Council of the New South Wales Bar Association v Asuzu [2011] NSWADT 209 (31 August 2011)

Last Updated: 1 September 2011

Administrative Decisions Tribunal New South Wales

Case Title:	Council of the New South Wales Bar Association v Asuzu
Medium Neutral Citation:	[2011] NSWADT 209
Hearing Date(s):	9, 10, 11,12 & 13 May 2011
Decision Date:	31 August 2011
Jurisdiction:	Legal Services Division
Before:	S Norton SC, Judicial member RJ Wright SC, Judicial member C Bennett, Non Judicial member
Decision:	The Tribunal : a) finds that the Barrister is guilty of: i) unsatisfactory professional conduct in relation to the Statutory Declaration Ground; ii) professional misconduct in relation to the S 660 Ground; iii) unsatisfactory professional conduct in relation to his failure properly to plead forgery in respect of the 1992 and other later wills as alleged in the Kawala Ground; iv) unsatisfactory professional conduct in relation to the preparation for and submissions in the Ally matter as alleged in the Ally Ground; b) would otherwise dismiss the Applications in proceedings 090202 and 102005.
Catchwords:	Disciplinary action, Legal Practitioners, Professional misconduct - Unsatisfactory professional conduct
Legislation Cited:	Administrative Decisions Tribunal Act 1997 (NSW) Legal Profession Act 2004 (NSW). Legal Profession Act 1987 (NSW) Evidence Act 1995 (NSW) Legal Profession Act 2007 (Qld) Migration Regulations 1994 (Cth)
Cases Cited:	The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 NSW Bar Association v Cummins [2001] NSWCA 284 Bechara v Legal Services Commissioner [2010] NSWCA 369 Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38; (2000) ATPR 41-752 Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 New South Wales Bar Association v Bland [2010] NSWADT 34 New South Wales Bar Association v Miller [2010] NSWADT 300 Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325, [2008] VSCA 86 Legal Profession Complaints Committee v De Braekt [2011] WASAT 1 New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 Barwick v Law Society of New South Wales (2000) 169 ALR 236, [2000] HCA 2. Minister for Immigration and Multicultural Affairs v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Texts Cited:
Category:	Principal judgment
Parties:	Council of the New South Wales Bar Association (Applicant) Ignatius Nwafor Asuzu (Respondent)
Representation
- Counsel:	Counsel: D A McLure (Applicant)
- Solicitors:	E T Ezekiel-Hart, Solicitor
File number(s):	092020, 102005
Publication Restriction:

REasons for decision

1. LEGAL SERVICES DIVISION (S NORTON SC (JUDICIAL MEMBER), R J WRIGHT SC (JUDICIAL MEMBER), C BENNETT (NON-JUDICIAL MEMBER): These proceedings relate to 2 applications for original decision filed by the Applicant, the Council of the New South Wales Bar Association ("the Council"), seeking relief under s 562(2) and(4) of the Legal Profession Act 2004 (NSW) ("the LPA") and ancillary relief. The Council alleges in both applications that the Respondent barrister ("the Barrister") engaged in professional misconduct or unsatisfactory professional conduct or both. The Barrister has in substance denied all of those allegations.

2. At the hearing of these applications, the parties were content that, and the Tribunal directed that, the proceedings be heard together and that evidence in one should be evidence in the other.

Outline of Proceeding 092020

3. The first application was filed on 31 July 2009 (proceeding number 092020) and originally contained three grounds. When it came to final submissions, the Council informed the Tribunal that Ground 2 was not pressed. The remaining grounds, Grounds 1 and 3, can be summarised as follows.

4. Ground 1 in proceeding 092020 (the "Statutory Declaration Ground" ) alleged that the Barrister was guilty of professional misconduct or unsatisfactory professional conduct because:

a)he failed to provide the New South Wales Bar Association ("the Association") with a statutory declaration setting out whether he had practised as a barrister from 1 July 2007 to 3 July 2007 after being informed by letter dated 5 July 2007 that the issue of his practising certificate was conditional on such a statutory declaration being provided by 13 July 2007; and,

b)he failed to provide the Association with such a statutory declaration after being requested by letter dated 26 July 2007 to do so by 30 July 2007.

5. Ground 3 in proceeding 092020 (the "S 660 Notice Ground ") alleged that the Barrister was guilty of professional misconduct because he failed, without reasonable excuse, to comply with a requirement under s 660(1) of the LPA to provide documentation and information, verified by statutory declaration, specified in a notice issued under s 660(1) served under cover of a letter dated 29 October 2007 and re-served under cover of a letter dated 15 November 2007.

6. The Barrister filed a reply on 28 February 2011 alleging that the application was vexatious, oppressive, discriminatory, frivolous and an abuse of process, denying the allegations and elaborating at some length reasons why the Tribunal should not find that he had engaged in professional misconduct or unsatisfactory professional conduct as alleged. The Barrister also filed an application seeking that the application for original decision in proceeding 092020 be struck out or dismissed under s 73(5)(g)(ii) of the Administrative Decisions Tribunal Act . That preliminary application was heard on the first day of the substantive hearing and was dismissed. The Tribunal published its reasons for so doing on 9 May 2011.

Outline of Proceeding 102005

7. The application for original decision in proceeding number 102005 was filed on 23 March 2010. In that application the Council sought findings that the Barrister had engaged in professional misconduct in respect of grounds 1 and 3 and unsatisfactory professional conduct with respect to grounds 1 to 4. The Barrister filed a reply to that application on 3 August 2010 in which he essentially denied all allegations.

8. On 15 December 2010 the Council filed an amended application which added certain particulars and a fifth ground. A reply was filed on 28 February 2011 in which it was alleged that this application was vexatious, oppressive, discriminatory, frivolous and an abuse of process, the allegations were largely denied and reasons were given at some length as to why the Tribunal should not find that the Barrister had engaged in professional misconduct or unsatisfactory professional conduct as alleged. As in proceeding 092020, the Barrister filed an application seeking that the application for original decision in proceeding 102005 be struck out or dismissed. That preliminary application was also heard on the first day of the substantive hearing and was dismissed. The Tribunal published its reasons on 9 May 2011.

9. During the substantive hearing the Council was granted leave to add a further ground, Ground 1A, which in effect sought to rely upon an additional legal characterisation of certain facts already alleged in the application filed on 23 March 2010. The Tribunal's reasons for its decision to grant leave were published on 12 May 2011. As a result, 6 grounds in all were relied upon by the Council in proceeding 102005. They can be summarised as follows.

10. Ground 1 ("the Kawala Ground ") related to the Barrister's appearance in Kawala v Skrzypczak for the plaintiff in probate proceedings in the Supreme Court before Windeyer J in February 2006. Some particulars in relation to this ground were abandonned when it came to final submissions. In short it was alleged that the Barrister :

a)was inappropriately rude to the Judge and a witness;

b)made irrelevant submissions in relation to an application for security for costs; and

c)failed properly to plead an allegation of forgery.

On these bases it was said that the Barrister's conduct amounted to professional misconduct or unsatisfactory conduct because it did not reach or maintain the requisite standard of competence and diligence.

11. Ground 1A ("the Kawala Serious Allegation Ground ") concerned the Barrister's asking the defendant in cross examination the question "What, did you intend to poison him?" This was alleged to:

a)be in breach of rules 35 and 37 of the New South Wales Barristers' Rules;

b)fall short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner; and

c)be conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.

Accordingly, this aspect of the Barrister's conduct was said to amount to professional misconduct or unsatisfactory professional conduct.

12. Ground 2 ("the Gant Ground ") involved allegations concerning the Barrister's written submissions and oral submissions made in Gant v Commissioner of Australian Federal Police in the Federal Court of Australia before Collier J on 3 November 2006. In summary, the Council alleged that the Barrister's conduct in preparing and making the submissions fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner because, in the context of a hearing of a notice of objection as to competency, the submissions failed to identify any rational basis upon which the Court would have jurisdiction to grant the relief sought. This was said to amount to unsatisfactory professional conduct.

13. Ground 3 ("the Gant Serious Allegation Ground ") alleged that the Barrister in written submissions in Gant v Commissioner of Australian Federal Police made allegations of misconduct against a Justice of the Peace, Ms Boast, that she had deliberately inserted the wrong and incorrect sequence of her registration number on a search warrant in order to mislead and that in issuing the warrant she acted as a mere rubber stamp. This was alleged to:

a)be in breach of rules 35, 36 and 37 of the New South Wales Barristers' Rules;

b)fall short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner; and

c)be conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.

This aspect of the Barrister's conduct was also said to amount to professional misconduct or unsatisfactory professional conduct.

14. Ground 4 ("the Ally Ground ") alleged that the Barrister's written and oral submissions to the Full Court of the Federal Court of Australia in the matter of Ally v Minister for Immigration and Citizenship fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner because those submissions:

a)did not coherently identify any error in the decision of the Federal Magistrate or any jurisdictional error in the decision of the Migration Review Tribunal;

b)were not confined to those matters.

This was alleged to be unsatisfactory professional conduct.

15. Ground 5 ("the Aggregate Ground ") was in effect a ground which alleged that the Barrister's conduct in grounds 1 to 4 in aggregate involved a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence and, thus, amounted to professional misconduct within the meaning of s 497(1)(a) of the LPA.

The Evidence

16. The Applicant relied upon 4 affidavits of Philip Alan Selth affirmed on 22 July 2009, 22 March 2010, 14 December 2010 and 19 April 2011. Mr Selth was cross examined. The cross examination dealt largely with the administrative procedures of the Bar Association in relation to the recording of documents delivered to the Bar Association, renewal of practicing certificates and related matters. His evidence was credible, reasonable and consistent with the documents to which our attention has been drawn.

17. Mr Selth was also examined concerning letters written by the Bar Association to the Barrister and complaints against the Barrister. Mr Selth's account of his meeting with the Barrister and the President of the Bar Association concerning the Federal Court Refugee Legal Advice Scheme was not challenged in cross examination or otherwise. In our view, Mr Selth was a reliable and careful witness whose evidence should be accepted.

18. In the Respondent's case, 3 affidavits by the Barrister were relied upon, being two sworn upon 28 February 2011 and one sworn on 16 March 2011. The Barrister was cross examined at some length. In addition, the affidavit of Moria Moutrage sworn 16 March 2011 was relied upon but Ms Moutrage was not cross examined.

19. The Barrister's evidence was the subject of significant challenge in cross examination and it was suggested to him on a number of occasions that he was not telling the truth. There were some occasions during the cross examination when the Tribunal gained the impression that the Barrister was seeking to avoid answering the questions put to him by giving non-responsive answers or answers which were so illogical that it was difficult to understand how an obviously intelligent person, such as the Barrister, could give such an answer. At times, his answers in cross examination appeared to contradicted evidence he had previously given. We have no doubt the barrister found the experience of being cross examined difficult and stressful and this may have been exacerbated by cross-cultural issues. We accept that some of his problems in cross examination can be ascribed to these causes. Nonetheless, it remained our impression that the Tribunal should require corroboration of the Barrister's evidence from contemporaneous documents or records before it should accept, in some instances, the version of events put forward by him.

20. We shall deal more specifically with the Barrister's affidavit and oral evidence when we address each ground in detail.

21. The remainder of the evidence was documentary and largely consisted of the records of the Kawala , Gant and Ally proceedings, correspondence between the Bar Association and the Barrister concerning the renewal of his practicing certificate in July 2007, documentation obtained from the Barrister's professional indemnity insurer in respect of insurance cover for the 2007/2008 year and material from the Council's file concerning its investigation of complaints against the Barrister.

Relevant Statutory Provisions

22. In both proceeding 092020 and proceeding 102005, the Council alleges that the Barrister engaged in unsatisfactory professional conduct and professional misconduct and claims relief under s 562, which is found in Chapter 4 of the LPA. Some of the relevant statutory provision are set out in the succeeding paragraphs.

23. The persons to whom and conduct to which s 562 and other provisions of Chapter 4 apply are set out in ss 499, 500 and 501 which relevantly provide:

499Practitioners to whom this Chapter applies

(1)This Chapter applies to an Australian legal practitioner in respect of conduct to which this Chapter applies, and so applies:

(a)whether or not the practitioner is a local lawyer, and

(b)whether or not the practitioner holds a local practising certificate, and

(c)whether or not the practitioner holds an interstate practising certificate, and

(d)whether or not the practitioner resides or has an office in this jurisdiction, and

(e)whether or not the person making a complaint about the conduct resides, works or has an office in this jurisdiction.

...

500Application of Chapter to lawyers, former lawyers and former practitioners

...

(2)This Chapter applies to former Australian legal practitioners in relation to conduct occurring while they were Australian legal practitioners in the same way as it applies to persons who are Australian legal practitioners, and so applies with any necessary modifications.

501Conduct to which this Chapter applies-generally

(1)Subject to subsection (3) [which is not presently relevant], this Chapter applies to conduct of an Australian legal practitioner occurring in this jurisdiction.

(2)This Chapter also applies to an Australian legal practitioner's conduct occurring outside this jurisdiction, but only:

(a)if it is part of a course of conduct that has occurred partly in this jurisdiction and partly in another jurisdiction, and either:

(i)the Commissioner and the corresponding authority of each other jurisdiction in which the conduct has occurred consent to its being dealt with under this Act, or

(ii)the complainant and the practitioner consent to its being dealt with under this Act, or

(b)if it occurs in Australia but wholly outside this jurisdiction and the practitioner is a local lawyer or a local legal practitioner, and either:

(i)the Commissioner and the corresponding authority of each jurisdiction in which the conduct has occurred consent to its being dealt with under this Act, or

(ii)the complainant and the practitioner consent to its being dealt with under this Act, or

...

24. "Australian legal practitioner" is defined in s 6 of the LPA which provides:

6Terms relating to legal practitioners

For the purposes of this Act:

(a)an Australian legal practitioner is an Australian lawyer who holds a current local practising certificate or a current interstate practising certificate, and

(b)a local legal practitioner is an Australian lawyer who holds a current local practising certificate, and

(c)an interstate legal practitioner is an Australian lawyer who holds a current interstate practising certificate, but not a local practising certificate.

[Note. The application of Chapter 4 (Complaints and discipline) to conduct of Australian legal practitioners is broadened by Division 2 of Part 4.1 of that Chapter.]

25. Section 562 of the LPA establishes the Tribunal's power to make orders if professional misconduct or unsatisfactory professional conduct is established. It provides in part:

562Determinations of Tribunal

(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.

...

26. The expressions "unsatisfactory professional conduct" and "professional misconduct" are defined in the LPA as follows:

"496Unsatisfactory 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.

497Professional 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.

498Conduct capable of being unsatisfactory professional conduct or professional misconduct

(1)Without limiting section 496 or 497, the following conduct is capable of being unsatisfactory professional conduct or professional misconduct:

(a)conduct consisting of a contravention of this Act, the regulations or the legal profession rules,

(b)charging of excessive legal costs in connection with the practice of law,

(c)conduct in respect of which there is a conviction for:

(i)a serious offence, or

(ii)a tax offence, or

(iii)an offence involving dishonesty,

(d)conduct of an Australian legal practitioner as or in becoming an insolvent under administration,

(e)conduct of an Australian legal practitioner in becoming disqualified from managing or being involved in the management of any corporation under the Corporations Act 2001 of the Commonwealth,

(f)conduct consisting of a failure to comply with the requirements of a notice under this Act or the regulations (other than an information notice),

(g)conduct of an Australian legal practitioner in failing to comply with an order of the Disciplinary Tribunal made under this Act or an order of a corresponding disciplinary body made under a corresponding law (including but not limited to a failure to pay wholly or partly a fine imposed under this Act or a corresponding law),

(h)conduct of an Australian legal practitioner in failing to comply with a compensation order made under this Act or a corresponding law.

(2)Conduct of a person consisting of a contravention referred to in subsection (1) (a) is capable of being unsatisfactory professional conduct or professional misconduct whether or not the person is convicted of an offence in relation to the contravention.

27. Further instances of conduct that is or is capable of being "professional misconduct" are given in ss 671 and 676 of the LPA which provide as follows:

671Failure to comply with investigatory powers etc

(1)The failure of an Australian legal practitioner to comply with any requirement made by an investigator in the exercise of powers conferred by this Chapter is professional misconduct.

(2)The contravention by an Australian legal practitioner of any condition imposed by an investigator in the exercise of powers conferred by this Chapter is capable of being professional misconduct.

(3)The failure of a legal practitioner director of an incorporated legal practice to ensure that the incorporated legal practice, or any officer or employee of the incorporated legal practice, complies with:

(a) any requirement made by an investigator in the exercise of powers conferred by this Chapter, or

(b) any condition imposed by an investigator in the exercise of powers conferred by this Chapter,

is capable of being professional misconduct.

676Obligation of Australian lawyers

(1)The duties imposed on an Australian lawyer by this section are additional to obligations imposed under other provisions of this Chapter, whether or not the lawyer is the subject of the investigation, examination or audit concerned.

(2)An Australian lawyer must not mislead an investigator or a Council in the exercise of:

(a)any power or function under this Chapter, or

(b)any power or function under a provision of a corresponding law that corresponds to this Chapter.

(3)An Australian lawyer who is subject to:

(a)a requirement under section 660 (Requirements in relation to complaint investigations), or

(b)a requirement under provisions of a corresponding law that correspond to that section, must not, without reasonable excuse, fail to comply with the requirement.

(4)An Australian lawyer who contravenes subsection (2) or (3) is guilty of professional misconduct.

28. Australian lawyer is defined in s 5 of the LPA which relevantly provides:

For the purposes of this Act:

(a)an "Australian lawyer" is a person who is admitted to the legal profession under this Act or a corresponding law, ....

and, s 4 provides:

"admission to the legal profession" means admission by a Supreme Court as:

(a)a lawyer, or

(b)a legal practitioner, or

(c)a barrister, or

(d)a solicitor, or

(e)a barrister and solicitor, or

(f)a solicitor and barrister,

under this Act or a corresponding law, but does not include the grant of a practising certificate under this Act or a corresponding law; and "admitted to the legal profession" has a corresponding meaning.

Preliminary Matters

29. The Barrister was at the relevant time an Australian legal practitioner to whom Chapter 4 of the LPA applied and an Australian lawyer within the meaning of that Act.

30. In relation to all grounds except the Gant Ground, the Gant Serious Allegation Ground and the Aggregate Ground (to the extent that it relies upon facts or circumstances arising in relation to the Gant proceeding), the relevant conduct occurred in New South Wales. Accordingly, Chapter 4 of the LPA (which includes the provisions in Part 4.8 conferring jurisdiction on the Tribunal to deal with the matters arising out of such conduct) applies to that conduct by virtue of s 501(1) of the LPA.

31. We shall deal with extent to which the LPA applies to the conduct alleged in the Gant Ground and the Gant Serious Allegation Ground when we consider those grounds below.

32. We now turn to consider in more detail the concepts of professional misconduct and unsatisfactory professional conduct.

Professional Misconduct

33. As the definition of "professional misconduct" in s 497 is inclusive in nature, it follows that conduct which amounts to professional misconduct under the general law will also fall within professional misconduct to which the LPA applies.

34. The common law concept of professional misconduct includes conduct in pursuit of professional activities which would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency - see The Council of the New South Wales Bar Association v Sahade [2007] NSWCA 145 at [54] (per Basten JA) which notes the adoption for legal practitioners of the test propounded in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 763 for medical practitioners.

35. In NSW Bar Association v Cummins [2001] NSWCA 284 Spigelman CJ noted at [51]:

51The words "professional misconduct" are broad and general words. Their meaning may vary from one context to another. Their interpretation involves what is often referred to as an "ambiguity", although I prefer to describe this kind of difficulty for an interpreter as one of "inexplicitness" rather than "ambiguity": see Repatriation Commission v Vietnam Veterans' Association of Australia NSW Branch Inc [2000] NSWCA 65; (2000) 48 NSWLR 548 at 577 [116].

36. An idea of the breadth of the concept can be obtained from the decision of McClellan CJ at CL in Bechara v Legal Services Commissioner [2010] NSWCA 369 at [44]:

44As Clyne [Clyne v NSW Bar Association [1960] HCA 40; (1960) 104 CLR 186 ] made plain, there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside "generally accepted standard[s] of common decency and common fairness". Previous examples of professional misconduct have included wilfully misleading the court (New South Wales Bar Assn v Livese y [1982] 2 NSWLR 231); removing documents in contravention of a court order (Howes v Law Society of the Australian Capital Territory (Supreme Court of ACT, Gallop ACJ, Higgins and Crispin JJ, 23 July 1998, Unreported); permitting conflicts of interest to arise ( Law Society of New South Wales v Moulton [1981] 2 NSWLR 736); failing to account for money received ( Re Walker; Ex parte Kemp (1887) 3 WN (NSW) 123); misleading a client ( Hoshott v Council of the Law Society of New South Wales (Supreme Court of NSW, Meagher, Sheller and Stein JJA, 17 December 1997, Unreported); gross neglect and delay ( Legal Practitioners Conduct Board v Hay [2001] SASC 322; (2001) 83 SASR 454); failing to adequately supervise an unqualified clerk ( Law Society of New South Wales v Foreman (1991) 24 NSWLR 238); breaching an undertaking given to another lawyer ( Wade v Licardy (1993) 33 NSWLR 1); and, in certain situations, criminal and/or personal misconduct ( Ziems v Prothonotary of the Supreme Court of New South Wales [1957] HCA 46; (1957) 97 CLR 279).

