Civil and Administrative Tribunal New South Wales Medium Neutral Citation: NSW Legal Services Commissioner v Cullen [2021] NSWCATOD 130 Hearing dates: 1 July 2021 Date of orders: 31 August 2021 Decision date: 31 August 2021 Jurisdiction: Occupational Division Before: J S Currie, Senior Member M Riordan, Senior Member E Hayes, General Member Decision: (1) The Respondent is guilty of professional misconduct. (2) The Respondent be reprimanded. (3) The Respondent is to pay a fine of $2,500. (4) The Respondent is to pay the costs of the Applicant, as agreed or taxed. (5) Should the Respondent apply for a practising certificate from either the Law Society of New South Wales or any other designated local regulatory authority (as that term is defined in the Legal Profession Uniform Law), she must draw these proceedings to the attention of the Law Society of New South Wales or the other designated local regulatory authority, as the case may be. Catchwords: PROFESSIONS AND TRADES -legal practitioner -disciplinary action- Instrument of Consent, agreed facts- false attestation- professional misconduct – appropriateness of proposed orders including fine- inappropriateness of determining quantum of fine by "averaging" fines in reported cases. PRACTICE AND PROCEDURE- matter set down for determination without a hearing ("on the papers") - where Instrument of Consent made – where hearing may nevertheless be required- public interest- adequacy of orders stated in Instrument of Consent. Legislation Cited: Civil and Administrative Tribunal Act 2013; s 50(2) Legal Profession Act 2004 (NSW) s 564 (10) Legal Profession Uniform Law (NSW); ss 6, 261, 262, 296, 297,300, 302 Legal Profession Uniform Law Application Act 2014; ss 138,144 Cases Cited: Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 97 Council of the Law Society of New South Wales v Fisher [2021] NSWCATOD 73 Council of the Law Society of NSW v Low [2020] NSWCATOD 142 Council of the Law Society of NSW v Mahony [2017] NSWCATOD 1 Council of the New South Wales Bar Association v Hanrahan [2018] NSWCATOD 44 Fraser v The Council of the Law Society of New South Wales [1992] NSWCA 72 In re a Solicitor; Ex parte the Law Society [1912] 1 KB 302. Kennedy v Council of Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 Law Society of NSW v Dubler [2018] NSWCATOD 79 Law Society of NSW v English [2011] NSW ADT 39 Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 Law Society of New South Wales v Walsh [1997] NSWCA 185 Legal Services Commissioner v Livers [2017] NSWCATOD 117 Legal Services Commissioner v Maddock [2021] NSWCATOD 46 New South Wales Bar Association v Butland [2009] NSWADT 177 Prothonotary of the Supreme Court of NSW v Chapman (Unreported, Court of Appeal NSW, 14 December 1992) The Prothonotary of the Supreme Court of NSW v Demetrios [2015] NSWCA 258 Texts Cited: Nil Category: Principal judgment Parties: NSW Legal Services Commissioner (Applicant) Jenna Cullen (Respondent) Representation: Counsel: S Love (Respondent) Solicitors: Office of the Legal Services Commissioner(Applicant) Complete Law (Respondent) File Number(s): 2020/00316181 Publication restriction: Nil reasons Overview of the matter and our decision 1. Ms Jenna Cullen ("Ms Cullen" or "the Respondent") was admitted to practice on 9 December 2016. She held a practising certificate which entitled her to be an employed solicitor. On 30 June 2021 her practising certificate expired and was not renewed by her. At all relevant times she was an employed solicitor in a private practice conducted at Penrith ("the law practice") and, as we understand it, her work was mainly in conveyancing matters. It appears that she normally worked under the direct supervision of the principal of the law practice. 2. On or about 22 February 2017, Ms Cullen made a declaration ("the attestation declaration") which formed part of an Office of State Revenue ("OSR") Purchaser/Transferee Declaration for a client of the law practice who we shall refer to as "Mr TC". We shall refer to the OSR Purchaser/Transferee Declaration completed for Mr TC as "the OSR Declaration". The attestation declaration served to confirm that the declarant had witnessed the making of a statutory declaration by the purchaser or transferee of the land for which duty was to be assessed. 3. The making and witnessing of that statutory declaration is central to this case. The form of that declaration is headed "Part G Declaration", so we shall use that term to refer to the statutory declaration as made by Mr TC. 4. As is clear from the privacy statement in the OSR Declaration, the accurate completion of that document, including of course the Part G Declaration, is an important element in the OSR's determination of stamp duty liability arising from a transfer of land. The OSR is clearly entitled to and will rely on the accuracy of the information in the OSR Declaration and including the due completion of the Part G Declaration, in assessing stamp duty liability. 5. By making the attestation declaration, Ms Cullen certified the following matters concerning the person who had made the Part G Declaration: 1. that she had seen the face of the person; and 2. that she had known the person for at least 12 months. 1. Ms Cullen's attestation declaration was false. 2. As is set out more fully below, Ms Cullen subsequently conceded that, although she "had no independent recollection" of doing so she "must have" falsely witnessed the purported signature of Mr TC on the OSR Declaration, because: 1. at the time of its execution she had not seen the face of Mr TC, the purported declarant; 2. she was not present when Mr TC had purportedly executed the Part G Declaration; and 3. she had not identified Mr TC as the person purportedly making the Part G Declaration by having known him for at least 12 months. 