Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Council of the New South Wales Bar Association v Waterstreet [2024] NSWCATOD 47 Hearing dates: 26 - 29 July 2022, 1 August 2022, 21 February 2023 and 2 April 2024 Date of orders: 12 April 2024 Decision date: 12 April 2024 Jurisdiction: Occupational Division Before: Cole DCJ H Dixon SC, Senior Member M Bolt, General Member Decision: The respondent has been found guilty of unsatisfactory professional conduct under ss 296 and 298(b) of the Legal Profession Uniform Law (NSW) and of professional misconduct under s 297(1)(a) of the Legal Profession Uniform Law (NSW). Orders: (1) This matter is listed for directions on 19 April 2024 at 9:30am. (2) Stage 2 of the hearing is listed for 12 and 13 August 2024. Catchwords: OCCUPATIONS — Legal practitioners — Barristers — Professional misconduct – Unsatisfactory Professional conduct – sexual harassment – breaches of Rules – transitional provisions regarding Rules Legislation Cited: Anti-Discrimination Act 1977 (NSW) Legal Profession Act 2004 Legal Profession Uniform Conduct (Barristers) Rules 2015 Legal Profession Uniform Law (NSW) Legal Profession Uniform Law Application Act 2014 (NSW) New South Wales Barristers' Rules (2014) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336 Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 Council of the New South Wales Bar Association v EFA (A Pseudonym) [2021] NSWCA 339 Health Care Complaints Commission v Robinson [2022] NSWCA 164 Hughes (T/as Beesley and Hughes Lawyers) v Hill (2020) 382 ALR 231 Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 The Prothonotary of the Supreme Court of New South Wales v Farran [2003] NSWCA 372 Styles v Clayton Utz (No 3) [2011] NSWSC 1452 Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 Xu v Council of the Law Society of New South Wales [2009] NSWCA 430 Category: Principal judgment Parties: Council of the New South Wales Bar Association (Applicant) Charles Waterstreet (Respondent) Representation: Counsel: P Griffin SC / N Evans (Applicant) P Strickland SC / R Withana (Respondent) Solicitors: Hicksons Lawyers (Applicant) Bartier Perry Lawyers (Respondent) File Number(s): 2021/00304647 Publication restriction: An order under s 64 of the Civil and Administrative Tribunal Act 2013 prohibiting the publication or disclosure of the names of specified witnesses and complainants is in force. An order prohibiting the publication of specified medical evidence and Exhibit A12 and A16 are also in force. REASONS FOR DECISION 1. The Council of the New South Wales Bar Association ("the Council") filed an Application for Disciplinary Findings and Orders under the Legal Profession Uniform Law (NSW) ('the Uniform Law') in the Tribunal on 27 October 2021, which was superseded by an amended Application filed on 27 January 2022 ('the Application'). 2. The Application alleges that Mr Waterstreet engaged in unsatisfactory professional conduct and professional misconduct in relation to three complainants. Disciplinary orders are sought pursuant to s 302 of the Uniform Law. This decision deals only with the issue of whether the allegations in the Application have been proven. The question of disciplinary orders will be the subject of a further hearing. 3. The hearing in relation to the allegations took place over 6 days. Oral evidence was given by nine witnesses, and voluminous documentary evidence was tendered. 4. The Council bears the onus of proving the allegations which form the basis for the Application. The standard of proof is proof on the balance of probabilities. Having regard to the nature of the allegations, and bearing in mind the range of possible consequences of adverse findings, only clear and cogent evidence will be capable of meeting the standard of proof required (see Briginshaw v Briginshaw (1938) 60 CLR 336). Where, in this decision, a finding is made as to whether or not a fact has been proven, it should be assumed that the finding has been made on the balance of probabilities on clear and cogent evidence. The Complaint 1. It is agreed that Mr Waterstreet, at all material times, was a lawyer within the meaning of s 261 of the Uniform Law. Mr Waterstreet was admitted to the Roll of Barristers of the Supreme Court of New South Wales, as it was then called, on or about 8 March 1974. He was issued with a practising certificate as a barrister in New South Wales when practising certificates were introduced on 25 May 1988. He held a practising certificate without restrictions from that date until 8 October 2018. From 9 October 2018, he held a practising certificate with discretionary conditions attached. That was his last practising certificate. He does not presently hold a practising certificate as a barrister. 2. The Application is based upon three separate complaints, from three unrelated complainants, on 19 February 2018 (Complaint One, which comprises Ground One and Ground Two), 25 June 2018 (Complaint Two, which comprises Ground Three) and 25 February 2019 (Complaint Three, which comprises Ground Four and Ground Five). The names of the complainants are the subject of non-publication orders, and we will refer to them as C1, C2 and C3. Non-publication orders have also been made with respect to other witnesses. The setting out and numbering of the allegations in the complaint by the Council is unusual, but we have, of course, followed it. Complaint One 1. In September 2014, C1 was a law student at a University in New South Wales. She was 24 years old. She saw an advertisement for a part-time position as a barrister's legal research and administrative assistant at the chambers from which Mr Waterstreet practised at the time. The advertisement described the position as "working with a well-known barrister with 40 years of experience (a former UNSW law lecturer too)". Applicants were asked to email a curriculum vitae and brief cover letter to an existing staff member. It was suggested that a photograph of the applicant be provided. 2. In her affidavit of 22 April 2022, C1 said, at paragraph 6: 6. …I also recall reading the article exhibited at pages 1 to 2 of [C1-2] when I was applying for the role. The advertisement did not explicitly mention who the barrister was, but I knew of Mr Waterstreet from watching the TV show Rake and his column in the Sydney Morning Herald. I remember googling to check what chambers he was in …and I came across the article referred to above. 1. The article referred to was an article from The Daily Telegraph dated 12 April 2014 about Mr Waterstreet's recruitment process (among other things). 2. In his affidavit of 17 March 2022, at paragraph 9, Mr Waterstreet gave an outline of his working history, describing the breadth of his activities, which included the following: 6. At all relevant times my criminal practice involved work as a defence barrister for clients who were charged with, among other things, sexual offences. Some of the briefs I had involved matters of a graphic sexual nature. … 8. In addition to my criminal practice I also practised in other areas of law including Equity and Air Law. 9. During my time as a practising barrister I was actively involved in the arts and I actively supported the arts and artists, appearing for many when they had legal problems. Since 1979, I have been a theatrical and film producer in addition to my practice as a barrister. In 1986 I produced the film 'Howling III – the Marsupials'. The film became a cult classic. In 1990, I produced 'Blood Oath', which starred Bryan Brown, Russell Crowe and Deborah Kara Unger. I also co-produced the stage hit 'Boys Own McBeth'. Along with Richard Roxburgh and Peter Duncan, I am the co-creator of the ABC TV series 'Rake'. I produced Chalk Art Festivals and I provided the voice-over for a documentary about the famous Italian Chalk Art Festival. I co-produced by writing text and collaborated with Matt Grainger in relation to two books of art photography and text, 'Private Bodies' and later 'Public Bodies'. I am also an author. I wrote 'Precious Bodily Fluids: A Larrikin's Memoir', which was first published in 1998. It sold over 100,000 copies and was Australian Book of the Year for the Blind. I also wrote its sequel, 'Repeating the Leaving', published in 2001 which was critically acclaimed. From about 9 August 2009 to about 1 July 2016 I was also a regular columnist for the Sydney Morning Herald where I had a weekly feature article in Extra named 'Waterstreetlife'. From about 25 July 207 to 10 March 2020 I also wrote articles for Penthouse Magazine. I was often invited to attend arts events and give speeches for art organisations, for example the Museum of Contemporary Art. 1. C1 applied for the position advertised and was invited to an interview at the chambers. Following the interview, which took place on 21 September 2014, C1 was offered the position of working with Mr Waterstreet as his "legal researcher and administrative assistant". C1 accepted the position and received an email confirming her employment with Mr Waterstreet. 2. C1 was employed by Mr Waterstreet in that position from 22 September 2014 to about late June 2015. 3. Mr Waterstreet's existing part time legal researcher and administrative assistant, who we will refer to as 'AA', assisted Mr Waterstreet with the recruitment process which resulted in the employment of C1. AA and C1 then both worked for Mr Waterstreet on a part time basis until C1 stopped working for him on 18 June 2015. AA continued working for Mr Waterstreet, and other barristers, for two more years. 4. An affidavit dated 14 June 2022 was provided by AA and tendered in the Council's case. AA also gave oral evidence before us. In her affidavit, AA described her working days with Mr Waterstreet as "unpredictable, unconventional, generally long and sometimes physically taxing. Some long days started at 6am to prepare for court and concluded at 11 pm following court." 5. AA said, in her affidavit: 29. I would describe my working relationship with Mr Waterstreet as mostly positive and intellectually stimulating, albeit challenging to draw boundaries where his personal art and media projects intersected with his legal work side. It was not uncommon for Mr Waterstreet to ask me to help with his film, book, art and personal life matters. I found helping Mr Waterstreet's art and personal life to be very stressful and chaotic. I would usually tell Mr Waterstreet that I did not wish to assist him in those areas and preferred to work on interesting legal cases. … 33. I observed a generally close-knit culture of affection and friendship between the assistants, and with Mr Waterstreet overall, sometimes bordering on oversharing intimate private matters both ways. Mr Waterstreet was very open sharing matters of his private life and often treated his staff like friends and family, rather than adopting the conventional employer-employee dynamic. 34. There appeared a very open reciprocal culture of sharing/oversharing about personal matters at the office, in emails, text messages, and after work during meals and social events. Mr Waterstreet attempted to de-stigmatise topics such as mental health and sexuality. It was encouraged in Mr Waterstreet's chambers to debate and discuss controversial topics. Mr Waterstreet encouraged an environment that allowed everybody to discuss their mental health and sexuality in detail. 35. I did share some personal matters with Mr Waterstreet whilst I worked for him. As mentioned above, it was encouraged. 36. I did hear [C1] speak openly in chambers about her sexuality and her sexual experience on occasion. … 49. I do not recall ever having a conversation with [C1] where she told me about feeling uncomfortable around Mr Waterstreet or anything in relation to sexual harassment. I was surprised to hear that [C1] had made sexual harassment allegations against Mr Waterstreet. I was always under the impression that [C1] and Mr Waterstreet had a good relationship and got along very well. 50. [C1] and I were very close and affectionate with each other and spoke on many topics, including our personal lives, health struggles, studies, sexuality, applying for other jobs and venting about stressors, issues, lecturers at university and individuals at work (including in detail, the various stressors of working with Mr Waterstreet). 51. [C1] and I had common friends at university and made an effort to socialise with each other outside of work, celebrate birthdays in person, edit each other's essays, craft job applications together, and invite each other to social events. … 54 At the time of making this affidavit, I have reviewed my text messages with [C1]. [C1] mostly emphasises that she loved working with Mr Waterstreet but expressed her annoyance at his moodiness, lateness, money issues and the overall chaos of working for Mr Waterstreet. 55. [C1] also expressed that she felt frustrated and devalued by Mr Waterstreet, especially in respect of her unpaid wages, guilt about leaving and having to go to work when it did not suit her. 1. AA indicated that tension between [C1] and Mr Waterstreet in relation to [C1's] unpaid wages peaked in late June/early July 2015. Some payments were made, and tensions were "defused somewhat". AA was a thoughtful, credible and consistent witness. We accept her evidence. 2. Some of the emails which passed between C1 and Mr Waterstreet in 2014 and 2015 were tendered in evidence. The emails referred to below are (with others) exhibits to the affidavit of Andreas Heger dated 26 October 2021 (AH2) or exhibits to C1's affidavit of 22 April 2022 (C1-2). The emails before us do not appear to constitute the entire record of the email exchange between Mr Waterstreet and C1, but they do provide some insight into the circumstances in existence in relation to C1's employment in Mr Waterstreet's chambers and the relationship between C1 and Mr Waterstreet from time to time. 3. On 27 September 2014, four days after she began her employment with Mr Waterstreet, and in response to a stream of consciousness email of slightly under one page from Mr Waterstreet, in which he referred to the all night music video program broadcast by the ABC called 'Rage', C1 wrote: Early morning rage does that to me also Charlie. But seriously, Charlie, I really can't tell you how much I enjoyed last week. It is so rewarding to be using my mind, to be helping the underdog, and to hang out with you. You have such a generosity of spirit, cheakiness and intellect that the hours pass in such a way that it doesn't even feel like work [sic]. Your messy office with its odd collection of individuals already feel like home and family. Ps- why do you get me to type for you, you sneaky dog. 1. On 26 October 2014, just over one month after beginning her employment with Mr Waterstreet, C1 and Mr Waterstreet had an email exchange, which said, in part: 26 October 2014 5:37pm Charles Waterstreet [ie, from Mr Waterstreet to C1] [C1], this sounds corny, but I adore you, your plain but sincere and slightly judgmental, but too forgiving is the wonderdust in my godforsaken life, you and [AA] give me lust for living and I am devoted to making your experiences worthwhile, charles xx [sic] 26 October 2014 at 5:56pm C1 [ie, from C1 to Mr Waterstreet] gorgeous photo, you keep my day light, force me to balance on the tip of my toes to react to whatever comes our way. This week I have lost my balance a little, but I know that I always have you there to catch me when I falter. I wanted to convey to you how much I appreciate and love your honesty and openness, Charles. It is something that I aspire to. [the email then went on to disclose, on a confidential basis, over nearly three A4 pages, a personal situation to do with C1's relationships with various family members]. 1. On 22 December 2014, in response to an email from Mr Waterstreet from New York, C1 wrote the following, in an email: charles! I am so glad that you managed to get to ny! happy writing, and adventures, I expect frequent stream of consciousness emails at odd hours. let me know if there is anything I can do for you this end. so glad that you spent time with cat, it is so restorative to spend time with kindred spirits, chin up captn, and write your book. I have enjoyed and loved these last months in your office, your chambers, we make a great team. see you in feb, love you. xx 1. There is no suggestion that the sign off 'love you' connoted anything more than a friendship. The 'xx' element of the sign off seems to have been a standard intra-chambers protocol. 2. On 1 January 2015, the following email exchange took place between Mr Waterstreet and C1: 4:39am C1 charlie, I hope that your new years was full of adventure and intrigue. I miss seeing you – your cheeky smile, the reassuring tone to your voice, your honesty and magnificent hair. I hope you are getting lots of words to paper, and that you find a stand in [AA]/[C1] to whip you into industry. also check out glass animals, I am digging them at the moment, could be great work music – listen to gooey and black mambo. let me know if there is anything you need doing in sydney. Much love xx [C1]. 734am Charles Waterstreet Dearests, inyc, nothing is clear, nothing is easy, distractions are the rule of my thumb, but my love and gratitude to you both is super clear, may 2015 bring you all the orgasms you deserve and purity of mission and thoughts, I will say, ore when weather per outs, love charles xxx. [sic] 1. In early January 2015, C1's emails periodically mention issues to do with not having been paid. Notwithstanding that, an email from C1 (who was then in East Timor on an internship, having borrowed money from a family member to fund her trip) to Mr Waterstreet dated 1 February 2015 says "I can't wait to hear all about your adventures in new york" and "missing you". 2. On 23 February 2015, C1 sent an email to Mr Waterstreet which said, in part: Having the break over the summer gave me time to reflect on the job. It made me realise that I love the work, but also that sometimes it became too much of a burden on my emotionally [sic]. I care about you so much charlie, I would take it to heart when you were down, and found it hard to distance myself and not take it personally when you were upset about things. So also for personal reasons, I think I really can only do two days a week, just so that I can be a better employee and keep my sanity! 1. It is evident from the emails that Mr Waterstreet was unwell in March and April of 2015. On 20 April 2015 C1 sent him an email which addressed a legal matter and ended as follows: I was so lonely here today at chambers! get better so that I don't need to eat lunch by myself again. 1. From the emails exchanged in mid July 2015, it is evident that there has been a rupture in the relationship between C1 and Mr Waterstreet over the wages issue, and that the rupture took Mr Waterstreet by surprise. He wrote to C1 by email on 16 July 2015 saying, in part: …I really liked you, was shocked at your reaction, came to understand it as my fault through irresponsibility, so you were morally right, but methods were tough, you deliberately wanted to hurt me, so I finally understood? I hope so, you carry resentment like an Olympic champ. 1. Complaint One alleges that Mr Waterstreet engaged in professional misconduct, or, in the alternative, unsatisfactory professional conduct, by sexually harassing C1 during, or in connection with, C1's employment with Mr Waterstreet during the period of employment. Applicable Law 1. As we have said, the Application has been brought under the Uniform Law. 2. The Uniform Law came into operation on 1 July 2015. The Legal Profession Act 2004 was repealed on the same day (see the Legal Profession Uniform Law Application Act 2014 No 16 (NSW) as made). 3. C1's complaint in relation to Mr Waterstreet was made on her behalf to the Office of the Legal Services Commissioner on 19 February 2018. C1's complaint was subsequently referred to the Council. 4. As a result of C1's complaint having been made after the commencement of the Uniform Law, the Uniform Law is the applicable law, notwithstanding that all of the alleged conduct the subject of C1's complaint is alleged to have occurred prior to the Uniform Law coming into operation. The transitional provisions in Schedule 4 of the Uniform Law provide for the continuation of disciplinary complaints and investigations commenced under the Legal Profession Act 2004 (see Schedule 4 clause 26 of the Uniform Law and Taylor v Council of the Law Society of New South Wales [2020] NSWCA 273 at [24]). However, the Uniform Law provides that, where the conduct is alleged to have occurred prior to 1 July 2015, and could have been, but was not, the subject of a complaint under the Legal Profession Act 2004, then the complaint is to be made under the Uniform Law (Uniform Law, Schedule 4, clause 27(1) and (2)). The Uniform Law says, in Schedule 4, clause 27: 27 Complaints and investigations under this Law of prior conduct (1) This clause applies to conduct that— (a) happened or is alleged to have happened before the commencement day; and (b) could have been, but was not, the subject of a complaint (or, if relevant, a request for dispute resolution) under old Chapter 4. (2) A complaint may be made under this Law on or after the commencement day in relation to the conduct, even if the conduct could not be the subject of a complaint under this Law if it had happened on or after the commencement day. (3) An investigation may be commenced under this Law on or after the commencement day in relation to the conduct, so long as the same conduct had not been, or had not commenced to be, investigated before that day under the old legislation. (4) The complaint may be made, or the investigation may be commenced, even if the conduct could not be the subject of a complaint under this Law if it had happened after the commencement day. (5) This Law applies (with the necessary modifications) in relation to the conduct. (6) However, disciplinary action may not be taken against a person under this Law in relation to the conduct if it is more onerous than the disciplinary action that could have been taken against the person under the old legislation in relation to the conduct. (7) This clause does not authorise an investigation to be commenced after the commencement day in relation to the conduct if an investigation of the relevant kind could not have been commenced under the old legislation in relation to the conduct had the old legislation not been repealed. 1. The Uniform Law provides, in Chapter 9, for the making of Legal Profession Uniform Rules (see Uniform Law, s 419). 2. The Uniform Law provides, in s 296: 296 Unsatisfactory professional conduct For the purposes of this Law, unsatisfactory professional conduct includes conduct of a lawyer occurring in connection with the practice of law that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— (a) … (b) conduct consisting of a contravention of the Uniform Rules; … 1. The reference to the Uniform Rules in s 298(b) of the Uniform Law in the context of this matter is a reference to the Legal Profession Uniform Conduct (Barristers) Rules 2015 ('the Uniform Barristers Rules'). 2. The Uniform Barristers Rules 2015 provide, in r 123: 123 Anti-discrimination and harassment (1) A barrister must not in the course of, or in connection with, legal practice or their profession, engage in conduct which constitutes: (a) discrimination, (b) sexual harassment, or (c) bullying. (2) For the purposes of subrule (1), conduct in connection with a barrister's profession includes, but is not limited to: (a) conduct at social functions connected with the bar or the legal profession, and (b) interactions with a person with whom the barrister has, or has had, a professional relationship. 1. Rule 117 of the New South Wales Barristers' Rules 2014 (which were in operation from 6 January 2014 to 1 July 2015) provides that a barrister must not, in the course of practise, engage in conduct which constitutes sexual harassment. 2. Rule 8(c) of the Uniform Barristers Rules 2015 provides: 8 General A barrister must not engage in conduct which is: … (c) likely to diminish public confidence in the legal profession or the administration of justice or otherwise bring the legal profession into disrepute. 1. The New South Wales Barristers Rules 2014 ('the 2014 Rules') contained an identical provision in rule 12(c). 2. In the context of this matter, the relevant provisions of the Uniform Barristers Rules 2015 are, for all practical purposes, the same as the corresponding provisions of the 2014 Rules and are, therefore, no more onerous than those Rules. In these circumstances, it is arguable that the effect of Schedule 4, clause 27 (5)-(7) of the Uniform Law, is that the Uniform Barristers Rules 2015 apply to C1's complaint, despite the fact that the conduct alleged in the complaint pre-dates the Uniform Law (see also Part 5.4, Division 3, and Schedule 4 clauses 2 and 5 of the Uniform Law and the Legal Profession Uniform Law Application Act 2014, Part 2). We acknowledge that there is an argument to the contrary, which was put by the respondent in written submissions on 17 November 2023. Among other things, the respondent submitted that s 27(5) of the Uniform Law should be confined to the Legal Profession Uniform Law (NSW) and should not be read as referring to the rules under that Law. That argument would result in the 2014 Rules applying to C1's complaint. The argument has some force, but we find it difficult to reconcile with clause 27 of Schedule 4, read as a whole. As the outcome of this matter will not be affected by the resolution of the issue, we will not consider it further. Sexual harassment 1. The Uniform Barristers Rules 2015 (see also Rule 119 of the 2014 Rules) define 'sexual harassment as follows: 'Sexual harassment' means sexual harassment as defined under the applicable state, territory or federal anti-discrimination or human rights legislation. 1. At all relevant times, the Anti-Discrimination Act 1977 (NSW), in s 22A has defined "sexual harassment" in the following way: 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. The Applicant has expressly based its case, in so far as it relates to allegations of sexual harassment, on s 22A(b) alone. unwelcome 1. The word "unwelcome" is not defined in the Anti-Discrimination Act 1977. 2. In Vitality Works Australia Pty Ltd v Yelda (No 2) [2021] NSWCA 147 ('Vitality Works'), Bell P and Payne JA (with whom McCallum JA agreed) said, in relation to the word "unwelcome" is s 22A, at [34]: …Whether the conduct is "unwelcome" is a subjective question, judged from the point of view of the person subjected to the conduct…. 1. At [82], Bell P and Payne JA said: We agree with McCallum J in Styles v Clayton Utz (No 3) [2011] NSWSC 1452 at [177] at [181], that "the sexual conduct must be subjectively unwelcome to the complainant" and that "the phrase 'unwelcome conduct' plainly means conduct perceived by the complainant as unwelcome". We also agree with Bromberg J, who held in Ewin v Vergara (No 3) [2013] FCA 1311; (2013) 307 ALR 576, at [27], that "'unwelcome' simply means conduct that is disagreeable to the person to whom it was directed" and that "[t]he requirement that the impugned conduct be unwelcome raises a subjective test" (see further Kraus v Menzie [2012] FCA 3 at [22] per Mansfield J). conduct of a sexual nature 1. Regarding the question of whether conduct constitutes "conduct of a sexual nature" for the purposes of s 22A of the Anti-Discrimination Act 1977, Bell P and Payne JA said, in Vitality Works, at [34]-[35]: 34. …Whether the conduct is "conduct of a sexual nature" is a question of fact, ascertained objectively. 35. The breadth of the conduct amounting to "other unwelcome conduct of a sexual nature" should not be read down or confined by reference to limits or restrictions which do not appear in the statute…. 1. McCallum JA said, in Vitality Works at [125]: 125. …Innuendo, insinuation, implication, overtone, undertone, horseplay, a hint, a wink or a nod; these are all devices capable of being deployed to sexualise conduct in ways that may be unwelcome. The power of implication is well understood in the field of defamation: cf Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186; [2005] HCA 52 at [8]-[12]. In the nature of things, sexual implication is perhaps the most powerful of all. The suggestion that conduct cannot amount to sexual harassment unless it is sexually explicit overlooks the infinite subtlety of human interaction and the historical forces that have shaped the subordinate place of women in the workplace for centuries. The scope of the term "conduct of a sexual nature" in s 22A of the Anti-Discrimination Act is properly construed with an understanding of those matters. other unwelcome conduct of a sexual nature 1. Regarding the phrase "other unwelcome conduct of a sexual nature", Bell P and Payne JA said, in Vitality Works, at [97]-[98]: 97. As to the words of s 22A of the Anti-Discrimination Act, they are clear and sufficient to encompass the present conduct. The phrase "other unwelcome conduct of a sexual nature" is not a term of art but, rather, an ordinary English expression in common usage. It is a term of broad import that should not be narrowly construed. The breadth of the conduct amounting to "other unwelcome conduct of a sexual nature" should not be read down or confined by reference to limits or restrictions which do not appear in the statute. 98. As to the subject matter, scope and purpose of the Anti-Discrimination Act, it cannot seriously be suggested that the subjective intention of the alleged perpetrator has anything to do with proof of the statutory prohibition. If it were otherwise, an important societal norm would rest on the subjective opinions of the putative sexual harasser. In effect, the greater the subjective tolerance of sexually inappropriate conduct on the part of the sexual harasser, the more difficult sexual harassment would be to prove. That conclusion needs only to be stated to be rejected. 1. The point in time at which the conduct must have been subjectively unwelcome to the complainant for the purposes of s 22A of the Anti-Discrimination Act 1977 is the time at which that conduct was experienced by the "other person" referred to in s 22A. There may be incidents in which conduct of a sexual nature is not subjectively perceived as unwelcome by a person in relation to whom that conduct is engaged in ('the other person') at the time that the conduct comes to the other person's attention. Subsequently, after the conduct has ceased (perhaps months or years after), that conduct may come to be thought of by the other person, in retrospect, as unwelcome, on account of a change to the framework within which the other person has come to think about the conduct. In those circumstances, the conduct would not constitute sexual harassment within the meaning of s 22A (see Styles v Clayton Utz (No 3) [2011] NSWSC 1452 at [205]-[206]; Hughes (T/as Beesley and Hughes Lawyers) v Hill (2020) 382 ALR 231; [2020] FCAFC 126 at [23] ('Hughes')). 