New South Wales Bar Association v Cairns [2008] NSWADT 34 (21 January 2008)

Last Updated: 12 February 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
New South Wales Bar Association v Cairns [2008] NSWADT 34


DIVISION:
LEGAL SERVICES DIVISION

PARTIES:
APPLICANT
Council of the New South Wales Bar Association

RESPONDENT
Stephen William Cairns



FILE NUMBERS:
062020, 072025

HEARING DATES:
10 August 2007

SUBMISSIONS CLOSED:
10 August 2007



DATE OF DECISION:
21 January 2008

BEFORE:
Karpin A - ADCJ (Deputy President)Stenmark A - Judicial MemberFitzgerald R - Non Judicial Member





LEGISLATION CITED:
Legal Profession Act 1987
Legal Profession Act 2004
New South Wales Barristers’ Rules

CASES CITED:
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336Ghazal v Government Insurance office of New South Wales (1992) 29 NSWLR 336
Lemoto v Able Technical Pty.Ltd & Ors [2005] NSWCA 153
Minister Administering the Crown Lands Consolidation /Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201

TEXTS CITED:


APPLICATION:
Barrister – Disciplinary application

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
P Brereton, barrister
RESPONDENT
R Williams, barrister


ORDERS:
File Number: 072025
1.The respondent is guilty of unsatisfactory professional conduct
2.The respondent is reprimanded
3.The decision of the Tribunal is to be published
4.The respondent is to pay the costs of the applicant as agreed or assessed
File Number: 062020
1.The respondent is guilty of unsatisfactory professional conduct
2.The respondent is reprimanded
3.The decision of the Tribunal is to be published
4.The claim for compensation to be referred to the Legal Services Commissioner for determination pursuant to section 573(1)(b) Legal Profession Act 2004
5.The respondent to pay the applicant’s costs as agreed or assessed.


Reasons for Decision:

REASONS FOR DECISION

1 By order made 27 July 2007, the Tribunal ordered that the application filed on 28 August 2006, and bearing matter number 062020, ["Zampieri complaint"] and application filed 19 July 2007, and bearing matter number 072025, [ Bar Association complaint"], be heard together, and that evidence in one be evidence in the other.

2 Both applications arise from the same factual matrix concerning the representation of Mr. Paolo Zampieri in an application to the Federal Magistrates Court of Australia.["FMC"]. In the Zampieri complaint, the applicant, the Council of the New South Wales Bar Association, alleges that the respondent inadequately represented Zampieri in the proceedings. The Bar Association complaint alleges that in breach of Rule 37 New South Wales Barristers’ Rules, the respondent made an allegation of fraud without a proper basis for so doing.

3 In the Zampieri complaint the applicant seeks orders that:

(a) The respondent engaged in unsatisfactory professional conduct.

(b) Orders in terms of any one or more of section 562 (2) (a) to (f) and 562(4)(a) to (j) of the Legal Profession Act 2004.

(c) The decision of the Tribunal be published

(d) The respondent pays the costs of the applicant

4 In the Bar Association matter the applicant seeks orders that:

(a) The respondent has engaged in professional misconduct or unsatisfactory professional conduct,

(b) Otherwise the same orders as sought in the Zampieri complaint.

5 The applicant notes that pursuant to the provisions of Part 4.9 of the Legal Profession Act 2004, the complainant, Paola Zampieri seeks compensation in the sum of $16,959.55 being comprised of $2,500 paid to the respondent as his fee for appearing in the matter, and the sum of $14,459.55 representing the costs assessed by the FMC Registrar pursuant to the order of Magistrate Raphael.

6 The relevant subsections of section 562 Legal Profession Act 2004 provide:

(1) Orders generally

If, after it has completed a hearing under this Part in relation to a complaint against an Australian legal practitioner, the Tribunal is satisfied that the practitioner has engaged in unsatisfactory professional conduct or professional misconduct, the Tribunal may make such orders as it thinks fit, including any one or more of the orders specified in this section.

(2) Orders requiring official implementation in this jurisdiction

The Tribunal may make the following orders under this subsection:

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

(b) an order that the practitioner’s local practising certificate be suspended for a specified period or cancelled,

(c) an order that a local practising certificate not be issued to the practitioner before the end of a specified period,

(d) an order that:

(i) specified conditions be imposed on the practitioner’s practising certificate issued or to be issued under this Act, and

(ii) the conditions be imposed for a specified period, and

(iii) specifies the time (if any) after which the practitioner may apply to the Tribunal for the conditions to be amended or removed,

(e) an order reprimanding the practitioner,

(f) an order that the name of the practitioner be removed from the roll of public notaries maintained under the Public Notaries Act 1997.

