Youssef v NSW Legal Services Commissioner

Overview

1. On 15 November 2019, the applicant Ms Mouna Youssef (the Solicitor) made an application to the Occupational Division of the NSW Civil and Administrative Tribunal (NCAT or the Tribunal) for administrative review of a determination of the NSW Legal Services Commissioner (the Commissioner) made on 18 October 2019. That determination followed an investigation by the Commissioner (through the Office of the Legal Services Commissioner or OLSC) into a complaint concerning the Solicitor's alleged failure to verify the identity of her client prior to lodgement of a caveat on a property in Victoria purportedly on the client's behalf. After finding that the Solicitor engaged in unsatisfactory professional conduct, the Commissioner determined the disciplinary matter by making an order under s 299(1)(b) of the Legal Profession Uniform Law (NSW) (Uniform Law) that the Solicitor be reprimanded.
2. For the reasons that follow, we have decided to affirm the decision of the Commissioner. The question of whether a costs order should be made in these proceedings is reserved.

Background

1. The following paragraphs summarise the relevant background facts.
2. On 10 December 2018, Mrs Victoria Solier made a complaint to the Commissioner about the professional conduct of the Solicitor, a NSW legal practitioner, in relation to the lodgement of a caveat in August 2018 over a property in Victoria owned by Mrs Solier's mother, Mrs Carmen Machuca.
3. In the complaint, Mrs Solier (who stated that she held an enduring power of attorney for her mother Mrs Machuca) alleged that the Solicitor did not take reasonable steps to verify the identity of the person purporting to be Mrs Machuca who spoke on the telephone with the Solicitor on 25 August 2018. Mrs Solier alleged that the Solicitor executed a caveat on behalf of Mrs Machuca and certified that she had taken all reasonable steps to verify her client's identity.
4. The complaint about the Solicitor's conduct was investigated by the Commissioner and the OLSC in accordance with relevant provisions in Chapter 5 of the Uniform Law dealing with disciplinary matters. For the purposes of the Uniform law, a "disciplinary matter" is so much of a complaint about a lawyer or a law practice as would, if the conduct concerned were established, amount to unsatisfactory professional conduct or professional misconduct (Uniform Law, s 270). As the OLSC advised in a letter dated 17 December 2018 to Mrs Solier, her complaint was not treated as a consumer matter "[a]s it appears likely your mother was never a client of Ms Youssef [the Solicitor]". The distinction was significant because Mrs Solier requested compensation in her complaint dated 10 December 2018. The Commissioner has no power to make a compensation order in disciplinary matters.
5. The Commissioner's final determination made on 18 October 2019 was based on his view that, in the circumstances of the matter before him, the Solicitor failed to adequately verify Mrs Machuca's identity before executing a caveat purportedly on her behalf as the owner of the relevant property. The Commissioner found that the Solicitor's conduct constituted unsatisfactory professional conduct because it fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Under s 299(1) of the Uniform Law, the designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making "(b) an order reprimanding the respondent". The Commissioner is the relevant designated local regulatory authority: Uniform Law, s 6(1); Legal Profession Uniform Law Application Act 2014 (NSW) (Application Act), s 11(1), Table 1.
6. The Solicitor was not entitled to seek internal review of the Commissioner's decision under the Uniform Law: Administrative Decisions Review Act 1997 (NSW) (ADR Act), s 53(11); Administrative Decisions Review Regulation 2019 (NSW), cl 5. She was entitled to apply to the Tribunal for an administrative review under the ADR Act of the Commissioner's determination under s 299 of the Uniform Law: Application Act, s 126(2); Uniform Law, s 314. In his letter dated 18 October 2019 enclosing his final determination, the Commissioner advised the Solicitor of her right to seek administrative review of his decision in the Tribunal.

The Solicitor's administrative review application

1. While the Solicitor describes the respondent in her review application as the "Office of the Legal Services Commissioner", the proper respondent to her application is the NSW Legal Services Commissioner. The Commissioner is the "designated local regulatory authority" for the purposes of s 299 of the Uniform Law and s 126 of the Application Act. Accordingly, we will make an order that the name of the respondent in these proceedings is amended to the NSW Legal Services Commissioner.
2. In her application to the Tribunal for administrative review dated 15 November 2019, the Solicitor's grounds are: "The Applicant seeks a review of the decision based on the unfairness and malicious nature of the decision. There were no Costs Orders made against the Applicant or any detriment to Ms Solier or Ms Machuca. The Caveat was removed promptly at the expense of the Applicant. This reprimand should not be on the Applicant's record as it is grossly unfair and unreasonable." She seeks an order that the Commissioner's decision is set aside, and her costs.
3. In her written submissions of 7 May 2020, the Solicitor expands on her grounds of application by contending that the Commissioner had no basis to make a finding of unsatisfactory professional conduct as there was no detriment to any party in this matter that can be proven, nor has any evidence been provided; there was no detriment to Mrs Carmen Machuca because the caveat was removed promptly and at the Solicitor's expense as soon as she was made aware of Mrs Machuca's circumstances, and this was enough to discharge any liability on the Solicitor's part; and there was no public interest in the Commissioner prosecuting practitioners for alleged unsatisfactory professional conduct at the "minor end of the spectrum". The Solicitor also submits that the Tribunal should not take into account two previous reprimands on her record in relation to her time in legal practice.

The Commissioner's position on the administrative review application

1. The Commissioner submits that the decision under review is the "correct and preferable" decision, and that the appropriate order for the Tribunal to make is an order, under s 63(3)(a) of the ADR Act, affirming the decision under review. The Commissioner also seeks his costs.
2. The Commissioner argues that at the time the acts or omissions occurred, namely on 25 August 2018, these constituted unsatisfactory professional conduct. Whether loss occurred as a result of the Solicitor's conduct is not the relevant question. The Commissioner submits that nobody has been able to confirm with any certainty that the person speaking to the Solicitor in Spanish on the other end of the telephone was Mrs Carmen Machuca, and this demonstrates the dangers and risks inherent in failing to properly confirm the identity of the person purportedly providing instructions.
3. The Commissioner further submits that, with the ageing population and the associated risk of financial elder abuse, vigilance is essential to protect the more vulnerable members of our community.
4. The Commissioner denies that his decision was unfair or malicious. He contends that the Solicitor was afforded procedural fairness throughout the investigation and, that in any event, this is a merits review.

