Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Raphael [2021] NSWCATOD 44 Hearing dates: 21 December 2020 Date of orders: 16 April 2021 Decision date: 16 April 2021 Jurisdiction: Occupational Division Before: Hennessy ADCJ, Deputy President P Callaghan SC, Principal Member E Hayes, General Member Decision: (1) Complaints 1, 3, 4 and 5 are withdrawn and dismissed. (2) The Respondent is guilty of unsatisfactory professional conduct as alleged in Complaint 2. (3) The Respondent is reprimanded. (4) The Respondent is to undergo, at his own cost, a combination of education and counselling for at least eight hours, the details of which are to be determined by the Applicant. (5) Any application for costs will be determined 'on the papers' following submissions from both parties. Catchwords: OCCUPATIONS — legal practitioners — barristers — unsatisfactory professional conduct — where barrister admits sexually harassing female solicitor — extent of insight and understanding of nature of behaviour and effect on victims — counselling necessary to address behaviour Legislation Cited: Anti-Discrimination Act 1977 (NSW) Civil and Administrative Tribunal Act 2013 (NSW) Evidence Act 1995 (NSW) Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) Legal Profession Uniform Law (NSW) Sex Discrimination Act 1984 (Cth) Cases Cited: Council of the New South Wales Bar Association v Levick (No 2) [2018] NSWCATOD 108 Council of the New South Wales Bar Association v Raphael [2007] NSWADT 201 NSW Bar Association v Meakes [2006] NSWCA 340 O'Callaghan v Loder [1983] 3 NSWLR 89 Richardson v Oracle Corp (Australia) Pty Ltd (2014) 223 FCR 334; [2014] FCAFC 82 Texts Cited: Neil Rees, Simon Rice and Dominique Allen, Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, 2018, The Federation Press) K Nomchong SC, "Sexual harassment and the judiciary" (July 2020) 32(6) Judicial Officers' Bulletin 55 The Hon T F Bathurst, Chief Justice of New South Wales, "Trust in the Judiciary" (2021 Opening of Law Term Address, Hyatt Regency Sydney, 3 February 2021) https://www.supremecourt.justice.nsw.gov.au/Documents/Publications/Speeches/2021%20Speeches/Bathurst_20210203.pdf Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) David Keith Louis Raphael (Respondent) Representation: Counsel: P Dwyer (Applicant) C Webster SC (Respondent) Solicitors: McCullough Robertson Lawyers (Applicant) Carneys Lawyers (Respondent) File Number(s): 2020/00121583 Publication restriction: Under s 64(1)(a) and (b) of the Civil and Administrative Tribunal Act 2013 (NSW), the disclosure or publication of the name of the person referred to in these reasons as Ms X is prohibited. Note: A reference to the name of a person includes a reference to any information, picture or other material that identifies the person or is likely to lead to the identification of the person. REASONS FOR DECISION Summary 1. Barrister David Raphael admits sexually harassing a young female solicitor in a conference room in the Supreme Court of New South Wales. Mr Raphael and the Council of the New South Wales Bar Association (the Council) agree that the woman's name should not be disclosed. For the reasons given by the Council, we have made a non-disclosure order. We will refer to her in this decision as Ms X. 2. In June 2017, Mr Raphael and Ms X were each representing a party in Supreme Court proceedings. A Judicial Registrar had directed Ms X to obtain further information from her supervising solicitor about the delay in prosecuting their client's case. Ms X was sitting in a conference room alone with the door closed while she obtained that information. Mr Raphael entered the conference room and, after referring to Ms X's wedding ring, said words to the following effect: "Won't your husband get jealous because we are spending so much time together? He will think something is going on." 1. Ms X's voice became shaky during her conversation with Mr Raphael. She became visibly upset and started to cry. Mr Raphael placed his arm on Ms X's shoulder for between 10 and 20 seconds and kissed the top of her head. He then said, "Don't worry you poor thing." Mr Raphael admits that the physical contact constitutes unsatisfactory professional conduct as defined in s 296 of the Legal Profession Uniform Law (NSW) (Uniform Law). The definition of unsatisfactory professional conduct in the Uniform Law includes "sexual harassment". 2. Mr Raphael admits, and we find, that placing his arm on Ms X's shoulder for between 10 and 20 seconds and kissing the top of her head, in the context of the comments he made, comes within the definition of sexual harassment in s 22A of the Anti-Discrimination Act 1977 (NSW). It was an unwelcome act of physical intimacy. Having regard to all the circumstances, a reasonable person would have anticipated that Ms X would be offended, humiliated and intimidated by the conduct. 