...

(4) Orders requiring compliance by practitioner

The Tribunal may make the following orders under this subsection:

(a) an order that the practitioner pay a fine of a specified amount,

(b) an order that the practitioners undertake and complete a specified course of further legal education,

(c) an order that the practitioner undertake a specified period of practice under supervision,

(d) an order that the practitioner do or refrain from doing something in connection with the practice of law,

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

(f) an order that the practitioner’s practice, or the financial affairs of the practitioner or of the practitioner’s practice, be conducted for a specified period in a specified way or subject to specified conditions,

(g) an order that the practitioner’s practice be subject to periodic inspection for a specified period,

(h) an order that the practitioner undergo counselling or medical treatment or act in accordance with medical advice given to the practitioner,

(i) an order that the practitioner use the services of an accountant or other financial specialist in connection with the practitioner’s practice,

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

7 Rule 37 New South Wales Barristers’ Rules provides:

A barrister must not allege any matter of fact amounting to criminality, fraud or other serious misconduct against any person unless the barrister believes on reasonable grounds that:

(a) available material by which the allegation could be supported provides a proper basis for it; and

(b) the client wishes the allegation to be made, after having been advised of the seriousness of the allegation and of the possible consequences for the client and the case and the case if it is not made out.

8 A substantial majority of the facts giving rise to the complaints are not in dispute.

9 On 26 February 2003, Rita Hanna and Associates, solicitors for Mr Zampieri, filed an application ("the first application") in the Federal Magistrates Court of Australia (the "FMC"), seeking the following orders:

(i) child support payments be made directly through the Child Support Agency;

(ii) child support agreement made on the 17th July 1999 be reviewed;

(iii) any interest payable on any arrears on the child support payments be waived, and any other orders the court sees fit.

10 On 25 February 2003, Mr. Zampieri swore an affidavit in support of the first application, which was filed on 26 February 2003. The relevant paragraphs were in the following terms:

6. In April 2002 the respondent, having been made aware of the changes to my financial position agreed to vary the child support payments to $100.00 per week. I agreed to also pay for one half of the children’s soccer, ballet and other extra curricular activities.

7. The respondent is seeking to rely on the Child Support Agreement a copy of which is hereto annexed and marked with the letter "B" which purports to contain my signature.

8. I do not recall having signed said document in addition to which I am unable to read or write, a fact of which Dale is aware prior to the commencement of our marriage. I do not recall having received an explanation as to the cause or effect of any document with respect to child support payments.

9. I do however recall an incident on or about the time of July 1999 in which the respondent said "I’m applying for a loan and I need you to sign this piece of paper so I can get the loan." I relied on what Dale said and signed the document as asked.

11 At some point between about March and May 2003, the respondent was briefed by Mr Zampieri’s solicitor to appear in the FMC proceedings. There was no written retainer, but the respondent was briefed with a copy of the first application and Mr Zampieri’s affidavit.

12 On 27 June 2003 the respondent attended a directions hearing in the FMC. On the same date he wrote to the solicitor advising that an amended application and affidavit should be filed.

13 The respondent advised that the application should be amended to seek the following orders:

(i) that the child support payments be made directly through, and be assessed by, the CSA.

(ii) the child support agreement made on the 19 and/or 21 July 1999 be declared void.

(iii) any interest on any arrears and penalties on the child support payments be waived.

(iv) any other order the court deems fit.

14 The respondent also advised: "Concerning the affidavit of the applicant, the matter referred to at paragraph 6 should be in direct speech and in detail. Add a paragraph setting out the recent CSA assessment of $91.00 and annex it."

15 The respondent also enclosed his fee note for attending the directions hearing and advising on documents.

16 On 24 October 2003 the solicitor filed an amended application in accordance with the advice from the respondent.

17 On 4 August 2003 Mr Zampieri swore an affidavit in direct speech in relation to paragraph 6 of his first affidavit. That affidavit did not deal further with the allegation relating to the affixing of Mr Zampieri’s signature to the child support agreement.

18 On 27 November 2003, the respondent attended the FMC for hearing of the amended application. It was not reached and was listed for hearing on 10 March 2004.