2. Bell P and Payne JA said, in Vitality Works, at [100]-[101]: 100. …To be clear, "other unwelcome conduct of a sexual nature" includes sexually suggestive "jokes" and comments, including "jokes" and comments containing a double meaning. 101. As to whether as a matter of objective fact particular conduct meets the description of "other unwelcome conduct of a sexual nature", context is everything. The meaning of language changes over time. Language falling within the concept of "other unwelcome conduct of a sexual nature" may change over time. Societal norms, including the common understanding about what is and is not conduct of a sexual nature, change. Analysing decisions from 20 years ago about what was or was not conduct of a sexual nature is fraught with risk. With those caveats in mind, some assistance may be gleaned from previously decided cases. in relation to the other person 1. This phrase does not appear to have been the subject of any judicial consideration. In our view, in context, it means that the unwelcome conduct of a sexual nature must, on an objective view, at least partly, have been directed to, or pertain to, the "other person" referred to in s 22A. Of course, conduct can be directed towards more than one person at a time. 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. Bell P and Payne AJ said, in Vitality Works, of this part of s 22A: 37. The second element of sexual harassment is that a reasonable person, having regard to all the circumstances, would have anticipated that Ms Yelda would be offended, humiliated or intimidated by the proved conduct. This is an objective test. … Consistent with that statement, in relation to a very similar clause in s 28(1) of the Sex Discrimination Act 1986 (Cth), Perram J said, in Hughes, at [25]-[26]: 25. …the objective standard is applied to a new issue – that of whether a reasonable person would have anticipated the possibility that the person harassed would be offended, humiliated or intimidated. 26. In answering this question, the reasonable person is assumed by the provision to have some knowledge of the personal qualities of the person harassed. The extent of the knowledge imputed to the reasonable person is a function of the 'circumstances' which the provision requires be taken into account. Mention has already been made of the nature of the relationship between the harasser and the harassed. It is convenient also to note that the circumstances will include any disability the harassed person is suffering from (subs (1A)(c)) as well as matters such as sex, age, religious belief or sexual orientation (subs (1A)(a)). But the list in subs (1A) is merely inclusive so that other unspecified but relevant circumstances may also be taken into account. The canvas is broad. Complaint One Ground One 1. Complaint One, Ground One, alleges that nine incidents and the assignment of one routine repeated task occurred in the course of C1's employment with Mr Waterstreet, each of which are alleged to constitute sexual harassment. The first and second allegations in Complaint One Ground One 1. The first allegation of sexual harassment is in paragraph 9(i) of the Application: 9(i) On or around 23 September 2014 at approximately 5:30pm, the respondent showed [C1] photographs on his computer depicting a book launch he had attended. The respondent pointed to a woman in one of the photos and had the following exchange with [C1]; The Respondent: This woman and I broke up recently. Isn't she beautiful? C1: Sure. I know that woman, she went to my high school. The Respondent: You had a high school crush on her, didn't you? C1: Yeah, sure. 1. The second allegation of sexual harassment is in paragraph 9(ii) of the application: 9(ii) After the conversation referred to above at (i), and also on or around 23 September 2014, the respondent showed [C1] a book titled "Private Bodies". The respondent showed [C1] the contents of the book, which included naked photographs of himself and the woman referred to at (i) above. 1. In his Reply, Mr Waterstreet responds to the first and second allegations of sexual harassment in the following way: 7. In response to particular (i) and (ii) of Ground One (Amended Application [9(i)] and [9(ii)]) the Respondent: a. recalls having a conversation with [C1] about a girl named "Cat" who [C1] informed the Respondent she went to high school with; b. recalls having a conversation with [C1] about the book "Private Bodies"; c. admits that the book included one photograph of the Respondent partially nude with a woman; d. recalls giving [C1] a signed copy of the book; and e. otherwise does not recall and can not admit the facts alleged in those particulars. 1. The conversations the subject of the first and second allegations took place on 23 September 2014, which was the second day of C1 working with the respondent. 2. In her affidavit of 26 January 2022, C1 said that during her employment with Mr Waterstreet she shared a desk with him, and, from her seat at the desk, she was able to see Mr Waterstreet's desktop computer screen. At paragraph 15 of her affidavit, C1 related the alleged conversation in the same terms set out in the complaint (see [54], above). C1 said that Mr Waterstreet's second question made her feel uncomfortable because "it concerned my sexuality". 3. In her affidavit of 26 January 2022, C1 said: 18. Following the conversation set out at paragraph [15] above, Mr Waterstreet walked over to a box that was on the floor, pulled out a book and walked back over to me with the book. The book was titled "Private Bodies". Mr Waterstreet started going through the book and showing me photos of nude or partially nude people contained within the book. These included nude photos of him and the woman referred to at paragraph [15] above. 19. Mr Waterstreet then used a pen to sign the inside of the book and said words to the effect of, "this is a gift for you on your first day". 1. C1's account of these allegations in her affidavit of 26 January 2022 is the same as the earliest written evidence provided to the Tribunal, which is C1's statutory declaration made on 20 December 2017 (see the exhibit to C1's affidavit of 26 January 2022). C1 agreed, in cross-examination, that her recall of events some two and a half years after their occurrence might not be entirely accurate (see transcript 27 July 2022 p 10 -11). 2. In cross-examination of C1, the following exchange occurred (transcript 27 July 2022 p 16 line 45 to p 18 line 38): Q. You say that on second day of your employment Mr Waterstreet showed you photographs on his computer of a book launch that he had attended. Do you recall what was the nature of those photographs? A. I think my best memory it was the - I forget the name of the book store on Oxford Street in Paddington but I thought it was that place and it was photos of just the crowd and people in the crowd and had a photo of him and Kat in those images. Q. Kat as in short for Kath, is that right? A. Yes. Q. Did you, before he showed you the book, did you and Mr Waterstreet have a discussion about Kat? A. It was this image from the event that started that conversation about Kat. Q. When you say "this image" you mean that's the photographs that you're referring to at paragraph 15? The photographs of the book launch? A. Yes. Q. Because Kat was in that photograph on the computer? A. Yes. Q. You recognised it? A. Yes. Q. You said you knew her from school? A. Yes. Q. You say he was excited about the fact that you had that connection. Is that right? A. Yes. Q. Because he knew her as well? A. Yes. Q. Did you tell him at that stage that you went to high school with Kat? A. Yes. Q. Did you tell him that you had a high-school crush on Kat? A. Yes. Q. That was before he showed you the book? A. Yes. Q. That was the first time he ever mentioned Kat. Is that correct? That was the first time he ever talked about Kat? A. He might have mentioned her before then but that was the first time I realised that's who he was talking about and that I knew her. Q. Did you tell Mr Waterstreet that you had a high-school crush on Kat because you wanted to - what is it? You wanted his approval? A. Yes. I think he's - my memory is that he suggested I had a crush on her and I think I was bit embarrassed by the question and it felt easiest to say yes and I wasn't really sure. I didn't really know what I thought about that question. I just said "Yeah" because that would have - it kind of felt like what would keep the conversation going along in a pleasant way or I'd got the sense that it was a kind of workplace where that was the sort of thing talked about or joked about or - yeah. Q. But didn't you volunteer the information that you had a high-school crush on Kat before he asked you? A. No. My memory is that he suggested it and I said "yes." Q. Your memory may be inaccurate though in that respect? A. Yes. Q. You said that at this stage, this is the second day or so you're work - the atmosphere was such that, I think your evidence was that there was - did you say jokes or - is that what you said just a moment ago? A. Yes. Yeah. Q. As in banter between Mr Waterstreet and other people in the office. Is that what you mean? A. Yes. Q. Friendly banter? A. Yes. Q. People were laughing? A. I don't have a specific memory about those first days of that exactly happening but generally that was the sort of environment we were in, yes. Q. Okay. A. It was quite a - I remember because when I started we were working on a historic sexual abuse matter and it was quite a sombre time as well. I think the complainant suicided during the trial and so it was aborted and I think that was a hard time for everyone but this was a moment of levity, from my memory, amongst all of that. Q. When you say "this was a moment of levity" what's the "this" that you're referring to? A. Mr Waterstreet showing me photos from the event he went to and realising - us mutually realising that connection we had. 1. The following exchange took place in C1's cross-examination with respect to Mr Waterstreet giving C1 the book "Private bodies": Q. I want to suggest that when Charles gave you the book that's been tendered that you did not regard that as unwelcome conduct by him? A. I remember being a mixture of flattered and confused and also grateful for the sense of feeling – yeah, again that sense of like trust and mutual, I don't know – it felt like I was welcomed into the fold, if that makes sense. Q. Included? A. Included, yes. 1. In his affidavit of 17 March 2022, Mr Waterstreet said the following, with respect to Complaint One: 22. In response to paragraphs 15, 18 and 19 of the [C1] Affidavit, I recall that shortly after [C1] commenced in the role, I had a conversation with her about a woman named "Cat" wherein [C1] said words to me to the effect: C1: I went to high school with Cat. I had a high school crush on her. 23. I recall that during this same conversation I had a conversation with [C1] about the book 'Private Bodies' by Matt Granger that was published in or about 2013. Matt Granger is a professional portrait photographer. As I have referred to above I wrote the preface for the book and also the text of the book on each subject's biography and background, which was part of the thesis of the book. The book was so popular that a sequel 'Public Bodies' was later published for which I also wrote the preface and text. The books sold internationally and were acclaimed by artists and the public. There is one photograph of me in the Private Bodies book with the woman named 'Cat'. In the photograph I am partially nude (in the sense that my body is partially obscured by Cat). I do not recall saying 'you had a high school crush on her', rather my recollection is that [C1] volunteered this information. I cannot recall what prompted the initial conversation about Cat. There may have been a photograph of Cat in my chambers or on my computer screen or I may have shown her the book, Private Bodies. I recall feeling surprised that [C1] told me that she had a high school crush on Cate but it was a nice surprise because she was frank and I considered that she must have felt safe enough to disclose this personal information to me. [C1] later disclosed other intimate details to me about herself…and I considered that we had a degree of friendliness in sharing such personal details which was rare for people that I worked with in chambers. 24. In response to paragraph 16 of the [C1] Affidavit I say that [C1] shared with me personal details of her private life, as I have referred to above. Not only did I see no uncomfortableness, I felt that she opened up to me and volunteered this information. 1. We bear in mind that the interactions which are the subject of the first and second allegations in Complaint One occurred on 23 September 2014, and that the first time that C1 wrote an account of the incidents, as far as we are aware, was in her Statutory Declaration of 20 December 2017, more than three years later. In her Statutory Declaration, C1 said: 80. I have only recently been able to process the experiences I had during my employment with him which I now consider to be economic and emotional abuse. 1. As set out in the extract from the transcript at [61] above, in cross-examination C1 frankly conceded that, although it was her memory that Mr Waterstreet suggested that she had had a high school crush on Kat, her memory may be inaccurate on that point (see also transcript 27 July 2022 p 10 line 34 to p 11 line 25). 2. In order to constitute sexual harassment, as defined in the Anti-Discrimination Act 1977, Mr Waterstreet's part in the conversation set out at [54] above must be found, on the balance of probabilities, to constitute "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". 3. It seems to us that both C1 and Mr Waterstreet were doing their best, in evidence before us and in the preparation of their affidavit evidence on this allegation, to recall the conversation between them on 23 September 2014. Recall of that conversation was made difficult by the passage of years between the conversation and the attempts to recall the conversation. 4. We have set out, at [63] above, Mr Waterstreet's recollection of the conversation of 23 September 2014, as set out in his affidavit of 17 March 2022, which was that, in the course of the conversation, C1 spontaneously said that she went to high school with Cat and that she had had a high school crush on Cat. C1 said, in her statutory declaration of 20 December 2017, in relation to the conversation, that Mr Waterstreet put to her that she had a high school crush on Cat, and she had replied "Yeah, sure". This was repeated in her affidavit of 26 January 2022. In cross-examination, as we have said, C1 agreed that her memory may be inaccurate in terms of whether Mr Waterstreet raised the issue of a high school crush. 5. A brief conversation which occurred in 2014 would be unlikely to be able to be recalled with perfect accuracy in 2017 or 2022, by either participant. C1's concession in cross-examination was perfectly proper and not surprising. 6. In all of the circumstances, we are unable to find, on the balance of probabilities, that it was Mr Waterstreet who raised the issue of whether C1 had a high school crush on Cat. In fact, it strikes us as the less probable version of the conversation. We infer from the evidence before us that C1 did have a crush on Cat at high school, and it is unlikely that Mr Waterstreet would have guessed that and raised it. It is more likely that C1 raised it. Mr Waterstreet's evidence was that C1's disclosure that she had had a crush on Cat was "a nice surprise because she was frank" and he "considered that she must have felt safe enough to disclose this personal information" to him (see [63] above). The exchange of personal emails between Mr Waterstreet and C1 began the next day. The tone of the emails is affectionate, trusting and sometimes flippant. C1's email sent on 27 September 2014, which is set out at [18] above, was sent by her to Mr Waterstreet four days after the conversation about Cat. No discomfort is communicated. C1 says that the chambers and its inhabitants 'already feel like home and family'. 7. C1 says, in her affidavit of 22 April 2022, that she worded the emails in the first few weeks of her employment in the way that she did because she was worried about the casual nature of her employment with Mr Waterstreet and concerned that he might fire her (paragraph 18). No factual basis for that fear was provided. In any event, that fear does not inevitably lead to a decision to write emails with the tone and type of content written by C1 to Mr Waterstreet. 8. C1 further indicates, in her affidavit of 22 April 2022, that she crafted her emails in the early weeks of her employment to mirror: "the jocular, irreverent and boundaryless approach to communication with Mr Waterstreet that I saw him using. I felt compelled to mirror his communication style in order to adapt to the workplace culture". There is no indication that she was directed or purposely influenced by anyone else to do this; it was a choice that she made. In other words, the feeling of being compelled did not arise from anything external to her own thoughts, on the evidence before us. She wished her emails to create for Mr Waterstreet a particular impression of her personality and to contribute to the relationship between them, and the emails provided to us indicate that she succeeded in this. 1. The asking of the question "You had a high school crush on her, didn't you?" is capable of constituting conduct of a sexual nature, but it has not been established by the Council, on the balance of probabilities, that Mr Waterstreet asked C1 that question. We do not consider that any other part of what Mr Waterstreet is alleged, in the first allegation of sexual harassment, to have said, is capable of being characterised as conduct of a sexual nature, including the comment, in relation to Cat, "isn't she beautiful". 2. The first allegation has not been made out on the evidence. 3. Part of the factual basis for the second allegation has been proven; Mr Waterstreet did show C1 pages in a copy of the book 'Private Bodies', including a photograph of himself and Cat, unclothed. He then gave a copy of the book to C1. This conduct is, objectively, conduct of a sexual nature. 4. The next question is whether Mr Waterstreet's conduct in showing C1 the book and giving it to her was unwelcome conduct from C1's point of view, at the time that it occurred, within the meaning of s 22A(b) of the Anti-Discrimination Act 1977. C1's evidence that she felt "flattered and confused and also grateful for the sense of feeling - …that sense of like trust and mutual, I don't know – it felt like I was welcomed into the fold" is at odds with a characterisation of the conduct as unwelcome (see [62], above). It was argued, on behalf of the Council, that C1's account of her feelings about being shown and given the book should be interpreted as mixed feelings, and that 'confused' meant unwelcome. We reject this argument. C1 said that she was grateful for the conduct, and that it represented a welcome into the fold. This is inconsistent with the conduct being unwelcome to C1, in the sense of being disagreeable to her (see [45] above). It has not been established, on the evidence, that Mr Waterstreet's conduct in showing C1 the contents of the book 'Private Bodies' was unwelcome conduct in the mind of C1 at the time that the conduct occurred. 5. In her statutory declaration of 20 December 2017, and her affidavit of 26 January 2022, C1 sets out all of the conduct of Mr Waterstreet that she complains of and then says (in both documents, at paragraph 43 of her affidavit and paragraph 54 of her statutory declaration): Mr Waterstreet's conduct as described above made me feel uncomfortable and distressed. I felt trapped and overwhelmed by the working environment created by this conduct which was highly emotional and personal. I was able to overcome these feelings at the time and continue with my employment because of the need for me, as a law student supporting myself, to have paid legal experience. I also believed that he was a powerful and influential member of the criminal law community and that he would be able to hinder any future opportunities if I resigned. 1. There is no evidence before us as to how C1 formed the view that Mr Waterstreet would be likely or able to hinder any of her future opportunities. We note that the content of the paragraph is at odds with the tone and content of the emails sent by C1 to Mr Waterstreet and quoted above. It is also at odds with her evidence before us in relation to her response to being shown 'Private Bodies' on 23 September 2014. The statement by C1 in her statutory declaration and affidavit, quoted above at [77], is a generalisation and a description of her feelings about Mr Waterstreet's conduct during her employment as a whole, in retrospect. C1 does not relate those feelings specifically to the allegations the subject of the complaint, and it is clear from her emails to Mr Waterstreet and her oral evidence that it was not every instance of Mr Waterstreet's conduct described in her affidavit and statutory declaration, that made her "feel uncomfortable and distressed". She does not say at which point or points in time she felt uncomfortable and distressed. It may be that some of the feelings of discomfort and distress arose after her employment and shortly before the making of the statutory declaration on 20 December 2017 as part of what C1 described when she said, in that statutory declaration: I have only recently been able to process the experiences I had during my employment with him which I now consider to be economic and emotional abuse. 1. The second allegation has not been made out. 2. It was alleged, in paragraph 21 of the complaint, that the conduct alleged in paragraph 9 of the complaint breached rule 12(c) of the 2014 Rules, in that it was conduct which "was likely to diminish public confidence in the legal profession, or otherwise bring the legal profession into disrepute". (The equivalent rule of the Uniform Barristers Rules is rule 8(c)). 3. As we have said, it has not been established on the evidence that the precise conversation set out in Ground One, paragraph 9, particular 1 took place. On the basis of the evidence before us, it has not been established that the conversation between C1 and Mr Waterstreet on 23 September 2014 about Cat was a breach of either the 2014 Rules or the Uniform Barristers Rules. 4. In context, we do not consider that Mr Waterstreet's conduct in giving C1 a copy of the book "Private Bodies" was a breach of either set of Rules. The third allegation in Complaint One Ground One 1. The third allegation in Complaint One Ground One is as follows: 9(iii) In or around October 2014, the respondent showed [C1] photographs of women in lingerie from the internet on his mobile phone. In reference to one of the women in the photographs, the respondent and [C1] had the following conversation; The respondent: Look at this woman's ass. Don't you think she is incredibly good looking? [C1]: Yes. The respondent: She's your type, isn't she? [C1]: Sure. 1. In his Reply, the respondent pleads as follows in relation to the third allegation: 8. The Respondent says that he does not recall and cannot admit the facts alleged in particular (iii) of Ground One (Amended Application [9(iii)]. 1. In his affidavit of 17 March 2022, Mr Waterstreet refers to an email sent to him by C1 on 27 September 2014, in which she indicates that she enjoyed her first week of working for him, and further says: You have such a generosity of spirit, cheakiness and intellect that the hours pass in such a way that it doesn't even feel like work.. [sic] 1. Also in his affidavit, Mr Waterstreet says that, by late September 2014, C1 was assisting him with his column for the Sydney Morning Herald, researching and typing articles, including an article in relation to his hepatitis C diagnosis and treatment. Mr Waterstreet refers, in his affidavit, to a further email sent to him by C1 on Sunday 26 October 2014 at 5:56pm, in which she praises his honesty and openness. In that email, she also disclosed, at considerable length and in considerable detail, apparently spontaneously, very personal information about herself and some of her close relationships, asking him to keep it confidential (see [19]-[25], above). Mr Waterstreet says, in his affidavit, that he took the email "as confirmation of our deepest friendship", and that was a reasonable response to it. 2. Mr Waterstreet further says, in his affidavit of 17 March 2022: 30. In response to paragraph 23 of the [C1] Affidavit I have no recollection of ever showing [C1] photographs of women in lingerie from the internet on my mobile phone more than 7 years ago in or around October 2014 nor at any time, nor do I recall ever having a conversation with [C1] to the effect stated in paragraph 23 of the [C1] affidavit. [paragraph 23 of C1's affidavit of 26 January 2022 sets out the third allegation] 1. In cross-examination, C1 was unable to say when, in October 2014, the conversation the subject of the third allegation occurred. The following exchange took place: (transcript 27 July 2022 at p 26 lines 5-35) Q. Do you think it was in early October or mid-October? Is that more likely? A. I couldn't say. Q. Are you sure it was in October? A. I remember it was early on in my employment. It was also not an irregular occurrence, the type of him wanting to show me images so yeah. Q. Was it said in a tone of that friendly banter you described before? A. Yeah. Yes. Q. Do you agree that you didn't feel offended when he showed you those photos? A. I think I felt a bit shocked and – I guess I might have felt – I felt like I blushed or a bit kind of taken aback by being shown but again, it felt like I was being included and it felt like I was just being presented with a workplace and I just needed to adapt to what that was so played along with it. I guess, would be, yeah. Q. I think you said before that you were flattered by the fact that you were included? A. Yeah. Q. Felt included? A. Yeah. Q. Would it be accurate to say that the precise way in which you felt about what happened about him showing you the photographs, may have changed over time? A. It definitely changed over time, yeah. Q. In other words, later on you had a different perspective on what he did? A. Yes. 1. In cross-examination, C1 was asked questions about Mr Waterstreet's approach to "pricking balloons of pomposity" and "de-stigmatising sexuality". The following exchange took place at p 34, line 10 to line 40: Q. If I suggested to you that you did on occasion, speak openly in Mr Waterstreet's chambers about your sexual experience but you may not now recall it. Would you accept that as a likelihood? A. It's possible. Q. I want to suggest that at the time you worked for him. Not later on. You did not find unwelcome Mr Waterstreet's attempts to de-stigmatise a topic such as sexuality? A. I feel like it's a really general question and involves some assumptions about what de-stigmatising sexuality means. Q. I understand. You'd like me to re-phrase it. Is that right? A. Yeah, if you could. Q. You said quite candidly that your perspective on things that happened in the office had changed over time? A. Yes. Q. I want to suggest to you that when Mr Waterstreet spoke about matters sexual. A. Yes. Q. He often did so in a joking or bantering manner? A. Yes. Q. He was doing so in the context of, as you've accepted, pricking balloons of pomposity? A. Yes. Q. At that time, you were pleased to be included in that banter? A. Yes. 1. In relation to the third allegation, C1, very properly, honestly conceded that she could not be sure that the conversation occurred in October 2014 (see [88], above). The earliest written account in evidence of the incident alleged is the statutory declaration of C1, made on 20 December 2017, more than three years after the alleged conversation. In both that statutory declaration and in C1's affidavit of 26 January 2022, C1's account of the conversation is prefaced by these words: In reference to one of the women in the photos, we had a conversation to the following effect: Plainly, C1 intended to convey, by those words, that her account of the words used by her and Mr Waterstreet was a reconstruction of a conversation in her memory, but not a precise account of the conversation. 1. Mr Waterstreet simply says that he has no recollection of showing C1 photographs of women in lingerie on his mobile phone and no recollection of ever having a conversation with C1 to the effect of the conversation alleged. 2. In C1's statutory declaration of 20 December 2017, the following paragraph appears, directly after the account of the alleged conversation: 30. The latter question asked by Mr Waterstreet above made me feel uncomfortable because it concerned my sexuality. I responded to this question with words to the effect of "Yeah, sure" because I was unsure if the question was a joke and I wanted to please Mr Waterstreet in order to secure my employment with him. 1. A very similar paragraph appears in C1's affidavit of 26 January 2022, directly after the account of the alleged conversation: 2. C1's answer to the question as to whether she felt offended when shown the photograph appears above at [88]-[89]. C1 made it plain that her answer is at least partly a reconstruction ("I guess I might have felt…"). She mentions being a bit shocked and taken aback, but also feeling included. She agreed that she was flattered by being included. Her account of her response does not indicate that she found the experience, on the whole, disagreeable. She agreed that the precise way she felt about being shown the photographs changed over time, and that she had a different perspective on Mr Waterstreet's conduct at the time of the incident from the perspective she came to have some time later. 