in effect, that there was no inconsistency as the plaintiff was first notified of the Invoices complaint on 21 May 2021 and that there remained no "evidence" that any other client had been affected by conduct similar to that alleged by Ms Rafraf. They contended that the evidence in support of the Invoices complaint was "inherently weak."

The suspension of the plaintiff's practising certificate and the appointment of a manager

On 15 July 2021, the defendant issued two notices to the plaintiff: 1. A notice pursuant to s 334 appointing Richard Flynn as a manager of the plaintiff's firm; and 2. A notice pursuant to ss 81, 84 and 85 suspending the plaintiff's practising certificate for the years ended 30 June 2021 and 30 June 2022.
The notices were accompanied by reasons which reiterated the reasons given in earlier notices and which set out the defendant's conclusions that the conditions proposed by the plaintiff would be insufficient to ameliorate the risk to the public were she permitted to continue to practise.

Further correspondence

In a letter to the defendant dated 20 August 2021, the plaintiff's solicitors proposed further conditions, including that Mr Flynn remain as a manager; that his costs be paid by the plaintiff; that the plaintiff have a restricted practising certificate which requires that she be supervised by Mr Flynn and Mr A; that she have no access to or control over the trust account; and that she be required to complete an approved Practice Management Course before being eligible to become a principal of a firm again.
The defendant responded on 31 August 2021, saying that it did not propose to consider the proposal as no new information had been provided. Further iterations of proposed conditions were advanced on behalf of the plaintiff. In an annexure to Mr Windsor's written submissions, a further eight conditions were proposed, which included that Mr A become the sole signatories on the trust account and that the plaintiff be subject to a random audit by the defendant on 24 hours' notice.
A further proposal was made on the date of the hearing which envisaged that Mr A would take over the plaintiff's firm, run the practice as its principal and supervise the plaintiff as an employed solicitor.