19 On or about 8 March 2004 the respondent had a conference with Mr Zampieri in the absence of any instructing solicitor. Mr Zampieri informed the respondent that if it could be proved that it was his signature on the child support agreement, he would pay in accordance with the agreement.

20 The respondent appeared for Mr Zampieri in the FMC on 10 March 2004 for hearing of the amended application. Counsel for Mr Zampieri’s former wife sought an order that the amended application be summarily dismissed.

21 The respondent agreed in evidence that as at the date of hearing, there was no further material that could be put before the FMC to support the allegation of fraud. [Transcript p.26 lines 30-32].

22 In his affidavit filed on 8 August 2007 in these proceedings, the respondent set out the facts he believed could be drawn from his instructions as at 10 March 2004, namely: Mr Zampieri was unable to read or write, a fact that was known to his former wife and family; he had no recollection or understanding of having signed the child support agreement, and was never advised as to the existence, meaning or effect of such agreement; that in July 1999 his former wife represented to him that his signature was required on a document to facilitate her obtaining a loan; that he signed a document as requested; the "loan" agreement was dated 17 July 1999; and that the child support agreement was in his former wife’s handwriting with the exception of Mr Zampieri’s signature.

23 In evidence before the Tribunal, the respondent said that having regard to Mr Zampieri’s evidence as set out in paragraphs 7,8 and 9 of his affidavit sworn 25 February 2003, together with the child support agreement, he was in no doubt that Mr Zampieri’s signature had been fraudulently obtained.

24 The respondent in the course of his submissions to Magistrate Raphael said:

"Your Honour assuming the agreement should be in place in the first place, that’s not the thrust of the husband’s position. He says that the consent to that agreement was obtained by fraud. He says he doesn’t read or write; that he was presented a document by his wife, told it was a certain document or told it was for a certain purpose..."

25 In response to an objection from counsel for the wife, the respondent referred to paragraph 9 of Mr Zampieri’s first affidavit, and then conceded: " ... perhaps it doesn’t go far enough ..." with which the magistrate promptly agreed. The respondent then sought leave to adduce oral evidence from his client. That application was refused.

26 Following a short adjournment, the respondent sought an adjournment of the proceedings to another date, to permit Mr Zampieri to file further affidavit material dealing with the child support agreement and updating his financial position. That application was refused. The magistrate delivered reasons for that refusal, pointing out the deficiencies in the material filed on behalf of Mr Zampieri, the delay by the applicant in filing material required for such an application, and saying: " The applicant has a right to be disappointed at the quality of the documentation."

27 The magistrate dismissed the application and ordered that Mr Zampieri pay his former wife’s costs as agreed or taxed.

28 On 10 March 2004, the respondent rendered a memorandum of fees in respect of his appearance in the FMC, those fees also covered reading material with which he had been briefed and the provision of legal advice.

29 Prior to the hearing before the FMC on 10 March 2004, the respondent did not advise his instructing solicitor that the evidentiary material was inadequate to sustain an allegation of fraud, and that, accordingly, the application was likely to fail, resulting in a significant risk that a costs order would be made against the client. Nor did he advise the solicitor that the material filed to demonstrate a change of financial circumstances was inadequate.

30 The respondent does not dispute any matters set out above. In particular, he does not dispute that he made an allegation of fraud. The first issue to be determined by the Tribunal is whether, on the material available to him, the respondent should have known that the affidavit evidence was inadequate to support the relief sought in the amended application, and, accordingly, should have also realized that Mr Zampieri’s application was likely to fail, with an attendant high risk that he would be ordered to pay the costs of his former wife. The applicant alleges that the respondent failed to adequately advise his instructing solicitor or his client concerning the inadequacies of the evidence and the likelihood of an adverse result exposing Mr Zampieri to a significant risk of a costs order being made against him.

31 The second issue to be determined is whether the respondent believed, on reasonable grounds, that he had a proper basis for making an allegation of fraud. The applicant concedes that the respondent genuinely believed that he had adequate grounds for making an allegation of fraud. The issue for the Tribunal is whether, on the material available to him, that was a reasonable belief. The applicant contends it was not. [transcript page 36 lines 9-17].