1. Moreover, Mr TC, by his affidavit made on 9 June 2021, which was tendered without objection and accepted into evidence, asserted that he did not sign the Part G Declaration and never returned it to the law practice, that he has never met Ms Cullen in person, that no appointment was ever made by Ms Cullen to attend any place on any date to sign the Part G Declaration in person and that he has never personally attended the law practice's offices at Penrith. Mr TC's evidence in that regard was not disputed by Ms Cullen. He was not asked to make himself available for cross-examination on his affidavit. 2. The Commissioner conducted an investigation, made initial findings and, on 5 November 2020 commenced proceedings in this Tribunal by lodging his Application. As described in more detail below, the parties entered into an instrument of consent ("the Instrument of Consent") under section 144 of the Application Act and an Agreed Statement of Facts under section 144 of the Legal Profession Uniform Law Application Act 2014 (the "Application Act"). Although the matter was initially set down for determination without hearing (that is, "on the papers"), for the reasons set out below, we exercised our power under s 144 (10) of the Application Act to require that it be determined at a hearing. 3. It fell to us to determine: 1. whether the finding of professional misconduct, which had been proposed in the Instrument of Consent, was appropriate; 2. whether any alternative or additional liability findings should be made; 3. what (if any) disciplinary orders should be made and in particular whether the orders proposed in the Instrument of Consent ( a reprimand, a fine of $2,500 and a costs order) were appropriate; and in particular whether the quantum of the proposed fine was appropriate. 1. We decided that: 1. a finding of professional misconduct (as set out in paragraph 1 of the Instrument of Consent) was appropriate, 2. that no other liability findings should be made, 3. the disciplinary orders in paragraphs 2 and 3 of the Instrument of Consent (which provided for a reprimand a fine) and the proposed quantum of fine ($2,500) were, in the circumstances of the case, appropriate, but 4. the costs order should be amended to allow for additional costs having been incurred in respect of the hearing; and 5. an order should be made requiring Ms Cullen to draw these proceedings to the attention of the Law Society of New South Wales or any other designated local regulatory authority in Australia if, in the future, she applies for a practising certificate from such a body. 1. These are our reasons for those decisions. The Application and Grounds 1. The Commissioner's Application sought orders that Ms Cullen had engaged in professional misconduct and in the alternative that she had engaged in unsatisfactory professional conduct and that she should be reprimanded, ordered to pay a fine of $2500 and to pay the Commissioner's costs and such further or other orders as the Tribunal deems fit. 2. There were two stated grounds for the Application ("the Grounds" and each of them a "Ground"). In summary: 1. Ground 1 was that Ms Cullen had falsely witnessed the purported signature of her client Mr TC on the OSR Declaration. 2. Ground 2 was, in essence, that Ms Cullen had falsely attested that she was present when the purported declarant executed the statutory declaration (that is, the Part G Declaration) and falsely attested the matters set out above at [5] (1) and (2) above. 1. Although it is unnecessary to set out all the particulars pleaded, Particular 1. 8 was to the effect that on or about 22 February 2017 Ms Cullen signed as witness to the purported signature of Mr TC on the OSR Declaration when Mr TC was not present and that by falsely witnessing his purported signature she attested: "(i) That she had seen the face of (Mr TC), the purported Declarant. (ii) That she was present when (Mr TC) the purported declarant, executed the OSR ..Declaration. (iii) That she had identified (Mr TC) as the person making the (OSR) Declaration by having known him for at least 12 months." Jurisdiction 1. The Law Society's application relates to a complaint made under the Uniform Law. We are satisfied that the Tribunal has jurisdiction to determine the application: Uniform Law, ss 300 and 302. 2. Ms Cullen was at relevant times a lawyer within the meaning of Ch 5 of the Uniform Law, she was at those times an Australian lawyer, admitted to the legal profession in New South Wales, and the conduct took place wholly within Australia: Uniform Law, ss 6, 261(c), 262(1)(a). Chapter 5 extends to former Australian legal practitioners such as the Respondent, who held a practising certificate at the time of the alleged conduct practising certificate: Uniform Law, ss 261(d), 262(4)(b); Council of the Law Society of New South Wales v Braham [2015] NSWCATOD 97 at [26]. The Instrument of Consent and the Agreed Facts 1. As noted above, the parties filed the Instrument of Consent and, as required by s144(5) of that Act, they signed and filed an Agreed Statement of Facts. For convenience we shall refer to that as the "Agreed Statement of Facts" and the facts agreed to in it as the "Agreed Facts". 