Consideration

Mr Windsor accepted that the Certificate allegations and the Invoices complaint, if established, would amount to very serious wrongdoing by a legal practitioner. However, he submitted that the public could be sufficiently protected by the plaintiff continuing to practise in a restricted, supervised way, where she had no involvement in the operation of the firm's trust account. He was instructed to give an undertaking on behalf of the plaintiff that she would inform any client with whom she dealt that she was the subject of undetermined charges of dishonesty. Mr Windsor argued that the refusal of the stay could result in significant prejudice to the plaintiff's existing personal injury clients, who might have difficulty in finding another local solicitor who was prepared to take over their matters on a no-win, no-fee basis.
Mr Windsor submitted that the plaintiff ought not be required to prosecute her summons in this Court before the conclusion of the criminal proceedings. He submitted that it would not be appropriate to require the plaintiff to reveal her defence to the charges or her answer to the Certificate allegations or the Invoices complaint, in circumstances where the criminal proceedings had not yet been determined. He relied on the presumption of innocence and the privilege against self-incrimination and submitted that the grant of a conditional practising certificate was an appropriate way of protecting the public interest, as well as the plaintiff's right to silence and her right to have the prosecution prove its case against her beyond reasonable doubt. He contended that, in order to protect the public interest, which included the interests of the plaintiff's clients and employees, it was appropriate that a stay of the suspension be granted.
Mr Windsor argued that it was appropriate that the stay be granted until at least 30 June 2022, being the date at which the suspension expired, as the criminal proceedings would not be determined until after that date (having regard to the plaintiff's intention to defend them). Further, he sought to distinguish Stevens on the basis that in Stevens there was no dispute that the respondent had failed to put in tax returns for a substantial period and had been convicted of such failure in respect of two years. He contended that there was no firm evidentiary foundation or admission in the present case, on which this Court could regard the plaintiff as posing a risk to the public, when the evidence against her was slight and had not been tested.
Ms Webster SC, who appeared with Ms Poukchanski for the defendant, submitted that the effect of a stay for the period sought was, in effect, to render otiose the relief sought in the summons. She submitted that although the plaintiff had the benefit of the privilege against self-incrimination, she had, by filing the summons, invoked the Court's jurisdiction and she ought not be granted a stay, the effect of which would obviate the need for the principal relief.
Ms Webster accepted that the Court could not, at this stage, make findings on the basis of the material before it as to the plaintiff's conduct. However, she submitted that the evidence was sufficient to show that she posed a risk to the public. Further, she submitted that the conditions proposed were insufficient to protect either the public or the reputation of the legal profession. She submitted that if the plaintiff's proposal was accepted, the plaintiff would be dealing not just with clients but also with other legal practitioners, witnesses (both lay and expert), service providers and claims assessors, each of whom ought be entitled to trust her because she was a legal practitioner with a current practising certificate, albeit a conditional one. Ms Webster also relied on the fact that the persons who were aware of the Invoices complaint would appreciate that the plaintiff was continuing to practise, notwithstanding their apparent collective view that she had behaved in a reprehensible and untrustworthy way with respect to the invoices and that this, of itself, would harm the reputation of the profession.
It was common ground that Stevens contained an authoritative statement of the relevant principles regarding applications for a stay of a decision to suspend or cancel a practising certificate in the present context. In Stevens, the appellant had cancelled the respondent's practising certificate (arising from his failure to put in tax returns, which had resulted in criminal convictions). The respondent had filed a summons for review of the cancellation in this Court and had sought a stay of the cancellation, which had been granted by the primary judge. The Court of Appeal reversed the primary judge's decision and set aside the stay. Spigelman CJ said (Meagher and Sheller JJA agreeing), at [91]: "The relevant authorities indicate that the protection of the public is a matter entitled to significant weight on an application for a stay once it appears that a professional person has acted improperly to a substantial degree."
His Honour continued: "114 [The primary judge] referred to the 'balance of convenience'. The injury to the public arising from the continuation in practice of a person unfit to do so is not comparable to the detriment to the practitioner from being prevented from practising. These matters are not measurable on the same scale, although they are both entitled to weight. Terminology such as 'balance of convenience' is not apt. It is likely to lead to failure to consider the public interest. 115 Similarly, his Honour's reference to preserving the status quo suggests an approach applicable to balancing private interests. Where the public interest is engaged, the status quo has no particular significance. There is no presumption in favour of the continuation of the status quo in such a context."
The public interest is not limited to the practitioner's clients. As Spigelman CJ explained in New South Wales Bar Association v Cummins (2001) 52 NSWLR 279; [2001] NSWCA 284 at [20] (Mason P and Handley JA agreeing), there are four interrelated interests which fall within the public interest: the need for clients to be able to trust their lawyers; the need for fellow practitioners to be able to accept a practitioner's words; the need for the judiciary to have confidence in practitioners who appear before them; and the overall need for the public to have confidence in the legal profession because of its central role in the administration of justice.
It is important at the outset to identify the limited role which the presumption of innocence has in the present context. The presumption applies only in criminal proceedings. In such proceedings, an accused person is presumed to be innocent of the charge unless and until the prosecution has proved the accused's guilt of the charge beyond reasonable doubt: Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [53]-[54] (French CJ). However, as Mr M Gleeson AC said, extrajudicially, in "Presuming Innocence", Chapter 26 of "Advocacy and Judging: Selected Papers of Murray Gleeson": "[T]here is no principle of general application that a person who has not been convicted of an offence has a right, for all purposes and in all circumstances, to be treated by everybody as innocent."