37. In addition to the common law concept of professional misconduct, under s 497(1)(a), unsatisfactory professional conduct may become professional misconduct if the failure to reach or maintain the requisite standard can be characterised as "substantial" or "consistent".

38. There is no statutory definition of "substantial" but its meaning, when used in statutes, has been considered in a number of cases. In Tillmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union [1979] FCA 85; (1979) 42 FLR 331 in the Full Court of the Federal Court of Australia, Deane J observed at page 348 concerning the use of "substantial" in the phrase "substantial loss or damage":

The word "substantial" is not only susceptible of ambiguity: it is a word calculated to conceal a lack of precision. In the phrase "substantial loss or damage", it can, in an appropriate context, mean real or of substance as distinct from ephemeral or nominal. It can also mean large, weighty or big. It can be used in a relative sense or can indicate an absolute significance, quantity or size. The difficulties and uncertainties which the use of the word is liable to cause are well illustrated by the guidance given by Viscount Simon in Palser v. Grinling (1948) AC 291 where, after holding that, in the context there under consideration, the meaning of the word was equivalent to "considerable, solid or big", he said: "Applying the word in this sense, it must be left to the discretion of the judge of fact to decide as best he can according to the circumstances of each case . . . " (1948) AC, at p 317 . (See also A.E. Terry's Motors Ltd. v. Rinder (1948) SASR 167, at p 180 and Granada Theatres Ltd. v. Freehold Investment (Leytonstone) Ltd. (1958) 1 WLR 845, at p 848 .)

39. French J made the following comments in Stirling Harbour Services Pty Ltd v Bunbury Port Authority [2000] FCA 38; (2000) ATPR 41-752 in relation to the phrase "substantial lessening of competition" at [114]:

In my opinion the phrase sets a standard for judicial intervention in respect of the classes of anti competitive conduct to which it applies. It requires, before that intervention can be invoked, that there be a purpose, effect or likely effect of the impugned conduct on competition which is substantial in the sense of meaningful or relevant to the competitive process. There is, of course, a certain circularity in these attempts at exposition. It could be said that a substantial lessening of competition describes a purpose or outcome of conduct which is deserving of the intervention of the Court in the protection of the competitive process according to law. So to say, is to identify the functional character of the statutory standard.

This approach of identifying the functional character of the statutory standard in question was endorsed by the High Court in Rural Press Ltd v Australian Competition and Consumer Commission [2003] HCA 75; (2003) 216 CLR 53 at [41] and footnote 67 and by Full Federal Court in Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission [2003] FCAFC 193; (2003) 131 FCR 529 at [242].

40. Applying such an approach in the context of the LPA, it appears to us that "substantial" in s 497(1)(a) should be taken as referring to a failure to meet the requisite standard in a way that is meaningful or relevant to the legal practitioner's ability to practise law.

41. In relation to the use of the word "consistent" in s 497(1)(a), we note the relevant meaning in the Macquarie Dictionary is:

2. constantly adhering to the same principles, course, etc..

42. Similarly, the Oxford English Dictionary provides the following definition:

7.Of persons or their conduct: Marked by consistency (see consistency n. 5b); constantly adhering to the same principles of thought or action.

43. These definitions of "consistent" and the scope and purpose of the section suggest that for a failure to fall within this aspect of s 497(1)(a) there would need to be repeated or persistent failure resulting from the legal practitioner making the same mistakes of principle or acting in the same inappropriate way in a variety of situations.

44. As we understand it, no reliance was placed by the Council upon the definition of "professional misconduct" in s 497(1)(b).

Unsatisfactory Professional Conduct

45. Unsatisfactory professional conduct is a new concept introduced into the law by Part 10 of the Legal Profession Act 1987 (NSW) and thus is a creature of statute. There is no common law concept of unsatisfactory professional conduct. The legislative history of s 496 and its earlier counterpart (s 123 of the Legal Profession Act 1987) was referred to in New South Wales Bar Association v Bland [2010] NSWADT 34 at [185] to [197]. The insertion of this concept into the legislation was aimed at addressing the mischief that conduct of lawyers falling short of serious professional misconduct, such as delay and negligence, was not subject to disciplinary action.

46. Section 496 is contained in Chapter 4 of the Act. One of the purposes of that Chapter is specified in s 494(1)(b) in the following terms:

(b)To promote and enforce the professional standards, competence and honesty of the legal profession.

47. Whilst unsatisfactory professional conduct includes conduct which falls short of the requisite standard of competence and diligence, it is not limited, by the terms of the LPA, to such conduct. Nonetheless, it is helpful first to examine what constitutes "unsatisfactory professional conduct" within s 496. "Unsatisfactory professional conduct" under s 496 has 3 elements:

a)the conduct must occur in connection with the practice of law;

b)it must fall short of a standard of competence and diligence;

c)that standard is set by reference to what a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

48. There was no dispute in the present matters that all the relevant conduct the subject of the two proceedings occurred in connection with the Barrister's practice of the law.

49. For the reasons given by the Tribunal in New South Wales Bar Association v Bland [2010] NSWADT 34 at [193] and as held in New South Wales Bar Association v Miller [2010] NSWADT 300 at [15], some assistance as to the nature and content of the requisite standard can be gained from a consideration of cases dealing with allegations of breaches of contractual or tortious duties by legal practitioners.

50. In Heydon v NRMA Limited [2000] NSWCA 374; (2000) 51 NSWLR 1 the New South Wales Court of Appeal held, at [146] and [147] per Malcolm AJA:

146Both barristers and solicitors owe a duty of care to those whom they advise or for whom they act. In the present context, their duty is to exercise reasonable care and skill in the provision of professional advice. The standard of care and skill is that which may be reasonably expected of practitioners.

147In this context the content of the duty of care and the liability is the same whether it is founded on contract in the case of a solicitor, or whether it is founded on a duty of care in tort in the case of a barrister. In each case the duty is to apply the relevant degree of skill and exercise reasonable care to carrying out the task. There is no implied undertaking that the advice is correct, but only that the requisite degree of professional skill and care has been exercised in the giving of the advice.

51. Thus in order to satisfy the requisite standard of diligence and competence under s 496 it is not necessary for the legal practitioner to be correct in all advice given, submissions made or forensic decisions taken. It will be sufficient if the legal practitioner has exercised the diligence and competence that a member of the public is entitled to expect of a reasonably competent practitioner in giving the advice, making the submissions or taking the forensic decisions. The authorities indicate that the following, among other things, are reasonably to be expected of legal practitioners:

a)Basic legal knowledge and keeping abreast of developments in the legal practitioner's field of practice - Law Society of New South Wales v Moulton [1981] 2 NSWLR 736 at 751;

b)Providing assistance to the judge in determining issues including by referring to relevant authorities and statutory provisions. Simply articulating a position without any considered submissions or analysis may, depending on the circumstances, be insufficient - Accurate Financial Consultants Pty Ltd v Koko Black Pty Ltd (2008) 66 ACSR 325, [2008] VSCA 86 at [194], Legal Profession Complaints Committee v De Braekt [2011] WASAT 1 at [97]- [99].

52. In addition, given that s 496 provides only an inclusive definition of unsatisfactory professional conduct, conduct which does not fall within the description in that section might nonetheless still constitute unsatisfactory professional conduct for the purposes of s 562. For example, in New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85 it was held that counsel's rudeness, sarcasm and use of words that had a tendency to undermine confidence in the administration of justice amounted to unsatisfactory professional conduct. This was especially so where counsel's conduct was not necessary to advance the client's interests and was not calculated to assist the court in performing its functions.

53. The LPA in s 498(1)(a) provides that conduct consisting of a contravention of the LPA or legal profession rules , such as the New South Wales Barristers' Rules, can amount to professional misconduct or unsatisfactory professional conduct whether or not the Barrister is convicted of an offence in relation to the contravention. Under s 498(1)(f), conduct consisting of a failure to comply with the requirements of a notice under the LPA, for example, a notice under s 660(1), is also capable of constituting professional misconduct or unsatisfactory professional conduct. Further, an Australian lawyer who fails to comply, without reasonable excuse, with a requirement under s 660 is guilty of professional misconduct by operation of s 676(3) and (4).

The Statutory Declaration Ground - Pleading

54. The Statutory Declaration Ground is articulated as follows in the application for original decision:

That [the Barrister] is guilty of professional misconduct or unsatisfactory professional conduct because he failed to provide the NSW Bar Association ... with a statutory declaration after being requested to do so.

55. The particulars in paragraphs 1.1 and 1.3 alleged that there had been two requests. One by letter from the Bar Associated dated 5 July 2007 and one by letter dated 26 July 2007. It was further particularised in paragraphs 1.2, 1.4 and 1.5 that neither of these requests had been complied with up to the date when the application for original decision was filed.

56. The Barrister's Reply, filed on 28 February 2011, included a long response to the matters alleged in relation to the Statutory Declaration Ground. It is quoted in full as it is difficult to summarise all of the issues identified. It was in the following terms:

1)The Respondent (the Barrister) say the Applicant application is vexatious, oppressive, discriminatory, frivolous and abuse of process and should be dismissed with cost.

The Barrister deny that he was guilty of professional misconduct or unsatisfactory professional conduct. The Barrister provided all requisite and relevant information in answers to the letter of the Executive Director dated 3 July 2007 the following day being 4 th July of which the Barrister was issued with his certificated and Applicant deliberately issued the certificate with the date of 4 th July 2007 in flagrant disregard to the dictate of the letter of the Executive Director reflecting the law and the practice.

2)The Barrister say that request for information whether ordinarily or in form of statutory declaration must be reasonable.

3)The Applicant received application of the Barrister for renewal of practising certificate 2007/2008 on 6 th June 2007, the Applicant did not deny this fact. See page 2 paragraph 1, see paragraph 3 page 7 report to Bar Council

4)The Barrister secured and paid for his insurance with Suncorp before 30 June 2007.

5)On or about 3 July 2007 the Applicant received copy of certificate of insurance and confirmation from Suncorp saying that the Barrister was insured from 30 June 2007 to 30 June 2008.

6)The Applicant determined to be unfair to the Barrister or determined to mislead refused to provide the files containing all the documents about the Barrister and further with uncleaned hands determined by that conduct to use the Tribunal to institute injustice and unfairness and be oppressive to the Barrister.

7)The Applicant are under obligation to be honest and fair and provide all documents including the certificate of insurance which was never provided in any of the documents provided to the court. The Suncorp through its counsel had provided to the Barrister a copy of the issued certificate sent to the Applicant.

8)The only reason that the Applicant refused to provide the documents or allow for the subpoenaed file of the Barrister was to obscure the course of justice and mislead this Honourable Tribunal. It is evident that Providing the file or the certificate of insurance will run contrary to the letter of the Executive Director dated 3 July 2007 to which the Barrister complied with.

9)In the letter from the Executive Director, P.A. Seith, the content of which was not withdrawn by the Applicant, the Applicant did not disclaim that letter from the Executive Director dated 3 July 2007; in part, the letter states:

"You may of course have already taken out approved professional indemnity insurance and on the advise of the broker/insurer assumed that the Association would be notified. Although the brokers/insurers provide the Association with lists of Barristers who have bound cover with them, there have been instances where an individual's name has been left off the lists provided. If you have your certificate of insurance, would you please forward a copy to the Association today so your practising certificate can be issued. If you have taken out cover but do not yet have the certificate of insurance, would you please ask your broker/insurer to confirm in writing that cover has been effected."

10) In the third paragraph the Executive Director wrote "Once written confirmation of your insurance is received, your practising certificate will be issued with the date you secured approved professional indemnity insurance, or 1 July 2007, (in italics) 'whichever is the later'." Exhibit marked PAS 1 Affidavit of Philip Alan Selth sworn 22/7/2009 at page 1.

11) On the copy of the certificate provided to the Applicant upon which the Applicant issued the Barrister's certificate on 4 th July 2007, the Barrister's insurer Suncorp unequivocally and expressly stated that the Barrister was insured "from : 30 June 2007 to 30 June 2008".

12) The Applicant for no rational reason selectively referred to the letter of the Executive Director dated 3 July 2007 and deliberately refused to adhere to the terms of the letter and issued the Barrister's certificate to date from 4 July 2007 rather than 1 July 2007 which was later than 30 June 2007 in accordance with the Executive Director's letter.

13) In a misleading letter the Director, Professional Conduct Anne Sinclair, wrote "I enclose your practising certificate for 2007/2008 issued on 4 July 2007 which is the date on which you secured PII cover". See page 2.

14) The professional Conduct Director was aware that the Barrister Secured PII cover from 30 June 2007, and knowingly wrote that letter in the form it was to find a reason to misleadingly attack the reputation of the Barrister.

15) The Professional conduct Director knew or ought to have known the difference between date of receipt of secured PII cover as opposed to the date that the PII cover was secured and the Professional Conduct Director by the position held should be aware of that difference or should have sought advise from the Bar Council or read and understand the letter of the Executive Director before writing her letter.

16) The Barrister contacted the office of the Association and constantly referred them to the certificate and the letter of the Executive Director, yet the Deputy Director, Professional Conduct, Stephanie Mancell, without checking her records and understanding the difference between date of receipt and date of secured PII continue chasing the Barrister see letter purported to be written on 24 August 2007, and without reasonable ground the Director had referred the matter to the Bar Council through the PCC which she is a member. See pages 5 and 6, 7-10 report to Bar Council.

17) The Director and Deputy professional Conduct, deliberately misled the Bar Council in paragraph 4 of the report to the Bar Council by stating "Asuzu was granted a practising certificate on 4 July 2007 which was noted to be effective from 4 July 2007 to June 2008. Insurance had been secured as and from 4 July". Whereas in actual fact they knew that the certificate of insurance stated clearly 30 June 2007 to 30 June 2008 however consciously and contumaciously chose to misled the Bar Council.

18) Request for information must have to be reasonable, however the Barrister was in constant contact with the office of the Applicant and they agreed to check their records and confirm to the Barrister with a letter which they never did but chose to misled the the Bar Council by saying in page 8 paragraph 6, that "No response was received from Asuzu...".

19) In paragraph 10 at page 9 the Applicant inadvertently confirmed that the Barrister had been in contact with the Applicant's office but refused to inform the Bar Council the content and purpose of the contacts and conversation. In that conversation the Barrister further told the Applicant to check their record that he had insurance cover from 30 June 2007 to 30 June 2008.

20) In the light of the unreasonable and persistent harassment of the Barrister, the refusal to check record and expressly confirm in writing to the Barrister, the Barrister became unwell and in the same period the Barrister lost his father and passed all these information to the Applicant and also inform the Applicant to give him about six months to pay cost of the protracted legal battle with the Applicant, $10,900 after agreement on 9 September 2008. The Applicant as usual never responded on the information or request.

21) The Bar Council, through the Deputy Director, Professional Conduct acknowledge the Barrister's write to silence based on advise, she wrote "The Bar Council's view is that it is beneficial for persons against whom complaints are made to obtain independent assistance and advise prior to responding to a complaint. The Bar Council encourages you to do so" see page 12.

22) The Barrister informed his insurer and was provided with legal advise to desist from further direct contact with the Applicant.

23) The Barrister's legal adviser continued contact with the Applicant and in one of the letters of their correspondence before Christmas in December 2008 also notified the Applicant of the death of the Barrister's father and in another letter dated 7 January 2009 advised "our client is currently overseas and not expected to return until February 2009".

24) The Barrister's legal advisers had advised the Applicant that it was in the public interest to dismiss the complaints and form strong view that the Barrister will not be found guilty of professional misconduct or unsatisfactory professional conduct.

25) The applicant on receiving the information again of the death of the Barrister's father and that the Barrister had gone overseas in relation to the father's death and will be back in about three months time, without human sympathy, proceeded to bankrupt the Barrister just after the 2009 New Year in fact on 23 January 2009 before the expected return in February. The only purpose of which was to be oppressive and abuse of the process and to exclude the Barrister from practice indefinitely through the operation of Section 70 of the Legal Professional Act 2004 if he became undischarged bankrupt due to hardship meted on the Barrister.

26) In subsequent certificate of insurance issued on 10 July 2008 for the 30 June 2008 to 30 June 2009 period the Applicant issued the Barrister with the certificate on 1 July 2009 and did not complained It is either that the person that processed the 2007/2008 certificate was unreasonable and vindictive or the person that processed and issued the 2008/2009 certificate was unreasonable or the letter of the Executive Director dated 3 July 2007 was unreasonable and in effect the Barrister was guilty of professional misconduct in both circumstances for which he had secured insurance from June 30 but the information from the insurer came late.

27) The request for information was unreasonable in the light of the information in the Applicant's possession. In any event even if the Barrister did work on Sunday and the subsequent 2 days by the letter of the Executive Director and the provided insurance cover he had committed no offence that will warrant professional misconduct.

28) In page 23 paragraph 8, the Deputy Director, Professional Conduct was aware that the Barrister was not reachable on land phone and the office had closed. The Committee at page 27 paragraph 22 recommended to the Council that this complaint be dismissed for lack of evidence. See page 29 paragraph 1.

29) The Barrister letter dated 23 July 2008 at page 32 paragraph 1 clearly indicated that the Barrister had been in communication with the NSW Bar Association it is misleading to alleged that there was no response from the Barrister.

30) The Barrister had also expressly informed the NSW Bar Association through the Deputy Director, Professional Conduct saying he was unwell "I have been suffering depression and feeling of worthlessness", this part which support reasonable excuse was excluded in paragraph 31 of page 44.

31) The Barrister further said "As regard my 2007/08, professional indemnity insurance, I affected it in time to cover as stated by the said insurance cover, from 1 July 2007 to June 2008". "Should you require further clarification of any of the issues raised, please call me on my mobile, as my relocation move does not warrant having a land line at the moment". See pages 32 and 33.

32) In the light of all the above information the Barrister strongly believe that he was a subject of unfair attack was not guilty of professional misconduct or unsatisfactory professional conduct having provided all relevant information and answer to the letter of the Executive Director through his insurer.

33) The Barrister say to determine this matter the first questions before the Tribunal was whether the request for information was reasonable? And if reasonable whether the Barrister had provided all relevant information in the light of the letter of the Executive Director dated 3 July 2007. And whether the Executive Director was unreasonable and misleading in his well informed letter? And whether punishment was to precede, if any, conduct at the time that the Barrister was reminded of his duty or after the Barrister was reminded of his duty.

57. In relation to particular 1.1 of the Statutory Declaration Ground, the Barrister responded:

THE BARRISTER SAYS THAT HE PROVIDED ALL INFORMATION REQUIRED AND WAS ISSUED CERTIFICATE IN SAME TERMS THAT THE APPLICANT ISSUE TO OTHER MEMBERS HOWEVER WRONGLY COMMENCED THE DATE OF THE BARRISTER'S CERTIFICATE ON 4 JULY 2007 AND RELIED ON ADVISE OF COUNSEL.

58. To particulars 1.3 to 1.5, the Barrister responded in each case:

THE BARRISTER PROVIDED ALL RELEVANT INFORMATION AND RELIED ON ADVISE OF COUNSEL.

59. It is clear that the Barrister is denying that he is guilty of professional misconduct and unsatisfactory professional conduct in relation to this ground and is alleging that he provided all relevant information. He is not, however, alleging specifically that he complied with the requests within the times specified. He raises the issue of whether the date of commencement of the practising certificate, being 4 July 2007, was correct.

60. As the same evidence relates to both the Statutory Declaration Ground and the S 660 Notice Ground, we shall now consider the pleading of the latter ground before turning to the evidence in relation to both grounds.

The S 660 Notice Ground - Pleading

61. The S 660 Ground is pleaded as follows in the application for original decision:

Ground 3

That the Barrister is guilty of professional misconduct because he failed, without reasonable excuse, to comply with a requirement under s 660(1) of the Legal Profession Act 2004.

62. The following particulars were provided:

3.1

Under cover of a letter dated 29 October 2007 from the Association to the Barrister at his last notified place of practice, the Association served on the Barrister a Notice under s 660(1) of the Legal Profession Act 2004, which required the Barrister to produce documents and provide information verified by statutory declaration, by 13 November 2007 (the Notice)

3.2

The Barrister failed to provide any documents or information verified by statutory declaration as required by the Notice.

3.3

Under cover of a letter dated 15 November 2007 from the Association to the Barrister at his last notified place of practice, the Association served on the Barrister a copy of the letter dated 29 October 2007 enclosing the Notice, and required the Barrister to respond to the letter by 29 November 2007.

3.4

The Barrister failed to provide any documents or information verified by statutory declaration as required by the letter dated 15 November 2007.

3.5

In failing to comply with the Notice, the Barrister contravened s 660(3) and s 676(3) of the Legal Profession Act 2004.