3. The Council asks the Tribunal to reprimand Mr Raphael and order that he undertake counselling. Mr Raphael agrees to being counselled for one hour, but submits that he should be cautioned, rather than reprimanded. The nature of the conduct is such that a reprimand is appropriate. In addition, Mr Raphael should undergo a combination of education and counselling for at least eight hours to address his harassing behaviour. Agreed facts 1. The parties provided an Agreed Statement of Facts. Evidence is not required to prove the existence of an agreed fact and evidence may not be adduced to contradict or qualify an agreed fact: Evidence Act 1995 (NSW), s 191(2). We set out the Agreed Facts below omitting any inconsequential details which may lead to the identification of Ms X: "On the 5 June 2017, the Respondent appeared before Registrar Walton on behalf of [name deleted] in matter [name of case deleted] in the Supreme Court of New South Wales for a directions hearing. Ms X, an employed solicitor of [name of firm deleted] at that time, appeared on behalf of Mr [name deleted]. The Respondent and Ms X had never previously met. At the time, Ms X was a junior solicitor and the Respondent was 78 years old and had been first admitted to practice in 1965. The Defendant in the Supreme Court proceedings had been in breach of certain timetables on at least two prior occasions and had also sought other extensions of time. There had been no agreement between the respective solicitors as to a timetable by consent and no Short Minutes or Affidavit had been provided to the Respondent or the Respondent's instructing solicitor prior to the mention in Court. Inside the courtroom before the matter was called, the Respondent met with Ms X. The Respondent and Ms X moved to a conference room outside the Court. Ms X showed the Respondent an Affidavit in relation to delay and some proposed Short Minutes. There was discussion between them. The Respondent sought further instructions from his instructing solicitor. The latter raised some issues in relation to the Affidavit with Ms X and instructed the Respondent not to consent to the Defendant's draft minutes. Accordingly there was no agreement to the Short Minutes and the Respondent and Ms X went back in to Court before Registrar Walton. When the Respondent and Ms X mentioned the matter again, Registrar Walton was not satisfied with the explanation given by Ms X for the delay and directed Ms X to obtain further instructions. The directions hearing was adjourned while Ms X obtained further information from her supervising solicitor. Ms X was sitting in a conference room alone with the door closed while she obtained that information. The Respondent entered the conference room and, after referring to Ms X's wedding ring, said words to the following effect: '... Won't your husband get jealous because we are spending so much time together. He will think something is going on.' Ms X's voice became shaky during her conversation with the Respondent and she became visibly upset and commenced to cry. The Respondent placed his arm on Ms X's shoulder and kissed the top of her head. The Respondent said words to the following effect: 'Don't worry you poor thing.' After several minutes, Ms X seemed to the Respondent to have recovered and she ceased crying. After several more minutes, the Respondent and Ms X went back before Registrar Walton who made orders extending the timetable in the matter." Legal effect of agreed facts Physical contact 1. Initially the Council applied to the Tribunal for orders against Mr Raphael based on five separate complaints, each of which related to his conduct towards Ms X on 5 June 2017. The Council now relies only on Complaint 2, that by placing his arm on Ms X's shoulder and kissing the top of her head, Mr Raphael has engaged in unsatisfactory professional conduct. Mr Raphael admits that complaint. Comments 1. Mr Raphael agreed that after entering the conference room, he referred to Ms X's wedding ring and said words to the following effect: "Won't your husband get jealous because we are spending so much time together? He will think something is going on." 1. Mr Raphael denies that, by making this comment, or by saying to Ms X, "Don't worry you poor thing" he has engaged in unsatisfactory professional conduct. The Council has withdrawn the complaints relating to these two comments. Nevertheless, Mr Raphael accepts that the physical contact, together with the two comments, constitute unsatisfactory professional conduct. Finding of unsatisfactory professional conduct 1. In all the circumstances, including the fact that Mr Raphael made the two comments, the physical contact constitutes unsatisfactory professional conduct as defined in s 296 of the Uniform Law. 2. The Uniform Law gives examples of conduct which, by definition, amount to unsatisfactory professional conduct. One example is conduct consisting of a contravention of the Legal Profession Uniform Rules: Uniform Law, s 298(b) and s 6 (definition of Uniform Rules). One of the Uniform Rules is the Legal Profession Uniform Conduct (Barristers) Rules 2015 (NSW) (Barristers Rules). Mr Raphael accepts that by physically contacting Ms X in the way he did, he breached rule 123(b) and (c) and rule 8 of the Barristers Rules. 3. Rule 123 of the Barristers Rules provides that: A barrister must not in the course of practice, engage in conduct which constitutes: … (b) sexual harassment, or (c) workplace bullying. 