Jurisdiction and nature of the Tribunal review

1. On 8 April 2020, submissions were taken in relation to whether the Tribunal should dispense with a hearing in these administrative review proceedings under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW) (NCAT Act), and neither party opposed that course. We are satisfied that the issues arising from the application can be determined adequately in the absence of the parties on the basis of the material and submissions lodged by them, and that therefore this matter can be appropriately dealt with on the papers. We will order that a hearing in relation to the application be dispensed with.
2. It is not in dispute that there was a provision of legal services by the Solicitor in NSW at the relevant time. The Solicitor was admitted to practise in this State on 25 May 2012 and is currently the sole principal at Harper James Law, Bankstown, New South Wales.
3. These proceedings are for administrative review under the ADR Act of the decision made by the Commissioner under s 299 of the Uniform Law: Uniform Law, s 314; Application Act, s 126. As far as we understand, this application before the Tribunal is only the second administrative review application brought by a legal practitioner under s 314 of the Uniform Law and s 126 of the Application Act.
4. Section 63 of the ADR Act applies to NCAT in exercising its administrative review function, and provides as follows: 63 Determination of administrative review by Tribunal (1) In determining an application for an administrative review under this Act of an administratively reviewable decision, the Tribunal is to decide what the correct and preferable decision is having regard to the material then before it, including the following: (a) any relevant factual material, (b) any applicable written or unwritten law. (2) For this purpose, the Tribunal may exercise all of the functions that are conferred or imposed by any relevant legislation on the administrator who made the decision. (3) In determining an application for the administrative review of an administratively reviewable decision, the Tribunal may decide: (a) to affirm the administratively reviewable decision, or (b) to vary the administratively reviewable decision, or (c) to set aside the administratively reviewable decision and make a decision in substitution for the administratively reviewable decision it set aside, or (d) to set aside the administratively reviewable decision and remit the matter for reconsideration by the administrator in accordance with any directions or recommendations of the Tribunal.
5. We do not understand there to be any dispute between the parties that relevant provisions in the Uniform Law, the Application Act and the ADR Act apply. We are satisfied that we have jurisdiction to determine the application.
6. This is a review on the merits: Donaghy v The Council of the Law Society of New South Wales [2013] NSWCA 154 ("Donaghy"). We are not concerned to examine whether there was challengeable error in the process or reasoning by the Commissioner, although parts of the grounds of the application as lodged in the Tribunal appear to proceed on this basis. As the NSW Court of Appeal said in Donaghy, the Tribunal is to "decide what the correct and preferable decision is having regard to the material before it" under s 63(1) of the ADR Act. That material includes "any relevant factual material". The nature of that review does not require that the Tribunal address whether the relevant administrator's decision involved error or was manifestly unsupportable. It is a review on the merits to be determined on the material before the Tribunal: Donaghy at [8].
7. The term "merits review" does not appear in the NCAT Act. In relation to the Commonwealth Administrative Appeals Tribunal (AAT), Kiefel J explained in Shi v Migration Agents Registration Authority (2008) 235 CLR 286; [2008] HCA 31 ("Shi") at [140] that the term "merits review", while not appearing in the Administrative Appeals Tribunal Act 1975 (Cth) is: "often used to explain that the function of the [AAT] extends beyond a review for legal error, to a consideration of the facts and circumstances relevant to the decision. The object of the review undertaken by the [AAT] has been said to be to determine what is the "correct or preferable decision". "Preferable" is apt to refer to a decision which involves discretionary considerations. A "correct" decision, in the context of review, might be taken to be one rightly made, in the proper sense. It is, inevitably, a decision by the original decision-maker with which the [AAT] agrees."
8. The nature of NCAT's administrative (or merits) review in the present context involves a two-stage process in which the Tribunal must engage in arriving at the "correct and preferable decision" concerning the complaint on the material before it. Accordingly, we must firstly determine whether the Solicitor engaged in unsatisfactory professional conduct, and if so, to decide what protective order or orders (if any) should be made.
9. The Tribunal must make its own decision in relation to both stages. There is no presumption that the Commissioner's decision is correct: McDonald v Director-General of Social Security (1984) 1 FCR 354 at 357; [1984] FCA 57.
10. The decision is made on the material before the Commissioner as the original decision-maker as well as any new material put before the Tribunal: Shi at [41]-[42], [98]-[99], [124]; Drake v Minister of Immigration and Ethnic Affairs (1979) 2 ALD 60 at 77; [1979] FCA 39.
11. The Tribunal is empowered to make any of the decisions set out in s 63(3) of the ADR Act. In addition, it may make any order it considers appropriate on the administrative review: Uniform Law, s 314(3).
12. The rules of evidence do not apply to the proceedings since they do not involve a question of professional misconduct: NCAT Act, s 38(2) and cl 20 of Sch 5; Uniform Law, s 301(3). It is clear from the statutory scheme that there is no requirement for the rules of evidence to be applied in proceedings before the Tribunal involving unsatisfactory professional conduct, regardless of whether the Tribunal's administrative review jurisdiction is engaged.
13. The Tribunal is entitled to inform itself on any matter in the manner it thinks fit, subject to the rules of natural justice: NCAT Act, s 38(2). Under s 38(1) the Tribunal determines its own procedure (unless the Act or procedural rules otherwise make provision). The Tribunal is to act with as little formality as the circumstances of the case permits "without regard to technicalities or legal forms": NCAT Act, s 38(4). An object of the NCAT Act is to enable the Tribunal to resolve the real issues in proceedings justly, quickly, cheaply and with as little formality as possible: NCAT Act, s 3(d).
14. The Tribunal is to take such measures as are reasonably practicable to ensure that the parties have a reasonable opportunity to be heard or otherwise have their submissions considered in the proceedings: NCAT Act, s 38(5).