63. In his reply, the Barrister responded to Ground 3 as follows:

THE BARRISTER DENY THAT HS IS GUILTY OF PROFESSIONAL MISCONDUCT AND APPEAL THE FINDING AND DECISION

64. The response to particulars 3.1 to 3.4 was in each case:

THE BARRISTER PROVIDED ALL RELEVANT INFORMATION AND RELIED ON ADVISE OF COUNSEL.

In addition, in respect of particular 3.5, the Barrister said:

THE BARRISTER PROVIDED ALL RELEVANT INFORMATION AND RELIED ON ADVISE OF COUNSEL. THE BARRISTER DENY THAT HE CONTRAVENE s 660(3) and s 676(3) of the Legal Profession Act 2004

65. Once again it appears clear to the Tribunal that the Barrister is denying that his conduct constituted professional misconduct but he has not specifically alleged that he provided the information sought within the time required. Nor is there any attempt to plead specifically any "reasonable excuse" for non-compliance.

The Statutory Declaration and S 660 Notice Grounds - Evidence and Findings

66. We now turn to consider the evidence in relation to both grounds. These grounds arise out of the Barrister's renewal of his 2007/2008 practising certificate.

67. The Barrister's Application for Renewal of Practising Certificate 2007/2008 form is dated 7 June 2007 but may have been received by the Bar Association on 6 June 2007. Nothing appears to turn on this slight discrepancy.

68. On the application form signed and submitted by the Barrister, it was noted:

If there is a delay in receiving the certificate of currency from your insurer, the practicing certificate renewal form and fee payment should still be forwarded to the Association before the due date of 7 June 2007.

However, a practicing certificate will not be issued until proof of insurance has been received by the Association. It is the barrister's responsibility to arrange for this documentation to be provided to the Association.

69. The Barrister's proposal form for professional indemnity insurance ("PI Insurance") for the period 30 June 2007 to 30 June 2008 was, however, dated 30 June 2007. It also bore a stamp which indicated that it had been received by the insurer, Suncorp, on 3 July 2007. There was nothing in the documentary evidence to suggest that the Barrister had taken earlier steps to obtain the requisite PI Insurance.

70. On 3 July 2007, Mr P A Selth, the Executive Director of the NSW Bar Association, wrote to the Barrister concerning the renewal of his practicing certificate. In that letter, Mr Selth said:

The Association is unable at this time to issue you with the practicing certificate for 2007-2008 as confirmation of your professional indemnity insurance has not been received.

You may of course may have already taken out approved professional indemnity insurance and on the advice of the broker/insurer, assumed that the Association would be notified. Although the brokers/insurers provide the Association with lists of barristers who have bound cover with them, there have been instances where an individual's name has been left off the lists provided. If you have your certificate of insurance, would you please forward a copy to the Association today so your practicing certificate can be issued. If you have taken out cover but do not yet have the certificate of insurance, would you please ask your broker/insurer to confirm in writing that cover has been effected.

Once written confirmation of your insurance is received, your practicing certificate will be issued with the date you secured approved professional indemnity insurance, or 1 July 2007, whichever is the later .

Your current practicing certificate expired on 30 June 2007. I remind you that it is a breach of the Legal Profession Act 2004 to engage in legal practice for fee, gain or reward without holding a current practising certificate (S14), or to represent you are entitled to engage in legal practice unless you hold a current practicing certificate (S15). 'Engage in legal practice' includes chamber work.

71. In his oral evidence, Mr Selth said that he assumed that on 4 July 2007 the Bar Association received oral confirmation from Suncorp that the Barrister had secured professional indemnity cover from Suncorp and, as a result, the Bar Association issued to the Barrister his practising certificate for 2007/2008 on 4 July 2007. It can be noted here that on 5 July 2007, a formal certificate of insurance in respect of the Barristers' PI Insurance for the 2007/2008 financial year was issued by Suncorp and the period of insurance was expressed to be from 30 June 2007 to 30 June 2008.

72. The Barrister's 2007/2008 practising certificate was sent to him under cover of a letter from the Bar Association dated 5 July 2007. The Tribunal was not provided with a copy of the Barrister's 2007/2008 practising certificate. It was apparently not in dispute, and the case was conducted on the basis, that the certificate was issued on 4 July 2007 for the period from 4 July 2007 to 30 June 2008. As a result, the Barrister did not hold a "current practising certificate" on 1, 2 or 3 July 2007.

First Request for Statutory Declaration

73. The first request for a statutory declaration was alleged to have been made by the Bar Association's letter of 5 July 2007 to the Barrister. That letter stated:

Your application for renewal of practising certificate 2007/2008 was received on 6 June 2007.

I enclose your practicing certificate for 2007/2008 issued on 4 July 2007 which is the date on which you secured PII cover. This practicing certificate has been issued to you on the condition that you provide, by Friday, 13 July 2007 , a statutory declaration setting out whether you practiced as a barrister from 1 July 2007 to 3 July 2007.

If you have practiced as a barrister from 1 July 2007 to 3 July 2007, please indicate in your statutory declaration precise details of any work performed ...

If you have engaged in legal practice for fee, gain or reward without holding a current practicing certificate, or represented you are entitled to engage in legal practice when you did not hold a current practicing certificate, you are in breach of sections 14 and 15 of the Legal Profession Act 2004. 'Engage in legal practice' includes chamber work.

You should be aware that in these circumstances, the Bar Council may make a complaint against you.

Please mark your statutory declaration for my attention.

(Underlining added)

74. The letter was signed by Ms Anne Sinclair, Director, Professional Conduct.

75. In cross examination, the Barrister stated that he had received the letter some days after it had been sent. The Tribunal finds that this letter was sent and received.

76. This letter of 5 July 2007 does not use the word "request" in relation to the Barrister providing the statutory declaration. Nonetheless, in our view it would have been clear to any barrister receiving such a letter that the Bar Association was requiring or requesting him or her to provide, by Friday 13 July 2007, a statutory declaration setting out whether the barrister had practiced as a barrister on the three days of July 2007 before the practising certificate was issued, as well as details of any work performed on those days.

77. In these circumstances, we find that a request for a statutory declaration was communicated to the Barrister by about 7 July 2007.

78. The letter of 5 July 2007 was only relied upon as constituting a request for the provision of a statutory declaration.

79. Having found that the request was sent and received, the next issue is whether the Barrister complied with the request. The evidence from the Bar Association is that there was no compliance. The evidence from the Barrister was very unclear.

80. The Tribunal notes that neither in his written evidence nor in the reply filed on the Barrister's behalf in this matter, is there an express statement that he provided the statutory declaration referred to in the Bar Association's letter of 5 July 2007 to the Association on or before 13 July 2007. Nor has the Barrister ever produced a copy of such a declaration.

81. The Barrister complained that he has sought access to his file held by the Bar Association but the Council objected to production of the file. This was raised in his affidavit of 28 February 2011 in proceeding 092020 in the following terms:

6.In respect to Ground 2 of the application, I issued a request for better particulars on 2 July 2010 and production of my File held by the Bar Association office. The Association objected to production of my files.

7.My File would reveal all correspondence when received as this is very vital to the central issue to be resolved with this complaint.

82. Apart from this material, however, no evidence was put before the Tribunal which would provide any basis for us to conclude that the Bar Association or the Council withheld documents that might have assisted the Barrister's case. We do not find that the Association or Council did so.

83. The Barrister's affidavit of 28 February 2011 reads in part:

4.In respect of this complaint, the gist relate to Practice without Indemnity Insurance cover and various correspondence between the applicant and myself.

5.I responded to all inquiries in respect to my payment on time for the Suncorp Indemnity Insurance cover within the period of concern, as it was beyond my control for any delay in processing my payment to that effect

....

8.I sent a photocopy of my Diary for the one day at issue by walking down to the Bar Association Reception, handed over the letter that enclosed my said Diary. I was advised by the Reception to 'give the letters next time to their lawyers'.

....

13 I responded to all correspondence in relation to whether I practiced on 3 July 2007, including those of 11 August and 24 December 2008, because I paid for the said Indemnity Insurance and did not anticipate any difficulties arising from that issue at the time or any other period.

84. In his affidavit of 16 March 2011, the Barrister gave evidence:

6.Mr P A Selth, Executive Director in a letter dated 3 July 2007; wrote to me saying:

You may of course have already taken out approved professional indemnity insurance and on the advise of the broker/insurer assumed that the Association would be notified. Although the brokers/insurers provide the Association with lists of Barristers who have bound cover with them, there have been instances where an individual's name has been left off the lists provided. If you have your certificate of insurance, would you please forward a copy to the Association today so your practising certificate can be issued. If you have taken out cover but do not yet have the certificate the insurance, would you please ask your broker/insurer to confirm in writing that cover has been effected.

7.In the 3 rd paragraph of the letter, Executive Director wrote 'once written confirmation of your insurance is received, your practising certificate will be issued with the date you secured approved professional indemnity insurance, or 1 July 2007, (whichever is the latter)' ....

8.On the copy of the certificate provided to the Applicant upon which the Applicant issued my certificate on 4 th July 2007, my insurer, Suncorp, unequivocally and expressly stated that I was insured 'from: 30 June 2007 to 30 June 2008' as per attached.

9.I secured insurance 30 June 2007 the later of that date was 1 July 2007, but I received certificate from the Director, Professional Conduct Anne Sinclair, and a letter saying 'I enclose your practising certificate for 2007/2008 issued on 4 July 2007 which is the date on which you secured PII cover' ....

10.The letter of Ms Anne Sinclair was at variance with the known fact in the letter from the Executive Director.

11.Ms Anne Sinclair had written me other letters and I had sought that she make her self available for cross- examination but the lawyer declined saying that she is not compellable to be cross examined or give evidence even in the interest of justice.

85. The Barrister's evidence appears to proceed upon a misunderstanding as to the nature of the Bar Association's concern which gave rise to the request in the 5 July 2007 letter. His evidence assumes that the Association's concern was that the Barrister had possibly been practising without PI Insurance cover. It also proceeds on the assumption that if the Barrister could show that he had PI cover from 30 June 2007 to 30 June 2008, his 2007/2008 practising certificate should have been backdated to cover the same period.

86. In fact, the Bar Association took the view that it could not issue the Barrister's practising certificate until it received confirmation that he had secured PI Insurance cover. This did not occur until 4 July 2007 and the practising certificate was issued on that day. Thus, the Bar Association's position was that on 1, 2 and 3 July 2007 the Barrister did not have a "current practising certificate" and could not practise on those days without contravening s 14 of the LPA, having regard to the definition of "Australian legal practitioner" in s 6 of that Act. As far as the Bar Association was concerned, it was not relevant that the Barrister had actually obtained PI cover back dated to 30 June 2007.

87. This misunderstanding on the part of the Barrister has meant that his affidavit evidence concerning whether or not he responded to the Bar Association's request of 5 July 2007 was of little assistance.

88. Turning to the Barrister's oral evidence further difficulties arise. At one point in cross examination, the following question and answer occurred:

Q. Did you provide the Bar Association with a statutory declaration dealing with that matter by Friday 13 July 2007?

A. That's exactly what I did.

89. The questions and answers that followed, however, included evidence that was inconsistent with that answer. The transcript recorded the following:

Q. Do you say that when you did that sometime on or before Friday 13 July 2007, the receptionist said to you, next time give it to our lawyers?

A. Yes.

Q. That evidence is untrue to your knowledge, isn't it?

A. It can't be. All I know is that before the statutory declaration, I had written a letter explaining this scenario, this situation and the reason why I requested my diary - my file from the Association was simply to see the correspondence from day one to the last day, the correspondence that had gone between me and the Association but my file was never given to me. I still would love to see my file that they hold because I need to see what is in there.

Q. You know, don't you, that the Bar Association did not have lawyers acting for it in relation to any matter concerning your practising certificate between the 5th and 13 July 2007?

A. The first response I had with them was a written letter, a written typed letter which I sent to them and there is correspondence in this thing which shows that letter. You simply have to - in that letter they're saying that I wasn't committing to whether I worked or not. I can remember that letter and then I requested to do a statutory declaration which I then did and walked it down.

Q. On or before 13 July 2007, is that your evidence, on your oath?

A. Perhaps when they started to - the request to photocopy my diary was later on and that's when they asked me to give it to their lawyer.

Q. Well are you wishing to change your evidence now? Do you say that you took the statutory declaration down to the Bar Association on or before Friday, 13 July 2007, only to be told by the receptionist, next time give it to our lawyers. Is that your evidence or not?

A. Look the first response from myself was a letter which I wrote explaining my days, first, second and third. First and second happened to be a Saturday and Sunday because the third date would have been Friday, I don't know, I'm not quite sure and I explained that I had my son on a Friday, I picked up from Sydney and returned him on Sunday and within that period with the boy I couldn't do my - I couldn't do anything at home. And the Monday, I didn't have any recollection of field notes, that was a typed letter. The statutory declaration I walked down was much letter, how many times will I say that? That wasn't on the 5 July, no, that wasn't that. The affidavit or just that date that I enclosed my diary was much letter. At the point when they have started investigating the matter further and they had a lawyer then, the same lawyers that were acting for them was in that case now, as from then.

Q. You've changed your evidence about that issue haven't you?

A. Well I have to clarify first type the letter, subsequent and after that the statutory declaration.

Q. The reason why you've changed your evidence is because you know that it is untrue to say that you delivered a statutory declaration to the Bar Association in July of 2007 because you know the Bar Association didn't have lawyers acting for it about this matter then? That's right isn't it?

A. No, it cannot be. You're confusing yourself, rather myself. My first response, written letter, not statutory declaration. And I would not have done those two in one go. One was after the other. The letter that I wrote first and then walking down was my diary which I photocopied and walked it down.

Q. You knew from reading Ms Sinclair's letter of 5 July 2007 that the condition upon which the practising certificate was given to you was that you produced a statutory declaration by Friday, 13 July 2007, correct?

A. Otherwise they take it back or what can I--

Q. I'm just asking you what you understood?

A. Well I - my indemnity insurance was paid and under the postal accept come through, that was paid and paid. So I have no business to worry whatsoever.

Q. And you're telling the Tribunal that you did not give to the Bar Association a statutory declaration any time on or before Friday, 13 July 2007 as was requested by Ms Sinclair in her letter of 5 July?

A. I wrote a letter first, this is the third or fourth time I'm saying it, I wrote a letter first, and subsequently, when the matter hadn't died down, it was still being continued, I wrote a statutory declaration by my hand, photocopied my diary of the time and then enclosed it, walked it down to the Association.

EZEKIEL-HART: May I assist the Tribunal a bit in this light? If the Court will remember there are two letters. Firstly, the letter of Mr Selth which was written on 3 July and from Michelle(?), from the barrister, and then this will have arrived possibly about two days or one day after having posted and this other one coming on 5th and of course one would have to respond to one letter first and which is reasonable I believe and possibly that will clarify the reason why.

NORTON

Q. Have you got in front of you the volume open at page 1655?

A. Yes.

Q. And you see that's a letter addressed to you?

A. Yes.

Q. Do you remember getting that letter?

A. Yes.

Q. Did you get that letter before 13 July 2007?

A. I was - I don't know if I got it the following day or the next day or whenever but I got this letter.

Q. Yes, so you got that letter by about 6 or 7 July?

A. Yes.

Q. And did you read the letter when you got it?

A. Yes.

Q. Did you notice the letter told you to provide a statutory declaration by

13 July 2007?

A. Yes.

Q. Did you provide that statutory declaration before 13 July 2007?

A. I may have written--

Q. Not a letter, we're only interested in whether you did a statutory declaration before 13 July 2007?

A. I may have written a letter, not a statutory declaration, but I did a statutory declaration later or that was the one, I don't know, I can't remember.

Q. So in response to this letter did you write a letter to the Bar Association?

A. Yes.

Q. And some time after 13 July 2007 did you do a handwritten statutory declaration?

A. Yes.

Q. But it was, as I understand it from your evidence, quite a while after that time?

A. After, yes.

Q. So the answer to the question of whether you did a statutory declaration before 13 July 2007, the simple answer is no?

A. Well, I tried to clarify it, you know

Q. I think we all are on the same page now, the answer is no, you did a letter?

A. I did a letter first and foremost and the only time I did a statutory declaration was when I was asked to put my diary.

Q. And that was much later than 13 July 2007?

A. Later, yes.

MCLURE

Q. Would you turn to tab 159, please. You see that's a letter dated 26 July 2007 from Ms Sinclair to you?

A. Mm-hmm.

Q. And you see that in the letter Ms Sinclair asks you to provide the statutory declaration by Monday 30 July 2007?

A. Okay.

Q. You didn't do that either, did you?

A. I did.

Q. You didn't give the Bar Association a statutory declaration--

A. That's--

Q. No, Mr Asuzu, just let me finish asking the question. You did not give the Bar Association a statutory declaration before Monday 30 July 2007, did you?

A. I did.

Q. When do you say you gave the Bar Association the statutory declaration between 13 July and 30 July?

A. One of these days I did.

Q. It's one of those days you can't remember, is that right?

A. Well, I don't know if it was a Friday or Monday but I walked from my chambers to the Bar Association office between 4 and 5 and handed the receptionist a letter containing my photocopied diary, seven day diary.

Q. The Bar Association did not ask you to produce your diary between 5 July and 26 July 2007, did it?

A. I don't know when they asked me but all I know is that they asked me for the diary and that's when I produced the diary.

Q. So it's the date that you were asked to produce the diary that helps you to remember when it was that you took the statutory declaration down to the Bar Association, is that it?

A. Yes.

Q. So if the Bar Association did not ask you to produce your diary at any time between 13 and 26 July 2007 does that also mean that you didn't deliver a statutory declaration to the Bar Association in that period too?

A. It was just in plain response to their letter requesting me to supply my diary of the day and then I supplied the diary by walking it down, the page, one page.

Q. Do you say that the statutory declaration, that you took the oath in the statutory declaration before another barrister, Mr Jones?

A. Yes.

Q. Do you know where Mr Jones is now?

A. I don't know. Since I cam back from overseas I don't know where he is.

Q. Have you or your legal representatives sought to obtain an affidavit from Mr Jones about this incident?

A. He signed a lot of affidavits for me or witnessed affidavits for me, if he was willing to do that he can.

NORTON: No, we need you to try and focus. I now it's getting late and we're all getting tired but can you try and focus on just answering the question. Have you tried to contact Mr Jones to ask him if he recalls witnessing this document?

WITNESS: No, I haven't.

MCLURE

Q. Would you please turn to tab 166. Do you see that's a letter to you from Stephanie Maunsell of the Bar Association dated 29 October 2007?

A. Yes.

Q. Do you see that the letter enclosed for your attention a notice pursuant to 660 of the Legal Profession Act?

A. Yeah.

Q. Did you read in the final paragraph of the letter where Ms Maunsell drew attention to the fact that the Legal Profession Act provided that failure to comply with a notice under section 660 without reasonable excuse is professional misconduct?

A. It didn't concern me. I supplied what they needed so and they continued to chase it up.

Q. But you were conscious, were you, after reading that letter that failure to comply with a section 660 notice without reasonable excuse constitutes professional misconduct?

A. I supplied the information they required and if they've continued to chase it that's their business.

Q. The section 660 notice that you were given under cover of that letter is under tab 167, isn't it?

A. Maybe this is when they start to investigate the matter.

Q. That's the section 660 notice that was enclosed with Ms Maunsell's letter, correct?

A. Maybe.

Q. Do you just not know now?

A. Well, if it is it is.

Q. When do you say you submitted your response to that notice to the Bar Association?

A. All I know is that I've done two letters, one is a letter, the other one is an affidavit or statutory declaration in between the investigation and the 3 July.

Q. Do you say that you responded to this section 660 notice with a letter or with a statutory declaration?

A. One is my explanation in letter. Second is my statutory declaration enclosing my diary for the day, other than that I simply haven't done anything more.

Q. Are you telling the Tribunal that you responded to this notice by giving the Bar Association a letter and a statutory declaration?

A. No, ever since 3 July till today all I did was a letter first and then a subsequent statutory declaration enclosing my diary for the day or week.

90. The Barrister's evidence supports the following conclusions:

(a) The Barrister still thought that having secured PI Insurance cover back-dated to 30 June 2007 and up to 30 June 2008 this was all that was necessary to satisfy the Bar Association's concerns in 2007. He said: " Well I - my indemnity insurance was paid and under the postal accept come through, that was paid and paid. So I have no business to worry whatsoever. ";
(b) The Barrister only ever provided two written responses to the Bar Association in relation to whether he practised during the period from 1 to 3 July 2007;
(c) His first response in writing to the Bar Association concerning the general issue of whether he practiced in the period 1-3 July 2007 was by way of a letter in which he explained, among other things, that he had picked up his son on the Friday and returned him on the Sunday 1 July 2007; and
(d) His second, later response to the Bar Association was to provide a letter or statutory declaration together with a photocopy of his diary for the relevant days in response to a specific request by the Association for extracts from his diary.