1. Rule 8 of the Barristers Rules provides that: 8 General A barrister must not engage in conduct which is: (a) dishonest or otherwise discreditable to a barrister, (b) prejudicial to the administration of justice, or (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. 1. We will address each example of unsatisfactory professional conduct (sexual harassment, workplace bullying and rule 8) separately. Sexual harassment Overview 1. Based on this provision and the definition of unsatisfactory professional conduct, the issue is whether Mr Raphael has, in the course of practice, engaged in conduct which constitutes sexual harassment as defined in s 22A of the Anti-Discrimination Act. The alleged conduct was "in the course of practice" because it was done in the course of Mr Raphael conducting his practice as a barrister. 2. Sexual harassment is defined in s 125 of the Barristers Rules as meaning "sexual harassment as defined under the applicable state, territory or federal anti-discrimination or human rights legislation." The applicable state law is the Anti-Discrimination Act. Sexual harassment is defined in s 22A of that Act as follows: 22A Meaning of "sexual harassment" For the purposes of this Part, a person sexually harasses another person if— (a) the person makes an unwelcome sexual advance, or an unwelcome request for sexual favours, to the other person, or (b) the person engages in other unwelcome conduct of a sexual nature in relation to the other person, in circumstances in which a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 1. Mr Raphael admits that his conduct meets this definition. He engaged in conduct of a sexual nature, that conduct was unwelcome and a reasonable person, having regard to all the circumstances, would have anticipated that Ms X would be offended, humiliated or intimidated. Unwelcome conduct of a sexual nature 1. In 1983 Mathews DCJ, as her Honour then was, gave examples of the kinds of behaviour that could constitute sexual harassment by an employer: "The sexual conduct of the employer can vary, on the one hand, from attempts at sexual intercourse or some other overt sexual connection, through the whole range of sexual contact, including kissing, touching or pinching, and can include purely verbal approaches such as sexual propositions, or gender based insults or taunting." (O'Callaghan v Loder [1983] 3 NSWLR 89, 103) 1. Her Honour was quick to point out that "[I] t would be wrong for this tribunal to attempt an exhaustive list, as human inventiveness would almost certainly find other activities or approaches, equally unwelcome and unpleasant, which might then be denied the label of harassment." Several Australian jurisdictions have now included illustrations of "conduct of a sexual nature" in their anti-discrimination legislation. Neil Rees, Simon Rice and Dominique Allen summarise those illustrations in Australian Anti-Discrimination and Equal Opportunity Law (3rd ed, 2018, The Federation Press) at 635. After referring to the broad, non-exclusive definition of "conduct of a sexual nature" in the Sex Discrimination Act 1984 (Cth), the authors go on to say that: "The Victorian Act similarly defines the term broadly but non-exclusively, as conduct that 'includes subjecting a person to any act of physical intimacy; making, orally or in writing, any remark or statement with sexual connotations to a person or about a person in his or her presence; and making any gesture, action or comment of a sexual nature in a person's presence'. The ACT, Tasmanian and Western Australian Acts define 'conduct of a sexual nature' to include 'the making of a statement of a sexual nature to, or in the presence of, a person, whether the statement is made orally or in writing', and Tasmania adds 'displaying matter of a sexual nature…" 1. Mr Raphael's conduct in putting his arm around Ms X's shoulder and kissing her on the head was an unsolicited act of physical intimacy. Shortly before engaging in this conduct, he had made the comment about her husband thinking something is going on because they are spending so much time together. That comment, together with putting his arm on Ms X's shoulder for 10–20 seconds and kissing her on the head, amounts to conduct of a sexual nature. We are also satisfied that the conduct was unwelcome. Objective test of effect of conduct 1. Another element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated by the conduct. The test is an objective one. It does not depend on Mr Raphael having any particular intention or motivation for the conduct. The Anti-Discrimination Act does not list factors to be taken into account when determining this issue. However, s 28(1A) of the Sex Discrimination Act includes the following non-exhaustive list of relevant factors: 28A Meaning of sexual harassment ... (a) the sex, age, sexual orientation, gender identity, intersex status, marital or relationship status, religious belief, race, colour, or national or ethnic origin, of the person harassed; (b) the relationship between the person harassed and the person who made the advance or request or who engaged in the conduct; (c) any disability of the person harassed; (d) any other relevant circumstance. … 1. These factors are also relevant when determining whether conduct constitutes sexual harassment under the Anti-Discrimination Act. Ms X was a young, inexperienced solicitor. Mr Raphael was an extremely experienced older barrister. There was a vast power imbalance. His advanced age does materially detract from the way his behaviour would be viewed. Mr Raphael and Ms X had never met before and they were working in a professional environment. Ms X was upset after having been spoken to by a Registrar. Mr Raphael knew Ms X was married because she was wearing a wedding ring. He saw the ring and he made a comment about her husband being jealous because they were spending so much time together. 