2. The Instrument of Consent, omitting formal parts, was in the following terms: "By consent, the Tribunal makes the following findings and orders: 1.The Respondent had engaged in professional misconduct in relation to Grounds 1 and 2; 2. The Respondent be reprimanded; 3. The Respondent pay a fine in the sum of $2500 to be paid within 60 days of the Tribunal's decision. The Respondent pay the Applicant's costs as agreed in the sum of $3000.00. 1. For convenience of reference the Agreed Facts are set out in Appendix A to these reasons and we shall refer to them in more detail later. By the Statement of Agreed Facts, Ms Cullen accepted and agreed to all the Particulars for Grounds 1 and 2, but, at paragraph 9, said that she "must have" engaged in the conduct described , "..but submits she has no independent recollection." Uncontested Facts 1. The Agreed Facts are uncontested. The facts we have summarised at [1]- [3] and [5]- [9] above also appear to be uncontested. The evidence 1. We considered all the documentary material provided by each of the parties. 2. In the case of the Commissioner that consisted of the Application (incorporating the Ground and particulars), the Instrument of Consent, the Agreed Statement of Facts, the affidavit of John McKenzie made on 4 November 2020, together with numerous documents comprising Exhibit "JM-1" (that affidavit with annexures having been admitted as Exhibit AI), the affidavit of Mr TC made on 9 June 2021 (admitted as Exhibit A2), written submissions 22 December 2021, further written submissions dated 14 May 2021 and final written submissions dated 17 June 2021, together with a copy of procedural Consent Orders and procedural correspondence. 3. In the case of Ms Cullen the documentary material consisted of a Reply to the Application, written submissions dated 29 February 2021, a character reference from Mr Daniel McKinnon, Solicitor dated 28 January 2020. 4. At the hearing, we heard sworn evidence from Ms Cullen, on which she was cross-examined. She also answered questions put to her by Members of the Tribunal Panel. We also heard submissions from Mr Matalani, Solicitor on behalf of Commissioner and by Ms Love of Counsel on behalf Ms Cullen. Preliminary issue: the need for a hearing to consider appropriate orders 1. The matter was initially listed for determination without a hearing; that is, "on the papers". We were provided with the relevant documentation, including of course the Instrument of Consent and the Agreed Statement of Facts. 2. Sub-section 144 (10) of the Application Act is in the following terms: In deciding whether to make orders pursuant to an instrument of consent, the Tribunal may make such inquiries of the parties as it thinks fit and may, despite any such consent, conduct or complete a hearing in relation to the complaint if it considers it to be in the public interest to do so. 1. Having considered the documentary material provided to us, we decided to exercise the power available under s 144 (10) to conduct a hearing. We considered that it was in the public interest to do this. 2. In reaching that decision, we relied on the Administrative Decisions Tribunal's approach in New South Wales Bar Association v Butland [2009] NSWADT 177 at [29] ("Butland"), where the Tribunal observed that although the parties' consents to a particular position deserve significant weight, the Tribunal should not act, nor should it be seen to act, as merely a "rubber stamp" for agreed positions and it has a discretion whether or not to make orders consented to in an instrument of consent. The decision in Butland was based on the on legislative regime under the Legal Profession Act 2004 (NSW), which has been replaced, although s 564 (10) of that Act was in similar terms to s 144 (10) of the Application Act. 3. Significantly, the view of the Tribunal in Butland has more recently been considered and followed in the context of an instrument of consent under s 144 in Council of the New South Wales Bar Association v Hanrahan [2018] NSWCATOD 44 at [83] and Council of the Law Society of NSW v Low [2020] NSWCATOD 142 at [68]- [69]. 4. We considered that conducting a hearing of the matter was in the public interest because: 1. members of the public, including legal practitioners and their clients, have an interest in understanding the standards of probity and care expected of legal practitioners when attesting the execution of a public document (including in particular a document which is integral to the assessment of State revenue) and in being made aware of and understanding the orders which may result from a breach of those standards; 2. the decisions of this Division of the Tribunal constitute a principal source of that public understanding; and 3. the development of the law as to those professional standards and the public understanding of them is likely to be enhanced by decisions which are arrived at after a formal hearing where, as here, the Tribunal seeks clarification of the position of the parties and seeks to obtain the practitioner's own views, in open forum. 1. We note that the result in Council of the Law Society of New South Wales v Fisher [2021] NSWCATOD 73 ("Fisher"), a matter which was determined after we had required a hearing in the present matter, was consistent with our decision to require a hearing, at least in relation to a possible finding of professional misconduct or unsatisfactory professional conduct. 