91. Eventually in cross examination, the witness was taken to his letter to the Bar Association dated 23 July 2008. That letter was expressly stated to be "In response to [the Association's] letter of 11 July 2008 ". The Barrister was directed to the third and fourth paragraphs of that letter which included:

As you have rightly stated, 1 July 2007 was a Sunday and I pick up my son on Friday from Sydney on Friday evening and return him Sunday evening from Wyong. That rules out any opportunity to perform Chamber work or see clients in conference with my son in tow. My insurance renewal application would have been received by Monday 2 July and processed by SUNCORP in Brisbane, on the 3 July 2007. If your Office checked on the afternoon, of the same say as you may have done, there could have been a confirmation, that prompted the issuance of my Practicing Certificate on 4 July.

That leaves only Monday's working hours for concern, hence, I have not issued fee notes within the 12 hour period of work between 2 nd Monday and 3 rd Tuesday July 2007. ...

92. Upon reading this letter, the Barrister agreed that this was the letter he had referred to earlier as his first written response to the Bar Association about whether he practised during the period 1 to 3 July 2007. The passage in cross examination was as follows:

Q. So this is the first letter that you sent to the Bar Association explaining what happened between 1 July 2007 and 4 July 2007?

A. Yes.

Q. And the date of the letter is 23 July 2008?

A. Yes and because my response was to their letter of 11 July 2008.

93. If this is correct, the Barrister's first relevant letter was not provided until 23 July 2008, a year after the Bar Association's request made on 5 July 2007. Further, the Barrister's letter dated 23 July 2008 was in response to the Association's letter of 11 July 2008 and not in response to the request for a statutory declaration made in July 2007.

94. The Barrister was also adamant that a statutory declaration, or letter, together with photocopied diary extracts was hand delivered by him to the Bar Association at some time after the first response and as the result of a specific request from the Bar Association for a copy of his diary for the relevant days. If this is correct, the statutory declaration could not have been sent or delivered until after late July 2008. Two additional matters confirm that this second response could have occurred no earlier than August 2008 and probably later.

95. First, the Bar Association's letter to the Barrister dated 11 August 2008 contained the first written request from the Bar Association for the Barrister to provide a copy of entries from his diary for the relevant period. Numbered paragraph 3 of that letter said:

If yes to either question 1 or 2 above in respect of Tuesday 3 July, had you issued fee notes in respect of that work; if so, please provide copies. Would you also please provide copies of the entries for 2 and 3 July 2007 from your diary (hard copy or electronic).

96. According to the Barrister, it was the express request in a letter from the Bar Association for a copy of his diary entries which caused him to take steps to deliver a copy together with a statutory declaration or letter to the Association. If this evidence is accepted, the second response must have occurred after 11 August 2008.

97. Secondly, the Barrister specifically recalled that at the time he delivered the photocopied extracts from his diary together with a covering letter or statutory declaration, the receptionist at the Bar Association said to him to "give the letters next time to their lawyers ". The Bar Council did not retain lawyers in relation to the Barrister's matter until 24 October 2008. This tends to suggest that the Barrister's statutory declaration, if it was delivered, was handed to the Bar Association reception at some time after 24 October 2008.

98. It should be noted that neither the Barrister nor the Bar Association produced a copy of this second response and the Tribunal makes no finding as to whether or not it was, in fact, ever delivered or received.

99. The Tribunal accepts the Barrister's evidence that he does not now have a clear recollection of the dates upon which he delivered what he identified as his two written responses to the Bar Association.

100. We also take into account that the Barrister thought that the problem relating to his practising in early July 2007 was cured by obtaining PI insurance cover backdated to 30 June 2007. Thus, the Barrister appeared to think that he was entitled to a practising certificate from 1 July 2007 and as a result did not believe it to be necessary to respond in writing to the Bar Association's letter of 5 July 2007 and subsequent requests for information. The Barrister did have a telephone conversation with Ms Sinclair's assistant, Lorraine Haycock, on 26 July 2007, although no evidence was given by either party as to the specific contents of that conversation.

101. In all the circumstances, we find the letter of 23 July 2008 was the first written response by the Barrister to the Bar Association in relation to whether he practised during the period 1 to 3 July 2007. From the terms of that letter of 23 July 2008, we also conclude that the letter was written in response to the Association's letter of 11 July 2008 and not to any earlier request by the Association.

102. Accordingly, the Tribunal finds that having received the letter of 5 July 2007, the Barrister did not comply with the Bar Association's request to provide a statutory declaration setting out whether he practiced as a barrister from 1 July 2007 to 3 July 2007 by 13 July 2007 or within any reasonable time thereafter.

103. Some confirmation of this conclusion that the Barrister did not comply with the Bar Association's request for a statutory declaration to be provided by 13 July 2007 is found in the subsequent letter from the Bar Association to the Barrister dated 26 July 2007 which states in part:

I note you were asked to provide, by Friday 13 July 2007, details of any legal practice in which you engaged in the period from 1 July to 3 July 2007.

This information has not been received. Would you please attend to this by Monday, 30 July 2007 .

104. The Tribunal considers it most unlikely that such a letter would have been written on behalf of the Bar Association if indeed a statutory declaration or some other substantive written response had been provided to the Bar Association prior to 26 July 2007.

The Second Request for a Statutory Declaration

105. We also accept that the letter of 26 July 2007 constituted a second request that the Barrister provide a statutory declaration setting out details of any legal practice in which the Barrister engaged in the period 1 July to 3 July 2007. Although the letter of 26 July 2007 is not phrased in terms of a "request" and does not contain an express reference to a statutory declaration, the 26 July 2007 letter does ask the Barrister to attend to the provision of " this information " and refers to, and encloses, a copy of the letter dated 5 July 2007.

106. As we understand it, it was not in dispute that the Barrister received a copy of this letter of 26 July 2007.

107. As noted above, we find the barrister's first written response to the Bar Association concerning whether he practised in the period from 1 to 3 July 2007 was in his letter of 23 July 2008. Thus, the barrister did not comply with this second request within the time specified or any reasonable time thereafter.

108. This finding is supported by the resolution of the Bar Council on 9 August 2007 referring the matter to the Profession Conduct Committee and the letter of 24 August 2007 from Ms Stephanie Mancell, Deputy Director, Professional Conduct of the Bar Association to the Barrister, which included the following:

I refer to my letters to you dated 5 July 2007 and 26 July 2007. I note those letters ask you to provide, by Friday 13 July 2007 and then by Monday 30 July 2007, details of any legal practice in which you engaged in the period from 1 July to 3 July 2007.

This information has not been received.

Section 660 Notice

109. In accordance with the Bar Council's resolution of 9 August 2007, the papers were referred to a Professional Conduct Committee which prepared a report dated 30 August 2007. The terms of that report set out the Committee's understanding that neither a statutory declaration nor the required information had been provided to the Bar Association by the Barrister by the time that report was prepared. The Committee recommended that 2 complaints be made against the Barrister. On 6 September 2007, the Bar Council resolved to make the 2 complaints as recommended by the Committee.

110. On 17 September 2007 the Deputy Director, Professional Conduct, of the Bar Association wrote a further letter to the Barrister which included the following:

On 6 September 2007 the Bar Council resolved at its meeting:

RESOLVED to make a complaint against [the Barrister] pursuant to s 504(1)(b) of the Legal Profession Act 2004 alleging that [the Barrister] is guilty of either unsatisfactory professional conduct or professional misconduct in that he failed to comply with a request by the Bar Association to provide a statutory declaration setting out whether he practised as a barrister from 1 July 2007 to 3 July 2007 being a period for which he did not hold a current practising certificate.

...

...

A Professional Conduct Committee will conduct the investigation of the complaint on behalf of the Bar Council. Please provide your written submissions about the complaint or its subject matter by close of business on Tuesday, 2 October 2007.

111. There is no material before the Tribunal to suggest that any written submissions were received from the Barrister by 2 October 2007 or before 29 October 2007.

112. On 29 October 2007 Ms Mancell, Deputy Director, Professional Conduct, of the Bar Association sent a letter addressed to the Barrister enclosing a notice under s 660(1) of the LPA.

113. The Notice, among other things, required the Barrister to:

a)Produce by 4pm on Tuesday 13 November 2007 "fee notes rendered by you to your instructing solicitor(s) or direct access client(s) for any work undertaken by you (including conferences, advice and chamber work) in the period 1 July 2007 to 3 July 2007";

b)Provide by 4pm on Tuesday 13 November 2007 certain specified information "verified by statutory declaration".

114. The Notice was stated to be issued by: "Stephanie Mancell, Deputy Director Professional Conduct, appointed by The Council of the New South Wales Bar Association under s 531A of the Legal Profession Act 2004 as an authorised person" and we infer that the original notice was signed by Ms Mancell. Having regard to s 150(3) and (4) of the Evidence Act 1995 (NSW), the terms of ss 531A, 658 and Part 4.4 of the LPA and the absence of any evidence to suggest that Ms Mancell was not so appointed, the Tribunal concludes that Ms Mancell was an authorised person under s 531A and an "investigator" for the purposes of Part 4.4 and Chapter 6 of the LPA.

115. Particular 3.1 (quoted above) in relation to this ground in the application for original decision alleges that the Notice was served on the Barrister. Mr Selth gave evidence in his affidavit of 22 July 2009 that " The Bar Association sent to [the Barrister] a notice under s 660(1) of LPA 2004 by a letter dated 29 October 2007 ". This evidence was admitted without objection and nothing to the contrary was put to Mr Selth in cross examination. In his reply and in his evidence the Barrister did not deny service of, or receiving, the Notice. Thus, whether the Notice was served was not in issue on these pleadings. Moreover, the evidence before the Tribunal established that the letter enclosing the Notice was sent to the address of the Barrister's last notified place of practice so as to satisfy the requirements of s 727(b) of the LPA in relation to service of notices.

116. We find the Notice was served on the Barrister shortly after 29 October 2007.

117. Mr Selth's affidavit evidence, which we accept, was that the Barrister did not respond to the Notice and on 15 November 2007 the Bar Association wrote again to him. Ms Mancell's letter of 15 November included the following:

You will note that the notice required a response by 13 November 2007. To date, I have not received a response from you in connection with that notice.

I draw your attention to s 660(3) of the Act which states that failure to comply with the requirement under s 660(1) is an offence punishable by the maximum penalty of 50 penalty units. I also draw your attention to s 676(3) and (4) of the Act which state that failure to comply with a requirement under s 660 without reasonable excuse is professional misconduct. Please note also that failure to comply with a requirement in this notice may have other consequences under s 671, s 672 and s 498(1)(f) of the Act.

Notwithstanding your failure to comply with the s 660notice, the Professional Conduct Committee still seeks a response by close of business Thursday, 29 November 2007 . If a response is not received, the Professional Conduct Committee will consider the complaint on the basis of the material it has at that time. The Professional Conduct Committee may also make recommendations to the Bar Council regarding your failure to respond to the s 660 notice.

118. Once again, the Barrister did not, by his reply, put in issue the service of this later letter. Mr Selth's affidavit evidence was that the letter of 15 November 2007 was sent to the Barrister by Express Post and it was sent to the Barrister's last notified place of practice. This was unchallenged in cross examination. There was no evidence from the Barrister that he did not receive the letter of 15 November 2007 and its enclosures. In all the circumstances, the Tribunal is satisfied that the letter of 15 November 2007 and its enclosures were also served on the Barrister shortly after 15 November 2007.

119. The Tribunal notes that the Barrister did not give any specific evidence that he complied with the Notice. Nor did he point to any document which could have evidenced or amounted to compliance with the Notice within the times for compliance specified in the Notice or in the letter of 15 November 2007 or within any reasonable time thereafter.

120. The evidence of the next communication was that on 26 March 2008, Ms Mancell of the Bar Association wrote to the Barrister at his residential address and copied the letter to the Legal Services Commissioner. This letter informed the Barrister of a further complaint made against him by the Bar Council whereby it was alleged that the Barrister was guilty of professional misconduct under s 676(3) and (4) in that, without reasonable cause, he failed to comply with a requirement under s 660(1) of the LPA, namely a notice dated 29 October 2007 issued pursuant to s 660 of that Act. The Barrister was asked to provide any written submissions by 10 April 2008.

121. At this stage, there is the first written record of some action being taken by the Barrister in relation to the complaints against him arising out of the renewal of his 2007/2008 practising certificate. On 31 March 2008, he wrote to the Registration Officer/Underwriting Manager of Steele Financial Consulting in Brisbane in relation to "SUNCORP INDEMNITY POLICY 2007/2008 Financial Year". The letter was copied to the Legal Services Commissioner and to Ms Mancell of the Bar Association. The letter was in the following terms:

I wish to obtain my payment details in respect of the current professional indemnity insurance with your establishment. Even though I received a Tax/Invoice or receipt for payment, it is important to ascertain when you received payment.

The exact time of payment receipt has become the point of complaint by the Bar Council yet again. As a matter of fact, I will not be able to respond as required until that information is made known to me please.

I can only receive mail by post and I have limited time to respond to the complaint against me. Your expedited respond is appreciated, as it would enable my compliance on time.

Should you require further clarification, please call my mobile phone. I thank you in advance. Remain blessed.

122. The Tribunal has already noted the Barrister's apparent misunderstanding of the nature of the Bar Association's concerns about the renewal of his 2007/2008 practising certificate. This letter of 31 March 2008 appears to be another illustration of the misunderstanding.

123. By letter dated 4 April 2008, the Underwriting Manager, Suncorp Professional Risks, wrote to the Barrister setting out a chronology of events related to the renewal of the Barrister's PI Policy. It noted that the completed renewal proposal form was received on 3 July 2007, the credit card payment was credited " overnight of 3 July and 4 July 2007 and the payment was recorded against your policy on the 4 July 2007 ". The policy was said to be " for the 30 June 2007 to 30 June 2008 period ".

124. The Professional Conduct Committee prepared a draft report in relation to the complaints against the Barrister and a copy of that draft report was provided to the Barrister under cover of a letter of 11 July 2008 from Ms Mancell. It was in response to this letter that the Barrister wrote his letter of 23 July 2008. That letter of 23 July 2008 included the following:

In response to your letter of 11 July 2008, requiring my comments as above, my last missive suggests that I was trying to obtain clarification from my Insurer as to when my payment was processed. [The "last missive" appears to be a reference to the Barrister's letter of 31 March 2008 to Steele Financial Consulting which had been copied to the Bar Association.]

It is now obvious that while I posted the renewal on the weekend using next day delivery, which was supposed to arrive on Monday, it did not. Having paid with credit card, if I faxed the renewal form over, perhaps this request would not have arisen.

Practice During 12 hours

As you have rightly stated, 1 July 2007 was a Sunday and I pick up my son on Friday from Sydney on Friday evening and return him Sunday evening from Wyong. That rules out any opportunity to perform Chamber work or see clients in conference with my son in tow. My insurance renewal application would have been received by Monday 2 July and processed by SUNCORP in Brisbane on 3 July 2007. If your office checked on the afternoon, of the same day as you may have done, there could have been a confirmation, that prompted the issuance of my practising certificate on 4 July.

That leaves only Monday's working hours for concern, hence, I have not issued fee notes within the 12 hours period of work between 2 nd Monday and 3 rd Tuesday July 2007. I cannot remember my exact activities within the same period in relation to my daily performance in Chambers/court work. It might interest you to know, that ever since Windeyer J made costs orders personally against me in a matter I appeared pro bono in the Supreme Court, I have been suffering deep depression and feeling of worthlessness.

Therefore I am still feeling the besieged, harassed and discriminated against in relation to life's exigencies to date. I am in sole practice without the assistance of a secretary, so unable to attend all requests and please all persons. However, as regards my 2007/08 professional indemnity insurance, I affected it in time to cover as stated by the said insurance cover, from 1 July 2007 to 30 June 2008. It was out of my hands that it was received late and therefore very unfortunate, as it was unintended in that respect.

I am rather astonished that you continue to pursue professional misconduct in these circumstances. Should you require further clarification of any of the issues raised, please call me on my mobile, as my relocation move does not warrant having a land line at the moment.

125. The Tribunal notes that what is stated in the letter of 23 July 2008 concerning the process of renewal of the Barrister's PI Insurance is not entirely consistent with the letter from Suncorp dated 4 April 2008. .

126. In response to the Barrister's letter of 23 July 2008, the Bar Association wrote its letter of 11 August 2008, already referred to above, in which it sought for the first time " copies of the entries for 2 and 3 July 2007 from your diary ".

127. Having regard to all of this evidence and the lack of evidence of compliance and for the reasons given above in relation to the requests for a statutory declaration in July 2007, the Tribunal is satisfied that the Barrister did not comply with the Notice either by 13 November 2006 or by the extended time of 29 November 2007 or within any reasonable time thereafter. Further, no matter amounting to any reasonable excuse for non-compliance was put forward by the Barrister.

Summary of Conclusions on Compliance with the Requests for a Statutory Declaration and the s 660 Notice

128. In summary, the Tribunal is satisfied that the Barrister:

a)Failed, within the times specified or within any reasonable time thereafter, to provide the Bar Association with the statutory declaration requested by its letter dated 5 July 2007 and by its subsequent letter dated 26 July 2007;

b)Failed, within the times specified or within any reasonable time thereafter, to comply with a requirement under s 660(1) of the LPA specified in the notice dated 29 October 2007 and served under cover of letters dated 29 October 2007 and 15 November 2007.

129. The next issue which the Tribunal must consider is whether any of this conduct amounts to professional misconduct or unsatisfactory professional conduct on the part of the Barrister. In dealing with this issue, we shall consider the Statutory Declaration Ground and the S 660 Notice Ground separately.

Statutory Declaration Ground - Professional Misconduct or Unsatisfactory Professional Conduct?

The Barrister's Answer to the Statutory Declaration Ground

130. The Barrister in his reply and in submissions raised various matters by way of answer to this ground. The substance of these matters may be summarised for present purposes as follows (although in reaching its decision the Tribunal has had regard to the whole of his reply in proceeding 092020 in respect of Ground 1 and his written submissions):

a)The Barrister provided all requisite and relevant information in answer to the letter of 3 July 2007 on 4 July 2007;

b)His practising certificate should have been backdated to 1 July 2007, being the later of the commencement date of his PI insurance cover and 1 July 2007, in accordance with the Bar Association's letter of 3 July 2007;

c)The Bar Association's requests in its letter of 5 and 26 July 2007 were not reasonable in the light of the material referred to in the preceding subparagraphs because the Barrister would not have been practising without a practising certificate if it had been properly backdated;

d)The Barrister orally contacted the Bar Association to explain the error made by the Association in relation to the dating of his practising certificate in July 2007 but in spite of this the Council improperly pressed ahead with its complaint in this regard.

131. All of these matters raised by the Barrister in answer to this ground are predicated upon the proposition that his 2007/2008 practising certificate should have been issued and dated so that it was effective from 1 July 2007. He seeks to base this upon:

a) the statement in the Bar Association's letter of 3 July 2007:

Once written confirmation of your insurance is received, your practicing certificate will be issued with the date you secured approved professional indemnity insurance, or 1 July 2007, whichever is the later.

b) the fact that written confirmation of his PI Insurance cover for the period from 30 June 2007 to 30 June 2008 was provided to the Bar Association, by way of the certificate of insurance issued by Suncorp on 5 July 2007 and/or by way of a Suncorp document headed "Insurance Renewal" also issued on 5 July 2007.

132. The Barrister contends that his PI Insurance cover was secured from 30 June 2007 and that the later of that date and 1 July 2007, is 1 July 2007. Thus, his practising certificate should have been issued with the date 1 July 2007, being " the date [he] secured approved professional indemnity insurance, or 1 July 2007, whichever is the later".

133. The Barrister's argument depends upon reading with words of the Bar Association's letter of 3 July 2007 " the date you secured approved ... insurance " as if the following words in bold were added "the date from which you secured approved ... insurance cover ". Viewed in context, the Tribunal does not accept that the Bar Association's words should be read in this way for a number of reasons.

134. First, the Tribunal notes that there is a clear distinction between:

a) the date on which insurance is secured being the date on which the relevant contract of insurance with the insurer is entered into; and

b) the date on which the period of cover available under the contract of insurance commences.

135. Secondly, a practising certificate for a barrister may not be issued unless the barrister has approved PI Insurance for the relevant period. Section 403 of the LPA provides, in part:

403 Professional indemnity insurance for barristers

(1)The Bar Council must not grant or renew a local practising certificate to an insurable barrister unless it is satisfied that there is, or will be, in force with respect to the barrister an approved indemnity insurance policy.

...

(3)The Bar Council is entitled to accept as evidence that there is, or will be, in force with respect to an insurable barrister an approved indemnity insurance policy:

(a)evidence in the form of written advice from an insurer or insurance broker to the effect that an insurer has agreed to issue the policy, or

(b)evidence that the premium for the policy has been received and accepted by the insurer for the purposes of the issue of the policy, or

(c)evidence that the regulations provide is acceptable evidence for the purposes of this section.

136. Accordingly, until the Council has the appropriate evidence of approved PI Insurance, it is not permitted to issued to a barrister either an original or renewed practising certificate. What s 403 directs attention to is whether or not there is evidence that there is or will be in force an approved policy. In other words, it is concerned with whether or not an approved contract of insurance has been entered into for the relevant period, even if that period has not yet commenced.