32 The applicant seeks findings that in matter 062020, the respondent is guilty of unsatisfactory professional conduct, and in matter 072025 he is guilty of either professional misconduct or unsatisfactory professional conduct. The Legal Profession Act 2004 relevantly provides:

497 Professional misconduct

(1) For the purposes of this Act:

professional misconduct includes:

(a) unsatisfactory professional conduct of an Australian legal practitioner, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence, and

(b) conduct of an Australian legal practitioner whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law that would, if established, justify a finding that the practitioner is not a fit and proper person to engage in legal practice.

(2) For finding that an Australian legal practitioner is not a fit and proper person to engage in legal practice as mentioned in subsection (1), regard may be had to the matters that would be considered under section 25 or 42 if the practitioner were an applicant for admission to the legal profession under this Act or for the grant or renewal of a local practising certificate and any other relevant matters.

496 Unsatisfactory professional conduct

For the purposes of this Act:

unsatisfactory professional conduct includes conduct of an Australian legal practitioner 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 Australian legal practitioner.

33 The Legal Profession Act 1987 provides:

127 Professional misconduct and unsatisfactory professional conduct

(1) For the purposes of this Part, professional misconduct includes:

(a) unsatisfactory professional conduct, where the conduct is such that it involves a substantial or consistent failure to reach reasonable standards of competence and diligence, or

(b) conduct (whether consisting of an act or omission) occurring otherwise than in connection with the practice of law which, if established, would justify a finding that a legal practitioner is not of good fame and character or is not a fit and proper person to remain on the roll of legal practitioners, or

(b1) (Repealed)

(c) conduct that is declared to be professional misconduct by any provision of this Act, or

(d) a contravention of a provision of this Act or the regulations, being a contravention that is declared by the regulations to be professional misconduct.

(2) For the purposes of this Part:

unsatisfactory professional conduct includes conduct (whether consisting of an act or omission) 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 legal practitioner.

34 The case for the applicant in matter 062020 consisted of the affidavit of Phillip Selth sworn 23 August 2006, and that of Rosemary McDougall sworn 28 August 2006. In matter 072025 the applicant relied upon the affidavit of Patricia Sinclair sworn 19 July 2007. No witness for the applicant was required for cross-examination.

35 In matter 062020 the respondent relied upon his affidavit sworn 10 November 2006 and that of David Maddox sworn 13 November 2006. In matter 072025 he relied upon his affidavit of 8 August 2007, a further affidavit of David Maddox sworn 7 August 2007 and an affidavit of Stephen Leslie Gleeson sworn 9 August 2007. The respondent gave evidence.

36 In a letter to the Bar Association dated 19 July 2004, the respondent referred to a conference with Mr Zampieri on 8 March 2003, at which neither his instructing solicitor nor Ms Desira were present. In the course of that conference Mr Zampieri said, as previously noted, that if the signature proved to be his he would pay the maintenance.

37 In the same letter the respondent refers to a discussion with Ms Hanna regarding further evidence from Mr Zampieri concerning his allegation that his former wife had " ... fraudulently obtained his signature on a child support agreement document and the need for precise details of this in any affidavit he was to swear."

38 Ultimately the respondent was informed by Ms Hanna that in taking instructions for the second affidavit, she had been unable to elicit any further useful material from Mr Zampieri. The respondent said words to the effect " you cannot make his evidence up for him, if that’s all he will tell you we will have to deal with that."

39 In giving his evidence, the respondent recalled that a conference took place at the FMC at Parramatta on the day of the hearing, 10 March 2004. It appears there was also an earlier conference on 8 March.

40 The respondent agreed that he did not tell Mr Zampieri that his application was likely to fail, nor did he explain the consequences of a costs order. The respondent says that was because he did not hold a belief that the application was likely to fail.

41 Both in his evidence before this Tribunal, and in correspondence with the Bar Association, the respondent has at all times asserted that on the basis of the evidence available to him, he believed that there were reasonable prospects that Mr Zampieri’s application to have the child support agreement set aside, would succeed. In the course of submissions, counsel for the applicant conceded that there was no issue on this point. It was acknowledged that the respondent had at all times held an honest belief that there were prospects of success before the FMC.

42 The Tribunal is satisfied on the whole of the evidence, that at all times the respondent held an honest belief that there were prospects of success on the application, he being satisfied the client’s signature had been fraudulently obtained on the child support agreement.