2. In Fisher the Tribunal Panel, on which the President, Armstrong J presided, discussed in detail the issue of whether, notwithstanding the apparent operation of s50(2) of the NCAT Act (which entitles the Tribunal to make an order dispensing with a hearing, essentially if satisfied that the issues in the matter can be adequately determined "on the papers"), a hearing may nevertheless be required in proceedings to determine whether the respondent had engaged in professional misconduct or unsatisfactory professional conduct. Those proceedings, usually referred to as "the liability stage" or "stage one" proceedings, often occur separately and as a prelude to proceedings to determine the nature of any disciplinary orders to be made; those proceedings being usually referred to as the "penalty stage" or "stage two" proceedings. 3. That issue arose by reference to s76 of the NCAT Act, s301(2) of the Uniform Law and s138 of the Application Act. For convenience of reference, those provisions are set out in Appendix 2 to these reasons. 4. In Fisher, the Tribunal concluded, at [47]- [49] as follows: "[47] In sum, a harmonious reading of s 301 (2) with Part 11 and the NCAT Act would seem to result in the following- the determination of stage one (i.e. liability) proceedings requires a hearing with parties present… [48] Even if s 301 (2) of the Uniform Law can be construed to encompass an "on the papers" procedure under s 50 (2) of the NCAT Act, it may be that s 301 (2) is capable of operation only in relation to stage two (i.e. penalty) proceedings and cost determinations. A more expansive reading of s 301 (2) (i.e. a construction which encompasses an "on the papers" determination for stage one proceedings) would appear to be inconsistent with s 138 of the Application Act, which contains specific and directive language (that is, the Tribunal "is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal"). [49]… We tend to the view that (the) s 50 (2) "on the papers" procedure is capable of continued operation in relation to those parts of disciplinary proceedings under the Uniform Law that concern penalty (in the event of adverse disciplinary findings at an earlier stage), and the awarding of costs. (Emphasis added) 1. The proceedings referred to in Fisher at [49] above are of course the "penalty stage" or "stage two" proceedings. In the present case, as often occurs, the "stage one" and stage two" proceedings were conducted in the one hearing. Issues for determination 1. It followed that as a result of the hearing and our consideration of the evidence and submissions, the real issues to be determined by us were: 1. whether the finding of professional misconduct, which had been proposed in the Instrument of Consent, was appropriate; 2. whether any alternative or additional liability findings should be made; 3. what (if any) disciplinary orders should be made and in particular whether the orders proposed in the Instrument of Consent ( a reprimand, a fine of $2,500 and a costs order in an agreed amount) were appropriate; and in particular whether the quantum of the proposed fine was appropriate. CONSIDERATION Professional misconduct The Instrument of Consent and submissions at the hearing 1. By the Instrument of Consent and on the basis of the Agreed Facts Ms Cullen conceded that her conduct amounted to professional misconduct. 2. At the hearing, Ms Love of Counsel on her behalf urged us to take into account firstly, that at the time of the conduct under consideration Ms Cullen was within the early stages of professional practice and was "still learning" ; secondly that the conduct can properly be seen as constituting an isolated and unrepeated event and thirdly that Ms Cullen has expressed genuine acknowledgment as to the fact that her conduct fell below the standard expected and genuine contrition for it. But, subject to what we say at [41] below, we did not understand Ms Love, at least initially, to dispute the appropriateness of a finding of professional misconduct. 3. Mr Matalani confirmed that the Commissioner's position was that professional misconduct was admitted and that it remained appropriate for us to find that the conduct the subject of the proceedings constituted professional misconduct. 4. In closing submissions, Ms Love contended on behalf of Ms Cullen that, notwithstanding the existence of an Instrument of Consent, by operation of s 302 (3) of the Uniform Law it remained open to the Tribunal to make a finding of unsatisfactory professional conduct. We understood her contention to be that such a finding would be appropriate here and might be considered as in substitution for a finding of professional misconduct. Subsection 302 (3) is in the following terms: (3) The designated Tribunal may find a person guilty of unsatisfactory professional conduct even though the complaint or charge alleged professional misconduct. Findings of fact 1. At the hearing the Agreed Statement of Facts was relied upon by the Commissioner as having established professional misconduct. That was unchallenged by Ms Cullen and neither party challenged the making or validity of the Instrument of Consent, by which Ms Cullen consented to a finding of professional misconduct. 2. We found that each of the facts set out in the Agreed Statement of Facts was established. The Law 1. Professional misconduct is defined inclusively in section 297 of the Uniform Law to include: 1. unsatisfactory professional conduct which involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and 2. conduct of a lawyer that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice. 1. Unsatisfactory professional conduct is defined by section 296 of the Uniform Law to include conduct of a lawyer occurring in connection with the practice of the law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 2. As confirmed in Legal Services Commissioner v Livers [2017] NSWCATOD 117 at [138], it is accepted that Parliament, in formulating a statutory definition of professional misconduct, nevertheless intended to preserve the common law meaning of the term. 3. The Tribunal in that case and many others has confirmed that at common law professional misconduct is conduct that would be reasonably regarded as disgraceful or dishonourable by professional colleagues of good repute and competency. That is the test, commonly referred to as "the Allinson Test", derived from observations in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at [758]. Although that case involved a member of the medical profession, the Allinson test was extended and applied to the conduct of solicitors in In re a Solicitor; Ex parte Law Society [1912] 1 KB 302. 