Onus and standard of proof in administrative review proceedings

1. The Solicitor has not made any submissions about onus or standard of proof in these review proceedings. The Commissioner submits that, as this is not a disciplinary application for findings and orders, he does not carry the onus of proving any allegation, and that instead the Tribunal is to "stand in the shoes" of the Commissioner, to determine whether the decision was the "correct and preferable decision": ADR Act, s 63. We agree with the Commissioner that there is no onus of proof on him in these proceedings, nor is there an onus of proof on the Solicitor. Administrative review proceedings in NCAT are administrative and inquisitorial in nature, with no onus of proof on either the applicant or respondent.
2. Although the notion of onus of proof has no part in administrative proceedings, in some circumstances one or other party may bear a practical onus to prove facts in issue: Bushell v Repatriation Commission (1992) 175 CLR 408; [1992] HCA 47; Minister for Immigration and Multicultural and Indigenous Affairs v QAAH of 2004 (2006) 231 CLR 1; [2006] HCA 53 at [135]-[137]; Meacham v Commissioner of Police [2020] NSWCATAP 107 at [83]. The Tribunal's inquisitorial role does not mean that a party can simply present what are said to be facts and leave it to the Tribunal to search out the truth of any and all allegations, in effect shifting the burden of providing the evidence in support of a claim to the Tribunal: Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389; [2003] HCA 26 at [78].
3. The Commissioner refers to the Tribunal's summary of its powers in its administrative review jurisdiction in the decision in Hawkins v Council of the NSW Bar Association [2019] NSWCATOD 148 at [20], and contends that the summary applies equally to these proceedings. At (5) of [20], the Tribunal considered it "uncontroversial" that fact finding is to the civil standard, namely upon the balance of probabilities, and the Tribunal should apply the principles in Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 ("Briginshaw") to its fact finding in view of the seriousness of the allegations.
4. The so-called "Briginshaw standard" generally requires that a tribunal of fact "feel an actual persuasion" of the existence of a fact before it can be found, and that any allegation be made out to the "reasonable satisfaction" of the tribunal, depending on the gravity of the matters alleged: Briginshaw at 361-6 2; Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 CLR 445; [1992] HCA 66 ("Neat Holdings") at [2]. The Briginshaw standard has been described as a refinement of the civil standard of proof, finding contemporary expression in s 140(2) of the Evidence Act 1995 (NSW): Bronze Wing Ammunition v SafeWork NSW (No 2) [2016] NSWSC 988 ("Bronze Wing Ammunition") at [76].
5. If the Commissioner's submission is that the Tribunal is required to apply the civil standard of proof and/or the Briginshaw principles in what are administrative review proceedings, then we do not agree with that submission. A party seeking administrative review of a decision is not ordinarily required to establish its case on the balance of probabilities, and is not required to apply the Briginshaw standard: Bronze Wing International Pty Ltd v SafeWork NSW [2017] NSWCA 41 ("Bronze Wing International") at [15], [127]; Bronze Wing Ammunition at [77]; Sullivan v Civil Aviation Authority (2014) 22 FCR 555; [2014] FCAFC 93 ("Sullivan").
6. Rather, in an administrative review case, the parties put on such evidence as they wish and it is a matter for the Tribunal to properly consider all relevant materials and ignore all irrelevant matters in exercising the power of the relevant decision-maker in review proceedings. Even though the rules of evidence do not apply, the Tribunal is required to base its findings of fact on "logically probative material", and not on "mere suspicion or speculation", as a corollary of its obligation to act reasonably: Minister for Immigration and Ethnic Affairs v Pochi (1980) 44 FLR 41 at 62, 68; [1980] FCA 85; Sullivan at [5]-[8], [15]-[17].
7. The Full Federal Court in Sullivan and, in a later decision, the NSW Court of Appeal in Bronze Wing International, removed the previous uncertainty about the applicability of the Briginshaw standard in the context of administrative decision-making. In both cases, it was decided that the relevant tribunals exercising administrative review jurisdiction (the AAT and NCAT respectively) are not bound, as a matter of law, to apply Briginshaw principles.
8. In Sullivan, Flick and Perry JJ said there is "no general principle of law" that in making findings of fact that are "critical" or "material" to the reasoning process and where findings are "grave or serious", the AAT is bound to apply Briginshaw. Their Honours commented that the submission put to the Court failed to recognise that the rule in Briginshaw is a rule of evidence derived from curial proceedings; the tribunal is not bound by the rules of evidence; and a party to proceedings before the tribunal has no "onus of proof", let alone an "onus" to establish facts to any particular or pre-determined standard: Sullivan at [115].
9. Their Honours explained that there were fundamental difficulties with the suggested principle of law, including that the proposition is inconsistent with the charter entrusted to that tribunal and the deliberate and detailed legislative scheme enacted by the Parliament for the discharge by the tribunal of its statutory functions of review: Sullivan at [108]. Hallmarks of that statutory charter are that the tribunal is "the master of its own procedure, together with the emphasis placed upon informality and the freedom not to be bound by the common law rules of evidence": Sullivan at [88].
10. We earlier described the statutory scheme governing NCAT in its administrative review jurisdiction, which includes the same "hallmark" features referred to by Flick and Perry JJ in Sullivan in relation to the AAT. The scheme of NCAT is plain and that scheme is that NCAT is not bound by the rules of evidence, except when clearly expressed in the statute or enabling legislation. The NCAT Act specifies the limited circumstances in which the Tribunal is to apply the rules of evidence (see ss 38(3), 33, 77(6)). Section 128 of the Evidence Act 1995 dealing with the privilege against self-incrimination applies in Tribunal proceedings even where the Tribunal is not required to apply the rules of evidence: s 38(3)(b). With respect to proceedings involving the regulation of legal practitioners, cl 20 of Sch 5 to the NCAT Act modifies the usual rule that the rules of evidence do not apply in Tribunal proceedings for professional misconduct proceedings only. Such proceedings, by their nature, would typically involve serious allegations.
11. In Bronze Wing Ammunition, Button J of the Supreme Court said in relation to the NCAT administrative review proceedings below: "[a]s a matter of logic, as there was no onus of proof case upon either party, there can have been no standard of proof. If there was no standard of proof, including the civil standard of proof on the balance of probabilities, the principle in Briginshaw (it being a refinement of that standard) had no application to the proceedings before the single [NCAT] member." (at [77]) In Bronze Wing International, the appeal against Button J's decision, Basten JA of the Court of Appeal explained at [15] that the Briginshaw test is a "reference to a principle applied by courts in civil litigation in applying a standard of proof on the balance of probabilities", and neither the relevant regulatory authority nor NCAT was required to apply that principle. Leeming JA observed, of the primary judge's reasons, they "reflect the strictly correct proposition that neither Briginshaw nor s 140 of the Evidence Act applies directly in decision-making by NCAT where the rules of evidence do not apply": Bronze Wing International at [127].
12. However, it is also clear from the judgments of the Court of Appeal in Bronze Wing International and the Full Federal Court in Sullivan that where legislation governing a tribunal provides that the tribunal is not bound to apply the rules of evidence, there is not a prohibition upon that tribunal using the rules of evidence as a guide: Sullivan at [97], [121]. Further, it is not impermissible to have regard to Briginshaw principles. As Leeming JA said in Bronze Wing International at [127], the primary judge's reasons "should not be regarded as standing against the proposition that what was said in Briginshaw and Neat Holdings reflects a more general approach to fact finding, which is applicable by analogy to NCAT".
13. Judicial comments to similar effect can be found in other intermediate appellate court decisions: see eg Kyriackou v Law Institute of Victoria (2014) 45 VR 540 322; [2014] VSCA 322 at [26]-[30].
14. Following the decisions referred to above, the powers of NCAT in its administrative review jurisdiction would seem clear. While it is not impermissible for a tribunal not bound by the rules of evidence to rely on Briginshaw or otherwise to use the rules of evidence as a guide, the Tribunal is not required to apply (nor to refer to) Briginshaw principles or the rules of evidence. The fundamental obligation is to make findings of fact based on logically probative material. Such obligation is to be discharged in accordance with principles of procedural fairness and natural justice as recognised in the NCAT Act: see eg s 38(2) and (5).
15. We acknowledge that in making its findings the Tribunal can rightly have regard to the gravity of any allegations made and to the gravity of the consequences that may flow from the making of a particular finding or decision. However, we think that some caution should be exercised in relation to submissions from one or more parties to the effect that the civil standard of proof, and in the case of serious allegations Briginshaw principles, "should" be applied in administrative review proceedings such as those before us. Even where a respondent is prepared to meet the challenge of proving its case in accordance with rules of evidence such as the civil standard of proof and/or Briginshaw principles, as it would seem the Commissioner is, we do not accept the correctness of the contention that such principles "should" be applied. Had Parliament intended that there be a modification of the principle in s 38(2) of the NCAT Act that the Tribunal is not bound by the rules of evidence in proceedings such as these, it would have enacted legislation to that effect.
16. As Flick and Perry JJ explained in Sullivan at [120]: "When making findings of fact which have "serious" consequences to a party, or "grave" consequences, the [AAT] is free to consider the evidence and other materials before it. The more centrally relevant a particular fact may be to the decision reached, the Tribunal it may be accepted would express greater caution in evaluating the factual foundation for the decision to be reached." We consider that their Honours' observations provide useful guidance with respect to NCAT's administrative review task.

Evidence and submissions before the Tribunal

1. The Tribunal has before it evidence and submissions of the parties as follows: two affidavits of the Commissioner, John McKenzie, dated 13 December 2019; the respondent's written submissions dated 16 December 2019; affidavit evidence of Mouna Youssef dated 7 May 2020, which also contains the applicant's written submissions; and the respondent's written submissions in reply dated 14 May 2020.
2. An affidavit of the Commissioner dated 13 December 2019 annexes a paginated bundle of documents marked Exhibit "JM 1" being the documents in the possession and control of the Commissioner relevant to his determination, disclosed as required by s 58 of the ADR Act. Another affidavit of the Commissioner of the same date annexes documents relating to entries on the Register of Disciplinary Action maintained by the Commissioner under the Uniform Law with respect to two previous reprimands given to the Solicitor.
3. While acknowledging that the rules of evidence do not apply to these proceedings, the Commissioner submits that parts of the Solicitor's affidavit sworn on 7 May 2020 would ordinarily be inadmissible. He argues that appropriate weight should be given to any part of the affidavit that is based on anything other than what the Solicitor personally saw, heard or otherwise perceived first-hand.