43 In his submissions to the FMC the respondent asserted that the document was blank at the time Mr Zempieri signed it. Before this Tribunal, the respondent was unable to recollect whether or not he was instructed by his client that he had signed a blank document. The document available to the respondent on the hearing before the FMC was filled out in the handwriting of the former Mrs Zampieri. The respondent believed that his submissions to the FMC were the more accurate representation of his belief at the time, namely that the document was blank at the time Mr Zampieri appended his signature.

44 The Tribunal is of the view that nothing hangs on this point. As the Tribunal has accepted the respondent as a credible witness, it accepts that his instructions were that the document was blank at the relevant time. The Tribunal notes that the signature page to which Mr Zampieri appended his signature is blank in the completed document, except for a tick in one box. [Ex11C].

45 This is not an issue upon which this Tribunal is required to find as a matter of fact. The Tribunal accepts that the respondent’s submissions to the FMC represented his state of knowledge at the relevant time.

46 The Tribunal is satisfied that the respondent, both in such of his dealings with the applicant Bar Association as form part of the evidence, and in his evidence before the Tribunal, has at all times endeavoured to provide an honest and forthright account of his participation in this matter.

47 The Tribunal notes that it is not bound by any determination arrived at by the learned Magistrate insofar as that covers matters that fall to be determined by the Tribunal.

48 As is well recognized, the standard of proof required before this Tribunal in considering the case against the respondent is that laid down in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

49 There is no dispute that an allegation of fraud was made by the respondent. The Tribunal accepts that at least at the time he made the allegation before the FMC, the respondent believed that he had reasonable grounds for making that allegation.

50 Whatever his belief, the evidence obtained from Mr Zampieri was not capable of supporting that belief.

51 Mr Zampieri says in his affidavit " ... I do not recall having signed said document..." That is a quite different proposition from an outright denial that he signed the document. It leaves open the possibility that he did sign the document, but that he cannot now recall having done so. In particular is that so having regard to the lapse of time between July 1999 and February 2003, combined with the problems associated with his illiteracy.

52 Mr Zampieri then goes on to say that he does recall signing a document at his former wife’s request, which she informed him was a document required to assist her to obtain a loan. He does not, however, say that was the only document he recalled signing. It is quite conceivable on those stated facts, that he signed both documents.

53 At the time the respondent made his submission on fraud to the FMC the only evidence available to him capable of providing any support for that allegation, was the affidavits of Mr Zampieri.

54 The Tribunal is satisfied that put at its highest, on the material available to the respondent, both in the evidentiary material and the undisputed oral communication from his client, an argument may possibly have been mounted that this was a case of non est factum. It could not, however, sustain an allegation of fraud. Indeed, even a non est factum argument would, in the opinion of the Tribunal, be doomed to failure on the meagre evidence available.

55 The respondent, having taken some instructions from Mr Zampieri, advised his instructing solicitor that an amended application should be filed, and further evidence obtained from the client. After considerable delay by the solicitor, the amended application was filed in October 2003 together with the further affidavit obtained from Mr Zampieri in August 2003. In the course of obtaining that affidavit there was a discussion between the respondent and Ms Hanna as to the difficulty of obtaining supporting evidence from Mr Zampieri. Thus the respondent was on notice that there was a problem with the evidence, both in relation to the allegation of fraud, and to changed financial circumstances.

56 Whilst the Tribunal as previously noted, accepts that the respondent held an honest belief that he had reasonable grounds for alleging fraud, the Tribunal is satisfied to the requisite standard that the respondent was in error in holding that belief. Further, the Tribunal is of the view that had the respondent carefully considered the evidence available to support the allegation, he would have appreciated that it was not capable of supporting such an allegation. Accordingly, the Tribunal is satisfied he did not reasonably hold that belief.

57 Had the respondent turned his mind to the standard of evidence required to support an allegation of fraud, he should have appreciated that the available evidence fell far short of that required. Further, the evidence filed, did not provide adequate support for seeking a variation of the orders, relying upon changed financial circumstances. The respondent should have advised his instructing solicitor accordingly, and advised that the application should not be pursued in that form. He failed to do so, and pursued an application that was doomed to failure.

58 The Tribunal understands that the more usual order in the FMC is that each party pay their own costs. There is, however, a discretion in the presiding judicial officer, to make a costs order against a party where the circumstances warrant such an order.

59 It is quite clear on the respondent’s own evidence, that he did not tell Mr Zampieri that his case was doomed to failure. The Tribunal accepts that was not the respondent’s belief. In the view he had formed of the matter, he could not rationally be expected to so advise the client. Further, however, neither did he explain to Mr Zampieri the seriousness of making such an allegation, nor that, were his case to fail, he could be at risk of a costs order against him.