Although the plaintiff is presumed to be innocent in the criminal proceedings, she is not entitled to any similar presumption in disciplinary proceedings, or indeed in her every-day practice. Inferences can more comfortably be drawn from her failure to explain matters which could be expected to be within her own knowledge: Einfeld at [23] (Allsop P, Giles and Hodgson JJA). Further, the wording of s 82(2) plainly contemplates that a charge, which has not yet been determined (and which, ex hypothesi, has not resulted in a conviction), may provide a basis for suspension, variation or cancellation of a practising certificate. Disciplinary proceedings are sui generis and have different purposes from criminal proceedings, although the protection of the public is generally common to both: Weaver v Law Society (1979) 142 CLR 201 at 207 (Mason J); [1979] HCA 35; McCarthy v Law Society of New South Wales (1997) 43 NSWLR 42. In disciplinary proceedings generally, it is the underlying conduct, not whether a conviction has been recorded, which is material. Thus, for example, in Einfeld, the applicant (the NSW Bar Association) relied on the making of false declarations and other criminal conduct, although the respondent had not been convicted of such conduct, in support of its successful application to remove his name from the roll.
Further, a practitioner who admits guilt of criminal or unprofessional conduct does not necessarily pose a higher risk in a disciplinary context than a practitioner who proposes to defend pending charges. Admission of guilt can lead to an inference that the practitioner accepts that the conduct was wrong, is remorseful and will not repeat it. By contrast, a practitioner who denies wrongdoing might pose a continuing risk to the public by reason of lack of insight, remorse or contrition. Thus, in Clifton v The Council of the Law Society of New South Wales [2021] NSWSC 1048, Cavanagh J granted a stay of the defendant's decision not to renew the plaintiff's practising certificate in circumstances where NCAT had found him guilty of dishonest conduct (a finding which he accepted) and the time between the stay application and the final hearing of the summons was less than three weeks.
Another example of the focus of disciplinary proceedings on the protection of the public is provided by Prothonotary of the Supreme Court of NSW v P [2003] NSWCA 320 (Re P). In Re P, P, a solicitor, pleaded guilty to importing a trafficable quantity of cocaine and served a sentence of imprisonment. The Prothonotary applied to have P removed from the roll on the grounds that her conviction constituted professional misconduct within the meaning of s 127(1)(b) of the 1987 Act and that she was not a fit and proper person to remain on the roll. The Court found that P had been drug-free for almost five years and that the factual matrix of the case was such that she was not a risk to the public. Accordingly, it dismissed the application.
Despite the helpful and thorough submissions of Mr Windsor, I am not persuaded that the public can be sufficiently protected from the plaintiff if she remains entitled to practise, even conditionally. While it is too early for an assessment to be made as to whether the suspension ought stand (this being a matter for the final hearing of the summons), the Certificate allegations and the Invoices complaint would, if made out to the requisite standard, indicate that the plaintiff poses a substantial risk to the public and that she is not fit to practise.
Although with respect to the Certificate allegations, the Court has little more than Police Facts, I infer, as set out above, that the police have taken statements from Mr Macken and Ms Rafraf and have copies of the two certificates and that these documents will form part of the police brief which will be served in the criminal proceedings. The contemporaneous documents relating to the Invoices complaint, which are in evidence, would tend to support the complaint. That is not to say that there might not be a hypothesis consistent with innocence which could dispel the incriminating impression created (since this is a matter for the final hearing), but it is of significance that there was a disparity between the invoices issued by the service providers and the invoices which the plaintiff provided to Legal Pay. Whether or not the plaintiff was responsible for the disparity and any explanation for the differences remain to be determined.
The practice of law depends on the trustworthiness of practitioners. Legal practitioners who act for clients who claim damages for personal injury are commonly required to deal with substantial sums of money, frequently paid by insurers for medical expenses and in damages. The Court, the CARS assessors, the insurers, the service providers, the litigation funder, the practitioners on the other side and, in particular, the clients of the practitioner are entitled to trust legal practitioners to tell the truth and to deal with funds in accordance with their obligations as trustees for their clients.
The potential for legal practitioners to misuse their position of trust, particularly in the field of personal injury litigation, is well known. Clients may be vulnerable and unaccustomed to asserting their legal rights. They may have little idea of the practice and procedure associated with such claims and are wholly dependent on their legal practitioners for advice, guidance and information about their claim and any entitlement to funds. Examples form part of the disciplinary jurisprudence: see, for example, New South Wales Bar Association v Evatt (1968) 117 CLR 177; [1968] HCA 20, Re Veron; Ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 136; [1966] 1 NSWR 511 and Re Miles; Ex parte Law Society of NSW (1966) 84 WN (Pt 1) (NSW) 163. In those cases, solicitors (Veron and Miles) and a barrister (Evatt) acting for claimants in personal injury actions settled claims with insurers for particular amounts, remitted significantly lesser amounts to their clients (who were not informed of the terms of the settlement) and pocketed the difference. The name of each of the practitioners was struck from the relevant roll.
If a legal practitioner cannot be trusted, the potential for harm is very significant. In the context of an application for admission as a barrister, Moffit P in Re B [1981] 2 NSWLR 372 said, of present relevance, at 382: "… The proper performance of his duty and hence the pure administration of the law depends on his being able to be trusted unsupervised to do what is right. For this reason to admit a person in whom the court lacks confidence on the basis that he can be supervised and disbarred if he falls out of line involves a misconception. … To a considerable degree the proper exercise of this privilege depends on trust, because a discernment of whether it has been exceeded often will not be discoverable because it will depend on the privileged and secret communication with his client. From what has been said, it will appear that the essential inquiry is directed to the character of the person namely whether his character is such that he can be trusted to perform his duty as a barrister including that performed when what he does is unlikely to be subject to scrutiny. Reputation is also a relevant factor because the effectiveness of the law depends materially upon the confidence of the public in the due administration of it. That confidence is the less if those who administer the law whether judges, barristers or solicitors lack a reputation for integrity and that they will uphold and observe the law."