Our findings

1. From the evidence before us, relevant facts are not controversial and we make the following findings: 1. The Solicitor was admitted on 25 May 2012 to practise law in New South Wales, she holds a NSW practising certificate, and is currently principal solicitor of the firm Harper James Law. As at August 2018, she was the sole principal at Mouna Joussef & Associates. 2. As at 25 August 2018, Mrs Carmen Machuca was 97 years of age (date of birth 20 July 1921), and had been diagnosed with dementia. She is, and was at that time, a full time resident in an aged care facility in Melbourne. 3. Mrs Victoria Solier is the daughter of Mrs Machuca. She holds an enduring power of attorney dated 26 Feburary 2016 from her mother, which came into effect upon written confirmation from a duly qualified medical practitioner that Mrs Machuca was no longer capable of managing her own affairs. A consultant geriatrician assessed Mrs Machuca on 8 July and 2 August 2018, and provided a written opinion which confirmed Mrs Machuca's diagnosis of dementia and her inability to manage her own affairs. The precise date on which the enduring power of attorney came into effect is not before the Tribunal and we make no finding in this respect. 4. As at 25 August 2018, Mrs Machuca owned a property at Sydenham, Victoria as tenant in common in equal shares with Mr J Guisande (also a full time resident in an aged care facility in Melbourne). The property was being sold to fund costs of the accommodation bond for the nursing home. 5. On 25 August 2018, a relative of Mrs Machuca, Mrs Rosario Connell, along with Mrs Connell's daughter Rosemarie Connell, attended the Solicitor's office in Bankstown in NSW. Mrs Connell was an existing client of the Solicitor's firm. 6. Mrs Connell's evidence was that she advised the Solicitor her aunt Mrs Machuca was seeking a solicitor, that she was in Melbourne and as she was elderly she would only be available by phone. (Mrs Solier's evidence is that Mrs Connell is a second cousin to her mother Mrs Machuca. We do not think anything turns on the precise familial relationship between Mrs Rosario (Rose) Connell and Mrs Machuca.) 7. During Mrs Connell's consultation with the Solicitor and in front of the Solicitor, Mrs Connell telephoned a person whom she represented to the Solicitor was Mrs Machuca. 8. The woman on the other end of the phone line spoke only Spanish, and Mrs Connell acted as an interpreter during the telephone conversation. The Solicitor did not speak or understand Spanish. The Solicitor did not know that Mrs Machuca was in an aged care facility. 9. The Solicitor's evidence was that she took the woman's full name, date of birth, property information and instructions, through Mrs Connell's interpretation. Instructions were given from the woman on the other end of the phone, through Mrs Connell's interpretation, to place a caveat on the property in Sydenham, Victoria to prevent its sale. 10. The Solicitor requested that the woman on the other end of the telephone line send her identification. A photo was sent from a smartphone to Mrs Connell's smartphone as she sat with the Solicitor and Rosemarie Connell. 11. The photo showed a hand holding a recently expired driver's licence (expiry date 1 August 2018), the licence on its face belonging to Mrs Machuca. The birthdate of 20 July 1921 was clearly visible on the expired driver's licence. The photo could not be compared with the face of the person on the other end of the telephone line because the call was audio only, not audiovisual. 12. After the telephone call, the Solicitor proceeded to lodge the caveat. 13. No other steps were taken by the Solicitor to verify the identity of the person at the other end of the phone line. 14. The Solicitor had no way of knowing whether the person she spoke to, through the interpretation of Mrs Connell, was in fact Mrs Machuca, other than the assurance given by Mrs Connell. 15. The Solicitor lodged a "Caveat to Prevent Fraudulent Dealings", with LandVictoria, over Mrs Machuca's property on 25 August 2018. The documentation lodged with LandVictoria stated that the Solicitor verified Mrs Machuca's identity. 16. Mrs Connell paid the Solicitor's tax invoice for the consultation and the lodgement of the caveat. 17. Mrs Solier discovered the existence of the caveat in late August or early September 2018, and sought legal assistance from Aberdeen Lawyers to find out who had lodged the caveat and on whose instructions, and to have the caveat removed. 18. On 4 September 2018 Aberdeen Lawyers advised the Solicitor, by letter, that Mrs Machuca was a fulltime resident in an aged care facility in Melbourne; she lacked the capacity to provide cognisant instructions to the Solicitor to lodge the caveat; and Mrs Solier holds the enduring power of attorney dated 26 March 2016 which had come into effect given Mrs Machuca's lack of capacity. The immediate withdrawal of the caveat was requested. 19. On 12 September 2018 the Solicitor advised Aberdeen Lawyers by letter that she would proceed to have the caveat withdrawn now that she had been made aware that Carmen Machuca's attorney under an enduring power of attorney is Mrs Solier. The Solicitor took steps thereafter to have the caveat removed at her cost. 20. Mrs Solier asked the Solicitor to pay the legal costs (approximately $1800) incurred as Mrs Machuca's attorney. The Solicitor refused to contribute to those costs but agreed to pass the relevant invoice to Mrs Connell for payment. The legal costs incurred by Mrs Machuca's estate have not been recouped to date.
2. There is no common ground on whether the woman on the other end of the phone line on 25 August 2018 purporting to give instructions (in Spanish) was, in fact, Mrs Machuca. Mrs Rosario Connell asserts that it was Carmen Machuca, that she understood Spanish, that Mrs Machuca's instructions were clear and coherent and she wanted the caveat lodged over the property. However, Victoria Solier asserts that her mother did not speak to the Solicitor through Mrs Connell, and that her mother confirmed with her that she has never had any conversation with the Solicitor or advised her to act in any capacity whatsoever on her behalf. Mrs Solier states that Mrs Rosario Connell made a phone call to an alternative unknown person from her mobile phone whilst with the Solicitor and the person Mrs Connell spoke with was not her mother.
3. The Tribunal is not a position to make a finding of fact as the identity of the woman on the other end of the phone line on that day. There would appear to be two possibilities - the woman on the other end of the phone was not Carmen Machuca, or alternatively it was Carmen Machuca and when she later spoke to her daughter Victoria she could not recall having had a phone conversation with the Solicitor, nor giving instructions to the Solicitor. This would hardly be surprising given her diagnosis of dementia.
4. Given that the central issue under consideration is whether the Solicitor failed to adequately verify the identity of Mrs Carmen Machuca, and not whether the person on the phone was, or was not, Carmen Machuca, we do not consider that it is necessary for us to make a finding on the woman's identity. We have made a finding at (14) of [49] above that the Solicitor could not be reasonably assured that the woman was Carmen Machuca.

Did the Solicitor engage in unsatisfactory professional conduct?

1. It is part of our task to consider whether, on the law and relevant factual material before us, the conduct of the Solicitor amounts to unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law, which is in the following terms: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of the lawyer occurring 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 lawyer.
2. It is not in dispute that the conduct of the Solicitor in question was conduct of a lawyer occurring in connection with the practice of law. The issue is whether, in the circumstances before us, her conduct fell short of "the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer".

The Commissioner's final determination of 18 October 2018

1. We reproduce relevant parts of that determination, as follows: "…I have considered your recent submissions and comment as follows: 1. You refer to the fact that Mrs Machuca was "on the phone, spoke in Spanish and was translated by Mrs Connell" and therefore you were able to confirm her full name, date of birth, name of the property and instructions regarding legal action. The fact that you were not in a face to face meeting with Mrs Machuca only serves to place a greater burden on you to take care in checking that the person purporting to be Mrs Machuca was in fact her. However, in the circumstances of this complaint, not only did you not see Ms Machuca "in person" you did not even speak to her directly because the person purporting to be her only spoke Spanish. The language barrier, in addition to her advanced years, emphasised Mrs Machuca's vulnerability and the need for you to be confident that the person purporting to be Mrs Machuca was in fact her. You were not in a position to do this by telephone as you did not speak Spanish but instead relied on the person in your office in front of you who was speaking to the person purporting to be Mrs Machuca. 2. You say that you had every intention of flying to Melbourne to see Mrs Machuca and that you took steps to have the caveat removed as soon as you became aware of Mrs Solier's involvement. Both of these events took place after the conduct the subject of the complaint occurred. Stating what you intended to do or what you did in fact do after the conduct the subject of the complaint occurred does not erase that conduct. 3. Similarly you point to the fact that Mrs Solier has not provided any evidence that she has suffered financial loss. This is irrelevant to the consideration of whether or not you engaged in unsatisfactory professional conduct. In other words, it is not the consequences of your conduct that is indicative of whether or not you engaged in unsatisfactory professional conduct. I have previously noted that the person who consulted you on 25 August 2018 was Mrs Rosario Connell, a niece of Mrs Carmen Machuca. The instructions that were purported to be made to you, through Mrs Connell, were that a caveat was to be placed on the property …, Sydenham, Victoria, VIC 3037. This was Mrs Machuca's home. When you sought to verify those instructions with Mrs Machuca, a 97 year old woman who only spoke Spanish, you accepted a photograph of Mrs Machuca's driver's licence, sent instantaneously to Mrs Connell's smartphone as she sat in front of you in your office. You have provided a copy of that photograph to my Office. In my view, it is clear that the hand in the photograph is not that of a 97 year old woman. I do not consider it likely that a 97 year old woman would be so adept as to instantly locate, photograph and transmit by smartphone a copy of her driver's licence. It is concerning that the fact that Mrs Connell asserted this to be the case did not pique your curiosity. You do not appear to have taken any other steps to satisfy yourself that the person providing the instructions to Mrs Connell by smartphone was in fact Mrs Machuca. Given that you did not meet Mrs Machuca, noting her age and apparent inability to communicate in English or another language that you could speak, my view is that there was an onus on you to take additional, more rigorous steps to confirm her identity. I consider that your failure to adequately verify Mrs Machuca's identity is conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer."