4. In Kennedy v Council of Incorporated Law Institute of New South Wales (1939) 13 ALJ 563 at 563, Rich J observed that professional misconduct involved conduct which amounted to: " ..a grave impropriety affecting (the practitioner's) professionalism and character and was indicative of a failure either to understand or to practice the precepts of honesty or fair dealing in relation to the courts, his clients or the public. The particular transaction the subject of the charge must be judged as a whole and in the conclusion whether it betokens unfitness to be held out by the public as a member of the profession in whom confidence could be placed, or on the other hand, although a lapse from propriety, was not inconsistent with general professional fitness and habitual adherence to moral standards, (must) be reached by a general survey of the whole transaction." 1. More recently, Meagher JA of the NSW Court of Appeal has set out the relevant principles with reference to, but not restricted to, trust account obligations in The Prothonotary of the Supreme Court of NSW v Demetrios [2015] NSWCA 258 where he said: "Legal practitioners are expected to act and must act with scrupulous honesty when discharging their obligations generally and specifically with respect to the receipt and payment of monies on behalf of clients. There is an unqualified expectation that they will adhere to those standards." 1. In Bechara v Legal Services Commissioner (2010) 79 NSWLR 763; [2010] NSWCA 369 at [44] the Court of Appeal noted that: "…there are no fixed categories of professional misconduct. Much depends on whether the conduct falls outside the generally accepted standard[s] of common decency and common fairness." 1. Most pertinently, in Council of the Law Society of NSW v Walsh [2018] NSWCATOD 196 the Tribunal confirmed that a significant responsibility reposes on any person who is called upon to witness a document and that that responsibility is the more significant where the witness is a legal practitioner. The Tribunal said, at [9]- [10] that that responsibility arises because in witnessing the document: [9] .. that person represents to the world that he or she saw the person whose signature is being witnessed actually sign the document. This responsibility is significantly enhanced in circumstances where the document creates rights and obligations recognised by law... [10] Legal practitioners are privileged to practice in an honourable profession and must act honourably at all times. Falsely and inaccurately representing that they have witnessed a signature on a document … is dishonourable conduct unbefitting a legal practitioner. It must be dealt with accordingly. We have no hesitation in finding the respondent guilty of professional misconduct. 1. The Commissioner's written submissions referred to the Court of Appeal's decision in Fraser v The Council of the Law Society of New South Wales [1992] NSWCA 72 where the Court upheld a finding that the solicitor, in falsely certifying that he had explained mortgage documents to mortgagors, was guilty of professional misconduct. The Commissioner also referred in those submissions to many other cases involving false attestations of signatures and false certification in each of which the Tribunal made a finding of professional misconduct, including the more recent cases of Council of the Law Society of NSW v Mahony [2017] NSWCATOD 1; Law Society of NSW v Dubler [2018] NSWCATOD 79; and Legal Services Commissioner v Maddock [2021] NSWCATOD 46 ("Maddock"). Application of the law to the facts 1. On the basis of the established law and its application to the facts of this case we found that Ms Cullen's conduct in purporting to have attested the making of the Part G Declaration by Mr TC: 1. amounted to unsatisfactory professional conduct, because it fell substantially short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer; and 2. involved a serious and substantial failure to meet the reasonable standards of competence and diligence; 3. was therefore statutory professional misconduct under s 297 (1) (a) for the Uniform Law; and 4. was conduct that would be reasonably regarded as disgraceful or dishonourable by Ms Cullen's professional colleagues of good repute and competency and is therefore common law professional misconduct under the Allinson Test. We reached that conclusion on the basis of the extensive authorities cited by the Commissioner, particularly the more recent decisions noted at [52] above. 1. For completeness we confirm that we rejected Ms Love's contention based on s 302(3) of the Uniform Law, insofar as it suggested that on the basis of the facts found here a finding of unsatisfactory conduct only should be made. Any alternative or additional liability findings? 