3. We find, on the basis of C1's evidence, that Mr Waterstreet showed C1 photographs of women in lingerie at some time within the first few months of her employment. That conduct is capable of constituting conduct of a sexual nature. We find that Mr Waterstreet and C1 had a brief conversation about the photographs. We cannot find, however, on the balance of probabilities, that the conduct was, at the time it occurred, unwelcome conduct from C1's point of view. C1's description of feeling included and flattered are inconsistent with the conduct being unwelcome or disagreeable at the time that it occurred. Having regard to the content and tone of the emails between C1 and Mr Waterstreet from the early weeks of C1's employment, and the evidence of both of them as to their relationship at the relevant time, we would also have been unable to find, in all of the circumstances, that a reasonable person would have anticipated that C1 would be offended, humiliated or intimidated by Mr Waterstreet's conduct. Although the speaking of the words alleged to have been spoken and the showing of the photograph are capable of constituting conduct of a sexual nature, in the context of this matter, the incident did not amount to sexual harassment as defined in s 22A(b) of the Anti-Discrimination Act 1977. 4. The question then arises as to whether Mr Waterstreet's conduct in showing C1 photographs of women in lingerie on his mobile phone is conduct in breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). This requires an assessment of what the public expects of the conduct of a barrister. We do not consider that in 2014 or in 2023 the public would expect a barrister, in his chambers, in the course of a working day, to show photographs of women in lingerie to his research assistant and comment on the appearance of those women. Such conduct is likely to bring the legal profession into disrepute and is a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). The fourth allegation in Complaint One Ground One 1. The fourth allegation of sexual harassment is in paragraph 9(iv) of the Application: In or around October 2014, a client of the respondent and his female partner attended the respondent's chambers for a meeting. When the client and his partner had left the respondent's chambers, the respondent said to [C1] words to the effect of "I want to rub her all over". 1. This alleged incident was described in C1's Statutory Declaration of 20 December 2017 and in C1's affidavit of 26 January 2022. In both documents, C1 said "This comment made me feel embarrassed and uncomfortable". In the affidavit, C1 also said "I believed that this type of comment was inappropriate for the workplace, however I did not say anything to Mr Waterstreet as I was still new and wanted to keep my employment with him". 2. The respondent pleaded to the fourth allegation in his Reply in the following way: The Respondent says that he does not recall and cannot admit the facts alleged in particular (iv) of Ground One (Amended Application [9(iv)]). 1. C1 was not cross-examined in relation to the fourth allegation. In the written submissions filed in the respondent's case, the respondent agrees that the fourth allegation has been proven. 2. We find that the fourth allegation in Complaint One Ground One has been proven. Mr Waterstreet's comment to C1 amounted to the sexual harassment of C1 under s 22A(b) of the Anti-Discrimination Act 1977 and is therefore to be dealt with as a breach of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules). It was also a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules) because it is likely to bring the legal profession into disrepute. The fifth allegation in Complaint One, Ground One 1. The fifth allegation of sexual harassment is as follows: 9(v) On or around December 2014, the respondent viewed a pornographic video in the presence of [C1]. The video included a female moaning while engaging in sexual activity. 1. In his Reply, Mr Waterstreet pleaded to the fifth allegation in the following way: 10. In response to particular (v) of Ground One (Amended Application [9(v)]) the Respondent: a. says that the nature of the Respondent's criminal law practices at the relevant time involved defending clients in sexual assault offences and accordingly his chambers had briefs that included sexually explicit, or potentially sexually explicit material; and b. says that he also had a number of clients who sold sexually explicit videos online or in shops who were defending charges relating to the classification of the films they were selling, generally as to whether they were appropriately rated 'X' or 'R' and accordingly he also had video exhibits in his chambers relating to these cases; and c. otherwise does not recall and cannot admit the facts alleged in particular (v). 1. In the written submissions filed in the respondent's case, it is agreed, and we find, that the fifth allegation has been proven. 2. There is no evidentiary basis for the suggestion that the video was connected to Mr Waterstreet's practice. 3. We find that the fifth allegation has been proven and amounts to the sexual harassment of C1 under s 22A(b) of the Anti-Discrimination Act 1977. It is to be dealt with as a breach of s 117 (b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules). It also amounts to a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules) because it is likely to bring the legal profession into disrepute. The sixth allegation in Complaint One Ground One 1. The sixth allegation of sexual harassment is as follows: (vi) Approximately every month throughout the course of [C1's] employment with the respondent, the respondent gave [C1] a list of medication that he requested she collect from a pharmacy for him. The list every month included Viagra. Further to these requests, and on 5 January 2015, the respondent sent [C1] (and others) an email requesting her to purchase Viagra and post it to him in New York, USA. 1. In his Reply, Mr Waterstreet pleaded to the sixth allegation as follows: 11. In response to particular (vi) of Ground One (Amended Application [9(vi)]) the Respondent: a. says that [C1] often carried out tasks of an administrative nature, such as running errands and paying invoices, and that such errands included collecting the Respondent's prescription medicine from the chemist, which from time to time would have included Viagra along with other medications; and b. otherwise admits the facts alleged in the particular. 1. In her affidavit of 26 January 2022, C1 said: 29. As part of my employment as Mr Waterstreet's administrative assistant, each month he would hand me a list of medication I was required to pick up for him. He would say to me words to the effect of , "this is my list of medication I would like you to go and pick up from the pharmacy". Each month the list would include Viagra. 30. Each month when I picked up Mr Waterstreet's Viagra I felt resentful because my wages were underpaid, and Viagra purchases usually coincided with Mr Waterstreet having a date with a sex worker. It made me feel undervalued because he was spending money on entertainment while not paying my wages. I also felt awkward because Mr Waterstreet would not usually pay the pharmacist as he was doing some 'pro bono' legal work for them, so I was expected to pick up the Viagra without any money to pay for the Viagra. 31 On one occasion, on or about 5 January 2015 at approximately 4:20am. Mr Waterstreet sent an email to me requesting that I pick up his medications, which included Viagra, from the pharmacy and post it to him in New York. … 32. On this occasion, I did not buy or send the Viagra for Mr Waterstreet as I had not been paid for approximately 3 months … and did not have the financial means to buy or ship the medication to Mr Waterstreet. 1. Mr Waterstreet said the following, in his affidavit of 17 March 2022: 38. In response to paragraph 29 of the [C1] Affidavit, I say that [C1] often carried out tasks of an administrative nature, such as running errands and paying invoices and that such errands included collecting my prescription medication from the chemist, which from time to time would have included Viagra along with other medications. Viagra (and testosterone) had been prescribed to me by my doctors after I had undergone a lengthy course of interferon therapy in or about 2010 and then again in or about 2012 or 2013 for Hepatitis C which I was diagnosed with in or about 2000. The interferon therapy was not successful and undergoing that therapy was the worst experience of my life. The use of interferon led to intense depression and physical debilitation and it did not cure my infection. Despite interferon therapy my liver disease progressed to the stage of severe fibrosis. 39. In or about 2014, I was fortunate enough to be chosen to be part of a 12 week trial of a new treatment for Hepatitis C, called Sofosbuvir. Clinical trials had shown that this treatment had a better success rate with fewer side effects. The problem was that it was a very expensive drug (about $70,000 for a short course of tablets) and the Australian Government refused to subsidise the drug due to its cost. The 12 week trial was successful for me and it cured me of the virus and repaired the scarring of the liver. I appeared on the tv programme '7:30 Report' with Leigh Sales in October 2014 with Professor Dore to talk about the new treatment and the fact that it had been rejected for Government subsidy. 40. In further response to paragraph 29 of the [C1] Affidavit, I would ask whoever was available to run these sorts of errands for me to collect my prescription medication. For example, [AA] had the same role and responsibilities as [C1] and so she would run these errands from time to time. However, [AA] had more experience and was more functional in assisting me with my legal cases at that time. I was running the McNamara Supreme Court murder trial at or about that time and [AA] was assisting me with that. Some of the more administrative roles like running errands and chasing up debtors therefore tended to fall to [C1]. 41. Whilst I was in New York I sent an email to Sebastian Di Giovanni, [C1] and [AA] asking if one of them could post my prescription medications to me. A copy of my email dated 5 January 2015 is at page 39 of Exhibit 1). 1. In cross-examination before us, C1's attention was drawn to paragraph 38 of Mr Waterstreet's affidavit. C1 said that she knew at the time (meaning, we assume, the time at which she was asked to collect the medication) that Mr Waterstreet "had undergone interferon therapy and that it was a very difficult experience". However, C1 said that she did not know at that time for what purpose Viagra had been prescribed for Mr Waterstreet. 2. The question of whether the conduct in issue is "conduct of a sexual nature" within the meaning of s 22A of the Anti-Discrimination Act 1977 is a question of fact, to be ascertained objectively. We understand that C1 characterised being asked to perform the task of collecting Mr Waterstreet's medication from the pharmacist as, at least partly, "conduct of a sexual nature" because she assumed that she was being asked to collect Viagra (among other prescription medication) to facilitate Mr Waterstreet's sexual activities. In fact, we accept, Mr Waterstreet was being prescribed Viagra for the medical purpose of counteracting the enduring side effects of the interferon therapy which was undertaken by Mr Waterstreet in 2010, 2012 or 2013 for Hepatitis C. In these circumstances, we reject the characterisation of Mr Waterstreet's conduct in asking C1 to collect his medications as "conduct of a sexual nature". Viewed objectively, it was not conduct of a sexual nature. 3. Our findings in relation to the sixth allegation apply to all of the requests by Mr Waterstreet of C1 that she collect his medications, including the request, on 5 January 2015, to C1 and others, for Viagra to be obtained and sent to Mr Waterstreet in New York. 4. The sixth allegation has not been made out. The conduct alleged was not sexual harassment and nor was it a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). The seventh allegation in Complaint One Ground One 1. The seventh allegation of sexual harassment is as follows: In or around March 2015, and while in the respondent's chambers, the respondent showed [C1] a pencil drawing of a flaccid penis and said words to the effect of "this is a drawing of my beautiful penis". 1. In his Reply, Mr Waterstreet pleaded to the seventh allegation of sexual harassment in the following way: 12. In response to particular (vii) of Ground One (Amended Application [9(vii)]) the Respondent: a. says that on the wall in his chambers, among other pictures of art, there was a framed ink artwork drawing of a penis that had been given to the Respondent by a disabled artist who was the relative of a client [sic]: b. says that the artwork was not a drawing of his penis; and c. otherwise does not recall and cannot admit the paragraph. 1. In her affidavit of 26 January 2022, C1 said: 35. In or around March 2015, I was sitting at the Desk and Mr Waterstreet showed me a pencil drawing of a flaccid penis and said words to the effect of, "this is a drawing of my beautiful penis". The picture was on the wall opposite to where Mr Waterstreet would sit at his desk. His walls were covered in lots of different artwork, but this picture was small, no bigger than A4 size. I had to turn around to see the picture after he pointed it out to me. 36. I felt uncomfortable and did not know how to respond to Mr Waterstreet because I felt that he wanted me to admire the picture. However, I considered the picture inappropriate and disgusting. 37. Being shown sexually graphic material by Mr Waterstreet at work made me feel uncomfortable and uneasy. His behaviour made me exhausted and caused me to be emotionally drained. 1. In her statutory declaration of 20 December 2017 (paragraphs 43-44), C1 also described this incident, though in a less detailed way. 2. In his affidavit of 17 March 2022, Mr Waterstreet said: 50. In response to paragraph 35 of the [C1] affidavit, I say that on the wall in my chambers, among other pictures of art, there was a framed ink artwork drawing of a penis. That drawing had been given to me by a disabled artist who was the aunt of one of my then clients, [name of client]. She had presented me with the drawing as a gift at the end of [name of client's] murder trial in which I had been representing [name of client] and I had it framed and placed it on the wall with other artworks. It was not a drawing of my penis. I have no recollection of ever having pointed it out to [C1] or ever having any discussion with [C1] about it at all or as described by her in paragraph 35 of the [C1] affidavit. Given that the drawing was not of me, I had no reason to say the words attributed to me in that paragraph. 1. The seventh allegation in Complaint One Ground One was the subject of the following exchange with C1 in cross-examination (transcript 27 July 2022 p 42 line 37): Q. As you're sitting facing the desk. A. Yes. Q. The painting is behind you? A. Yes. Q. To your knowledge was it there the whole time you were employed by Mr Waterstreet? A. Yes, to my knowledge, yes. Q. Is the size of the painting about the size of an A4 piece of paper? A. I think it was more square and closer to A5 size than A4, yeah. Q. Okay, I understand. Do you agree that there was a conversation about that painting. You're clear about that. Is that right? A. Yes. It was a drawing from my memory. Q. I'm sorry, a drawing. A. Yes, Q. There was a conversation about the drawing. You're clear about that? A. Yes. Q. But do you agree that you can't remember if he actually showed you the drawing as distinct – and made a comment himself as distinct from you making a comment about it? A. No. I remember distinctly because I was – in that drawing, I was in those chairs up against the wall working on my computer and I forget how it became a topic of conversation but Mr Waterstreet drew attention to it and I remember looking back like this in the chair which is what I had to do to see it from that seat. Q. When he – was the tone of voice where he commented on the drawing, was it again one of that friendly banter you've described before? A. Yes, Q. Did you take it as a joke at the time? A. Yeah. I think – I took it to be just jocular conversation. 1. This incident is alleged to have occurred in March 2015. C1 drew a plan of Mr Waterstreet's chambers in the witness box, which became Exhibit R10. On the plan, C1 drew a chair at the desk in the chambers, which faced Mr Waterstreet's chair, with the desk between the chairs, and indicated that she sometimes sat in that chair to work. She also drew two chairs which were against the wall opposite the desk, and behind the chair at the desk at which she sometimes sat. C1 said that she sometimes sat in one or other of the chairs against the wall opposite the desk. In the first account of the seventh allegation of Complaint One Ground One which is before us, namely C1's statutory declaration of 20 December 2017, C1 says that she was sitting at the desk, meaning the desk in Mr Waterstreet's chambers. In cross-examination before us, C1 said that she remembered distinctly that she was sitting in "those chairs up against the wall". 2. Mr Waterstreet has no memory of the incident. It was some years subsequent to March 2015 that he first became aware of the allegation. 3. C1's memory of the incident clearly evolved over the years, which is to be expected. Ordinarily, but not invariably, the earliest account of an incident is likely to be the most accurate. 4. We accept, on the balance of probabilities, that Mr Waterstreet drew C1's attention to the drawing hanging on the wall in the chambers, and said words to the effect "This is a drawing of my beautiful penis". 5. It is alleged that this action and remark constituted sexual harassment. The questions arise, therefore, as to whether the action and remark constituted unwelcome conduct of a sexual nature in relation to C1 and, if so, whether a reasonable person, having regard to all the circumstances, would have anticipated that the other person would be offended, humiliated or intimidated. 6. The drawing was hanging on the wall in Mr Waterstreet's office prior to C1's employment by Mr Waterstreet, and continued to be there throughout her employment. We accept Mr Waterstreet's evidence as to the provenance of the drawing, and we accept that, whilst it was a drawing of a penis, it was not a drawing of his penis. 7. By March 2015, as evidenced by the emails referred to above, Mr Waterstreet and C1 had a friendly relationship which included the exchange of communications intended to amuse, some of which related to sexual matters. 8. C1 very properly conceded in cross-examination that, at the time that Mr Waterstreet made the remark concerning the drawing, she "took it to be just jocular conversation" (see [120], above). She also agreed that when Mr Waterstreet was speaking about sexual matters in a joking or bantering manner, that she understood that his purpose was "pricking balloons of pomposity" and that, at the time, she was pleased to be included in the banter. 9. However, in her affidavit, C1 said, in relation to Mr Waterstreet's remark about the drawing: 36. I felt uncomfortable and did not know how to respond to Mr Waterstreet because I felt that he wanted me to admire the picture. However, I considered the picture inappropriate and disgusting. 1. Mr Waterstreet's conduct in drawing the attention of an employee to a drawing of a penis for purposes unrelated to work, and asserting (albeit jokingly and untruthfully) that the penis depicted was his own, constitutes conduct of a sexual nature. 2. On balance, we find, on the basis of C1's affidavit and oral evidence, that she was uncomfortable when Mr Waterstreet drew her attention to the drawing and claimed that it depicted his penis, and that the conduct was unwelcome in the sense of being disagreeable to her. 3. Even having regard to the closeness of the relationship between Mr Waterstreet and C1 in March 2015, we find that a reasonable person, having regard to all of the circumstances, would have anticipated that C1 would be offended, humiliated or intimidated by Mr Waterstreet's conduct. We accept Mr Waterstreet's evidence that the drawing does not, in fact, depict his penis. Whilst his comment to C1 was a joke, it was also designed to shock her, and a reasonable person would anticipate that it would succeed and that the shock would be offensive to her in the employment context. 4. Mr Waterstreet's conduct in drawing C1's attention to the drawing in the manner that he did constituted sexual harassment, and was a breach of rule 117(b) of the New South Wales Barristers' Rules 2014 (rule 123(1)(b) of the Uniform Barristers Rules). It was also a breach of rule 12(c) of the New South Wales Barristers' Rules 2014 (rule 8(c) of the Uniform Barristers Rules) because the conduct was likely to bring the legal profession into disrepute. The eighth and ninth allegation in Complaint One Ground One 1. The eighth allegation of sexual harassment is in paragraph 9(viii) of the Application: 9(viii) In or around May 2015 and while in the respondent's chambers, the respondent and [C1] had the following conversation; The respondent: I am meeting up with a woman tonight. Can you please organise a voucher for this woman to use at the lingerie store called Baby Likes to Pony for $400.00? I want this woman to wear this lingerie on our date tonight. C1 Okay. The respondent: I also need you to go to the bottle shop and buy a bottle of Moet so that I can give it to the woman to drink. C1: Okay. 1. The ninth allegation of sexual harassment is in paragraph 9(ix) of the Application: 9(ix) On or around the following day to the event described at (viii) above, and while in the respondent's chambers, the respondent showed [C1] photographs of a woman in lingerie on his mobile phone and said words to the effect of "this is the woman I met with last night. She is wearing the lingerie from Baby Likes to Pony that she bought with the voucher you organised". 1. In his Reply, at paragraph 13, Mr Waterstreet responds to the eighth and ninth allegations of sexual harassment in the following way: a. says that [C1's] errands may have included purchasing alcohol or gift cards from time to time; and b. otherwise does not recall and cannot admit the facts alleged in the particular. 1. In her affidavit of 26 January 2022, in paragraph 38, C1 related the conversation the subject of the eighth allegation and said: 39. Following the above conversation, I organised the voucher at Baby Likes to Pony and the bottle of Moet. 40. On or around the day following the events described at paragraphs [38] and [39], Mr Waterstreet showed me photos of a woman in lingerie on his mobile phone while we were in Chambers. He said to me words to the effect of, "this is the woman I met with last night. She is wearing the lingerie from Baby Likes to Pony that she bought with the voucher that you organised." 41. At the time of the events described in paragraphs [38]-[40], Mr Waterstreet had not paid my wages for approximately 3 months…I felt undervalued by him because he was paying women for sex work and dating services before paying my overdue wages. I also felt humiliated having to organise lingerie vouchers for sex workers. … 43. Mr Waterstreet's conduct as described above made me feel uncomfortable and distressed. I felt trapped and overwhelmed by the working environment created by this conduct which was highly emotional and personal. I was able to overcome these feelings at the time and continue with my employment because of the need for me, as a law student supporting myself, to have paid legal experience. I also believed that he was a powerful and influential member of the criminal law community and that he would be able to hinder any future opportunities if I resigned. 1. We accept that Mr Waterstreet asked C1 to buy a lingerie voucher and a bottle of champagne for him to give to a woman as a gift. We are not persuaded, on the balance of probabilities, that Mr Waterstreet said that the voucher was intended for the woman to use to buy the lingerie and wear it that night. It seems to us to be inherently unlikely that the voucher would be sent to the woman on the day it was purchased and that she would be expected to attend the shop and buy lingerie that day and wear it that night. There is no evidence that this occurred. In cross-examination, C1 agreed that she bought the voucher on-line. There is no evidence as to how it was given to its intended recipient. 2. A request that an employee purchase a bottle of champagne for her employer to give to a woman as a gift, viewed objectively, is not, by itself, conduct of a sexual nature in relation to that employee. 3. A request that an employee purchase a voucher for lingerie, online, for her employer to give to a woman as a gift, viewed objectively, may be, but is not necessarily, by itself, conduct of a sexual nature in relation to that employee. The circumstances of the request and the nature of the relationship between the employer and the employee, including the duties which the employee ordinarily performs, will colour the characterisation of the request. 4. In her statutory declaration of 20 December 2017, C1 related the conversation set out in the eighth allegation and the event the subject of the ninth allegation and said that she felt undervalued "because he was paying women for sex work and dating services before paying my overdue wages". C1 did not, however, say, in her statutory declaration of 2017, that she felt humiliated "having to organise lingerie vouchers for sex workers". 5. The basis upon which C1 concluded that the woman Mr Waterstreet met was a sex worker was not disclosed in her statutory declaration, her affidavit or her evidence. In cross-examination (transcript 27 July 2022 p 48-49), C1 said that it was her "impression" that the woman was someone that Mr Waterstreet had met on "Seeking Arrangement", but she conceded that she did not know whether that was so. There is no evidence before us as to the occupation of the woman or how she met Mr Waterstreet. 6. The following exchange took place in cross-examination (transcript 27 July 2022 p 49): Q. …At the time of this conversation [ie the conversation the subject of the eighth allegation], it's May 2015 and … by that stage Mr Waterstreet owed you money? A. Yes Q. May I say from our side, quite understandably, you were upset at not having received the money to which you were owed? A. That's correct. Q. Is it accurate to say that at the time your main issue with what Mr Waterstreet asked you to do was that he was putting the money for the lingerie ahead of the wages he in fact owed you? A. Yes, and some of the other related expenses. … Q. Whatever the expenses were that he was expending A. Yes. Q. You quite rightly thought, this is money that should go to me because you owe me these wages. Is that right? A. Yes. Q. That was your main grievance in relation? [sic] A. Yes, I think so. Q. I want to suggest that you, at the time, didn't feel offended that you were simply being asked to buy a voucher for lingerie for another woman, as distinct from being annoyed that he was not paying you the money he owed. Do you agree with that? A. No, not necessarily. I think it is an accumulation of many feelings and part of that was a sense of feeling taken advantage of both financially but also being pushed very hard to very difficult work without much supervision or support. Those expectations being very high and this task just being another thing I had to juggle on a very stressful busy job. .. Q. To put it more accurately, the grievance you had about that request was (a) he was spending money on items that he should have prioritised your wages? A. Mm-hmm. Q. Number 1, correct? A. Yes. Q. And number 2, at the same time, May 2015, you were feeling under significant work pressure from him to do all these various things that he was requiring you to do, correct? A. Yes, that's correct. Q. Still not paying your wage? A. Yes, Q. And that was the grievance you had? A. It was part of the grievance I had. Q. I want to suggest to you that was the significant grievance you had in relation to that matter? A. In relation to that particular task, yes. 1. It is plain from C1's answers in cross-examination, set out above at [143], that Mr Waterstreet's decision to spend $400 on a voucher as a gift for someone else, in circumstances where he owed C1 wages, caused her to feel that he was taking advantage of her, financially, in the context of also expecting her to undertake difficult work without much supervision or support. Her focus was on the amount of money involved and the non-legal nature of the task. C1 did not, at the time that Mr Waterstreet asked her to purchase the voucher, perceive Mr Waterstreet's request to be "unwelcome conduct of a sexual nature" in relation to her. She did not find the task disagreeable on account of the type of voucher to be purchased. The request made her feel aggrieved for reasons relating to the amount of money to be spent in the context of wages being due and owing to her and the demands being made of her to perform difficult work without adequate supervision or support. The idea that C1 might have been humiliated by the request to purchase the voucher was a gloss placed upon the incident by her some time after the incident, partly influenced by her assumptions about the characteristics of the recipient of the voucher, for which she could identify no factual basis. At the time that the request that C1 purchase a voucher was made, the circumstances surrounding the making of the request were not such as to give the request that a lingerie voucher be purchased on-line the character of conduct of a sexual nature in relation to C1 from an objective point of view. 2. In the context of the relationship between Mr Waterstreet and C1 by about May 2015, a reasonable person, having regard to all the circumstances, including the nature of the relationship between C1 and Mr Waterstreet at the time, would not have anticipated that C1 would have been offended, humiliated or intimidated by the request that she purchase the voucher. A reasonable person would have anticipated that she would be aggrieved on account of the money being spent and the pressure of work, but that does not constitute sexual harassment. 3. The eighth allegation has not been made out. 4. We have considered whether Mr Waterstreet's conduct in asking C1 to purchase a bottle of Moet and a lingerie voucher for him constitutes a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). We do not consider that the conduct was a breach of the rules. 