The Solicitor's submissions

1. The Solicitor argues she was not at fault and did everything that a prudent and diligent solicitor would have done in the circumstances. She says she did not know Mrs Machuca was in an aged care facility, and the person on the other end of the telephone spoke clearly and coherently and did not present as somebody who had dementia or lacked cognitive capacity to make decisions. The driver's licence sighted by the Solicitor was only recently expired, and she says that according to the relevant NSW roads authority, photo identification that has expired within two years is still an acceptable form of identification. The Solicitor says that Mrs Machuca (or someone else assisting her) took a photo of her identification and sent it to Mrs Connell's phone as identification.
2. The Solicitor says it is not feasible to obtain face to face instructions on every occasion, and that instructions can usually be obtained via phone, facetime or email once she has verified the identity of a client with a driver's licence or passport. She says that she had every intention of flying to Melbourne to see Mrs Machuca before she knew that Mrs Solier was involved.
3. The Solicitor also argues there was no loss or other detriment to Mrs Machuca or Mrs Solier. She says that Mrs Solier did not bring legal proceedings against the Solicitor and there were therefore no costs orders made against her in this regard. The Solicitor emphasises that the caveat was removed, at her expense, when she became aware of the circumstances.

The Commissioner's submissions

1. The Commissioner submits that, whilst it seems unlikely that the person speaking to the Solicitor was Mrs Carmen Machuca (having regard to all circumstances, including the medical evidence), the Tribunal does not need to determine this issue. The Tribunal only needs to determine whether the steps taken by the Solicitor (to confirm the identity of the person she was speaking to) were sufficient; noting that the Solicitor only viewed an expired licence, and otherwise relied entirely on Mrs Connell's representations and Spanish interpretation. The Commissioner further contends that it goes without saying that photo identification is of little to no use without actually seeing the face of the person purporting to rely on that identification. The Solicitor did not see the face of the person on the other end of the telephone line; she only saw the photograph of a hand with the expired driver's licence.
2. The Commissioner submits that whether loss, or other adverse consequence, flowed from the Solicitor's conduct is not the relevant question. Adverse consequence is not an essential element of the definition of unsatisfactory professional conduct in s 296 of the Uniform Law. Regardless of whether loss occurred, at the time the acts or omissions occurred, namely on 25 August 2018, they constituted unsatisfactory professional conduct. The Commissioner points to the case of Council of the Law Society of NSW v Yang (No 2) [2017] NSWCATOD 111 ("Yang") at [9], where the Tribunal made the following comments: "The Tribunal is aware that no loss has occurred in this instance. However as was observed in Law Society of NSW v Moulton (1981) 2 NSWLR 736, the fact that a client "...suffers no loss is of little, if any relevance. If the acts or omissions of a solicitor constitute professional misconduct, they do so at the time when they occur." (At 740 C-D). See also: Bolster v Law Society of NSW (unreported, 20 September 1982) CA 233/1982."
3. The Commissioner also refers to the important role of a solicitor (and licensed conveyancer) in the modern system of electronic lodgement of caveats, and points to the Supreme Court case of Guirgis v JEA Developments Pty Limited [2019] NSWSC 164 ("Guirgis") at [39]-[42] where Kunc J described that role as "a guardian at the gate". The Commissioner emphasises that electronic conveyancing and other digital transactions are likely to become the norm moving forward, and high standards are expected of lawyers with respect to such transactions.

Our consideration

1. The relevant time to assess whether the Solicitor engaged in unsatisfactory professional conduct is at the time the acts or omissions are alleged to have occurred, in this matter, on and about 25 August 2018. There is also no requirement that a person suffer loss or other detriment as a consequence of a solicitor's acts or omissions. This much is clear from the case law. In Law Society of NSW v Moulton (1981) 2 NSWLR 736 at 740, Hope JA, with whom Reynolds JA agreed, held that: if the acts or omissions of a solicitor constitute professional misconduct, they do so at the time they occur; and when considering whether a solicitor engaged in professional misconduct, the fact that no loss resulted from the conduct is of little, if any, relevance. See also Yang cited above.
2. While loss or other detriment is not required before unsatisfactory professional conduct can be made out for the purposes of s 296 of the Uniform Law, we note that we do not accept the Solicitor's submission that the complainant suffered no loss or detriment. Mrs Machuca's estate has incurred legal costs in taking steps to have the caveat removed, and as far as the Tribunal is aware, those costs have not been recouped. Further, contrary to the Solicitor's submission, the fact that the complainant did not commence any legal proceedings against the Solicitor's firm is irrelevant.
3. Turning specifically to electronic transactions, in the course of his judgment in Guirgis, Kunc J highlighted several important issues for practitioners in the age of electronic conveyancing. In that case, a caveat was lodged electronically by a licensed conveyancer, with the conveyancer certifying that, to the best of the conveyancer's knowledge, the caveator had a good and valid claim to the property in question. The caveat specified the claimed interest in land was by virtue of a loan agreement. It was later revealed that the conveyancer had not sought any further information about the alleged loan agreement from the caveator. The Supreme Court ordered the removal of the caveat, and found that, in lodging the caveat, the conveyancer failed to make the relevant inquiries.
4. Kunc J drew attention to the heightened role of solicitors and licensed conveyancers in the move to electronic platforms: "[39] As New South Wales' conveyancing system moves to a completely electronic platform, the role of conveyancers, solicitors and others as persons qualified to prepare and lodge caveats becomes all the more important. Ordinary members of the public are, in practical terms, no longer able to lodge caveats without the intervention of a "Subscriber", who in many cases will be a solicitor or licensed conveyancer. The requirement to give the requisite representations and certifications operates to confer on them the role of a guardian at the gate. [40] Dealing with caveats takes up a considerable amount of time in both the Equity Division's Duty List and Real Property List. Although the Act contains compensation provisions in respect of caveats that have been improperly lodged, that compensation can only go so far to compensate a registered proprietor for the delay, stress and expense caused by a caveat that should never have been filed. The community also suffers because the Court's time is taken up when it should not have been. … [42] The legislative and regulatory scheme which I have set out above assumes that the person making the various representations and certifications in an electronically lodged caveat has the requisite degree of knowledge and has approached their task with appropriate diligence. The Court and the community expect nothing less. …."
5. Further, his Honour commented that costs orders and compensation may not be the only risk for parties and practitioners who lodge a caveat, professional disciplinary proceedings may also follow: "[43] … I see no reason why the Court should not draw matters such as the present to the attention of the appropriate authority for it to take such action as it thinks fit."
6. Turning to the circumstances before the Tribunal, the material issue for consideration is whether the Solicitor failed to take adequate steps to verify the identity of the caveator Carmen Machuca before lodgement of the caveat on or about 25 August 2018 purportedly on her instructions. In executing the caveat on behalf of Carmen Machuca, the Solicitor stated as the certifier that she had taken all reasonable steps to verify the identity of the caveator.
7. Putting to one side the requirements of certification in electronic conveyancing transactions, as a more general proposition it is of course incumbent on a solicitor to take adequate steps to verify the identity of any new client before acting on the new client's instructions. We do not consider it controversial that where a solicitor obtains instructions from a new client, the solicitor needs to ensure that the person purporting to give instructions is in fact the person he or she is asserted to be. Where the new client is not known to the solicitor (a "stranger"), then the solicitor needs to take particular care to verify the identity of the new client. Where the new client is both a stranger and there is no face to face meeting, then the solicitor must be on guard to take even greater precautions to ensure that the identity of the stranger is verified.
8. Here, the Solicitor continues to assert before the Tribunal, as she did before the Commissioner, that she took reasonable steps to obtain instructions from Mrs Machuca as a new client of her firm. In a letter to Aberdeen Lawyers dated 12 September 2018, she wrote: "[W]e are well aware of the requirements of obtaining identification before any caveats or other documents are lodged on behalf of our clients. … [I]n our practice every new client is verified with either their drivers' licence or passport before their details are entered into our system. Carmen Machuca is not the exception."
9. Even if we were to consider this type or level of identity verification adequate prior to lodgement of a caveat on a client's behalf (which we do not), the Solicitor did not verify Mrs Machuca's identity as a new client with her (recently expired) driver's licence. Photo identification such as a driver's licence is of no utility if the legal practitioner does not see the face of the person purporting to rely on that identification. The Solicitor did not see the face of the person on the other end of the telephone line; she saw only the photograph of a hand with the recently expired driver's licence.
10. We do not consider that the steps taken by the Solicitor on 25 August 2018 to confirm the identity of the person she was speaking to (through a third party's interpretation) were sufficient to discharge her professional responsibilities. There was no face to face meeting to confirm the client's identity. There was no adequate photo identification verification. There was no insistence on the Solicitor's part on any visual identification, nor any other form of identity verification.
11. The Solicitor was on notice that Mrs Machuca was 97 years old (the birthdate being clearly visible on the photo of the expired driver's licence), and that Mrs Machuca spoke no English. She was thus clearly in a vulnerable group, which required an even greater level of care to be taken to verify identity and cognisant instructions.
12. The Solicitor neither spoke nor understood Spanish. There was no Spanish interpretation from a person independent from Mrs Machuca, nor any efforts to obtain the services of an independent professional interpreter. That left the Solicitor in the position where she relied entirely on the representations of Mrs Rosario Connell - those representations went not only to the identity of Mrs Carmen Machuca but also the content of the instructions purportedly being given by the person on the other end of the phone. While Mrs Connell was known to the Solicitor as she was an existing client, it was nonetheless inappropriate for the Solicitor to rely solely on Mrs Connell's representations in the way that she did.
13. We find that the Solicitor's conduct constituted unsatisfactory professional conduct within the meaning of s 296 of the Uniform Law, in that her conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent legal practitioner.