137. Thirdly, the 3 July 2007 letter appears to have been a form letter which was sent to barrister who had not provided evidence of PI cover, after the periods for renewal of practising certificates had expired (see reg 12 of the Legal Profession Regulation 2005). Thus, the letter addressed at least 2 situations. The first is where a barrister had entered into an approved contract of insurance on or before 30 June 2007 and the second is where a barrister had not yet done so.

138. Fourthly, it appears to us to be the policy of the LPA that no barrister should be permitted to practice, by being issued with a practising certificate, unless an approved PI policy has been secured at the time of issue of the certificate for the relevant period. To achieve this, it is entirely appropriate that a practising certificate should not be issued prior to the Council having evidence that the requisite contract of insurance had been entered into.

139. In light of these circumstances, the Tribunal considers that the Association's letter of 3 July 2007 should be taken to be saying that once confirmation is received that an approved policy is in place for the relevant period, the practising certificate will be issued with either the date on which the contract of insurance was entered into or 1 July 2007, whichever is the later. Thus, if the contract of insurance was entered into after 1 July 2007, that later date will be the date of issue of the certificate. As a result, there would be no backdating of a practising certificate if the approved contract of insurance was entered into after 1 July 2007.

140. Applying this in the circumstances of the Barrister, the Tribunal concludes that the Council having received evidence that he had entered into a contract of insurance on 4 July 2007 with Suncorp giving the appropriate cover, the Barrister's practising certificate was properly issued to him on that date.

141. The practising certificate not having been issued until 4 July 2007, it follows from s 14 of the LPA, and the definition of "Australian legal practitioner" in s 6 of that Act, that the Barrister was not entitled to practice on 1, 2 and 3 July 2007, even though his cover under his PI policy might have been for the period from 30 June 2007 to 30 June 2008.

142. Accordingly, we find that, although the Barrister did secure PI insurance cover on or about 4 July 2007 for the period 30 June 2007 to 30 June 2008, he was not entitled to have his practising certificate backdated to 1 July 2007. Neither did the Association's letter of 3 July 2007 given him a legitimate basis for expecting that it would be backdated. Consequently, the Barrister was not entitled to practise on 1, 2 and 3 July 2007. As a result, it was not unreasonable for the Bar Association to request him to provide a statutory declaration setting out whether he practised as a barrister from 1 July 2007 to 3 July 2007.

143. For these reasons, the Tribunal finds that the matters raised by the Barrister to meet this ground do not provide any excuse or answer to the Bar Association's case.

Professional Misconduct or Unsatisfactory Professional Conduct?

144. Notwithstanding that finding, the Tribunal accepts that in July 2007 the Barrister genuinely believed both that the refusal of the Bar Council to backdate his practising certificate was mistaken and that there was no real basis for a complaint as he was covered under an approved PI insurance policy for the period from 1 to 3 July 2007. It appears that during the period from 5 July 2007 to 30 July 2007, the Barrister may have endeavoured orally to persuade the Bar Association that he did have PI insurance cover for the period from 30 June 2007 to 30 June 2008 and thus his practising certificate had been dated 4 July 2007 by mistake.

145. The letters of 5 and 26 July 2007 were requests for the Barrister to provide a statutory declaration as to whether he practised as a barrister on 1, 2 or 3 July 2007.

146. Thus, during the period allowed for compliance with the requests, the Barrister was mistaken as to the real nature of his problem and his efforts at addressing the problem were misdirected. The Barrister's failure to comply did not involve a deliberate attempt to avoid or undermine the Council of the Bar Association's regulatory functions under the LPA. In these circumstances, the Tribunal does not believe that the conduct would be described as being reasonably regarded by professional colleagues of good repute and competency as disgraceful or dishonourable. As a result, it does not meet the common law definition of professional misconduct.

147. Given the reasons why the statutory declaration was not provided and the relatively short time over which the conduct extended and the fact that there was only 1 request which was repeated on one occasion, we do not believe that the Barrister's failure to comply constitutes a substantial or consistent failure to achieve the standard of diligence and competence that the public ought reasonably expect of an Australian legal practitioner, as we have explained those terms above.

148. For these reasons the Tribunal is not satisfied that the Barrister's conduct the subject of the Statutory Declaration Ground amounted to professional misconduct.

149. We are, however, satisfied that it amounts to unsatisfactory professional conduct. There is no doubt that the conduct occurred in connection with the Barrister's practice of law. Failure to comply with requests of the Bar Association, on behalf of the Bar Council when performing its regulatory functions under the LPA, is unsatisfactory conduct on the part of a barrister. This is so, notwithstanding that the barrister by mistake might have failed to appreciate why the information was being sought.

150. Moreover, in the present case the Barrister neither provided the requested statutory declaration within the times specified or within any reasonable time thereafter nor explained in writing why he was not, or should not be, required to do so. Competence and diligence in this context includes competence in understanding the responsibilities and duties of a barrister in relation to renewing a practising certificate and assisting the Bar Council in its regulatory functions and diligence in complying with those obligations and duties. The course that the Barrister adopted of effectively ignoring the requests because he mistakenly believed he should not be required to provide the information falls short of the standard of competence and diligence a member of the public is entitled to expect of a reasonably competent Australian legal practitioner.

151. Accordingly, we are satisfied that in respect of the Statutory Declaration Ground the Barrister has engaged in unsatisfactory professional conduct.

Section 660 Notice Ground

152. The Tribunal has found that the Barrister failed, within the times specified or within any reasonable time thereafter, to comply with a requirement under s 660(1) of the LPA specified in the Notice which was served under cover of a letter dated 29 October 2007. He also failed to comply with the Notice within the extended time for compliance granted in the letter of 15 November 2007 which was served upon him.

153. We have also found that the Notice was issued by Ms Mancell who was an "investigator" for the purposes of Part 4.4 and Chapter 6 of the LPA.

154. In his reply, the Barrister did not seek to identify any specific "reasonable excuse" for non-compliance, as is referred to in s 676(3) of the LPA. Even in relation to the particular in the application that raised s 676(3) of the LPA, Particular 3.5 (quoted above), the Barrister only responded in his reply "THE BARRISTER PROVIDED ALL RELEVANT INFORMATION AND RELIED ON ADVISE OF COUNSEL. THE BARRISTER DENY THAT HE CONTRAVENE s. 660(3) and s 676(3) of the Legal Profession Act 2004" .

155. Even if the Barrister sought to rely upon the same matters in relation to this ground as he relied upon in relation to the Statutory Declaration Ground, namely his mistaken belief that he was entitled to have his practising certificate backdated, we do not accept that this belief constitutes a "reasonable excuse" for non-compliance with a s 660 requirement by notice. In reaching this conclusion we rely upon similar reasoning to that applied above in relation to the Statutory Declaration Ground. In addition, the Tribunal is of the view that a requirement under s 660 of the LPA cannot be ignored because the recipient believes that the reason why the notice setting out the requirement was issued may be misguided or mistaken. There is a statutory obligation to comply.

156. By its letter of 17 September 2007, the Barrister was informed of the Bar Council's resolutions to make complaints against him and that a Professional Conduct Committee would conduct the investigation of the complaints on behalf of the Bar Council. He was asked to provide written submissions addressing certain specified topics. He apparently chose not to provide submissions.

157. The Notice was originally served by letter of 29 October 2007. It was re-served under cover of the letter of 15 November 2007. The Barrister did not comply with the requirements set out in the Notice within the original time allowed or within the extended time. The Barrister did not specifically identify any "reasonable excuse" for non-compliance with the Notice although there was a suggestion in his reply to the Statutory Declaration Ground that depression or some medical condition was such an excuse. That issue was not raised at the hearing nor was there any evidence to support the existence of such a "reasonable excuse".

158. Because the Barrister was an Australian lawyer (as defined in s 5 of the LPA) who was subject to a requirement under s 660 of the LPA and he failed, without reasonable excuse, to comply with the requirement, by operation of s 676(4) of the LPA he is guilty of professional misconduct.

159. As a result, it is unnecessary for the Tribunal to consider whether the Barrister's conduct, the subject of the S 660 Notice Ground, constitutes professional misconduct on other grounds as well.

160. For these reasons the Tribunal concludes that the Barrister is guilty of professional misconduct in respect of the S 660 Notice Ground.

The Kawala Ground

161. The Kawala Ground concerned the Barrister's conduct during a hearing before Windeyer J in the period from 14 to 28 February 2006 in which the Barrister appeared for the plaintiff, a Ms Kawala.

Pleading of the Kawala Ground

162. In final submissions, the Council abandonned a number of allegations in relation to this ground. It pressed only allegations of professional misconduct or unsatisfactory professional conduct, based upon substantial and consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of an Australian legal practitioner, pleaded in the following terms:

4 the barrister was inappropriately rude to the trial judge and witnesses;

[particularised by reference to pages 206-7 and 237 of the trial transcript].

5 the barrister made irrelevant submissions on the defendant's motion for security for costs;

[particularised by reference to the notice of motion filed 6 February 2006, the Barrister's written submissions and pages 4-5 of the trial transcript].

6 the barrister failed to properly plead an allegation that the testator's signature on a will had been forged;

[particularised by reference to the various replies to defence and cross claims dated on or about 24 November 2005, 20 February 2006 and 23 February 2006].

163. The Barrister's reply contained denials that his conduct constituted professional misconduct or unsatisfactory professional conduct on the basis alleged and a statement that, among other things, he disputed each of the allegations in paragraphs 4, 5 and 6 (quoted in the preceding paragraph of these reasons for decision). The reply also contained some argumentative material which drew attention to various passages in the transcript of the trial and other considerations which supported the denials earlier referred to.

Inappropriate Rudeness

164. There are 2 passages of transcript which the Council relied upon as conduct amounting to inappropriate rudeness to the trial judge and a witness.

165. The first is found at pages 206 to 207 of the transcript and allegedly involves rudeness to a witness. The whole passages starts on page 205 where the questions are being asked by the Barrister and the witness has a translator but sometimes answers in English. The whole passages is as follows:

[page 205 line 53]

Q.Who drafted the English will in 1992?

A.Solicitor. Mr Mottee.

Q.So, did Mr Mottee come to you, or did you go to Mr Mottee?

A. [Not through interpreter] I was working at that time. I was cleaning - I was doing home cleaning for his wife because, first of all, I met the wife at immigration for speak out women association. Lidcombe.

INTERPRETERShe was working. I think this is meant to be Immigration Women Speak Out Association.

WITNESS [Not through interpreter] Yes, association, like that, at Lidcombe.

[The Barrister] Q.You gave Mr Mottee instructions to prepare the will?

A.Yes, because, before, we talked with Mr Ratajczak. After the hospital, when he was in hospital in 1992, yes.

Q.Did you think he would die?

A.No, just the opposite. I saved his life. If I had not come to his place, he would have died for sure.

Q.What, did you intend to poison him?

OBJECTION; QUESTION REJECTED

HIS HONOUR: [Barrister] , that question is quite improper. The time is shortly coming when you will have to be reported to the Legal Services Commission. If you wish that to come, well, that is in your hands.

[page 207 line 12]

166. The question " What, did you intend to poison him? " is the focus of the Council's complaint. From the transcript it is clear that there were difficulties with comprehension and translation and the process of taking this evidence does not appear to have been easy.

167. Although it is difficult to assess the atmosphere and tone of the cross examination from a transcript such as this, it appears to us that the question may have been attended with some frustration on the part of the Barrister.

168. As was submitted on his behalf, we accept that the Barrister was asking questions with a view to illuminating why the witness and not the testator gave instructions to the solicitor to draft the English will of 1992. The question and answer:

Q.You gave Mr Mottee instructions to prepare the will?

A.Yes, because, before, we talked with Mr Ratajczak. After the hospital, when he was in hospital in 1992, yes.

could well have suggested to the Barrister that the witness was saying that she gave instructions to the solicitor because Mr Ratajczak was in hospital and it could not wait till he came out of hospital or it was unlikely that he would ever come out of hospital.

169. In this context, he asked: " Did you think he would die? ". This could in the circumstances have been intended to mean "Did you think he would die when in hospital so that you had to give instructions to the solicitor because the testator could not?". The witness's response: " No, just the opposite. I saved his life. If I had not come to his place, he would have died for sure. " could have appeared to the Barrister to be unresponsive and self-serving. He then asked: " What, did you intend to poison him? " The Barrister's question could be seen as a product of exasperation. Further, it appears to have been asked in the heat of the moment. It may be that the only reason that the Barrister could think of for why the witness rather than the deceased would give instructions to the solicitor concerning his will was that the deceased would never have the opportunity to give those instructions because he was going to die as a result of bring poisoned by the witness.

170. The question does appear to us to have been inappropriate. The trial judge at the time noted that it was " quite improper ". In all the circumstances, however, the Tribunal is not satisfied that the question was intended to be rude or was deliberately inappropriate. We think it more likely that it was borne of frustration with the difficulties of cross examining through an interpreter, whose services were relied upon irregularly by the witness, and with the previous answer which could well have appeared, in the heat of the moment, to have been obfuscatory.

171. Accordingly, the Tribunal does not find that this conduct at the trial involved substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence that a member of the public is entitled to expect of an Australian legal practitioner professional misconduct. Nor is the Tribunal satisfied that it amounted to conduct in pursuit of professional activities which would reasonably be regarded, in the circumstances, as disgraceful or dishonourable by professional colleagues of good repute and competency. Thus, the Tribunal would reject the claim that the Barrister's conduct in this regard constituted professional misconduct.

172. Rudeness and sarcasm especially where the conduct has the potential to bring the administration of justice into disrepute may constitute unsatisfactory professional conduct - see New South Wales Bar Association v Caffrey (No 3) [2008] NSWADT 85. Any rudeness and inappropriateness inherent in the question in the present case, however, were not in our view intended. They were quickly dealt with by the trial judge and were not persisted in by the Barrister. Although this case is very close to the line, we do not believe that the Council has shown that the Barrister crossed the line into unsatisfactory professional conduct in this instance.

173. The second instance of inappropriate rudeness is alleged to be that recorded at page 237 of the transcript which records as follows:

[page 237 line 14]

[The Barrister] Q.I put it to you that the paper Anna signed for you was how her signature got to the will of 1995?

OBJECTION. QUESTION REJECTED

HIS HONOUR:I told you I would reject that question. You keep saying "the paper", which this witness has denied. I told you --

[The Barrister]: Your Honour, why don't you ask the question then? Put it in a proper way.

HIS HONOUR:I told you five time what it is. If you want to put to this witness that Anna signed a paper for her, which was transposed on to this will, you can ask her that question. Stop saying "the paper", which she had said she has not got.

[The Barrister] Q. I put it to you that the paper which Anna signed --

HIS HONOUR:If you get it into the form I have suggested to you five times, which will appear in the transcript, you might be able to ask it on Monday, if this witness is still in the witness box. You are not to ask it again now.

[The Barrister]: All right. We will continue with that.

[page 237 line 44]

174. While the Tribunal can perceive that the comment " Your Honour, why don't you ask the question then? Put it in a proper way. " could be quite inappropriately rude to a judge presiding during a hearing, the Tribunal can also envisage situations where because of the tone of voice used, facial expressions employed and other similar circumstances such a comment may not have been offensive. We note that the trial judge did not mention that the Barrister's comment was rude or inappropriate. Rather, he attempted to instruct the Barrister as to the problem with his question and gave him the opportunity to ask it again after having an opportunity to read the transcript.

175. The Tribunal would not want to be taken as condoning conduct of advocates that does not maintain the highest standards of courtesy and we accept that a barrister when appearing in a matter should ensure that " courage and courtesy should go hand in hand " - Lewis v Judge Ogden [1984] HCA 28; (1984) 153 CLR 682 at 689.

176. From the material before us, however, the Tribunal is not satisfied that the Barrister's conduct in this regard should on this occasion be characterised as unsatisfactory professional conduct, let alone professional misconduct. This was not a case where an advocate knowingly persisted in making rude or offensive remarks after being made aware of the nature of his or her conduct or where the remarks tended to bring the administration of justice into disrepute.

177. The Tribunal also takes into account that the practice of the advocate takes place in a pressured environment where frustration and difficulty can cause temporary lapses in behaviour that are quickly regretted, apologised for and not repeated. It would be inappropriate to characterise every such lapse as unsatisfactory professional conduct.

178. In summary, the Tribunal does not find that the allegations of professional misconduct or unsatisfactory professional conduct based upon inappropriate rudeness to a witness or the judge are made out in this case.

Irrelevant Submissions on the Motion for Security for Costs

179. The defendant in the Kawala proceedings moved the Court on 14 February 2006 for an order for security for costs against the plaintiff, for whom the Barrister appeared. The notice of motion relied upon was filed on 6 February 2006. The defendant's counsel submitted:

The evidence discloses that the person who claims to benefit under the 1961 will resides overseas. That person has not taken part in these proceedings in any way but by her attorney. The attorney would seem to have no assets and, indeed, there have been a number of costs orders which have been unsatisfied. The matter would seem to be a protracted one because it will occupy the 4 days allocated and possibly more. ... If that were to transpire, this would make this a very costly business. I know that this is a most unusual application to make, made quite late in proceedings, but it is made in respect of prospective costs.

180. The Barrister handed up written submissions in relation to this application, which the Judge read. The copy of the written submissions before the Tribunal consisted of two pages. It was noted at the hearing that these submissions may not be complete. They were neither signed nor dated nor was there any indication of by whom they were prepared or their contact details. While the last paragraph on the second page appears to be complete, the lack of any conclusion, any signature block or any other contact details suggests that there may have been another page or other pages in the original document. It was not established in evidence whether or not the copy before the Tribunal was complete. Nor was the Barrister cross examined as to this matter.

181. The Council correctly submits that the two pages of the written submissions do not contain any submissions that relate to security for costs but only deal with what costs order should ultimately be made in respect of the proceedings.

182. In addition to the written submissions relating to security for costs, the Barrister also made oral submissions as follows:

[The Barrister]: The concept is that there is property, the subject of this litigation. There is no independent valuation of that property. But most of the advice that has been on the file, that I have had the pleasure to read, has suggested that the worth of that property is $1.2 million.

HIS HONOUR:The only question we are discussing is the security for costs question. These written submissions, for the most part, have nothing to do with that. Do you want to say anything else?

[The Barrister] My written submissions point to the assessment of costs before the Supreme Court of New South Wales, and as that matter goes, costs for the event, unless it is not supposed to, in this matter.

HIS HONOUR:Luckily, for you, I do not intend to order security for costs. I will give some reasons why.

183. The Tribunal notes that the trial judge says that the written submission " for the most part " have nothing to do with security for costs. This indicates that there may well have been a part of the written submissions that did address those issues.

184. As far as the material before the Tribunal discloses the Barrister's submissions, no submissions were made on behalf of the plaintiff that addressed any of the issues that might be thought to arise under rule 42.21 of the Uniform Civil Procedure Rules or otherwise in relation to an application for security for costs in a matter such as the Kawala proceeding.

185. The submissions made on behalf of the plaintiff do not suggest that the Barrister diligently researched the provisions which provide the statutory basis for an application for security for costs in the circumstances or any authorities relating to the application of those provisions. Nor do the submissions demonstrate an understanding or application of the relevant provisions or principles to the facts. Nonetheless, the plaintiff was successful on the application.

186. The motion for security for costs was filed on 6 February 2006 and was heard on 14 February 2006. The Barrister had had time to turn his mind to the application and he produced some written submissions, although the form of those submissions suggests that they may have originally been prepared for a different purpose. This is not a case where the application was brought at the last moment and the Barrister was doing his best to deal with it on little or no notice.

187. If the two pages of written submissions that are in evidence constituted all of the Barrister's written submissions, the Tribunal would be disposed to find that his conduct in relation to this application for security for costs fell short of the standard of diligence and competence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner. It would thus amount to unsatisfactory professional conduct. We would not find that the failure was in this case so substantial or consistent as to amount to professional misconduct.

188. In the light, however, of Windeyer J's comment that the written submission " for the most part " had nothing to do with security for costs and of the possibility that the written submissions which we have before us are incomplete, the Tribunal finds that it cannot be satisfied to the requisite standard that the Barrister had not diligently researched and did not address, at least in some part of his submissions, issues relevant to security for costs.

189. As a result, we find that this aspect of the Kawala Ground relating to the security for costs application has not been made out.

Failure Properly to Plead Forgery

190. The third aspect of the Kawala Ground relates to the allegation that the pleadings dated 24 November 2005, 20 February 2006 and 23 February 2006, for which the Barrister was responsible, demonstrated a failure to meet the standard which a member of the public is entitled to expect from a reasonably competent Australian legal practitioner in respect of the allegation that the 1992 will was forged.

191. In the Kawala proceedings, the plaintiff was seeking probate of a will executed in October 1961. In her defence, the defendant relied upon two subsequent wills dated 3 December 1992 and 24 November 1995.

192. The plaintiff filed an amended reply to defence and cross claim on 24 November 2005 in which it was alleged as follows:

3 The cross-defendant [the plaintiff] says that the document dated 1992 alleged by the cross-claimant to be the last will of the deceased was not duly executed, as the said will may have been forged.