1. There appeared to be no need for any alternative or additional liability findings and we made none. Reprimand and costs orders 1. As has been noted in Law Society of NSW v English [2011] NSWADT 39 ("English") and in many other cases, misconduct of a solicitor should be "marked out" to the profession as a whole and the public as falling short of the standard of behaviour expected by legal practitioners. In our view the reprimand will also appropriately mark out our disapprobation of the conduct. 2. In Prothonotary of the Supreme Court of NSW v Chapman (Unreported, Court of Appeal NSW, 14 December 1992)("Chapman"), Cripps JA recognized that: "..(a) reprimand has the effect of identifying professional standards, the establishment and maintenance of which protects the public." 1. The Instrument of Consent included a reprimand order and there was no submission to the contrary on Ms Cullen's behalf at the hearing. 2. We believe it to be important for the conduct here, involving false attestation, be appropriately "marked out" in the manner suggested in English and that the imposition of a reprimand here may well help to identify proper professional standards in the way suggested in Chapman. even though it was committed by a relatively inexperienced solicitor. 3. It follows that the orders should include a reprimand. The order imposing a fine and the appropriate amount of fine The Instrument of Consent and submissions at the hearing 1. The Instrument of Consent reflected the parties' acceptance of the imposition of a finding order and that a fine of $2500 was appropriate. 2. Our wish to hear further from the parties as to the appropriateness of a fine and particularly as to its amount in the circumstances of the case was a significant element in our decision that the matter proceed to hearing. 3. The Commissioner's written submissions, whilst making useful observations as to the nature of the orders proposed in the Instrument of Consent, did not address specifically the issue of whether a fine amount of $2500 was appropriate, although his submissions of 22 December 2020 at [11] usefully summarised the findings and orders in 10 fairly recent cases which included consideration as to quantum of fine. At the hearing, Mr Matalani for the Commissioner relied upon those cases to justify a fine of $2500 as reflected in the Instrument of Consent. 4. We understood Mr Matalani initially to contend that calculation of an appropriate fine amount might be undertaken by a form of "averaging" of the fines imposed in previous cases, with particular reference to the 10 cases cited in the Commissioner's written submissions, but later to agree with our proposition that any mere mathematical "averaging" of fines runs the risk of ignoring important factual or circumstantial distinctions between reported decisions. In our view, that caveat is an important one and there are substantial dangers in a mere mathematical averaging approach. 5. Ms Cullen's legal representatives did not address the issue of quantum other than, as we understood it, to support the making of the orders in the Instrument of Consent including a fine of $2,500. The Law 1. As was recognized by Beazley JA (as she then was) of the Court of Appeal in Law Society of New South Wales v Walsh [1997] NSWCA 185 at 40 ("Walsh"), the purpose of a fine is to mark the disapproval by the Tribunal of the practitioner's conduct and the tribunal is not exercising a jurisdiction which is aimed at punishing the practitioner but which rather seeks to protect the public and that extends to protecting the public from similar defaults by other practitioners. As Her Honour went on to say: "Thus, it is relevant to take into account the effect the order will have upon the understanding in the profession and amongst the public of the standard of behaviour required of solicitors." 1. That must involve an assurance to the public that lapses from the standard of conduct required of legal practitioners will not be passed over lightly but will be dealt with appropriately: Law Society of New South Wales v Foreman (1994) 34 NSWLR 408 at 470 ("Foreman") 2. In this way, the quantum of any fine must appropriately "mark out" to the profession and, equally importantly, to the general public of New South Wales the seriousness with which this Tribunal regards the relevant practitioner's conduct. Application of the law in this case 1. In our view, a fine is appropriate in this case. 2. Moreover, given the fundamental importance of a solicitor's obligation to attest the due execution of any document or instrument in a thorough, accurate and truthful manner and the possible adverse consequences of a breach of that obligation (such as prejudice or damage to a client, or to another party including a revenue authority, as in this case), a breach of the obligation will not be sufficiently marked out by the imposition of a fine which might be perceived publicly as minimal or nominal. 3. If a fine does not adequately and properly mark out the seriousness of the conduct, the Tribunal will have failed its responsibility to the public and the profession as explained in Walsh and Foreman. 4. That being so, conduct of the type which has been found to have occurred in this case might well be expected to attract a fine well in excess of the $2500 contemplated in the Instrument of Consent. 