5. As to the ninth allegation of sexual harassment, we find, on the balance of probabilities, on the basis of C1's evidence, that Mr Waterstreet did show C1 a photograph of a woman wearing lingerie on his phone on or around the day following the day upon which he asked C1 to purchase the voucher. We also find that Mr Waterstreet said words to the effect of the words set out in the complaint. It does not matter whether the woman in the photograph on the phone actually was the woman that Mr Waterstreet met the night before. Mr Waterstreet may have been joking, as he showed C1 the photograph, or he may have been telling the truth. 6. We find that the showing of the photograph on the phone to C1 was, objectively, "conduct of a sexual nature". The conduct was "in relation to" C1. 7. The incident the subject of the ninth allegation is capable of constituting sexual harassment under s 22A(b) of the Anti-Discrimination Act 1977. However, C1 did not, in her affidavit evidence or her oral evidence, describe her response to this incident when it occurred. The Council relied upon the general description of C1's feelings about her employment in paragraph 43 of her affidavit of 26 January 2022, but, for the reasons set out above at [77]-[78], that is not sufficient for the purposes making a finding as to whether the conduct was, at the time that it occurred, unwelcome to C1. 8. The ninth allegation has not been established. 9. We consider that Mr Waterstreet's conduct in showing C1 the photograph of the woman wearing lingerie, and making the comment that he made, was, in 2015, conduct likely to bring the legal profession into disrepute. It was conduct of a kind that the public does not expect employees to have to deal with in a barrister's chambers. It falls to be dealt with as a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). The tenth allegation in Complaint One, Ground One 1. The tenth allegation of sexual harassment is as follows: 9(x) On 16 June 2015 at 12:38pm, the respondent sent C1 an email containing a picture of a man's lower body, with the man wearing revealing underwear. 1. The email the subject of the tenth allegation is exhibited to C1's affidavit. It shows an eBay advertisement which includes a photograph of a man's lower torso. The underwear worn by the man in the photograph is described in the title to the photograph as "Men's Crochet Thong for Beach Pool or Lounge". The eBay ad says "This item is temporarily sold out". The email containing the eBay advertisement was sent by Mr Waterstreet to C1 and two other members of Mr Waterstreet's staff, one male and one female. The subject line of the email says "One owner, last summer" and the text of the email simply says "Hurry up". 2. Mr Waterstreet admits sending the email. 3. In evidence, the following exchange took place with Mr Waterstreet after his attention was drawn to the email the subject of the tenth allegation (transcript 1 August 2022 p 30): Q. Why did you write the words "Hurry up"? A. In, in response to what I learned to be was an advertisement on eBay that the thong is temporarily sold out. You know that, that connotation is above the photograph. That – what I think. Q. Why did you send that email to those people? A. Hurry them up. No, the – it is a form of humour. Q. What was the intended joke? A. The fact that they were selling fast. Q. Why was that funny? A. Because they looked like Borat's. Borat is a character who wears similar costumes. Q. A mankini: is that right? A. Mankinis, yes. 1. Objectively, we find that the conduct in sending the photograph was conduct of a sexual nature, because the photograph showed most of the man's torso, and the "crochet thong' drew attention to his lower torso and the area covered by the thong. 2. C1 did not set out her specific response to receiving the email in her affidavits or in her oral evidence. As we have said above, at [77]-[78], in paragraph 43 of her affidavit of 26 January 2022, she sets out a generalised description of her feelings about her employment which does not specify the time at which she began to experience those feelings and does not relate those feelings specifically to any particular allegation. 3. For the reasons set out in [77]-[78], above, we do not consider that C1's words in paragraph 43 of her affidavit of 26 January 2022 are evidence that, at the time that she received the email the subject of the tenth allegation, that Mr Waterstreet's conduct in sending the email was unwelcome in the sense of being disagreeable to her. There is no evidence that the conduct in the tenth allegation was unwelcome to C1 at the time that it occurred. 4. The tenth allegation has not been made out. 5. However, again, Mr Waterstreet's conduct was likely to bring the profession into disrepute and we will deal with it as behaviour contrary to rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). Again, the public does not expect, and did not, in 2015, expect, employees in barristers' chambers to have to deal with conduct of this kind. 6. Particulars 9(iv), (v) and (vii) of Complaint One, Ground One, have been proven to the requisite standard. The conduct alleged in each of them constitutes sexual harassment and are to be dealt with as breaches of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules). The conduct in particulars 9(iii), (iv), (v), (vii), (ix) and (x) have been found to be breaches of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules), in that they were likely to diminish public confidence in the legal profession. Together, these breaches constitute unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law. Complaint One Ground Two 1. Complaint One Ground Two is as follows: 10. The Respondent engaged in unsatisfactory professional conduct by failing to pay [C1] wages which were owed to her. Particulars (i) [C1] remains owed a total of $1580.00 from the respondent for work performed and wages owed on the following dates: a. 1 June 2015 ($380.00 owing); b. 8 June 2015 ($540.00 owing); c. 15 June 2015 ($660.00 owing). 1. Mr Waterstreet admits that he failed to pay C1 wages owed in the amount of $1000 to $1580. He further admits that this conduct constitutes unsatisfactory professional conduct. 2. We find that Mr Waterstreet failed to pay C1 wages in the amounts set out in Complaint One Ground Two, which total $1580. That sum remains outstanding. 3. The conduct alleged in Complaint One Ground Two falls well short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. The public expects lawyers to act in compliance with the law, including honouring their contractual obligations as employers. The conduct is also a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules), being conduct likely to bring the legal profession into disrepute, as alleged in paragraph 22 of the complaint. The conduct amounts to unsatisfactory professional conduct under s 296 and s 298(b) of the Uniform Law. The respondent conceded this point. Complaint Two 1. The background to Complaint Two is set out in the complaint as follows: 11. On or about 9 August 2017, an advertisement was placed on 'CareerHub' [a portal utilised by the University of Sydney to advertise jobs] for a position of 'Paralegal and Personal Assistant'. The employer was stated as 'Rake Chambers'. The actual identity of the proposed employer was the respondent. 12. On 15 September 2017, and in response to the advertised position described above, [C2] sent an application to the respondent. At the time [C2] sent this application, she was 27 years old, held a Bachelor of Arts degree majoring in Gender Studies and Sociology, and was a first year Juris Doctor student at the University of Sydney. She was also [involved in] a registered not for profit Australian charity that [addresses issues arising] from human trafficking…. 13. At about 5pm on 20 September 2017, [C2] attended the respondent's chambers at 299 Elizabeth Street, Sydney, for the purpose of an interview for the advertised position (the interview). At some time between 5:25pm and 5:40pm, [C2] was escorted into the respondent's chambers for the purposes of the interview. 14. Present in the respondent's chambers were the following persons: i. The respondent; ii. …the respondent's "creative assistant"; iii. …the respondent's paralegal; iv. …a solicitor admitted in NSW; and v. …a client of the respondent's 1. We will refer to the people described in paragraphs ii to v, who are named in the complaint, as [the Assistant], [the Paralegal], [the Solicitor] and [the Client]. The chambers at 299 Elizabeth Street, Sydney were called "Rake Chambers". Mr Waterstreet named them (transcript 1 August 2022 p 31 lines 50-52). 2. In his affidavit of 17 March 2022, Mr Waterstreet described what he was seeking, in August 2017, by way of a 'Paralegal and Personal Assistant': 69 As referred to above, the role that [C2] applied for was that of paralegal and personal assistant. If her application were successful she would have been involved in the following work with me: a. My legal cases, including those containing graphic material such as [The Client's] case or transgender issues relevant to the client's criminal defence such as R v Armati. b. My non-legal work such as the matters I refer to below, namely, my Penthouse articles, my public speaking events such as 'Post Porn in the Age of the Internet', my small book that was in draft, my memoir that I was drafting and my proposed short film based on a client accused of burning down a strip club (including scouting for filming locations. 1. In his Reply, the respondent pleaded to paragraphs 11 to 14 of Complaint Two in the following way: 17. In response to Paragraph 11 of the Application, the Respondent: a. says that the advertisement was placed sometime after 23 August 2017, but before 15 September 2017; and b. otherwise admits the facts alleged in the paragraph. 18. In response to paragraph 12 of the Application, the Respondent says: a. on 15 September 2017, [C2] sent an application in response to the advertised position to the Respondent; and b. otherwise does not know and cannot admit the facts alleged in the paragraph. 19 The Respondent admits the facts alleged in paragraph 13 of the Application. 20. In response to paragraph 14 of the Application, the Respondent: a. admits that he, [the Assistant], [the Paralegal]. [the Solicitor] and [the Client] were present. b. says that [the Assistant] was a personal assistant and [the Paralegal] was a paralegal and personal assistant; and c. otherwise admits the facts alleged in the paragraph. 1. The Solicitor swore an affidavit dated 15 March 2022 and gave oral evidence. He said that he attended Mr Waterstreet's chambers on 20 September 2017 to discuss a matter in which he had briefed Mr Waterstreet. He said that the Assistant, the Paralegal and C2 were present in Mr Waterstreet's chambers when he arrived. He said that the Client entered the chambers after him. He said that he was present in the chambers for about 20 minutes, at which time he seized an opportunity to speak to Mr Waterstreet, alone, outside of the chambers, about the matter in which he had briefed him, after which the Solicitor left. The Solicitor said that, in the chambers, which were quite small, there were several conversations going on at once when he was present. He said that it was quite chaotic. We accept this evidence. 2. The Client who was present at the chambers on 20 September 2017 also swore an affidavit (dated 16 March 2022) and gave oral evidence. The Client said that Mr Waterstreet would often have several people in his chambers at the same time for different purposes, and this was the case on 20 September 2017 when C2 arrived for her interview. The Client said that there were several conversations going on at once, and there was laughing and joking. Like the Solicitor, the Client described the time in chambers during which C2 was interviewed by Mr Waterstreet as chaotic. We accept this evidence. 3. The Paralegal swore an affidavit dated 17 March 2022 and gave oral evidence. She said that there were at least 4 interviews scheduled for the position C2 was interviewed for on 20 September 2017. The Paralegal said that she attended the interview, which was scheduled for 5pm. She said that, during the interview, the Assistant, the Client and the Solicitor were present. We accept this evidence. Complaint Two Ground Three 1. The seven allegations in Complaint Two are set out as "Ground Three". We will deal with them in turn. They are each alleged, in paragraph 15 of the Amended Application for Disciplinary Findings and Orders, to constitute professional misconduct, or, in the alternative, unsatisfactory professional conduct on the part of Mr Waterstreet "by sexually harassing C2 during the job interview on 20 September 2017 ("the job interview"). 2. The respondent pleaded as follows with respect to Ground Three, prior to addressing each particular: Ground Three 21. The Respondent does not admit the matters alleged in paragraph 15 of the Amended Application. The first allegation in Complaint Two Ground Three 1. The first allegation in Complaint Two is that the respondent sexually harassed [C2] during the job interview by: 15 (i) Showing [C2] sexually pornographic imagery, including by showing her a website on his desktop computer which may have been the Penthouse website. 1. The respondent pleaded as follows with respect to the first allegation: Particulars to Ground Three 22. In response to particular (i) of Ground Three (Amended Application [15(i)]) the Respondent: a. attempted to show [C2] the Penthouse website on his desktop computer in order to show her examples of articles he wrote for the website which were published on the website and which she may have been required to assist him with in the future; b. denies showing her any sexually pornographic imagery whether by reference to the Penthouse website or otherwise; and c. otherwise denies the facts alleged in the particular. 1. In her affidavit of 28 January 2022, C2 described the part of the interview which is the subject of the first allegation in the following way: 23. Following the above conversation, Mr Waterstreet turned his attention to Penthouse. I understood Penthouse to be a Men's magazine/website, similar to 'Playboy'. Mr Waterstreet and I had a conversation to the following effect: Mr Waterstreet said: "Have you heard of Penthouse?" I said: "Yes vaguely. I looked into it when I was researching you before the interview because I saw that you had written pieces for it." 24. Mr Waterstreet proceeded to bring up a website on his desktop. I assumed that it was the Penthouse website. Mr Waterstreet then said words to the effect of "can you see the images?" 25. I did not want to look at the website, so I said to Mr Waterstreet words to the effect of "I have forgotten my contact lenses so I cannot see the screen". In response to my comment about my contact lenses Mr Waterstreet said words to the effect of , " you didn't tell me you had a disability". 1. In an email to the Applicant, dated 23 August 2018, C2 wrote, in relation to an earlier wording of the first allegation : I did not actually "view" the website for long enough to confirm it was Penthouse, as I quickly looked away. Mr Waterstreet said he wanted to show me Penthouse then and there, and proceeded to bring up a website on his computer, but I cannot confirm that it was Penthouse. It could have been a similar website. 1. In cross-examination, C2 agreed that she was facing Mr Waterstreet, with his desk between them. The desktop computer was facing Mr Waterstreet at a 45 degree angle, and C2 agreed that she did not have a clear view of the screen. The following exchange took place (transcript 29 July 2023 p 32-33): Q. According to you that's the critical part, you say you saw the screen. A. I did see the screen. Q. Why didn't you say it in your affidavit? A. Just - I don't - I thought - I feel like it's obvious reading it. Q. It's obvious from reading the affidavit that you saw the screen? A. Sorry, can I just - yes, "He proceeded to bring up a website on his desktop. I assumed it was Penthouse." Q. But you don't say - you don't‑‑ A. But I saw him bring the website up so‑‑ Q. But you've said you assumed it was Penthouse. A. Yes. Q. And you've just said - and that's not based upon what you actually saw. A. I saw images come up that I didn't want to look at, so I looked away. Q. Do you accept this, in 24 and 25, and indeed nowhere in this affidavit do you state that you saw images on a screen or describe what images you saw? A. Yes. Q. You didn't include that in your affidavit because you did not see any images on the website. A. I did. Q. If you'd seen images on the website, it would be obvious you would've included that in the affidavit, correct? A. I do not remember in any detail to describe what the - other than that it looked to me to be pornographic. Q. I'm asking you why you didn't include anything about what you saw in your affidavit. A. All I saw was the website coming up with images and I looked away. I don't‑‑ Q. You instantly looked away? A. Yes. Q. So you don't know what was on the screen because you‑‑ A. I saw. Q. Because you instantly looked away. A. I saw pornography. It was just - I can't‑‑ Q. Do you accept you've said nowhere at 24, 25 you saw pornography? A. Yes. Q. If you had seen pornography, there is no doubt you would've included that in this affidavit. Do you agree with that or not? A. No. It's what I saw. Q. If that's what you saw, why wouldn't you have included it? A. Because I couldn't describe it in any - it was a momentary glance. Q. But you've just said it here. "I saw pornographic images." A. Yes. Q. If that in fact is what you saw, it would've been so easy to have put it in the affidavit, wouldn't it? A. Yes, I should've put it in my affidavit. Q. You didn't put it in the affidavit because you didn't see it. A. I disagree. Q. You momentarily saw some images on the screen? A. Yes. Q. You didn't include it in the affidavit because it was so momentary, is that correct? A. Yes. Q. You couldn't describe what those images were, is that right? A. Yes. 1. In his affidavit of 17 March 2022, Mr Waterstreet said: 74 …I agree that during the interview I discussed Penthouse with [C2] as I regularly wrote articles for that publication at that time. I agree that I proceeded to bring up the Penthouse website on my desktop computer to show [C2] examples of those articles as she may have assisted me with researching and typing up such articles in the future if she was offered and accepted the position. My purpose in accessing the website was not to show her images. I had at that time written one or two articles for Penthouse that appeared on the Penthouse website and I recall asking [C2] if she could see the screen and I recall her saying that she could not see it. I therefore abandoned my attempt at showing the articles to her as she could not see them anyway. 75. I deny showing her any sexually pornographic imagery on my desktop computer including on the Penthouse website…. 1. We find that, at some point during the interview on 20 September 2017, Mr Waterstreet brought up the Penthouse website on his desktop computer for the purpose of showing C2 an article or articles written by him which had been published in Penthouse. We find that it was clear from the conversation between C2 and Mr Waterstreet immediately preceding the website being brought up on the computer that Mr Waterstreet's purpose in bringing up the Penthouse site related to the articles he had written for Penthouse. The site was on the computer for a matter of seconds, because C2 said that she could not see it, and it was therefore pointless to try to show her the article or articles. We accept that it was not Mr Waterstreet's purpose to show C2 pornographic images, and nor did he, in fact, show her pornographic images. As C2 was unable to describe what, if anything, she saw on the computer screen, we are unable to find that any pornographic image was displayed on the screen. 2. The first allegation is an allegation of sexual harassment of C2 amounting to unsatisfactory professional conduct or professional misconduct. In order to constitute sexual harassment, the conduct must be conduct of a sexual nature. 3. We accept that Mr Waterstreet's conduct in bringing up the Penthouse website was unwelcome to C2, even though she was aware of Mr Waterstreet having written articles for Penthouse. 4. Whilst much of the content of each Penthouse magazine may have related to sexual matters, we do not consider that an attempt by Mr Waterstreet to show C2 one or more of his own articles in the magazine, in order to give her a sense of what she might be asked to research in the event that she were to work for him, can be characterised as conduct of a sexual nature. The point was made in Mr Waterstreet's case that a great deal of his legal practice, his work in the film industry and his writing for publication concerned sexual issues. Mr Waterstreet's conduct in discussing any of that work with an employee, or potential employee, for a purpose solely and genuinely related to the undertaking of the work is not conduct of a sexual nature, even in circumstances where written or photographic material is jointly viewed for that purpose, despite the fact that the subject matter of the work is related to sex. Had the articles been about medical procedures, Mr Waterstreet's attempt to show them to C2 could not have been described as conduct of a medical nature. 5. Even if Mr Waterstreet's conduct in bringing up the Penthouse website in the interview could be said to be "unwelcome conduct of a sexual nature", we do not consider that the conduct occurred "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". This is an objective test. Relevant circumstances include the fact that C2 had "done her due diligence' and googled Mr Waterstreet. She had looked through his Instagram posts. C2 said that she had "looked into" Penthouse because she knew that Mr Waterstreet wrote articles for it. At 27 years old, C2 was involved in a charity, which she had founded, to assist "girls and women in Cambodia rescued from child labour, abuse and trafficking". On the curriculum vitae that C2 sent to Mr Waterstreet with her job application, C2 had said that, in addition to being a human rights activist, she was "a proud LGBTIQA supporter, as [her] father was trans" (see C2's affidavit of 28 January 2022). C2 asked questions during the interview and attempted to steer the conversation towards topics she considered to be appropriate to a job interview. The Client, in his affidavit of 16 March 2022 said that C2 appeared to him during the interview to be (paragraph 15): "…worldly, confident, strong and capable. She was telling her own jokes back at Mr Waterstreet and making fun of him a bit. She adapted to that immediately to my observation, making him the butt of the joke with her witty responses. To my observation she appeared poised, articulate, relaxed and comfortable in the social environment she was in. She appeared to me to be laughing along with his jokes and the jokes of others" C2, in her affidavit, said (at paragraph 43): "During the interview I made a joking comment to Mr Waterstreet with words to the effect of: "so I assume there is a problem with sexual harassment in the workplace?" Mr Waterstreet was caught off guard by my comment and responded with words to the effect of: "what do you mean?". I laughed my comment off as a joke because I did still want the job at this stage." C2 did not say what, specifically, caused her to make that joking comment. 1. In all of the circumstances, it seems to us that a reasonable person would not have anticipated that Mr Waterstreet's bringing up on his desktop computer of the Penthouse website for the purpose of showing C2 his article or articles would cause C2 to be offended, humiliated or intimidated. 2. There is no other evidence of Mr Waterstreet showing C2 any "sexually pornographic imagery". 3. The first allegation has not been made out. No breach of the Uniform Barristers Rules 2015 has been established. The second allegation in Complaint Two Ground Three 1. The second allegation in Complaint Two is that the respondent sexually harassed C2 during the job interview by: 15 (ii) Showing [C2] a black vibrating sex toy and asking her whether she knew what it was. When [C2] told the respondent she did know what it was, the respondent then said "it has been sitting there for 3 years, and for the first time recently, a client had realised what it was and asked me why it was there." The respondent then proceeded to laugh out loud. 1. The respondent pleaded as follows with respect to the second allegation: 23. In response to particular (ii) of Ground Three (Amended Application [15(ii)]) the Respondent: a. says that there was a black round object sitting on a shelf in his chambers shaped like an apple that had been given to the Respondent by a client and whilst it happened to be a sex toy it was not recognisable as such to the general public and only one client had recognised it as such; b. admits saying words to the effect "it has been sitting there for 3 years, and for the first time recently, a client had realised what it was and asked me why it was there"; and c. otherwise does not recall and cannot admit the facts alleged in the particular. 1. In her affidavit of 28 January 2022, C2 said: 26. During the Interview, Mr Waterstreet picked up a sex-toy which was sitting in clear view on a shelf behind him, on my right and to his left. It was a black vibrating toy. I knew it was a sex toy because I had seen that sex toy before. Mr Waterstreet showed it to me and we had a conversation to the following effect: Mr Waterstreet said: Do you know what this is? I said: Yes I do Mr Waterstreet said: It has been sitting there for 3 years, and for the first time recently, a client had realised what it was and asked me why it was there. 27. Following the above conversation, Mr Waterstreet began laughing. I felt very shocked, uncomfortable and sick in the stomach. I felt like Mr Waterstreet was trying to get a reaction out of me and to see what I would do. 1. In his affidavit of 17 March 2022, Mr Waterstreet said: 76. In response to paragraph 26 of the [C2] Affidavit I say that I recall that there was a black round object sitting on a shelf in my chambers shaped like an apple that had been given to me by my client 'Club X' as a momento for acting for them in relation to the Film Classification Act matters that I have referred to in paragraph 33 above and whilst it happened to be a sex toy it was not recognisable as such to the general public and only one client had recognised it as such. I do not recall showing it to [C2] or asking her what it was and I do not recall her replying to say that she did know what it was. I therefore do not recall how we came to be taking about it but I do recall saying words to the effect that "it has been sitting there for three years, and for the first time recently, a client had realised what it was and asked me why it was there. The client was a big bearded muslim on terrorist charges and I asked him how he knew what it was and he said., "well, I've got 4 wives and we go to Matt Blatt in Newtown every fortnight". I then laughed. As I have described above my practice involved matters that pertained to sex-related issues which often involved frank conversations so to me it was not shocking that we had a conversation about the sex toy. 77. I refer to paragraph 27 of the [C2] affidavit. [C2] was smiling and laughing throughout the interview to my observation. I also laughed as I have referred to in the preceding paragraph. 1. When giving evidence before us, Mr Waterstreet agreed that his conduct in showing C2 the sex toy and his conduct in discussing it with her in the course of the interview was inappropriate. 2. C2 sent a 'thank-you' email to Mr Waterstreet on 21 September 2017, which said: Dear Charles It was a pleasure to meet you (and your tribe) yesterday! It was certainly the most fun I've ever had in an interview! I would love to be part of the team and hope you hear from you soon. [sic] As I mentioned, I will be in Cambodia September 22nd – October 9th. [Paralegal] & [Assistant] it was lovely to meet you both too! Best Texts between C2 and her tutor were tendered before us. In her texts, C2 referred to being shown the sex toy in the course of the interview. Despite the content of the thank-you email, and the tone of the texts, we find that Mr Waterstreet's conduct in showing C2 the sex toy and in discussing it with her was unwelcome to C2, as she said it was in her affidavit of 28 January 2022. We determine that both the showing of the sex toy and Mr Waterstreet's remarks constituted conduct of a sexual nature, viewed objectively. There was no proper interview or work-related purpose to engaging in that conduct, and there was no established relationship between C2 and Mr Waterstreet to give context to the conduct. Although the Client, the Paralegal and the Assistant were probably still in Mr Waterstreet's chambers when the exchange the subject of the second allegation took place, only Mr Waterstreet and C2 were involved in the exchange, and we find that Mr Waterstreet's conduct occurred in relation to C2. A reasonable person, having regard to all the circumstances, would have anticipated that C2 would be offended, humiliated or intimidated by Mr Waterstreet's conduct in showing her the sex toy and discussing it with her. 1. The conduct the subject of the second allegation in Complaint Two has been established and constitutes sexual harassment under s 22A(b) of the Anti-Discrimination Act 1977. It was a breach of Uniform Barristers Rules 123(1)(b) and 8(c), as alleged in paragraph 24 of the complaint. The third allegation in Complaint Two Ground Three 1. The third allegation in Complaint Two is that the respondent sexually harassed [C2] during the job interview by: 15 (iii) Introducing [the Client] to [C2], and when doing so describing him as "a porn star" and having "the biggest cock in Australia" and saying words to the effect of "he has filmed a hard core porno with two people, and one of them muttered 'ouch' and now he's in trouble with the law"; 1. The respondent pleaded as follows with respect to the third allegation: 24. In response to particular (iii) of Ground Three … the Respondent: a. admits that when he introduced [the Client] to [C2] he described him as having "the biggest cock in Australia"; b. says that [the Client] was in the Respondent's chambers at that time in his capacity as one of the Respondent's clients in relation to a case that he had around the time of [C2's] interview; and c. otherwise does not recall and cannot admit the facts alleged in the particular. 1. In her affidavit of 28 January 2022, C2 said: 15. …Mr Waterstreet introduced [the Client] to me by saying words to the effect of, "This is my client….He has the biggest cock in Australia. He was a porn star. He filmed a hard-core porno with two people, and one of them muttered "ouch" and now he is in trouble with the law". I did not speak directly with [the Client] during the interview. 