Protective orders

1. Having found that the Solicitor engaged in unsatisfactory professional conduct, we now turn to consider the question of protective orders. Section 299(1) provides as follows: 299 Determination by local regulatory authority - unsatisfactory professional conduct (1) The designated local regulatory authority may, in relation to a disciplinary matter, find that the respondent lawyer … has engaged in unsatisfactory professional conduct and may determine the disciplinary matter by making any of the following orders - (a) an order cautioning the respondent …; (b) an order reprimanding the respondent …; (c) an order requiring an apology from the respondent …; (d) an order requiring the respondent …to redo the work that is the subject of the complaint at no cost or to waive or reduce the fees for the work; (e) an order requiring - (i) the respondent lawyer; … to undertake training, education or counselling or be supervised; (f) an order requiring the respondent … to pay a fine of a specified amount (not exceeding $25 000) to the fund referred to in section 456; (g) an order recommending the imposition of a specified condition on the Australian practising certificate … of the respondent lawyer ….
2. The statutory power for the Tribunal to make orders is found in s 314(2) of the Uniform Law, such that we may make any protective order we consider appropriate on this administrative review.
3. When considering the facts or issues that may be taken into account by the Tribunal in connection with the appropriateness of protective orders, the issue is one of relevance, determined by reference to the elements in the question, or questions, necessary to be addressed in reaching the "correct and preferable" decision: see for example Shi at [142].
4. In determining what protective order or orders to make, it is open to us to take into a range of factors that emerge from the material before us, including whether, and if so, when, the Solicitor genuinely reached the stage of understanding why the conduct found against her fell short of a reasonable standard of diligence and competence; whether she is appropriately regretful of this conduct; what degree of likelihood (if any) is there that she will re-offend; whether there is past relevant substantiated adverse disciplinary findings and decisions; and what measures are necessary, by way of both specific and general deterrence, to protect members of the public from the damage potentially inflicted by the failure of legal practitioners to fulfil their professional duties prudently and diligently.
5. We are mindful that the Tribunal's power is to be exercised in a manner that is likely to achieve the maintenance of a high standard of conduct within the legal profession which will continue its good reputation, and so protect, not only the future of the profession, but also protect its clients from harm. It is well-established that the jurisdiction of both the courts and the Tribunal in legal professional disciplinary matters is protective, not punitive. In Law Society of New South Wales v Walsh [1997] NSWCA 185 it was said that the Court's duty to protect the public is not confined to the protection of the public against further misconduct by the particular practitioner who is the subject of disciplinary proceedings. It extends to protecting the public from similar defaults by other practitioners. We consider that the comments in the authorities about the protective nature of the jurisdiction exercised by the courts and the Tribunal in relation to disciplinary proceedings apply with equal force to the Tribunal when it exercises its administrative review jurisdiction.
6. We do not understand the Solicitor to have made any specific submission about protective orders in the event that the Tribunal makes a finding of unsatisfactory professional conduct. The Solicitor's primary position is that she should not be the subject of any protective order.
7. The Commissioner submits that, if the Tribunal makes a finding of unsatisfactory professional conduct, a reprimand is appropriate in this case. In support of his position, he argues that the purpose of a reprimand is to publicly censure the relevant conduct so as to deter, not only the solicitor, but also other lawyers that might be minded to engage in similar conduct, so as to uphold and publicly mark the high standards that lawyers are held to. The Commissioner argues that electronic conveyancing and other digital transactions are likely to become the norm moving forward, and lawyers should be aware of the high standards expected of them with respect to such transactions.
8. We consider that the Solicitor's conduct, considered alone, is sufficient to warrant a reprimand. We do not agree with the Solicitor's contention that her conduct, if it constitutes unsatisfactory professional conduct, was "at the minor end of the spectrum". A reprimand demonstrates that the practitioner is sanctioned for failing to meet expected professional standards, and acts as a deterrent to other legal practitioners; and further, upholds and reinforces the standards of the profession. We are conscious that an order of this kind is given wide publicity through the internet and should be regarded as a significant penalty.
9. However, there are some factors in the present matter which warrant consideration with respect to whether one or more additional protective orders should be made. The Solicitor's claims that the Commissioner's actions are malicious and unfair show a lack of awareness of the proper role of regulatory authorities under the Uniform Law. Further, in the way she has presented her application to the Tribunal the Solicitor has not demonstrated an understanding of the seriousness of her conduct. There is also evidence of the Solicitor having prior adverse disciplinary history.