5. However, in determining the quantum of the fine which is appropriate here, we took into account the following particular circumstances: 1. the relative inexperience of Ms Cullen at the time of the conduct. It was clear that at that time she was newly admitted to practice and it was not made clear to us that at the time of her conduct she had had any substantial training in relevant aspects of conveyancing practice and ethical obligations (although some evidence was produced as to the training provided to her in those matters after the conduct had occurred); 2. the fact that the conduct seems to reflect an isolated incident and not a continuing course of conduct; 3. the extent of Ms Cullen's participation and cooperation in the investigation of the matter by officers of the Commissioner; 4. the fact that Ms Cullen had not renewed her practising certificate which expired on 30 June 2021 and has indicated that she no longer wishes to pursue a career as a solicitor and, significantly 5. her expressions of contrition and her acknowledgement as to the nature her conduct and the fact that it fell well below the required professional standard. 1. In relation to the issue of contrition and acknowledgement, we must say that we were disappointed that Ms Cullen did not demonstrate unreserved acknowledgement and contrition for what she had done until at least the closing stages of the investigation of her conduct by the Commissioner's office. Even then we could not perceive from the pleadings or documentation presented on her behalf any evidence of complete and appropriate acknowledgment or contrition. 2. Nevertheless, at the hearing and at our invitation Ms Cullen addressed us and indicated clearly her recognition of the unprofessional nature of her conduct and that she entirely regretted the circumstances surrounding her attestation and the execution of the relevant document. She also provided: 1. a sincere apology for the conduct, 2. a brief account of the stress and anxiety she experienced as a result of it and 3. her understanding and acknowledgement that the conduct was contrary to her professional responsibilities. 1. On the basis of Ms Cullen's statement to us and her demonstration of acknowledgement of the seriousness of the conduct and her sincere contrition we have concluded that a fine of $2500 will adequately and properly mark out the seriousness of her conduct. Costs order 1. It is appropriate that Ms Cullen be ordered to pay the costs of the Commissioner. However the Instrument of Consent fixes the costs at $3000. While that presumably covered costs to the date of execution by the parties of the Instrument of Consent, further costs have been properly incurred by the Commissioner, particularly as a result of our decision to conduct a hearing. 2. It must follow that the form of the costs order should be that Ms Cullen pay the costs of the Commissioner agreed or taxed. Other orders? Notification of these proceedings 1. In his closing submissions Mr Matalani on behalf of the Commissioner drew our attention to a further order made in the recent matter of Maddock, the citation of which appears in full at [52] above. In that case the solicitor was found guilty of professional conduct and was reprimanded and fined. Significantly, she had retired from practice prior to the making of those orders. At the request of the Commissioner, the Tribunal ordered to the effect that if the solicitor applied for a practising certificate in the future she was to bring the proceedings to the attention of the Law Society or the Bar Association (being "designated local regulatory authorities") or any interstate regulatory authority from whom a practising certificate might be sought. 2. We believe that such an order is appropriate in circumstances where a respondent solicitor has not renewed their practising certificate, but there is a possibility that they may do so in the future, particularly where the applicant is not the Law Society, which is the designated local regulatory authority for the purpose of the Uniform Law, but rather is the Commissioner. 3. At the hearing Ms Cullen made it clear that she had found alternative employment and had no current intention to continue a career as a practising lawyer. It may be regarded as somewhat regrettable when a young practitioner with limited professional experience decides, on the basis of one failure to meet appropriate professional standards, to discontinue the practice of the law. Nevertheless, that appears to be Ms Cullen's present intention and we respect it. 4. But it may be that she will change her mind and re-apply. If she does so, then we think it only proper that the Law Society, or any other designated local regulatory authority responsible for issuing a new practising certificate to her, be advised by her of these proceedings. 5. No other orders appear necessary. Conclusion 1. It followed that it was appropriate that Orders 1, 2 and 3 in the Instrument of Consent be made, that the costs order in Order 4 be amended as set out at [78] above and that a "notification" order as approved in Maddock be made. We ordered accordingly. Orders 1. The Respondent is guilty of professional misconduct. 2. The Respondent be reprimanded. 3. The Respondent is to pay a fine of $2,500. 4. The Respondent is to pay the costs of the Applicant, as agreed or taxed. 