1. In evidence, the following exchange took place with C2: Q. Can I ask you to turn to paragraph 15 of that affidavit and read that paragraph to yourself? A. Yes, I've read that. Q. In that paragraph you relate a conversation with [the Client]? A. Yes - no-- Q. Sorry in relation to [the Client]. A. Yes. Q. You set out there words that you say Mr Waterstreet said in relation to [the Client]? A. Yes. Q. How did you feel when this conversation took place? A. Shocked. Q. Why were you shocked? A. It was very close to the start of the interview and there was no context or reason that I should know this and it, it was just said and I was just very confused as to why I needed this information. Q. Did you say anything? A. No. Q. Why didn't you say something? A. Because I was so shocked. 1. In evidence, Mr Waterstreet denied saying anything about the Client having filmed a hard core porno with two people. 2. The Client, in his affidavit of 16 March 2022 said 16. …With a broad smile on his face Mr Waterstreet described me to [C2] as: " [the Client] is a client of mine and a porn star and he has the biggest cock in Australia". 17. He laughed out loud. It was clear he was joking. I then said to [C2] words to the effect: "Yeah, that's not true, other than I'm a client of his". Mr Waterstreet then said words to the effect: "Some cult leader is trying to frame [the Client] and we are trying to help him out". 1. Neither the Solicitor nor the Paralegal heard the conversation the subject of the third allegation. 2. C2's evidence as to the conversations which took place during the interview are contradicted in a number of respects by the Solicitor and the Client, as well as Mr Waterstreet. We find that Mr Waterstreet said to C2 that the Client was "a porn star" and had "the biggest cock in Australia". We are unable to find, on the balance of probabilities, that Mr Waterstreet said anything about the Client filming a pornographic film. 3. On the basis of C2's oral evidence that Mr Waterstreet's introduction of the Client shocked her, we are satisfied that Mr Waterstreet's introduction of the Client was unwelcome conduct. Further, because of the gratuitous sexual content of the introduction, we are satisfied that the making of the introduction was conduct of a sexual nature. The introduction was directed to C2, so we find that the conduct occurred in relation to C2. Keeping in mind all of the circumstances of the interview set out in the evidence before us, we consider that a reasonable person, having regard to all of the circumstances, would have anticipated that C2 would be offended, humiliated or intimidated by the terms of the introduction. 4. The third allegation in Complaint Two Ground Three has been established with respect to the first two comments alleged to have been made by Mr Waterstreet when introducing the Client to C2, but not in relation to the third alleged comment. The making of the first two comments constituted unwelcome conduct of a sexual nature in relation to C2 and constitute sexual harassment under s 22A(b) of the Anti-Discrimination Act 1977. This conduct breached rules 123(1)(b) and 8(c) of the Uniform Barristers Rules as alleged in paragraph 24 of the complaint. The fourth allegation in Complaint Two Ground Three 1. The fourth allegation in Complaint Two Ground Three is that the respondent engaged in professional misconduct, or, in the alternative, unsatisfactory professional conduct by sexually harassing [C2] during the job interview by: 15 (iv) Making repeated comments about sex and matters of a sexual nature, including saying to [C2] words to the effect that: (a) He "loves women"; (b) He has recently become obsessed with the concept of ethical pornography and that he was in the initial stages of producing ethical pornography: (c) He wanted to film his planned ethical pornography films in a strip club owned by his 'bikie clients', and that he needed assistance in researching for his ethical pornography movie which he was going to call 'Female Manifesto'; (d) Female orgasms were more volcanic and far more powerful than men's; (e) When women undergo gender reassignment surgery they have a permanent erection. 1. The respondent pleaded as follows with respect to the fourth allegation: 25. In response to particular (iv) of Ground Three…the Respondent a. does not recall and cannot admit subparagraph (a); b. in response to subparagraph (b); i. denies saying the words attributed to him in that paragraph; ii. says that he has never been involved in, or planned on, making of 'ethical pornography' although he had been asked to speak on the topic of "Post Porn: Art, Feminism and Sex in the Age of the Internet" at the Contemporary Art Exhibition which may have included a discussion in relation to the topic of 'ethical pornography'; iii. says that he may have discussed with [C2] that as part of the role of personal assistant she would be required to conduct research in relation to the Respondent's creative projects; and iv. otherwise denies the paragraph. c. In response to paragraph (c): i. denies saying the words attributed to him in that paragraph; ii. repeats paragraph 25(b)(ii) above; iii. says that he did plan to film a drama in a strip club that was loosely based on a former client who was alleged to have burnt down a brothel/strip club called "The Love Machine" and the attempts made by his mother to find evidence to prove her son's innocence, which included going undercover as a stripper and as an escort in order to photograph candles that caused the fire which details he mentioned to [C2]; iv. says that the planned drama referred to in the preceding sub-paragraph was not a pornographic movie but was a planned mainstream drama with the theme for the film being a mother's love which knew no bounds; v. says that he had co-drafted a small book to be called "Womanifesto' or "Femifesto" (the book and title were in draft) devoted to praising and supporting women's rights and that this may have been discussed; and vi. otherwise denies the paragraph. d. The Respondent admits the facts alleged in subparagraph (d). e. In response to subparagraph (e): i. says that he was working on a legal case at the time concerning a transgender woman traumatised by genital reassignment and daily dilation after surgery; ii. says that there was a genuine discussion about the facts of the case; iii. says that [C2] had discussed her transgender parent in her covering letter when she applied for the role; and iv. otherwise denies subparagraph (e). 1. In her affidavit of 28 January 2022, C2 said the following, in relation to the fourth allegation: 19. Mr Waterstreet and I had a conversation about ethical pornography to the following effect: Mr Waterstreet said: Are you familiar with ethical pornography because of your work with sex slaves? I said: I majored in Gender Studies and am aware of the concept. Mr Waterstreet said: I have recently become obsessed with the concept and am in the initial stages of producing ethical pornography. I am representing bikies in an up-coming criminal case, and even though I think they will be going to jail, I am trying to hang on as long as I can so I can film my ethical pornography films in a strip club owned by them. 20. While Mr Waterstreet was talking about ethical pornography to me, on a number of occasions, Mr Waterstreet said words to the effect of "I love women". … 22 During the conversation(s) about "ethical pornography", I felt confused because I did not understand why Mr Waterstreet kept talking about it and how it related to the position I was interviewing for. I also felt uncomfortable and humiliated because Mr Waterstreet was speaking directly to me and no one else in the room was reacting to what he was saying. I was unsure what to make of it and how to respond because I thought Mr Waterstreet was trying to make the interview a joke or was testing me. … 28. [The Paralegal] then reminded Mr Waterstreet about my Charity. Mr Waterstreet and I had a very brief conversation about my Charity to the following effect: Mr Waterstreet said: What is your charity about? I said: My charity provides high school and university scholarships to girls and young women in Cambodia rescued from child-labour, abuse and trafficking. 29 As soon as I mentioned the word "trafficking" Mr Waterstreet changed the topic of the conversation back to 'ethical pornography' and research. I said to Mr Waterstreet words to the effect of, "I have an undergraduate degree in gender studies, and I am a good researcher. I am happy to do the research for your ethical pornography film". I felt uncomfortable doing research for an ethical pornography film, but at this stage I was desperate for the job. 30. With respect to Mr Waterstreet's ethical pornography film, Mr Waterstreet said that he was going to call it "female manifesto". After telling me this, Mr Waterstreet said words to the effect of, "I am going to call it female manifesto because female orgasms are volcanic, and much more powerful than men's". 31. Following the above comments from Mr Waterstreet, I felt very confused about why we were discussing ethical pornography again. I was also offended and disgusted because the topic of my Charity was being used to segue into pornography. … 40 When Mr Waterstreet returned his attention to the interview, he looked at my CV. He noticed that I had indicated that I was a human rights activist and a proud LGBTIQA supporter, as my father was trans. Mr Waterstreet proceeded to inform me on a very detailed level about how when women undergo gender reassignment surgery they have a permanent erection and the technical details about the process. Mr Waterstreet said words to the effect of "when women undergo gender reassignment surgery they have a permanent erection". 41. Mr Waterstreet then said to me words to the effect of, "did your trans-parent undergo sex reassignment surgery? If so, where?" 42. I responded to Mr Waterstreet with words to the effect of "I supported my parent through the process". I did not want to speak to Mr Waterstreet about my father as the topic made me feel very uncomfortable and I was unsure how this related to the job I was interviewing for. 1. In cross-examination, C2 was asked about the conversation recounted at paragraph 19 of her affidavit of 28 January 2022. The following exchange took place (transcript 29 July 2022 p 35 line 21-25): Q. In that you have recalled a conversation - do you recall the first time you actually tried to recall that conversation in the terms that you've described in paragraph 19? A. The first time I recalled‑‑ Q. That's right, the conversation. A. Do I remember when the first time I recalled it was? Q. That's right, when you tried to recall what was‑‑ A. No. No I don't. No. Q. Do you accept that given the lapse of time between when the conversation was had and this affidavit that you may not have recalled conversation with complete accuracy? A. Yes. 1. It emerged, as cross-examination continued, that C2 had written notes about the interview with Mr Waterstreet which had not previously been provided to either party. C2's purpose in making the notes was to provide them to an online media outlet called 'New Matilda'. 'New Matilda' published a story on 31 October 2017 about C2's interview with Mr Waterstreet, calling C2 by the pseudonym 'Anita". C2's original notes must have been written before 31 October 2017. The notes produced to the Tribunal in the course of C2's cross-examination were a copy of the notes sent by C2 to Chis Graham, of 'New Matilda' on 20 February 2018 for the purpose of having him facilitate a meeting between C2 and Marque Lawyers with a view to the preparation of a statutory declaration to form the basis for the making of a complaint. In cross-examination, C2 initially said that she must have written the notes shortly before 20 February 2018. She was asked if she had ever engaged with New Matilda before February 2018, and she said "No". Later, in her cross-examination, the following exchange took place: Q. You've given evidence - go back to exhibit R15, that this was written in about February, 20 February 2018 and you then gave it to Mr Chris Graham. A. Yes. Q. Why do you say you're confident it was on 20 February 2018? A. Because that's when I emailed it to him. Q. You definitely didn't email it to him before then? A. Not that I'm aware of. Q. I just want to show you an article please. A. Thank you. Q. Are you aware that an article was published in New Matilda on 31 October 2017 in which a - where it was published a woman called Anita in her 20s had provided a lengthy written statement of her experience? A. Yes. Q. That Anita was you, correct? A. Yes. Yes. Q. Can you explain how a lengthy written statement was given to New Matilda‑‑ A. I must've sent it. Q. I've got to finish the sentence. A. Sure. Q. Can you explain how a lengthy written statement was provided to New Matilda on or before 31 October 2017? A. I must've sent it earlier. Q. Do you say it was the same statement? A. Yes of course. Q. You've checked today or yesterday that you emailed the statement on 20 February 2018. A. My understanding was that you wanted the document, I didn't - that is the document of what I wrote. I wasn't aware at the time that you wanted to know exactly when I sent it. To the best of my knowledge that was 20 February but looking at this I must've sent it earlier. Q. The date of 20 February 2018 wasn't something you plucked out of the air, was it? A. No it's on the email. Q. On the email? A. Yes. Q. So you looked at the email on 20 February 2018, is that right? A. Yes. … Q. Does that mean that there was another email you sent before then? A. Yes, there must - I must have sent it to him before. Q. Have you disclosed that other email with the lengthy written statement to anyone in these proceedings? A. It's the same document. Q. Well you say so. A. Yes. Q. My question is this, have you disclosed to‑‑ A. No. Q. ‑‑anyone­ - just a second. In these proceedings‑‑ A. No. Q. ‑‑to your solicitor, an earlier email sent before 31 October? A. No, not that I'm aware of. … Q. Can you think of any explanation why you would have sent a lengthy written statement to New Matilda on or before 31 October and then the same statement on 20 February 2018? A. Yes. Q. What's an explanation? A. Well the purpose - Chris probably asked me so that he could provide it to Marque Lawyers. Q. Hadn't you already provided it? A. Yes. Q. Why did he ask you to provide it again? A. I don't recall, I would assume it would be because it was easier, he wasn't able to find it. Q. You assume but you don't know? A. Well yes, yes. Q. When you prepared this document, R15, that's the three pages, did you work on the draft? That is did you type it and then work it and rework it? A. I don't remember. Q. Were there different drafts of this statement? A. No, no. 1. No further statement was produced. 2. C2's statutory declaration of 25 June 2018 and her affidavit of 28 January 2022 rely, to a large extent, on the notes provided to 'New Matilda' on 20 February 2018. 3. In cross-examination, C2 properly conceded that she may not have recalled conversations with complete accuracy when she wrote the notes (see transcript p 53-59). Paragraph (a) of the fourth allegation in Complaint Two Ground Three 1. Mr Waterstreet said, in his affidavit, that he did not recall saying "I love women" in the course of the interview, but, in examination in chief, Mr Waterstreet accepted that he said "I love women" in the interview in the course of discussing a book he was writing with a co-author, which was to be called 'Female Manifesto', or something similar (transcript 1 August 2022 p 35 lines 11-26): Q. Do you recall saying during the interview words to the effect of that you love women? A. Yes. Well I accept I said that. I can't recall it but it is‑‑ Q. Do you recall discussing the book Female Manifesto in the course of that interview? A. I, I - until I read the complaint I couldn't recall that off my own bat. Q. Do you accept that you did recall discussing‑‑ A. Yes, I certainly do. Q. Do you accept that you did discuss Female Manifesto? A. Yes I did and particular (a) is in that context. Q. In the context of the‑‑ A. Of the book. 1. In order to constitute sexual harassment, as alleged, the speaking of those words must be found to amount to unwelcome conduct of a sexual nature in order for paragraph (a) of the fourth allegation to be established. 2. Mr Waterstreet's oral evidence was that he said "I love women" in the context of telling C2 about the book he was co-writing with the working title 'Female Manifesto'. 3. It is necessary to assess whether the speaking of those words constituted conduct of a sexual nature. The statement is not necessarily sexual in itself. 4. We are unable to find that the speaking of the words "I love women" by Mr Waterstreet in the interview of 20 September 2017 constituted conduct of a sexual nature, because we do not have sufficient context for the making of the statement to arrive at that conclusion. C2 said that Mr Waterstreet made the remark in the context of 'discussing ethical pornography'. Mr Waterstreet said that it was in the context of discussing the book he was co-writing. Both of those contexts are too broad to enable us to determine that the making of the remark constituted conduct of a sexual nature. The Council has not discharged its onus with respect to paragraph (a) of the fourth allegation of Complaint Two. Paragraph (b) of the fourth allegation in Complaint Two Ground Three 1. The allegation in paragraph (b) of the fourth allegation is that Mr Waterstreet said words to the effect that "He had recently become obsessed with the concept of ethical pornography and that he was in the initial stages of producing ethical pornography". Mr Waterstreet denies that he has ever been involved in, or planned, the production of ethical pornography, and further denies that he said words to the effect of the words set out in paragraph (b) of the fourth allegation. 2. In his affidavit of 17 March 2022, Mr Waterstreet said: 82. In response to paragraphs 19 and 29 of the [C2] affidavit, I deny saying words attributed to me by [C2] in paragraph 19. I have never been involved in, or planned on making 'ethical pornography' although I had spoken on the topic of "Post Porn: Art, Feminism and Sex in the Age of the Internet' at the Contemporary Art Exhibition on 9 September 2017. A copy of the email invitation to me to participate in this talk dated 23 August 2017 is at page 122 of Exhibit AH1 to the AH Affidavit. I may therefore have discussed the topic of ethical pornography with [C2] in this context and I may have discussed with her that as part of the role of personal assistant she would be required to conduct research in relation to my creative projects. 1. The Solicitor says, in his affidavit of 15 March 2022: 24. I refer to paragraphs 19, 21, 22, 29 and 30 and 34 of the [C2] Affidavit. I do not recall any conversation about 'ethical pornography' or female orgasms whilst I was present. If there had been such a conversation whilst I was present, I assume that I would remember it, because it would be out of context for a job interview. Moreover, if ethical pornography had been raised in the context of me and Mr Waterstreet intending on filming an ethical porn film ([C2] Affidavit at [34] I would definitely remember as it is not true. I deal with this issue further in paragraph [29] below. 25. I refer to paragraph 20 of the [C2] Affidavit. I do not recall hearing Mr Waterstreet saying the words attributed to him. As I have referred to in paragraph [18] above, during the time that I was in Mr Waterstreet's chambers, at no time did [C2] indicate to me (nor did I notice her indicate to anyone else) that she was in any way uncomfortable or feeling humiliated. It seemed to me at the time that she was laughing and talking along with everyone else. … 28. I refer to paragraph 27 of the [C2] Affidavit. During the time that I was in Mr Waterstreet's chambers, at no time did [C2] indicate to me (nor did I notice her indicate to anyone else) that she was 'very shocked, uncomfortable, and sick to the stomach'. As I have stated in paragraph [18] above, it seemed to me at the time that she was laughing and talking along with everyone else. 29. I refer to paragraph 34 of the [C2] Affidavit. I did not say the words attributed to me in that paragraph. I did not have any discussion with [C2] about 'ethical pornography'. I am not, and nor have I every been involved in filming any sort of pornography, 'ethical' or otherwise in Australia or overseas. Indeed, I am not, and nor have I ever been involved in any film production of any kind. I did have a short discussion with [C2] about child abuse and sex slavery in Cambodia in the context of my charity work there as I have described in paragraph [12] above. 1. The Solicitor says that [C2] was seated in Mr Waterstreet's chambers when he arrived on 20 September 2017 and was there still when he left about 20 minutes later. The Solicitor was clearly not present for the whole of the interview. 2. In her affidavit of 17 March 2022, the Paralegal says: 20. I refer to paragraphs 19, 21, 29, 30, 34 of the [C2] Affidavit. I do not recall any conversation about ethical porn with C2. I do, however, recall that Mr Waterstreet had recently spoken on a panel at an event at Sydney Contemporary on 9 September titled: 'Post Porn: Art, Feminism and Sex in the Age of the Internet'. I do not recall Mr Waterstreet saying to me or to anyone else in my presence that he was involved in filming ethical pornography. I recall that Mr Waterstreet was involved in several film projects at the time of my employment with him. I refer to these projects in detail below at paragraph 21. To my knowledge none of the films were pornography or ethical pornography. 21. I do also recall around the same time Mr Waterstreet had been talking in my presence about directing a short film at The Love Machine, a brothel in Kings Cross. During the period I worked for Mr Waterstreet, I recall that there were efforts made by other staff to contact the venue with a view to confirming it as a filming location. Mr Waterstreet's client, [name of client], allegedly set The Love Machine alight after attacking a worker, and I understood the film would be based on these events. I do not think that [name of client] was a 'bikie'. For the period I worked for Mr Waterstreet I do not remember him representing any 'bikies' but he may have done so, as is usual for criminal lawyers and barristers. I do not recall the conversation about orgasms as referred to in paragraph 30 of the [C2] Affidavit. 1. On the basis of the evidence before us, the Council has not discharged its burden of proof in relation to the facts alleged in paragraph (b) of the fourth allegation. No doubt Mr Waterstreet's chambers were chaotic during much of the interview on 20 September 2017. For at least 20 minutes of the hour and a half, there were six people in the room. Mr Waterstreet did not speak exclusively to C2, but sometimes spoke to other people in the room. The Client and the Solicitor were present for purposes unrelated to C2's interview. People came and went. It seems to us that C2 became confused in relation to the conversation about ethical pornography in the context of Mr Waterstreet's participation in the event at the Contemporary Art Exhibition and elided it with the separate topic of Mr Waterstreet's proposed film about the fire at "The Love Machine". C2 frankly conceded in cross-examination that she was confused during the interview (transcript 29 July 2022 p 65 line 35). 2. C2 said that she told at least three people about the interview, or aspects of it, shortly after the interview; her Tutor, who was a student in a higher year at university, a male friend and her father. She also wrote an account of the interview, which was the same as or similar to the document which forms Exhibit R15, sometime prior to 31 October 2017, for the purposes of the 'New Matilda' article. 3. We believe the evidence of Mr Waterstreet that he has never produced or planned to produce pornography, and that he did not tell C2 that he did plan to produce it. We note that there is no evidence before us of Mr Waterstreet being involved in the production of pornography, though there is evidence of his involvement in other types of films (see [10] above). 4. The Council has not established, on the evidence, that Mr Waterstreet claimed, during the interview, that he planned to produce pornography of any kind. 5. We believe Mr Waterstreet's evidence that he spoke on the topic "Post Porn: Art, Feminism and Sex in the Age of the Internet" at the Contemporary Art Exhibition on 9 September 2017, 11 days prior to the interview. It is possible that any reference by Mr Waterstreet in the course of the interview to 'ethical porn' might have been made in the context of a reference to that event. 6. We believe the evidence of the Solicitor that he has never been involved, or planned to be involved, in the making of ethical pornography, pornography of any kind, or any film. We further believe that the Solicitor did not say anything about being involved in ethical pornography, pornography of any kind or any film in the course of the interview. 7. The Council has not established the facts alleged in paragraph (b) of the fourth allegation. Paragraph (c) of the fourth allegation in Complaint Two Ground Three 1. Paragraphs (c) and (b) of the fourth allegation are linked. The allegation in paragraph (c) is that Mr Waterstreet said that he wanted to film his planned ethical pornographic films in a strip club owned by his 'bikie clients', and that he needed assistance in researching for his ethical pornography movie which he was going to call 'Female Manifesto'. 2. In his affidavit of 17 March 2022, Mr Waterstreet said: 83. As I have stated in the preceding paragraph, I deny saying the words attributed to me in paragraph 19 of the [C2] Affidavit. I did plan to film a drama in a strip club whereby I was going to produce the film and get a director to direct it. I did not and would never have said to [C2] that any of my clients would be going to jail or that "I needed to hang on as long as I can". I do not even know what that means. I did have a client at that time who happened to be the President of the Sydney Chapter of the Hells Angels. It was my understanding from a conversation that I had with his solicitor that that client was, at that time, managing a strip club which meant that I had a contact who could potentially grant us access for filming. However, if I could not get access to that strip club, I was content to find another strip club location to film. The film was loosely based on a former client who was alleged to have burnt down a brothel/strip club called 'The Love Machine' and the attempts made by his mother to find evidence to prove her son's innocence, which included going under cover as a stripper and as an escort to photograph candles that caused the fire and I mentioned this to [C2] during the interview. However, this planned drama was not a pornographic movie but a planned mainstream drama with the theme for the film being a mother's love which knew no bounds. 84. In paragraph 30 of the [C2] Affidavit it is alleged that I was going to call the movie 'female manifesto'. I deny saying that to [C2] since for the reasons explained in the preceding paragraphs I have never had any intention to film any pornography. I had a that time co-drafted a small book with Tilly Lawless and one of my other personal assistants, to be called 'Womanifesto' or 'Femifesto' (the book and title were in draft) devoted to praising and supporting women's rights and I may have discussed this with [C2] during her interview. 1. Mr Waterstreet was not cross-examined in relation to paragraphs 83 or 84 of his statement. We accept the truth of the factual information contained in those paragraphs. 2. In the circumstances described above at [221] - [224] and [233], we find that C2 has confused three matters raised by Mr Waterstreet in the course of the interview; his presentation on 9 September 2017 at the Contemporary Art Exhibition, the aspiration by Mr Waterstreet (and not the Solicitor) to produce a film loosely based upon the burning down of 'The Love Machine', and the draft book co-written by Mr Waterstreet, which was proposed to be called 'Female Manifesto', 'Womanifesto' or 'Femifesto'. 3. We find that Mr Waterstreet did not make the statement alleged in paragraph (c) of the fourth allegation. Neither the film he was proposing to make nor the book that he was engaged in co-writing were 'ethical pornography', and he did not say that they were. 4. The allegations in paragraph (c) of the fourth allegation of Complaint Two have not been proven. Paragraph (d) of the fourth allegation in Complaint Two Ground Three 1. Paragraph (d) of the fourth allegation is the allegation that Mr Waterstreet said, in the course of the interview, that female orgasms were more volcanic and far more powerful than men's. 2. In his Reply, Mr Waterstreet admits making this statement. He does not, however, admit that it constituted sexual harassment. 3. In her affidavit of 28 January 2022, [C2] says: 30. With respect to Mr Waterstreet's ethical pornography film, Mr Waterstreet said that he was going to call it 'female manifesto'. After telling me this, Mr Waterstreet said words to the effect of, "I am going to call it female manifesto because female orgasms are volcanic, and much more powerful than men's". 31. Following the above comments from Mr Waterstreet, I felt very confused about why we were discussing ethical pornography again. I was also offended and felt disgusted because the topic of my Charity was being used to segue into pornography. … 34. Following the above conversation, Mr Waterstreet and [the Solicitor] said words to the effect of "it is possible that our ethical porn would be filmed in Asia. What do you know about sex-slavery in Asia?" 1. As we have said, we do not accept C2's evidence that Mr Waterstreet said that he was going to make an ethical pornography film and call it 'female manifesto'. 