2. We accept that Mr Raphael's remarks and conduct were intended to console Ms X and lighten the mood. However, viewed objectively, they had sexual undertones and involved an overt act of physical intimacy. Viewed objectively, a reasonable person, having regard to all the circumstances, would have anticipated that Ms X would be offended, humiliated and intimidated by Mr Raphael's conduct. Workplace bullying 1. Workplace bullying is defined as follows in s 125 of the Barristers Rules: … unreasonable behaviour that could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to a person working in a workplace. 1. "Workplace" is not defined in the Barristers Rules but both Mr Raphael and Ms X were working in the Supreme Court building. The conduct was unreasonable for the same reasons that it constitutes sexual harassment. In addition, it could reasonably be expected to intimidate, degrade, humiliate, isolate, alienate, or cause serious offence to Ms X. Breach of rule 8 1. The Council submitted that Mr Raphael's conduct breached rule 8(b) because it "undermined the work of a very young and inexperienced solicitor, when she was extremely upset and vulnerable." With respect to rule 8(c), the Council submitted that the public hold the legal profession to a high standard and expect that barristers will comply with community expectations and norms. 2. For the same reasons as we have given when making findings of sexual harassment and bullying, Mr Raphael's conduct, while not dishonest, is "otherwise discreditable to a barrister" and is "likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute." We do not make a separate finding that the conduct is prejudicial to the administration of justice. Reprimand or caution Tribunal's powers 1. Having found Mr Raphael guilty of unsatisfactory professional conduct, s 302 of the Uniform Law, read with s 299, gives the Tribunal power to make any orders that we think fit, including: 1. an order cautioning the respondent; or 2. an order reprimanding the respondent. 1. A caution is a lesser sanction than a reprimand. Because a caution does not amount to "disciplinary action", it is not published on the Register of Disciplinary Action maintained under Part 12 of the Legal Profession Uniform Law Application Act 2014 (NSW). However, whether or not we caution or reprimand Mr Raphael, this decision will be publicly available. Purpose of disciplinary proceedings 1. In NSW Bar Association v Meakes [2006] NSWCA 340 at [114] the Court of Appeal (Tobias JA; Bryson JA; Basten JA) considered the ways in which the protective purpose of disciplinary proceedings may operate: "… First, by its direct effect upon the practitioner, the order will either remove that practitioner from membership of the profession (by disbarment or suspension) or will provide a deterrent against the repetition of such conduct (in the case of a fine or reprimand). There are also important but indirect effects to be considered. First, the order reminds other members of the profession of the public interest in the maintenance of high professional standards. Secondly and more specifically, it may give emphasis to the unacceptability of the kind of conduct involved in the disciplinary offence. Thirdly, by speaking to the public at large, it seeks to maintain confidence in the high standards of the profession." 1. In Council of the New South Wales Bar Association v Levick (No 2) [2018] NSWCATOD 108 at [54]–[55] the Tribunal made the following comments about the purpose of disciplinary proceedings and the significance of a reprimand: "[54] The main purpose served by disciplinary proceedings is protective. Disciplinary proceedings aim to protect members of the public from misconduct by lawyers (Lawyers Professional Responsibility – Dal Pont, 5th edition [23.20]). The protection of the public is not confined to the protection of the public against similar defaults by the lawyer in question. It extends also to the protection of the public against similar defaults by other lawyers and has, in this sense, the purpose of publicly marking the seriousness of what the instant lawyer has done (Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 441 per Mahoney JA). [55] A reprimand is a serious matter. It marks the disgrace of a member of an honourable profession inherent in the misconduct (Solicitors Manual – The College of Law – Vol 1 [33,060, F/N3 and 4])." 