5. Should the Respondent apply for a practising certificate from either the Law Society of New South Wales or any other designated local regulatory authority (as that term is defined in the Legal Profession Uniform Law), she must draw these proceedings to the attention of the Law Society of New South Wales or the other designated local regulatory authority, as the case may be. ********** Appendix A - Statement of Agreed Facts (Note: The names of the clients have been anonymised, consistently with the body of these Reasons). In respect of the following grounds of complaint of JENNA CULLEN ["the Respondent"] engaged in professional misconduct is set out below: GROUNDS FOR APPLICATION (INCLUDING PARTICULARS) Grounds 1. The Respondent falsely witnessed the purported signature of her client, (Mr TC), on a New South Wales Office of State Revenue purchaser/transferee Statutory declaration made under the Duties Act 1997 No 123 NSW. 2. The Respondent, in falsely witnessing the purported signature of Mr (TC) on the New South Wales Office of State Revenue statutory Declaration, tested that: he had seen the face of Mr (TC) the purported Declarant; that she was present when the purported Declarant executed the Statutory Declaration; and that had identified Mr (TC) as the Declarant and as the person making the Statutory Declaration by having known him or at least 12 months. However, Respondent had not seen the face of Mr (TC), the purported Declarant, Respondent was not present when Mr (TC) purportedly executed the statutory Declaration, and Respondent had not in fact identified Mr (TC) as the person purportedly making Statutory Declaration by having known him for at least 12 months. Particulars for Particulars 1 and 2 1.1 At all material times Mr (TC) was a client of the Law Practice (name omitted), where the respondent was employed as a solicitor. 1.2 Mr (TC) and his former partner (Ms RF) were clients of the law Practice since about May 2015 in individual and joint capacity in regard to their conveyancing purchases in relation to other entities associated with Mr (TC) between May 2015 and December 2015. 1.3 On 25 October 2016, the principal and Managing Director of the law practice boat to Mr (TC) and Ms (RF) in regard to their proposed purchase of a property described as.. (the property). 1.4 The contract for the property purchase was exchanged on 15 November 2016. The NSW Office of State Revenue (OSR) acquired a Statutory Declaration be executed by both purchasers, Mr (TC) and Ms (RF). 1.5 Stamp duty in the sum of $35,020.00 was due and payable by 15 February 2017. On 31 January 2017 (2.43 pm), Respondent emailed Ms(RF) and reminded her of the obligation a stamp duty. 1.6 on 22 February 2017, following emails were exchanged: 1. At 12:21 pm, the Respondent sent an email to Ms (RF) and advised her that the OSR required both purchasers of the property to sign the Statutory declaration, and that signatures be witnessed by a lawyer for the Justice of the Peace. 2. At 12:53 pm, Ms (RF) sent an email to the Respondent and provided Mr (TC)'s email address and requested Respondent advise Mr (TC) as to the urgency required of him to attend to the execution of the Statutory Declaration. 3. At 12:57 pm, the Respondent sent an email to Mr (TC), attaching a blank pdf version of the Statutory Declaration and advising him that the OSR required Statutory Declaration form to be executed and that interest would accrue in the event stamp duty remained unpaid. The email requested Mr (TC) to scan the executed Statutory Declaration back to her and advised that the Respondent would fill out the rest of the details on the Statutory declaration. 1.7 Mr (TC) did not return the Statutory Declaration and there is no documentary record of the response from Mr (TC) to the email referred to in particular 1.6(c) above. 1.8 On or about 22 February 2017 Respondent: 1. Signed as witness to the purported signature of Mr (TC) the OSR statutory Declaration and Mr (TC) was not present. 2. By falsely witnessing the purported signature of Mr (TC) attested: 1. That she had seen the face of Mr (TC) the purported Declarant. 2. That she was present when Mr (TC), the purported Declarant, executed the OSR Statutory Declaration. 3. That she had identified Mr (TC) as the person making Statutory Declaration by having known him for at least 12 months. 1.9 Respondent admits that Mr (TC) not return the Statutory Declaration and concedes that she' must have' engaged in the conduct set out in Grounds 1 and 2, as well as particular 1.8 above, but submits that she has no independent recollection. Appendix B- selected RELEVANT STATUTORY PROVISIONS Civil and Administrative Tribunal Act 2013 (NSW) 50 When hearings are required 1. A hearing is required for proceedings in the Tribunal except— 1. in proceedings for the granting of leave for an external or internal appeal, or 2. in connection with the use of any resolution processes in proceedings, or 3. (c) if the Tribunal makes an order under this section dispensing with a hearing, or 4. (d) in such other circumstances as may be prescribed by the procedural rules. 1. The Tribunal may make an order dispensing with a hearing if it is satisfied that the issues for determination can be adequately determined in the absence of the parties by considering any written submissions or any other documents or material lodged with or provided to the Tribunal. Legal Profession Uniform Law (NSW) No 16a 301 Procedure of designated tribunal 1. Proceedings initiated under this Chapter in the designated tribunal are to be dealt with in accordance with the procedures of the designated tribunal. 2. Subject to any procedural requirements, the designated tribunal may determine proceedings without conducting a formal hearing, but is bound by the rules of procedural fairness. Legal Profession Uniform Law Application Act 2014 138 Hearings The Tribunal is to conduct a hearing into each allegation particularised in a disciplinary application made to the Tribunal ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar Amendments 24 September 2021 - [56] of the Reasons under s of s63(1) of the NCAT Act, by reference to the last line of that paragraph, by replacing "his" with "the"; 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: 24 September 2021