2. In cross-examination, C2 was asked about paragraph 34 of her affidavit of 28 January 2022 (transcript 29 July 2022 p 59 line 9): Q. You then say that - you said, "Following the above conversation Mr Waterstreet and [the Solicitor] said words to the effect of, 'It is possible that our ethical porn film will be filmed in Asia.'" They both said the same words at the same time? A. No, no. I actually - I can't remember who said that now. Q. So it could just have been [the Solicitor]? A. Yes it could have been just [the Solicitor]. Q. I want to suggest that neither [the Solicitor] nor Mr Waterstreet said words to that effect. A. It was said. Q. You just don't recall by whom? A. I believe, I believe it was Mr Waterstreet. I can't, I can't say definitely, I just can't. Q. Well you said before you don't know who said it. Remember saying that just a moment ago? A. My memory is it's Mr Waterstreet but I can't say certainly. I just can't remember. Q. When I say the word "resile" I withdraw‑‑ A. Yes. Q. You don't resile from what you said earlier, that you don't recall who said those words? A. No I don't. No I don't. 1. C2 implies that the Solicitor was part of the conversation about plans for an ethical pornography film, and that this is the context in which Mr Waterstreet said that female orgasms are volcanic and much more powerful than men's. As we have said, above, we accept the evidence of the Solicitor that he had no involvement in plans for any film project of any kind, and did not participate in any discussion about the production of ethical pornography, including a pornographic film. We also accept that Mr Waterstreet did not, as at 20 September 2017, plan to produce a pornographic film or pornography of any kind, and we accept that he did not say, in the interview, that he did have such plans. 2. In oral evidence, Mr Waterstreet said: Q. Do you accept that you did say to [C2] words to the effect that female orgasms are more volcanic and far more powerful than men's? A. That's part of the book. Q. Do you accept you said those words, words to that effect? A. Yes. Q. And you said it's part of the book that you were planning to write? A. Yes. Well I was writing. Q. Do you accept it was inappropriate to say those words to [C2] in that interview? A. In that interview yes. 1. We find that Mr Waterstreet made the statement that female orgasms are more volcanic and far more powerful than men's in the context of the book that he was co-writing at the time, with the working title 'Female Manifesto' or femifesto' or 'womanifesto'. 2. We accept that Mr Waterstreet's statement that female orgasms are more volcanic and far more powerful than men's was unwelcome to C2. 3. We consider that the uttering of the statement, viewed objectively, was conduct of a sexual nature. The subject matter of the statement was specifically sexual. The statement was made directly to C2 and was therefore made 'in relation to' her. 4. A reasonable person, having regard to all of the circumstances, would have anticipated that C2 would be offended, humiliated or intimidated. The relevant circumstances include the fact that C2 said, in her application to Mr Waterstreet, dated 14 September 2017: As someone who has had a colourful past, is the proud daughter of a trans parent, and acts as the Founder and Director of a not-for-profit organisation in Cambodia, I have a wealth of experience, practical skills and knowledge that cannot be obtained solely in an office. The relevant circumstances also include C2's confident and apparently comfortable demeanour in the interview, as described by the Client, whose evidence we accept. Even having regard to these circumstances, however, we consider that the comment was so far beyond anything that would be expected or acceptable in the course of an interview for the position of paralegal in a barrister's chambers that a reasonable person would anticipate that C2 would be offended, humiliated or intimidated. 1. The allegation in Complaint Two, Ground Three, Particular 4 paragraph (d) has been made out, and constitutes sexual harassment. The conduct was a breach of rules 123(1)(b) and 8(c) of the Uniform Barristers Rules as alleged in paragraphs 23 and 24 of the complaint. Paragraph (e) of the fourth allegation in Complaint Two Ground Three 1. Paragraph (e) of the fourth allegation alleges that Mr Waterstreet said to C2 during the interview that when women undergo gender reassignment surgery they have a permanent erection. 2. In his reply, Mr Waterstreet says: 25e. In response to subparagraph (e): i. says that he was working on a legal case at the time concerning a transgender woman traumatised by genital reassignment and daily dilation after surgery; ii. says that there was genuine discussion about the facts of this case; iii. says that [C2] had discussed her transgender parent in her covering letter when she applied for the role; and iv. otherwise denies subparagraph (e). 1. In her affidavit of 28 January 2022, C2 said: 40. When Mr Waterstreet returned his attention to the Interview, he looked at my CV. He noticed that I had indicated that I was a human rights activist and a proud LGBTIQA supporter, as my father was trans. Mr Waterstreet proceeded to inform me on a very detailed level about how when women undergo gender reassignment surgery they have a permanent erection and the technical details about the process. Mr Waterstreet said words to the effect of "when women undergo gender reassignment surgery they have a permanent erection". 1. In his affidavit, Mr Waterstreet said: 86. In response to paragraph 40 of the [C2] affidavit, I was working on a legal case (R v Amati) at the time concerning a transgender woman who had been traumatised by genital reassignment surgery and the requirement for daily dilation after surgery and I recall having a genuine discussion with [C2] about some of the facts of this case. I cannot recall how much detail of the facts I discussed with [C2]. But the facts of the case were that my client, who was 19 at the time, was traumatised because she underwent her gender reassignment surgery in Thailand and when she came back to Australia after surgery, she went untreated and was not able to find an endocrinologist who would treat her with hormones.…[explanation of treatment undergone by the client]…The case concerned the client suffering a psychotic episode whereby she went in to a 7 Eleven store with an axe and attacked or attempted to attack 3 people. As referred to above she had been charged with attempted murder. She was ultimately convicted of attempted manslaughter. I thought that this case would be of interest to [C2] since she had revealed in her application that she majored in gender studies and that she had a transgender parent. I deny saying to [C2] the words attributed to me in paragraph 40 of the [C2] Affidavit. I would not have said this as it was something that was contrary to my then knowledge. 1. In evidence before us, Mr Waterstreet again denied making the alleged statement, and, when asked whether he knew at the time whether the alleged statement was true, he said "Wouldn't have a clue" (transcript, 1 August 2023 p 36 line 1-2). 2. In cross-examination, C2 was asked whether Mr Waterstreet discussed with her, in the interview, a client of his who had undergone gender reassignment surgery. The following exchange took place (transcript 29 July 2022 p 67 line 1-11: Q. I suggest that he also spoke about another client who had a gender reassignment surgery. A. No. Q. Isn't it possible that he had that discussion and you simply couldn't recall it? A. It is possible. Q. I want to suggest that he never said to you anything to the effect of, "When women undergo gender reassignment surgery they have a permanent erection." A. He did. Q. That is something you have added in to give a particular flavour to the interview that never occurred. A. No. 1. The Solicitor said, in his affidavit, that he did not hear Mr Waterstreet say the words alleged in paragraph (e) of the fourth allegation whilst he was in the room. 2. The Client said, in his affidavit: 23 I recall there was a conversation about one of Mr Waterstreet's clients, Evie, who had gone through gender reassignment. I recall the discussion was about the stresses this had put her under and how this was relevant to the charges she faced (in respect of which Mr Waterstreet was acting for her). In other words, it was a discussion of gender reassignment surgery in the context of one of Mr Waterstreet's cases. … 38 I refer to paragraph 40 of the [C2] Affidavit. I did not hear Mr Waterstreet say words to the effect stated in that paragraph. I think if he had said those words I would have been shocked and I would have remembered them. I do recall a discussion about one of Mr Waterstreet's cases concerning a transgender person named Evie. The conversation was about the facts in that case including the fact that … Evie … had hit someone's head with an axe in the inner west. I recall Mr Waterstreet saying words to the effect: Mr Waterstreet: "Evie was encouraged to go through a transgender process way too early, when she should have been talked into waiting until she was an adult and it set her off the rails and she was in a psychotic state. She was probably just gay and in time she may have just felt better in her own body rather than having the surgery. It is a really horrific situation". 1. The Paralegal said, in her affidavit: 29 I refer to paragraphs 40, 41 and 42 of the [C2] Affidavit. I do remember that at the time Mr Waterstreet was representing a client named Evie, who had undergone gender reassignment surgery to become a woman. That client had shared details of the surgery with Mr Waterstreet. I recall thinking that the procedure sounded very traumatic and I recall Mr Waterstreet conveying this to [C2] who was familiar with the details of the procedure. I recall thinking at the time that [C2] and Mr Waterstreet were discussing the topic as two interested and well informed adults. 1. Neither Mr Waterstreet, the Solicitor, the Client nor the Paralegal were cross-examined with respect to their evidence in relation to the allegation in paragraph (e) of the fourth allegation. 2. We are not satisfied on the balance of probabilities that Mr Waterstreet said the words that he is alleged to have said in paragraph (e) of the fourth allegation. The fifth allegation in Complaint Two Ground Three 1. The fifth allegation in Complaint Two is that the respondent sexually harassed [C2] during the job interview by: 15 (v) Asking [C2] whether she knew anyone with 'money' who would provide funding for his upcoming ethical porn film; 1. The respondent pleaded as follows with respect to the fifth allegation: f. The Respondent denies particular (v) of Ground Three …and repeats paragraph 25(b)(ii) above. 1. As we have accepted that Mr Waterstreet did not say, in the course of the interview, that he was planning to produce an ethical porn film, we reject the allegation that he asked C2 whether she knew anyone with money who would fund it. 2. The fifth allegation in Complaint Two Ground Three has not been established. The sixth allegation in Complaint Two Ground Three 1. The sixth allegation in Complaint Two is that the respondent engaged in professional misconduct or unsatisfactory professional conduct by sexually harassing [C2] during the job interview by: 15 (vi) Asking [C2] about the genitals of her transgender parent; 1. The respondent pleaded as follows with respect to the sixth allegation: g. The Respondent denies particular (vi) of Ground Three…; 1. C2 said, in her affidavit, after making the allegation in paragraph (e) of the fourth allegation: 41. Mr Waterstreet then said to me words to the effect of, "did your trans-parent undergo sex reassignment surgery? If so, where?" 42. I responded to Mr Waterstreet with words to the effect of, "I supported my parent through the process". I did not want to speak to Mr Waterstreet about my father as the topic made me feel very uncomfortable and I was unsure how this related to the job I was interviewing for. 1. As we set out, in [248] above, C2 included in her application for the position for which she was being interviewed on 20 September 2017 the information that she was "a proud daughter of a trans parent". 2. In his affidavit, Mr Waterstreet said: 88 In response to paragraph 41 of the [C2] Affidavit, in the course of the discussion that I had with [C2] regarding the R v Amati case and the fact that [C2] had referred to her transgender parent in her job application, I asked [C2] whether her parent underwent gender reassignment and if so where, as in which country and hospital. I was curious for my client as to what help they had received post-surgery. 1. We find that Mr Waterstreet said to C2, in the course of the interview, the words "Did your trans-parent undergo sex reassignment surgery? If so, where?" However, we do not consider that those words can fairly be interpreted as an enquiry about the genitals of C2's transgender parent, on an objective interpretation. We find that, upon hearing those words, the reasonable listener would understand that Mr Waterstreet was enquiring about the geographical place and medical facility at which C2's parent underwent any sexual reassignment surgery they may have undergone. This is consistent with the context in which the question arose, following Mr Waterstreet's description of the sexual reassignment surgery which, we have found, related to a client of his. That client, as we have set out above, underwent her surgery in Thailand, which posed a problem for her on her return to Australia (see [253], above). 2. The Council argued that a reasonable person would assume from Mr Waterstreet's words that he was enquiring about the genitals of C2's transgender parent. In that case, the question becomes, in other words, "If so, where on the body of your parent did the surgery take place?". We reject that argument. It sits uneasily with the context of the question, and would be a very odd thing to ask, the answer being quite obvious. If someone asks "Did you get your hair cut? If so, where?" the usual answer would be the name and location of the place of business of the barber or hairdresser, not the body part upon which the hair which was cut grows. The uttering of the words "Did your trans-parent undergo sex reassignment surgery? If so, where?" does not constitute conduct of a sexual nature. 3. The sixth allegation in Complaint Two has not been made out. The seventh allegation in Complaint Two Ground Three 1. The seventh allegation in Complaint Two is that the respondent engaged in professional misconduct or unsatisfactory professional conduct by sexually harassing C2 during the job interview by 15 (vii) Showing [C2] a bottle of Viagra which he extracted from his briefcase. 1. The respondent pleaded as follows with respect to the seventh allegation: h. In response to particular (vii) of Ground Three…the Respondent says: i. that at all material times he had a prescription for Viagra it has always been dispensed in a packet not a bottle; and ii. that a packet (not a bottle) of Viagra may have appeared coincidentally when the Respondent was trying to discreetly return a packet of wet wipes to his bag on returning from the bathroom and he may have made a joke about it; and iii. otherwise does not admit the paragraph. 1. The events the subject of this allegation occurred when Mr Waterstreet returned from going to the bathroom in the course of the interview. 2. C2 said, in her affidavit: 38. When Mr Waterstreet came back into his office, he rummaged through his briefcase and pulled out Viagra medication. He appeared horrified and said in a comedic way words to the effect of, "the police have planted Viagra on me, somebody do something!" 39. I felt shocked and uncomfortable when Mr Waterstreet pulled out the Viagra. I felt like I was being taken advantage of, being made fun of, and that there was no job available. 1. In cross-examination, C2 was unable to recall what the briefcase looked like, or whether it was full of material. She was shown Mr Waterstreet's bag (which is not a briefcase) and she was unable to say whether that was what she was referring to in paragraph 38 of her statement. It was put to her that what came out of the bag was a packet, not a bottle, and she denied that, saying that it was a bottle. 2. In the cross-examination of C2 in relation to the seventh allegation, C2 agreed that she could not recall whether Mr Waterstreet looked into the bag before he pulled the bottle out of the bag, and the following exchange took place (transcript 29 July 2022 p 68-69): Q. … You have given evidence about comments he made about the Viagra? A. Yes. Q. Did that appear to you to be a joke? He did that in a jocular or joking manner? A. Yes. Q. And you don't know whether it was an attempt to deflect any embarrassment he had at the time, do you? You don't know that? A. What do you mean? It was an intentional removal of an object from a bag. Q. That is what you are assuming, that he intended to remove a particular object from the bag and I'm suggesting you don't know enough to make that assertion if you don't even know whether he looked into the bag when he pulled the object out, do you accept that? A. I suppose - yes, yes. 1. In his affidavit, the Client said: 21. I remember Mr Waterstreet made a Viagra joke (the substance of which I cannot now recall). It happened when some pills fell out of his bag, and I think he was embarrassed and as usual, trying to defuse the situation with humour. He said it to me, not directly to [C2]. I found it amusing and it was in keeping with the banter we shared. 1. In evidence, the Client said that Mr Waterstreet's bag was always full, and "everything was spilling out, papers, files…" (transcript 29 July 2023 p 73 line 36). 2. Mr Waterstreet, in his affidavit, repeats the response to this allegation in his Reply and adds that he does not recall what he said and that he does not recall saying the words attributed to him in paragraph 38 of C2's affidavit. He maintained this position under cross-examination. 3. We accept Mr Waterstreet's evidence that he is prescribed Viagra for a medical condition. We accept C2's evidence about what Mr Waterstreet said when the Viagra came out of the bag. We do not accept, however, the allegation that Mr Waterstreet was "showing C2 a bottle of Viagra which he extracted from his briefcase". We accept Mr Waterstreet's evidence that, in the course of attempting to return to his bag a packet of wet wipes, the Viagra, in a packet not a bottle, came out of the bag, and that Mr Waterstreet tried to make light of it by joking about it. 4. We do not consider that, viewed objectively, Mr Waterstreet's actions or words in relation to the Viagra coming out of his bag constituted conduct of a sexual nature. 5. Allegation 7 of Ground Three of Complaint Two has not been made out. 6. The allegations of sexual harassment in paragraph 15(ii), 15(iii) (as to the first two comments, but not the third) and 15(iv)(d) have been made out. Each of them constitutes a breach of r 123 of the Uniform Barristers Rules and also breaches rule 8(c) of those rules, being conduct likely to bring the legal profession into disrepute. The allegations which have been made out constitute unsatisfactory professional conduct under s 296 and s 298(b) of the Uniform Law. Complaint Three, Ground Four 1. Again, the numbering of the grounds for the complaint follows on from the previous Complaint. The first part of Complaint Three, which is the preamble followed by Ground Four, must be dealt with by itself: COMPLAINT THREE 16. Shortly prior to close of business on 22 February 2019, [C3], a legal assistant at [name of firm] delivered a brief to a barrister at Culwulla Chambers (located at Level 11, 67 Castlereagh Street Sydney New South Wales). To leave the building, she used the service lift, as the main lift was out of order. Three men, including the respondent, entered the lift at a lower floor. As they entered the lift, the men were in discussion with each other. Ground Four 17. The respondent engaged in unsatisfactory professional conduct by sexually harassing [C3] while inside a public lift at 67 Castlereagh Street, Sydney, New South Wales. Particulars (i) As the three men as described above entered the lift, the respondent, who was carrying his blue barrister's robe bag, turned to [C3] and they had the following exchange: The respondent: how would you describe our young colleague here? [C3]: I would rather stay silent on that. [C3] otherwise did not engage with the respondent, or anyone else in the lift. The respondent then asked [C3] "which one of the three of us would you prefer?" [C3] laughed uncomfortably, evaded eye contact and did not answer. The respondent then said "my friend is your age but if you like money" and gestured to himself as he looked [C3] up and down. (ii) The lift stopped at another level and another man entered. The respondent then said to [C3] "okay, so which of the four or us would you prefer?" [C3] ignored him. (iii) The lift stopped again at another level and a female entered the lift. The respondent then turned to [C3] and said "I didn't mean to be discriminatory earlier, which of the five of us would you prefer?" 1. In his Reply, the respondent pleads as follows: Complaint Three 26 The Respondent admits the facts alleged in paragraph 16 of the Amended Application. Ground Four 27 In response to the whole of paragraph 17 of the Amended Application, the Respondent: a. admits that he engaged in unsatisfactory professional conduct by sexually harassing [C3] while inside a public lift at 67 Castlereagh Street, Sydney, New South Wales, and b. says that he does not recall the specific particulars of the conduct as pleaded in paragraph 17 but accepts that the conduct or similar conduct occurred. 1. An affidavit of C3, affirmed on 10 November 2021, was tendered by the Council, and C3 was not required for cross-examination. We accept the evidence of C3. In her affidavit, she said that she felt "distressed and uncomfortable during and following the incident. The incident occurred on 22 February 2019, and C3 said, in her affidavit, which she affirmed two years and eight months later, that she was still affected by the incident, to the point where she no longer delivered briefs to Culwulla Chambers, instead having them delivered by courier because otherwise she experiences memories of the incident. She said that walking past the building "continues to bring up unsettling feelings of sadness and disgust". CCTV footage recorded immediately after the incident, which shows the participants exiting the lift, was viewed by the Tribunal. Mr Waterstreet said that he believed that he had previously seen a different view of the events on CCTV footage, but investigation uncovered no other footage. We believe that Mr Waterstreet was simply mistaken about this. We do not agree with the submission on behalf of the Council that his credibility was impugned by his behaviour with respect to the CCTV footage. 2. The conduct of Mr Waterstreet which is the subject of Ground Four of Complaint Three constituted unwelcome conduct of a sexual nature in relation to C3 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. We consider that a reasonable person would have anticipated that C3 would be offended, humiliated and intimidated. 3. Complaint Three, Ground Four, has been established and conceded. The conduct amounts to sexual harassment, in breach of rule 123 of the Uniform Barristers Rules, and is also conduct likely to bring the legal profession into disrepute, contrary to rule 8(c) of those rules, as alleged in paragraphs 23 and 24 of the complaint. The conduct constitutes unsatisfactory professional conduct under s 296 of the Uniform Law. Complaint Three, Ground Five – Professional Misconduct 1. Complaint Three, Ground Five, is as follows: 18. In respect of the conduct identified at Grounds 1 to 4 above the respondent engaged in professional misconduct, in that: (a) His conduct involved a substantial or consistent failure to reach or maintain a reasonable standard of competence or diligence, and/or (b) His conduct occurring in the practice of law is such that it would justify a finding that the respondent is not a fit and proper person to engage in legal practice. Particulars The particulars for Grounds 1 to 4 are repeated. 19. In the alternative to paragraph [18], in respect of the conduct identified at Grounds 1 to 4 above the respondent engaged in unsatisfactory professional conduct in that his conduct fell short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent lawyer. Particulars The particulars for Grounds 1 to 4 are repeated. 1. We have dealt with the substance of paragraph 19 of the complaint above. 2. The remaining question is whether all of the conduct which has been established amounts to professional misconduct. As we have said, the definition of professional misconduct is: 297 Professional misconduct (1) For the purposes of this Law, professional misconduct includes— (a) unsatisfactory professional conduct of a lawyer, where the conduct involves a substantial or consistent failure to reach or maintain a reasonable standard of competence and diligence; and (b) conduct of a lawyer 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 lawyer is not a fit and proper person to engage in legal practice. (2) For the purpose of deciding whether a lawyer is or is not a fit and proper person to engage in legal practice as referred to in subsection (1)(b), regard may be had to the matters that would be considered if the lawyer were an applicant for admission to the Australian legal profession or for the grant or renewal of an Australian practising certificate and any other relevant matters. s 298 Conduct capable of constituting unsatisfactory professional conduct or professional misconduct Without limitation, the following conduct is capable of constituting unsatisfactory professional conduct or professional misconduct— … (b) conduct consisting of a contravention of the Uniform Rules; Professional misconduct under s 297(1)(a) 1. The following concession was made in the Respondent's case: 300. As to PM [professional misconduct] under the first limb of s 297, the conduct in grounds one to four, by reference to the particulars the respondent submits is capable of being proved, viewed collectively: is capable of constituting a "substantial" failure as it conduct that is failure to meet the required standard in a way that is large and considerable, and does constitute a "consistent" failure in that the inappropriate conduct is repeated and persistent in a variety of situations [sic]. 1. We accept that, in the context of s 297(1)(a) of the Uniform Law, "substantial" means a departure from the reasonable standard of competence and diligence which may be sufficiently serious, or large or considerable enough, to raise questions as to the lawyer's competence and diligence (Council of the Law Society of New South Wales v Webb [2013] NSWCA 423 ("Webb"). We further accept that "consistent" refers to a repeated departure from that standard (Webb; Xu v Council of the Law Society of New South Wales [2009] NSWCA 430 at [59]). 2. In relation to that part of the complaint concerning Mr Waterstreet's conduct towards C1, we have found that the following conduct constitutes the sexual harassment of C1 and is in breach of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules): 1. Saying, in October 2014, about the female partner of a client who had attended at chambers "I want to rub her all over". (Complaint One, paragraph 9(iv)). 2. Viewing a pornographic video in chambers in C1's presence in December 2014 (Complaint One, paragraph 9(v)). 3. Drawing C1's attention to a framed pencil drawing of a flaccid penis on one of the internal walls of the chambers and saying "This is a drawing of my beautiful penis" (Complaint One, paragraph 9(vii)). 1. We have determined that the conduct referred to in [296], above, also constituted a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules), in that it was likely to diminish public confidence in the legal profession. The allegations in [296] also bring the legal profession into disrepute. The assumption, by a barrister, of the conduct of a client's case is a very serious undertaking. A client commonly has at stake their liberty, their financial prosperity and/or their family or business relationships. The public rightly expects that barristers will go about the practice of their profession in a manner consistent with their ethical obligations and the law. Chambers are expected to be conducted in a serious, diligent and productive way. Public confidence in the maintenance of the high standards of conduct by the Bar also relies upon the fostering of the professional development of law students or recent graduates, where such fostering is undertaken, in a manner conducive to the students' or graduates' future contribution to the profession as ethical, confident and competent practitioners. The creation of a working environment which places law students or graduates under pressure by subjecting them to sexual harassment is inconsistent with the reasonable expectations of barristers by the public. It may also, of course, have a serious adverse impact upon the student or graduate. Workplaces, including chambers, should be safe places for all of the people who work or visit them. 2. We have determined that the following further conduct by Mr Waterstreet constitutes a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules): 1. Showing C1 a picture of a woman in lingerie on his phone, in October 2014, and saying "Look at this woman's ass. Don't you think she is incredibly good looking" and "She's your type, isn't she" (Complaint One paragraph 9(iii)). 2. Showing C1 photographs of a woman in lingerie on his phone and saying words to the effect of "This is the woman I met with last night. She is wearing lingerie from Baby Like to Pony that she bought with the voucher you organised" in May 2015. (Complaint One paragraph 9(ix)). 3. On 16 June 2015, sending C1 an email containing an eBay advertisement for a "mankini" with a picture of a man wearing the product (Complaint One paragraph 9(x)). 1. We have determined that the conduct referred to above in [296] and [298] above constitutes unsatisfactory professional conduct. Taken together, the conduct was a substantial and consistent departure from the expected standard of conduct of a barrister. The conduct constitutes professional misconduct under s 297(1)(a) of the Uniform Law. 2. It was conceded, and we have found, that Mr Waterstreet has failed to pay C1 $1580 owing to her on account of wages due since June 2015 (Complaint One paragraph 10). At [166], above, we set out why we have determined that this conduct constitutes unsatisfactory professional conduct. 