PARTICULARS

(a)the deceased did not sign the will in the joint presence of the attesting witnesses;

(b)the alleged witnesses did not attest and subscribe the will in the presence of the deceased;

(c)the cross-claimant did not know and/or imposed herself onto the deceased until 1993;

(d)The said 1992 will is not the will of the deceased.

193. The Barrister is described in this amended reply to defence and cross claim as "CROSS DEFENDANT'S BARRISTER" and his name and practice address are stated on the document. In addition, the Barrister gave a certification under s 198L of the Legal Profession Act 1987 on that amended reply to defence and cross claim in the following terms:

I, [Barrister's name], certify that there are strong and reasonable grounds for believing on the basis of provable facts, evidence and reasonably arguable case on issues and the law that this claim has reasonable prospects of success.

194. It might be noted that the 1987 Act was replaced by the LPA, which commenced on 1 October 2005.

195. There is nothing else on the document to indicate who actually drafted it. At one stage in cross examination, it was said that prior to the commencement of the hearing there were no solicitors engaged by the plaintiff and the Barrister was acting on a direct access basis. On day 1 of the hearing, a notice of appearance by a solicitor, Casimir Ugochukwu, was handed up by the Barrister and leave to file it in Court was granted (see page 3 lines 26 to 58 of the transcript).

196. In cross examination, the Barrister said that he did not draft this aspect of the pleading but it was already in the document. As to the basis upon which he certified the claim, the Barrister said that his instructions were that a hand-writing expert would come to court and inspect the original document and then provide an opinion on whether or not it was the testator's signature. In other words, he certified the pleading as having reasonable prospects of success of establishing that the signature on the 1992 will was forged only subject to confirmation of the forgery by a hand-writing expert. Whilst this may appear unsatisfactory, it does explain why the pleading alleges only that " the said will may have been forged " and not that it was in fact forged.

197. In cross examination, the Barrister acknowledged that he understood from a directions hearing in the matter at some time after 24 November 2005 and before 14 February 2006 that the trial judge was of the view that the pleading of forgery in the amended reply to defence and cross claim was inadequate and the particulars were inadequate. We also note that on 20 February 2006, the trial judge (at page 260 line 3 of the transcript) made a reference to having raised the issue of the pleading of forgery on day 2, 15 February 2003, of the hearing. On day 2, the issue of forgery was to some extent illuminated in discussion at page 71 lines 44 to 54 and page 73 lines 11 to 26. In the second passage referred to, the following is recorded:

HIS HONOUR:... [The Barrister] , do you say that on exhibit 3, which is the English will on which Mrs Tyczynski appears to be a witness that she says she is not, her signature is forged? Is that right? That is what she seems to be saying.

[The Barrister]:That is what the witness is saying.

HIS HONOUR:Your pleading, I think, would cover that, as I understand it.

198. Apparently in an attempt to raise the issue of the extent to which the deceased actually gave instructions for the later wills or understood them, the Barrister prepared another amended reply to defence and cross claim dated 20 February 2006. It is not signed by the plaintiff nor is the translator's certificate signed. There is a signed certification under s 198L of the Legal Profession Act 1987 by the Barrister dated 20 February 2006.

199. The amended paragraph 3 took the following form (underlining in the original):

3 The cross-defendant [the plaintiff] says that the document dated 1992 alleged by the cross-claimant to be the last will of the deceased was not duly executed, as the said will may have been forged. The testator after 1961 did not make any other will.

In particular

Testator in his old age disliked solicitors. That in 1998 there was no will.

Other proposed amendments not relating to forgery were included.

200. An oral application for leave to amend was made on 20 February 2006 (see page 259 lines 15 to 21 of the transcript). After enquiry by the trial judge, it appeared that the particulars at the top of page 2 of the proposed amended document were also intended to be particulars of paragraph 3 and not paragraph 5 to which they were subjoined (see page 269 lines 23 to 45). Those particulars at the top of page 2 were in the following terms:

(b)the deceased did not sign the will in the joint presence of the attesting witnesses;

(c)the alleged witnesses did not attest and subscribe the will in the presence of the deceased;

(d)the cross-claimant did not know and/or imposed herself onto the deceased until 1993;

201. As a result of the discussion between the Bench and the Barrister recorded at pages 260 to 262 of the transcript, it appeared that the Barrister was attempting to raise the defence that the deceased did not know and approve of the contents of the later wills but the Barrister had mistakenly attempted to categorise it as a delegation of will making power. His Honour did not allow the proposed amendment because it failed to plead the defence that the deceased did not know and approve of the contents of the wills. It is unclear whether the pleading of forgery was a relevant factor in the refusal of leave to amend.

202. In response to a question in cross examination concerning these amendments the Barrister stated that he decided that there was no need to particularise forgery as the main allegation was only that the will may have been forged.

203. There is yet another document which is described as a further amended reply to defence and cross claim which is dated 23 February 2006. It is not signed by the plaintiff nor is the translator's certificate signed. There is also only an unsigned certification under s 198L of the Legal Profession Act 1987 but with the Barrister's name typed in, in apparent anticipation of signature. In response to a comment from Windeyer J, the Barrister indicated that he prepared the document (see page 458 lines 23 to 28 of the transcript). In this document, paragraph 3 is unparticularised and is in the following terms.

3 The cross-defendant [the plaintiff] says that the document dated 1992 alleged by the cross-claimant to be the last will of the deceased was not duly executed, as the said will may have been forged and/or obtained by fraud.

204. The issue of the pleading was raised with the Barrister again by Windeyer J on 23 February 2006 (at page 456 lines 54 to 55). The Barrister indicated that he now sought to rely on the document dated 23 February 2006. The judge asked if the particulars at the top of the second page related to paragraph 3 and not paragraph 6 which alleged " The testator after 1961 did not make any other will " and to which they were subjoined. Those particulars were as follows:

(b)the deceased did not sign the will in the joint presence of the attesting witnesses;

(c)the alleged witnesses did not attest and subscribe the will in the presence of the deceased;

(d)the cross-claimant did not know and/or imposed herself onto the deceased until 1993;

(d)the said 1992 will is not the will of the deceased as he did not know and approve it's contents.

205. The Barrister responded that those particulars related to any other will after 1961 that was in existence, " it does not matter if it was 1995, 1992, Polish, English " (page 458 lines 1 to 21). Later it was clarified that the Barrister was alleging that the signature on the documents that were alleged to be the 3 later wills was not that of the deceased, Mr Ratajczak (page 458 lines 52 to 56). He said that he tried to express that by saying that he did not sign the will. After further discussion and an indication from Windeyer J of the nature of the allegations that might be thought appropriate for a pleading of the type apparently intended by the Barrister, the transcript (at page 460 lines 36 to 39) records:

[The Barrister]:...

I will amend it again and file it on Monday.

206. From that record, it appears that the Barrister did have some difficulty appropriately pleading the allegations relevant to the case for the plaintiff. An allegation that a will " may have been forged " is unlikely to be a "material fact" within the meaning of r 14.7 of the UCPR if what is sought to be done is challenge the validity of the will in question. The relevant material fact is that one or more signatures on the will was or were forged.

207. The particularisation of the allegations in the present case was also not without difficulty. Apart from some of the particulars consistently appearing in the wrong place, it was not clear whether it was alleged that the will was forged or invalid because the deceased did not sign it, because one or more of the witnesses did not sign it and/or because the requirements for signature by the witnesses in the presence of the deceased and each other were not adhered to.

208. We understand that probate was not an area of the law in which the Barrister professed any particular expertise and that the Barrister was acting for Ms Kawala without being paid for his services and came into the matter after it had been set down for hearing. Notwithstanding this, the Barrister does not appear to have obtained sufficient instructions to enable him adequately to identify the case that he was seeking to plead in relation to forgery. Nor was he able to prepare an amended pleading that appropriately identified the material facts and particulars relied upon and disclosed the case in relation to forgery. This whole aspect of the plaintiff's case appears to have been left in an unsatisfactory state by the Barrister not only from the point of view of the Court but also from the perspective of the Barrister's client, the plaintiff, especially if any of the wills had in fact been forged. This unsatisfactory state elicited the following comments from the trial judge (at page 332 of the transcript for 22 February 2006):

I should also say, although I find this very difficult, it seems to me that I will have to determine this case on the basis that one of the defences is a lack of knowledge and approval. I understand that that is what the plaintiff wants to do. I propose to allow that to be done and treat it as being done in some way. As far as the allegation of forgery is concerned, I accept there is an allegation of forgery improperly pleaded in respect of the 1992 will. I do not think there is a proper allegation of forgery in respect of the 1995 will. But, as I allowed that document into evidence which, in essence, went to both of those wills, in my view it is best to proceed on the basis that there is an allegation of forgery in respect of the 1995 will irrespective that it has not been properly pleaded. Unless someone wishes to say anything, this is how I wish to proceed. I indicate, there may be some costs penalty because none of this has been raised before. I cannot see any other way of maintaining some semblance of order in this case.

209. Given these circumstances, the Tribunal must consider whether the Barrister's conduct in this regard met the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner. Although there are factors which militate in the Barrister's favour in this particular case, we believe that on balance the Barrister's inability to identify, plead and adequately particularise the Plaintiff's case in relation to forgery of the wills fell short of what a member of the public was entitled to expect from a reasonably competent Australian legal practitioner, especially a barrister who should have been skilled in pleading and competent in obtaining sufficient instructions or evidence in order to be able to articulate his or her client's case and to assist the Court to identify the issues for determination.

210. Accordingly, we find that in this regard the Barrister did engage in unsatisfactory professional conduct and, thus, this aspect of the Kawala Ground has been made out. We do not believe that the failure to achieve the relevant standard was so substantial or consistent that it amounted to professional misconduct.

Conclusion on the Kawala Ground

211. In summary in relation to the Kawala Ground, the Tribunal finds that the Barrister was guilty of unsatisfactory professional conduct only in relation to his failure properly to plead forgery in respect of the 1992 and other later wills. The other allegations of professional misconduct and unsatisfactory professional conduct are not established.

The Kawala Serious Allegation Ground

212. When being cross examined about his question: " What, did you intend to poison him? ", the Barrister said:

Q. Then you see your questions, "What, did you intend to poison him?" Do you see that?

A. Mm-hmm.

Q. What did you intend by that question?

A. Well there are allegations of Mr Ratajczak being poisoned and the reason for him going to, going to hospital.

Q. So you were seriously putting to the defendant, were you, that the defendant intended to poison Mr Ratajczak?

A. That was the question, that was the question.

Q. What was the factual basis that you had available to you at that time to put that allegation?

A. That was the instruction I was given and--

NORTON

Q. That's an instruction, we want the fact, you've been asked for a factual basis. You understand the difference between instructions and facts?

A. Yes.

Q. So what were the facts that you were relying on?

A. I was instructed that Mr Ratajczak, the deceased had fallen ill out of nothing and there was called, an ambulance was called and he went to hospital.

Q. So who gave you those instructions?

A. My client.

Q. And were there any other instructions from anyone else?

A. No, that would have been established by the doctors that treated him at the time.

Q. Indeed, so did you look at the hospital notes to see if there was note that he had poisoned?

A. Well that's what he had and doctors would have then confirmed what they treated him for and they were not allowed to attend court.

Q. Well it would have been in the - did you look at the hospital notes for that admission?

A. We had the hospital notes.

Q. Did you look at them?

A. Yes.

Q. Was there any note in there about poisoning?

A. There might have been a note, not sure now but we wanted to put the doctors in the witness box and ascertain what they treated him for.

MCLURE

Q. Mr Asuzu by the time that you asked that question of the defendant you had closed the case for the plaintiff, hadn't you?

A. I'm not quite sure now whether the case had been closed.

Q. Just use your experience. If you're cross-examining the defendant the plaintiff's case must have finished, correct?

A. I was cross-examining, yeah, yes, I was cross-examining the--

Q. At no point during this trial did you adduce any evidence from a doctor or any medical record which established the proposition or which was intended to establish the proposition that the defendant had intended to poison Mr Ratajczak. Will you agree with that?

A. I don't know if you know the genesis of this case and if you do you will know that the doctors, all of them, evidence, as part of evidence were not allowed. We never got anyone of them to the witness box.

Q. You adduced into evidence reports from a number of doctors, didn't you?

A. Yes.

Q. And you tendered a number of documents as well, didn't you?

A. Was rejected.

Q. Did you tender a number of documents during the trial?

A. Tried to, yes.

Q. Did you tender any document or medical report which was intended to prove that the defendant intended to poison Mr Ratajczak?

A. The ones from I think Bankstown Hospital and Auburn Hospital but we were not able to get them in. And the doctors that treated were not able to be called. Think it would have been only one lady doctor that we called but that was not the doctor at the time that she went to hospital, subject to this one.

Q. Are you able to draw to the Tribunal's attention where in the transcript of these proceedings you attempted to tender a document that proved this allegation but that tender was rejected?

A. Well I repeat what I said before. We weren't able to call the experts in the matter and I wasn't able to then put in everything that I prepare for them.

Q. I want to give you an opportunity to draw to the Tribunal's attention where in the transcript you attempted to tender evidence that would prove this allegation but it was rejected?

A. I would have done so from the experts and those experts were not allowed to attend court. And if they were in the witness box I would have done better than if they weren't.

213. As a result of this evidence the Council sought and was given leave to amend its application in proceeding 102005 to include Ground 1A. By this ground the Council alleged that the Barrister by asking that question in the circumstances:

a) breached rules 35 and 37 of the New South Wales Barristers' Rules;

b) fell short of the standard of competence and diligence that a member of the public was entitled to expect of a reasonably competent Australian legal practitioner; and

c) engaged conduct that would reasonably be regarded as disgraceful or dishonourable by professional colleagues of good repute and competency.

214. Rules 35 and 37 of the New South Wales Barrister s' Rules provide:

35.A barrister must, when exercising the forensic judgments called for throughout the case, take care to ensure that decisions by the barrister or on the barristers advice to invoke the coercive powers of a court or to make allegations or suggestions under privilege against any person:

(a)are reasonably justified by the material already available to the barrister;

(b)are appropriate for the robust advancement of the client's case on its merits;

(c)are not made principally in order to harass or embarrass the person; and

(d)are not made principally in order to gain some collateral advantage for the client or the barrister or the instructing solicitor out of court.

...

37.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 if it is not made out.

215. If the evidence of the Barrister in cross examination were taken at face value and if there were sufficient evidence before the Tribunal to establish that the Barrister did not believe on reasonable grounds that there was available material to support the suggestion that the defendant had or might have intended to poison Mr Ratajczak, there might well be a basis for concluding that the Barrister had breached the Barristers' Rules and engaged in professional misconduct or unsatisfactory professional conduct.

216. Accepting the Barrister's evidence in cross examination would, however, involve accepting that he believed that there was medical evidence to support the allegation but its tender had been rejected by the trial judge. The medical evidence to which the Barrister referred in this regard was not identified and was not before the Tribunal. As a result, we are not in a position to assess whether that material, which was apparently available to the Barrister, did or did not provide a reasonable or a proper foundation for the suggestion or allegation that the defendant had or might have intended to poison Mr Ratajczak.

217. It was not suggested to the Barrister in cross examination that he had no proper basis for making such a suggestion or allegation or that the material to which he referred in that answer did not provide an appropriate foundation for his question.

218. As a result, we do not believe that the Tribunal could properly conclude that the Barrister lacked material which provided a proper basis for the suggestion or allegation which might be thought to have been made by his question. Accordingly, it would not be appropriate for the Tribunal to find that the Barrister had engaged in professional misconduct or unsatisfactory professional conduct in this regard.

219. Further, the Tribunal is concerned that the Barrister's answers in cross examination do not actually reflect what occurred in the hearing before Windeyer J. A reading of the whole of the relevant passage in the transcript, which is quoted above, suggests that the Barrister's question was asked on the spur of the moment, with a measure of incredulity or frustration at the previous answer of the witness. The Tribunal can understand how that previous answer could be perceived by a cross examiner as non-responsive and obfuscatory, as we have already noted. The cross examiner was seeking to explore why it was apparently necessary for the witness to give instructions to the solicitor for the preparation of the deceased's will rather than the deceased himself. The witness's answer was apparently unrelated to this.

220. Moreover, given the terms in which the question was couched, namely " What, did you intend to poison him ?", we have some doubts as to whether the Barrister was really putting to the witness that she did actually poison or intend to poison the deceased or whether he was merely asking an open question, albeit attended with a certain degree of frustration or incredulity.

221. In all the circumstances, we are not satisfied especially having regard to the disciplinary nature of the these proceedings and the principle in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 that the Council has established that the Barrister breached the New South Wales Barrister's Rules as alleged or engaged in professional misconduct or unsatisfactory professional conduct in this regard.

222. The allegations in the Kawala Serious Allegation Ground have not been made out.

The Gant Ground and the Gant Serious Allegation Ground

223. An issue arises in relation to the Gant Ground and the Gant Serious Allegation Ground which was not addressed during the hearing on 9 to 13 May 2011.

224. The Gant proceeding was instituted in the Queensland District Registry of the Federal Court of Australia. All of the relevant documents were filed in the Queensland registry, except where they were filed electronically. The substantive hearing of the objections as to competency took place before Collier J in Brisbane on 3 November 2006. The Barrister did some work on the matter in New South Wales and attended a directions hearing in Brisbane by electronic link from Sydney. Otherwise, all relevant conduct took place in Queensland. The Council's complaint in the Gant Ground and the Gant Serious Allegation Ground focused upon the Barrister's conduct of the hearing in Brisbane on 3 November 2006. The complaint against the barrister was initiated by a resolution of the Bar Council made on 25 September 2008.

225. As has been noted above, s 501(1) of the LPA provides that Chapter 4 of the LPA, which includes ss 551 and 562, applies to conduct of an Australian legal practitioner occurring " in this jurisdiction " which in the LPA refers to New South Wales. Under s 501(2), Chapter 4 of the LPA applies to conduct occurring out of New South Wales relevantly only if:

a) that conduct is part of a course of conduct that has occurred partly in New South Wales and partly in another State or Territory;

and either

b) the Legal Services Commissioner and the corresponding authority of each other State or Territory in which the conduct has occurred consent to its being dealt with under the LPA; or

c) the Council and the Barrister consent to its being dealt with under the LPA.

226. There was no evidence before the Tribunal that the requirements of s 501(2) had been satisfied. Accordingly, it could be concluded that the Barrister's conduct which occurred in Queensland was not conduct to which Chapter 4 of the LPA applied. If this is correct, then the Tribunal would lack jurisdiction to deal with the Gant Ground and the Gant Serious Allegation Ground (and the Aggregate Ground to the extent that it relied upon the two Gant grounds). Although this point was not raised at the hearing by the parties or the Tribunal, the Tribunal wrote to the parties prior to the due date for written submissions and sought written submissions on the issue.

227. In response, the Council has supplied the Tribunal with an affidavit of Mr Selth affirmed on 28 July 2011. The affidavit annexes a letter sent to the Legal Services Commissioner of Queensland on 14 July 2011 enclosing a draft consent pursuant to s501(2) of the LPA 2004 a similar letter of the same date with the same annexure was sent to the Legal Services Commissioner in New South Wales also annexing a draft consent document. Annexure C to the affidavit is the draft consent signed on 18 July 2011 by Mr John Briton Legal Services Commissioner of Queensland and Annexure D the draft consent signed on 19 July 2011 by Mr Stephen Mark Legal Services Commissioner of New South Wales.

228. In submissions received at the Tribunal on 26 July 2011 the Council has applied for an order under s 561 of the LPA that the failure to obtain the requisite consents at the appropriate time should be disregarded. It argues that the failure to obtain the consents at the appropriate time was a " procedural requirement ", it has not resulted in any substantial injustice and it is in the public interest to have the complaint dealt with by the Tribunal.

229. By letter dated 5 August 2011 the Barrister has complained that the timing of the affidavit has made it impossible " to cross examine or subpoena to cross examine those named in the affidavit in light of the retrospective consent given to the Bar Counci l" which would cause prejudice to the Respondent and the Tribunal is urged not to accept the affidavit and to reject any application under s 561.

230. The Respondent's submissions were received at the Tribunal on 12 August 2011. Those submissions refer to the Legal Profession Act 2007 (Qld) and suggest that " the matter is statute barred having occurred over 3 years before the consent was sought ". The submissions also claim that the doctrine of Res Judicata applies. Further it is submitted that the Council has an obligation to act as a model litigant and it has not done so. It is also submitted that the failure to seek consent under s 501(2) of the LPA is not merely a procedural requirement and referred the Tribunal to the provisions of s 651 and s 656E of the Queensland Legal Profession Act . It is then submitted that the late referral of the matter may amount to a breach of natural justice because " it could be that if the consent was sought in time, the Commissioners will not be under pressure to give consent even consent in retrospect, because the Commissioner could have investigated the matter and accepted recommendation after submission of the barrister to dismiss the matter ".

Outline of the applicable legislation

231. Section 495 defines " complaint " as: " A complaint under this Chapter [ie Chapter 4]".

232. Section 501 of the LPA has been set out above.

233. Section 503 provides:

(1)A complaint may be made under this Part [ie Part 4.2] about an Australian legal practitioner's conduct.