1. Mr Raphael submitted that a caution would give the Tribunal confidence that the conduct would not be repeated. He said that is apparent from both his reflections regarding his conduct and his recognition as to his lapse from the standards of behaviour required of him as a legal practitioner. Lack of insight 1. Mr Raphael was admitted as a solicitor in 1965. Since 1995, he has practised as a barrister. In his affidavit, at [27], he characterises his conduct as "attempted chivalry" and, at [38], states that he "did not consider at the time that there was the slightest sexual aspect" to what he said and did. On reflection, he characterised the events of 5 June 2017 as a "misguided attempt… to console a younger female solicitor, Ms X, and to try to help her." He accepts that the physical touching was "wholly inappropriate" and says that he will take care to ensure that he does not repeat those aspects of his conduct the subject of these proceedings. 2. Mr Raphael has only recently admitted that the conduct was sexual harassment and undertaken not to repeat it. In correspondence with the Council on 17 September 2017, just over three months after the events in the Supreme Court conference room, Mr Raphael responded very differently: "The contact was minimal, in effect token and symbolic. It is precisely the kind of thing which he would do, and indeed has done, throughout his life time as a comforting gesture in appropriate circumstances. It was in that sense familial. She raised no objection at the time, nor would he have expected her to. There is a world of difference between a comforting gesture and sexual overture. This could not have been perceived as anything other than the former. It is probably true to observe that, at least in more recent times, any tactile act however innocently intended, can be misinterpreted and he acted unwisely. The first hint of any objection comes in the file note, the following day, in the context of what appears to be an explanation of the criticism made of her (and implicitly of her employer… by the Judicial Registrar). It was no more than reflective of the innocent and innocuous (and indeed to many or most people, admirable) practices of a (long) life. In my submission it falls well short of any conduct which could be considered of a sexual nature or bullying." 1. In the same correspondence on 17 September 2017, Mr Raphael responded to the fact that he had made the two comments. The first comment was: "Won't your husband get jealous because we are spending so much time together? He will think something is going on". Mr Raphael wrote that "he was trying to allay Ms X's distress by lightening the mood, by changing the subject, and by a flippant comment". As a "78 year old grandfather", this comment "could not have been taken seriously". He went on: "It may be thought a silly comment, but that was, indeed, the point of it. It was manifestly so incongruous as not to be taken to be anything other than intended self-deprecating humour." 1. In submissions on 17 May 2018, Mr Raphael characterised the comment as "inherently innocuous". He went on, "[I]t is an old, and somewhat tired, joke which most of us have heard at some time, which carries no necessary sexual connotation, and which would not normally be taken seriously." 2. Mr Raphael did not expressly address the second comment ("Don't worry you poor thing") in his September 2017 letter to the Council. We do not need to decide whether the two comments, by themselves, constitute sexual harassment. Mr Raphael admits that the physical contact, together with the two comments, constitute unsatisfactory professional conduct. 3. The Council submitted that Mr Raphael's written responses to Complaint 2 significantly downplay the gravity of his conduct. He was, in the words of the Council's lawyer, "wilfully blind" to characterise his conduct as merely a "comforting gesture". Council also criticised Mr Raphael for stating that Ms X "raised no objection at the time, nor would he have expected her to." 4. We note that Mr Norman Gibson, a recently retired solicitor, provided a character reference stating that Mr Raphael had never tried to downplay to him how serious the complaint is. We are not suggesting that Mr Raphael downplayed the seriousness of the complaint in conversations with Mr Gibson. However, he did so in earlier correspondence with the Council. 5. We agree with the Council's submissions about Mr Raphael's initial lack of insight and understanding as to the nature and effect of his conduct. In these earlier submissions, he said Ms X did not object at the time, and he would not have expected her to. Those comments demonstrate Mr Raphael's complete lack of understanding of the nature and potential effect of his conduct at the time. While Mr Raphael now admits that the conduct constitutes sexual harassment, it is significant that he came to this realisation so late in the day. The effect on Ms X, and on women generally, of sexually harassing conduct 1. The effect on Ms X of the sexually harassing conduct is not relevant to a determination of whether that conduct meets the definition of sexual harassment. In any case, there was no