3. In context, the sum of $1580 is a considerable sum. In June of 2015, C1 was a law student who was reliant upon her employment with Mr Waterstreet for her livelihood. It is clear from the emails between them in 2015 that C1's need to earn an adequate amount of money to support herself was a source of anxiety to her, and Mr Waterstreet knew that. Mr Waterstreet's failure to prioritise his legal and personal obligation to pay C1 her wages was a substantial departure from the standard of behaviour expected from a barrister. Mr Waterstreet exploited C1 by having her assist him to earn fees and then failing to pay her what she was due for doing so. The sum owing is three week's pay, so the departure from the standard is consistent as well as substantial. C1's resentment about the unpaid wages was partly informed by the knowledge that, in May 2015, Mr Waterstreet had bought a bottle of Moet and a $400 lingerie voucher as a gift for a woman with whom he was meeting. C1's resentment was obviously justified. 4. The conduct in paragraph 10 of Complaint One is professional misconduct under s 297(1)(a) of the Uniform Law. 5. Mr Waterstreet's conduct in relation to C2 all occurred in the course of a job interview on 20 September 2017. We have found that the following conduct occurred and constituted a breach of rules 123(1)(b) and 8(c) of the Uniform Barristers Rules. 1. Mr Waterstreet showed C2 a sex toy and asked her if she knew what it was. (Complaint Two, paragraph 15(ii)). 2. Mr Waterstreet introduced the Client to C2 and described him as a "porn star" and said that he had "the biggest cock in Australia" (Complaint Two paragraph 15(iii), first two of three alleged comments). 3. Mr Waterstreet said, in the course of the interview, words to the effect that female orgasms are more volcanic and far more powerful than men's. (Complaint Two, paragraph 15(iv)(d)). 1. We have determined that the conduct in [303] above constituted unsatisfactory professional conduct. It was also a substantial departure from the standard of conduct expected from a barrister. When interviewing a candidate for a position, in all cases, but especially for a position at entry level to the legal profession, it is wholly inappropriate to subject that candidate to sexual harassment or unethical conduct of any kind. The position was described in the advertisement on CareerHub as "Paralegal and personal assistant", clearly indicating that it was primarily to assist with Mr Waterstreet's work as a barrister. Reference, during the interview, to matters outside of the work which would be done by the successful candidate, should have been confined to matters in keeping with Mr Waterstreet's position as a barrister. The format of the interview, which took place in tandem with interactions with the Client and the Solicitor about their unrelated matters, in small chambers which also accommodated the Assistant and the Paralegal was fundamentally inappropriate. 2. Complaint Three, in paragraph 16 and 17, was conceded, and we have determined, that Mr Waterstreet's conduct on 22 February 2019, in trying to engage C3 in an interaction about the relative attractiveness to her of four men and a woman in a lift, constituted unsatisfactory professional conduct under s 296 and s 298(b) of the Uniform Law. C3 was going about her tasks as a legal assistant when, by chance, she found herself in a lift with Mr Waterstreet and he chose to engage with her in an exchange about her preferences in a relationship partner, seemingly for the entertainment of himself and others in the lift. C3 handled Mr Waterstreet's conduct very well as it occurred, but it understandably induced in her feelings of distress and discomfort, which remained with her for more than two years after the incident. She found that being in the location of the incident triggered those feelings again and put arrangements in place in her office so that she could avoid the location. Mr Waterstreet's conduct in the lift displayed a total lack of consideration for the feelings of a young woman, in a professional setting, and was a substantial failure to maintain a reasonable standard of diligence in his behaviour as a barrister. It was a serious failure, with predictable, lasting impact on C3. Professional misconduct under s 297(1)(b) 1. As to the allegation in paragraph 18(b) of the complaint that Mr Waterstreet is not a fit and proper person to engage in legal practice, in Council of the New South Wales Bar Association v EFA [2021] NSWCA 339 ('EFA'), the Court of Appeal said: 122. Professional misconduct at common law, the Council asserted, is as stated by the English Court of Appeal in Allinson v General Council of Medical Education and Registration [1894] 1 QB 750 at 760-761, 763 and 766. Although the term "professional misconduct" was not used in Allinson, that decision is, undoubtedly, the source of the concept on which the Council relies. The Court of Appeal in Allinson was called upon to consider whether it was open to the General Council of Medical Education and Registration to find that Dr Allinson was "guilty of infamous conduct in any professional respect" (the terminology of the relevant statute). The Court unanimously adopted as a definition of at least one kind of "infamous conduct in any professional respect" the following at 760-761: "'If it is shewn that a medical man, in the pursuit of his profession, has done something with regard to it which would be reasonably regarded as disgraceful or dishonourable by his professional brethren of good repute and competency', then it is open to the General Medical Council to say that he has been guilty of 'infamous conduct in a professional respect'." 123. Allinson was, as is apparent, a decision concerned with the supervision of the medical profession. The test, or definition, devised by the Court of Appeal was accepted as referable to supervision of the legal profession in Myers v Elman [1940] AC 282. As will be seen it has similarly been applied in this State to the legal profession: Council of NSW Bar Association v Sahade [2007] NSWCA 145 at [54]-[55]. … 156. There is, in NSW, no category of professional misconduct constituted by conduct that would reasonably be regarded (by professional peers) as "disgraceful or dishonourable". 157. That is not to say that the Allinson formulation is irrelevant; as can be seen from the cases discussed above, it has been treated as a useful test in the determination of the fitness of a legal practitioner to remain on the roll. It does not, however, as the Council would have it, create or constitute a category of professional misconduct independent of, and different from, that class of conduct contemplated as rendering the legal practitioner "not a fit and proper person" to remain on the roll of legal practitioners. 158. There is also this to be considered: the Allinson formulation is directed solely to the conduct under consideration. As the judgment of Kitto J in Ziems demonstrates, the issue of fitness encompasses more than mere conduct. The "fit and proper person" test is directed to character, which may be determined by conduct alone, but which may also take into account other circumstances. 159. One of the statutory definitions (s 297(1)(b) of the Uniform Law) of "professional misconduct" is "conduct … that would, if established, justify a finding that the lawyer is not a fit and proper person to engage in legal practice". 160 "Professional misconduct" determined against the "critical criterion" of "a fit and proper person" is indistinguishable from "professional misconduct" as defined in s 297(1)(b) of the Uniform Law. There was therefore nothing to be achieved by the Tribunal approaching its determination on the basis that professional misconduct at common law is something different from professional misconduct as defined in s 297(1)(b). … 163. By ground 4 the Council complains of error in the Tribunal's finding, at [77] of the Stage 1 reasons, that the Council had failed to prove professional misconduct within the s 297(1)(b) definition on the basis that it had not established that the respondent "is not a fit and proper person to engage in legal practice …". In other words, the attack was on the reasoning process to the conclusion. The Council pointed out, correctly, that what it needed to prove to establish professional misconduct under s 297(1)(b) was that the respondent's conduct (as found) would justify a finding that he was not a fit and proper person to engage in legal practice. It is not necessary that the Council establish that the respondent was, in fact, not a fit and proper person. 164. We accept that, in rejecting the Council's contention that the respondent's conduct constituted professional misconduct within the meaning of s 297(1)(b), on the basis that it was not established that he was not a fit and proper person, the Tribunal applied a more rigorous test than is called for by the provision. Conduct that would justify a finding of unfitness is not necessarily conduct that must result in such a finding: there is a range of conduct that would justify, but not necessarily result in, such a finding; there is a range of conduct with respect to which reasonable minds might differ on whether it did, in fact, demonstrate unfitness. Section 297(1)(b) is concerned with the capacity of the conduct to constitute unfitness. We accept that the reasoning of the Tribunal was, in this respect, flawed. That does not mean that the ground must be upheld. Flawed reasoning does not necessarily mean that the conclusion reached is incorrect; a correct conclusion may be drawn notwithstanding flaws in the reasoning process. … 169. There is something of a paradox in s 297(1)(b). On a literal interpretation the paragraph focuses on the objective circumstances of the conduct found ("conduct of a lawyer whether occurring in connection with the practice of law or occurring otherwise than in connection with the practice of law"). Yet, as the majority judgments in Ziems, (particularly that of Kitto J), show, a finding of unfitness involves more than an objective analysis of the impugned conduct, absent other relevant (often extenuating) circumstances. The question of fitness to engage in legal practice focuses not only on the objective circumstances of the conduct in question but also on the personal qualities of the lawyer in question, and other circumstances that bear upon the conduct. Unfitness is ultimately a finding about character, although conduct plays an important role in the evaluation of character. 1. To summarise, the question of whether the conduct which has been established would justify a finding that Mr Waterstreet is guilty of professional misconduct on the basis of not being a fit and proper person to engage in legal practice must be decided in the context of the circumstance of the conduct together with Mr Waterstreet's personal qualities and other circumstances which bear upon the conduct. The exercise involves a finding about character, with conduct playing an important role, but not the only role, in the evaluation of character. 2. It is argued, on behalf of Mr Waterstreet, that he is not guilty of professional misconduct under s 297(1)(b) of the Uniform Law. We understand his argument to be that, in the event that we determine that the conduct which has been proven, considered without reference to the psychiatric evidence, would justify a finding that Mr Waterstreet is not a fit and proper person to engage in legal practice, in that the conduct, viewed in context, shows that his character is such as to render him unfit, we should then consider the evidence of Dr Ryan and Dr Sippe. It is further argued that the evidence of Dr Ryan and Dr Sippe should be accepted, and should cause us to find that critical elements of Mr Waterstreet's conduct were a manifestation of his mental illness rather than being an expression of his character, and that, therefore our assessment of his character, in the context of the proven conduct, would not justify such a finding. 3. The question of whether Mr Waterstreet is guilty of professional misconduct under s 297(1)(b) involves the consideration of whether his conduct, viewed in context, would justify a finding that he is not a fit and proper person to engage in legal practice. The question of whether the conduct proven should result in a recommendation that Mr Waterstreet's name be removed from the roll is a separate question, to be decided at a later stage. Psychiatric Evidence 1. As we have said, it was argued in the respondent's case that the evidence of Dr Sippe and Dr Ryan, both of whom are psychiatrists, is relevant to the question of Mr Waterstreet's character in the consideration of whether the adverse findings made would justify a finding that Mr Waterstreet is not a fit and proper person to engage in legal practice (and thus constitute professional misconduct under s 297(1)(b) of the Uniform Law). It was submitted that (written submissions on behalf of the respondent): 202. …The psychiatric evidence is not relevant to an assessment of the conduct in question such as by way of exculpation of the conduct….That is, the psychiatric evidence is not relevant to negativing this finding that the conduct is regarded as disgraceful and dishonourable…but is relevant to the wider inquiry of character that takes in other considerations including, but not limited to, the conduct in question. 203. Even if the conduct does satisfy the Allinson test that is not the end of the inquiry as to whether the respondent engaged in professional misconduct within the meaning of s 297(1)(b). The ultimate question is one of fitness and to that end the Tribunal must make a determination of the respondent's character. It is to that end that the psychiatric evidence is directed. If the psychiatric evidence is accepted by the Tribunal, it should take that evidence into account in assessing the extenuating circumstances bearing on the respondent's character – his psychiatric condition – such that, when the conduct is seen in this context, it does not amount to conduct that would justify a finding that the respondent is not a fit and proper person to practice within the meaning of s 297(1)(b). Dr Ryan's evidence 1. Dr Ryan is a qualified and experienced consultant psychiatrist. He provided an affidavit dated 1 July 2022. Dr Ryan said, in his affidavit, that he had seen Mr Waterstreet on five occasions between late January 2022 and May 2022. 2. Annexed to Dr Ryan's affidavit was a report, also dated 1 July 2022 (see Exhibit R7), and a curriculum vitae. In his report, Dr Ryan said that Mr Waterstreet suffers from bipolar affective disorder 2 (bipolar 2). Mr Waterstreet's condition is complicated by circadian rhythm sleep disorder (CRSD) and obstructive sleep apnoea (OSA). Dr Ryan noted that Mr Waterstreet had previously been diagnosed with CRSD and OSA, and had been using a CPAP machine to sleep. 3. Dr Ryan also said that Mr Waterstreet had previously been diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Dr Ryan indicated that, in his opinion, Mr Waterstreet has both ADHD and bipolar 2, which, he said, often co-occur. 4. Dr Ryan said: 4. Bipolar 2 mood disorder is characterised by episodes of depression and hypomania. This is depressive component that does not feature psychotic features such as hallucinations and delusions (psychosis). It is characterised by recurrent depressive episodes, which can be so severe as to be physically debilitating (for example retreating to bed, failure to self-care, suicidal ideation and at worst, suicide. Hypomanic episodes feature elevated/expansive mood, disinhibition, garrulousness, impulsivity verbally and behaviourally, increased sexual interest and activity. 5. Bipolar 2, hypomanic phases involve periods of behavioural dysregulations characterised by disinhibition manifesting as increased energy and activity, invariably less sleep, impulsivity, compulsivity, garrulousness and gratuitous sexual comments experienced by others as inappropriate. It can involve periods of apparent/experienced increased creativity and productivity, (and episodes) when a person's mood is elevated, jocular, high spirited, at times very labile with irritability and depressed mood, with the afflicted person tending to be or grandiose, interspersed by periods of more normally regulated mood, cognitive and behavioural states. 6. Mr Waterstreet provided an account of a period in/around 2016 where he was: hypersexual; spending impulsively and prodigiously to the point he was unable to pay his rent; people, friends and colleagues commented on his embarrassing behaviours and loquacious emails; he accumulated many parking fines; people repeatedly encouraged him to slow down, commenting that he was talking too fast and too much; and disorganised. It was in this period that he was bankrupted. It appears that Mr Waterstreet was overly hypomanic, and this is in/around the [period] where he is alleged to have behaved in ways that led to the various complaints against him that are now under consideration. … 8. …When he first consulted me, he was very talkative, spontaneously disclosing/over disclosing, manifested a level of flippancy, over familiarity and slightly disorganised thinking. In my opinion this state likely reflected a slightly -moderately elevated mood state, likely his usual mental state and the related behavioural and interactional style was a more subtle manifestation of his psychiatric and sleep conditions. … 13. Both CRSD and OSA compound his mental health issues (ie his bipolar 2) and contribute to his vulnerability to bipolar illness episodes (episodes of depression and hypomania) and with negative impact on his inter-episode functioning (that is, periods when he is neither apparently overly depressed or hypomanic). 1. Dr Ryan said that Mr Waterstreet's description of his state in and around 2016 was "clearly hypomanic". Dr Ryan said that Mr Waterstreet had been diagnosed with a major depressive illness in the past, but that previous psychiatrists had apparently missed, or not considered, a diagnosis of bipolar 2. 2. Dr Ryan's diagnosis of bipolar 2 was supported by the history Mr Waterstreet gave him, including family history, his direct observations of Mr Waterstreet, and the results of an fMRI (functional Magnetic Resonance Imaging), analysed with Omniscient Connectomic mapping, which showed a pattern typical in people with bipolar 2 and problems with self-regulation. In Dr Ryan's opinion, Mr Waterstreet has been suffering from bipolar 2 since at least his early 20s. Dr Ryan said, in evidence, that the onset could have been as early as adolescence (transcript 28 July 2022 p 17 line 29-33). 3. Dr Ryan said, in his report: 22. Mr Waterstreet, like any other person with mental health issues, including mood disorders (of which bipolar 2 is one form) is vulnerable to illness episodes when under stress and more so (also) when there are sleep disruptions/disorders. Mr Waterstreet has reportedly experienced recurrent stress over many years and has had long standing sleep disruption. Retrospectively he has experienced recurrent significant illness episodes, both depressive and hypomanic episodes. Aspects of his demeanour and behaviours such as the impulsive and undisciplined spending resulting in significant financial difficulties, sexual preoccupations, disinhibition, poor judgment in some social situations, disorganisation in self-care and inattention/neglect of selfcare requirements, including his tax liabilities, loquaciousness and self-referential talk are all aspects and features of his mood disorder. … 25. Having reviewed the allegations in the Bar Council's Application, especially the behaviour described under the headings ground 1, ground 2 and ground 4, in my professional opinion such behaviour is typical of what you might expect of someone who is in a dysregulated, elevated psychological state, manifesting as being garrulous, predisposed to making inappropriate, disinhibited comments with a sexual focus and preoccupation, that are all the hallmark features of bipolar 2 in a hypomanic phase. It is likely that the behaviour described in those grounds are manifestations of Mr Waterstreet's undiagnosed and untreated bipolar 2. 1. In cross-examination, the DSM 5 criteria for narcissistic personality disorder (NPD) was put to Dr Ryan, and NPD was suggested as an alternative diagnosis to bipolar 2. Dr Ryan acknowledged that there is some overlap in the two disorders but said that the biological evidence from the analysis of the fMRI, together with the long history indicating that Mr Waterstreet operates at a level of elevated mood and hypomania more often than not led him to favour a diagnosis of bipolar 2 (transcript 28 July 2022 p 38-39). 2. In May 2022, in a five day treatment program, Mr Waterstreet was treated with neuronavigational repetitive transcranial magnetic stimulation (rTMS) combined with strict sleep hygiene and a range of cognitive and behavioural interventions. Dr Ryan saw him on a further five occasions during this time. 3. In a further letter dated 14 July 2022 (see Exhibit R9), Dr Ryan addressed the fact that Mr Waterstreet had been prescribed dexamphetamine for ADHD in 2013-2014 and continued to take it until sometime between February and May 2022, when it was stopped by Dr Sippe. Dr Ryan said, in his letter of 14 July 2022, that the combination of anti-depressants and dexamphetamine was risky and required close monitoring. He said that he would not prescribe stimulant medication for a patient with bipolar disorder. Dr Ryan said, of Mr Waterstreet: The combination of ceasing dexamphetamine and withdrawing from the antidepressant, the specific focus on the sleep and associated treatments have resulted in an obvious change and improvement in his mental state and functioning. 1. Dr Ryan said that taking dexamphetamine with an antidepressant would have had an impact upon Mr Waterstreet's sleep during 2016. The antidepressant may have reduced REM sleep, and the dexamphetamine would have "driven hypomanic symptoms 'harder'". Dr Ryan said: 5. …The combination is likely to have been a trigger for deterioration of sleep, mood and behavioural and other dysregulations which in turn would have manifested in a persisting deterioration of or lability in his mental state over the period since starting this combination. 6. Both the dexamphetamine and the antidepressants alone and in combination have been identified as being associated with illness episodes in bipolar 2 and in combination would increase the risk of episodes and at the least mood destabilisation and increased vulnerability to hypo-manic episodes of bipolar 2. 7. Mr Waterstreet's bipolar 2 illness manifestations and his use of these medications over that period can all be seen as causally relevant factors in his behaviours, interactions and verbal expressions in that period and specifically the kinds of incidents referred to in the grounds of the disciplinary application. 1. In oral evidence, Dr Ryan said that Mr Waterstreet had been adherent to the treatment and was "certainly much better than he was", although there was still "a way to go" (transcript 28 July 2022 p 28 line 22-26). 2. An affidavit dated 4 July 2022, and a psychiatric report dated 1 July 2022, from Dr Sippe, were tendered (Exhibit R8). Dr Sippe is a qualified and experienced psychiatrist. In his affidavit, Dr Sippe says that he saw Mr Waterstreet about 10 times between 25 January 2022 and 30 June 2022. By the time he gave evidence, there had been twelve consultations. 3. Dr Sippe diagnosed Mr Waterstreet with bipolar affective disorder 2 (bipolar 2), on the basis of Mr Waterstreet's initial presentation, his history of depressive episodes followed by euphoria, not needing to sleep and disinhibited behaviour and his family history. In evidence, Dr Sippe said that the periods of hypomania predominate and are very long. He noted that, during his time with Mr Waterstreet, Mr Waterstreet was hypomanic 'most of the time' (transcript 28 July 2022 p 63). 4. In his report, Dr Sippe explained bipolar 2 as follows: 4. Bipolar Affective Disorder 2 is a chronic disorder, usually onsetting in teens or twenties, characterised by moods fluctuating between depression and abnormal elevation of mood or irritability. 5. In the depressed state mood is sad, sometimes more irritable than sad. Concentration is impaired, decision making is difficult. Biologically determined functions such as sleep, appetite, energy, sexual interest are usually reduced. There is often a rhythm of mood where symptoms are worse in morning, tending to improve later in [the] day. Self-esteem is lowered, often with feelings of worthlessness and guilt. Thoughts of death and suicide are frequent. 6. In the Hypomanic state need for sleep is reduced but energy is unimpaired or increased. Speech production is increased. There is elation, sometimes irritability. Optimism is marked and judgment is impaired. Impairment of judgment and impulsivity often lead to foolish financial decisions and inappropriate sexual behaviour. 1. On the basis of the history that Mr Waterstreet gave him, Dr Sippe formed the view that Mr Waterstreet had suffered from bipolar 2 since his early 20s. Dr Sippe said, in his report: 8. Mr Waterstreet was suffering from Bipolar Affective Disorder 2 in the period September 2014 to February 2019. Having read grounds 1-4 in the Bar Council's application for disciplinary findings and orders, the alleged sexually inappropriate remarks and behaviour, especially in front of witnesses, eg, in a crowded lift, are completely consistent with the impaired judgment, heightened sexual feelings, and impulsivity of the hypomanic phase of Bipolar Affective Disorder 2 or with hypomania generally. 9. As a consequence of his Bipolar Affective Disorder 2, Mr Waterstreet was unable to control his behaviour at the time of the alleged conduct. 1. In May of 2022, Dr Sippe first prescribed lithium carbonate for Mr Waterstreet, but Mr Waterstreet experienced an unpleasant side effect to the drug, so it was stopped. At the time of his report, Dr Sippe was prescribing lamotrigine (Lamictal) as a mood stabiliser for Mr Waterstreet. 2. Dr Sippe discontinued the dexamphetamine previously prescribed by someone else for Mr Waterstreet because dexamphetamine disturbs sleep in people who are not suffering from ADHD. The antidepressant duloxetine was continued. Dr Sippe said that he thought it was probable that Mr Waterstreet does not suffer from ADHD, on the basis that Mr Waterstreet did not report having any of the symptoms of ADHD in childhood. 3. Like Dr Ryan, Dr Sippe was unaware until shortly before giving evidence that Mr Waterstreet had been seeing both psychiatrists during the same period. 4. It was argued on behalf of the Council that the evidence of Dr Ryan and Dr Sippe should be afforded little weight. It was argued that the psychiatric evidence did not rise to a level consistent with it being considered as a relevant circumstance bearing upon the question of fitness. 5. The Council submitted that there were three broad reasons why the Tribunal should accord little weight to the psychiatric evidence; 1. The diagnosis of bipolar 2 is equivocal and has been made retrospectively in circumstances which make it unreliable; 2. Alternatively, even if the Tribunal finds that the psychiatric evidence is reliable, neither expert contends that the disorder negated Mr Waterstreet's capacity to appreciate that what he was doing was wrong; and 1. Mr Waterstreet had refused to be independently assessed by a psychiatrist nominated by the Council, so that the Tribunal has been deprived of the opportunity to hear relevant evidence. 1. The Council submitted that these three factors, in combination, significantly diminished the weight that could be attributed to the psychiatric evidence. A report from an independent psychiatrist 1. The hearing in this matter began on 26 July 2022. Dr Ryan's affidavit was filed in the Tribunal on the 14 July 2022. Dr Sippe's affidavit was filed in the Tribunal on 4 July 2022. It can be inferred from the dates of the affidavits and the reports of both psychiatrist that they were provided to the Council close to the time at which they were filed. 2. After receiving the affidavits of Dr Ryan and Dr Sippe, shortly before the hearing, the Council sought to have Mr Waterstreet examined by an independent expert psychiatrist of its choosing, with a view to a report being prepared and tendered. 3. At that time, Mr Waterstreet declined to undergo assessment by the independent expert psychiatrist prior to the beginning of the hearing. Mr Strickland said, at the hearing, that Mr Waterstreet would agree to an independent psychiatric assessment prior to the Stage 2 hearing (transcript 26 July 2022 p 26 lines 12-21). 4. The Tribunal has no power in disciplinary matters to compel anyone to undergo a psychiatric assessment. 5. It became clear, in the course of the hearing, that Mr Waterstreet had a history of psychiatric diagnoses and treatment going back many years prior to the events the subject of these proceedings. However, on the evidence before us at the end of the hearing in August 2022, he had never been diagnosed with bipolar disorder prior to seeing Dr Ryan and Dr Sippe. Neither Dr Ryan nor Dr Sippe had been given access to Mr Waterstreet's past psychiatric records, and neither had they had any contact with his past treating psychiatrists. 6. As we have said, in considering whether professional misconduct under s 297(1)(b) of the Uniform Law has been established, we must view the relevant conduct in the context of the circumstances in which it occurred, together with a consideration of Mr Waterstreet's personal qualities and other circumstances which bear upon the conduct. We must make a finding about Mr Waterstreet's character, with conduct playing an important role, but not the only role, in the evaluation of his character. 7. As we have said, Mr Strickland indicated that Mr Waterstreet would submit to an independent psychiatric assessment with the psychiatrist nominated by the Council for the purposes of Stage 2. We were concerned that a new psychiatric report might provide further evidence relevant to the issue of Mr Waterstreet's diagnosis and the relationship between any diagnosis and the relevant conduct. We were concerned that some of the content of the report would be relevant to the issue to be decided under s 297(1)(b) of the Uniform Law, but would be adduced after that issue had been decided. We foresaw that Mr Waterstreet's past psychiatric medical records, or some of them, may be obtained and tendered. Past treating psychiatrists may provide relevant material. 8. It had been argued, in Mr Waterstreet's case, that the psychiatric evidence of Dr Ryan and Dr Sippe is relevant to the assessment of Mr Waterstreet's character as it relates to the question of whether or not we should determine that Mr Waterstreet is not a fit and proper person to engage in legal practice for the purposes of s 297(1)(b). It had been argued that some of the conduct which we have found to constitute sexual harassment and/or a breach of the Uniform Barristers Rules was a manifestation of Mr Waterstreet's bipolar disorder, and therefore did not reflect adversely upon his character. 