Lack of insight

1. The Solicitor's lack of insight into her conduct and to the regulatory responsibilities of the Commissioner is relevant to the Tribunal's deliberations on protective orders. In her application for administrative review the Solicitor maintained that she did not do anything wrong (which was also the position the Solicitor adopted throughout the Commissioner's investigation of Mrs Solier's complaint). The Solicitor accused the Commissioner of being malicious, unfair and unreasonable, and described the reprimand issued by the Commissioner on 18 October 2019 as being "grossly unfair and unreasonable". In her submissions dated 7 May 2020, she contended that the Commissioner had "no basis" to make a finding for unsatisfactory professional conduct, seemingly on the basis that there was no evidence of any detriment to any party involved.
2. She then argued that "[i]t is hard to see how it could possibly be in the public interest to prosecute practitioners for alleged unsatisfactory professional conduct at this minor end of the spectrum provided they've apologised to the complainant or re-done the work or waived some or all of their fee or rectified the issue or undertaken some training". From this submission, which appears inconsistent with her earlier submission that there was no basis for a finding of unsatisfactory professional conduct, it would seem that she accepts her conduct may be capable of constituting unsatisfactory professional conduct at the "minor end of the spectrum".
3. However, in those same submissions, the Solicitor continued to accuse the Commissioner of being malicious, stating that "just because the Respondent is the Regulator does not give [it] the right to make determinations against a Legal Practitioner that are malicious and have no merits". We agree with the Commissioner's submission that insight into her conduct is not demonstrated by attacking him or the OLSC by making unfounded accusations to the effect that his determination under review was based not on the merits, but on malice. The Tribunal is troubled by the Solicitor's lack of understanding of the regulatory role and functions of the Commissioner.
4. The Solicitor also asserts that because there was no detriment to Mrs Machuca, there was therefore "no negligence" and no unsatisfactory professional conduct. It is difficult to discern from the material before us whether there is any genuine recognition from the Solicitor that her conduct fell below the standard required of a competent and diligent solicitor, nor even that in hindsight she should have carried out more rigorous client identity checking.
5. On the other hand, there is some (albeit limited) evidence of contrition on the part of the Solicitor. In an email from the Solicitor to Aberdeen Lawyers dated 14 September 2018 to advise that the process for the withdrawal of the caveat was in train, she ends by apologising "for the distress this has caused your client. Ms Connell conveyed a completely different account of what had occurred to us. At no point did she tell us [Mrs Machuca] was in a nursing home or that she had dementia."
6. We indicated earlier that, in our view, the Solicitor's conduct warrants a reprimand. We are reinforced in that conclusion because of her apparent lack of understanding of the Commissioner's regulatory responsibilities, as well as the practitioner's apparent failure (at least in the way she has presented her application to the Tribunal) to recognise that her conduct fell short of the standard required of a "reasonably competent lawyer".

Previous substantiated adverse conduct

1. The Solicitor has been reprimanded on two previous occasions following findings of unsatisfactory professional conduct under the Uniform Law in relation to different sets of circumstances - by the Tribunal on 23 November 2018 in the orders made in Law Society of New South Wales v Youssef [2018] NSWCATOD 187 ("2018 decision"); and by the Commissioner on 26 July 2019.
2. The Commissioner submits that the number of reprimands is significant, given her relatively short legal career, and that past substantiated adverse findings should be taken into account by the Tribunal. The Solicitor argues that the two previous reprimands on her record are not an indication of her capacity as a solicitor. In relation to the reprimand ordered by the Tribunal in the 2018 decision, she says that decision should not be taken into consideration because it is not relevant to this matter and because the Tribunal had no jurisdiction to determine that matter and accordingly she should not have that disciplinary finding on her record.
3. Neither party has provided submissions as to the legal basis on which previous relevant adverse disciplinary findings or decisions can, or should, be taken into account by the Tribunal, or conversely, cannot or should not be taken into account by the Tribunal.

Taking into account previous disciplinary findings or decisions

1. The previous disciplinary findings and decisions relate to separate factual circumstances, and we did not take them into account in making our finding of unsatisfactory professional conduct in this administrative review. However, to the extent relevant, we consider that previous disciplinary findings or decisions can be taken into account by the Tribunal in determining what protective orders should be made.
2. We find the analysis in Aronson, Dyer & Weeks, Judicial Review of Administrative Action and Government Liability, 6th ed, 2017 at [5.30] to be helpful. The authors distinguish between considerations which are forbidden, that is, irrelevancies whose consideration invalidates the decision; considerations which are permissive, that is, considerations that may be taken into account, but their oversight does not invalidate the decision; and considerations which are mandatory, that is those matters that are relevant and their oversight results in invalidity.
3. We do not understand the Solicitor to argue that to have regard to previous (relevant) disciplinary findings or decisions would be to take into account "irrelevant considerations". However, if the Solicitor did intend to make such submission, we observe that "irrelevant considerations" are factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. The applicant has not identified how, whether expressly or by implication, the relevant statutes preclude the Tribunal from taking such factors into account.
4. We do not consider it impermissible to have regard to relevant prior disciplinary findings or decisions, bearing in mind the relevant statutory context including the stated purposes of the Uniform Law. Chapter 5 of the Uniform Law (in which s 314 is located) includes: 260 Objectives The objectives of this Chapter are - … (b) to provide a scheme for the discipline of the Australian legal profession, in the interests of the administration of justice and for the protection of clients of law practices and the public generally; and (c) to monitor, promote and enforce the professional standards, competence and honesty of the Australian legal profession. The overarching objectives of the Uniform Law with respect to the regulation of legal practitioners, include at s 3(b) "ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services"; at 3 (c) "enhancing the protection of clients of law practices and the protection of the public generally"; and at 3(e) "promoting regulation of the legal profession that is efficient, effective, targeted and proportionate".
5. Noting that we do not have the benefit of detailed submissions on this point and without expressing a concluded view, we doubt that previous disciplinary findings or decisions must be taken into account as mandatory relevant considerations such that it would be an error of law to fail to do so. The ground of failure to take into account a relevant consideration can be made out only if a decision-maker fails to take into account a consideration he or she is bound to take into account in making that decision: Minister for Aboriginal Affairs v Peko-Wallsend Ltd (1986) 162 CLR 24; [1986] HCA 40 ("Peko-Wallsend"). Determining when a particular consideration is a mandatory consideration requires interpretation of the applicable legislation: first, any express statement of the mandatory factors; and if not expressly stated, by implication from the subject matter, scope and purpose of the statute: Peko-Wallsend at 39-40.
6. There is no express statutory obligation on the Tribunal to have regard to previous disciplinary findings or decisions in relation to a legal practitioner (compare, for example, s 41O of the Health Practitioner Regulation National Law (NSW) which provides that a medical council must have regard to a previous finding or decision of a Council inquiry in relation to the medical practitioner or student, to the extent the Council reasonably considers the matter to be relevant to the complaint). As to whether there is any implied statutory obligation to have regard to previous disciplinary findings or decisions, we do not need to decide. This is a question on which the Tribunal would be assisted by submissions from relevant parties in an appropriate case.
7. For present purposes, we think that previous disciplinary findings or decisions (where relevant) can be described as "permissive" considerations. That is, they are considerations that may be taken into account where relevant, but their oversight does not invalidate the decision. We are reinforced in this view by the purposes of Chapter 5 of the Uniform Law and the more general objectives of that Law, as above mentioned.
8. While admittedly not in an administrative review context, the Tribunal has in other cases had regard to a legal practitioner's previous disciplinary findings and decisions in determining appropriate protective orders: see, for example, Council of the Law Society of NSW v Gallego (No 2) [2017] NSWCATOD 61.