evidence of that effect in the Agreed Statement of Facts and Ms X did not participate in the hearing process. Even so, when determining the orders we should make, we are informed by the objective seriousness of the conduct. That includes the potential such conduct has to adversely affect a person's mental well-being. Community standards 1. The Council submitted that in determining whether to caution or reprimand Mr Raphael the Tribunal should take into account community standards and, in particular, comments by the judiciary as long ago as 2014. In the seminal case of Richardson v Oracle Corp (Australia) Pty Ltd (2014) 223 FCR 334, Kenny J observed at [117] that the low level of general damages awarded for sexual harassment: "… does not reflect the shift in the community's estimation of the value to be placed on these matters. The range has remained unchanged, notwithstanding that the community has generally gained a deeper appreciation of the experience of hurt and humiliation that victims of sexual harassment experience and the value of loss of enjoyment of life occasioned by mental illness or distress caused by such conduct." 1. The Council added that the conduct of members of the Bar, the judiciary and other workplaces has received recent attention in the media. Since the hearing took place, the Hon T F Bathurst, Chief Justice of New South Wales, used the opening address of the new law term on 3 February 2021, to comment on the issue of trust in the judiciary. His Honour acknowledged that "[t]he legal profession has had a significant problem with sexual harassment" and went on to say: "Whilst many victims of bullying and harassment stay silent, the impacts of such behaviour are pronounced. It is an unfortunate reality that women and men leave the law because of sexual harassment and bullying. Individuals also leave because of bias and discrimination that result in unequal opportunities. Both are deeply troubling. Both behaviours disempower, exclude and silence victims from their rightful place in the law." 1. In an article published by the Judicial Commission of New South Wales, Kylie Nomchong SC cited research suggesting that sexual harassment disproportionately affects women in the legal profession: K Nomchong SC, "Sexual harassment and the judiciary"(July 2020) 32(6) Judicial Officers' Bulletin 55. Character 1. Mr Raphael has been the subject of previous proceedings where he was publicly reprimanded: Council of the New South Wales Bar Association v Raphael [2007] NSWADT 201. The Tribunal found that Mr Raphael had engaged in unsatisfactory professional conduct by negotiating a settlement agreement which contained a clause that had the potential to interfere with the proceedings. The complaint did not contain allegations of sexual harassment. The Tribunal's findings in those proceedings are not relevant to the kind of order we should impose. 2. The character references demonstrate that Mr Raphael enjoys a reputation for generosity and kindness. Several references, including those from Ms Luca-Leonard, Mr Gelski, Mr Slater and Ms McCauley state that they believe that Mr Raphael was genuinely attempting to comfort a young woman in distress. However, some referees also mention that Mr Raphael has made inappropriate remarks in the past. Mr Gibson referred to an occasion when Mr Raphael "would try to be funny with a remark that could be regarded as sexist, but the women were not offended and took it in good part." Mr Gibson went on: "David always tries to instil humour into a situation. I do not find all of his jokes or comments funny, especially when he pretends to be chauvinistic. I often groan and roll my eyes. David has been openly chided by his male friends for making statement[s] that are inappropriate. It is always an act and in no way meant to be crude or sexist…" 1. Ms McCauley, a former employee of Mr Raphael, says she has a "special bond" with him and he has never spoken to her inappropriately. She added that: "I have witnessed him, in front of me put his arm around someone and give that person (always it would only be a female) a little kiss on the cheek or on the top of the head with a consoling comment. For example, he would say to that person something like, 'It's OK. I've been doing this for years. If at any time you need my assistance with anything at all, hop on the phone. I'm here to help you darling.'…" 1. Ms McCauley understood Mr Raphael's motivation to be to console these women and offer any assistance he could. 2. Mr Strasser, a friend and professional colleague of Mr Raphael for almost 60 years, described him as "eccentric and old fashioned, with an unusual sense of humour but there is not a mean bone or sinister instinct in him." At pars 7 and 8 of his affidavit he wrote that: "[Mr Raphael's] comment to [Ms X] in paragraph 14 of the Agreed Statement of Facts about a jealous husband is his brand of humour... I have heard his similar attempts at humour, always without any negative or insidious motive. ... His physical contact set out in paragraph 18 of the statement of Agreed Facts is also consistent with his personality..." 