9. We have referred to the Tribunal's practice, in appropriate matters, of hearing an Application for disciplinary findings and orders in two parts: Stage 1, which deals with culpability, and Stage 2, which deals with disciplinary orders. There is nothing in the Uniform Law which mandates this practice; it has simply been a suitable way in which to arrange the hearing of disciplinary matters under the Uniform Law and the legislation it superseded. The practice is also frequently adopted in disciplinary proceedings in the Tribunal under the Health Practitioner Regulation National Law (NSW). 10. In EFA, the Court of Appeal said, at [171]-[172]: 171 To justify a finding of unfitness the conduct in question must be seen in context. But, in the two-stage process by which disciplinary proceedings are ordinarily conducted in the Tribunal, much of that which properly informs a holistic assessment of the character of the lawyer concerned, and therefore his or her fitness to engage in legal practice, will not be known until Stage 2 – by which time the conduct has been characterised as unsatisfactory professional conduct or professional misconduct. It does not seem right to characterise conduct as professional misconduct merely because, objectively speaking, it would justify a finding of unfitness if, after consideration of other relevant factors, such a finding would not be justified or warranted. It is only necessary to look at the facts in Ziems and A Solicitor to see that unfitness is not measured by the objective circumstances of the conduct alone. 172 A finding that the impugned conduct would justify a finding of unfitness needs to be made in the context of all available evidence at the time of Stage 1 of the proceeding. It may be, in some cases, that the Commissioner or the relevant professional association has available to it evidence of other instances of conduct similar to, or equally discreditable as, that under consideration; clearly that would be a relevant factor in the determination of whether the conduct in question (not being isolated) was such as to justify a finding of unfitness. That is not this case: so far as the evidence (at the Stage 1 hearing) goes, this was indeed an isolated instance of appalling conduct on the part of the respondent. (At this point, the evidence given at the Stage 2 hearing that adds weight to that inference must be ignored). 1. In Health Care Complaints Commission v Robinson [2022] NSWCA 164, which dealt with an Application for disciplinary findings and orders under the National Law, the issues were considered by Leeming JA, Kirk JA and Simpson AJA: Per Simpson AJA 56 While the bifurcated two stage procedure has, it seems, been generally adopted in and by the Tribunal, and is plainly a convenient means by which the Tribunal deals with the disciplinary issues presented to it for determination, it is not a statutory requirement, nor does it have statutory recognition. As will be seen below, it is capable of giving rise to some complexity. … 110 Ground 2, however, potentially raises a question about the two stage procedure commonly adopted in disciplinary proceedings in the Tribunal. In EFA, at [171]-[172] this Court commented on the anomaly (in the context of LPUL proceedings) of determining the professional misconduct question prior to the issues that will be illuminated in Stage 2 of an inquiry. While those observations were made in the particular context of findings of unfitness to be a member of the legal profession, some of the same issues arise in the determination of whether conduct comes within s 139E of the National Law so as to result in a finding of professional misconduct. By s 38 of the CAT Act, subject to any legislative prescription, the Tribunal may determine its own procedure. It may, as in this case, do so by deciding to adopt a two stage procedure. That does not necessarily entail a rigid division of the issues into (i) whether unsatisfactory professional conduct or professional misconduct is established (as Stage 1) followed by (ii) an inquiry into what consequential orders ought to be made (as Stage 2). There may be occasions where a more satisfactory course would be to decide any disputed factual issues at Stage 1, and defer the characterisation of the conduct so found to Stage 2. That is a matter for the Tribunal's own determination in the particular circumstances of any particular case. Per Kirk JA 38 As Simpson AJA points out, in the National Law there is no express statutory requirement for, or recognition of, the two stage approach adopted here. It may be that the approach adopted here is not the only way that a first stage hearing could have been conducted. It is arguable that it would have been open to limit the issue to factual determination of the allegations made and consideration of whether or not they could be characterised as unsatisfactory professional conduct, leaving for later determination whether or not the conduct fell within the further category of professional misconduct together with the issue of what if any remedies should be ordered. Although that may mean the parties are making submissions on remedy prior to knowing the final characterisation of the conduct, they are still doing so knowing what conduct founds the claim for the remedies. Taking that approach would avoid considering the issue of potential remedies twice. However, it is possible that such an approach conflicts with what was stated in Lucire at [54]-[65]. That being said, it is also possible that the discussion there should be understood not as stating some obligation that the parties know whether the conduct is characterised as professional misconduct before remedies are decided, but rather as reaffirming that what procedural fairness requires is to be assessed in all the circumstances of the particular case: note at [60]-[61]. This case does not present the appropriate vehicle for determining the issue. Per Leeming JA 3 I also agree with the judgment of Kirk JA, in particular the desirability of the parties and the Tribunal identifying with precision what is to be determined at a "Stage 1" hearing, bearing in mind that a delineation which facilitates the just, quick and cheap resolution of the real issues in one proceeding might not be the delineation which gives effect to that guiding principle in s 36 of the CAT Act in some other proceeding. In each case, whether there is a staged hearing and the matters to be resolved at each stage will depend upon the nature of the case, the seriousness of the conduct alleged, and the matters in issue. 1. The Uniform Law, in s 3(b)-(d), says, relevantly: 3 Objectives The objectives of this Law are to promote the administration of justice and an efficient and effective Australian legal profession, by— … (b) ensuring lawyers are competent and maintain high ethical and professional standards in the provision of legal services; and (c) enhancing the protection of clients of law practices and the protection of the public generally; and (d) empowering clients of law practices to make informed choices about the services they access and the costs involved; and … 1. In October 2023, a draft decision was sent to the parties, comprising the paragraphs above (tenses in [333]-[341] have been adapted). We indicated that we did not consider that it would be conducive to the advancement of the relevant objectives of the Uniform Act, or to the proper fulfillment of the role of the Tribunal under the Uniform Law, for us to decide the question of how the psychiatric evidence of Dr Ryan and Dr Sippe bears upon the decision we must make under s 297(1)(b) of the Uniform Law when we have been told that further evidence, which, clearly, may be relevant to that question, is likely to be adduced at the next substantive hearing. We acknowledged that we could not predict what an expert psychiatric report or historical medical records might say but said that it would be prudent to accommodate the possibility that such further evidence might not be consistent with the evidence of Dr Ryan or Dr Sippe. We said that the proper course was for us to defer the consideration of the issues raised in relation to s 297(1)(b) of the Uniform Law until that evidence is before us, or an indication had been given that it will not be adduced. 2. After considering the draft decision, Mr Waterstreet agreed to be examined by an independent psychiatrist selected and briefed by the Council. 3. The Council made arrangements with Dr Adam Martin, psychiatrist, to examine Mr Waterstreet and to provide a report. The Council provided Dr Martin with a comprehensive brief, including the affidavits and clinical notes of Dr Ryan and Dr Sippe, the portion of the transcript of the hearing in which Dr Ryan and Dr Sippe were cross-examined and extracts from Mr Waterstreet's medical records over many years (Exhibit A15). 4. Dr Martin saw Mr Waterstreet for two hours on 14 February 2024 and subsequently provided a detailed and insightful report dated 6 March 2024 (Exhibit A15a). Dr Martin was not required for cross-examination and the content of his report is not contested. Dr Martin's report 1. In his report, Dr Martin recorded that Mr Waterstreet said that he is taking the following medication: - Dexamphetamine [a psychostimulant used for attention-deficit hyperactivity disorder ADHD] 15mg daily [he said that he had been "out of pills for four days"]. He said he has taken this for ten years, initially prescribed by Dr Fisher, then Dr Sippe [Psychiatrist] with this diagnosis approximately ten years ago. - Cymbalta [Duloxetine, an anti-depressant] 60-120mg daily [comment: he appeared unsure of his exact medication dose currently] and said that he had taken this for ten to fifteen years, prescribed by psychiatrist, Dr Sippe. He said that he had first been prescribed this medication by Dr Jonathon Phillips [Psychiatrist]. - Lamotrigine [a mood-stabilising medication], varying dosages which he thought between 100-200mg daily. - Zopiclone [a non-benzodiazepine night sedative] two to three tablets daily, but saying that he has run out. He said he has taken this particular medication for ten to fifteen years, and has taken "sleepers" for forty years, having previously taken Temazepam as well as anti-histamines. He said that he also takes blood pressure medications Mycardis and Asprin. 1. We note that what Mr Waterstreet told Dr Martin is at odds with the evidence of Dr Sippe and Dr Ryan that Dr Sippe ceased the prescribing of dexamphetamine to Mr Waterstreet in 2022. 2. Dr Martin notes that Mr Waterstreet told him that Dr Sippe was his current psychiatrist. 3. In his report, Dr Martin notes that Dr Ryan's notes contain the following entry from 7 July 2022: started in 2012-2013 seeing Fisher and commenced the Dex and Cymbalta – and noted by fellow barristers and overall change so much so asked to leave chambers – late with fees, case aborted after he posted Instagram – Judge in case to reconsider his involvement, stood aside, others concerned about his over talking, sexual preoccupations and themes in speech and frequent female visitors to his office and a female stalker [sic]. 1. Dr Martin also notes that Dr Fisher said, in correspondence provided to Dr Martin [and dated 9 April 2013]: I raise the question as to whether he might have had hypomanic episodes but, on reflection, he did not think so. … 1. Dr Martin says: Under diagnostic conclusions, Dr Fisher writes: "probable recurrent major depressive disorder, with possibility of bipolar affective disorder to be considered, as well as chronic generalised anxiety"… 1. Dr Martin quotes the following from a letter from Dr Fisher to Dr Quan on 7 December 2017: I reviewed Charles on 23 November 2017. You may be aware that he has been reported in the paper to have engaged in sexual harassment of his female staff…there does not appear to have been any evidence of hypomania or severe depression or indeed any other major psychiatric symptoms, apart from his persistent complaint of difficulty concentrating, for which the Dexamphetamine was originally prescribed. 1. Dr Martin records an exchange of correspondence between Dr Sippe and Professor Philip Mitchell, psychiatrist, whom he describes as "a highly respected mood disorders specialist". Dr Sippe referred Mr Waterstreet to Professor Mitchell in 2022. At that time, Professor Mitchell said that he was "not convinced about the bipolar disorder" because he could not "elicit clear periods of hypomania or mania". However, in 2023, Dr Sippe again referred Mr Waterstreet to Professor Mitchell, who saw him on 16 November 2023. Professor Mitchell wrote to Dr Sippe on 19 November 2023 and said: It was now clearer to me that Charles does have bipolar II disorder. He had recently switched from a depressive episode into an elevated phase, in which he would wake early about 2am "full of life", be overly optimistic, full or energy and speaking quickly. It was interesting reviewing my notes from the initial assessment that he spoke of those phases but only when he was enthused, for example in a court trial. This episode was unrelated to such positive or exhilarating experiences, and I can now see why you have diagnosed him with bipolar II. When I reviewed him, the depressive episode had lasted for about 2 to 3 months. He said that the elevated episodes usually last for about 2 to 3 weeks. 1. Dr Martin said the following in relation to diagnosis (page 22-25): In terms of diagnosis, his presentation is complicated. While there may be debate about the exact correct diagnosis according to DSM-5, in my view there can be no doubt whatsoever that Mr Waterstreet has profound psychological difficulties manifesting with severe mood dysregulation, disinhibition, disorganisation and an impaired sense of interpersonal boundaries that have clearly affected his behaviour. In my opinion, it is likely that historical substance use and an apparent preoccupation with sexual themes have probably represented attempts to self-regulate his underlying emotional instability, but with harmful results. Based on his narrative history, together with the collateral information, in my view, he does merit a diagnosis of Bipolar II disorder. Bipolar II disorder is recognised as a long-term condition characterised by predisposition to mood instability, manifested by sustained periods of low mood and interspersed briefer periods of elevated mood [hypomania]. … …hypomania, as classically described in Bipolar II disorder, generally presents with more sustained and disabling depressive episodes interspersed with less severe and briefer 'hypomanic' periods, lasting a few days and where a person feels euphoric, 'bullet proof', with a sense of increased energy, feeling driven, feeling more productive, sometimes with grandiosity, being more disinhibited, spending recklessly, talking excessively and having raised libido. I give significant weight to Prof Mitchell's opinion which seems highly considered, on a background of great clinical experience and research. Other clinicians above have also considered bipolar as a potential diagnosis. In my view, the picture of hyper-sexuality and disinhibition, talking excessively, being expansive and over-familiar, together with apparently reckless spending to the point of financial and professional harm, are consistent with significant mental illness [bipolar disorder] especially when taking into account his history of psychiatric/psychological treatment. In my view, the quality of his emails noted above to his psychiatrist are consistent with bipolar II disorder. They read as disinhibited, disjointed, and sent at odd hours [eg 3.28a,]. Descriptions of being over-familiar, over-sharing and excessively talkative are all consistent with a bipolar picture. A pertinent question is whether his presentation can be explained by the concept of a personality disorder, as raised with treating clinicians in the cross-examination noted above. It could be argued that lack of empathy, being inconsiderate, showing excessive self-regard, craving admiration, maintaining poor interpersonal and professional boundaries, and generally behaving in a boorish, offensive manner might be seen as evidence of a personality disorder. Presumably the relevance of the issue of whether his behaviour is seen as more related to a mental illness as opposed to a personality disorder is that a mental illness (such as bipolar disorder) might be seen as an affliction outside a person's responsibility, and therefore a mitigating/exculpatory factor, whereas personality disorder might be seen as a representation of flawed character, and an aggravating factor. This issue is highly complex and speaks to philosophical notions of personal responsibility. The issue of bipolar II disorder [or major depressive disorder] verses a personality disorder represents a false dichotomy, in my view. In basic terms people with personality disorder can develop bipolar disorder and are not immune to developing discrete mental illnesses, which can be superimposed on their character representation. It is quite possible that Mr Waterstreet has narcissistic personality traits [which are common across society] and it would be surprising if he did not have some personality limitations, given his early developmental trajectory of loss… … I have not seen the source material for diagnosis of ADHD in Mr Waterstreet's case but, in my view, it would not be surprising had he 'ticked boxes' for the various diagnostic criteria, according to DSM-%. ADHD would not be my preferred primary diagnosis for him as in my view his life trajectory is more suggestive of bipolar II disorder. Certainly, I would not regard ADHD as being the most relevant factor in relation to his alleged sexually inappropriate behaviour. … The relationship between diagnosis and conduct is, again, complex and not clear-cut. While noting that some of the nature of the allegations is contested, if it were to be assumed that he had engaged in the behaviour as alleged, there are broadly two potential explanations: One is that disinhibited, inappropriate and offensive behaviour can be contextualised as that of a person who is entitled and lacking empathy, and which might be construed as representing regressive, patriarchal, and misogynistic attitudes on a background of an extroverted and provocative personality style, that was out of keeping with current societal explanations. The other formulation is that disinhibited, hypersexual and libidinous behaviour is a consequence of a poorly controlled major mood disorder. As considered above, these two approaches are not necessarily mutually exclusive. However, on balance, the extreme behaviour described, when taken in the context of the collateral clinical material, is mostly suggestive of an underlying major mood disorder, in my view. It might be suggested that hypersexuality caused by sustained mood disturbance in a major mood disorder cannot be the case, given that he was apparently succeeding as a barrister, with limited evidence of him appearing severely impaired in his court work. In my opinion, it is not inconsistent that he was experiencing alternating major mood disturbance while able to work successfully as a barrister, even while other elements of his life were significantly impaired [eg financial organisation]. The totality of evidence suggests that there has been a long-term pattern of problems with maintaining appropriate boundaries and functioning in intimate relationships. The general picture is one of background chaos, even while he was able to work as a barrister and in other fields such as writing. In my view, the problematic behaviour is so extreme as to be strongly suggestive of a poorly controlled mental illness. In my view, mood disorder has been the predominant problem, which has been superimposed on the background of early developmental loss/ attachment disruption, complicated by prior substance use and a chaotic lifestyle. The psychiatric evidence and s 297(1)(b) 1. We accept the evidence of Dr Sippe, Dr Ryan and Dr Martin that Mr Waterstreet, at all relevant times, suffered from bipolar II disorder. We find that a diagnosis of bipolar II disorder was not made until 2022, when both Dr Sippe and Dr Ryan made that diagnosis. Dr Martin and Professor Mitchell both agree with the diagnosis. Until 2022, Mr Waterstreet's diagnosis was major depressive disorder and generalised anxiety with mild ADD symptoms and his treatment was based on that diagnosis. 2. We accept that Mr Waterstreet was experiencing both major depressive episodes and shorter hypomanic episodes periodically throughout the period of time in which the conduct complained of occurred (September 2014 to 22 February 2019). We note that the Diagnostic and Statistical Manual of Mental Disorders, fifth edition (DSM-5), says, in the entry for bipolar II disorder (Exhibit R12), under the heading "Diagnostic Features": Individuals with bipolar II disorder typically present to a clinician during a major depressive episode and are unlikely to complain initially of hypomania. Typically, the hypomanic episodes themselves do not cause impairment. Instead, the impairment results from the major depressive episodes or from a persistent pattern of unpredictable mood changes and fluctuating, unreliable interpersonal or occupational functioning. Individuals with bipolar II disorder may not view the hypomanic episodes as pathological or disadvantageous, although others may be troubled by the individual's erratic behaviour. Clinical information from other informants, such as close friends or relatives, is often useful in establishing the diagnosis of bipolar II disorder. 1. DSM-5 sets out the following criteria for a hypomanic episode: A. A distinct period of abnormally and persistently elevated, expansive, or irritable mood and abnormally and persistently increased activity or energy, lasting at least 4 consecutive days and present most of the day, nearly every day. B. During the period of mood disturbance and increased energy and activity, three (or more) of the following symptoms have persisted (four if the mood is only irritable), represent a noticeable change from usual behaviour, and have been present to a significant degree: 1. Inflated self-esteem or grandiosity. 2. Decreased need for sleep (eg feels rested after only 3 hours of sleep). 3. More talkative than usual or pressure to keep talking. 4. Flight of ideas or subjective experience that thoughts are racing. 5. Distractibility (ie, attention too easily drawn to unimportant or irrelevant external stimuli) as reported or observed. 6. Increase in goal directed activity (either socially, at work or school, or sexually) or psychomotor agitation. 7. Excessive involvement in activities that have a high potential for painful consequences (eg, engaging in unrestrained buying sprees, sexual indiscretions, or foolish business investments). C. The episode is associated with an unequivocal change in functioning that is uncharacteristic of the individual when not symptomatic. D. The disturbance in mood and the change in function are observable by others. E. The episode is not severe enough to cause marked impairment in social or occupational functioning or to necessitate hospitalisation. If there are psychotic features, the episode is, by definition, manic. F. The episode is not attributable to the physiological effects of a substance (eg a drug of abuse, a medication or other treatment). 1. All of the conduct alleged in relation to C1 in Complaint One, Ground One, particular 9, which we have found to have been proven involved inappropriate sexual conversation (in the context of a workplace), disinhibition, and overfamiliarity on the part of Mr Waterstreet, which Dr Martin said are consistent with 'a bipolar picture'. Dr Ryan said that disinhibition, impulsivity verbally and behaviourally, and increased sexual interest are symptoms of hypomania. Dr Ryan described a predisposition to making "inappropriate, disinhibited comments with a sexual focus and preoccupation" as a "hallmark feature of bipolar 2 in a hypomanic phase". Dr Sippe said that in bipolar II disorder, in the hypomanic phase, "Optimism is marked and judgment is impaired. Impairment of judgement and impulsivity often lead to foolish financial decisions and inappropriate sexual behaviour". 2. Complaint One, Ground Two, concerns the underpayment of C1 by Mr Waterstreet. This complaint is associated with Mr Waterstreet's reckless and impulsive spending, disorganisation and lack of empathy or consideration of others, which can occur during hypomanic episodes, on the evidence of Dr Martin. Dr Ryan also identified Mr Waterstreet's 'impulsive and undisciplined spending' as an aspect of his mood disorder. 3. All of the conduct alleged in Complaint Two, Ground Three, particular 15 which we have found to have been proven involves inappropriate sexual conversation (in the context of a workplace interview), disinhibition and overfamiliarity on the part of Mr Waterstreet, again consistent with 'a bipolar picture' on the evidence of Dr Martin and with the evidence of Dr Ryan and Dr Sippe referred to above. 4. The conduct alleged in Complaint Three, Ground Four, and admitted by Mr Waterstreet, displayed many aspects of a hypomanic episode , including a flight of ideas, excessive talking, disinhibited and hypersexual behaviour, impaired judgement and a lack of empathy or consideration of others, again consistent with the symptoms of bipolar II disorder. 5. We accept the evidence of Dr Martin, Dr Sippe and Dr Ryan that the conduct of Mr Waterstreet which is the subject of the complaint was behaviour which is symptomatic of a poorly controlled mental illness, namely bipolar II disorder. 6. The DSM-5 entry on bipolar II disorder makes it clear that the episodes of depression and hypomania which comprise the disorder are intermittent. It follows that there will be periods of time during which a person with bipolar II disorder will not be experiencing depression or hypomania. However, DSM-5 says: The interval between mood episodes in the course of bipolar II disorder tends to decrease as the individual ages. 1. It seems to us that the conduct alleged in the complaint which has been proven was a product of Mr Waterstreet's then undiagnosed, and therefore poorly controlled, bipolar II disorder, in combination with being an expression of some of his personality traits, such as his desire to entertain, his self-centeredness and his tendency to prioritise his own needs over the needs of others. Hypomania is expressed differently in different people. 2. Bearing in mind that impaired judgment is a feature of bipolar II disorder, particularly in the hypomanic state, we find that we are unable to attribute Mr Waterstreet's offending conduct to his character for the purposes of s 297(1)(b) of the Uniform Law. Whilst attributes of his character influenced aspects of the way in which he behaved whilst hypomanic, the uncontrolled hypomania was the force that caused him to take his behaviour to the point where he fell foul of his professional and personal obligations to other people who were involved or present in his workplaces. 3. We decline to find that Mr Waterstreet, by reason of the conduct proven against him in this matter, is not a fit and proper person to engage in legal practice under s 297(1)(b) on account of attributes of his character. The Council has not established that Mr Waterstreet's character played a sufficient role in his offending conduct for an adverse finding to be made under s 297(1)(b), and the psychiatric evidence, which we accept, indicates that Mr Waterstreet's then undiagnosed and poorly controlled bipolar II disorder was the dominant causal factor in his offending conduct. Summary and Conclusion Complaint One Ground One 1. Particulars 9(iv), (v) and (vii) of Complaint One, Ground One, have been established. They constitute sexual harassment and are to be dealt with as breaches of rule 117(b) of the 2014 Rules (rule 123(1)(b) of the Uniform Barristers Rules). The conduct alleged in particulars 9(iii), (iv), (v), (vii), (ix) and (x) constitutes conduct likely to diminish public confidence in the legal profession, and we are dealing with those particulars as breaches of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). 2. Together, the rule breaches alleged in Complaint One Ground One which have been established constitute unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law. Complaint One Ground Two 1. Particular 10 of Complaint One, Ground Two, which relates to the underpayment of wages to C1, has been established. It is to be dealt with as a breach of rule 12(c) of the 2014 Rules (rule 8(c) of the Uniform Barristers Rules). The conduct constitutes unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law. Complaint Two Ground Three 1. The allegations of sexual harassment in particulars 15(ii), (iii) (as to the first two alleged comments, but not the third) and (iv)(d) have been proven. Each of them constitutes a breach of rule 8(c) and rule 123(1)(b) of the Uniform Barristers Rules. They constitute unsatisfactory professional conduct under ss 296 and 298(b) of the Uniform Law. Complaint Three, Ground Four 1. The allegations in paragraphs 16 and 17 of the complaint were conceded and proven. The conduct constitutes sexual harassment, in breach of rule 123(1)(b) of the Unform Barristers Rules. It is also a breach of rule 8(c) of the Uniform Barristers Rules as conduct likely to bring the legal profession into disrepute. It constitutes unsatisfactory professional conduct under s 296 of the Uniform Law. Complaint Three, Ground Five 1. Complaint Three, Ground Five alleges that the conduct alleged in Grounds One to Four constitute professional misconduct and unsatisfactory professional conduct. We have found that such of the conduct as has been established in each of Grounds One to Four constitute unsatisfactory professional conduct. 2. All of the conduct which has been proven, taken together, constitutes professional misconduct under s 297(1)(a) of the Uniform Law. 3. Professional misconduct has not been made out under s 297(1)(b) of the Uniform Law. 4. We will make the following orders: 1. This matter is listed for directions on 19 April 2024 at 9:30am. 2. Stage 2 of the hearing is listed for 12 and 13 August 2024. ********** 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 19 April 2024 - The name "Waterhouse" replaced with "Waterstreet". 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: 19 April 2024