In this context, it is significant to have regard to how the alleged misconduct was discovered. If, for example, Ms Rafraf had not learned from Centrelink of the actual amount of damages which Mr Macken had assessed in the certificate he issued, she would have no reason to question the ultimate figure she received, as long as it accorded with what she had been told by the plaintiff which was consistent with the figure in the apparently genuine certificate which the plaintiff had given to her. But for Legal Pay's error in paying the service providers directly, the funds would have remained in the 243 account, which, since it was not a trust account, would not have been subject to audit by the defendant. Legal Pay, the service providers, the clients (BO and AN) and the defendant would have been none the wiser.
Further, it is telling that AN was prepared to write such a glowing reference for the plaintiff at a time when the invoices rendered in her matter had apparently been doctored and submitted to Legal Pay for advances to be made. Although AN was the client to whom most of the invoices related, she would appear to have had no idea that there were disparities between the invoices rendered by her service providers and the invoices provided to Legal Pay, although she was informed of the charges in the Local Court.
The reaction of Legal Pay and the service providers to the plaintiff's conduct in the context of the Invoices complaint is also significant. They were, individually and collectively, appalled by what they regarded as the plaintiff's brazenly dishonest conduct. One medical practitioner was "speechless". An assistant described the plaintiff as having a "con-artist career". They were clearly shocked that someone who was a legal practitioner would behave in the way in which they perceived the plaintiff had acted. Mr Bourke, who had been pleased to obtain the plaintiff's business on 13 April 2021, wanted nothing more to do with her within a couple of days. Their reaction does not prove the allegations but it does show the immediate and potential harm that can be done to the reputation of the legal profession (and, to the administration of justice) by a single practitioner who behaves in a way which is perceived by members of the community as dishonest.
It is also of significance that at the time the plaintiff can be expected to have appreciated the gravity of the Certificate allegations (having already been served with a notice by the defendant that it was considering suspending her practising certificate), she nonetheless sent invoices to Legal Pay, which did not correspond with those issued by the service providers, with a view to obtaining funds to be paid into a bank account which was not a trust account. When she communicated with the defendant, she represented that no similar allegations had ever been made against her (against a background where Mr Bourke had, less than a fortnight before, accused her of having falsified invoices). Although there are differences between the Certificate allegations and those relating to what became the Invoices complaint, there are significant similarities: both concerned alleged alterations to documents associated with personal injury actions, which either potentially or in fact led to money being transferred to the plaintiff. Whether the allegations can be made out in terms, I would consider there to be sufficient similarities between the allegations as to render it potentially misleading for the plaintiff to assert, through her solicitors, that no similar allegation had ever been made against her.
The matters to which I have referred are issues which may need to be determined in a final hearing of the plaintiff's application for a review of the defendant's decision to suspend her practising certificate. The defendant's investigation of the Invoices complaint has not, in so far as is revealed by the evidence, gone beyond obtaining documents from Mr Bourke in support of his complaint. The Certificate allegations have only the Police Facts to support them, at this stage. However, the allegations are serious. There is sufficient material to demonstrate their basis. The plaintiff has not put forward anything substantive by way of explanation or mitigation. Indeed, she "strenuously" denies any wrongdoing.
On the basis of the limited evidence in support of the stay application, I consider that, on the basis of the untested evidence adduced by the defendant, the plaintiff's continued practice would pose a risk to the public and to the reputation of the profession which cannot adequately be ameliorated by the conditions on her practising certificate advanced by Mr Windsor. I do not regard the proposed disclosure to the plaintiff's clients as sufficient. Nor does it address the need for persons in the other categories of people with whom the plaintiff would need to communicate as a practitioner to be alerted to the possibility that she is not to be trusted. Indeed, it is difficult to formulate conditions which would address the real prospect that the plaintiff is unfit to practise for the period pending the determination of the proceedings, or until 30 June 2022. While her suspension will undoubtedly cause her personal hardship and may result in the demise of her firm, the extracts from Stevens set out above show that these matters are not to be measured in the same scale as the matters which concern the public interest.
Although there may be clients who may have difficulty finding another local solicitor who will take their cases on at short notice, this is only one factor to be weighed against the danger posed by a practitioner who may not have the requisite honesty and integrity to practise. The evidence does not reveal how many current files, of which the plaintiff has personal carriage, may fall into this category. Indeed, the evidence tends to indicate that the plaintiff's files fall into the type of matters (equity and commercial matters) where one would expect the client to pay as the matter progresses and the matters to be transferrable to another solicitor without detriment to the client.
I note that Mr Windsor has submitted that the plaintiff does not propose to prosecute the proceedings in this Court until any criminal proceedings have been completed. In other words, she would appear to have invoked this Court's jurisdiction for the sole purpose of obtaining a stay of the defendant's decision to suspend her practising certificate. As I am not satisfied that there ought be a stay, it may be appropriate, at some later time, to dismiss the summons, unless the plaintiff changes her position with respect either to the prosecution of the summons or to her defence of the criminal proceedings.

Costs

I have not heard the parties on costs. There would appear to be no reason why costs ought not follow the event in accordance with the usual rule: Uniform Civil Procedure Rules 2005 (NSW), r 42.1. However, I shall make provision for the parties to apply for a different order within seven days.

Orders

For the reasons given above, I make the following orders: 1. Dismiss the plaintiff's notice of motion filed on 21 July 2021. 2. Subject to either party making a written application to my Associate within 7 days for a different order, order the plaintiff to pay the defendant's costs of the notice of motion.

Amendments 22 October 2021 - judgment republished with pseudonyms DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 October 2021

Legal Profession Act 1987(NSW)

Legal Profession Act 2004(NSW)

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