1. Mr Slater, a close colleague of Mr Raphael over many years, referred to Mr Raphael's belief that he should "act chivalrously towards women" and that this belief "does not appear to have been diminished by a number of occasions on which women have told him that his chivalrous inclinations are an outdated and Edwardian concept." Conclusion 1. We accept Mr Raphael's evidence, supported by several referees who know him well, that he did not intend to distress, upset, humiliate or embarrass Ms X. He was apparently totally ignorant of the likely effect that an unsolicited act of physical intimacy combined with a comment about her husband being jealous, would have on Ms X. His lack of understanding of the potential impact of his behaviour is of considerable concern. Despite extensive media coverage about sexual harassment in the legal profession and being spoken to by colleagues about remarks he has made, Mr Raphael has only belatedly acknowledged the unacceptable nature of his behaviour. 2. Mr Raphael needs to understand that this kind of conduct is not perceived by the vast majority of women as being comforting, chivalrous or even vaguely humorous. Sexual harassment of this kind has the potential to adversely affect a victim's mental health and to dissuade her from continuing a career in the law. Mr Raphael's conduct justifies a reprimand. Counselling 1. The Tribunal has power to make an order requiring Mr Raphael "to undertake training, education or counselling or be supervised": Uniform Law, s 299(1)(e). Mr Raphael proposed a one hour private counselling session with a specialist nominated by the Council in respect of appropriate ethics and protocol. He would meet the costs of this counselling. Our preliminary view was that this was inadequate. We sought the parties' submissions as to whether we should order that Mr Raphael undertake training, education or counselling of up to eight hours duration. 2. In his affidavit Mr Raphael stated that he has reflected on his behaviour and would ensure that he did not repeat those aspects of his conduct the subject of these proceedings. He submitted that training, education or counselling of more than eight hours duration is unnecessary to give effect to the protective function of disciplinary orders. The deterrence function is already served, to a large extent, by the fact that the decision will be published and will no doubt receive media attention. According to Mr Raphael, a counsellor would be best placed to assess whether, after two sessions of one hour each, Mr Raphael appreciates the inappropriate nature of his conduct, its effects, and how his behaviour needs to change. 3. The Council highlighted parts of Mr Raphael's own affidavit and extracts from the character evidence summarised above. This evidence demonstrates that, until recently, Mr Raphael had virtually no appreciation of the seriousness of his behaviour or its potential impact. Several of his supporters have heard or observed him engage in similar conduct. In earlier correspondence, he characterised his conduct as the kind of thing he has done throughout his lifetime. The Council proposed that Mr Raphael undergo, at his own cost, a combination of education and counselling of no less than eight hours duration, the nature of which is to be determined by the Council, and which is to be completed within a nominated time frame. 4. We accept that Mr Raphael intends to change his behaviour. Such a change is highly unlikely to occur following an hour or two of counselling. We consider a minimum of eight hours to be necessary for there to be a reasonable likelihood that Mr Raphael will change what appears to be the habits of a lifetime. 5. We will leave the details of the education and counselling to the Council but make the following observations: * The Council should identify a suitable person or persons to provide the education and counselling. Mr Raphael has suggested Dr Chris Lennings, a clinical psychologist. * Whoever is selected should have experience and expertise in behavioural change. * The person or persons selected should be given any material the Council thinks relevant including a copy of this decision, Mr Raphael's correspondence with the Council, his affidavit and the character references. 1. The length of each session and the period during which the education and counselling should be delivered, should be determined in consultation with the person or persons selected. Costs 1. The parties submitted that if they cannot reach agreement on costs, the Tribunal should determine any application 'on the papers': Civil and Administrative Tribunal Act 2013 (NSW), s 50. We agree with that proposal. Orders 1. Complaints 1, 3, 4 and 5 are withdrawn and dismissed. 2. The Respondent is guilty of unsatisfactory professional conduct as alleged in Complaint 2. 3. The Respondent is reprimanded. 4. The Respondent is to undergo, at his own cost, a combination of education and counselling for at least eight hours, the details of which are to be determined by the Applicant. 5. Any application for costs will be determined 'on the papers' following submissions from both parties. ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 April 2021