60 Even had the respondent been armed with evidentiary material that was capable of supporting the allegation of fraud, it was still incumbent upon him, pursuant to Bar Rule 37 (b), to advise the client of the gravity of such an allegation and the possibility of an adverse costs order should the allegation not be sustained. The respondent did neither.

61 The Tribunal is satisfied that in forming the view that there was an issue of fraud, the respondent failed to adequately analyse the available evidentiary material. Had he done so, he must, as a lawyer, have appreciated that there was no evidence available capable of substantiating that allegation. His subsequent failures to provide adequate advice and warning, flow inexorably from his initial misconception that he was in possession of material that warranted an allegation of fraud.

62 Similarly, he failed to advise either his instructing solicitor or his client, of the inadequacy of the evidence relied upon to support an application based upon changed financial circumstances.

63 Some reliance was sought to be placed by the respondent, on the decision in Lemoto v Able Technical Pty Ltd and others [2005] NSWCA 153. McColl JA with whom Hodgson and Ipp JJA agreed, set out the principles relevant to the exercise of the power to order a legal practitioner to pay the costs of proceedings in which the practitioner represents a party. Those principles include that the practitioner cannot be held to have acted improperly, negligently or unreasonably, simply because the practitioner pursues a claim or defence "which is plainly doomed to fail". Further, "The legal practitioner is not the ‘judge of the credibility of the witnesses or of the validity of the arguments’. ... if [the practitioner] reasonably decides to believe his client, criticism cannot be directed to him."

64 In the view of the Tribunal, those principles, whilst unarguable, do not assist the respondent in the circumstances of this case. They are principles applicable to the exercise of the discretion to order a legal practitioner to pay the costs of proceedings in circumstances where the court seeks to punish the legal practitioner for some form of misconduct in representing a party to the proceedings.

65 In Ghazal v Government Insurance Office of New South Wales (1992) 29 NSWLR 336, Mahoney JA, whilst agreeing with the judgment of Kirby P (with whom Clarke JA also agreed), referred with approval to the decision of the Court in Minister Administering the Crown Lands Consolidation Act and Western Lands Act v Tweed Byron Local Aboriginal Land Council (1990) 71 LGRA 201 where the Court said at 203 - 4:

"In the pleading of fraud, some requirements of the law are clear beyond argument. These requirements are not only rules of pleading and practice established by decisions of the courts. They are rules of ethical conduct binding on members of the legal profession. It is a serious matter to allege fraud against a party ... legal practitioners must take care to have specific instructions and an appropriate evidentiary foundation, direct or inferred, for alleging and pleading fraud.

Professional discipline may follow if allegations of fraud are made where the foregoing conditions are not satisfied. By such means, courts protect their process from the abuse which would follow from the too ready assertion of fraud against a party in circumstances where it could not be proved to the high standard required of such allegations."

66 Those remarks are clearly applicable and relevant to the matter now before the Tribunal

Compensation Application

67 Pursuant to the provisions of section 570 of the Legal Profession Act 2004, Mr Zampieri seeks compensation from the respondent. Section 573 relevantly provides:

(1) If the Tribunal has found that an Australian legal practitioner has engaged in unsatisfactory professional conduct or professional misconduct in relation to a complaint, the Tribunal may:

(a) make a compensation order, or

(b) refer the matter to the Commissioner for the making of a compensation order.

(2) The Commissioner may make a compensation order if the Tribunal has referred the matter to the Commissioner for the making of a compensation order. A compensation order made under this subsection is taken to have been made by the Tribunal for the purposes of section 606 (Appeals against orders and decisions of Tribunal).

68 The Tribunal is left in doubt as to the role of Ms Hanna, and any deficiencies in her representation of Mr Zampieri. On the face of it, the evidence filed was clearly inadequate to support the application, a fact that should have been obvious to a competent solicitor. Whilst the respondent must take responsibility for his inadequate representation, on issues of compensation, the role of the solicitor may also be relevant.

69 The Tribunal felt some disquiet about the failure of Ms Hanna to appear before the Tribunal. That disquiet was exacerbated by the fact that Ms Desira, who made the initial complaint to the Legal Services Commissioner, is the de facto partner of Mr Zampieri, and her daughter, Nicole Desira, is employed in Ms Hanna’s legal practice.