(2)A complaint may be made under this Part about the conduct of an Australian legal practitioner occurring outside this jurisdiction, but the complaint must not be dealt with under this Part unless this Part is or becomes applicable to it.

(3)A complaint that is duly made is to be dealt with in accordance with this Part.

234. Section 551 provides:

(1)Proceedings may be commenced in the Tribunal with respect to the whole or part of a complaint against an Australian legal practitioner by an application (a disciplinary action) made by the Commissioner or a Council in accordance with this Chapter and containing one or more allegations of unsatisfactory professional conduct or professional misconduct.

(2)An allegation in the disciplinary application must relate to the subject matter of the complaint but need not be the allegation made in the original complaint or have been the subject of a separate or further investigation under this chapter.

235. Section 561 provides:

(1)The Tribunal may order that a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) is to be disregarded, if satisfied that:

(a)the failure has not caused substantial injustice to the parties to the hearing, or

(b)any substantial injustice caused by the failure is outweighed by the public interest in having the complaint dealt with by the Tribunal, or

(c)any substantial injustice caused by the failure can be remedied by an order of the Tribunal.

(2)Subsection (1) applies to a failure occurring before proceedings were commenced in the Tribunal in relation to the complaint as well as to a failure occurring afterwards.

(3)A defect or irregularity in the appointment of any person exercising, or purporting to exercise, a power or function under this Chapter or Chapter 6 does not invalidate an act done or omitted by the person in good faith.

Queensland Legislation - Legal Profession Act 2007 (Qld)

236. Section 417 provides:

Application of chapter to lawyers, former lawyers and former practitioners

(1)This chapter applies to Australian lawyers and former Australian lawyers in relation to conduct happening while they were Australian lawyers (but not legal practitioners) in the same way as it applies to Australian legal practitioners and former Australian legal practitioners, and so applies with any necessary changes.

(2)This chapter applies to former Australian legal practitioners in relation to conduct happening while they were Australian legal practitioners in the same way as it applies to persons who are Australian legal practitioners and so applies with necessary changes.

(3)In this section - former Australian legal practitioner includes a person who was a solicitor or barrister in this jurisdiction before 1 July 2004."

237. Section 422 provides that the chapter applies to Australian legal practitioners including a practitioner who holds an interstate practising certificate.

238. Section 423 conduct to which this chapter applies - generally:

(1)Subject to subsection (3) this chapter applies to the conduct of an Australian legal practitioner happening in this jurisdiction whether before or after the commencement of this section

...

(3)This chapter does not apply to the conduct happening in this jurisdiction if -

(a)The Commissioner consents to the conduct being dealt with under a corresponding law ....

(4)Subsection (3) does not apply if the conduct is not capable of being dealt with under a corresponding law,

(5)The Commissioner may give consent for subsection (3)(a), and may do so conditionally or unconditionally.

239. Section 430 complaints made over 3 years after conduct concerned:

(1)This section applies if a complaint is received by the Commissioner more than 3 years after the conduct happened that is the subject of the complaint, including conduct that happened before the commencement of this section.

(2)The Commissioner may -

(a)Refer the complaint to mediation; or

(b)Dismiss the complaint unless the Commissioner decides that -

(i)It is just and fair to deal with the complaint having regard to the extent of, and reasons for, the delay: or

(ii)The complaint involves conduct of the following type and it is in the public interest to deal with the complaint -

A Conduct of an Australian legal practitioner that the Commissioner considers may be professional misconduct ..."

240. Section 651 appears in division 3 of the Act dealing with the powers of the Committee and gives the Committee power to disregard procedural lapses. Section 656E appears in division 4, offences, and gives a power to disregard procedural lapses.

Terms of the Consent

241. It is clear from the terms of the consent that the Legal Services Commissioner of Queensland neither sought nor received any submissions from the barrister prior to signing the consent. The relevant paragraphs of the consent are as follows:

I recognise that some or all of Mr Asuzu's conduct in the matter of Grant v Commissioner of Australian Federal Police occurred in Queensland. No disciplinary action has, or is intended to be, taken against Mr Asuzu in Queensland in relation to that conduct.

(1)I consent to Mr Asuzu's conduct in the matter of Grant v Commissioner of Australian Federal Police being dealt with under the Legal Profession Act, 2004 (NSW) and consequently, being dealt with in the proceedings against Mr Asuzu presently before the Administrative Decisions Tribunal of New South Wales. I also intend for my consent to apply retrospectively to any dealing under the Act that has already been undertaken in relation to this matter.

242. There is no indication in the consent document that the Legal Services Commissioner of Queensland gave any consideration to whether or not the provisions of s 430 of the Queensland Legal Profession Act apply and if so whether the discretion to entertain a late complaint should be exercised. In these circumstances, an issue may arise as to the validity of the consent. Nonetheless in the light of what follows it is not necessary for the Tribunal to consider that matter further.

Should the Tribunal Deal with the Gant Grounds?

243. The Council in its submissions made no reference to the effect of ss 501, 503 and s 551 of the LPA nor of the provisions of the corresponding Queensland Act.

244. The submissions of the parties do not refer to any decision concerning the application of s 561 and the Tribunal's researches have not to date revealed any such decision. The second reading speech of the bill is of little assistance. It is noted there that Chapter 4 of the Act is to " facilitate mutual recognition of disciplinary action, cooperation between regulators, the exchange of information concerning complaints ". The second reading speech also refers to the New South Wales Law Reform Commission report 99 "Complaints against Lawyers: an Interim Report" and "Legal Profession Act 1987, A further review of complaints against lawyers".

245. Both of those papers make it reasonably clear that s 561 was introduced into the LPA because of problems highlighted by the decision of the High Court in Barwick v Law Society of New South Wales (2000) 169 ALR 236, [2000] HCA 2.

246. Recommendation 15 of report 99 was that the Act be amended to provide that proceedings are not invalidated by a formal defect or irregularity unless the Tribunal is of the opinion that a substantial injustice has been caused.

247. The paper "A Further Review Of Complaints Against Lawyers" recommended that a broad discretion be conferred on the ADT to dispense with the need to comply with procedural requirements, in circumstances where the interests of the legal practitioner, the Legal Services Commissioner, a Council and the complainant are not compromised. Neither paper appears to deal with the interaction of that discretion with the provisions of ss 501 and 503 of the LPA which give the scheme a limited extra-jurisdictional application. The benefits of a nationally uniform system were discussed in the latter paper but not in any relevant way. So much is reflected in the purposes and objects of the chapter as set out in s 494.

248. The Council in their submissions point out that the requirement of consent is to prevent unfair multiplicity of investigation and has a procedural quality and the irregularity does not lead to any jurisdictional error. The Tribunal accepts that not every departure from the procedures laid down in the LPA will result in a lack of jurisdiction in the Tribunal or in jurisdictional error.

249. Nonetheless, s 503 (which is in Part 4.2) provides that a complaint " must not be dealt with under this Part unless this Part is or becomes applicable to it " (underlining added). Part 4.2 of the LPA, which relates to the initiation of complaints, only becomes applicable to conduct occurring outside New South Wales when the necessary consents have been obtained. In relation to the complaints which constitute the Gant Ground and the Gant Serious Allegation Ground, the Council was required not to deal with those complaints under Part 4.2 unless the consents were obtained. Without the consents of the relevant authorities, the complaints could go no further than being lodged under s 503(2). At the time the Tribunal's jurisdiction was sought to be invoked under s 551 in respect of those complaints, the Tribunal had no jurisdiction to deal with them because the conduct the subject of the complaints occurred in Queensland and was not conduct to which Chapter 4 of the LPA applied. Further, the steps taken in relation to the complaints had been taken contrary to s 503(2).

250. No objection to jurisdiction was taken by the Barrister when the matter came before the Tribunal. This is relevant to the issue of whether or not the lack of consent has led to a substantial injustice to a party. It cannot, however, be determinative of the question of whether or not the Tribunal has jurisdiction. It appears from the second reading speech that one of the purposes of Chapter 4 is to encourage the exchange of information between the various jurisdictions concerning complaints. No such exchange appears to have taken place during the investigation stage of "complaints" which constitute the Gant Ground and the Gant Serious Allegation Ground.

251. The issue then becomes whether s 561 permits the Tribunal to remedy such a situation. Section 561 applies where there is " a failure by the Commissioner or a Council, or a person acting for them or under their direction, to observe a procedural requirement in relation to a complaint (including the making, investigation or referral of a complaint, the giving of notice in connection with a complaint, or the making of a decision in connection with a complaint) ".

252. This Tribunal ordinarily has no jurisdiction over conduct occurring in another State or Territory. Section 501(2) renders the LPA applicable to certain conduct outside New South Wales but only if the requisite consents are obtained.

253. Section 561 of the LPA gives this Tribunal a wide discretion to disregard any failure to observe a " procedural requirement in relation to a complaint ". It is a matter of statutory construction whether the words " in relation to a complaint " refer to a complaint which the Tribunal has jurisdiction to hear or to a complaint that can be made but cannot be dealt with, under s 503(2), unless Part 4.2 becomes applicable to it by the obtaining of the relevant consents. The Tribunal is of the view that the former construction is to be preferred, that is, s 561 permits the Tribunal to disregard a failure to observe a procedural requirement in relation to a complaint which it has jurisdiction to hear and determine. Section 561 should not be construed so as to permit the Tribunal by relying on s 561 to acquire jurisdiction in relation to a complaint in respect of which it does not otherwise have jurisdiction.

254. Adopting this construction, the Tribunal does not have power to disregard the failure to take a step which is necessary to bring the conduct within the operation of the LPA and within the scope of the Tribunal's jurisdiction.

255. Further, the Tribunal does not accept that obtaining the consent of the relevant authorities in a case involving conduct outside the jurisdiction is a procedural rather than a substantive requirement. The step of obtaining consents is substantive because, without it, the Chapter 4 does not apply to the conduct and the procedures described in Part 4.2 must not be taken. Thus, even if the Tribunal were wrong in relation to the construction of " complaint " adopted above, it would nonetheless find that it did not have power to disregard the failure to obtain the requisite consents as this was not a failure to comply with a " procedural requirement " in the circumstances.

256. Accordingly, the Tribunal declines to make any order under s 561 of the LPA. In all the circumstances the Tribunal finds that it must dismiss the application so far as it relates to the Gant Ground and the Gant Serious Allegation Ground, that is grounds 2 and 3 in proceedings 102005 as the Tribunal does not have jurisdiction in the circumstances.

The Ally Ground

257. The conduct complained of under this ground relates only to the submissions, both oral and written, made by the Barrister in the hearing in Sydney before the Full Court of the Federal Court of Australia in the matter of Ally v Minister for Immigration and Citizenship . The Council alleges that these submissions were so defective that they demonstrate that the Barrister failed to reach the standard of diligence and competence which a member of the public is entitled to expect from a reasonably competent Australian legal practitioner. On this basis, the Barrister is said to have engaged in unsatisfactory professional conduct.

258. For present purposes, it is sufficient for the Tribunal to note that in his reply the Barrister disputes and denies the Council's allegations in relation to this ground.

259. The background to the Full Court proceedings can be relevantly summarised as follows. Ms Ally, a national of Tanzania, arrived in Australia in 1999 and, after spending almost a year in this country, married Mr Okele, an Australian citizen. Approximately 2 weeks after her marriage, on 27 July 2000 Ms Ally applied to the Minister for Immigration and Citizenship for a permanent spouse visa, also known as a subclass 820 visa.

260. The provisions relating to subclass 820 visas in Schedule 2 of the Migration Regulations 1994 (Cth) ("the Migration Regulations") established two types of primary criteria that were required to be satisfied if the visa was to be granted. The relevant provision included:

820.2Primary criteria

NoteThe primary criteria must be satisfied by at least 1 member of a family unit. The dependent child of an applicant who satisfies the primary criteria is also eligible for the grant of the visa if the child satisfies the secondary criteria.

820.21Criteria to be satisfied at time of application

820.211(1)The applicant:

(a)is not the holder of [a specified visa which was not relevant]; and

(b)meets the requirements of subclause (2), (3), (4), (5), (6), (7), (8) or (9).

[Subclauses (2) to (9) set out the specific requirements]

...

820.22Criteria to be satisfied at time of decision

820.221(1)In the case of an applicant referred to in subclause 820.211 (2), (3), (4), (5), (6), (7), (8) or (9), the applicant either:

(a)continues to meet the requirements of the applicable subclause; or

(b)meets the requirements of subclause (2) or (3).

[Subclauses (2) and (3) set out the specific requirements]

....

261. For present purposes it is sufficient to note that the relevant criteria to be satisfied at the time of application were those found in subclause 820.211(2) and whether or not the applicant, Ms Ally, met the requirement in that subclause depended upon whether she was Mr Okele's "spouse" within the meaning of the Migration Regulations.

262. Regulation 1.15A provided at the relevant time:

1.15A Spouse

(1)For the purposes of these Regulations, a person is the spouse of another person if the 2 persons are:

(a)in a married relationship, as described in subregulation (1A); or

(b)in a de facto relationship, as described in subregulation (2).

(1A)Persons are in a married relationship if:

(a)they are married to each other under a marriage that is recognised as valid for the purposes of the Act; and

(b)the Minister is satisfied that:

(i)they have a mutual commitment to a shared life as husband and wife to the exclusion of all others; and

(ii)the relationship between them is genuine and continuing; and

(iii)they:

(A)live together; or

(B)do not live separately and apart on a permanent basis.

263. Under reg 1.15A(3), in determining whether 2 persons were in a married relationship for the purposes of an application such as Ms Ally's, the Minister must have regard to all of the circumstances of the relationship including, in particular:

a) the financial aspects of the relationship and in particular the factors listed in subreg 1.15A(3)(a)(i) to (v);

b) the nature of the household and in particular the factors listed in subreg 1.15A(3)(b)(i) to (iii);

c) the social aspects of the relationship and in particular the factors listed in subreg 1.15A(c)(i) to (iii);

d) the nature of the persons' commitment to each other and in particular the factors listed in subreg 1.15A(d)(i) to (iv).

264. The delegate of the Minister refused her application 12 June 2003. The Migration Review Tribunal conducted a merits based review of her application but on 12 October 2005 affirmed the delegate's decision to refuse the application. As part of its decision the Migration Review Tribunal found at [29] that:

[T] he visa applicant [Ms Ally] was the holder of a substantive visa at the time of application, and has not held a subclass 300 visa. On this basis the Tribunal finds that the visa applicant does not meet subclauses 820.211(3), (4), (5), (6), (7), (8) or (9). The Tribunal will therefore determine whether the review applicant [Ms Ally] meets subclause 820.211(2) at the time of application, that is, whether the review applicant is the spouse of the nominator at the time of the application. The Tribunal notes that the review applicant has made claims regarding domestic violence, but the Tribunal finds that in the review applicant's circumstances these are only relevant considerations at the time of decision.

265. In determining whether Ms Ally met the requirements of subclause 820.211(2), the Migration Review Tribunal specifically considered the financial aspects of the relationship between Ms Ally and Mr Okele (at [33] to [35]), the nature of their household (at [36] to [39]), the social aspects of their relationship (at [40] to [43]) and the nature of their commitment to one another (at [44] to [52]), at the time of the application.

266. The Migration Review Tribunal concluded at [53]:

The Tribunal has considered all of the evidence regarding the aspects of the relationship including evidence of the history of the relationship since the time of application. ... [T]he Tribunal is not satisfied that at the time of application the review applicant and the nominator were in a genuine and continuing relationship. The Tribunal is not satisfied that at the time of application they were mutually committed to a shared life together as husband and wife to the exclusion of all others.

267. As a result, it followed that Ms Ally and Mr Okele were not in a married relationship for the purposes of reg 1.15A(1A) and Ms Ally was not the spouse of her nominator within reg 1.15A(1)(a). Thus she did not meet the requirements of subclause 820.211(2), which was the only applicable subclause of clause 820.211. Specifically, the Migration Review Tribunal noted at [55] that, as subclauses 820.211(8) and (9) were not engaged in Ms Ally's case, because she was the holder of a substantive visa and did not hold a subclass 300 visa, domestic violence was not an issue that relevantly arose in relation to the criteria to be satisfied at the time of application. Nonetheless, on the question of whether at the time of application Mr Okele was committed to a long term relationship with Ms Ally, the Migration Review Tribunal took into account that both before and after the time of application, he had failed to disclose to Ms Ally that he was HIV positive.

268. Ms Ally sought judicial review of the Migration Review Tribunal's decision in the Federal Magistrates Court. This judicial review application was heard by Smith FM who handed down a decision dismissing the application for judicial review on 20 April 2007, Ally v Minister for Immigration [2007] FMCA 430. As noted by Smith FM at [3], he could not set aside the Migration Review Tribunal's decision and send the matter back unless he was satisfied that the decision was affected by jurisdictional error.

269. One matter which the Federal Magistrate did address (at [31] to [41]) was whether events occurring after the date of application were legally irrelevant to a decision on whether at that date the requirements of the definition of " spouse " were satisfied. His Honour concluded that the authorities did not confine the use of evidence of subsequent conduct and similar matters as the Barrister had submitted and that the Migration Review Tribunal had not fallen into error in that regard.

270. It should be noted that the Federal Magistrate also commented at [44] as follows:

The applicant's counsel in his written and oral submissions made unfocused complaints about the Tribunal's decision which were clearly outside the ambit of his amended application. These were, in my opinion, almost entirely attacks on the merits of the factual assessments reached by the Tribunal. However, the Tribunal was required to address impressionistic criteria which were particularly difficult to apply to the present case. [His Honour referred to the duty of a court of judicial review to leave decision making to the body entrusted with that power except in the case of such a body acting perversely.] Counsel's arguments did not cause me to arrive at such a judgment in the present case.

271. After successfully obtaining leave to appeal out of time, on 20 September 2007 Ms Ally filed a notice of appeal against Smith FM's decision. The notice of appeal included a certification that there were reasonable grounds for believing that this migration litigation had reasonable prospects of success, signed by the Barrister who was described as " the lawyer filing appeal ".

272. The appeal was heard on 28 February 2008 and the Full Court's decision dismissing the appeal, Ally v Minister for Immigration and Citizenship [2008] FCAFC 49, was handed down on 3 April 2008.

273. The Barrister raised 4 grounds of appeal in the notice of appeal. It is not entirely clear what error each ground was intended to raise. It is accordingly, useful to note, in addition to the grounds set out in the notice of appeal, the summary of each ground given by the Full Court of the Federal Court in its reasons for judgment, Ally v Minister for Immigration and Citizenship [2008] FCAFC 49. The 4 grounds are as follows:

Ground	Notice of Appeal	Full Court's Summary
1	The Federal Magistrate Court erred in law by its reasoning that it failed to recognize that the Migration Review Tribunal (MRT), when addressing item 820.211(2)(a) in the light of subsequent marital events, asked itself the wrong questions, took into account irrelevant considerations in relation to its findings, within the definition of spouse under reg. 1.15A, at the time of the visa application.	[31] The first ground claims that his Honour erred in finding no error on the part of the [Migration Review] Tribunal in considering subsequent events in arriving at its finding that Ms Ally was not a "spouse" at the time of the visa application.
2	The Federal Magistrate erred by adopting that events of non disclosure of the sponsor's HIV status to the wife, which emerged in 2004, long after the date of the spouse visa application on 27 July 2000, could not amount to and/or have effect on the Domestic Violence provisions under the Act, and in relation to the definitions of 'violence' in paragraph (2)(b) of reg. 1.23, as an ultimate issue and/or spouse under reg. 1.15A.	[38] The second ground of appeal is unclear. It commences by contending error in relation to the use that the Tribunal made of the non-disclosure of the nominator's HIV status which emerged after the visa application. But it continues by asserting that this was relevant to the claim of domestic violence.
3	The Federal Magistrate erred by accepting MRT's "impressionistic criteria", which revealed a misconception of the definition of spouse under reg. 1.15A and therefore consciously or unconsciously acted perversely or contrary to same provision.	[40] The third ground complains of the Federal Magistrate's use of the term 'impressionistic criteria' at par [44], when describing the criteria for the visa.
4	The Federal Magistrate Court failed to properly assess the couple's Utility Bills, Financial and Social aspects of the relationship as required by reg. 1.15A and in the particular context of reg. 1.23(1)(g) and reg. 1.22.	[41] The fourth ground claims that the Federal Magistrate 'failed to properly assess' the evidence. It again raises the irrelevant issue of domestic violence. This ground fails to assert any relevant error on the part of the Federal Magistrate or the [Migration Review] Tribunal.