Reprimand of 23 November 2018

1. On 23 November 2018 the Tribunal issued a reprimand after finding that the Solicitor was guilty of unsatisfactory professional conduct for failure to comply with a notice issued by the Law Society under s 370 of the Uniform Law.
2. The Solicitor argues that the Tribunal had no jurisdiction to determine the matter in the 2018 decision, because, from her reading of the Tribunal decision in Council of the Law Society of New South Wales v DXW [2019] NSWCATOD 101 ("DXW") and subsequent Tribunal decisions cited, there was no valid complaint against her by the Law Society, and therefore the Tribunal did not have jurisdiction to make the findings and orders that it did. In DXW the Tribunal addressed procedural defects arising from a 2015 delegation given by the Commissioner to the Law Society affecting disciplinary matters.
3. To the extent that the Solicitor refers to the issues raised in DXW, we note the provisions of cl 23 of Sch 9 to the Application Act, inserted by the Justice Legislation Amendment Act (No 2) 2019 (NSW) and commenced on 22 November 2019. One effect of these amendments was to retrospectively validate the Law Society's delegated authority to refer legal practitioners to the Tribunal. To the extent that the Solicitor's case was affected by the procedural defects referred to in DXW, and we do not need to consider whether her case was so affected, the result of the legislative amendments is that the Tribunal's findings and conclusion in the 2018 decision are valid. For an example of the application of cl 23 of Sch 9 to the Application Act, the Commissioner refers to The Council of the Law Society of NSW v Autore [2020] NSWCATAD 79 at [7].
4. The 2018 decision related to the Solicitor's failure to comply, for a lengthy period of time, with a compulsory notice issued by the Law Society for production of records. The matter related to some trust accounting issues identified in 2015 by a trust account investigator from the Law Society, which culminated in the trust investigator sending a notice to the Solicitor in June 2016 requesting access to certain trust records and client files within 7 days - it was not until some 18 months after the notice was issued that the last of the requested material was provided to the Law Society. The Tribunal found that the Solicitor had an obligation to comply with the notice within time and failed to do so - she gave no particular priority to communications from the Law Society, and had many opportunities to comply and many warnings and still failed to do so.
5. The Tribunal said that the particular facts and circumstances "just tip" the balance against professional misconduct. Factors in favour of this approach included the Solicitor's youth and relative inexperience, and lack of support, in running her own busy practice; that there was no dishonesty and no deliberate obstruction of the investigator; her contrition and deep regret for her failures to comply and assist; acceptance of her evidence that she acted as she did out of a misguided notion to prioritise client matters over practice regulatory matters; her acknowledgment of the need to conduct her practice on a regulatory-compliant basis in future; her accepting to undertake a course of study in ethics/professional responsibility and acknowledgment of deficiencies in her appreciation of her obligations; and "her good prospects of not re-offending": 2018 decision at [57].
6. The Tribunal accepted as an explanation, not an excuse, that the Solicitor was overwhelmed "as a busy young practitioner who had recently set up her own practice which she was operating alone" and that she was confronted with serious health issues of a close relative at the relevant time. The Tribunal said, however, that her "explanation suggests to us that the respondent had a rather cavalier way of dealing with matters that she saw as a distraction from the work in her busy practice": 2018 decision at [48]. The Tribunal also said it was evident she did not have a full appreciation of the seriousness of the situation she found herself in, and the real possibility that she may be suspended or have her practising certificate cancelled. Moreover, "[h]er recognition of her obligations came very late after many reminders and warnings": 2018 decision at [51]. The Tribunal found that "[her] conduct was incredibly naive", and that "her evidence demonstrated that she needed to better understand the regulatory structures of the profession and her duties in that regard": 2018 decision at [52].

Reprimand of 26 July 2019

1. On 26 July 2019 the Commissioner issued a reprimand to the Solicitor under s 299(1)(b) of the Uniform Law after making a finding of unsatisfactory professional conduct by reasons that she had failed in her duty to the Court by: (1) failing to file notice of withdrawal of representative; (2) failing to take steps to prepare matter for hearing; and (3) failing to communicate courteously with the Court.
2. In considering the making of protective orders in that disciplinary matter, the Commissioner acknowledged the Solicitor's stated commitment to her responsibilities as an officer of the Court and her intent not to permit herself to repeat conduct of the nature raised in the complaint in the future. The Commissioner noted that the Solicitor would be assisted in doing so by her completion of the professional responsibility and legal ethics course at the College of Law which she was ordered to undertake by the Tribunal on 23 November 2018: 2018 decision at 66.

Relevance of previous disciplinary findings or decisions

1. In determining appropriate protective orders, we consider that previous conduct is relevant if, for example, it demonstrates similar deficiencies in the Solicitor's approach to legal practice.
2. On two prior occasions, the Solicitor has been found to have engaged in conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. As is evident from the earlier descriptions, one previous reprimand for unsatisfactory professional conduct relates to failure to comply with regulatory requirements through failure to co-operate with the investigator over an extended period of time; the other reprimand for unsatisfactory professional conduct relates to the Solicitor's conduct as an officer of the Court. While the factual circumstances in each of those two instances differ from those currently under consideration, there are some findings about the Solicitor's past conduct as a legal practitioner that remain relevant.
3. In the first instance, the Solicitor failed to take sufficient care in observing regulatory requirements of her practice, and was described by the Tribunal as "naive" and as having had a "cavalier" approach to legal practice compliance issues. She was found to have a lack of appreciation for regulatory requirements. In the current circumstances, in her application to the Tribunal, the Solicitor has made unfounded accusations about the regulator's motives, and it appears to us that she lacks sufficient understanding of, and appreciation for, the Commissioner's role and responsibilities in regulating the legal profession in this State.
4. In the second instance, the Solicitor also failed in her professional obligations. Again, she did not take sufficient care in discharging her responsibilities as a legal practitioner.
5. On each of these prior occasions, the Solicitor's conduct demonstrated some lack of care, or to put it another way, lack of adequate attendance to her professional duties. Similar deficiencies in the Solicitor's approach to legal practice emerge from the conduct the subject of these proceedings - that of failure to take sufficient care in her legal practice, "cutting corners", and not engaging in sufficient prudence in seeking or performing instructions.
6. Moreover, we are concerned that there is a continuing lack of insight on the part of the Solicitor into the seriousness of her failure to meet appropriate standards of legal practice. At para 6 of her affidavit dated 7 May 2020, after stating that two reprimands on her record are not an indication of her capacity as a solicitor, she continued: "I have colleagues in the profession who obtain over fifteen complaints a year in their practices, it's part of the business and unfortunately there will always be someone who will complain regardless of how much time, work and effort you put in to assist your clients." Such an attitude demonstrates that the Solicitor has little insight into how a diligent and competent legal practitioner behaves. Rather, she seeks to justify her own inappropriate conduct, by suggesting client complaints are the norm, instead of acknowledging the deficiencies in her own conduct that led to the complaint to the Commissioner.
7. In the light of the Solicitor's prior record the question arises whether a reprimand is an adequate recognition of the Solicitor's conduct concerning Mrs Machuca or whether an additional protective order (such as a fine) should be imposed. Our conclusion is that the reprimand is appropriate notwithstanding the Solicitor's prior disciplinary record, or the troubling statements made by the Solicitor to which we have referred earlier, having regard to the Solicitor's relative inexperience and the possibility that the current proceedings may prove to be an educational experience for her.

Costs

1. The parties have each sought their costs under s 60(2) of the NCAT Act, arguing that there are "special circumstances" warranting an award of costs in their favour. It is apparent from their written submissions that each contends that s 60 of the NCAT Act governs the issue of costs in the proceedings.
2. However, the Tribunal has not found the written submissions of the parties helpful as to whether costs in these proceedings are governed by s 60, cl 23 of Sch 5 to the NCAT Act and/or s 303 of the Uniform Law. If cl 23 of Sch 5 to the NCAT Act and/or s 303 of the Uniform Law apply, then despite s 60 of the NCAT Act, the Tribunal must make orders requiring the applicant to pay costs of the Commissioner unless the Tribunal is satisfied that exceptional circumstances exist.
3. The Tribunal would appreciate the assistance of the parties through the provision of further written submissions on costs, including on the operation of cl 23 of Sch 5 to the NCAT Act and s 303 of the Uniform Law, and we will make directions in this regard. After receipt of such further written submissions, the Tribunal will consider whether to hold a hearing on the awarding of costs in these proceedings, or whether the matter as to the awarding of costs can be decided "on the papers" on the basis that a hearing is dispensed with under s 50(2) of the NCAT Act.

Orders

1. We make the following orders: 1. A hearing in relation to the application (except as to costs) is dispensed with, under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW). 2. The name of the respondent is amended to the NSW Legal Services Commissioner. 3. The decision of the respondent, which found the applicant engaged in unsatisfactory professional conduct and reprimanding the applicant in respect of such conduct, is affirmed. In respect of costs, we make the following directions: 1. The respondent is to provide to the Tribunal and to the applicant detailed written submissions as to the operation of cl 23 of Sch 5 and s 60 of the Civil and Administrative Tribunal Act 2013 (NSW) and s 303 of the Legal Profession Uniform Law (NSW), in relation to the awarding of costs in these proceedings, within 21 days from the date of these orders. 2. The applicant is to provide written submissions in reply to the Tribunal and to the respondent in relation to the awarding of costs in these proceedings, within 42 days from the date of these orders. 3. The submissions are to include submissions about whether an order dispensing with a hearing as to the awarding of costs should be made under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW).

            I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.

Registrar I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar

Amendments 12 August 2020 - Formatting on Coversheet Typographical error corrected in paragraph 8 - cl 11 amended to cl 5 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: 12 August 2020