70 The Tribunal notes that compensation is sought by Mr Zampieri in the sum of $16,959.55 comprised of $14,459.55 being the costs order against him made by the FMC together with a refund sought of the $2,500 fees paid to the respondent by Mr Zampieri.

71 The Tribunal is not satisfied that it is in a position to make such an order without further inquiry. Rather than putting the parties to the expense and delay of conducting that inquiry before the Tribunal, it is proposed to refer the matter to the Legal Services Commissioner pursuant to the provisions of section 573 (1)(b) for inquiry and determination.

72 The Tribunal accepts the respondent understood that he was briefed only to appear on hearings. He understood that Ms Desira was a "friend" of Ms Hanna’s firm. On that basis he charged only for the hours he appeared in court and not a fee for a full day’s hearing. The respondent advised that Ms Desira attended each conference and appeared to speak on behalf of Mr Zampieri.

73 The respondent does not, however, dispute that he rendered fees for both appearances and advising, nor that he did in fact advise Ms Hanna in relation to filing the amended application, and obtaining further evidence from the client to support the amended application.

74 The Tribunal is satisfied that the applicant has established to the requisite standard, that the conduct of the respondent before the FMC on 10 March 2003 was in breach of Bar Rule 37(a) and (b).

75 The Tribunal is not satisfied that the conduct should be characterized as professional misconduct. It falls short of being conduct that demonstrates a "substantial or consistent failure" to maintain a reasonable standard of competence and diligence.

76 The Tribunal is satisfied, however, that the respondent’s carriage of the matter fell short of the standard of competence and diligence expected of a reasonably competent legal practitioner. The Tribunal finds in respect of the application filed in matter no. 072025 that the respondent is guilty of unsatisfactory professional conduct.

77 In relation to the application filed in matter number 062020, the Tribunal is satisfied that the applicant has established that the respondent inadequately represented his client. Prior to the hearing, being in possession of the client’s first and second affidavits, he failed to advise the solicitor or his client concerning the inadequacy of evidence to support an allegation of fraud, or to support a claim for variation of child support based upon changed financial circumstances. He proceeded with an application before the FMC with inadequate evidence.

78 The Tribunal is satisfied that the failure of the respondent demonstrates a deficiency of competence and diligence in his conduct as a legal practitioner. The Tribunal finds him guilty of unsatisfactory professional conduct.

79 The respondent is now aged 52. He was admitted to the bar in 1996 following a career as a police officer, resigning from the Federal Police in 1995 having reached the position of superintendent and operational commander in the protective services arm of that police force. Since his admission, the respondent has maintained chambers in Parramatta, and has practised mainly in family law, crime and building disputes.

80 The respondent has at all times admitted the essential facts upon which the applicant relies in each matter. The issue is rather one of what view should be taken of the respondent’s conduct.

81 The Tribunal finds that the respondent gave his evidence in a considered, frank and forthright manner, and is satisfied that he is a witness of truth. Nor was any suggestion to the contrary made by the applicant.

82 The references on behalf of the respondent were admitted without objection. The Tribunal accepts the opinion of those referees, who have had the opportunity to observe the respondent in his professional capacity for some years. Thus, the Tribunal accepts that the respondent is a man of integrity, and one who, in the ordinary course, acts with professionalism and in the best interests of his clients. Those character references are not relevant to the substantive issue before the Tribunal. They are solely relevant to a determination of the appropriate penalty to be imposed following any finding adverse to the respondent.

83 The Tribunal accepts that the present proceedings arise from circumstances that may be seen as a lapse of judgment on the part of the respondent. There is no suggestion that this is indicative of a general failure by the respondent to recognise and meet his professional obligations to his clients or to the courts. The Tribunal proceeds upon the basis that it is an isolated incident.

84 The Tribunal makes the following orders:

File Number 072025

1. The respondent is guilty of unsatisfactory professional conduct.

2. The respondent is reprimanded.

3. The decision of the Tribunal is to be published.

4. The respondent is to pay the costs of the applicant as agreed or assessed.

File Number 062020

1. The respondent is guilty of unsatisfactory professional conduct.

2. The respondent is reprimanded.

3. The decision is the Tribunal of to be published.

4. The claim for compensation to be referred to the Legal Services Commissioner for determination pursuant to section 573(1)(b) Legal Profession Act 2004

5. The respondent to pay the applicant’s costs as agreed or assessed.