The First Ground of Appeal

274. The first ground of appeal is dealt with in paragraphs 7 to 10 of the Barrister's written submissions in that case. The substance of these paragraphs appears to be that:

a)Ms Ally satisfied the requirements of subclause 820.211(2) because:

i)she was validly married to Mr Okele, who was an Australian citizen and her sponsor (paras 7 and 9); and

ii) the additional requirements under reg 1.15A(1A)(a) and (b) to be satisfied in order to meet the definition of "spouse" in reg 1.15A(1)(a) were established on the evidence before the Migration Review Tribunal (para 8);

b) Smith FM failed to apply the "ultimate test, whether or not when the marriage was entered into was there a genuine desire to live together as husband and wife to the exclusion of all others" (para 9);

c) Smith FM erred by affirming the Migration Review Tribunal in taking a limited view of the social and/or financial aspects of the relationship and by disregarding the contents of 2 statutory declarations (para 10).

275. This was elaborated upon in the Barrister's oral submissions to the effect that if there was some evidence to support findings that would satisfy the requirements of reg 1.15A(1A), it was an error on the part of the Migration Review Tribunal and the Federal Magistrate not to make those findings (see the transcript of the Full Court hearing, for example, at page 3 line 36 to page 4 line 3, page 4 lines 31 to 40, page 5 lines 6 to 8, page 6 lines 8 to 13 and 16 to 31, page 6 line 46 to page 7 line 18, page 9 lines 19 to 23, page 10 lines 27 to 35, page 10 line 46 to page 11 line 12 and page 13 lines 2 to 4).

276. As Moore J noted at page 6 line 33, this involved descending into the facts. Further, the Tribunal notes that the submissions did not identify any jurisdictional error on the part of the Migration Review Tribunal nor any relevant error on the part of the Federal Magistrate. Moreover, from the Migration Review Tribunal's decision, it does not appear to be correct to say that it did not consider the relevant evidence and did not have regard to the contents of the 2 statutory declarations referred to. It is difficult to identify a proper basis in fact or law for this submission in an appeal in the circumstances.

277. Another aspect of the Barrister's oral submissions relating to the first ground of appeal was that when addressing the requirements of subclause 820.211(2)(a), being requirements to be satisfied at the time of the application, it was an error of law to take into account subsequent events (see page 8 lines 6 to 19, page 9 lines 24 to 29 of the Full Court transcript). This is the only aspect of the first ground that had the potential to amount to jurisdictional error on the part of the Migration Review Tribunal. The Federal Magistrate dealt with this aspect of the matter at some length ([2007] FMCA 430 at [32] to [40]) and held that the Migration Review Tribunal had properly used evidence of subsequent events in assessing whether the requirements of subclause 820.211(2)(a), among others, were satisfied at the time of the application. The Full Court held that the Federal Magistrate had made no error in this regard ([2008] FCAFC 49 at [37]). One basis for criticism of the Barrister is that his submissions on this topic did not engage with the Federal Magistrate's reasoning or identify any particular error in that reasoning. Accordingly, although the general topic may have had the potential to raise a jurisdictional error, the submissions themselves did not do any more than identify the general topic.

278. Not surprisingly, Ms Ally was not successful on the first ground of appeal.

The Second Ground of Appeal

279. As the Full Court noted (at [38]), this ground has 2 parts, although they are related. The first is the failure of the sponsor husband to inform Ms Ally of his HIV positive status either prior to or after their marriage and related matters. The second relates to the whether the Migration Review Tribunal and the Federal Magistrate should have had regard to the domestic violence evidence adduced on Ms Ally's behalf.

280. In his written submissions dealing with the second ground of appeal the Barrister covers both the issue of domestic violence (see paragraphs 11 to 18) and the issue of the sponsor's HIV status (see paragraphs 19 to 23). In relation to domestic violence, the Barrister wrote:

I submit that the detonation of the word 'violence' in paragraph (2)(b) of reg 1.23 is the ultimate issue of statutory construction before this Court. ... The starting point, irrespective of all other criteria that are required to be satisfied, is the exceptional case where the relationship has ceased but an application for visa can still be made. Such exception I submit is tied to 'domestic violence' requirement under subcl (8) and (9) in subclass 820. [This is apparently a reference to subclauses 820.211(8) and (9)] ...

(paragraph 11).

281. The written submissions referred to error on the part of the Federal Magistrate because he did not address significant evidence of domestic violence claimed by Ms Ally (see paragraph 14). In this regard, the submissions relied upon subclause 820.211(8) as the basis for raising the domestic violence issue (see paragraph 15).

282. The substance of the Barrister's submissions on the HIV status issue was that the fact that the sponsor/husband did not disclose his HIV positive status to Ms Alley should not have been used as a basis for concluding that the applicant and sponsor did not have a mutual commitment to a shared life as husband and wife to the exclusion of all others as required by reg 1.15A(1A)(b)(i) (see for example paragraph 19). In addition, the non-disclosure of HIV status appears to have been said to amount domestic violence in the following passage in the written submissions:

It is undisputed that the appellant was unawares of the sponsor withheld his HIV positive status, diagnosed in 1999. Such a state of affairs cannot be a reason for 'no contest' relationship, in this instance. The sponsor is in prison for failing to disclose his HIV status to two (2) women who are now infected by him with the virus. According to the Tribunal, the appellant ought to be distress about it, when it was obvious, that such treatment would amount to 'domestic violence'.

(paragraph 20).

283. The Barrister addressed in oral submissions both the issue of domestic violence (see page 10 lines 37 to 44, page 12 lines 3 to 9, page 13 lines 6 to 10 and page 21 lines 34 to 46) and the issue of whether the fact that the husband did not tell Ms Ally of his HIV status before or at the time of the marriage or at the time of the visa application could be relied upon to establish a lack of the mutual commitment required by reg 1.15A(b)(i) (see page 12 lines 11 to 15 and 32 to 39).

284. As has been noted above, the issue of domestic violence can be relevant when considering whether the visa applicant has met the criteria to be satisfied at the time of the application for the visa, under subclause 820.211, but only if subclause 820.211(8) or (9) applies to him or her. Neither of those subclauses (8) or (9) applied to Ms Ally because she was the holder of a substantive visa (and thus did not fall within paragraph (9)(a)) and because she was never the holder of a subclass 300 (Prospective Marriage) visa (and thus did not fall within paragraph (8)(a) or (9)(b)). Accordingly, domestic violence was not a matter which the Migration Review Tribunal should have considered in Ms Ally's matter. There was no error in its refusal to do so.

285. As to whether the sponsor/husband's failure to disclose his HIV positive status to Ms Ally could be relied upon when considering whether the " persons ... in a married relationship " had " a mutual commitment to a shared life as husband and wife to the exclusion of all others " as required by reg 1.15A(1A)(b)(i), the words of the regulation provide the answer. Both " persons " must have the commitment. This is reinforced by the requirement that the commitment be " mutual ". The Barrister advanced no substantive submissions as to why this was not so, except to seek to rely upon the irrelevant domestic violence issue (see paragraph 19 of the written submissions) and to describe the Tribunal's approach to what constitutes a genuine and continuing marriage as " far too narrow " (see paragraph 20).

286. The appellant was not successful on the second ground of appeal in the Full Court.

The Third Ground of Appeal

287. The third ground of appeal related to the Federal Magistrate's acceptance of the Migration Review Tribunal's "impressionistic criteria", which was said to reveal a misconception of the definition of spouse under reg. 1.15A and therefore constitute acting perversely or contrary to that provision. The Barrister's written submissions drew attention to the matters to which the Migration Review Tribunal must have regard under reg 1.15A(3). Then it was argued in substance that because the Migration Review Tribunal reached conclusions that it was not satisfied that the various matters had been established when there was some evidence in relation to each of those matters, that evidence must have been disregarded or not taken into account (see paragraphs 24 to 29). In paragraph 29 it was put in the following way:

I submit that the Court/MRT had continued to ask the wrong question, since it reached the wrong conclusion in its reasoning. I submit that such conclusion was illogical and unreasonable to refuse to give any credence to the appellant's bundle of evidence ... in support of her committed and strong spousal claim, as supported by the stipulated statutory requirement.

288. In oral submissions, the Barrister touched upon the observation that the Federal Magistrate treated the requirements as " impressionistic considerations " (see page 8 lines 27 to 28 and page 9 lines 24 to 27).

289. The problem with these submissions is that the Barrister has demonstrated no error in describing the relevant criteria as " impressionistic " nor has he demonstrated that the findings of the Migration Review Tribunal were not open on the evidence, that the tribunal asked itself the wrong questions, that the tribunal failed to take into account relevant considerations or that the tribunal reached conclusions that were so unreasonable that no reasonable tribunal could have reached them. There was no actual or potential jurisdictional error identified by the Barrister.

290. The appellant was unsuccessful on the third ground of appeal.

The Fourth Ground of Appeal

291. The fourth ground involved the complaint that the Federal Magistrate " failed to properly assess " the evidence. It also brought up the issue of domestic violence, which for the reasons given above did not relevantly arise in this case.

292. In the Barrister's written submissions, there is considerable material which amounts to submissions on why the Migration Review Tribunal should have reached different conclusions on the evidence (see paragraphs 34 to 46 and 49 to 60). These submissions do not establish any jurisdictional error on the part of the tribunal. The oral submissions touched upon similar arguments for as long as the Court permitted the Barrister to do so.

293. At page 11 lines 14 of 22 of the Full Court transcript, however, the Barrister submitted:

But all of this were raised not because they are issues of fact but interpretation of the legal requirements that is the criteria and the regulation, regulation 1.15. If there is an error in such interpretation then it is a question of law, not a question of fact, because of the fact that the construction of that subparagraph and the regulation is to be interpreted, and any wrong interpretation of it provides an arguable case ....

294. This suggests that the Barrister was aware of the need for him to point to an error of construction or a taking into account of irrelevant material or some other error on the part of the Migration Review Tribunal, which could amount to a jurisdictional error and which the Federal Magistrate failed to identify. It is also consistent with an awareness that issues of fact and the weight to be given to various items of evidence in making findings of fact would not be sufficient for the Barrister's purposes on the appeal.

295. Notwithstanding this, the Barrister did persist in taking the Full Court to primary factual material capable of supporting findings that would have supported Ms Ally's case (see for example page 11 lines 34 to 38, page 12 lines 1 to 15, lines 32 to 39 and page 13 lines 3 to 10).

296. The fourth ground of appeal was no more successful than the first three grounds.

The Full Court's Comment on the Barrister's Submissions

297. At [42] of the Full Court's reasons, their Honours observed:

We were not assisted by the oral and written submissions of counsel for the appellant. The written submissions failed to comprehend the distinction between merits review and jurisdictional error. So too did counsel's oral submissions. Moreover, he persisted in ignoring this distinction notwithstanding the guidance which the Bench sought to give to him on this fundamental issue.

The Ally Ground - Unsatisfactory Professional Conduct

298. The Tribunal is not unaware of the difficulty in distinguishing jurisdictional error from non-jurisdictional error and bears in mind, in this regard, the passage from the judgment of Kirby J in Minister for Immigration and Multicultural Affairs v Respondents S152/2003 [2004] HCA 18; (2004) 222 CLR 1 at [97] to which the Barrister drew attention in submissions:

Furthermore, the Federal Court would be aware of the importance of refugee decisions under the Act and that unrepresented applicants could not be expected to know about all the many nuances of that law. Trained lawyers often find it difficult to distinguish jurisdictional from non-jurisdictional error. I have confessed to difficulty myself. In such circumstances, it was proper for the Federal Court to engage in its own scrutiny of the approach adopted by the Tribunal and by the primary judge to see if a relevant undisclosed error appeared warranting a rehearing before the Tribunal. This is what the Full Court did.

(underlining added).

299. This difficulty, even for a trained lawyer, does not, however, relieve a barrister from the obligation to assist a Court in carrying out its functions by correctly and precisely indentifying the issues that the Court should address and limiting his or her submissions to matters genuinely related to those issues.

300. It appears to us that the Barrister was aware of the need for him, in Ms Ally's case, to identify jurisdictional errors on the part of the Migration Review Tribunal which were not identified and accepted as such by the Federal Magistrate. Such a conclusion is based upon material such as the passage from page 11 lines 14 of 22 of the Full Court transcript quoted above, the heading to Ground 1 " Federal Magistrate addressed the Wrong Questions and Issues " and paragraphs 9, 25 and 26 in the written submissions, among others. Whilst significant parts of the submissions identified what might be called errors relating to the assessment of the evidence, it appears to the Tribunal that the Barrister did not adequately consider or address why those or other errors could be argued to be jurisdictional errors. Nor did the Barrister limit his submissions to what would be relevant to potential jurisdictional errors. From the Tribunal's experience this is a criticism that could be made of many submissions, oral and written, in the field of judicial review of administrative decisions, and especially in migration matters. That is not, however, a ground for excusing such conduct.

301. Another aspect of the Barrister's submissions in the Full Court which illustrates the general nature of the Council's complaints relates to the issue of domestic violence. In order to be granted a subclass 820 visa, Ms Ally had to satisfy criteria at the time of application and criteria at the time of the decision - see subclauses 820.21 and 820.22 respectively. The criteria to be satisfied at the time of application relevantly were the requirements set out in subclauses 820.211(2), (3), (4), (5), (6), (7), (8) or (9). Subclauses (3) to (7) were irrelevant for present purposes. Subclauses 820.211(8) and (9) related to domestic violence issues, but only applied if the applicant was not the holder of a substantive visa at the time of application and/or had held a subclass 300 visa. As has been noted already, it was not in dispute before the Full Court that Ms Ally was the holder of substantive visa and had never held a subclass 300 visa. Thus, subclauses 820.211(8) and (9) could not be relied upon in Ms Ally's case. The only subclause that was relevant in Ms Ally's case was subclause 820.211(2). This was the subclause which the Migration Review Tribunal and the Federal Magistrate Domestic considered and applied. Domestic violence was not, in Ms Ally's case, a factor that could be relied upon in order to dispense with the need to meet all the requirements of subclause 820.211(2).

302. In these circumstances, it is difficult to discern why the Barrister submitted at paragraph 11 of the written submissions as follows:

The starting point, irrespective of all other criteria that are required to be satisfied, is the exceptional case where the relationship has ceased but an application for visa can still be made. Such exception I submit is tied to 'domestic violence' requirement under subcl (8) and (9) in subclass 820. [This is apparently a reference to subclauses 820.211(8) and (9)] I submit that the underlying policy (evident in the title of the subclass) is to be tied to the award of the visa to persons who are, or, exceptionally, have been, in spousal relationships having the qualities identified in reg 1.15A.

(paragraph 11).

or in oral submissions as follows (at page 12 line 45 to page 13 line10):

I will go to my written submission and, your Honour, I will start from paragraph 47 of it and those very questions - if any one of them is answered in the negative then my submissions on this very case we have a problem. But if they are answered in the positive then it makes the requirements of subclause 8(20) [this should be 820.211] and regulation 1.5A [this should be reg 1.15A]. It is very important as to what the law requires in disposal of this application. My remark is that there was no shortfall in terms of what the law requires to be fulfilled and what my clients in this instance did fulfil or did provide.

The consequences of any shortfall are ameliorated by the domestic violence provisions. It could not be excluded if there was a marriage of three days standing. My client has complied with the domestic violence requirements required of her to provide. It could not be said you did not meet that very requirement if those things accord in that relationship.

303. The Barrister's point appears to be that any deficiency in the evidence required to support findings that Ms Ally met the requirements of subclause 820.211(2) could be remedied by proving that the applicant was the subject of subsequent domestic violence by the sponsoring spouse. This appears to us to be a misunderstanding of what subclauses 820.211(8) and (9) provide and how they would operate in Ms Ally's case.

304. The Tribunal is not convinced that the Barrister raised the domestic violence issue and subclauses 820.211(8) and/or (9) knowing that they were not applicable. Rather, we find that the Barrister believed, albeit mistakenly, that those subclauses could be relied upon to assist an applicant to meet the criteria to be satisfied at the time of application if the applicant had been subject to domestic violence by the sponsoring or nominating spouse. We think it likely that the Barrister did not turn his mind to the issue of whether Ms Ally satisfied the requirements of subclauses 820.211(8)(a) or (9)(a) or (b), which relate to the applicant's visa status.

305. This being so, however, it also appears to us that the Barrister was insufficiently diligent in preparing and presenting the appeal. As a result of the Migration Review Tribunal's express reasons for not making findings in relation to domestic violence at [55] of its reasons and the comments of the Federal Magistrate at [37] of the reasons for judgment, a reasonably competent barrister preparing the appeal to the Full Federal Court would have been aware that there were reasons why domestic violence was neither relevant to, nor a remedy for a lack evidence to support, Ms Ally's claim the subject of the appeal. Being aware of this, a barrister who professed some expertise in immigration law would have considered the terms of subclauses 820.211(8)(a) and (9)(a) and (b).

306. The Tribunal is aware of the need to apply the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent Australian legal practitioner having regard to the exigencies of practice as an advocate, the difficulties inherent in such notions as jurisdictional error and the intricacies of the current immigration legislation. A member of the public is, however, entitled to expect that a reasonably competent legal practitioner will, while striving to advance his or her client's interests, identify and address the relevant legal and factual issues and assist the Court fairly and efficiently to determine them. The Barrister's failure to focus upon the identification of jurisdictional errors by the Migration Review Tribunal and any consequent errors made by the Federal Magistrate indicates a certain lack of diligence or competence in preparing for and prosecuting the appeal. Raising the domestic violence issue when it could not be relevant to the appeal, given that there was no challenge to the findings relating to Ms Ally's visa status, also suggests that the Barrister was insufficiently diligent in researching and determining how the evidence of domestic violence could legitimately be deployed in the appeal, if at all. Although minds may differ in relation to a case such as the present, the Tribunal believes that the preferable view is that the Barrister's preparation for and conduct of the appeal in the Ally matter did fall short of the standard expected and thus involved unsatisfactory professional conduct.

307. Accordingly, the Tribunal is satisfied that in relation to the Ally Ground the Barrister has engaged in unsatisfactory professional conduct.

The Aggregate Ground

308. The Aggregate Ground in effect asks the Tribunal to consider the conduct the subject of the Kawala Ground, Kawala Serious Allegation Ground, the Gant Ground, the Gant Serious Allegation Ground and the Ally Ground together in order to determine whether the Barrister's conduct in aggregate involved a " substantial or consistent " failure to reach or maintain the standard relevant to unsatisfactory professional conduct.

309. In summary. we have relevantly found that:

a)the Barrister was guilty of unsatisfactory professional conduct in relation to his failure properly to plead forgery in respect of the 1992 and other later wills in the Kawala matter;

b)the Barrister was guilty of unsatisfactory professional conduct in relation to his preparation for and submissions in the Ally matter.

310. Taking into account all our findings relevant to proceeding 102005, we are not satisfied that the Barrister's conduct when viewed in aggregate involved such a failure to reach or maintain the requisite standard that it reflects so adversely upon the Barrister's ability to practise law that the Tribunal should intervene. In other words, we are not satisfied that the Barrister's conduct in aggregate involved a substantial failure so that it would fall within the definition of professional misconduct in s 497(a) of the LPA, as well as constituting unsatisfactory professional conduct when viewed in isolation.

311. The unsatisfactory professional conduct that we did find concerned one failure to reach the requisite standard in relation to pleading in an area of law in which the Barrister did not profess any special degree of proficiency. The other failure related to understanding the terms and operation of Item 820 of Schedule 2 of the Migration Regulations and other relevant regulations and the general nature of judicial review of administrative decisions. We do not find that these failures to achieve the requisite standard were the result of the Barrister making the same mistake of principle or acting in the same inappropriate way in a variety of situations. Thus, we are not satisfied that they amount to consistent failures falling within the definition of professional misconduct in s 497(a) of the LPA.

312. It follows that we find that the Aggregate Ground has not been made out.

Conclusion in Both Proceedings

313. In reaching our conclusions in these matters the Tribunal has borne in mind the decision in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. In particular, we have arrived at our conclusions having regard to the seriousness of the allegations made against the Barrister, the inherent unlikelihood of conduct of this nature occurring and the gravity of the consequences flowing from our findings.

314. In summary, the Tribunal:

a) finds that the Barrister is guilty of:

i) unsatisfactory professional conduct in relation to the Statutory Declaration Ground;

ii) professional misconduct in relation to the S 660 Ground;

iii) unsatisfactory professional conduct in relation to his failure properly to plead forgery in respect of the 1992 and other later wills as alleged in the Kawala Ground;

iv) unsatisfactory professional conduct in relation to the preparation for and submissions in the Ally matter as alleged in the Ally Ground;

b) would otherwise dismiss the Applications in proceedings 090202 and 102005.

315. At the hearing the parties indicated that they would appreciate the opportunity to adduce further evidence and make specific submissions on the question of the appropriate protective orders that the Tribunal should make in the light of the Tribunal's findings of professional misconduct or unsatisfactory professional conduct. To permit this to happen in an orderly fashion, the Tribunal makes the following directions:

1.The Applicant to file and serve any affidavits upon which it intends to rely in relation to appropriate orders on or before 16 September 2011;

2.The Respondent to file and serve any affidavits upon which he intends to rely in relation to appropriate orders on or before 7 October 2011;

3.The Applicant to file and serve any affidavits in reply on or before 14 October 2011;

4.The matter is relisted for directions on 2 November 2011 at 10.00am with a view to being set down for a hearing on the appropriate orders to be made by Tribunal at that time.

**********